Wednesday, September 18, 2013
Move over, Emmet Sullivan and Carmac Carney. Add Kurt D. Engelhardt to the Honor Roll roster of federal district judges willing to speak truth to the U.S. Department of Justice. Willing to speak truth and to do something about it. Here is Judge Engelhardt's Danziger Bridge Mistrial Order, issued yesterday in the Eastern District of Louisiana, and dismissing without prejudice all guilty verdicts obtained by the government in United States v. Kenneth Bowen, et al. This was the federal civil rights prosecution of New Orleans police officers allegedly involved in a horrific shooting of civilians in the wake of Hurricane Katrina.
The mistrial was granted primarily due to a secret campaign of prejudicial publicity carried out through social media by members of the U.S. Attorney's Office in New Orleans and a DOJ Civil Rights Division attorney in DC. But Judge Engelhardt's opinion raises several other troubling issues concerning the conduct of the trial, DOJ's post-trial investigation of what happened during the trial, and possible meddling by the Deputy AG's office in that investigation.
I will have more to say about these issues in the coming days. It is clear that Judge Engelhardt does not believe he has received anything like the full story from DOJ. It is clear that appointment of a Special Counsel to investigate the entire affair is in order. And it is clear, if history is any judge, that no such appointment will be forthcoming from this attorney general.
Judge Engelhardt's opinion is lengthy, but one that should be required reading for every criminal defense attorney who practices in federal court and every DOJ prosecutor throughout the land. For now, I leave you with Judge Engelhardt's stirring words, taken from some of the closing paragraphs:
On July 12, 2010, the indictment in this case was announced with much fanfare, a major press conference provided over by U.S. Attorney General Eric Holder, and widespread media attention. On that occasion, a DOJ representative said that the indictments 'are a reminder that the Constitution and the rule of law do not take a holiday--even after a hurricane.' While quite true in every respect, the Court must remind the DOJ that the Code of Federal Regulations, and various Rules of Professional Responsibility, and ethics likewise do not take a holiday--even in a high-stakes criminal prosecution, and even in the anonymity of cyberspace. While fully appreciating the horrific events of September 4, 2005, and those who tragically suffered as a result, the Court simply cannot allow the integrity of the justice system to become a casualty in a mere prosecutorial game of qualsiasi mezzo.
Some may consider the undersigned's view of the cited rules and regulations as atavistic; but courts can ignore this online 'secret' social media misconduct at their own peril. Indeed the time may soon come when, some day, some court may overlook, minimize, accept, or deem such prosecutorial misconduct harmless 'fun.' Today is not that day, and Section N of the United States District Court for the Eastern District of Louisiana is not that court.
Thursday, September 5, 2013
Yesterday the Seventh Circuit, sitting en banc, reversed and remanded (7-2) a Section 1014 (and Section 317) conviction connected to the mortgage meltdown crisis. Judge Posner wrote the majority opinion. Chief Judge Easterbrook (joined by Judge Bauer) dissented. The opinion is United States v. Lacey Phillips and Erin Hall.
Section 1014 prohibits making any false statement or report for the purpose of influencing in any way a federally insured bank. Longstanding case law requires the government to prove that the defendant knew the statement was false at the time it was made. Phillips and Hall were an unmarried couple who applied for a home loan and were rejected. Hall then contacted his friend Bowling, a mortgage broker, who began advising Hall and Phillips and ultimately led them to a different bank, Fremont Investment & Loan, which granted a home loan to Phillips. Hall was not listed as a borrower. This was a stated income loan, also known in the industry as a liar's loan.
Phillips and Hall could not keep up with the payments and lost their home. A prosecution ensued. There were several false statements on the loan application, but Phillips and Hall testified that they only were aware of one of the statements, which was as follows. Under the Borrower's Income line, Phillips put down the couple's combined income.
Phillips and Hall wanted to testify that Bowling told them: 1) Phillips should be the only applicant for the stated-income loan, because her credit history was good while Hall's was bad because of the recent bankruptcy; 2) Hall's income should be added to Phillips' on the line that asked for borrower's gross monthly income; and 3) adding the incomes together was proper in the case of a stated income loan, because the bank was actually asking for the total income from which the loan would be repaid, rather than just the borrower's income.
The government wanted to keep this testimony from the jury and U.S. District Court Barbara Crabb (I kid you not) agreed. The Seventh Circuit, per Posner, reversed, in an unnecessarily complicated opinion, but one that is nevertheless fun and instructive to read.
I see it this way. According to Phillips and Hall, Bowling told them that, to Fremont Investment & Loan, Borrower's Income meant the total income from which the loan would be repaid. They were in essence informed that Borrower's Income was a term of art for Fremont. If Phillips and Hall believed that Borrower's Income meant (to Fremont) Combined Income of the People Repaying the Loan, then Phillips and Hall were not making a statement to Fremont that they knew was false. Their state of mind on this point was directly at issue. Theirs may have been be an implausible story, but the jury was allowed to hear it. Judge Posner's opinion has some important things to say about terms of art and interpretation of seemingly simple terms.
