Monday, April 18, 2011
I was annoyed by the result in Skilling—that the unquestionable honest-services error was “harmless” beyond a reasonable doubt. But at the time I couldn’t articulate exactly why. After the Bonds verdict, I can. In short, the Bonds verdict illustrates the silliness of the conclusion in Skilling that appellate courts can and should sit as the 13th, 14th, and 15th jurors, then use a cold record to speak for the first 12 jurors while pretending appellate courts have crystal balls that make this okay.
Compare the two cases. Skilling’s trial was infected by honest-services error: in the indictment; in the evidence; in the argument; and in the instructions. Kicking a door cracked open by the Supreme Court in Pulido, the Fifth Circuit swept this under the rug—finding harmlessness—by pretending it could satisfactorily predict that the jury would have convicted on all counts even absent the error. To be sure, this put the nail in the coffin for the Yates standard of review, which said that when multiple theories are charged and instructed and one is impermissible, reversal usually is automatic because it is “impossible to tell” whether the jury relied on the impermissible theory. The Yates standard respected the constitutional right to an impartial jury of one’s peers (which appellate courts concerned with finality and efficiency certainly are not); it recognized the limitations of an appellate court’s ability to predict the past under changed circumstances; and it acknowledged that juries are composed of human beings (not robots) who can be and often are influenced by intangibles not apparent in a paper record.
The Bonds verdict illustrates why eradicating the Yates standard was a bad idea—and indeed leads to a standard that infringes the right to an impartial jury of one’s peers. Bonds was charged with repeatedly lying to a grand jury, and obstruction of justice essentially based on repeatedly lying to that grand jury. With a proper indictment and charge, the impartial jury of Bonds’ peers hung on whether Bonds lied to the grand jury, but agreed that he obstructed by lying to the grand jury. There are hyper-technical legal ways to attempt to explain this—but in reality (where jurors live), the verdict makes little sense. And surely Bonds’ attorneys will file a motion challenging the sole conviction on this basis.
But more importantly to me, Bonds illustrates what was right with Yates and what is wrong with Skilling. Appellate court’s aren’t very good at predicting the past under changed circumstances. I’d venture to guess that if the Fifth Circuit judges who decided Skilling had placed bets on the Bonds verdict, they’d have batted 0 for 3 predicting hung counts on lying but conviction on obstruction based on lying.
I hope the defense bar won’t give up on the Yates standard.
Thursday, April 14, 2011
It is interesting to see that the government has issued a press release announcing that it has re-indicted the former pharmaceutical (GlaxoSmithKline) company lawyer with charges of obstruction and making false statements. It is common for the government to use"short-cut" offenses in white collar cases. (see here).
But shouldn't they have also issued a press release weeks ago when the government's indictment was tossed by a judge (see here). Why is it that the press releases only tell half the story? Shouldn't a minister of justice tell both the dismissals and the re-indictments?
More importantly, is this a case that the government should be spending our precious resources for government prosecution. Even if there is a discovery violation here, and I am not convinced that there has been one - does this matter belong in criminal court? Or, if this conduct did occur, would this better be suited for an administrative or disciplinary matter?
See also Sue Reisinger, Corporate Counsel, Feds Re-Indict Former Glaxo In-House Lawyer
Wednesday, April 13, 2011
Maura Dolan, LATimes, Barry Bonds Convicted of Obstruction of Justice in Steroids Case
Ben Forer, ABC News, Barry Bonds Convicted of Obstruction of Justice, but Jury Hung on Other Charges
Fox News, Bonds guilty of obstruction of justice
Juliet Macur, NYTimes, Bonds Guilty of Obstruction of Justice
Laird Harrison & Dan Levine, Reuters, U.S. jury finds Barry Bonds guilty on one count
Alan Duke, CNN, Bonds convicted of obstruction of justice
Why is it that the headlines tend to focus on the conviction and not the counts that did not result in a conviction (although it is noticed that ABC News did not do this). Was this long investigation and trial worth it? Is this how our tax dollars should be spent?
For background see here.
Monday, April 11, 2011
The Third Circuit recently ruled in a closely watched case, on the issue of whether corporate counsel had in fact represented an individual within the corporation and as such the attorney-client privilege should apply. (see here) The unpublished opinion of the court found no error on the part of the district court. Counsel for Appellant Norris has now filed for a rehearing en banc. Three issues are presented in this Petition:
"I. The Panel Decision Squarely Conflicts With Shramm, Arthur Andersen, and Aguilar as to the Requisite Specific Intent for a Conspiracy to Obstruct a Grand Jury Proceeding;
II.The Panel Decision Squarely Conflicts with Farrell's Holding that 'Corrupt Persuasion' Does Not Include Persuading an Alleged Co-Conspirator to Withhold Incriminating Information;
III. The Panel Decision Misapplied Bevill to Permit the Evisceration of a Corporate Officer's Personal Attorney-Client Privilege."
