Saturday, September 16, 2017
According to Reuters, Deputy Attorney General Rod Rosenstein said on Thursday that there may be changes to the Yates Memo "in the near future." As discussed at length on this blog (see here, here, here, and here; see also here for an article on the Principles of Prosecution and the Yates Memo), the Yates Memo was released by the DOJ in 2015 in response to criticism that the government had failed to prosecute individuals, particularly on Wall Street, related to the financial crisis of the late 2000s. The Yates Memo responded by focussing federal prosecutors on targeting individuals and requiring that corporations provide significant information on employee conduct to receive credit for cooperating with the government. The Yates Memo states, "[t]o be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct."
According to reports, Rosenstein said, "It is under review, and I anticipate that there may be some changes to the policy on corporate prosecutions." It is unclear how far the review extends or whether possible changes extend beyond the Yates Memo and include revisions to the larger Principles of Federal Prosecution of Business Organizations contained in the U.S.A.M. Whatever changes are made, it is unlikely that the focus on individuals will diminish. Attorney General Sessions has publicly commented on his commitment to holding individuals accountable for corporate misconduct. We will have to wait, therefore, to see whether significant changes or mere reiterations of current policy priorities are on the horizon.
Wednesday, June 7, 2017
Attorney General Jeff Sessions issued a press release today here putting an end to settlements that had payments to third parties as a condition of settlement. The press release says that " [w]ith this directive, we are ending this practice and ensuring that settlement funds are only used to compensate victims, redress harm, and punish and deter unlawful conduct.”
Will this mean that Chris Christie's agreement as US Attorney with Bristol-Myers Squibb and the University of Medicine and Dentistry of New Jersey that included an endowment of an ethics chair to Seton Hall Law School, will no longer be allowed in future agreements(see here, here, and here - see para. 20)?
And will all the groups receiving funds from the BP Plea Agreement find that innovative resolutions will no longer be allowed in the future agreements? For example the BP plea agreement included $350 million to the National Academy of Sciences for the purposes of Oil Spill prevention and response in the Gulf of Mexico. (see here) The Court stated there -
"The National Academy of Sciences is required to use the funds to advance scientific and technical understanding to improve the safety of offshore oil drilling, production and transportation in the Gulf of Mexico."
"Of course, the Court realizes that the fines and other penalties provided by the plea agreement can do nothing to restore the lives of the 11 men who were killed. But in the payment to the National Academy of Sciences, the agreement at least directs money towards preventing similar tragedies in the future. That the bulk of the payments to be made under the plea agreement are directed toward restoring the Gulf Coast and preventing future disasters, contributes to the reasonableness of the plea agreement."
AG Sessions says that "[u]nder the last Administration, the Department repeatedly required settling parties to pay settlement funds to third party community organizations that were not directly involved in the litigation or harmed by the defendant’s conduct. Pursuant to the Attorney General’s memorandum, this practice will immediately stop."
It remains to be seen what will get included and what will be omitted in future non-prosecution, deferred prosecution, and plea agreements. The actual memo is here.
Thursday, May 18, 2017
Co-blogger Sol Wisenberg (here) called for Rod Rosenstein to "Hunker down Rod. Your country needs you." There are many who feared that the appointment of a special counsel would not be as neutral as Deputy Attorney General Rod Rosenstein. The appointment of special counsel/prosecutor could also delay a current investigation - after all anyone new would have to get up to speed. But the DAG outdid himself here in appointing former FBI Director Robert S. Mueller III.
The real hero of the story still remains Deputy Attorney General Rod Rosenstein, and hopefully history will remember this.