This case reminds me of a home loan I took out while I was an AUSA. The bulk of the down payment was being paid through my Thrift Savings Plan. That is, I was loaning myself money out of my government retirement fund. At the time, all of the standard loan applications required the borrower to state that no part of the down payment was coming from a loan. I asked my real estate agent and the mortgage broker whether that language applied to a Thrift Savings Plan Loan. They assured me that it did not. So, when I wrote down on the application that no part of my down payment came from a loan, I knew that in one sense this might be considered false, but to the bank, and presumably to any bank, it would be considered true, because the bank did not consider a Thrift Savings Plan Loan to be a loan. Had I defaulted and been prosecuted, I would have liked to present this as a defense, and it is hard to believe that any competent judge would have prevented me from doing so. But Judge Crabb did not allow this kind of evidence in, and Judge Easterbrook cheers her on.
Judge Easterbrook points out that the jury, in finding Phillips and Hall guilty, already determined that the couple knew several statements on the loan application were false. This is back-asswards and misses the point. This is not a sufficiency of the evidence case. If the jurors had heard the excluded testimony, they may well have been more likely to believe Phillips' and Halls' testimony that the rest of the false statements were made and submitted by Bowling without their knowledge. According to Posner, there was evidence to the effect that Phillips and Hall were naive, while Bowling (who pled guilty and cooperated) and Fremont (a bank that Posner deems disreputable) were sophisticated.
Of course, it is appalling and embarrassing that any self-respecting U.S. Attorney's Office would prosecute a case like this, but it is all part of DOJ's Piker Mortgage Fraud Initiative. Even more embarrassing was the government's contention on appeal that the excluded statements were hearsay. Posner called this a "surprising mistake for a Justice Department lawyer." I'm not so sure. Maybe it wasn't a mistake.
Tuesday, August 27, 2013
The Fourth Circuit has issued a rare and stern rebuke to the Eastern District of North Carolina U.S. Attorney's Office, for what the panel describes as repeated failures to disclose exculpatory evidence on the part of some of the office's prosecutors. Judge Floyd also directed that the opinion be sent to AG Holder and DOJ's OPR. This is remarkable. EDVA District Court Judge Henry Hudson was on the panel, sitting by designation, and concurred in the opinion. The Raleigh News & Observor has the story here. The opinion, U.S. v. Bartko, is here. The pertinent pages are 24-30.
Thursday, August 22, 2013
Financial Meltdown Prosecutions Against Elite Actors? File Them Under "I'll Believe It When I See It."
In an interview with the Wall Street Journal, reported here, Attorney General Holder promises that "he plans to announce new cases stemming from the economic meltdown in the coming months." Some media outlets have interpreted this as a harbinger of criminal prosecutions, but Holder did not indicate whether the cases would be civil or criminal. Any civil case against the likes of a major bank or investment house can be filed under "Costs of Doing Business." In addition to the civil-criminal wiggle room Holder allowed himself, the definition of "cases stemming from the economic meltdown" is broad enough to cover a multitude of alleged malfeasance. Is DOJ going to prosecute people who purportedly contributed to the meltdown through fraudulent omissions and commissions? Or will it bring desultory civil cases based on conduct that occurred in the wake of the meltdown? According to the article, Professor John Coffee "expected the five-year statute of limitations on many white-collar crimes may bar a successful prosecution of a number of pre-crash abuses." But virtually any federal criminal financial institution fraud case can be brought within 10 years, thanks to FIRREA. Criminally fraudulent activity involving a financial institution that occurred in May 2006 could be charged as late as 2016.
Tuesday, August 13, 2013
Attorney General Eric Holder's talk (see here) at the American Bar Association Conference should be applauded. To have an Attorney General say that "our criminal justice system is in too many respects broken" is a huge step in us moving ahead to change. His recognition "that 20th Century criminal justice solutions are not adequate to overcome our 21st century challenges" is a high point of this speech.
Addressing issues relevant to the white collar world, he said that his administration had a "strong commitment to common sense criminal justice reform." To have the Attorney General tell the ABA and public "federal prosecutors cannot - and should not - bring every case or charge every defendant who stands accused of violating federal law" is a huge step in correcting injustice in the criminal process. Recognizing the importance of state and local law enforcement is a step in the direction of reigning in federal overcriminalization. He even uses the "smarter" on crime terminology that many have been emphasizing across the country.
Perhaps the most important aspect of this speech is his statement regarding this being the 50th anniversary of the Gideon decision and how our public defender system needs increased funding. These are the words that reflect him as a true "minister of justice."
He also spoke about problems related to collateral consquences, something that has been most bothersome in the white collar world.
This was an uplifting speech and it is wonderful to see this coming from the Attorney General. Hats off to AG Holder.
