Wednesday, October 12, 2016
At Counsel’s Table: A Conversation with Henry W. (“Hank”) Asbill of Jones Day
Hank Asbill is a partner at Jones Day and widely recognized as one of the country’s best white collar criminal defense attorneys. In 2015, he was awarded the prestigious White Collar Defense Lawyer of the Year Award by the National Association of Criminal Defense Lawyers. Mr. Asbill’s most recent accomplishments include representing Virginia’s former governor Robert McDonnell in his battle against federal corruption charges. In Governor McDonnell’s case, Mr. Asbill and his team were able to devise and execute a winning strategy that ultimately resulted in the dismissal of all charges after the Supreme Court reversed Governor McDonnell’s convictions in an 8-0 opinion.
In this interview, we catch up with Mr. Asbill to talk about his career path, advice for young lawyers, and his thoughts on the McDonnell case.
Q: You have worked as a defense attorney for close to 40 years. What inspired you to work in criminal defense? And what other fields of law have you considered?
I am a child of the 60’s and have always questioned authority. Someone has to keep the government honest. And, I have always been interested in constitutional law. I also watched a lot of Perry Mason as a kid.
I never considered any other field of law. I knew I wanted to be a criminal defense lawyer before law school, and that never changed.
Q: Do you feel that the practice of law has changed in the forty years since you began practicing? If so, how?
It has changed substantially, and in terms of criminal defense, I feel it has been primarily for the worse.
The biggest change has been the decline of jury trials, which keep the system honest. There are far fewer jury trials today because of the enactment of sentencing guidelines in both federal and state systems, as well as the draconian push for mandatory minimums and lengthy sentences for all crimes. These changes have spawned many more pleas because the sentencing risk of losing at trial is so great.
I think the two biggest policy failures in the criminal justice system in my career have been the enactment of the sentencing guidelines and the “war on drugs.”
The alleged war has unfairly targeted the most vulnerable people in society, including minorities and the poor.
As for the Guidelines, I never thought that there was a serious sentencing disparity among judges that would justify the Guidelines in the first place. The Guidelines were promoted by the DOJ to give prosecutors much more control – to make sure that the only way out of a harsh sentence is a 5K1 motion by the government based on the defendant’s assistance in prosecuting others.
This 5K1 regime incentivizes lying by co-defendants and targets. The government does not give 5K1 credit for cooperation when it does not result in prosecution of others. On only one occasion have I had a client who gave honest answers that prevented the government from going down the wrong road and charging innocent people who still received 5K1 credit.
Q: Can you tell us a bit about your career path and how you got to where you are now?
I started as law clerk on the D.C. Court of Appeals. After that I practiced with a large firm, doing civil securities and antitrust litigation, before going to D.C.’s Public Defender Service for four years. I then started a small trial firm with a PDS colleague. We later added a civil trial lawyer, and grew the firm until we were at 9 or 10 people. I worked there for 23 years until I transitioned to Big Law. At that time we had to decide whether to renew a 15-year lease. The management of a small firm was becoming cumbersome, and the desires of the founding partners were diverging.
I was taking on more complicated cases and needed specific subject matter expertise, and more staff to help on projects.
I ultimately ended up choosing Jones Day for many reasons: its culture is unique; it is extraordinarily well-managed; the lawyers genuinely like and respect each other; the Firm has tremendous subject matter expertise; it has a terrific appellate group with many former Supreme Court or Circuit Court clerks who want to work on trial matters; and, there are many talented young lawyers here who have the temperament, talent, passion, and zeal to become great trial lawyers whom I’ve greatly enjoyed working with and mentoring. Lastly, we are given great latitude in terms of pro bono work, both with respect to the type of cases and the amount of pro bono work we can do.
Q: In contrast to many other prominent white collar criminal defense attorneys, you have never worked as a prosecutor. Do you think this background offers any advantages, or drawbacks, in your practice?
I believe being a defense lawyer for my entire career has been a major advantage. I often represent individuals and companies that want to fight, and that’s what I’ve specialized in my entire career.
There is a myth that you need to work as a prosecutor to be able to know how they think. I have interacted with enough prosecutors and have been friends and partners with enough former prosecutors over the years, that I know how they think. Besides, I have never wanted to put people in jail.
Some former prosecutors are able to successfully transition to the defense side. Some are not, and end up exclusively doing internal investigations and turning the results over to the government. That is not the work I prefer to do.
Also, I believe criminal defense attorneys are generally much better cross-examiners than prosecutors, because defendants rarely testify, and often do not put on a direct defense case. In contrast, prosecutors will generally be more experienced in direct examinations. Although both skills are very important, for criminal defense attorneys, the ability to do a good cross-examination is the more important of the two.
The main disadvantage of having never been a prosecutor is that you do not have the network of former AUSAs to access for business development. The prosecutors’ network is often much more active and cohesive than the defenders’ network.
Q: Do you have any advice for younger attorneys who want to get into white collar criminal defense?
First get trial experience, whether with a public defender’s office or prosecutor’s office. That’s the easiest way to develop the essential skills. But it’s not the only way. I’ve got a young partner here whom I’ve mentored for a dozen years who has worked only in law firms. But, she connected with the trial lawyers in those firms and learned a lot by working with them as second chair and being advised by them on her own smaller cases. She has become an extraordinarily talented trial lawyer in her own right.
As for being a public defender, it’s important to try to work at an office that reasonably restricts the intake of new cases. If you look at, for example, the Public Defender Service in D.C., it is a low volume office that accepts mostly difficult cases and it has lots of resources for experts and investigators. You need to be able to expend the time necessary to thoroughly research and prepare a case and, that attention to factual detail and the nuances of the statutes, rules and procedures are very important in the more complex cases.
You can learn by doing but you can also learn by watching. Go see the best trial lawyers in action whenever you have the chance. You can also learn by doing some appellate work because it helps you figure out how to avoid mistakes at trial.
Q: To follow up on that, how can a younger attorney develop the trial experience needed to be an effective criminal defense attorney in today’s environment?
If you want to get trial experience, you need to look for it. Federal courts these days have very few trials. You need to be willing to take on pro bono or court-appointed cases, or smaller cases for lesser fees – often in state court. You need to take trial practice courses and attend CLE programs on trial skills. And, read biographies of great trial lawyers.
In a large firm, you need to figure out who is going to trial, and ask to be on those trial teams. You need to know more about the facts than anyone else working on the case. You need to prove yourself in depositions, or motions hearings, where you are examining witnesses and arguing your positions. You need to lobby and advocate for a chance to do that. The people who really want to be trial lawyers will go out of their way to look for opportunities that large firms do not gratuitously provide.
Q: Let’s talk about the McDonnell case. The trial in that case lasted almost six weeks. Do you have any special tips for handling very long trials that go on for months or longer?
Its not unusual for me to try cases that are several months long. I tried one case for 22 months. That was the longest federal criminal trial in history. It took us four months just to pick the jury.
Lengthy trials are certainly mentally and physically demanding and can take a toll on other aspects of your life. You are always focused on the trial, which means you ignore other things in your life – your practice, your friends, and your family. But minimizing outside distractions is important. If your family and client’s budget will permit, stay in a hotel very near the courthouse even if the trial is local.
Make sure you get some exercise, at least a modest amount everyday. Eat well. Try to get at least four or five hours of uninterrupted sleep. I have never gotten more than that amount a night since I was a teenager, but I have been fortunate to be able to thrive on it. I also try to catch up a bit on sleep on the weekends.
You need to be someone who thrives on stress, as opposed to being someone who is enervated by stress. Sometimes you have to play hurt. Your back may be killing you; you have a cold or a headache. You do your best to power through these minor injuries.
