Friday, January 6, 2006
The Second Circuit upheld the convictions of Martha Stewart and Peter Bacanovic on conspiracy, false statement, perjury (Bacanovic only), and obstruction of an agency investigation charges in a published opinion (available on Findlaw here). The opinion is long -- 74 pages -- and goes into a fair amount of detail about the government's evidence because many of the legal issues relate to the weight of the evidence. After looking through it, it appears to me that the court deals with a number of discrete issues that are largely unremarkable, and only the first two issues in the opinion appear to be a potential basis for a Supreme Court appeal (assuming either defendant wishes to pursue a further appeal at this point).
The first issue the Second Circuit deals with concerns the application of the Supreme Court's 2004 decision in Crawford v. Washington, 541 U.S. 36 (2004), to a Confrontation Clause claim regarding the admission of statements by Stewart and Bacanovic in their interviews with the SEC and FBI as evidence against the other. The Court issued Crawford a short time after the jury verdict in the case, so the issue is reviewed only for "plain error," which is a very difficult standard for defendants to meet. For those whose eyes glaze over at the mere mention of the Confrontation Clause, suffice to say that Crawford does not permit the government to introduce out-of-court statements that are "testimonial," and Stewart and Bacanovic argued that the introduction of their statements violated the Confrontation Clause because they were made to government officials, and hence "testimonial" in nature. After Crawford, such statements cannot be introduced against another defendant without a chance to cross-examine the declarant (recall that neither Stewart nor Bacanovic testified). Crawford has caused a great deal of uncertainty about its application by not defining what is a "testimonial" statement, which is one reason why it could be an issue that might draw the Supreme Court's attention. The Second Circuit dealt with the defense argument in this way:
Here, Defendants do not have the temerity to argue that somehow Crawford precludes the government’s proof of the Defendants’ false portions of their statements because they were provided in a testimonial setting. Crawford expressly confirmed that the categorical exclusion of out-of-court statements that were not subject to contemporaneous cross-examination does not extend to evidence offered for purposes other than to establish the truth of the matter asserted. * * * Defendants object that certain truthful portions of their statements made during the course of the agreed-upon obstruction must be excluded because they are "testimonial." On the facts of this case, where the object of the conspiracy is to obstruct an investigation that is engaged in obtaining those testimonial statements of the conspirators, that objection must fail. * * *
As noted, the admissibility of such totally false statements, made in the course and in furtherance of the conspiracy, suffers no Sixth Amendment bar under Crawford. The truthful portions of statements in furtherance of the conspiracy, albeit spoken in a testimonial setting, are intended to make the false portions believable and the obstruction effective. Thus, the truthful portions are offered, not for the narrow purpose of proving merely the truth of those portions, but for the far more significant purpose of showing each conspirator’s attempt to lend credence to the entire testimonial presentation and thereby obstruct justice. It would be unacceptably ironic to permit the truthfulness of a portion of a testimonial presentation to provide a basis for keeping from a jury a conspirator’s attempt to use that truthful portion to obstruct law enforcement officers in their effort to learn the complete truth.
In other words, good effort, but it just can't work that way.
The second issue concerns the false testimony of Lawrence Stewart, the Chief Forensic Scientist at the Secret Service laboratory who testified about the ink used in a notation in Bacanovic's broker book about selling Stewart's ImClone shares "@60." Lawrence Stewart was later prosecuted and acquitted of perjury charges related to his testimony, and Stewart and Bacanovic argued that the government's use of perjured testimony violated their due process rights. False testimony in the government's case-in-chief is highly suspect, but the jury returned a not guilty verdict on the charge related to the false testimony. In light of that, the Second Circuit held:
Lawrence’s testimony did not influence the verdict on the counts of conviction. It pertained exclusively to Bacanovic’s "@60" worksheet and was used by the Government to support its position that the $60 stop-loss agreement was an after-the-fact fabrication. The jury acquitted Defendants of all of the counts and specifications relating to the existence of the agreement. Because the Government failed to persuade the jury to convict on the only counts to which Lawrence’s testimony related, that testimony cannot be considered capable of materially affecting the verdict on the counts to which it had no relevance.
