Friday, March 4, 2016
There was an incredible presentation on implicit bias, moderated by Hon. Bernice B. Donald, who chairs the ABA Criminal Justice Section. This was a real highlight of the program and the audience was glued to the screen for a short video of images. The discussion that followed was truly enlightening. Also hats off to the Hon. Mark W. Bennett, who comes off the bench to shake the hand of the defendant in order to explain the presumption of innocence.
One panel, moderated by Morris "Sandy" Weinberg, looked at the The Future of White Collar Criminal Law. The incredible array of panelists discussing the past and future were: Robert B. Fiske, Jr., Gary Naftalis, Dan Webb, Robert Bennett, John Keker, Larry Thompson, Karen Seymour, Leslie Caldwell.
There was another panel titled: Women in the Courtroom: A View from the Jury Box. Moderated by Hon. Patricia Brown Holmes, a retired associate judge in the Circuit Court of Cook County and a partner at Schiff Hardin LLP (Chicago), the panelists continued the discussion from earlier in the program on implicit bias. Joan McPhee, a partner at Ropes & Gray LLP asked the question, “[d]oes gender matter in the courtroom?”
This panel started by saying that there was no real studies, so the panelists decided to do their own research and study.
Dr. Ellen Brickman, Director in the Jury Consulting practice at DOAR Inc., a litigation consulting firm in New York, explained how the juror study was conducted. Ms. McPhee then explained the survey of attorneys and Laura C. Marshall, a partner at Hunton & Williams LLP, described comments received from the surveys.
Bottom line - Women jurors had a stronger preference for women attorneys.
There was discussion of the importance of being careful of distractions and to watch speech patterns in front of jurors. This was in addition to a discussion of who to select on the jury. It was noted that the government tends to have more women on their teams and some of the panelists looked at the challenges of getting more women on trial teams. Although Dr. Ellen Brickman noted that having women on teams as tokens can work negatively. There was also a discussion on the role of emotion and how anger plays out in the courtroom.
I can't wait to read this study.
New England Patriot quarterback Tom Brady did not get the reception he wanted at the oral argument of the appeal of the National Football League (NFL) of a district court decision overturning his four-game suspension in the so-called Deflategate case. Brady has been accused of conspiring with Patriot employees to deflate footballs so that they were easier for him to throw in a game in cold weather. The appellate court spent a considerable amount of time questioning Brady's counsel about Brady's destruction of his cellphone shortly before he was to appear before NFL investigator Ted Wells.
In my view the evidence concerning whether the footballs were deflated was equivocal and, even if they were deflated, the evidence that Brady was knowingly involved was largely speculative, and in total, absent an inference of wrongdoing from the unjustified destruction of evidence, probably not sufficient to meet even the minimal 51-49 "more probable than not" standard used in the NFL and most other arbitrations. Evidence of the suspiciously timed destruction of the cellphone, and the lack of a convincing justification for it, however, for me pushes the ball over the 50-yard line and may be the linchpin of an appellate decision upholding the suspension. As Judge Barrington Parker stated at oral argument, "The cellphone issue raised the stakes. Took it from air in a football to compromising a procedure that the commissioner convened." He asked Brady's counsel,"Why couldn't an adjudicator take an inference from destroying a cellphone?," then stated that Brady's explanation - that he regularly destroyed cellphones for privacy reasons - "made no sense whatsoever."
Courts are understandably especially sensitive (sometimes too sensitive and too punitive, in my view) to acts like perjury or destruction of evidence which obstruct investigations or prosecutions. Our justice system relies, at least theoretically, on the basic (although somewhat erroneous) principle that, at least generally, witnesses will not violate the oath to tell the truth. It is therefore no great surprise that the court focussed on Brady's destruction of evidence and his purportedly lying about it. Indeed, Judge Parker appeared to accept that even if Brady had not been involved in tampering with the footballs, his destruction of evidence would justify Goodell's decision. "Let's suppose a mistake was made and the footballs weren't deflated, and then a star player lies in his testimony and destroyed his phone. An adjudicator might conclude the phone had incriminating evidence. Why couldn't the commissioner suspend Brady for that conduct alone?"