Q: What advice do you have for being a source of strength for clients, particularly during long trials?
I like to analogize it to a boxing match. I have never seen one where one guy lands all the blows. When a compelling witness for the government testifies on direct for three days, you can do nothing but sit and listen and grimace. But you will have your chance to fight back when it comes time for cross. There are peaks and valleys in long trials. You need to keep your eye on the end-game. Advise your client before the trial starts that there will be good and bad days. The issue is who is standing at the end. Convince your client that you have a plan to get through this, to be victorious at the conclusion.
You need to be able to adjust during the course of a trial. You need to have a plan that is comprehensive enough and flexible enough to be adaptable to new evidence or new developments.
If the client knows you are working hard, that you are totally prepared, that you have good defense themes and legal theories, it is much easier to distinguish between battles and the war. If I can’t win every battle, I can still win the war. If the client thinks you know what you are doing, and you are it doing well, they will share your confidence and, at a minimum, believe that you have done everything for them you possibly could have.
I always believe I can and will win no matter what the odds are, no matter what unexpected problems may arise. That inspires my clients. The client made a decision to not plead, and understands there’s risk involved. Clients will accept outcomes if they see sustained effort by competent people. At the end of the day, I don’t control what the judge or jury does, and I don’t create the facts. Clients recognize that there can be mistakes, screw-ups, missed opportunities in trial. It’s a dynamic arena. But if you work hard enough, think hard enough, fully accept the responsibility of defending someone’s freedom, reputation and fortune – you can overcome those problems.
Q: In working on the McDonnell case, your strategy involved preserving and seeking Supreme Court review on the official acts issue from the very beginning. Can you tell us what were some of the alternative plans you had for the case?
Before the trial started, we filed a motion to dismiss based on the official acts issue. We also tried to get the judge to give us the legal instructions the prosecutors gave the grand jury, because we thought they misunderstood the law. Both motions were denied. So, I did not go into trial assuming that we would be getting the final instructions we wanted.
We had other defenses besides the correct definition of “official act,” including reasonable doubt, good faith and good character.
I was optimistic. I went into closing arguments thinking we were going to win no matter how bad the instructions were because our client had no criminal intent. I tried to argue as closely as I could to the instructions I wanted. I had a plan, but it was multifaceted.
I knew if we ended up losing the case at trial, we had a fantastic appellate issue that likely would be cert-worthy. I thought if we did get to Supreme Court, we would win, 9-0. If Justice Scalia had been on the bench, the Court might have even invalidated the bribery statutes on vagueness grounds. Several jurors even told the press after the trial that they believed my client’s trial testimony. The jury convicted the Governor because they were directed to do so by the flawed instructions.
Q: Did the location of the McDonnell trial in Richmond, Virginia figure into your preparation for trial at all, and if so, how?
To prepare for any trial, you need to know that court. You need to understand who the players are. You need to know their personalities, likes, dislikes. The trial in this case was held in the Richmond Division of the United States District Court for the Eastern District of Virginia. It is a small court, with only four judges and two magistrates. It is a tight community of prosecutors and judges who work together all the time.
The Richmond Division is also notorious for being fast and formal. You don’t have conference calls with the judge to resolve discovery disputes. You need to file a motion, in the right format, at the right time, with the right page limits. Before the trial started, we belatedly received about 5 million pages of discovery documents. That was sometime in late March. And we had to go to trial at the beginning of August. That was as far out on the calendar as the judge was going to let it go. He wanted to get it over with before his clerks rotated out on Labor Day.
You have to be ready going into that jurisdiction, knowing that you will be on a very fast track. Substantial advance preparation is key. You need the resources to deal with that pace of litigation. You’re filing motions all the time and arguing constantly. You typically won’t get all of the discovery you need until close to the trial date. You need to be prepared for all of that. You need to consult with local lawyers who regularly practice there and make sure you know what problems might arise and how best to avoid or solve them.
In any major case, you need to know the personalities of the players: what annoys them, what makes them happy. The clerks, judges, opposing counsel. The local quirks. For example, in Richmond, if you run out of defense witnesses early on a particular day, maybe because the prosecution didn’t spend long cross-examining your witnesses, your case is over, even if you have more witnesses lined up for tomorrow. You can beg the judge to adjourn early that day, but you don’t want to count on getting that slack.
Also, the Richmond division, like the rest of EDVA, does not allow electronics in the courthouse without the judge’s permission. If you don’t have electronics, it is hard to communicate with people in your firm or witnesses. In Alexandria, you need to line up to use the few available payphones. These are the types of restrictions you need to know about and plan for before a trial. You have to be prepared to inconvenience witnesses by making them show up early. You need to have law clerks or paralegals who are keeping the witnesses happy and on the reservation while waiting.
Q: Governor McDonnell was himself a former prosecutor, and an accomplished attorney. Did this background make any difference for you in terms of your representation?
The Governor’s background created both opportunities and challenges. He was a politician, a lawyer, and the CEO of a state with 100 billion dollar biennial budget and 100,000 employees.
I’ve represented many lawyers and business executives. One common thread is that they are particularly difficult to train as witnesses. Many do not think that anyone on the jury is their peer. They have a hard time trusting the jury. Based on decades of experience, I generally trust jurors, as long as I get a reasonable voir dire. You have to convince your client that this group is a jury of your peers. Even if individually they may not be your peers, collectively they are as smart as you are. You have to convince your client to trust in the system, and the magic number of 12 jurors who must be unanimous. You have to convince your client to believe in a system which has historically proven reliable, even if not unerring.
Lawyer clients, in particular, often second guess you on legal issues and trial strategy. They can’t help themselves. They act like lawyers even though they are the client. They want to expand and explain, question and challenge. CEO’s don't like being told what to do. Politicians want to manipulate the press. You have to convince these clients that you, not they, deserve to be in control.
Q: People have praised you for your cross-examination of the FBI agents in the Governor McDonnell case. Do you have any general philosophy or approach for cross-examining law enforcement agents?
My first rule is that you cannot be the least bit intimidated or afraid to take on an agent on cross-examination, even though they are usually the most well-trained and experienced witnesses in the case.
Secondly, my experience has been that law enforcement witnesses often act like expert witnesses, even if not qualified as such. They are primed to give opinions at the slightest opportunity. You have to approach them as you would approach an expert witness. This means learning how they think, how they work, how they operate, how they do their job. What rules and practices govern their conduct and influence their thinking. What their biases, motivations are. What their weaknesses and strengths are. Then you exploit these things on cross-examination.
You must remain in control of these witnesses, while giving them enough rope to make mistakes.
I like cross-examining experts and law enforcement agents. I know how agents think, talk and how they collaborate. And what corners they may cut. Whether or not they think the ends justify the means. Then I devise a strategy for cross-examining them that is effective in making the point I want to make.
Q: You have obviously achieved an incredible outcome in the McDonnell case. With that said, we know that no case is ever perfect. Do you believe that there was anything in the case you would have done differently?
To begin with, it was a team effort. It takes a village to win these types of cases. As for doing things differently, I don’t mean to be flip, but I would have preferred to try the case in October or April rather than August. A better month of the year with better weather in Richmond. Fewer potential jurors with substantial business expertise out on vacation.
We probably should not have had so many defense lawyers in the courtroom on a daily basis. It can look odd to a jury. We could have been better at tasking folks in the courtroom to be specifically responsible for keeping track of all the various courtroom dynamics. We could have done a better job of not annoying the judge.
But, you need to try to find ways to give young lawyers on the team opportunities to do something substantive in court.
There was also a benefit to having a large team in trial. If a juror does not like me, maybe she will like the personality of another lawyer on the team. Same with witnesses. Some lawyers draw the judge’s fire more than others.