The other issues relate to juror misconduct, the failure to give a jury charge for the defendants related to insider trading, evidentiary rulings excluding evidence of the legality of Stewart's sale of ImClone stock, and challenges by Bacanovic to his convictions (e.g., the "two-witness" rule for perjury). The issues are largely non-controversial, and the court's resolution of them is unlikely to be the basis for a Supreme Court appeal because they involve judgment calls by the district court in areas in which the trial judge has fairly wide discretion.
While the Stewart case has received an a great deal of media attention, the appellate opinion affirming the convictions shows that the legal issues are rather mundane, and certainly not of great legal importance except perhaps the Crawford and witness perjury questions. (ph)
UPDATE: Doug Berman has an interesting post (here) on the Sentencing Law & Policy blog on the pace of appellate review in non-capital cases like this one. (ph)
Monday, December 5, 2005
An earlier post (here) discussed an e-mail sent by a lawyer to his law firm partners describing his likely malpractice in representing a client, and I noted that this is not the type of thing to commit to writing. Here's another example of what not to write down, and, more importantly, not to recommend to a client. Tennessee attorney Scott Pratt was arrested for contempt of court and being investigated for attempting to suborn perjury by his client, and the evidence includes the following e-mail to his client, Meredith Grant, about her testimony in the upcoming DUI trial: "[T]hey won't have anyone there to testify how much you had to drink. You won't be charged with perjury. I've never seen them charge anyone with perjury, and everybody lies in criminal cases, including the cops. If you want to tell the truth, then we'll just plead guilty and you can get your jail time over with." Grant provided the judge in her case with copies of two e-mails from Pratt, which led to his arrest and the pending investigation by the Tennessee Bureau of Investigation. Not only is the recommended course of conduct completely unethical and illegal, but it is beyond stupid to put it in writing -- especially to a client, who may view the attorney's advice as a bargaining chip in her own case. Remember what your mother always told you: Just because everyone else is doing it doesn't make it right. A story on TriCities.com (here) discusses the case, and this story is also highlighted on the CrimLaw blog (here). (ph)
Monday, November 14, 2005
The House Government Reform Committee decided not to make a criminal referral to the Department of Justice regarding possible perjury by former Baltimore Oriole Rafael Palmeiro for his statement in March 2005 that he never took steroids and subsequent positive test for stanozolol, a powerful steroid. The Committee's report (here) describes Palmeiro's statement regarding how the steroids might have entered his system:
During his interview with Committee staff, Mr. Palmeiro stated that his best guess as to what caused his positive steroid test was his use of liquid B-12. The Committee obtained no evidence indicating that B-12 has ever been inadvertently contaminated with stanozolol. The vial of B-12 provided to Mr. Palmeiro by Mr. Tejada was discarded by Mrs. Palmeiro. However, two bottles of B-12 were provided to the Players Association by Mr. Tejada. Neither sample was contaminated with stanozolol. During the Committee staff’s interview of Player A, he stated he had a remaining vial of B-12 provided to him by Mr. Tejada in May of 2005. Player A gave to the Committee the remainder of the vial of B-12. This bottle was tested, and also contained no stanozolol.
During the 2005 season, Mr. Tejada and Player A both injected B-12 purchased by Mr. Tejada and neither tested positive for steroids under MLB’s testing program. Based on this information, the interviews with Miguel Tejada and Player A, and the analysis run on the vial of B-12 provided to Player A by Mr. Tejada, the Committee is unable to determine whether the B-12 provided to Mr. Palmeiro by Mr. Tejada contained stanozolol.