Well, DOJ didn't admit it in those exact words. The tone and content were more Ziegleresque: "[T]he announcement overstated the number of defendants that should have been included as part of the Distressed Homeowner Initiative, as well as the corresponding estimated loss amount and number of victims." The original press release and press conference in October 2012 touted "the results of the Distressed Homeowner Initiative, the first-ever nationwide effort to target fraud schemes that prey upon suffering homeowners. The yearlong initiative, launched by the FBI, a co-chair of the Financial Fraud Enforcement Task Force’s Mortgage Fraud Working Group, resulted in 107 criminal defendants charged in U.S. District Courts across the country. These cases involved more than 17,185 homeowner victims and total losses by those victims estimated by law enforcement at more than $95 million." It turns out the numbers given for people arrested, victims affected, and losses incurred were grossly inflated. Jonathan Weil's blistering Bloomberg.com column discussing the rigged numbers is here. The original press release and Newspeak retraction are here. No doubt DOJ is working up a Section 1001 case right now against the folks who gave out these numbers. I don't usually quote socialists, but I.F. Stone's favorite saying now comes to mind: "All governments are run by liars." Hat Tip to Professor William Black for bringing this story to my attention.
Monday, August 12, 2013
I posted here last October on Guts and the DC Bar Counsel: The Case of Andrew J. Klineand asked:
"What is the solution to the persistent blight of jaw-droppingly obvious Brady/Giglio violations? One solution is to bring ethical complaints against purportedly miscreant prosecutors in appropriate instances. Which brings us to the case of former DC AUSA Andrew J. Kline, currently making its way through the bar disciplinary process . . . DC Bar Counsel wants Kline censured for an alleged Brady/Giglio violation that also runs afoul, according to Bar Counsel, of the arguably broader Rule 3.8(e) of the DC Rules of Professional Conduct . Rule 3.8(e) states in pertinent part that: 'The prosecutor in a criminal case shall not . . . intentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused . . . .'
The defense bar often talks about using various state versions of Rule 3.8(e) in tandem with Brady/Giglio, in part to get around the Brady/Giglio materiality problem. Here is a Bar Counsel actually doing something about it. Kline vigorously denies that the withheld information was material or that he intentionally engaged in any wrongdoing.
What information did Kline actually withhold? He was prosecuting Arnell Shelton for the shooting of Christopher Boyd. Shelton had filed an alibi notice and 'the reliability of the government's identification witnesses' was the principal issue at the 2002 trial, according to the Report and Recommendation of Hearing Committee Number Nine ("Report and Recommendation"). Kline spoke with Metropolitan Police Department Officer Edward Woodward in preparation for trial. Kline took contemporaneous notes. Woodward was the first officer at the scene of the crime and spoke to victim Boyd at the hospital shortly after the shooting.
According to the Report and Recommendation, Kline's notes of his conversation with Woodward were, in pertinent part, as follows: 'Boyd told officer at hospital that he did not know who shot him–appeared maybe to not want to cooperate at the time. He was in pain and this officer had arrested him for possession of a machine gun …'
At trial Boyd identified Shelton as the shooter. According to Bar Counsel, Kline never disclosed Boyd's hospital statement to the defense despite a specific Brady/Giglio request for impeachment material. The other identification witnesses were weak and/or impeachable.
The case ended in a hung jury mistrial and the alleged Brady material (that is, Boyd's hospital statement to Woodward) was not revealed to the defense until literally the eve of the second trial, even though DC-OUSA prosecutors and supervisors had known about it for some time. When the trial court found out about the hospital statement and that it had not been disclosed before the first trial because Kline did not consider it exculpatory, the court was thunderstruck: 'I don’t see how any prosecutor could take that position. . . I don’t see how any prosecutor anywhere in any state in the country, could say I don’t have to turn that over because I think I know why he said that.' See DC Bar Counsel's corrected Brief at 8.
The court offered defense counsel a continuance, but she elected to go to trial as her client was then in jail. The second trial ended in Shelton's conviction.
Kline's position now is that the hospital statement was not material, hence not Brady, because Boyd was in pain and being treated for a gunshot wound at the time and because Shelton was ultimately convicted upon retrial.
Bar Counsel's position is that the withheld hospital statement was material and exculpatory and therefore Brady material, but that even if it was not Brady material, the failure to turn it over violated Rule 3.8(e). Bar Counsel seeks a public censure of Mr. Kline."
That was back in October 2012. At the time of the original post, Kline was in the process of contesting Hearing Committee Number Nine's Report and Recommendation to the District of Columbia Court of Appeals Board on Professional Responsibility (Board). The Board issued its own Report and Recommendation on July 31, 2013, upholding the Hearing Committee, but changing the recommended sanction from public censure to 30 days suspension.
The Board accepted the Hearing Committee's factual and legal conclusions and found that: 1) the withheld statement was material; and 2) even if it had not been material, Rule 3.8(e) required its disclosure, because Rule 3.8(e) does not contain a materiality element. The Board also agreed that: 1) Kline knew or should have known that the information tended to negate the guilt of the accused; 2) the defense requested the exculpatory information at a time when its use was reasonably feasible; and 3) the failure to turn over the statement was intentional.