In hindsight, I would have also tried hard to move the case out of Richmond. The problem was that I did not get the kind of voir dire I expected on pre-trial publicity. Going into the trial, I knew the demographics of the Richmond jury pool. I knew the political polling. I knew what the press coverage was going to be like after the investigation was made public. Knowing all that, I was still convinced that if I got reasonable voir dire, I could get a good jury.
Things did not work out that way. The voir dire was severely restricted. For example: both sides agreed that the Court should ask the following question: “based on your exposure to the media, have you formed any opinions about guilt or innocence of either defendant?” The Court would not ask that question. Instead, the judge asked the entire jury pool of 143 to stand up if they had heard about the case and to keep standing if they could not be fair. Naturally, all sat down. I was not amused.
In terms of other issues, there are things I wished would have come out differently, but not that I would have done differently. For example, I would have liked the two defendants to be severed, but the judge did not allow it. We filed many other motions. The judge ruled against us on nearly all, except 17(c) subpoenas and pro hac vices. I did not expect to win many other motions, but there are strategic reasons for filing them anyway. For example, you get to learn more about the government’s case because they have to respond. You also build up chits, so you can tactfully say: “how about ruling for me once in a while, judge?”
Another issue from the case that I still think about is the problem of dealing with leaks during the grand jury phase. To give some background, during the investigation of Governor McDonnell, many leaks appeared in the press that were attributed to law enforcement sources. However, we were not able to slow the flow of leaks, or figure out a good way to stop them.
Trying to run down grand jury leaks can be a real diversion of resources and time when you are on the fast track to trial. While most prosecutors are ethical and would not leak grand jury info, there are many sources other than prosecutors who can leak information about a grand jury investigation.
The only way to find out is through litigating the issue. Then you would be fighting Williams & Connelly or Cahill Gordon on these First Amendment side issues if you tried to subpoena reporters, while you are also fighting the prosecution on the main front. You may stop the leak and punish the person responsible, but you can’t repair the damage done in terms of influencing public opinion.
One other thing that bothered me during the trial, and which I still don’t have a good answer for, is the problem in a high profile case, of dealing with the constant negative press, before, during and after the trial. Various major publications were obviously out to do Governor McDonnell in, and there was a constant torrent of false narratives being spread in the major news outlets as well as the blogging sphere. The problem only got worse when we were in trial. Reporters were all over the courthouse. There would be twenty or thirty reporters in my hotel whom I couldn’t recognize. Every time I sat with a colleague for breakfast or dinner, I had to worry about whether there were reporters listening to our conversations.
I was never able to figure out an effective way, consistent with the free press-fair trial restrictions, to deal with the negative publicity in the McDonnell case. The best solution I could come up with was to file motions articulating something that I’d like the press to pick up on, and hope that they print it, and if a reporter called me and said he was going to print something which I knew was false and defamatory, I threatened to sue.
Of course, the client is always free to speak to the press because he has First Amendment rights. In Governor McDonnell’s case, the day after the indictment was returned, he, with his wife and his children beside him, gave a short press conference in the lobby of a law firm in Richmond. The magistrate judge at the subsequent bond hearing was upset by this. He quoted me the local free press-fair trial rule, and noted that my client is also a lawyer. Of course, the magistrate was wrong about the rule’s application, because it clearly only applied to attorneys representing a client, and my client was not representing himself. Later at the arraignment, the district court judge said to both sides: “the game playing with the press is over.” From that point forward we were never quoted in the press again until the trial was over.
In sum, I felt that the negative and false press coverage during the trial really hurt us, and I’d like to think if I did the trial again, I’d figure out a better, ethical way of controlling or balancing that narrative.
Q: A final question: sometimes our most memorable cases may not be the most high-profile cases. Do you have any little-talked about cases that are especially memorable to you?
I’ve always liked all of my clients over the years, and found something to admire in each one of them, no matter what types of crimes they were charged with. One especially memorable one was a young man, who was a juvenile at the time I represented him in the Public Defender Service. I won his trial, and he was very grateful.
Later on when he was an adult, he got himself in trouble on major federal offenses I did not know about, and he ended up with a life sentence on cocaine trafficking and firearms related charges. Four or five years ago, while still in prison, he wrote to me and asked for Jones Day’s help with a habeas petition. We ended up getting his life sentence substantially reduced. He is now out of prison, married, working several jobs and doing extremely well.
When he wrote that letter to me asking for help with his habeas petition, he included the pleadings that he had filed pro se up to that point to resurrect some of his legal issues and get his foot in the door. He had turned into quite the jailhouse lawyer. What struck me most, though, were the footnotes at the bottom of the first page of all his motions, expressing gratitude to me personally as his mentor for teaching him everything about the law.
[This interview has been lightly edited for brevity and clarity.]
(EG & ZZ)
Monday, October 10, 2016
I’m attending the Fifth Annual ABA Criminal Justice Section London White Collar Crime Institute this week and the program will be touching on various important issues in the field. I thought I might share some of what was discussed with our readers.
In this first post, I’ll focus on what was discussed during the first morning session where we heard from Andrew Weissmann, Chief of the DOJ Criminal Division’s Fraud Section, and Mark Steward, Director of Enforcement and Market Oversight at the Financial Conduct Authority (“FCA”) in London. During the panel, Mr. Weissmann and Mr. Steward focused on four themes – cooperation, corporate compliance programs, individual accountability, and reliance on internal investigations.
Regarding the first issue, Mr. Steward noted that currently there is significant contact between the FCA and the DOJ. In particular, he noted that there is little preclusion today regarding regulators and prosecutors collaborating on investigations and how they might conclude. Mr. Weissmann agreed that there is significant cooperation today, not just between the U.S. and U.K., but also with many other countries around the globe. The challenge he noted is that moving forward global enforcement bodies need to be cognizant of what each other wants and ensure that the penalty at the end of the day is fair.
Regarding compliance programs, there was discussion of the DOJ compliance expert, Hui Chen. Mr. Weissmann noted that there are two key questions for Ms. Chen based on the Principles of Prosecution. He described those as (1) did the company have an adequate compliance program and (2) did the company adequately remediate the issue? The DOJ, he noted, looks at compliance programs through this lens. The take-away from the discussion was that the process of receiving credit for a compliance program is much more rigorous than in the past and is, at least in part, data driven. Mr. Steward stated that compliance programs are important because of the manner in which they speak to a company’s culture.
Regarding individual accountability, Mr. Weissmann stated that the Yates Memo has been somewhat misunderstood. To illustrate this point, he noted that the DOJ Fraud Section prosecuted 225 individuals and 11 corporations last year. So it has not been the case, he emphasized, that the DOJ has been focusing only on corporations. There was a focus on individuals before the Yates Memo, he said, and that focus remains after the Yates Memo. Mr. Weissmann also noted that it is important to recognize that the issue of individual responsibility is important when considering compliance programs and remediation. From his comments, it appears clear that corporations must consider not only how to sanction those responsible for the actions under investigation, but also those who were responsible for monitoring or supervising these individuals.
Regarding internal investigations, Mr. Weissmann stated that the DOJ finds it very helpful for a company to conduct an internal investigation. He encouraged cooperation and coordination during such inquiries. For example, he said that the DOJ is interested in learning who will be interviewed in an investigation because the government might like a particular issue asked during the interview or might like to interview the employee before investigating counsel. In general, Mr. Weissmann stated that the DOJ is looking for investigations that are “independent and candid.” Mr. Steward was more skeptical of the value of internal investigations because of what he described as an inherent conflict of interest. He stated that he must base a decision in a matter on evidence gathered and corroborated by his organization, not by a private law firm. Mr. Weissmann stated that internal investigations are particularly helpful in complex cases. For example, he stated that in large cases it could be difficult to determine who might actually have valuable information. Investigating counsel, he said, can help focus the DOJ on the right individuals so the government can use its resources in a targeted manner. As another example, Mr. Weissmann noted that many cases today have international components. In such matters, it can be difficult or time consuming to gather information from abroad through the MLAT process. Law firms, he noted, can be very helpful is assisting to get information and determine where further inquiry might be valuable.