Monday, May 15, 2017
I imagine we will know more about Rod Rosenstein's Memo, and its timing in connection with FBI Director Comey's firing, later this week. Based on the publicly available information, it appears that that when Rosenstein met with the President last Monday he was asked for his views on Saint Jim. Rosenstein no doubt articulated his disapproval of Director Comey's appallingly improper conduct during the 2016 election, a disapproval shared by legions of current and former DOJ prosecutors and FBI Special Agents. He was asked to memorialize his thoughts in a memo, and given a quick turnaround time. If this is how it played out, there was nothing wrong with the President's question, nothing wrong with Rosenstein's answer, nothing wrong with the President's request for a memo, nothing wrong with Rosenstein's decision to obey the request, and nothing wrong with the resulting memo itself. Nothing at all. Comey's conduct, as Rosenstein's Memo makes clear, was a gross deviation from standard DOJ practices, a clear overstepping of authority, and an improper smearing of an American citizen who just happened to be a major political candidate. As devoted readers of this Blog no doubt remember, I detailed Director Comey's myriad shortcomings here just after the election. To make matters worse, Director Comey refused to acknowledge his mistakes and improprieties and continued to publicly justify his shocking behavior in increasingly bizarre fashion. Some have suggested that Rosenstein's Memo "reads like an op-ed" or is "deeply troubling." I expect this kind of nonsense from the political opposition and the resisters, but when I see it from former colleagues of Rosenstein it makes we want to puke. The President is Rosenstein's superior. He asked for Rosenstein's opinion. He asked for Rosenstein to memorialize his thoughts in writing on a fast timetable. Each of these was a reasonable request. Should Rosenstein have refused the request, protesting that he needed more time to prepare a memo? He didn't need more time to detail Comey's indiscretions. Any schoolboy or schoolgirl reasonably competent in Civics could have done so.
The problems arose with what happened next. When Rosenstein learned that the White House was disseminating a false version of events to the effect that Comey's firing was solely the result of Rosenstein's Memo, he is reported to have quickly complained to the White House Counsel that he did not want the facts massaged and would not be comfortable staying in an Administration where this was happening. Translation: "Tell the President's people to quit lying. Stop the phony stories now." And the phony stories stopped. Then the President, in his typical foot-in-mouth way, admitted that Comey's handling of, and public comments about, the Russia investigation played a part in the firing. Think about that for a moment. Because of Rosenstein's status and sterling reputation, a reputation much ballyhooed by the Trumpistas, the President's people were forced to instantly and embarrassingly change their false narrative, and the President stumbled into another unforced error. That would not have been possible if the DAG had been a hack or mere factotum. Of course, Rosenstein could have decided to resign. Instead he demanded the truth and got it. It is a judgment call and I don't blame him at all for making the call he did, two weeks into the job.
Make no mistake, there is going to be a thorough investigation of Russian Collusion, either within Main Justice or by a Special Counsel. There are many good reasons for keeping the investigation in-house, as Rosenstein should know having served (along with me) in an Independent Counsel's Office. There are great inefficiencies and delays involved in setting up and running a Special Counsel operation. In disputes between such an office and an uncooperative Executive Branch, who would you rather see the President opposing? A Special Counsel, who he can demonize, or his own DAG, who he has already praised as a man of impeccable integrity? The scarier President Trump gets, the more I need the people around him to be sound, sane, and steady professionals. I want to see people like McMaster, Mattis, and Rosenstein at their stations.
As a matter of public relations, the President's unforced error will make it more difficult for Rosenstein to resist the calls for a Special Counsel. If President Trump's inappropriate comments about the investigation pile up, more and more citizens will be prone to see any declination by the DAG as a whitewash or a cover-up. So keep talking Mr. President. The more you complain about the Russia Investigation, the likelier you are to get a Special Counsel for all of your efforts. Meanwhile, were I Rosenstein, I would react to every Presidential criticism of the investigation with a renewed determination to leave no stone unturned. Hunker down Rod. Your country needs you.
Sunday, March 12, 2017
It is fairly typical that US Attorneys offer their resignations when a new President, especially one of a different party, is elected. But firings and requiring same-day resignations are less common. This is particularly troublesome as many were finishing up work on current cases. Of the 46 who had not left and asked for their resignations this week were a few that it is sad to see leaving their post. I don't know all 46, but some that I do are mentioned below -
David Capp, U.S. Attorney Northern District of Indiana - Attorney Capp had planned to retire in June 2017. He issued a thoughtful statement here. He thanks the "men and women of the USAO for their dedication and professionalism, day-in and day-out." Thank you David for your dedication and professionalism. In the statement issued he notes -
"Some years ago I spoke one evening at a church in Gary. We had just made some arrests and closed down a drug operation in the neighborhood the church served. Afterwards a gentleman came up to me, shook my hand, thanked me for our efforts and told me “now my grandchildren can play in the yard again.” That has always stuck with me and kept me focused on what our work is really about. I hope that I have played a part in making more yards in the Northern District of Indiana safe for “grandchildren to play in."
Others that were forced to resign include US Attorney Paul J. Fishman (statement here), whose office had prosecuted some of the Bridgegate cases (see here). And Preet Bhatara who was fired after refusing to resign (see here) had done some interesting prosecutions related to Conspiracy to work for Russian Intelligence (see here).
Attorney General Jeff Sessions has much work ahead trying to match the work done by individuals of this caliber.