Of course, it would be rather perverse if Brady's suspension were upheld when in fact he had actually not been involved in deflating footballs and had destroyed his cellphone as an excuse for not producing it and lied about it for reasons unrelated to the deflating issue, such as that the phone contained wholly unrelated embarrassing information or that he possesses an Apple-like principled view of privacy rights. It calls to mind Martha Stewart, who was convicted and jailed for lying to federal agents and prosecutors in a proffer session even though the underlying insider trading allegation about which she was questioned, was not prosecuted. On the other hand, it would not be perverse if in fact the destroyed cellphone did contain incriminating conversations.
Sometimes a client under investigation asks his lawyer what the client should do with incriminating evidence he possesses. As much as the lawyer in his heart may want the evidence to disappear, he cannot ethically or legally advise the client to conceal the evidence. (The specific advice will vary depending on the facts and circumstances.) The lawyer should frankly explain his ethical and legal obligations. However, generally the client doesn't give a hoot about them. The lawyer should explain that destruction, tampering and concealment of evidence, if discovered by the prosecutor, will undoubtedly eliminate the possibility of non-prosecution, lessen the possibility of a favorable plea deal, strengthen the prosecution's case at trial, and, if there is a conviction, undoubtedly cause a more severe sentence. Just as lawyers sometimes invoke the Stewart case to caution about the danger of voluntary interviews with prosecutors, so might they invoke the Brady case to caution about the danger of destruction of evidence.
The Brady case highlights the danger of destruction of evidence and lying to investigators.
Thursday, March 3, 2016
Deputy Attorney General Sally Yates was the luncheon speaker at the ABA White Collar Crime Conference. It was a Q and A format, and as one might suspect, the Yates Memo was a key topic - although she preferred not to call it the Yates Memo.
She started by saying that as long as a company acts in good faith, they can still get cooperation credit even if they can't designate a particular culprit. She stated that they are not requesting a waiver of privilege. She said, "we want the facts." As a matter of fact, she said this several times in answer to questions asked.
She was unable to say whether companies were not disclosing because of this new policy. But she did say that a company would get more credit if they voluntarily disclosed than if there was an investigation and they then disclosed. She noted that its a question of how quickly you cooperate. She also spoke about the civil side of investigations - again with an eye toward looking at the individuals. She also spoke about the training conference to educate on this policy.
My takeaway - it's all about throwing the individual under the bus, even if you can't name the specific individual.
This year marked the 30th Anniversary of the ABA White Collar Crime Conference. Hon. Paul Friedman gave a wonderful talk in which he looked at three decades in white collar practice. He noted how initially there was “no focus on white collar crime.” In 1970 a fraud unit was created, and it was the first time anyone decided to focus on this area of law. Initially the main charges one saw were mail and wire fraud. But then came RICO, FCPA and others. He noted that in practice, firms did not have major white collar crime sections. Now they do, with initiatives in export controls, forfeiture, health care, and other areas. He also noted the rise of deferred prosecution agreements.
Judge Friedman focused in his talk on four things: 1) increased power of federal prosecutors – especially with regard to sentencing – which he noted was higher in white collar cases today than it used to be; 2) vanishing jury trials – with more pleas and a smaller number of cases going to trial – which in turn results in fewer lawyers with trial experience; 3) electronic discovery- and the need to confront the new technology; 4) Brady – and the need to eliminate a requirement of having a materiality element, with all potentially favorable information being disclosed. He suggested that judges need to play a more active role in discovery. Finally, he emphasized the growing imbalance of power from the judicial branch to the executive branch.