Monday, September 26, 2016
In the recently-released hit movie "Sully," about a pilot who landed a disabled US Airways plane on the Hudson River after its engines hit a flock of geese shortly after taking off from LaGuardia Airport, the film's heroes, Capt. Chesley B. Sullenberger lll (the "Sully" of the title), played by Tom Hanks, and the co-pilot Jeff Skiles, played by Aaron Eckhart, worry that the agency investigating the water landing, the National Transportation Safety Board ("NTSB") will publicly criticize them for making a dangerous water landing rather than just turning around and returning to LaGuardia. In the movie, the agents appear adversarial and close-minded and looking to blame the pilots based on simulated tests and preliminary expert evaluation.
NTSB released a statement regretting that the filmmakers had not asked it to review the film before its release, and the now-retired leader of the NTSB inquiry complained that the film unfairly characterized the agency as prosecutorial. According to the New York Times (Negroni, "'Sully is Latest Historical Film to Prompt Off-Screen Drama" Sept. 9, 2016), the NTSB maintained that its investigations are primarily meant to understand how humans and machines fail to prevent accidents, and not to blame individuals. (Later that week, however, the NTSB strongly criticized the pilot and crew of a Delta airplane that had skidded off a LaGuardia runway).
While "true story" films often veer from accuracy, as this one apparently did, one of the film producers denied that the film took creative license as to the pilots' fears, saying that the film was told through the perspectives of the pilots, who felt under "extreme scrutiny." And, Mr. Sullenberger, in an e-mail to the Times, wrote that the film accurately reflects his state of mind. "For those who are the focus of the investigation, the focus of it is immense," he wrote, and that the investigative process was "inherently adversarial, with professional reputations absolutely in the balance."
The contrasting viewpoints of the former NTSB investigator and its investigatee, Mr. Sullenberger, demonstrates the not uncommon disconnect in perception between how those who investigate and those who are investigated. Investigators view their behavior, even if aggressive and apparently hostile, as just rightfully doing their jobs. Those being investigated, no matter how innocent or blameless they might be, often feel that the investigators are biased and out to get them, regardless of their blameworthiness or lack of it.
To be sure, investigators often believe that an aggressive, hostile, unbelieving manner is a good way to reach the truth. Those being questioned often view that type of investigation and interrogation as a means to reach a predetermined result regardless of its accuracy.
Investigators - and I include criminal prosecutors - often lack sensitivity to how those they investigate perceive them or the psychological toll their investigations take. They rarely understand, in Sully's words, "the [immense] intensity " that affects an individual, including the innocent. Investigators virtually never take into consideration how heart-wrenching, all-consuming and destructive an investigation may be to an individual when they determine whether and how to investigate. They generally believe, and judges rarely disagree, they (and especially the grand juries prosecutors nominally act for) have an absolute right to investigate and question (with some constitutional and statutory restraints) anyone. In the movie, and in real life, the investigation consumed and heavily worried the pilots, members of a profession known for calm and equanimity. One would expect people in other walks of life to be more affected.
I do not suggest that prosecutors or agencies forego investigations if based on reasonable suspicion or another more than insubstantial basis. I do suggest, however, in instances where there is little factual or other basis to suggest wrongdoing by an individual, that prosecutors and agencies consider the human cost and anguish an investigation or the manner in which it will be conducted may cause the person being investigated or interrogated.
As a young lawyer just out of a prosecutor's office, I worked for a state investigative commission with subpoena power. Its chair, a prominent Wall Street lawyer and former bar association president, was hesitant to issue subpoenas to individuals without a substantial basis to believe there was wrongdoing, a hesitancy which bothered its ex-prosecutor lawyers (including me), who used to issue subpoenas like street vendors issue flyers. As Sully's situation suggests, some hesitancy in starting investigations, issuing subpoenas or harshly interrogating witnesses based on how it would affect the individuals involved may be appropriate.
Monday, September 12, 2016
I agree with my colleague Prof. Podgor that DOJ made the "right decision" to drop the prosecution of former Virginia governor Robert McDonnell. Under the narrow definition of "official act" given by the Supreme Court a re-prosecution was doomed. I further agree with Prof. Podgor that McDonnell's legal team, led by Hank Asbill and Noel Francisco, deserves plaudits for its determined and outstanding lawyering.
I do not, however, criticize DOJ for bringing this case. McDonnell's acts - accepting $175,000 in money and gifts in exchange for favorable treatment for the donor - although ultimately determined not to be "official acts" and thus not criminal, were unseemly and corrupt. That the Commonwealth of Virginia, in its wisdom or lack of it, chose not to criminalize such activity to me was a reason for federal prosecution, not for abstention. To be sure, the government should have been aware that there was Supreme Court case law arguably undermining its position. On balance, the egregiousness of McDonnell's conduct, I believe, justified a prosecution, even if it "pushed the envelope."
The McDonnell decision will allow federal prosecutions of politicians accepting things of value for favorable votes or actions on legislation or favorable decisions awarding governmental appointments, contracts and benefits, the areas within which most corruption cases fall. It will, however, eliminate or preclude almost any prosecution for payments to officials for access, referrals and introductions, allowing donors an advantage over non-payers. "Pay-for-play" systems do not guarantee winning a contract, but do allow one to be among those considered - a giant and necessary step. Thus, the decision will, like Citizens United, most benefit the rich, powerful and politically-connected.
I, like many others, was surprised by the unanimity of the court. Although I am no expert on Supreme Court internal politicking, I suspect some justices might have gone along with the decision to prevent a broader decision which would have greatly limited, or even eliminated, federal prosecutions of state and local corruption, either by finding the term "official acts" constitutionally void for vagueness, or on federalism grounds. In his opinion, Chief Justice Roberts mentioned, but did not rule on, both considerations.
I cannot dismiss an undiscussed "elephant in the room," alluded to by Prof. Podgor. The American election system commonly allows campaign contributions to be rewarded by at the least access to elected and appointed officials. It is extremely doubtful whether McDonnell would have been prosecuted for accepting campaign contributions and rewarding the donor with access to state officials. It seems to me extremely difficult to make a lawful/unlawful distinction between situations involving gifts to politicians for their personal use, as in McDonnell, and those involving gifts to politicians for campaign purposes. Absent such a distinction, an affirmance of McDonnell might have led to cases concerning campaign contributions, which might have led to an upheaval in campaign financing practices generally accepted in America. Thus, it is not surprising that a host of former Counsels to the President and Attorneys General submitted amicus briefs in support of McDonnell, a fact noted with apparent respect in the opinion.
Lastly, I wonder whether the Court was wary of allowing federal prosecutors expansive power to prosecute political officeholders. There is always a danger - at least theoretical - that a prosecutor will misuse her power to indict political opponents, as is not infrequently done in foreign nations, and perhaps occasionally done in the United States. It may well be that the case should be considered primarily as a limitation of prosecutorial and executive branch power.
Thursday, September 8, 2016
It's now official. Former Virginia Governor Robert McDonnell and his wife Maureen will not be retried and all charges are to be dropped. The Washington Post has the story here. It is unclear whether Main Justice overruled the EDVA or caused that office to change its mind regarding proceeding to a second trial. More analysis to come.