Despite the clear problems with this excuse, the Committee concluded, quite properly, that the higher threshold for perjury could not be met, despite such a seemingly preposterous "explanation" from Palmeiro. Of course, showing that birds of a feather truly flock together, Jose Canseco, who accused Palmeiro in a book of taking Stanozolol, refused to provide the Committee with any specific information about Palmeiro's use that would support a perjury charge. No doubt such information would have required Canseco to wrack his brain, and would be unlikely to generate additional book sales. A sad chapter is closed, at least until Palmeiro comes up for election to the Hall of Fame five years from the end of his playing career, which may well have already happened. (ph)
Saturday, November 5, 2005
After Ronald Perelman won a $1.58 billion fraud judgment against Morgan Stanley for its failure to properly warn him about problems at client Sunbeam Inc., the financier pursued criminal contempt charges against the firm for alleged perjury by its lawyers and officers regarding the production of e-mail evidence. At the initial fraud trial, Judge Elizabeth Maass held that Morgan Stanley's repeated failure to produce e-mails permitted the court to find that the firm intended to defraud Perelman, so the only issue at trial was the amount of the damages. On top of the fraud verdict, the court has now heard Perelman's petition that Morgan Stanley be held in criminal contempt for its misleading statements to its opponent and the court about the completeness of its document production. The judge is considering the motion, which raises questions about the intent of the firm and its lawyers, and whether a private party can pursue a criminal contempt action. An adverse ruling would be more than a black eye for Morgan Stanley because it holds licenses to trade securities in all the states, and some of those could be placed in jeopardy by a criminal contempt citation. A nasty fight keeps getting nastier. A CNN.Com story (here) discusses the contempt proceeding. (ph)
Monday, October 31, 2005
The initial outlines of I. Lewis Libby's defense to the five-count indictment emerged shortly after the charges were unveiled when his attorney, Joseph Tate, stated, "Mr. Libby testified to the best of his recollection on all occasions." As Ellen Podgor notes (post here), the defense will emphasize how busy Libby was, and that these were relatively brief conversations amidst the crush of important government business (perhaps thereby invoking the war in Iraq and even Sept. 11 as touchstones of the scope of his responsibilities). This strikes me as an off-shoot of the "honest-but-ignorant CEO" defense urged earlier this year in the trials of Richard Scrushy and Bernie Ebbers -- successfully by one but not the other. The crux of the defense is that a CEO of a large company cannot be expected to pay attention to the details of the entire business, and that the person relies on others to handle the more mundane tasks (such as accounting). The details of individuals meetings and memoranda are not what a CEO focuses on.
While the prosecution of Libby involves different charges, the case hinges, like the corporate cases, on proving his intent. Libby could take the approach that his statements were entirely accurate, but then he gets into a fight over whether Tim Russert and Matt Cooper were telling the truth, a battle that may be very hard to win. Focusing the case on Libby's potentially faulty memory, and any inconsistencies in the testimony of both the media witnesses and internal government officials, can be used to support the position that Libby shares the same trait as others: a lack of attention to detail. Moreover, the "dedicated-but-overworked-public-servant" defense does not force him into a confrontation with the government witnesses, particularly Vice President Cheney should he testify, but would instead present Cheney (and perhaps Karl Rove) an opening to support Libby's position by noting how important his work is and how many issues Libby dealt with on a daily basis. By building up Libby's work, that may diminish the importance of Valerie Plame's CIA role within the scope of his attention. An interesting question will be whether a defense that emphasizes the importance of Libby and the Vice President may be perceived as diminishing the importance of the President and his advisers -- the whole "power behind the throne" issue that might cause a reaction from the White House.
A Washington Post story (here) discusses Libby's defense. (ph)
Saturday, October 29, 2005
It is in chapter 79 of the federal criminal code, in title 18. And chapter 79 is titled perjury. And the indictment clearly states perjury. Not to mention that the prosecutor called it perjury.
But was one of Libby's charges really a perjury charge?
The truth of the matter is that 18 USC 1621 is really the perjury statute and "Scooter" Libby was not charged with a violation of that statute. In actuality Libby was charged with a violation of the 18 USC 1623, commonly referred to as the false declarations statute ("False declarations before grand jury or court").
There are some important differences between a charge of perjury under 1621 and false declarations under 1623.
1. For one perjury can be before any "competent tribunal, officer, or person," while false declarations is limited to being "before or ancillary to any court or grand jury of the United States." Clearly Prosecutor Fitzgerald has used the more specific statute in the indictment and one has to credit him with making this choice. Many prosecutors use generic statutes when a more specific statute exists and one has to wonder in these cases why they failed to use the statute that Congress specifically crafted for the factual situation at hand. So - two points for Fitzgerald here.
2. Perjury has a 2 witness rule (although courts have interpreted this to be not merely two live witnesses), while this is not required for false declarations. Probably inconsequential in this case as it looks like there will be more than one witness.
3. The false declarations statute "permits the use of inconsistent statements to prove falsity, without specification as to which statement is false." Podgor & Israel, White Collar Crime in a Nutshell 3rd Ed (Thomson/West 2004). Perhaps a benefit of charging this statute here as opposed to the generic perjury statute.
4. In some cases the false declarations statute requires the opportunity for recantation. (Could that be why Rove made that last appearance before the grand jury?). Perjury, however, does not have a recantation defense and in any event courts have placed some limits on the recantation defense.