Petition for Rehearing En Banc - Download 2011-04-06 Petition for Rehearing En Banc
Friday, March 25, 2011
Commentary on Court Dismissal of Indictment Against Former VP & Associate General Counsel of GlaxoSmithKline
Check out - Sue Reisinger, Corporate Counsel, She Asked, Counsel Told: Case Against Glaxo Attorney Is Dismissed
The former VP and Associate General Counsel of GlaxoSmith Kline had been charged with a 6-count Indictment for the alleged crimes of obstruction (1512), falsification and concealment of documents (1519) and false statements (1000). The Indictment against Lauren Stevents has now been dismissed, but it is without prejudice.
Stevens claimed a defense to the charges of advice of counsel in her responses to the FDA's inquiry. The government response was that 18 USC 1519 is a general intent crime and therefore a "good faith reliance on advice of counsel is only a defense to specific intent crimes."
The court did not agree with the government, citing applicable sources that provide a solid basis for its holding. My take is that the statute clearly is requiring two intents - to "knowingly alters, destroys, multilates, conceals, coversup, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impeded, obstruct, or influence the investigation ....." With two intents it seems clear that one should use specific intent here.
But what is more questionable here is that the government thinks that specific intent should not be required here. Should you really prosecute someone who may not have had the specific intent to do these alleged acts? Will this achieve the deterrence from criminality that we desire? Irrespective of whether one accepts the government's claim that advice of counsel is an affirmative defense or the defense and court position that it negates the mens rea, is prosecution of this alleged conduct the way we want to spend valuable tax dollars?
This case is a perfect example of how we are failing to use our resources wisely. Do we really need to spend money prosecuting folks who may not have complied with a government discovery request properly? Or would the money be better spent using it for educating lawyers and others of how to respond to government inquiries correctly. And what happens if we turn the tables - should we start prosecuting Assistant United States Attorneys who do not comply with constitutional requirements of discovery, or would our resources be better spent educating them of the importance of upholding these constitutional rights.
Bottom line - don't refile this case.
Addendum - See here
Wednesday, March 23, 2011
In a closely watched case (see here), the Third Circuit was asked to consider whether corporate counsel had in fact represented an individual within the corporation and as such the attorney-client privilege should apply. Defendant had argued that the Bevill standard should not "apply here, as here, both the individual and the corporation have an express attorney-client relationship with counsel." Reply Brief of Ian P. Norris - Download 2011-02-25 Norris Reply Brief.
The Third Circuit issued an unpublished opinion that resolves this issue in a paragraph, stating in part that:
"[t]he District Court in this case held an evidentiary hearing and ultimately determined that Norris failed to meet his burden in asserting his privilege pursuant to the five-factor test set forth in In the Matter of Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120, 123 (3rd 1986). The District Court did not legally err in applying this test, and we see no clear error in the District Court's holding based on the facts elicited in the evidentiary hearing."
To all the corporate executives that are cooperating with corporate counsel thinking that the individual is representing them - beware....
Opinion- Download Opinion
Tuesday, March 1, 2011
The government has unsealed the Hughie Elbert Stover Indictment in the Southern District of West Virginia. Stover is charged with one count of 18 U.S.C.Section 1001 false statements and one count of 18 U.S.C. Section 1519 concealment, mutilation, and destruction of records and documents. This is the first indictment coming out of the government's investigation of the 2010 Upper Big Branch Mine explosion in Montcoal, West Virginia. The charges do not appear to be directly related to the explosion itself, which may account for the relative restraint of the well-crafted speaking indictment and DOJ's Press Release on Hughie Stover. Stover, head of security for Massey subsidiary Performance Coal Company, Inc., is accused of lying to federal investigators by stating that: 1) Performance security guards were forbidden to give advance warning of Mine Safety and Health Administration ("MSHA") Inspectors' presence at the mine; and 2) he would fire any guard who gave such advance notice. According to the indictment, Stover actually devised the system under which advance notice of MSHA Inspectors' presence was quickly relayed through the mine via a mine communications channel. Stover is also accused of directing an employee to destroy records of the warning system. Section 1519 was enacted as part of Sarbanes-Oxley. The indictment nowhere mentions Massey Energy or the explosion itself. The press release does, including quotes from U.S. Attorney Booth Goodwin and Assistant Attorney General Lanny Breuer. Therefore, the press release clearly goes beyond what is in the indictment. I am generally not a fan of broad speaking indictments or lengthy press releases that announce indictments. But here, as mentioned, the indictment, although speaking, is restrained and well-crafted. The purpose of the relatively brief press release is to send a message that any obstruction of an important ongoing investigation will be swiftly and ruthlessly punished. In this regard, it is important to note that both the alleged false statements and the alleged records destruction occurred in January of this year. To me, this is one of the very few valid reasons for any kind of an extended press release announcing an indictment--that is, to send a message that obstruction of a major ongoing investigation will not be tolerated and that those who engage in it will pay a price. Press reports indicate that Stover was arrested at his home. This was unfortunate and unfair. Stover is innocent until proven guilty and, as Stover's Conditions of Pretrial Release indicate, nobody considers him a flight risk or danger to the community. He was released on an unsecured $10,000.00 bond.