Wednesday, September 7, 2016
Finally, as promised, here is the U.S. v. Reddy Annappareddy 9-1-16 Motion to Dismiss Hearing Transcript. At the conclusion of that hearing Judge George Levi Russell dismissed the Indictment with prejudice. Judge Russell's rationale for his ruling can be found at pages 49-62 of the transcript. This was a health care fraud case and a core government theory was that Mr. Annappareddy received Medicaid reimbursement for pills that were never given to patients. The government sought to prove its theory by showing that Mr. Annappareddy's pharmacies billed for more pills than they received. The most significant evidence that the prosecutors offered in support of this allegation was a calculation of the purported “loss” from the alleged fraud. The following factors were key to the Court's finding that the government committed due process violations that shocked the conscience and rendered it impossible to put Mr. Annappareddy back on an even footing with the government: 1) the government violated Brady by failing to disclose loss calculations from its initial auditing team that were significantly smaller (in total and with respect to two key pharmacies) than the calculations of a subsequent government auditor who testified at trial; 2) the government violated Brady by failing to disclose the risk of double-counting errors in the loss calculations; 3) the government presented false testimony regarding the loss calculations due to double counting errors; 4) the government presented false testimony by a government agent, based on her examination of the wrong set of phone records, that Mr. Annappareddy had NOT made any calls to a key individual in response to a material email from that individual, when in fact Annappareddy had several phone contacts with the individual within minutes of the material email; and 5) the government destroyed potentially key exculpatory evidence without a court order or the defense's permission. The Court also sent a not so subtle warning to the government: "In the event that my record is not clear or exercise of my discretion too broad, this Court will conduct an extensive time-consuming and costly hearing as to these matters and the other grounds supporting the motion to dismiss and other motions which have already been filed. To that end, the balance of all other motions in this case are denied as moot." Translation: If you appeal this ruling and I am reversed, we will delve in detail into the other grounds of error raised by the defense. And it will not be a pleasant process. Hat Tip to David Debold of Gibson Dunn for sending along the transcript.
Thursday, September 1, 2016
The case against Reddy Annappareddy is over. The Government's case has been dismissed with prejudice by U.S. District Court Judge George Russell because of a pattern of government misconduct that shocks the conscience. As soon as I obtain a copy of today's hearing transcript we will post it. Congratulations are in order for Mr. Annappareddy and his Womble Carlyle defense team of Mark Schamel and Josh Greenberg. Greenberg's relentless motions work over the past 11 months has been particularly brilliant. Anybody who does white collar work in the federal courts knows how difficult it is to obtain a result like this, post-trial. This is a magnificent victory.
As we write this post U.S. District Court Judge George Russell is holding a hearing on Defendant's Motion to Dismiss with prejudice. I have previously discussed this case here and here. The motion is bottomed on various alleged prosecutorial errors and misdeeds. In a bad omen for the Government, Judge Russell only set arguments on the Motion to Dismiss (despite the pendency of other motions) and summarily denied the Government's motion to delay the hearing. The Government wanted a delay in the wake of an onslaught of defense motions, authored by Womble Carlyle's Josh Greenberg, alleging additional Government misbehavior, including destruction of potentially exculpatory evidence at a time when the Defendant's Motion for New Trial was filed and awaiting a decision. The Government later joined in the Motion for New Trial after admitting that it presented false material testimony to the jury. Meanwhile, in a filing that can only be described as stunning, the Government yesterday attempted to defend its admitted document destruction. Here lies the Government's Response Re Document Destruction.
Tuesday, August 30, 2016
The Supreme Court decision in McDonnell v United States, decided June 27, has given several politicians whose corruption convictions are on appeal both a cause for optimism and freedom on bail pending appeal. Last week SDNY District Judge Valerie Caproni granted former New York Assembly Speaker Silver's request for bail pending appeal on the grounds that there was a "substantial question" whether the court's instruction defining "official act" passed muster in light of the narrow definition of that term announced in the later Supreme Court decision.
Judge Caproni made it clear that she had little doubt about Silver's guilt of the major accusations against him, stating, "There is no question that Silver took a number of official acts - most obviously passing legislation and approving state grants and tax-exempt financing - as part of a quid pro quo scheme." These acts would clearly fall within the Supreme Court definition of "official act." But the judge recognized that there were other acts committed by Silver that were presented to the jury by the government, such as holding a meeting or arranging an internship, that might not fall within the narrow Supreme Court definition of "official acts." The jury was thus presented with instructions which may have permitted it to find Silver guilty for actions that were not criminal even if bought and paid for.
18 USC 3143(b)(1) allows a convicted defendant to be granted bail pending appeal if, inter alia, there is "a substantial question of law or fact likely to result in (i) reversal [or] (ii) an order for a new trial...." Finding the existence of a "substantial question," despite the literal language of the statute, does not mean that the judge believes there is a likelihood of reversal, only that if there were a substantial question which if decided in the defendant's favor would bring such relief. United States v. Miller, 750 F2d 19 (3d Cir 1985). Appellate courts deal with a lot of "substantial questions" that have led to bail pending appeal, but rarely reverse trial convictions.
Here, it appears that under the instructions it was given, the jury could have convicted Silver based on acts not within the statute as limited by the Supreme Court.. But that is not the end of the analysis. The appellate court will also consider, and the decision is likely to turn on, whether the evidence is considered so strong that the jury would have undoubtedly convicted Silver under a proper charge - in other words, whether the erroneous instruction constituted "harmless error."
I hesitate to predict the outcome of the appeal. Cases of political figures, as demonstrated by McDonnell, are scrutinized by appellate courts more carefully than, for instance, cases of drug dealers. I believe it is likely, and will appear likely to the appellate court, that Silver would have been convicted upon a proper instruction. How likely is the issue. Is it so likely that the court will find the error "harmless?" What is "harmless error' is in many ways just a visceral judgment by the judges putting themselves in the role of jurors. Harmless error analysis, thus, arguably deprives an accused of his basic constitutional right to a determination by a properly-instructed jury of peers and I believe should be applied rarely.
Other factors the appellate court will probably consider include whether the defense proposed an instruction in accord with the standard set forth in McDonnell, and whether the defense specifically objected to the definition given by the trial court as too broad. Another factor that may conceivably affect the decision, although unlikely to be mentioned, is whether the judges believe the 12-year prison sentence imposed on the 72-year old Silver is excessive. And, of course, there may be other, unrelated issues raised. In any case, based on the "official act" issue issue alone, a reversal will likely not give Silver a dismissal, but only a new trial, presumably with proper jury instructions.
One lesson that lawyers - both prosecutors and defense lawyers - might learn from this situation is to be aware and up-to-date on cases for which the Supreme Court has granted cert and, if any concern issues that might arise in a pending case, to craft requests to charge in anticipation of the possible result of the Supreme Court case. Another lesson - for judges and prosecutors more than defense lawyers - is to adjourn a pending case that might be affected by a pending Supreme Court case until after that decision. A third lesson - for prosecutors - is to analyze all aspects of their prospective case and discard legally or factually questionable ones when there are strong aspects.
Monday, August 29, 2016
Things are getting personal in U.S. v. Annappareddy. I posted here last week about this District of Maryland case in which the Government ultimately admitted to having presented false evidence to the trial jury, and grudgingly joined Defendant's new trial motion--granted the next day by Judge George Russell. Now the Government has admitted to "disposal" of certain documents while defendant's New Trial Motion was pending in March 2015. Annappareddy's current trial team was not notified of the disposal until August 19, 2016, and claims, in Defendant's Motion for Extension of Time to File Motions In Limine, that some of the destroyed documents were exculpatory in nature. No court order authorized the destruction at the time it was accomplished.