Wednesday, February 24, 2016
This morning the Texas Court of Criminal Appeals put the final nail in the coffin of former Governor Rick Perry's criminal case. The indictment was returned to the trial court to be dismissed. Here is the majority opinion in Ex Parte Rick Perry.
Friday, February 5, 2016
Symposium-Discussion: Corporate Criminal Liability 2.0
Stetson University College of Law – Gulfport, Florida
Friday, February 19, 2016
10:00 a.m. – 3 p.m.(Eastern Time)
This Symposium/Discussion will consider the current state of corporate criminal liability from corporate, criminal, white collar, political, and international perspectives; looking at what does corporate criminal liability 2.0 look like, and more importantly what should it look like.
Stetson University College of Law - 1401 61st Street South Gulfport, Florida 33707 United States
To register to attend - here
Thursday, February 4, 2016
The decision by a Philadelphia suburban trial court that a previous prosecutor's publicly announced promise not to prosecute Bill Cosby was not enforceable has virtually no precedential value anywhere, but it may affect how prosecutors, defense lawyers, defendants and targets act throughout the nation. The rule of law from this case seems to be that a former prosecutor's (and perhaps a current prosecutor's) promise not to be prosecute, at least when not memorialized in a writing, is not binding, even when the target relies on it to his potential detriment. That promise can be disavowed by a successor prosecutor, and perhaps by the prosecutor himself.
Occasionally, cases arise where defense lawyers contend that prosecutors violated oral promises made to them and/or their clients. Such situations include those where a prosecutor, it is claimed, promised a lawyer making an attorney proffer that if his client testified to certain facts, he would not be prosecuted or would be given a cooperation agreement and favorable sentencing consideration. Often these instances result in swearing contests between the adversary lawyers: the prosecutor denies making any such promise and the defense lawyer says he did. In most instances, in the absence of a writing, the court sides with the prosecutor. With respect to plea agreements, some courts have set forth a black-letter rule that promises not in writing or on-the-record are always unenforceable.
The Cosby case is very different. There the (former) prosecutor in testimony avowed his promise, which was expressed in a contemporaneous press release, although there was no formal writing to defense counsel or a court, and expressly testified he did so in part in order to deprive Cosby of the ability to invoke the Fifth Amendment in a civil case brought by the alleged victim, he also said that he believed his promise was "binding." Cosby, according to his civil lawyer, testified at a deposition because of that prosecutorial promise. (Generally, prudent prosecutors, when they announce a declination to prosecute give themselves an "out" by stating that the decision is based on currently-known information and subject to reconsideration based on new evidence).
To a considerable extent, the criminal justice system relies on oral promises by prosecutors (and sometimes judges) to defense lawyers and defendants, especially in busy state courts. And, in federal courts, while immunity agreements are almost always in writing, federal prosecutors (and occasionally, but rarely, federal judges) often make unrecorded or unwritten promises. Sometimes such prosecutorial promises are made in order to avoid the time-consuming need to go through bureaucratic channels; sometimes they are made by line assistants because they fear their superiors would refuse to formalize or agree to such a promise; sometimes they are made to avoid disclosure to a defendant against whom a benefiting cooperator will testify. Based on the Pennsylvania judge's decision, some defense lawyers (and some defendants) will believe that prosecutors' oral promises are not worth the breath used to utter them, and, perhaps, since there appears to be no dispute that such a promise was made here, that written promises are barely worth the paper they are written on.
Defense lawyers are frequently asked by their clients whether they can trust the prosecutor's word in an oral agreement. My usual answer is that they can: most prosecutors are reliable and honest. Defense lawyers are then sometimes asked a variant question about what will happen if the promising prosecutor leaves the office or dies. My usual answer is that if there is no disagreement as to whether the promise was made, it will be honored. The Cosby decision has made me reconsider that response.