The DOJ, which says it cares so much about respecting the constitutional rule announced 50 years ago in Brady v. Maryland, came in with an amicus brief arguing that the withheld statement was not material. How appalling.
Tuesday, July 30, 2013
1. Barring a miracle, the government will win.
2. The law on corporate criminal liability may be unfair, but it has been around since 1909.
3. The government has to prove that: a) at least one SAC employee committed securities/wire fraud (several have already pled guilty); b) the employee was acting within the actual or apparent scope of his/her authority/employment at the time; and c) the employee intended, even in part, to benefit the corporation.
4. If the government can prove the above elements it will win, even if the employees who engaged in securities fraud/insider trading violated SAC's insider trading compliance policies or Steven Cohen's direct orders.
5. Give credit where credit is due. This is a well-crafted speaking indictment. Preet Bharara alleged more than he will technically need to prove at trial. He charged that SAC created an atmosphere in which insider trading was bound to flourish. Why did he do this? First, to make his case in the court of public opinion. Second, to help prevent jury nullification. Third, to rebut a defense that the guilty employees were acting against the interests of the company. Here is the SAC Indictment.
6. The attempt to obtain all of SAC's profits through criminal forfeiture allegations is, to put it mildly, a stretch. Significantly, the government did not try to seize funds through civil forfeiture in conjunction with the indictment. This was only partly to protect innocent third parties. The government also did not want to see its resources diverted, give up unnecessary discovery, or embarrass itself.
7. Like John Dowd in the Rajaratnam case, Ted Wells is in the catbird seat. No one in the criminal defense bar expects him to win. If he loses it will in no way dim his reputation. If he wins, he achieves true legendary status. Conversely, no AUSA worth his/her salt can afford to lose this case.
8. How to defend this case? By arguing that all the employees who pled guilty were greedy sorts who were in it 100% for themselves. They could not have intended to benefit the company, because the company made it so clear, time and again, that insider trading actually was bad for the company. Hence the key importance of the indictment's allegations that SAC's compliance policy was essentially a sham.
9. Insider trading law may be stupid, but, contrary to popular myth, is not for the most part vague or confusing to the professionals who have spent their careers in the securities industry.
10. When an employee vocalizes his reluctance to say more over the telephone, concomitantly referencing his "compliance" training, it's a pretty safe bet he knows insider trading is illegal.
Saturday, July 27, 2013
Yet another story from NPR, with the obligatory quotes from Bill Black and Neil Barofsky, about DOJ's abject failure to properly investigate and prosecute high-ranking corporate insiders for fraud-related activity in connection with the financial crisis. This is the major criminal justice story, and scandal, of the Obama-Holder Administration. From the standpoint of elite corporate fraudsters, the Republicans could not have fashioned a better Dream Team at DOJ. The glaring exception here appears to be Preet Bharera. But it's easier to go after insider trading than control fraud.
Tuesday, June 25, 2013
It's a relatively short opinion issued by the Second Circuit, and 24 of the 29 pages pertain to a summary of the holding, facts, and the wiretap order used in this case. For background on the issues raised, the briefs (including amici briefs), see here. Judge Cabranes wrote the majority opinion, joined by judges Hon. Sack and Hon. Carney. A summary of the holding states:
In affirming his judgment of conviction, we conclude that: (1) the District Court properly analyzed the alleged misstatements and omissions in the government’s wiretap application under the analytical framework prescribed by the Supreme Court in Franks; (2) the alleged misstatements and omissions in the wiretap application did not require suppression, both because, contrary to the District Court’s conclusion, the government did not omit information about the SEC investigation of Rajaratnam with "reckless disregard for the truth," and because, as the District Court correctly concluded, all of the alleged misstatements and omissions were not "material"; and (3) the jury instructions on the use of inside information satisfy the "knowing possession" standard that is the law of this Circuit.
Some highlights and commentary:
1. The Second Circuit goes further than the district court in supporting the government's actions with respect to the wiretap order.
2. The Second Circuit agrees with the lower court that a Franks hearing is the standard to be used with a wiretap order where there is a claim of misstatements and omissions in the government's wiretap application. The Second Circuit notes that the Supreme Court has "narrowed the circumstances in which ...[courts] apply the exclusionary rule." But the question here is whether the Supreme Court has really addressed the wiretap question in this context and whether a cert petition will be forthcoming with this issue.
3. Although the Second Circuit uses the same basic test in reviewing the wiretap, it finds that "the District Court erred in applying the 'reckless disregard' standard because the court failed to consider the actual states of mind of the wiretap applicants." The Second Circuit then goes a step further and finds that omission of evidence does not mean that the wiretap applicant acted with "reckless disregard for the truth."
4. The court states that "the inference is particularly inappropriate where the government comes forward with evidence indicating that the omission resulted from nothing more than negligence, or that the omission was the result of considered and reasonable judgment that the information was not necessary to the wiretap application." - This dicta provides the government with strong language in future cases when they just happen to negligently leave something out of a wiretap application.