Thursday, August 19, 2010
The Washington Post story is here and has a link to the indictment. Nothing yet up on PACER. Clemens is charged in six counts with perjury, false statements, and obstruction of Congress.
The Wall Street Journal is reporting here that baseball great Roger Clemens will soon be indicted by a federal grand jury for perjury.
Thursday, June 24, 2010
GUEST BLOGGER-SOLOMON L. WISENBERG
Here is a press release from the National Association of Criminal Defense Lawyers ("NACDL") containing NACDL President Cynthia Orr's comments on today's U.S. Supreme Court honest services opinions. Orr is “heartened that the Court has unambiguously rejected government arguments that the ‘honest services’ fraud statute can be properly used across as broad a range of conduct as the government has sought to do in recent years.” Nonetheless she is"disappointed that the Court has held that there remains a place in our criminal justice system for a statute on whose meaning few can agree.” (In various friend of the court briefs, NACDL has taken the position, now shared by Justices Scalia, Thomas, and Kennedy, that 18 U.S.C. Section 1346 is unconstitutionally vague.)
Orr expects “to see future litigation surrounding efforts by prosecutors to wedge their cases into the ‘bribe or kickback’ paradigm to which the Court has now limited this statute.” Of this we can be sure.
The NACDL press release also bemoans the portion of the Skilling opinion which "shockingly found that pre-trial publicity and community prejudice did not prevent Mr. Skilling from obtaining a fair trial. In fact, though, there has not been a more poisoned jury pool since the notorious first robbery and murder trial of Wilbert Rideau in Louisiana."
Sunday, April 18, 2010
Many have been advocating for a "good faith" defense when a rogue employee does an act within the corporation that is diametrically opposed to company policy (see here). There is an understanding that corporate compliance cannot control every action, and that on occasion the best of corporations will not be able to control the activities of an employee that goes beyond what the corporation authorizes. The difficulty here is in deciding whether the corporation really allowed for this activity and then decided when caught that this was unauthorized, or whether the corporation truly had a corporate compliance program that tried to preclude this activity.
Place this backdrop on the recent disclosure that individuals may have destroyed videotapes that may have provided evidence of improper interrogation techniques by individuals, perhaps ones associated with the CIA. If there was an ongoing investigation into the interrogation methods being used, the destruction of evidence relevant to that investigation would be wholly improper and perhaps criminal. The first question will be whether there was an ongoing investigation, and whether these individuals were aware or should have been aware of that investigation. If so, the destruction of possible evidence could be considered an obstruction of justice.
News reports say that white house counsel Miers and CIA lawyer Rizzo were "livid" and "upset" to learn of this destruction. (see Mark Mazzetti, NYTimes, C.I.A. Document Details Destruction of Tapes). But the real question should be how could this have happened and what kind of compliance measures were in place to make certain that this would not happen. If this were a corporation, the fact that leaders were displeased with the activity of individuals within the entity would not serve to keep that entity from being held criminally liable of the conduct of the rogue employees.
The CIA is not a corporation, but if the government is demanding that corporations are going to be subject to penalties for the acts of rogue employees, then they too must bear the same consequences when someone bypasses their internal directives.
Saturday, December 5, 2009
A defendant convicted of violating 18 U.S.C. 1542, a statute pertaining to a false statement in an application for a passport, argued unsuccessfully that materiality was required. The Second Circuit held that unlike section 1001, materiality was not an element of this particular statute. Authoring the opinion, Hon. Jose Cabranes noted that this issue was one of first impression for this circuit, the Second Circuit. The court used statutory interpretation analysis to hold that the language of materially was not in this particular statute. The court noted that its holding was in keeping with other circuits, citing to decisions from the 1st, 9th and 11th Circuits.