Addendum - Other statements regarding resignations -
District of Rhode Island - United States Attorney Peter F. Neronha Stepping Down
District of Minnesota - Statement From U.S. Attorney Andrew Luger
Eastern District of Arkansas - U.S. Attorney Christopher R. Thyer Announces Resignation
Friday, March 10, 2017
The New York Times reports that "Trump Abruptly Orders 46 Obama-Era Prosecutors to Resign." Sad.
Monday, March 6, 2017
U.S. Attorney Wifredo A. Ferrer Joins Holland & Knight as Head of Global Compliance and Investigations Team
Holland & Knight has announced that Wifredo A. Ferrer, U.S. attorney for the Southern District of Florida, will join the firm as a partner in its Miami office. Mr. Ferrer will lead the firm's Global Compliance and Investigations Team, which focuses on corporate compliance and government investigations within the firm's White Collar Defense Practice. Read more here.
Wednesday, February 15, 2017
There is something to be said about having career prosecutors, FBI, and other employees of the government immune from the political struggles surrounding them. They are tasked to focus on their jobs irrespective of the party in power. And clearly sometimes it is probably not easy.
For many years, Sally Yates was a career prosecutor. Climbing the ladder in DOJ took her out of the mainstream career prosecutor path and placed her front and center in the political arena.
I have not been a fan of the "Yates Memo," a memo that she authored that appeared to crackdown on corporate criminality, but rather in my opinion was a symbol of aggressive rhetoric that failed to offer a long-term solution to combatting corporate misconduct.
That said, her leadership role in being a "Minister of Justice" during her short tenure as the acting head of the DOJ needs to be applauded. She refused to defend a presidential order that has now been stayed by multiple judges. Bottom line - she was right and so far has been proven to be correct. For standing up for Justice she was fired on January 30, 2017.
And at the time of her dismissal, we hadn't learned of other investigations that might be of concern to President Trump's administration. It is only now that we are finding out that on January 26th the Justice Department relayed concerns about Michael Flynn to the President. (see discussion of WH Secretary Sean Spicer's Tuesday, press briefing (here).
So was Sally Yates more than just a woman who said NO to the President?
It is important to note here that there have been a long line of women who have spoken up to alert of misconduct (see here), as well as men. Maybe this is a time to recognize all the career folks in the different offices who put politics aside and just do their jobs.
Friday, December 30, 2016
Each year this blog has honored individuals and organizations for their work in the white collar crime arena by bestowing "The Collar" on those who deserve praise, scorn, acknowledgment, blessing, curse, or whatever else might be appropriate. With the appropriate fanfare, and without further ado, The Collars for 2016:
The Collar for the Best Left Hand Turn – To the Supreme Court following Justice Scalia’s death in affirming both insider trading and bank fraud convictions.
The Collar for Failing to Deliver the Goods – To the government for prosecuting Fed Ex and then needing to dismiss the case following opening statements.
The Collar for Needing New Glasses – To James Comey so that he can read Agency policy to not do anything election related within 60 days of an election.
The Collar for Sports MVP – To the world of tennis, which stole some of the focus from FIFA this year with the BBC's allegations of significant match-fixing.
The Collar for Slow and Steady – To Britain's Serious Fraud Office, which, after announcing the implementation of DPAs in October 2012, entered into its first DPA in November 2015 and its second in July 2016.
The Collar for Quick and Steady – To the DOJ, which, according to Professor Brandon Garrett’s website, has entered into well over 100 DPAs and NPAs since October 2012.
The Collar for Best Reading of this Blog– To the Supreme Court in reversing Virginia Governor Bob McDonnell’s conviction, this blog’s 2015 case of most needing review.
The Collar for the Longest Attempt to Justify a Decision – To the 11th Circuit for its 124-page decision in United States v. Clay that attempts to justify how “deliberate indifference” meets the Global Tech standard.
The Collar for Worst Schmoozing at an Airport – To former President Bill Clinton for causing AG Loretta Lynch to accept the FBI’s decision-making after Bill Clinton came abroad her airplane.
The Collar for the Most Underreported Settlement – To Trump University’s agreement to pay $25 million settlement in the Trump University case.
The Collar for Mandating Corporate Backstabbing – To Deputy AG Sally Yates, who keeps insisting her memo that promoted a corporate divide from its constituents – widely referred to as the “Yates Memo” -- should be called the Individual Accountability Policy.
The Collar for the Pre-mature Weiner Release – To James Comey for his overly excited announcement about the former Congressman’s emails.