5. Does the CSX Transportation decision by the Supreme Court call into question Second Circuit precedent? The Second Circuit is holding firm with its prior decisions. But will the Supreme Court decide to take this on, and if so, will it take a different position.
Monday, June 24, 2013
In what should be a surprise to no one, the Wall Street Journal editorial page today launched an attack on James Comey, President Obama's nominee to be the next FBI Director. The primary offenses? Comey's objection to the Bush Administration's illegal warrantless wiretapping and Comey's appointment of Patrick Fitzgerald as Special Counsel to investigate the Valerie Plame leak. The editorial is here. More commentary on this in the next few days.
Coming soon: Professor Podgor's analysis of the Second Circuit's opinion afffirming Raj Rajaratnam's conviction for insider trading violations.
Friday, June 21, 2013
Judge Lake effectively ratified the deal struck months ago by federal prosecutors and the former Enron CEO. The agreement called for a sentence of from 14 to 17.5 years. Skilling agreed to stop fighting his conviction and to hand over restitution funds to the victims. He obviously gets credit for time already served. WSJ has the story here.
Despite all the promises and policy iterations we continue to see blatant DOJ Brady violations. These are violations that first year criminal procedure students would know not to commit. The latest to come to light is from the Eastern District of Tennessee.
Yesterday, the U.S. Court of Appeals for the Sixth Circuit reversed Abel Tavera's conviction for conspiracy to distribute meth and possession with intent to distribute meth. Tavera was the passenger in a truck involved in an undercover drug deal. He plausibly claimed no knowledge of the drug transaction, testifying that he thought he was heading to a roofing job. Some of the physical evidence tended to corroborate Tavera's story. The evidence against Tavera was almost entirely bottomed on the testimony of co-defendant Granado. Non-testifying co-defendant Mendoza debriefed. He first told the government that Tavera had no knowledge of the drug transaction. Later the same day Mendoza told the government that Tavera only gained knowledge of the drug transaction upon entering the truck on the day of the transaction. Mendoza also denied that Tavera came along to count money and provide security, and consistently stated that one of the purposes of the truck ride was to work on a roofing job. All of this was contradictory to Granado's ultimate testimony. Mendoza later pled guilty. Mendoza's written plea agreement stated: "Tavera knew that they were transporting methamphetamine from North Carolina to be delivered to another person in Tennessee and agreed to accompany [Mendoza]. Since they were transporting methamphetamine, Tavera told [Mendoza] that they needed to be careful." The prosecutor, AUSA Donald Taylor, failed to disclose Mendoza's earlier debriefing statements to the defense.
Judge Merritt, speaking for the majority, decided to send a message:
"This particular case is not close. Prosecutor Taylor's failure to disclose Mendoza's statements resulted in a due process violation. We therefore vacate Tavera's conviction and remand for a new trial. In addition, we recommend that the U.S. Attorney's office for the Eastern District of Tennessee conduct an investigation of why the prosecutorial error occurred and make sure that such Brady violations do not continue."
Tavera's attorney never tried to interview Mendoza. The government argued that no Brady violation occurred, under Sixth Circuit precedent. because Mendoza was equally available to both sides. The majority disagreed with this contention,and further found it foreclosed by the U.S. Supreme Court's ruling in Banks v. Dretke, 540 U.S. 668 (2004). Judge Clay accepted the government's position regarding Sixth Circuit precedent and dissented.
The statements were plainly material and exculpatory. So the question remains, why is such conduct continuing to occur and what is the DOJ doing about it when it comes to light? Here, what one branch of the DOJ did was to argue that Brady wasn't violated.
These constitutional violations directly affect the fairness of federal criminal trials. They will never stop, absent legislation with teeth and/or a federal criminal defense bar willing to be fanatical in its intolerance of Brady violations.
Here is the decision in United States v. Tavera.
Wednesday, June 5, 2013
FBI Special Agent Reginald Reyes' affidavit supporting DOJ's search warrant application for Fox News Reporter James Rosen's Google email account was ordered unsealed in November 2011. But it wasn't actually unsealed by the DC U.S. District Court's staff until late May of 2013. In other words, the affidavit was only unsealed several days after AG Holder testified that, "[w]ith regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy." Once the affidavit and search warrant application were unsealed, it became clear that Holder's testimony was inacurrate, as he had personally authorized the search warrant application. See here for yesterday's post on this issue.
DC Chief Judge Royce Lamberth is not happy about his staff's failure to unseal the affidavit and related documents. Here is Chief Judge Royce Lamberth's 5-23-2013 Order expressing his unhappiness.
Tuesday, June 4, 2013
“Well, I would say this. With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy.” Attorney General Eric Holder testifying under oath before the House Judiciary Committee on May 15, 2013.