The element of materiality presents an interesting issue for courts. In some cases like the false statements statute (18 U.S.C. 1001), perjury (18 U.S.C. 1621), and false declarations (18 U.S.C. 1623), the statutes clearly require an element of materiality. In some cases the nature of the statute requires an element of materiality (See mail fraud, wire fraud, and bank fraud) (See Neder v. United States).
Some, like myself, argue for requiring materiality with other statutes (arguing for an element of materiality in obstruction of justice cases- see here). A benefit of requiring materiality is that it can serve as a check on prosecutorial discretion. It can limit prosecutors who might try to proceed in trivial cases.
Opinion - United States v. Hasan
Sunday, October 12, 2008
Guest Blogger - Stephanie Martz, Senior Director, White Collar Crime Policy, National Association of Criminal Defense Lawyers -
Here’s an evergreen issue that was just brought to my attention – United States v. Kevin A. Ring, 1:08-cr-00274, assigned to D.C. District Court Judge Ellen Huvelle as part of the Jack Abramoff series of defendants: an obstruction charge based on Ring’s alleged lying to private counsel retained to conduct an internal investigation. (By the way: Ring has moved for Huvelle to recuse herself on the grounds that having taking 13 guilty pleas in this case and presided over it for five years has compromised her ability to remain impartial.)
Ring was, among other things, a Greenberg Traurig lobbyist along with Abramoff and seems to have been the point person in the lobbying team’s contact with several Hill offices, including that of former Rep. Istook of Oklahoma (through his now ex-chief of staff, John Albaugh, who faces a stiff prison sentence thanks to a guilty plea).
Ring was indicted on charges that he conspired to bribe public officials (18 USC 201, 18 USC 371), committed honest services wire fraud, and violated both 18 USC 1512(b)(3) and (c)(2). The first two sets of charges are alleged through a series of emails which purport to show Ring promising and delivering tickets to everything from Tim McGraw to the Redskins to the Wiggles (this appears to have been changed to a horse event, but anyway) in exchange for various nods to clients in transportation appropriations bills.
The obstruction charges are very interesting, especially for those who have followed the Computer Associates indictments (U.S. v. Kumar, U.S. v. Richards) and the El Paso Gas indictment (U.S. v. Singleton). In those previous three cases, the defendants were all charged with violating 1512(c)(2), which forbids corruptly obstructing, influencing, or impeding any official proceeding, or attempting to do so. In Kumar and Richards, the government alleged that the defendants had all but real knowledge that their (false) statements would be turned over to the government by the lawyers who had been hired to conduct CA’s internal investigation, thus suggesting but not stating outright that the private lawyers were mere conduits for information to the government. In Singleton, the nexus between the lawyers conducting El Paso’s investigation and the government – and therefore the conduit of information—was more tenuous; there was no reference in the indictment to any agreement by the company that statements and information would be turned over to the government as part of a formal or informal cooperation agreement, and the suggestion was that Singleton should have assumed as much.
Here are some very interesting observations, in light of this, about the Ring indictment: First, there is the most specific and clear allegation that I have seen so far that paints a real nexus between a private firm and the government. According to the indictment, Ring was SPECIFICALLY told that his statements would likely be turned over to DOJ and/or the U.S. Senate Committee that was investigating the matter. If this is true, kudos to the lawyers who were ethical enough to admit outright this development in the culture of internal investigations, and to inform employees accordingly. As a result, my guess is that this indictment will send fewer chills through the corporate bar than Singleton, in particular.
Second, the Kumar, Richards, and Singleton indictments did not employ 1512(b)(3), which is the only obstruction provision that specifically criminalizes using an intermediary to commit obstruction, and does not require an existing proceeding. Georgetown Law Professor Julie O’Sullivan observed that this may be because (c)(2) carries with it a massive 20 year maximum, and was therefore a bigger hammer.
O’Sullivan also observed, though, that in bringing indictments like these, DOJ risks killing the goose that laid the golden egg. DOJ is happy to reap the benefits of a culture of cooperation in which enforcement agents and the private corporate bar are partners in crime-fighting, but these benefits will diminish over time as indictments are brought that turn the private bar into de facto government agents. The use of 1512(b)(3) in addition to (c)(2) might make a difference – or it might have the same chilling effect.
Ring Indictment - Download ring_indictment.pdf
Saturday, February 16, 2008
The government's response to the motion to dismiss filed by Barry Bonds argues that the indictment is not ambiguous or duplicitous -- yet the filing contains a typographical error that indicated Bonds failed a drug test a year later than alleged in the indictment. If you're going to defend the precision of the charges, then the brief should at least be read carefully enough to ensure it is accurate, or the whole issue of sloppy drafting comes to the surface.