With a choice of charging perjury or false declarations, it looks like Fitzgerald made the correct choice in this case.
Friday, October 28, 2005
The indictment of I. Lewis Libby, now the former chief of staff to Vice-President Cheney, is available here. The five-count indictment primarily involves Libby's testimony regarding his interactions with Time reporter Matthew Cooper and NBC news personality Tim Russert, both of whom Libby told the FBI and grand jury were the source of his information about Valerie Plame's position at the CIA. Libby had two interviews with the FBI, and testified twice before the grand jury. Although the indictment does not reference directly the testimony of Cooper and Russert, the government's case is based on their providing contradictory statements, so the prosecution appears to be one based largely on whether the jury believes the reporters or Libby. While the indictment identifies various persons with whom Libby discussed Plame's CIA role, the crux of the case is his false testimony regarding his conversations with Russert and Cooper, so that will be the key to the prosecution.
The obstruction of justice count sets forth the matters that were "material" to the grand jury investigation, a key point that must be established for the charges:
During the course of the Grand Jury Investigation, the following matters, among others, were material to the Grand Jury Investigation:
i. When, and the manner and means by which, defendant LIBBY learned that Wilson’s wife was employed by the CIA;
ii. Whether and when LIBBY disclosed to members of the media that Wilson’s wife was employed by the CIA;
iii. The language used by LIBBY in disclosing any such information to the media, including whether LIBBY expressed uncertainty about the accuracy of any information he may have disclosed, or described where he obtained the information;
iv. LIBBY’s knowledge as to whether any information he disclosed was classified at the time he disclosed it; and
v. Whether LIBBY was candid with Special Agents of the Federal Bureau of Investigation in describing his conversations with the other government officials and the media relating to Valerie Wilson.
The indictment does refer to Libby speaking with a senior official in the White House, who is then identified as "Official A." From recent news reports, this would appear to be Karl Rove. One official specifically identified as providing Libby with information about Plame's CIA status is the Vice-President, which likely means Cheney will be a witness for the government in the case. This witness will be a particularly delicate one for the prosecutors to handle because of the long relationship between the Vice-President and Libby. (ph)
Monday, October 24, 2005
On Meet the Press, in the context of discussing possible charges from the grand jury investigation of the leak of the status of Valerie Plame, Senator Kay Bailey Hutchison stated that a perjury charge would be a "technicality" and any such charge would be an attempt by Special Counsel Patrick Fitzgerald to justify a two-year investigation -- see the Reuters story here. As an earlier post (here) notes, this may well be the week in which Fitzgerald decides whether to seek a grand jury indictment. The Reuters article also notes that Fitzgerald may inform one or more officials in the administration that they are targets of the investigation, a final step toward seeking an indictment.
If a perjury (or Section 1001 or obstruction of justice) charge were to be returned by the grand jury, is that just a technicality, particularly if the underlying subject matter of the investigation -- whether there was a violation of federal law from the disclosure of Plame's position as a cover intelligence agent -- is not also charged? Lying is hardly a technical violation of the law, particularly when a person has sworn an oath to testify truthfully before a federal grand jury, and trying to diminish perjury as a "collateral" violation or otherwise unimportant denigrates the integrity of the investigative process. As the Eighth Circuit noted in U.S. v. Lasater, 535 F.2d 1041, 1049 (8th Cir. 1976): "The grand jury performs an important function in our judicial system, as the device by which criminal investigations are conducted and criminal proceedings instituted . . . Any false testimony before a grand jury, which tends to impede its investigation, should be diligently prosecuted." Interestingly, a claim of perjury was the basis for the first article of impeachment (here) against President Clinton, which stated:
[I]n violation of his constitutional duty to take care that the laws be faithfully executed, has willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice, in that: On August 17, 1998, William Jefferson Clinton swore to tell the truth, the whole truth, and nothing but the truth before a Federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury . . . .
That does not sound like a "technicality" to me. (ph)
Saturday, September 24, 2005
Information from the hearing on now-former Baltimore Orioles player Rafael Palmeiro's drug test indicates that he tried to blame teammate Miguel Tejada, who Palmeiro said gave him an injection of what he thought was vitamin B-12 but may have been the steroid for which he tested positive. The Orioles have now invited Palmeiro to remain at his home in Texas for the rest of the season rather than rejoin the team for the final ten days of the season (AP story here). A statement from baseball's Health Policy Advisory Committee completely exonerated Tejada, who is among the most popular players in the league. As congressional investigators focus on whether Pameiro used steroids before his emphatic testimony denying any use of the drugs (earlier post here), the plausibility of his explanation for the positive drug test only fuels the drive to determine the extent of his steroid use and possible perjury. (ph)
Thursday, September 22, 2005
The congressional investigation into whether (former?) Baltimore Orioles player Rafael Palmeiro committed perjury this past March when he denied ever using steroids -- only to be caught using them by baseball's new testing program a few months later -- has expanded to include interviews with current major league players who may have information about Palmeiro's steroid use. According to an AP story (here), investigators on behalf of the House Government Reform Committee are interviewing players who may have information about Palmeiro, including Jorge Piedra, a member of the Colorado Rockies who was also suspended this year when he tested positive for steroids. While the Committee has access to Palmeiro's drug tests, it will be hard to show from that information alone that Palmeiro took steroids before he testified. While it may be absurd to think a player would state on national television that he "never" took steroids, and then begin taking them for the first time shortly thereafter when there was a testing program in place, perjury cases are not made on imbecility but proof that the person's statement was false. The government will have to "put" the steroids in Palmeiro's hands if it wants to win a perjury prosecution, and that may be a very tall order. (ph)
Saturday, September 17, 2005
Providence, RI, attorney Joseph Bevilacqua received an 18-month prison term for leaking a government surveillance tape to a local television station, in violation of a court order sealing materials related to the case, during the prosecution of former Mayor Vincent (Buddy) Cianci and others. Bevilacqua represented one of the defendants in the case, and the tape was made during the FBI's investigation of corruption in Providence government, called Operation Plunder Dome. After the tape aired, the district judge in the case appointed a special prosecutor to investigate the leak, and a local reporter was convicted of criminal contempt and sentenced to home confinement for not revealing the source of the tape. Bevilacqua admitted to perjuring himself in a deposition taken by the special prosecutor when he denied giving the tape to the reporter. A press release issued by the U.S. Attorney's Office for the District of Rhode Island (here) discusses the sentencing.
I wonder what upside Bevilacqua saw in leaking the tape, and then lying about it? It must have seemed like a good idea at the time, but it turned out disastrously, not only for Bevilacqua who will lose a year-and-a-half of his life, his law license, and still have to pay the court over $150,000 for the costs of the special prosecutor's investigation, but also the reporter who suffered the criminal contempt proceeding and disruption of home confinement. (ph)
Friday, September 2, 2005
Former University of Michigan and NBA basketball star Chris Webber completed the punishment for his criminal contempt by paying a $100,000 fine, in addition to the 300 hours of community service he did over the past two summers. Webber was indicted in 2002 on perjury charges for lying to a grand jury about receiving funds from a Michigan booster who was later charged with money laundering. The booster died shortly before Webber's trial, and in July 2003 he entered a guilty plea to criminal contempt, with the perjury charge being dropped. U.S. District Judge Nancy Edmunds initially reserved imposing a final sentence, and ordered Webber to complete the community service and return two years later. Judge Edmunds then determined that Webber's contempt would be a misdemeanor, and imposed the maximum fine allowable for such a violation. According to a report in the Detroit News (here), Webber left the courtroom and went upstairs to the clerk's office, where he wrote a $100,000 check. Webber is in the midst of a seven-year contract that pays him a bit more than $20 million per year, so the fine probably did not have a serious effect on his cash flow.