The DOD/OIG Evidence Review Disposal Sheet from March 11, 2015 states that AUSA Sandy Wilkinson determined that the items in question "were not used as exhibits in trial and would not be used in future proceedings against Annaparreddy." In other words, Wilkinson acted unilaterally, apparently consulting no one on the defense team before making her decision. The Government's response to the allegation is a footnote stating in part that "in early March 2015, after the trial, the government began to clean up papers and documents not used from the Washington Blvd collection and store the trial exhibits post- trial. The government began purging the contents of several unused boxes. These were items Defendant and his own attorneys had reviewed at length and were never marked as exhibits or used in any way by them at trial. Yet they couch their complaint again in the most accusatory of tones. "
Well, yes. Destruction of potential evidence prior to final judgment on appeal is quite rare, if not unheard of, in federal criminal practice. That an AUSA would do it on her own is remarkable. The Government's Response to Annappareddy's Motions to Limit Government Evidence complains further that Annappareddy's new lawyers don't play nice in the sandbox, unlike the original trial lawyers--you know, the ones who lost after the Government presented false testimony. That's right, Ms. Wilkinson. Lawyers tend to get angry when false testimony is put in front of the jury and potentially exculpatory evidence is destroyed.
The case is far more involved, and the issues more complex, than I can do justice to here. Annappareddy has moved to dismiss with prejudice and a hearing on that motion is set for September 1. Failing that, the defense wants to limit the Government's evidence at a new trial to the evidence presented at the first trial. One thing absent from the Government's papers that I have had an opportunity to review is any recognition of the emotional, financial, and strategic harm suffered by defendants when the Government screws up, forcing a new trial. It's as if Ms. Wilkinson wants a cookie and a pat on the back for deigning to agree that Reddy Annappareddy gets to go through the whole damn thing again.
Tuesday, August 23, 2016
In June 2016, the U.S. District Court for the District of Maryland (Judge George Levi Russell III, presiding) granted Reddy Annappareddy a new trial on the grounds that the prosecutors presented false evidence to the jury at his first trial and that the outcome might have been different without the false evidence. This ruling is part of a remarkable turnaround for Mr. Annappareddy, whose case appeared to be over after the first trial ended in December 2014.
The case is captioned as United States v. Annappareddy, No.1:13-cr-00374 (D. Md.). The prosecutors’ main allegation during the first trial was that Mr. Annappareddy’s chain of pharmacies, known as Pharmacare, committed health care fraud by billing government insurance programs for prescriptions that were never picked up or delivered. The most significant evidence that the prosecutors offered in support of this allegation was a calculation of the purported “loss” from the alleged fraud. Mr. Annappareddy’s current counsel, Mark Schamel and Josh Greenberg of Womble Carlyle, began working on the case in the spring of 2015. In September 2015, they filed a Supplement to the one-and-a-half-page Motion for New Trial filed by Annappareddy's original trial counsel. The Supplement and a Reply in support of it argued, among other things, that the prosecutors presented materially false evidence to the jury on a number of important subjects in violation of the Due Process Clause.
After many months, during which the parties took depositions of trial counsel and Greenberg and Schamel filed extensive additional briefs raising troubling issues, the Court scheduled a hearing for June 3 on Annappareddy's Motion for New Trial. On the afternoon of June 2, the prosecutors filed a letter with the Court conceding that the "inventory analysis" it presented to the jury, in an effort to prove purportedly enormous losses caused by Annappareddy, was in "substantial error", rendering its own evidence "wrong", and violative of Due Process. The Government effectively joined Annappareddy's Motion for New Trial, which was granted the next day by Judge Russell during a status conference.
Judge Russell scheduled a second trial – to last eight weeks, three weeks longer than the first trial – to begin on September 19. Last month, the Court entered an Order denying the Government's motion to delay the second trial. The Order emphasizes that the Court granted a new trial because the prosecutors presented “significant material and false testimony” at the first trial and that the delay they sought “would be fundamentally unfair” to Mr. Annappareddy.
While government admissions of error are always welcome, one of the striking things about this case has been the prosecution's reluctance to admit that the evidence it presented to the jury was not just wrong or in error--it was false.
The defense recently filed a motion calling for dismissal with prejudice. Check this space for further details. The multiple briefs filed by Greenberg and Schamel since they entered their appearances represent outstanding work.
Here are some relevant documents pertaining to the case: a partial transcript from the U.S. v. Annappareddy 6-3-16 Status Conference; Judge Russell's 7-6-16 Order Denying Gov't's Motion for Modification of Trial Schedule; and the Government's Letter to Court Conceding that New Trial is Warranted.
Friday, July 15, 2016
In 2014, prosecutors proceeded with a case against fed ex. Unlike many companies in a post-Arthur Andersen world, they would not be bullied into folding and taking a non-prosecution or deferred prosecution agreement. Instead, they took the risk - and it is always a risk - of going to trial. What makes this case particularly puzzling is that the company had cooperated with the government. They hired a top-notch white collar attorney Cristina Arguedas and the government folded shortly after the trial began. Now, according to Dan Levine and David Ingram in their Reuter's story, U.S. Prosecutors Launch Review of Failed Fed Ex Drug Case, the DOJ is reviewing this matter. Some thoughts -
1. It is good to see DOJ re-examining this case. What happened here should not have happened, and learning from this case is important.
2. The review should not be limited to the fed ex case. There needs to be an examination, especially for the smaller companies that cannot afford to go to trial, of the government cooperation tactics.
3. If cooperation is going to work, then credit needs to rightfully be given.
4. The government's pitting employees (the corporate constituents) against the employers (company) needs to also be examined. This practice defeats the ability of corporations and individuals working together to root out corporate misconduct.
5. Criminal defense attorneys need to recognize that one can successfully take a corporation to trial against the government. The risk is enormous, but innocence needs to matter.
Thursday, July 7, 2016
I agree with guest bloggers Ziran Zhang and Eugene Gorokhov in their thoughtful blog post (here) that "[i]f Director Comey is right that individuals in similar circumstances in the past were only subjected to administrative sanctions, then its decision to recommend no prosecution in this case may be the right one."
I would, however, go a step further - a declination of prosecution was the right decision here even without the long precedent of not bringing these cases. After listening to FBI Director Comey's testimony in an over four hour hearing of the House Oversight and Government Reform Committee on the "Hillary Clinton Email Investigation" (see here) we find out that the 3 emails that were alleged to be classified were not in fact properly marked. And they looked at "tens of thousands of emails." Here there was no header on the documents or in the text. And FBI Director Comey stated that it would be a reasonable inference to think it was not classified when there was no header on the document.
Attorneys Zhang and Gorokhov reference the US Attorneys Manual, specifically the Principles of Prosecution in 9-27.000 and 9-27.220(A). But let me add to their discussion part of the Comment from that portion of the Manual -
Comment. USAM 9-27.220 expresses the principle that, ordinarily, the attorney for the government should initiate or recommend Federal prosecution if he/she believes that the person's conduct constitutes a Federal offense and that the admissible evidence probably will be sufficient to obtain and sustain a conviction. Evidence sufficient to sustain a conviction is required under Rule 29(a), Fed. R. Crim. P., to avoid a judgment of acquittal. Moreover, both as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the government believes that the person probably will be found guilty by an unbiased trier of fact. (emphasis added)
Put the format of the emails together as testified to by Director Comey, with no intent, no evasiveness, and no false statements - Director Comey would be justified in believing that such a case would not return a conviction. Using the guidance of the US Attorney's Manual FBI Director Comey's recommendation to DOJ was justified.
But there is another fascinating aspect to this hearing. One of the key aspects of the Overcriminalization Movement (a bi-partisan coalition) is the need to include a mens rea in statutes. (see here). Yet in this hearing we see some members of Congress, albeit different ones from the committee looking at Overcriminalization, arguing that in this case a strong mens rea should not be needed for this criminal statute.