The brief (uncorrected version available below) responds to the defense arguments that the questions are too ambiguous to be the basis for a perjury charge, and that by citing multiple false statements in a single count the charges are duplicitous in violation of Bonds' due process rights. The government's position on duplicity seems to concede that each count could in fact charge separate violations of the perjury statute, but essentially tries to shrug off the problem. According to the brief, "[T]he government may remedy any duplicity in the indictment against Bonds by asking the grand jury to return a superseding indictment charging separate counts for each allegedly perjured statement. Accordingly, rather than electing among the charges in a duplicitous count, the government may elect to obtain a superseding indictment if the defendant is unwilling to remedy any duplicity by agreeing to a jury instruction that requires the jury to be unanimous in finding that at least one of the statements alleged in each count constituted perjury." Thus, if pushed by Bonds (and the court) to cure the duplicity problem, prosecutors may just seek another indictment with more counts of perjury, perhaps as many as ten or twelve.
In arguing that the first perjury charge is not based on ambiguous questions, the brief states, "At trial, the government’s evidence will show that Bonds received steroids from Anderson in the period before the November 2001 positive drug test, and that evidence raises the inference that Anderson gave Bonds the steroids that caused him to test positive in November 2001." The indictment references Bonds failing a drug test in November 2000, but not in 2001. The media immediately picked up on this, but the U.S. Attorney's Office in San Francisco said it was just a typo, that the brief was referring to the November 2000 failed drug test cited in the indictment, and has since filed a corrected version. That type of mistake does not enhance the credibility of the prosecutors, especially when the issue is the clarity of the questions.
The government's primary argument on ambiguity is that the questions are sufficiently clear, although perhaps a bit inartful, and that Bonds never indicated he was confused. Thus, the issue of ambiguity is one for the jury and not for the court. The Supreme Court's seminal decision in Bronston v. United States on perjury, however, makes it clear that a court can decide as a matter of law whether a question is sufficient to be the basis for a perjury charge, and to determine whether the defendant's answer is literally true. That is clearly Bonds' first line of defense, that poor questioning by prosecutors caused him to make statements he did not intend to be false, even if they were a bit misleading. Throw in an attack on IRS Special Agent Jeff Novitzky, the government's lead investigator who was also at the Roger Clemens hearing, as the embodiment of outrageous government conduct, and there may be enough there to raise a reasonable doubt. While it is tough to win dismissal of an indictment at this stage, there may well be some significant reworking of the document because of its drafting problems. (ph)
Saturday, February 9, 2008
Would the government actually indict an attorney premised upon allegations that the attorney wrote several opinion letters for another lawyer? As surprising as it might seem, the answer is "yes." The government has indicted Attorney Ben Kuehne for his alleged writing of six opinion letters based upon his investigation of whether funds being paid to an attorney were proceeds of criminal conduct.
Several observations and comments on the Indictment and the accompanying Motion to Seal:
- The indictment is preceded by a page titled - "Motion to Seal." It is signed by a "trial attorney - DOJ." It requests the indictment be sealed "for the reason that the named defendants may flee and the integrity of the ongoing investigation may be compromised." - Did the government really believe that Attorney Ben Kuehne would flee? A later sentence states that"many of the named defendants are foreign nationals." But the government fails to limit the language used in the prior sentence that explicitly states "that the named defendants may flee" to only those who might be foreign nationals. That is a powerful statement to claim that a prominent Miami attorney might flee. If they didn't mean to apply this statement to him, is it prosecutorial over-reaching, an attempt to taint the accused, or just sloppy drafting?
- The indictment alleges that Kuehne's opinion letters were inaccurate in stating that some of the moneys had come from an individual/company that "his investigation" "had determined.... were reputable and well-established, without any connection to illegal activities." The indictment claims that some of these opinions were untrue because moneys had in fact come from "undercover law enforcement operations." ---- Isn't the very purpose of an undercover operation to make it seem like things are real? Is this a situation of accusing someone of issuing incorrect opinion letters because the government did a good job of misleading him?
- Count Six of the Indictment charges Obstruction of Justice. The charge is expressed in a total of 2 sentences. It states:
"From on or about January 23, 2003, continuing to the date of this indictment, the defendants, .......did corruptly endeavor to influence, obstruct and impede the due administration of justice; that is investigations by the grand jury; to wit, endeavoring to influence, obstruct, and impede a federal investigation, as set forth above. In violation of Title 18, United States Code, s 1503." (names omitted)
A charge without any facts? Did the government actually put a mere restatement of section 1503 as the basis of a criminal charge against an attorney? Co-blogger Peter Henning called the Indictment of Ben Kuehne a "head-scratcher," but that was prior to receiving the document. But after reading it, I'd go a step further - they have actually indicted an attorney for obstruction of justice and alleged no facts in this count to support the charge. It almost sounds like a case the 11th Circuit reversed, U.S. v. Thomas, 916 F.2d 547 (11th Cir. 1990).