One interesting aspect of the sentencing was Judge Edmunds' rejection of a request by the University for restitution of its attorney's fees related to the NCAA and grand jury investigations of its basketball program and the costs of Webber's scholarship. The school forfeited all the victories during the Fab Five era and returned money it received from its two Final Four appearances because Webber was ineligible for receiving money from the booster; even worse, the banners from those appearances have been removed from the team's arena. The judge stated that the University would have to pursue a civil case against Webber because the restitution provisions do not provide for such payments based on the crime of conviction. It's unlikely that Michigan will want to reopen the wounds from that era, although Webber may share a bit of his NBA boodle with the school to make up for its costs. (ph)
Wednesday, August 17, 2005
The House Government Reform Committee's investigation into whether Baltimore Oriole player Rafael Palmeiro committed perjury this March when he testified (quite emphatically) that he had never taken steroids, and then was suspended by major league baseball after a positive steroid test, could wrap up as soon as next week. Committee Chairman Tom Davis and Ranking Member Henry Waxman issued a terse statement (here) about the investigation: "Government Reform Committee staff continues to review the documents related to Rafael Palmeiro’s positive steroid test and will have no further comment on any questions related to the documents for at least a week." Palmeiro authorized major league baseball to release information related to his test after the Committee requested the information. An AP story (here) notes that Palmeiro believes he will be able to tell his side of the steroid story soon, but on the (good) advice of his lawyers he will not discuss the issue until the Committee completes its investigation. (ph)
Monday, August 1, 2005
Baltimore Orioles first baseman Rafael Palmeiro, the latest entrant into baseball's select 3000 hit club (not to mention being one of four major leaguers with 3000 hits and 500 home runs), was suspended by Major League Baseball for ten days for violating the new steroid policy. That policy was adopted shortly after a hearing before the House Government Reform Committee in March 2005 at which Mark McGwire refused to state whether or not he had ever taken steroids, and Palmeiro asserted in his prepared remarks (here): "Let me start by telling you this: I have never used steroids. Period. I don’t know how to say it any more clearly than that. Never. The reference to me in Mr. Canseco’s book is absolutely false." Jose Canseco (an admitted steroid user) asserted in his book that Palmeiro took steroids while they were on the Texas Rangers. In response to the suspension, Palmeiro issued a written statement (here) that takes a similar approach: "I have never intentionally used steroids. Never. Ever. Period . . . Ultimately, although I never intentionally put a banned substance into my body, the independent arbitrator ruled that I had to be suspended under the terms of the program."
Did Palmeiro tell the truth when he testified before Congress? Recall that Barry Bonds, who was not subpoenaed to the March hearing, testified before the grand jury in the BALCO case that he did not know the substances he received from his personal trainer contained steroids. After all the publicity surrounding steroids, can one "accidentally" take steroids? Palmeiro explains in his statement: "I am sure you will ask how I tested positive for a banned substance. As I look back, I don't have a specific answer to give. Unfortunately, I wasn't able to explain to the arbitrator how the banned substance entered my body." Given the certainty of Palmeiro's assertion to the Committee, I suspect an enterprising prosecutor will take a closer look at his past conduct. (ph)
Tuesday, July 26, 2005
John Rutter was convicted of forgery, attempted larceny, and perjury related to his attempt to blackmail actress Cameron Diaz to pay him $3.5 million to prevent him from selling topless photographs he took of her in 1992. Rutter claimed to have a signed release from Diaz, but the jury convicted him of forgery for the signature on the release, and the larceny count was based on the demand for money to not release the photographs. Interestingly, the perjury count relates to Rutter's certification in a pending civil law suit that the signature was legitimate. As a former President learned the hard way, what goes on in a civil case can quickly turn into a criminal proceeding. An AP story (here) discusses the conviction. (ph)
Monday, July 18, 2005
The investigation by Special Counsel Patrick Fitzgerald of the leak to the press of the identity of Valerie Plame as a CIA covert agent (assuming she was in fact one at the time) is beginning to take on the appearance of the old Abbott and Costello "Who's On First?" routine. Did Karl Rove learn from Robert Novak the covert status of Ambassador Wilson's wife before speaking with Time reporter Matthew Cooper? Did a memo to Colin Powell contain that information? Did New York Times reporter Judith Miller learn about Plame's CIA role from I. Lewis Libbey, the Chief of Staff to Vice President Cheney? Or, did Miller tell Libby about Plame? Does anyone have a headache yet?
To this point, it appears that everyone is pointing a finger at someone else regarding who first disclosed Plame's status with the CIA, and Fitzgerald may never get a straight answer. What is interesting to me has little to do with this "follow the bouncing ball" aspect of the investigation, but instead I think the grand jury aspects of the case are much more intriguing. First, where is the grand jury material coming from? If the witnesses themselves are discussing their testimony, then they are free to say anything they wish because the grand jury secrecy rule does not apply to them. Indeed, one's grand jury testimony can be used to sell more magazines, as Cooper is doing (see Time press release here touting its "exclusive" story). Whether their statements are in fact an accurate reflection of the testimony in the grand jury is another issue, but then lying to the press is not a criminal offense -- otherwise, no one could serve as a press secretary to an elected official.