Recently, Professor Podgor wrote two informative posts covering FBI Director James Comey’s public statement about the FBI’s year-long investigation into Hillary Clinton’s use of private e-mail servers, its recommendation that no criminal charges be filed (here), and AG Loretta Lynch’s acceptance of the FBI’s recommendation (here). Professor Podgor noted many unusual aspects about Director Comey’s statement, including the fact that the FBI does not usually publicize its recommendations. The short version of Director Comey’s speech is that the FBI did find “evidence of potential violations of the statutes regarding the handling of classified information,” but is recommending against criminal prosecution for a variety of reasons. This post examines two questions: (1) Is Director Comey right when he says that the evidence indicated potential violations of federal laws? (2) if so, why is the FBI recommending against prosecution?
What laws did Hillary Clinton’s conduct potentially violate?
While the FBI’s investigation undoubtedly looked at many federal statutes, the one that Director Comey referenced in his statement appears to be 18 U.S.C. 793(f), which makes it a federal crime for anyone “through gross negligence" to permit classified information "to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed[.]”
In this case, classified information was undoubtedly removed from its proper place of custody. According to Director Comey, of the approximately 30,000 emails provided by Hillary Clinton, 110 contained classified information at the time they were sent or received. (Another 2,000 emails were later determined to contain classified information, although those were not formally classified at the time they were sent or received). A small number of emails also contained documents with markings that indicated the presence of classified information. Comey noted that “none of these e-mails [containing classified information] should have been on any kind of unclassified system,” let alone “unclassified personal servers not even supported by full-time security staff[.]”
Whether the act of communicating classified information through personal servers constitutes “gross negligence” is a more difficult question to answer. The Supreme Court has called “gross negligence” a “nebulous” term “lying somewhere between the poles of negligence at one end and purpose or knowledge at the other[.]” Farmer v. Brennan, 511 U.S. 825, 836 n.4 (1994).
Reported decisions of prosecutions under 18 U.S.C. § 793(f) are rare. In one case, a Marine Corps intelligence officer pled guilty to a violation of § 793(f) where he inadvertently packed classified documents into his gym bag along with his personal papers and took the classified documents home. United States v. Roller, 42 M.J. 264 (CAAF 1995). Former FBI Agent James J. Smith, who had an affair with suspected Chinese spy Katrina Leung, was also charged under this provision for taking classified documents to Leung’s home, resulting in Leung covertly copying the documents without Smith’s knowledge. Smith later pled guilty to a charge of false statements.
Director Comey opined that the use of a private server was “extremely careless” and that any “reasonable person” in Hillary Clinton’s position would know better than to use an unclassified system to discuss classified information. A jury looking at the full evidence, including the actual content of the emails and the context in which these events occurred, may have agreed with Comey, or may have decided that although negligent, Clinton’s conduct did not rise to gross negligence.
Why did the FBI recommend that no criminal charges be filed?
Director Comey’s primary reason for not recommending criminal charges in this case appears to be the lack of precedent for criminal charges in similar cases in the past. According to Director Comey, “[a]ll the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed…; or indications of disloyalty to the United States; or efforts to obstruct justice.” Whereas “in similar circumstances,” “individuals are often subject to security or administrative sanctions”
While the decision to prosecute is ultimately up to the prosecutor, what some may not realize is that in federal cases, the prosecutor’s decision to bring criminal charges is governed by the United States Attorney’s Manual. USAM 9-27.000, titled “Principles of Federal Prosecution” contains the DOJ’s written guidance to prosecutors about decisions to initiate or decline prosecution. Specifically, 9-27.220(A) instructs prosecutors to file criminal charges in all cases where there is a violation of federal law and the evidence is sufficient to obtain a conviction, unless one of three grounds exist:
- Lack of a substantial federal interest;
- The defendant is subject to prosecution in another jurisdiction; or
- The existence of adequate non-criminal alternatives to prosecution.
In this case, both the first and third grounds are potential reasons that a federal prosecutor can rely on to justify not bringing any charges.
The first ground, “substantial federal interest,” is a composite factor that weighs a number of considerations including federal law enforcement priorities, the nature and seriousness of the offense, the deterrent effect of prosecution, the personal characteristics of the individual, and the probable sentence upon conviction. Nationally, the DOJ’s number one law enforcement priority is protecting U.S. citizens from national security threats. See Memorandum re: Federal Prosecution Priorities. However, a prosecutor can potentially justify declining prosecution based on Hillary Clinton’s personal characteristics and the nature and seriousness of the offense.
The third ground, the existence of adequate non-criminal alternatives, appears to have been the one that Director Comey relied upon. In this case, for example, Hillary Clinton could potentially face security and administrative sanctions such as revocation of her security clearance, and such a sanction may be “adequate” in light of past practice. (How such a sanction would work if Clinton is elected President, however, is a question we can’t answer).
The FBI’s investigation uncovered sufficient evidence for a reasonable jury to find that Hillary Clinton did violate the law. However, the federal government does not (and should not) bring criminal charges in every case. If Director Comey is right that individuals in similar circumstances in the past were only subjected to administrative sanctions, then its decision to recommend no prosecution in this case may be the right one.
(ZZ & EG)
The declination to prosecute Hilary Clinton and the public announcement of that decision by FBI Director Comey, were, in my opinion, wholly proper. When an investigation of a public figure receives widespread notice, it should be incumbent on the prosecuting agency to make public a decision not to prosecute.
However, the severe criticism of Ms. Clinton by Director Comey was inappropriate. I do not know enough to assess the accuracy or fairness of his report and do not challenge it. However, the FBI (either acting, as here, as the surrogate prosecutor, or otherwise) should not, in the absence of sufficient evidence to recommend charges, issue a public declaration of fault in any case, let alone one that affects a presidential election. By his pronouncement, Comey, obviously knowingly, did so. That he had no business doing.
The Department of Justice is also at fault. Attorney General Lynch should never have agreed to meet with Bill Clinton, the husband of the target of a criminal investigation under her supervision, even if he were a past President and even just to exchange pleasantries. I do understand how Attorney Lynch, a classy and courteous person, would have been reluctant to refuse to meet a past President, but propriety should have trumped gentility. Worse, she never should have abdicated the responsibility of the Department of Justice to determine whether to prosecute. If she felt she were or appeared to be personally tainted by the meeting, she should at most have recused herself and left the decision to her deputies, not have turned it over to an investigating agency.
The American system of justice essentially places the responsibility of investigation on the investigators and the decision to prosecute based on the results of that investigation to the prosecutors. Effective prosecution often involves an integration of and input from both agents and prosecutors, but the prosecutors still should be the sole and final deciders of whether to prosecute. There is an inherent bias on the part of investigators, wanting a positive and public result of their work, in favor of arrest and prosecution. The prosecutors, more knowledgeable about the law and the workings of the court system than the investigators, should act as a buffer and, giving regard to the investigators, make the determination whether to prosecute. That is an important check in the criminal justice system's checks and balances. I hope this unusual situation does not serve as a precedent.
Wednesday, July 6, 2016
Attorney General Loretta Lynch issued a statement today regarding the DOJ's decision to close the investigation without charges. (see here). It's 3 1/2 lines shows the proper way to handle a declination of prosecution. It simply tells the individual and public that the investigation is over and that there will be no charges.
Unlike FBI Director Comey's comments it does not state opinions and hypotheticals. Further, it does not carelessly accuse a person of conduct that they did not and will not have an opportunity to refute in a legal forum. One also has to give AG Lynch credit for removing herself from the decision-making function and leaving this matter to career prosecutors.