"For the reasons set forth below, I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to SUBJECT ACCOUNT, are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. [Section] 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator to which the materials relate." FBI Special Agent Reginald B. Reyes' May 28, 2010, Affidavit in Support of Search Warrant Application for Fox News Chief Washington Correspondent James Rosen's Google email account. The warrant was authorized by Attorney General Holder.
Note than in addition to identifying "the Reporter" as a probable aider, abettor and/or criminal co-conspirator, the affidavit explains that the Department of Justice is not bound by the Privacy Protection Act, otherwise prohibiting warrants for First Amendment work product, precisely because "the Reporter" was "suspected of committing the crime [18 U.S.C. Section 793(d)] under investigation."
There is no doubt that AG Holder gave false testimony to House Members under oath. He is an idiot if he did so intentionally, and he isn't an idiot. What should Holder have done to fix this mess? Corrected the record, of course. In the immortal words of Richard Nixon, "that would have been the easy thing to do."
Holder should have said: "Dear Representatives Goodlatte and Sensenbrenner. I screwed up. My testimony to you is now inoperative. I forgot that I authorized this affidavit, which clearly identifies a 'Reporter' as somebody under investigation for a crime. I did not intentionally try to deceive you. My statement was careless and overbroad. Please accept my apologies."
But the Attorney General apparently cannot not bring himself to do anything as straightforward as that. Instead he spends days sending out spinmeisters, most recently, and regrettably, Deputy Assistant AG Peter Kadzik, as reported here by Sari Horwitz in today's Washington Post.
How sad. Can you imagine anything like this happending under Attorney General Griffin Bell? Bell, a genuine protector of our civil liberties, most likely would have nixed the supboena in the first place. But if Bell had authorized it, he never would have shied away from the ensuing controversy or hidden behind his DOJ underlings.
Mr. Holder has received his fair share of undeserved, demagogic criticism from the kooky right. He deserves what he's getting now.
Here is a copy of the Reyes Affidavit.
Tuesday, May 14, 2013
Prosecutors who have committed Brady violations, even those which have been later demonstrated to have resulted in wrongful convictions and lengthy terms of imprisonment for persons later proven innocent, are rarely prosecuted. Courts tend to find Brady violations inconsequential, prosecutor's offices generally defend or at the least refuse to acknowledge them, disciplinary committees overlook them, and defense lawyers, out of timidity and self-interest, rarely press for sanctions. One notable exception to this general disregard by institutions and the bar is DOJ's commendable effort, at the moment thwarted by a questionable administrative law decision, to sanction prosecutors in the Senator Ted Stevens trial (see here and here).
The State of Texas, whose criminal justice system is often disparaged by commentators and defense lawyers, recently took a giant step in holding prosecutors sanctionable for egregious Brady violations. A Texas judge, acting as a court of inquiry, under Texas law, after a hearing ordered the arrest of a current Texas state court judge, Ken Anderson, for contempt and withholding evidence from the court and defense attorneys when Anderson was a District Attorney prosecuting Michael Morton, who was recently demonstrated to be actually innocent for the murder of his wife for which he served 25 years of a life sentence. See here.
The inquiry judge, District Judge Louis Sturns, found probable cause to believe that Anderson had concealed two crucial pieces of evidence: a statement by Morton's three-year old son that Morton was not home at the time of the crime and a police report which revealed that an unknown suspicious man had been seen on several occasions stalking the Morton house.
For denying to the trial judge that there was exculpatory evidence and for failing to provide a full copy of a police report demanded by the judge, Anderson was charged with tampering with evidence, tampering with a government document, and contempt. The most serious charge, evidence tampering, carries a maximum prison term of ten years, far short of the 25 years Morton served.
Criminal prosecution of prosecutors for Brady violations has been to my knowledge totally or almost totally nonexistent. Thirty-five years ago I drafted a proposed New York State statute criminalizing intentional and knowing Brady violations. As expected, the proposal went nowhere. The statute, as I wrote it, had such strict scienter requirements that the crime was virtually unprovable. It was written more to stress to prosecutors the seriousness of such misconduct than to lead to actual prosecutions. The Anderson prosecution, if it occurs, may fill that function.
Thursday, April 11, 2013
An administrative judge for the Merit Systems Protection Board has overturned the DOJ internal decision finding reckless misconduct for violating Brady obligations by two prosecutors of Senator Ted Stevens, Joseph Bottini and James Goeke, and ordering their suspensions. See here.
The administrative judge ruled that DOJ had violated its own disciplinary procedures which require a rank-and-file DOJ attorney in the Professional Misconduct Review Unit to review OPR findings and determine whether misconduct had occurred. The career attorney who reviewed the OPR findings, Terrence Berg (now a federal district judge in Michigan), decided in favor of the prosecutors, but his ruling was reviewed and reversed by his superiors, who found that misconduct had occurred and suspensions were appropriate. Review and reversal by the superiors, said the administrative judge, was improper procedurally, and the rank-and file attorney's decision was non-reviewable and final.