Perhaps the most troubling aspect of this indictment is that it represents yet another instance of the government interfering in the payment of attorney fees for the criminally accused. As opposed to going to court and asking for the fees to be returned as improper, they have opted to proceed with criminal charges that in some cases carry up to 20 years.
Indictment - Download us_v_kuehne_indictment_oct_2007.pdf
Thursday, January 24, 2008
Home run king Barry Bonds moved to dismiss the perjury and obstruction of justice indictment (brief available below), asserting that the charges are duplicitous -- one of my all-time favorite legal arguments -- and that the questions posed were so ambiguous that his answers were not false as a matter of law. A count of an indictment is duplicitous when it charges two crimes in a single charge, which is to be distinguished from multiplicity, which is charging the same crime in two different charges. The more common duplicity claim involves two separate crimes charged in one count, but here the claim is that there are different responses that may be untruthful, so that the government has too many potential instances of perjury in each count.
The four perjury counts contain a number of questions and answers, so it is difficult to identify any one with particularity that is perjurious. The problem posed by a duplicitous charge is that there is no way for a jury to convict on one offense and acquit on another offense contained in the same count. Similarly, because the jurors have two crimes to consider in a single count, they may convict without reaching a unanimous agreement on either. For example, if some jurors believe one response by Bonds was untruthful while others believed a second response in the same count was a lie, then they could all agree that he committed perjury but not based on the same answers. The problem a defendant faces when there is duplicity in the charges is that it's not clear which of the statements the prosecution will focus on, and indeed the government could shift its theory in response to the defense.
While Bonds raises a valid point about the number of questions and answers in each count, in the government's defense I suspect prosecutors wanted to provide the context for his answers, many of which are fairly clear denials (i,e. "no" in some instances). Moreover, even if the district court found that the perjury counts were duplicitous, the remedy is usually not dismissal but an order to the government to seek a superseding indictment from the grand jury that cleans up the charges or perhaps a bill of particulars to identify one specific answer in each count that it will prove as perjury. It may be that the government will seek more charges by breaking up the counts, so that rather than facing four counts of perjury, Bonds will face eight or twelve. The motion also attacks the obstruction charge on essentially the same ground.
Bonds' second argument goes to the heart of a perjury charge -- the ambiguity in the questions means that he did not answer the questions untruthfully, or at least did not know his answers were false. The key perjury case is Bronston v. United States, 409 U.S. 352 (1973), in which the Supreme Court held that "the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner-so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object to the questioner's inquiry." If the questions are ambiguous and the prosecutor does not ask a clear question or seek to clarify the answer, then the defendant cannot be convicted for the responses. Thus, compound questions, and questions using broad terms or imprecise dates, can open the door to a "not guilty" verdict. The problem for Bonds is that the ambiguity defense is usually one left to the jury, and it is the rare case in which a court decides as a matter of law that the questions were so defective that no rational jury could find the answer was untruthful. While this gives us a preview of where the defense is headed at trial, it is unlikely to succeed at this stage of the proceedings.
As often happens when a sports figure is involved in a case, the temptation is to toss in an analogy (or perhaps a simile) to the athlete's sport is just too hard to resist, even if it only causes the reader to groan. In the brief, the attorneys write with regard to the duplicity in the indictment, "Even Barry Bonds cannot be expected to make contact with a fastball, slider, and knuckler thrown him simultaneously." Please, no one this side of Tim Wakefield throws a knuckle ball any more, and the best sucker pitch in baseball is the splitter. Let's hope the government does not respond by likening the defense filing to the typical defensive shift put on when Bonds comes to bat. (ph)
Wednesday, January 16, 2008
The Congressional hearing on steroid use in baseball played out largely as expected with Representatives beating up on Commissioner Bud Selig and union head Donald Fehr. The session began with a bit of a surprise, though, when House Oversight and Government Reform Committee chairman Henry Waxman announced that he and the ranking Republican, Representative Tom Davis, sent a letter (available below) to the Department of Justice asking for an investigation of a player for possibly lying to Committee investigators. The object of the referral is Miguel Tejada, a former American League MVP who was recently traded from the Baltimore Orioles to the Houston Astros. Tejada was interviewed by the Committee when it investigated one of his teammates, Rafael Palmeiro, who famously testified in the first round of steroid hearings in March 2005 by asserting that he had never used steroids. A few months later, Palmeiro tested positive for steroids, and claimed that he might have gotten them when Tejada gave him an injection of what he thought was vitamin B-12 -- interestingly enough, the very same thing Roger Clemens admitted Brian McNamee injected him with, but not steroids. To investigate whether Palmeiro committed perjury, Committee investigators interviewed Tejada and had the following exchange:
Committee Staff: And you, I believe, testified to this earlier, but I just want to make sure, have you ever taken a steroid before?