From the perspective of process - Attorney General Loretta E. Lynch gets an "A" in my book.
Tuesday, July 5, 2016
An interesting case is pending in the 11th Circuit that considers whether a breach of a real estate contract can be the basis for a wire fraud conviction. The case involves a failure to disclosure a sinkhole when selling a residence. There is a huge federalism question here that is magnified by the fact that Alabama "employ[s] the cannon of caveat emptor in real estate transactions." But the most interesting aspect of the case is the government's taking a civil action and using the wire fraud statute to prosecute the conduct. I'll withhold further comment until after I have seen the government's brief - but I have to wonder if this is the case that the late-Justice Scalia was waiting for to limit the reach of the mail/wire fraud statutes.
Appellant's Brief - Download Defendant-Appellant's Initial Brief
Friday, July 1, 2016
Some folks have expressed critical views of the Supreme Court's opinion in the McDonnell case. But they are forgetting several important points:
- This was a unanimous decision by the Court. There were no dissents. There were no concurring opinions. It was clearcut!
- This decision does not put a stop to prosecutions for bribery and extortion. Cases in which there is a receipt of money for official acts can still be prosecuted. (Evans v. United States).
- This decision does not create any new limit to the bribery/extortion statute. It has always existed. (see United States v. Birdsall - a 1914 decision).
So what happened here? The government tried to push the envelope further than permitted and they were caught. This is no different than back in the 1980s when they tried to bring mail fraud cases based on intangible rights as opposed to property, a requirement of the statute. The Supreme Court in 1987 issued the McNally decision to place the government on notice that developing a new theory that exceeded the language of the statute would not be permitted.
Bottom line - Congress writes the laws and government prosecutors need to stay within the language provided to them.
Wednesday, June 29, 2016
I received the McDonnell decision with mixed feelings. Initially, I was happy for my colleague Hank Asbill, one of the nation's top criminal defense attorneys, for a great victory. Asbill and his co-counsel litigated this case the "old-fashioned way" - they fought it, and fought it, and then fought it. Their tenacity, dedication and skill make me proud to be a defense lawyer.
Not having read the briefs of the parties, or of the amici, or heard the oral arguments, I am hesitant to criticize the opinion, especially an opinion by a brilliant chief justice for a unanimous court (I suspect due to a compromise by potential dissenters, possibly to avoid an outright dismissal). Indeed, the opinion makes a strong case that the decision was required by precedent. However, I do question several aspects of the opinion. First, I find questionable Justice Roberts' Talmudic crucial narrowing of the definition of "official act" by virtually eliminating the broad catch-all words "action" and "matter," largely by resort to the Latin word jurisprudence that is often an indication that the interpretation is on shaky ground.
Second, while I am less troubled than the Court about the federal assumption of power to monitor the conduct of state officials for purportedly violating their offices, there is something bothersome about federal officials by criminal prosecutions in effect setting ethical standards for state officials. However, as a practical matter it appears that with rare exceptions local prosecutors lack the will and/or the resources to prosecute high state officials. In New York City, for instance, U. S. Attorney Preet Bharara has in recent years prosecuted about ten state legislators on corruption charges, while New York's five district attorneys combined have not prosecuted any.
Third and most importantly, I am concerned by the decision's enablement of business-as-usual pay-to-play practices. By narrowing the definition of "official act, the Court has legalized (at least federally) the practice of paying a government executive to set up a meeting with a responsible official. By doing so, the Court has given such "soft" corruption a green light. Under the opinion, a businessperson does not violate federal bribery law by paying a governor, mayor - or even the President - tens of thousands of dollars to make a phone call to a purchasing official asking or directing her to meet with the businessperson. And that call, however innocuous that actual conversation may sound, will have real consequences - otherwise, why would the businessperson pay for it? Even absent a verbal suggestion that the executive wants the official to do business with the caller, the official cannot but think that the executive would like that she do business with that person. I imagine a New Yorker cartoon with a governor sitting at a phone booth with a sign saying, "Phone calls, official meetings. $10,000 each."
To be sure, the law concerning bribery - not alone among federal statutes - vests too much power in the government. At argument government counsel conceded (candidly but harmfully) that a campaign contribution or lunch to an official could constitute the quid in a quid pro quo. That is frightening, but the problem is in the quid, not in the quo - about which this case is concerned. (I applaud Chief Justice Roberts statement in response to the standard "Trust me, I'm the government" argument that "We cannot condone a criminal statute on the assumption the government will use it responsibly.") And, certainly, if this case were to apply to campaign contributions - and not, as in this case personal receipt of money and goods-in the words of the amicus brief of former White House counsel - it would be "a breathtaking expansion of public corruption law." Indeed, a distinction should be made between personal and campaign contributions. But this case applied to the quo - what the governor did in exchange for $175,000 worth of goods and money. And, in my view he took "action" as the governor on a "matter" by "official acts" - hosting an event at the official mansion, making calls and arranging meetings.
Tuesday, June 21, 2016
Elkan Abramowitz, one of the best and most-respected white collar crime defense practitioners in the nation, last week received the Robert Louis Cohen Award for Professional Excellence from the New York Criminal Bar Association. At the dinner at which he received the award, Mr. Abramowitz spoke thoughtfully about the pernicious effect of prosecutions of corporations, particularly on the rights corporate employees.
The recent focus on perceived corporate wrongdoing, he said, "has seriously impeded the rights of individual employees caught up in the web of ... corporate investigations." He pointed out that the "simple threat"of a corporate investigation has forced corporations "to conduct internal investigations upon any suspicion of wrongdoing" and, because corporations rarely, if ever, can risk going to trial, they will end up disclosing alleged criminality to the prosecutors to work out the best deal they can. The results as to the corporations themselves are non-prosecution or deferred prosecution agreements "which typically give the prosecutors much more power over the corporation than [they] would have if the corporation were actually convicted of a crime in court." The results as to corporate employees are at the insistence of prosecutors as a condition for a deal with the corporation that "the heads of individual employees be handed to them on a silver platter."
Mr. Abramowitz made a distinction between investigations by prosecutors who "hopefully most of the time" investigate without bias toward a particular result and corporations which in an internal investigation "are incentivized to find out and expose criminality." Thus, corporate employees are explicitly made to understand that if they refuse to testify they will be terminated and often told that their legal fees will not be paid if they chose to defend themselves." And, since these individuals accordingly sometimes choose not to hire counsel and to talk to internal investigators, the information presented to prosecutors by corporations often provides "more ammunition" than an investigation conducted by the FBI, police or another federal agency.
The results are, Mr. Abramowitz said, cases against individuals "that might never have been brought without the corporation's coercion." Thus, he believes, "Whatever social utility is believed to be served by this system,..this outsourcing of a purely governmental function is extremely dangerous and [causes] great injustices to individuals working in companies under investigation."
Mr. Abramowitz's observations of the systemic changes, most obviously the role of corporations and their special prosecutors (who, interestingly, he did not mention specifically) as quasi-prosecutors, are right on the mark. And, he is quite correct that the prosecution of individuals coerced into giving up their rights to silence and to counsel in response to their employer's demands "flies in the face of the restraining values of our society as expressed in the Bill of Rights." However, I suspect that most prosecutors and many others (including those liberals and others who like Bernie Sanders are still complaining that no individuals from the big institutions involved in the 2008 financial crisis were jailed) would not say that on balance the addition of corporations to those ferreting out financial crime is a negative one. After all, that addition presumably has or will result in more indictments, convictions, and jail sentences of individuals who have committed financial crimes. While I too bemoan the incursion into fundamental individual rights as a result of corporate prosecutions, I suspect Mr. Abramowitz and I are in the minority.