I lack sufficient familiarity with administrative law to opine whether this decision is wrong (although Prof. Bennett L. Gershman has made a strong case that it is). See here. I recognize that prosecutors, like those they prosecute, are entitled to due process. However, procedural infirmities aside, the actions of the prosecutors were clear enough and serious enough to warrant on the merits a finding of misconduct and a suspension. See here.
I find it ironic that DOJ's finding of misconduct was (according to the administrative judge) based on DOJ's own procedural misconduct. More seriously, however, I find extremely troubling the notion that a DOJ prosecutor's misconduct should be finally determined by a fellow career DOJ prosecutor. Defense lawyers, for instance, are not entitled to have their alleged misconduct weighed by a fellow defense lawyer.
A prosecutor's alleged misconduct ideally should be determined by the appropriate state bar disciplinary committee, not a fellow prosecutor (or fellow prosecutors). Of course, bar disciplinary committees, as several commentators have pointed out, have been extraordinarily hesitant to discipline prosecutors, especially with respect to Brady violations.
DOJ has the right to appeal to the three-judge Merit Systems Protection Board. It will be interesting to see if it does.
Thursday, March 7, 2013
Attorney General Eric Holder yesterday defended the Department of Justice's treatment of Aaron Swartz, the 26 year-old internet activist who committed suicide three months before his scheduled trial in federal court in Boston. Specifically, Holder, in response to questioning by Sen. John Cornyn, a Texas Republican, defended the prosecution by citing the plea offer, stating, "There was never an intention for him to go to jail for longer than a 3-, 4- potentially 5-month range . . . . Those, those offers were rejected."
Holder's response troubles me in at least two regards. First is his implicit belief that a five-month jail sentence for Swartz was lenient. Swartz' alleged crimes were clearly based on a heartfelt belief that the public was entitled to free access to knowledge, specifically to academic journals. He would receive no personal benefit for his actions. Perhaps in these days, where sentences of years in double digits are commonplace, a sentence of five months seems to Holder like a trip to Disneyland, but five months in jail for a fragile young man acting out of humanistic belief and causing only comparatively light physical damage does not seem lenient to me. Apparently, Swartz did not see it as light.
Second is Holder's further implicit assumption that government decency is satisfied by a reasonable plea offer and available only to those who plead guilty. Swartz was indicted originally for crimes theoretically punishable by up to 35 years in prison. Later, a superseding indictment which ratcheted the potential sentence up to 50 years was filed. Had Swartz exercised his constitutional right to go to trial and been convicted, I would have been shocked if the government would have sought a sentence of five months or less. Rather, it undoubtedly would have sought a long sentence, most likely in the sentencing guideline range of approximately seven years.
I do not condemn the government for prosecuting Swartz. Perhaps prosecuting him was cruel, but prosecutions are often cruel to defendants. Despite his noble intentions, Swartz arguably violated the law, and I do not believe a victim should control the decision to prosecute, one way or the other. I do not, however, believe that Swartz' purported crimes deserved the full-blown zealous prosecution they received. A prosecutor in the appropriate case should charge less than the most serious crimes available and not always exercise her power to the "full extent of the law." Prosecutorial decency, or prosecution discretion, should not be confined only to plea offers.
Tuesday, March 5, 2013
One of the several troubling aspects of the continuing overcriminalization of federal law is the frequent elevation of a violation of civil regulation to a crime. In United States v. Izurieta, 11th Cir., 11-13585 (February 22, 2013), the Eleventh Circuit addressed this issue.
The defendants in Izurieta were convicted after trial by jury of violating the general smuggling statute, 18 U.S.C. 545, importing goods "contrary to law," by violating a customs regulation, 19 C.F.R. 142.113(c), in failing to redeliver to Customs for exportation or destruction goods purportedly contaminated with E. coli, Staphylococcus aureus and/or Salmonella which had been conditionally released.
The defendants appealed on various grounds -- significantly not including whether the indictment sufficiently charged a crime by relying on the Customs regulation. At oral argument, however, the Court raised this issue sua sponte and ordered supplemental briefing.
Section 545, as pertinent here, reads:
Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law . . . shall be fined . . . or imprisoned . . . .
The regulation or "law" upon the charges here were based covered the "failure to deliver, export, and destroy with FDA supervision" certain foods found to be adulterated. 19 C.F.R. 141.113(c).
The Court in its opinion recognized a split among circuits on when a regulation constitutes the "law" upon which a Section 545 indictment may be based. The Ninth Circuit in United States v. Alghazouli, 517 F.3d 1179, 1187 (9th Cir. 2008) took what the opinion called "a relatively narrow interpretation" of Section 545 that regulations are included in "law" only when "there is a statute (a 'law') that specifies that violation of that regulation is a crime." The Fourth Circuit in United States v. Mitchell, 39 F.3d 465, 470 (4th Cir. 1994), to the contrary, took what the opinion called a "more expansive" view, deciding that Section 545 criminalizes violations of any regulation "having the force and effect of law" based on a three-prong test.