There are certain highly-publicized cases of celebrities of little precedential or legal value that have a considerable effect on the practice of law by both prosecutors and defense lawyers. The case of Martha Stewart, who was, on highly disputed testimony, convicted of 18 USC 1001 for lying in a voluntary proffer to prosecutors investigating her purported insider trading (which, assuming it occurred, was most likely not a crime), is still invoked by prosecutors in cautioning witnesses not to lie to them and by defense lawyers in cautioning witnesses about making a voluntary proffer. The Cosby case will likely be cited by defense lawyers and their clients concerning the uncertain value of oral agreements with prosecutors. The skepticism of many defense lawyers about the reliability of agreements with the government and trustworthiness of prosecutors will grow. I suspect the sarcastic refrain of some defense lawyers, "Trust me, I'm the government," will be said more often.
I assume that the decision will be appealed, and also that a motion will be made to exclude Cosby's deposition because it was a consequence of the promise. That latter motion is likely to be denied based on the judge's decision on the issue discussed here, although since the judge failed to set forth any reasoning for his decision, there may be room for distinguishing that issue from the one decided.
Although the judge's ruling has no doubt pleased those clamoring for Cosby's conviction and those desiring a decision on the merits, it may have a considerable negative effect on the perceived integrity and reliability of prosecutorial non-memorialized promises and the actual practice of criminal law. And it reveals once again how celebrity cases often make bad law.
Tuesday, January 19, 2016
White collar crime in sports has been a topic of much discussion over the last year, including the widespread coverage of corruption allegations against high ranking officials with FIFA (discussed here). Now it appears that the tennis word is coming under greater scrutiny as a BuzzFeed and BBC article is released discussing what they describe as "widespread match-fixing by players at the upper level of world tennis."
The article, entitled The Tennis Racket, was released over the weekend and immediately provoked much discussion. The story details evidence of match-fixing, including the involvement of Russian and Italian gambling syndicates. According to the authors, tennis's governing body has been repeatedly warned about the activities of a core group of sixteen players, each of whom has ranked in the top 50 and some of whom are winners of singles and doubles at Grand Slam tournaments. According to the report, none of the sixteen have been sanctioned and more than half will be playing in the Australian Open, which started today. Included in the article is a fascinating discussion of a 2007 match in which the betting was so suspicious, Betfair (the world's largest internet betting exchange) suspended the market and announced for the first time in its history that all bets on the match were void.
After the release of this article, it appears all eyes over the next couple of weeks will be on both the matches at the Australian Open and these serious allegations of misconduct. The question now is whether this story will mark the beginning of a journey for the tennis world similar to the one the soccer world has experienced over the last year.
Friday, January 15, 2016
Tuesday, January 5, 2016
The Ethics & Compliance Initiative (ECI) released a special Blue Ribbon Panel report, Principles and Practices of High Quality Ethics & Compliance Programs. The report is a discussion draft, and they are seeking comments and suggestions from colleagues and other members of the public. The draft report can be found here - Download FinalBRPReport
The deadline for comments is January 8th, but they asked that those needing more time to contact their office.
Monday, January 4, 2016
Guest Blogger - Dmitriy Kamensky, Fulbright Faculty Development Fellow, Stetson University College of Law; Professor of Law, Berdyansk State University, Ukraine.
On Dec. 30, just as corporate and the rest of America was getting ready to celebrate the New Year, one of the top-tier Swiss banks, Julius Baer Group, announced (see here) that it had reached an agreement in principle with the U.S. Attorney’s Office for the Southern District of New York, related to a long and extensive investigation into aiding American customers to evade millions of tax dollars. The bank said it set aside $ 547 million to settle the matter with the Justice Department and expects to enter a final settlement in the first quarter of 2016.
This final development of the Julius Baer case is the latest of about a dozen Swiss financial institutions that came under DOJ scrutiny for allegedly providing American customers (and taxpayers) with numbered accounts that were protected by Swiss bank-secrecy laws, thus effectively helping U.S. taxpayers underreport their taxes.