The Collar for Community Service to Russia – To all those who failed to investigate and release reports on computer hacking that caused the release of information during the election.
The Collar for the Quickest Backpeddling – To Rudy Giuliani for “clarifying” his statement that he knew about a confidential FBI investigation related to Hillary Clinton’s emails.
The Collar for Best Game of Hide and Seek – To Donald J. Trump for explaining that he could not release his already-filed tax returns because he was under an IRS audit.
The Collar for Best Self-Serving Confession – To the Russian Sports Federation for admitting there was systematic doping of Olympic athletes (but Putin didn't know about it).
The Collar for Quickest Recantation (aka the "Mea Culpa Collar") – To DOJ Chief Leslie Caldwell for criticizing overly aggressive AUSAs at a Federalist Society function and apologizing to DOJ attorneys a few days later.
The Collar for Best Judicial Watchdog – To Judge George Levi Russell III of the United States District Court for the District of Maryland for his post-trial decision reversing the conviction of Reddy Annappareddy and dismissing the indictment with prejudice based on prosecutorial misconduct.
The Collar for Never Giving In – To Josh Greenberg and Mark Schamel who tirelessly and brilliantly represented Reddy Annappareddy post-trial and secured his freedom.
The Collar for Best Money Laundering – To the New York City and Los Angeles real estate developers who sell eight-figure condo apartments to anonymous LLP's owned by foreign officials and their families.
The Collar for the Best Child – To Don Siegelman’s daughter, who continues to fight to “Free Don.”
The Collar for the Best Parent – Retired years ago and renamed the Bill Olis Best Parent Award –not awarded again this year since no one comes even close to Bill Olis, may he rest in peace.
(wisenberg), (goldman), (esp)
December 30, 2016 in About This Blog, Current Affairs, Deferred Prosecution Agreements, Government Reports, Investigations, Judicial Opinions, Money Laundering, News, Prosecutions, Prosecutors | Permalink | Comments (0)
Friday, December 2, 2016
Readers of this Blog are no doubt familiar with United States v. Reddy Annappareddy, the District of Maryland case in which a guilty verdict was overturned (and new trial granted) with the grudging, belated concurrence of government prosecutors, because the government presented false testimony to the jury. The indictment was then dismissed with prejudice, over government objection, due to the government's destruction of potentially relevant evidence and the trial court's finding of prosecutorial misconduct. All of this was the result of the tireless and brilliant work of Annappareddy's post-trial attorneys, Josh Greenberg and Mark Schamel of Womble Carlyle. See my prior posts here, here, here, here, and here. Since my last post, the government moved to withdraw its appeal, the Fourth Circuit granted the motion, and the mandate has issued.
Now, Josh Greenberg, who played a key role in devising and implementing the post-trial strategy, has decided to open his own shop, focusing on white collar criminal defense, civil litigation, and appeals. Congratulations to Josh. We wish him the best.
Sunday, November 20, 2016
Co-blogger Solomon Wisenberg noted here that "[a]nyone who thinks this will be an easy nomination to put through, because Sessions is a sitting Senator, is in for a big surprise. It will be a bruising battle."
I would add that it just got a whole lot easier for Senator Jeff Sessions, as according to President-Elect Donald Trump's Making News page here - Former Deputy Attorney General Larry Thompson states:
"I can tell you as a friend and someone who has known Jeff Sessions for 32 years that Jeff does not have a racist bone in his body. When I first met Jeff, he was U.S. Attorney in Mobile and I was the U.S. Attorney in Atlanta. In order to stretch our limited per diems on travel to Department of Justice conferences, we often booked single rooms with double beds in hotels. You really get to know a person when you interact so closely with them.
"When I was asked by Attorney General William French Smith to head the Southeastern Organized Crime Drug Enforcement Task Force simply because of my strategic location in Atlanta, a delicate situation was presented. The Task Force consisted of eleven other U.S. Attorney Offices but any potential problem was avoided because Jeff rallied the other U.S. Attorneys around our common cause and my leadership.
"As a former federal prosecutor, Jeff knows the workings of the Justice Department inside and out. He is thoroughly familiar with the legal issues the Department will face. He understands the mission of the Department and will carry out his duties in a professional, thoughtful, and balanced manner. More recently, Jeff voted to confirm President Obama’s choice as Attorney General, Eric Holder.
"By the way, I have been an African American for 71 years and I think I know a racist when I experience one. Jeff Sessions is simply a good and decent man."
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.