The Court, while claiming its binding authority, Bobb v. United States, 252 F.2d 702, 707 (5th Cir. 1958) was consistent with the Fourth Circuit's "expansive" approach in Mitchell, applied the rule of lenity and held that the regulation in question did not qualify as a "law" for purposes of Section 545 liability. It found that the regulation in question was primarily to reflect contractual requirements between Customs and the importer and thus was "civil only."
The rule of lenity was premised, it said, on two ideas: first, that "a fair warning should be given . . . of what the law intends to do if a certain line is passed" and, second, that "legislators and not courts should define criminal activity."
This apparent case-by-case approach, of course, does not establish a "bright line" as to when violations of an administrative regulation become a crime. Citizens and attorneys will often have to guess whether a violation of a regulation is a crime; that is, "what the law intends to do if a certain line is passed." The case may, however, curb the government's increasing efforts to convert violations of ostensible civil regulations into crimes.
This case should remind lawyers that the uncertainties in this area require that they pay attention at both the trial and appellate levels to the issue of whether a violation of an administrative regulation is a crime.
(A hat tip to Paul Kish and the Federal Criminal Lawyer Blog)
Tuesday, February 26, 2013
In Caldwell v. Cablevision, 2013 N.Y. Slip Op. 00783, the New York Court of Appeals two weeks ago unanimously affirmed a trip-and-fall civil defendant's verdict in which an emergency room physician subpoenaed by the defense as a fact witness was paid $10,000 for one hour of testimony to verify an entry he made in the "history" section of the hospital records. That note read that the plaintiff had "tripped over [her] dog while walking in the rain," seemingly contradicting the plaintiff's claim that she tripped because of an unfilled trench dug by the defendant.
The court was "troubled" by what was clearly an exorbitant fee paid to a witness for minimal testimony. The relevant statute provided that a witness was entitled to a fee of $15 per day and $.23 per mile travel, but the court wrote it was not improper to pay a witness "reasonable" compensation beyond those amounts for attending, testifying and preparing. The court noted that a witness, however, could not be paid based on the outcome of the litigation.
The court, disturbed by what it called a "disproportionate fee for a short amount of time" and realizing that an excessive payment tended to influence witnesses to testify favorably for the party that paid them, also stated "[a] line must be drawn." However, it not only failed to draw that line, but did not set forth any criteria for when a payment to a witness becomes a bribe. It did hold that the trial court should have tailored a specific jury instruction for the situation, but found the failure to do so was harmless error.
Initially, I thought the court's opinion might provide some limited protection to a New York criminal defense lawyer to offer a witness in a state case a substantial payment to overcome the typical witness reluctance to testify against the prosecution. After a moment's reflection, however, I concluded that such protection was illusory. A criminal defense lawyer who pays a fact witness $10,000 for an hour of testimony is likely to face indictment for bribery. What is acceptable in civil cases is often not acceptable in criminal cases, especially if one's adversary has the power to prosecute. Further, what is acceptable conduct by a prosecutor in criminal cases is often not acceptable if done by a defense lawyer.
Prosecutors routinely induce testimony from witnesses by offering "something of value" greater than money -- a witness' freedom from incarceration, something a defense lawyer obviously cannot offer. While one federal appellate court shook the foundations of federal prosecution offices by holding that the government could not induce testimony by offering such leniency to a witness, United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), that case was swiftly and soundly overruled en banc, 165 F.3d 1302 (10th Cir. 1999).
In white collar and other cases, the defense often is hampered by its inability to induce a witness to testify by offering something of value for fear that the defendant or her attorney will be prosecuted for bribing a witness. While the defendant has a Sixth Amendment right to subpoena and call fact witnesses (and to pay witness fees and the "reasonable value of lost time"), that right is considerably limited by the witness' Fifth Amendment right to assert his privilege against self-incrimination and decline to testify. Further, defense attorneys lack a mechanism (such as a grand jury) to test what an unamenable witness will state under oath.
One instance where witnesses are often necessary for a viable defense in white-collar cases is where the defendant claims she acted with a lack of criminal intent, often evidenced by a direction or assurance by superiors of the propriety of her conduct or her openness and expressions to her co-workers. Witnesses who might substantiate the defendant's good faith who were somewhat involved in, or just near, the questioned activity, generally at the direction of prudent counsel will often refuse to testify for fear they will be prosecuted. This foreclosure of potentially favorable testimony is sometimes reinforced by prosecution sabre-rattling, often disingenuous, that the witness himself is a potential defendant. Such a declaration almost always will frighten the witness from testifying and deter a judge from granting the witness immunity over prosecutorial objection. But see here.
Allowing white-collar defendants to "buy" (honest) testimony from a reluctant witness -- that is, to pay the witness to give up his constitutional right not to testify -- conceivably theoretically acceptable under the Caldwell case -- might somewhat level the playing field in which the prosecutor to a considerable extent controls who will testify for either side. However, until a court or legislature "draws a line" that clearly allows it, such a payment is fraught with danger to the defendant and the defense lawyer.