In February of 2009, UBS AG, the largest Swiss bank worth over $ 1 trillion in assets, entered into a Deferred Prosecution Agreement (DPA) with the Department of Justice for $780 million (see here). The bank has acknowledged that between 2000 and 2007 it has participated in a cross-border scheme with the purpose of defrauding the United States and the Internal Revenue Service. The scheme was designed to aid American customers in evading federal taxes, by dodging their money to numbered UBS accounts. Under growing pressure from the U.S. authorities, the bank and later the Swiss government agreed to cooperate, by granting access to American accounts and later relaxing bank secrecy laws altogether.
Then in 2014 another larger Swiss lender, Credit Suisse Group AG, moved to settle a similar criminal probe by pleading guilty to conspiracy to aid its American clients in filing false income tax returns with the IRS. The bank agreed to pay $ 2.6 billion in criminal fine, restitution and other penalties (see here).
With the case of Julius Baer outlining the final part of multiyear aggressive probes by DOJ into the Swiss banking industry and tax dodging operations, it becomes clear that bankers across the globe are being given a serious (and quite expensive) warning: do not mess with American tax laws; federal prosecutors and tax agents have long arms.
Saturday, January 2, 2016
Each year this blog has honored individuals and organizations for their work in the white collar crime arena by bestowing "The Collar" on those who deserve praise, scorn, acknowledgment, blessing, curse, or whatever else might be appropriate. With the appropriate fanfare, and without further ado, The Collars for 2015:
The Collar for Make-Believe Julius Caesar – To Deputy AG Sally Yates who issued a “new” corporate divide and conquer memo, pitting companies against their employees in a supposed effort to “get tough” on high-level corporate wrongdoers, only to see it followed up by GM’s Deferred Prosecution Agreement. She came, she saw, she whimpered.
The Collar for Forced Government Product Recall—To Preet Bharara who was ordered by the Second Circuit to recall his spoiled brand of insider trading prosecutions.
The Collar for Bargain Shopping – To DOJ, which might consider shopping its insider trading cases out of Manhattan following the Newman decision.
The Collar for Newspeak (aka the Orwell Collar)—To DOJ's Office of Public Affairs for its press release celebrating the Don Blankenship verdict.
The Collar for Best Singing of "Silence is Golden" – To DOJ for issuing press releases when there is a conviction and nothing when the jury returns a not guilty or a court dismisses the case.
The Collar for Arm-Twisting—To Deputy AG Sally Yates, whose memo spawned a sudden outbreak of corporate throwing--under the bus.
The Collar for Wishful Thinking—To Karl Rove for speculating in his Wall Street Journal column that Hilary Clinton might be indicted.
The Collar for Delusional Thinking—To "bad boy" Martin Shkreli for complaining to the Wall Street Journal that the indictment against him, "doesn't tell my side of the story at all."
The Collar for Hallucinatory Thinking—To Representative Trey Gowdy for thinking that anybody, on either side of the political aisle, really cared about the substance of his special committee’s findings.
The Collar for Favorite Don Quixote Judicial Noodge (aka the Tilting Against Windmills Collar)—To Judge Alex Kozinski who bravely and repeatedly urges his fellow federal judges to deter Brady violations where they matter--in the courtroom.
The Collar for Creative Writing (aka the E.E. Cummings Collar)—To the New Orleans U.S. Attorney's Office, whose prosecutors made anonymous prejudicial comments in local online newspaper stories about the defendants they were prosecuting.
The Collar for Creative Storytelling—To the same New Orleans U.S. Attorney's Office, whose prosecutors denied in open court all knowledge of anonymous prejudicial comments. This resulted in a dismissal with prejudice upheld this year by the Fifth Circuit.
The Collar for Prejudicial Law Enforcement Statements (aka the John Ashcroft Collar)—To the F.B.I. for its spokesperson's public "anonymous" comment that the charges against Martin Shkreli represented "a trifecta of lies, deceit, and greed."