Mr. Tejada: No.
Committee Staff: Have you ever taken any illegal performance-enhancing drugs?
Mr. Tejada: No.
Committee Staff: Have you ever taken Andro or any other steroid precursor?
Mr. Tejada: No.
Unfortunately, Tejada is mentioned in the Mitchell Report as having received from an Oakland A's teammate testosterone or Deca-Durabolin, as well as human growth hormone, and the Report includes copies of three checks from Tejada to his teammate. In asking for an investigation, the two Congressmen assert, "In light of the conflicts between the statements that Mr. Tejada provided to the Committee and the evidence in Senator Mitchell's report, we ask the Justice Department to investigate whether Mr. Tejada made knowingly false material statements to the Committee in violation of 18 U.S.C. 1001."
Is another investigation of an athlete for lying about steroid use really necessary? In addition of the perjury prosecution of Barry Bonds, we've seen former Olympic gold medalist Marion Jones given a six-month prison term for making false statements to federal agents, one of which concerned steroids received from Balco. Unlike those criminal investigations, however, this one involved a Congressional Committee interview on a topic that was at best peripheral to any real legislative business. The March 2005 steroids hearing that featured a number of players, including the ill-fated non-assertion of the Fifth Amendment by Mark McGwire, was for the most part the typical grandstanding seen on Capitol Hill. No legislation emerged from hearing, and nothing of any real importance from a policy perspective occurred in the testimony of the players. Now, the interview of an individual (Tejada) on issues that were at best peripheral to an unimportant -- albeit stupid -- witness (Palmeiro) may become the basis for a federal criminal prosecution.
I generally make it a point not to beat the "waste of government resources" drum about a criminal investigation for false statements because I think telling the government the truth is important. But at some point you have to wonder whether every contradiction needs to be the subject of a separate federal investigation. Simply making a public statement at the hearing, that it appears Tejada was less than completely truthful, may well have been sufficient to accomplish whatever purpose Chairman Waxman and Representative Davis had in mind when they began the hearing by announcing their letter to the Department of Justice. Unfortunately, don't think that the upcoming hearings in February with Clemens and McNamee will be any less of a circus. (ph)
Saturday, January 12, 2008
Former Olympic gold medalist Marion Jones received a six-month prison sentence from U.S. District Judge Kenneth Karas for her guilty plea to two counts of making false statements, the maximum recommended term under the Federal Sentencing Guidelines for the offenses. Jones was interviewed by federal agents in 2003 and again in 2006, the first time about the Balco (Bay Area Laboratory Co-operative) steroids operation and the second time about a check-kiting scheme involving her former boyfriend, sprinter Tim Montgomery. In the Balco case, she denied ever receiving steroids and even filed a defamation suit against Victor Conte, the founder of Balco, for his statements about her use of performance-enhancing drugs; that civil case was eventually dropped, for obvious reasons.
The Sentencing Guidelines range was 0-6 months, and I speculated earlier (here) that she might receive probation or home confinement. The prosecutors did not recommend any particular sentence other than staying within the Guidelines recommendation, and when Judge Karas floated the possibility of giving her consecutive sentences for each count of conviction or to exceed the recommended sentence, the prosecutors filed a letter (available below) urging the court to give a sentence within the 0-6 months range and not any higher. While in other white collar crime cases prosecutors have taken a more aggressive stance on sentencing, here they urged the court to stay within the Guidelines and gave the impression that a sentence with no incarceration would be acceptable.
Judge Karas' indication before sentencing that he was considering a longer prison term made it likely he would sentence Jones at the high end of the Guidelines range. In explaining the sentence, the Judge stated that he wanted to send a message to other athletes who do not adhere to the values of "hard work, dedication, teamwork and sportsmanship." In addition, Judge Karas said, "Athletes in society have an elevated status, they entertain, they inspire, and perhaps, most important, they serve as role models." An AP story (here) discusses the sentencing.