Second, as Fitzgerald has more witnesses testify before the grand jury, it appears that his office is likely to be looking at possible perjury charges. 18 U.S.C. Sec 1623(a) (here) provides:
Whoever under oath . . . in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined under this title or imprisoned not more than five years, or both.
For a successful perjury charge, the government must first prove the falsity of the statement, which presents a substantial hurdle in light of the Supreme Court's decision in U.S. v. Bronston, 409 U.S. 352 (1973), which held that a perjury charge cannot be brought for a "literally true" statement. Bronston involved a bankruptcy examination in which the following questioning of Bronston took place regarding overseas bank accounts:
Q: Do you have any bank accounts in Swiss banks, Mr. Bronston? A: No, Sir. Q: Have you ever? A: The company had an account there for about six months, in Zurich.
Bronston in fact had a personal account in Switzerland, and his answer to the questions was evasive, and likely misleading, but was not untrue (although try this defense on a loved one and see whether the "literal truth" defense works). A perjury charge cannot be brought for an unresponsive answer because it is not false, and according to the Court "[a]n unresponsive answer is unique in this respect because its unresponsiveness by definition prevents its truthfulness from being tested in the context of the question . . . ." To the extent any grand jury testimony in the Plame investigation can be construed as literally truthful -- and the more tentative the better for the witness ("As I recall" and "I believe") -- then a charge cannot be brought against the witness because in most cases ambiguity will be construed in favor of the defendant (for a slightly different approach on this issue, check U.S. v. DeZarn, 157 F.3d 1042 (6th Cir. 1998)).
Outside of the grand jury, the various government officials involved in the investigation likely spoke with investigative agents, and those statements could be subject to 18 U.S.C. Sec. 1001(a), which provides:
Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation, or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement . . . .
Courts have tended to take the same approach to Sec. 1001 as they do to perjury, requiring that the statement actually be false and not literally true even though the language of the statute references fraudulent statements, which seems to cover more than just untruthful assertions (although an "exculpatory no" is not allowed). An interesting question would be whether a false statement to the President about one's involvement in contacts with the press would be subject to a Sec. 1001 charge. For an excellent review of the different statutes in this area, see Stuart Green's article, Lying, Misleading, and False Statements: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements, 53 Hastings L.J. 157 (2001) (available on SSRN here).
Finally, a Washington Post story (here) discusses consideration being given by Fitzgerald's office to seek a criminal contempt of Miller for her refusal to comply with the district court's order to testify before the grand jury. The contempt statute, 18 U.S.C. Sec. 401(3) )(here), provides:
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as — . . . (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
The contempt statute does not have a maximum penalty, although a jury trial is required if the court imposes a sentence of greater than six months on the contemnor. The criminal contempt would come on top of the civil contempt order which has sent Miller to jail in Alexandria, VA, until the grand jury expires in October (assuming it's not extended, of course).
Who's on first, What's on second, and I Don't Know's on third. (ph)
Thursday, July 7, 2005
Yahoo News (AP) reports here that Rapper Lil' Kim received a sentence of 366 days (year and a day) for "lying to a federal grand jury about a 2001 shootout outside a Manhattan radio station." The district judge sentencing Rapper Lil' Kim was none other than Judge Gerard Lynch, a thoughtful jurist who authored a brilliant piece in the Journal of Criminal Law and Criminology back in 2001 on "Sentencing Eddie."
It is obvious in this case that he thoughtfully weighed important factors in reaching a decision of what would be the appropriate sentence. One of his considerations in rendering the sentence was a comparison to what Martha Stewart received for her alleged lies to the SEC. Interestingly he said that Rapper Lil' Kim "deserved more time because she had lied about a violent crime, not a white-collar scheme." (see here) He also provided a second rationale for why this case warranted more time than that given to Martha Stewart.
The government has continually stressed the need for uniformity in sentencing. What this case demonstrates is that federal judges are capable of providing that uniformity in a thoughtful way and that restrictive guidelines are not always the answer.