The Collar for Professional Irresponsibility—To the U.S. Attorney's Office for the Eastern District of New York for allowing the FBI to perp-walk Martin Shkreli in front of television cameras.
The Collar for the Fishiest Title on a DOJ Press Release — "Chicken of the Sea and Bumble Bee Abandon Tuna Merger After Justice Department Expresses Serious Concerns"
The Collar for Forcing the DOJ to Call Soccer “Football” – To FIFA for the ongoing corruption investigation in the United States and Europe
The Collar for Defending the Attorney-Client Privilege – To the U.S. Court of Appeals for the District of Columbia for overturning a lower court decision in the case of In re Kellogg Brown & Root, Inc. that “generated substantial uncertainty about the scope of the attorney-client privilege in the business setting."
The Collar for Attempting to Make the Guinness Book of Records for the Longest Investigation – Yet again, to Congress for its investigation of the IRS.
The Collar for Food for Thought in Sentencing – To Stewart Parnell, who received a sentence of 28 years in prison after conviction on charges related to his involvement in a deadly nationwide salmonella outbreak
The Collar for the Case Most Needing Review – Virginia Governor Bob McDonnell’s conviction.
The Collar for Rat-Catching – To Antitrust for having the highest percentage of substantial assistance motions in the 4th quarter.
The Collar for Judicial Watchdog—To EDVA District Judge Gerald Lee. When the EDVA U.S. Attorney’s Office sent an official letter to potential defense witnesses informing them that they were actually victims, Judge Lee made prosecutors prepare a corrected version setting the record straight.
The Collar for the Best Child– To Don Siegelman’s daughter, who continues to fight to Free Don.
The Collar for the Best Parent - Retired years ago and renamed the Bill Olis Best Parent Award –not awarded again this year since no one comes even close to Bill Olis, may he rest in peace.
Monday, December 28, 2015
The Stetson IEMCC, now in its 20th year, is the world’s largest moot court competition devoted exclusively to global environmental issues. This year’s problem focuses on the return of confiscated poached elephant ivory and implicates UNCAC and UNTOC. We are seeking knowledgeable volunteers to evaluate memorials (briefs) submitted by student teams.
There is one more opportunity to judge: For the International Finals, judges will receive their assignments at the end of February/beginning of March. The due date for evaluations is Monday, April 11. We expect that each judge will read six to eight memorials.
If you are interested in assisting, please contact Prof. Brooke Bowman at firstname.lastname@example.org. General information about the Stetson IEMCC is available at http://www.stetson.edu/law/international/iemcc/index.php. Many thanks for your consideration and happy new year!
Thursday, December 24, 2015
Title 18 U.S. Code, Section 1546(a) prohibits a person from using a document prescribed by statute or regulation for entry into the United States if the document was "procured by means of" a false claim and false statement. In U.S. v. Pirela Pirela, out of the Eleventh Circuit, Pirela Pirela obtained a visa to enter the United States from Venezuela and intentionally failed to mention his Venezuelan criminal conviction. Charged with a violation of 1546(a), he argued that the statute requires the government to prove that he would not have obtained the visa but for his false statement. The government argued that it need only prove the materiality of the false statement. The government won.
Wednesday, December 23, 2015
Here is the Ninth Circuit's opinion in U.S. v. Douglas DeCinces. Absolutely no surprise that the district court's exclusion of 404(b) evidence was overturned. Like, duh. Here is the real lesson. There is no such thing as a tentative ruling. You exclude the evidence or you don't. All evidentiary calls are tentative in nature until the parties close. If you sense a favorable ruling but don't want the government to get an interlocutory appeal, ask the judge to carry the motion with the trial. Ask the judge to allow you to approach the bench and argue admissibility. Ask for anything but an actual pre-trial ruling, because, nine times out of ten, you are going to frigging lose on interlocutory appeal. I wouldn't even call this inside baseball. More like Pee-Wee Leagues.