After the Supreme Court's decision in Gall granting district courts broader discretion in sentencing, individualized factors now play a greater role in the punishment determination. But, should an athlete's celebrity status be a basis for imposing an increased sentence in order to "send a message" to others? Jones did not plead guilty to using performance-enhancing drugs, although she had now admitted to using them, so the message is not one tied to the underlying crime.
It is interesting to consider Jones' six-month prison term in comparison with other sentences handed down in white collar crime cases. Mark Kipnis, a former general counsel for Hollinger International who was convicted along with Lord Conrad Black for his role in a scheme to defraud the company, received probation after a sentencing hearing held the very day Gall came down. The fraudulent scheme cost the company approximately $6 million, and Kipnis was the attorney whose job was to protect his client, the company. I. Lewis Libby's thirty-month sentence for obstruction of justice and perjury was commuted by the President because it was excessive, and he had at least as high a profile as Jones when he breached the public trust. Even in the Balco prosecution, Conte received a four-month prison term for his role in the distribution of illegal narcotics, while Jones' sentence is 50% higher for lying to agents in the case.
In the world of sentencing reasonableness in federal cases fostered by the Supreme Court's decisions in Booker and Gall, it is hard to say that a sentence is "unfair" in comparison with another because the focus now is on an individualized assessment of culpability. One result of this new -- or perhaps return to -- sentencing discretion is that there will be greater disparity, and the "luck of the draw" regarding which judge a defendant draws takes on added importance. The luck of this judicial draw will see Jones beginning a six-month prison term in March, and she will have to serve virtually the entire term because there is no good-time credit for a sentence of less than a year. (ph)
Wednesday, January 9, 2008
Obstruction of justice, perjury, and false statements prove particularly easy charges for the government when the conduct would require extensive investigation prior to indictment. I often call them the government "short-cut" offenses. So it is no surprise to see the government using them extensively.
A press release of the DOJ reports that:
"Iona Uiagalelei, former Assistant Chief of the Department of Property Management for the American Samoan government, was sentenced Monday, Jan. 7, 2008, in federal court in Hawaii for obstructing a federal sex trafficking investigation. In August 2007, Uiagalelei pleaded guilty to witness tampering for instructing two Chinese women to provide false and misleading information to a federal grand jury, the federal prosecutor, and Federal Bureau of Investigation agents.
Uiagalelei was a business partner with Chinese national Fu Sheng Kuo, who, along with several co-defendants, operated a scheme to recruit and import Chinese women and hold them in prostitution in nightclubs and brothels in American Samoa. Upon arrival, the victims, who were unpaid, were denied access to their passports and return airline tickets, and the opportunity to leave until they had paid off increasing debts. Uiagalelei sponsored numerous Chinese nationals to enter and reside in American Samoa who then engaged in Kuo’s prostitution business.
Uiagalelei was sentenced to 13 months imprisonment and three years of supervised leave. Uiagalelei reports to federal prison Monday, Jan. 14, 2008. Four other defendants in this case have pleaded guilty and have been sentenced."
What might normally not be considered a white collar offense can become one when you use charges such as obstruction and witness tampering. The question becomes where these cases fall with respect to government statistics.
Friday, December 7, 2007
Above the Law has eyewitness reports (here) on the initial appearance and arraignment of Barry Bonds. In addition to the usual procedures, such as Bonds being released without having to post bond or surrender his passport, it appears that the conflict of interest issue with one of his new attorneys, Christine Arguedas, is an issue, at least for the moment. From various reports, it sounds like prosecutors raised the question about one of Bonds' lawyers representing other witnesses in the case, which is probably Arguedas' representation of witnesses in the Balco grand jury investigation in which Bonds allegedly committed perjury. Of course, a defendant can waive the conflict, but the court is not required to accept it. This may be the first test regarding the relationship between the two sides, and if the government takes a hard line and files a motion to disqualify then things are likely to get pretty frosty.
The defense also said it will seek dismissal of the indictment, which will probably require briefing and a hearing on the motion. The next court date is February 7, at which time the judge may set a trial date. With a flurry of motions like to come soon, it is unlikely the case will be completed before the end of the 2008 season, which raises the question whether any major league team will take a chance and sign Bonds to a contract. (ph)
UPDATE: Here's the text of the court's order recounting the hearing:
The defendant’s appearance maybe waive at the next appearance. The appropriate waivers shall be filed in advance of the next hearing. The government indicated that there may be a conflict issue with certain defense counsel. The government shall e.file a letter indicating the situation as they see it and the Court will determine if a hearing is necessary. If the Court determines that a hearing is necessary, the defendant must be present. Defendant indicated that they may file a motion to dismiss the indictment.