Tuesday, June 7, 2005
Former Speaker of the Massachusetts House of Representatives Thomas Finneran was charged with perjury and obstruction of justice related to his testimony in a federal voting rights case in which racial gerrymandering was alleged by the plaintiffs. According to the press release issued by the U.S. Attorney's Office (here):
The Indictment alleges that FINNERAN committed perjury and obstruction of justice during a sworn deposition on March 28, 2003, and during his sworn trial testimony on November 14, 2003. FINNERAN was a witness in a federal Voting Rights Act case brought by the Black Political Task Force and other minority plaintiffs from the City of Boston against the Commonwealth of Massachusetts. That lawsuit alleged that the 2001 state statute which drew new legislative district boundaries discriminated against black and minority voters in Boston and deprived them of an equal opportunity to vote. In particular, the lawsuit alleged that FINNERAN and other legislators engaged in "racial gerrymandering" to protect incumbent legislators. FINNERAN's own legislative district, the 12th Suffolk District, was at the heart of the lawsuit, and he was questioned at the deposition and at trial about his personal involvement in the development of the redistricting legislation.
The investigation was triggered by the findings of a three-judge panel reviewing a challenge to the redistricting plan under the Voting Rights Act. In Black Political Task Force v. Galvin, 300 F.Supp.2d 294 (D.Mass. 2004) (here), the panel opinion stated in a footnote: "Although Speaker Finneran denied any involvement in the redistricting process, the circumstantial evidence strongly suggests the opposite conclusion. For one thing, he handpicked the members of the Committee and placed Petrolati at the helm. For another thing, he ensured that the Committee hired his boyhood friend and long-time political collaborator, Lawrence DiCara, as its principal functionary. Last--but far from least--Finneran's in-house counsel, John Stefanini, had the Maptitude software installed on his computer in the Speaker's office suite and was one of only four legislative staffers who received training in how to use the software." The perjury charges against Finneran involve testimony at trial and in depositions, and the obstruction charges is based on providing "misleading and false statements on a range of issues from his knowledge of a redistricting plan before it was publicly released, to his knowledge of the racial and ethnic makeup of neighborhoods he gained and lost in the redistricting process." (ph)
Former Inso Corp. General Counsel Bruce Hill was convicted of one count of perjury in Boston related to his testimony before the SEC in an investigation of a sham transaction with a Malaysian purchaser of software. A press release issued by the U.S. Attorney's Office (here) states that Hill "played a pivotal role in arranging a series of deals that were designed to create the appearance that the Malaysian software distributor had paid Inso $3 million for software products that Inso had reported as sold during the third quarter of 1998. In sworn testimony before the SEC, Hill disavowed any knowledge about the preparation of a fraudulent certificate which purported to reflect approval by Inso's Board of Directors of the issuance of approximately $4 million in letters of credit that were used to create the appearance that Inso received $3 million in payment for the reported third quarter sale. At trial, the United States presented evidence that Hill had personally directed the preparation of the fraudulent certificate and approved its signing. Share prices for Inso's stock tumbled in February 1999, when the company publicly announced that it would need to restate its revenues from the first three quarters of 1998. The company is no longer publicly traded." The jury could not reach a verdict on five other counts, including securities fraud, wire fraud, making false statements to accountants, and a second perjury count.
Monday, May 9, 2005
Former Philadelphia City Treasurer Corey Kemp and four other defendants were convicted on the 19th day of deliberations. Kemp and two Commerce Bank executives, Stephen Umbrell and Glenn Holck, were convicted of conspiracy charges related to corruption in the payment and receipt of gifts in connection with the placement of city funds in banks. Kemp was also convicted on other tax and corruption counts. Two other defendants, Le-Van Hawkins and Janice Knight, were acquitted on the broad conspiracy charge but were convicted of perjury (Hawkins) and misuse of government property and making false statements (Knight). The jury deadlocked on other charges against the defendants. An article on Bloomberg.com (here) reviews the verdict.
The case was marked by an unusually contentious atmosphere in the courtroom, as discussed in an earlier post here, including calls for U.S. District Judge Michael Baylson to recuse himself because of alleged favoritism shown to the government. Judge Baylson is a former U.S. Attorney for the Eastern District of Pennsylvania. The grounds for an appeal of the convictions will be numerous, the two most important being alleged Brady violations by the government (earlier post here) and the removal of a juror for bias who had indicated she did not believe the government had proven its case (earlier post here). This case is far from over. (ph)
UPDATE (5/10): The Philadelphia Inquirer has an excellent scorecard of the verdicts on each count and each defendant here.