Tuesday, December 22, 2015
Today in U.S. v. Gregory Bell, aka Boy-Boy, the D.C. Circuit denied appellants' consolidated petitions for rehearing en banc, which challenged the sentencing court's use of acquitted conduct to dramatically enhance appellants' sentences. Two separate and outstanding concurrences are worth a view. Judge Patricia Millett incisively critiques current sentencing jurisprudence which condones such horrific results. Judge Brett Kavanaugh agrees with Judge Millett and provides guidance for district courts who find by a preponderance of the evidence that acquitted conduct occurred, but do not want to enhance the sentence. What is the guidance? In a nutshell, utilize Booker to downwardly vary the sentence. Hopefully the Supreme Court will grant certiorari and end this appalling vestige of sentencing law.
Monday, December 21, 2015
Paragraph two of 18 U.S.C. Section 1542 criminalizes the willful and knowing use of a passport secured by reason of a false statement. Long ago, in a galaxy far away, the Supreme Court held that "willfully and knowingly" in the context of paragraph two means "deliberately and with knowledge" and not a damn thing more. The case, as every schoolboy knows, is Browder v. United States. (I was discussing one of Browder's more subtle points just yesterday with my haberdasher.) In U.S. v. Aifang Ye, the Ninth Circuit dealt with the appeal of Ms. Ye, who was convicted under Section 1542, paragraph one, of willfully and knowingly making a false statement in a passport application. The Ninth Circuit held that what's good for paragraph two is good for paragraph one. And what about those pesky intervening Supreme Court decisions seeming to indicate that willfulness requires "bad purpose" and a "knowledge that the conduct was unlawful"? You know, cases like Bryan v. United States and Safeco Insurance Company of America v. Burr? Not to worry. All disposed of in footnote two of the Ninth Circuit's opinion. Since Browder "directly applies" (although it dealt with a different paragraph of a predecessor statute), its ruling controls, even if its reasoning has been rejected in subsequent Supreme Court decisions.
Sunday, December 20, 2015
Last week in U.S. v. James Wendell Brown the United States Court of Appeals for the D.C. Circuit reversed a Booker upward variance in a child pornography case. The majority found Judge Richard Leon's sentence procedurally unreasonable, even under the plain error standard. The problem? Judge Leon was too general, and generic, in explaining how the four (out of seven) 3553(a) factors that he referenced applied to the defendant and justified an upward variance. As a white collar practitioner I always get nervous when a variance of any kind is sent back. Case law supporting upward and downward variances is substantial, and generally very favorable to the defense, and any chink in the armor of broad district court sentencing discretion is worrisome. Here there should be no great cause for concern. While talismanic recitation of all Booker factors is not required in any federal circuit to justify an upward or downward variance, there has to be some specific effort to link the factors relied upon to the individual conduct or character of the defendant standing before the sentencing court. Making sure that the court performs this linkage is the practitioner's job. Here, Judge Leon was simply too vague in reciting the 3553(a) factors and explaining why they justified a significant upward variance, and no practitioner chose to fill in the details, because the variance was opposed by both the prosecution and defense. In the mine run case, where defense counsel is arguing for a downward variance, it is his or her job to convince the trier of fact and, if necessary, help the court articulate, on the record, the reasons for the variance, such that the sentence will stand up on appeal. To fail is to screw your own case up and create a bad precedent for your peers.
Judge Edwards, writing for the majority, distinguished U.S v. Ransom. In writing about Ransom here last year, I noted that the DC Circuit "rejected appellants' argument that the sentencing court improperly relied on factors in varying upward that the Guidelines had already accounted for. Joining some sister circuits the Court held (internal quotes and citations omitted) that:
It is not error for a district court to enter sentencing variances based on factors already taken into account by the Advisory Guidelines, in a case in which the Guidelines do not fully account for those factors or when a district court applies broader [Section] 3553(a) considerations in granting the variance.
Notice that there are two alternative prongs to this portion of Ransom. The Brown court seems to indicate that the failure of the Guidelines to fully account for certain factors will only occur when the sentencing court sees and identifies special additional factors that exist in a specific defendant's particular circumstance. Thus, in Ransom, although the Guidelines already assessed two points for committing the offense while on probation, the sentencing court stated on the record that the offense of conviction (embezzlement) and the identity of the co-defendant were identical to the violated probationary offense and that this (and other things) justified an upward variance. Contrat this with Brown, where Judge Leon failed to articulate anything about Brown's particular offense/conduct/background that was not fully accounted for in the applicable Guidelines provisions.
The other prong of Ransom is completely undisturbed. A sentencing court can apply broader Section 3553(a) considerations, that is, broader considerations than those contained in the Guidelines, in granting an upward or downward variance. Again, there must be an explanation by the sentencing court. The sentencing court is always free to articulate its disagreement with the Guidelines' approach, and as long as that disagreement is rational and reasonable, the sentence cannot be disturbed. Two classic examples of this are family circumstances and aberrant conduct, both of which are nearly impossible to achieve as grounds for downward departure, but which regularly enter in to downward variance judgments in the post-Booker-Gall-Kimbrough world.
Judge Sentelle, who wrote the majority opinion in Ransom, dissented in Brown, because he did not see plain error.
Tuesday, December 8, 2015
Not surprisingly, New York County District Attorney Cyrus Vance's office has announced it will after a hung jury retry, albeit in slimmed-down form with fewer defendants and counts, the criminal case involving the defunct firm of Dewey & LeBoeuf's alleged misrepresentations in seeking financing during its desperate dying days. Prosecutors rarely admit defeat in big cases after a single hung jury. Double jeopardy does not apply.
The major defendant, against whom (as often happens with the highest-ranking officer) there is the least evidence, Steven H. Davis, its former chair, has been pared from the case and apparently will receive a deferred prosecution. "Deferred prosecutions" are rarely, if ever previously, given to individuals by New York state prosecutors, at least by that name. Although the terms have not been announced, this disposition, I suspect will essentially be just a dismissal dressed up so that the prosecutor can save some face and not admit a total loss.
The prosecutor, as is a custom in New York County, announced publicly on the record his plea offers to the three defendants remaining. I find this custom repugnant and sometimes in return I announce the defendant's terms for a final disposition - such as, a dismissal, an apology by the prosecutor and a testimonial dinner in the defendant's honor.
The plea offers here were a felony plea with a one-to-three year jail term to Joel Sanders, a felony plea with 500 hours of community service to Stephen DiCarmine, both of whom spent six months at the trial that ended in a hung jury, and a misdemeanor plea with 200 hours of community service, to Zachary Warren, who was severed and has not yet gone to trial. I would not be surprised if these cases were settled before trial, not necessarily at the offered price.
Saturday, December 5, 2015
Congratulations to the defense team members and their client in U.S. v. Bajoghli. After a 16 day trial, the dermatologist defendant was acquitted on all counts--over 40. Dr. Bajoghli was represented by Peter White and Nicholas Dingeldein of Schulte Roth & Zabel and Kirk Ogrosky and Murad Hussain from Arnold & Porter. The jury was out a day and a half.
There was some interesting motion work during the pre-trial phase, for those of us interested in government efforts to affect witness testimony. Six weeks before the original trial date, the government sent "victim impact notification" letters to several of Dr. Bajoghli's patients. Dr. Bajoghli complained that the patients, many of whom were scheduled to be defense witnesses, were not victims and that the letter was intended to prejudice the patients against him. Judge Gerald Lee granted the motion and issued a corrective letter. Here are the relevant papers: Bajoghli Motion in Limine Seeking Corrective Witness Instructions, Exhibit A Ogrosky Letter to DOJ, Exhibit B to Bajoghli Motion, Order Granting Motion for Corrective Witness Instruction, Court's Corrective Witness Letter.