April 29, 2011
New Scholarship - Plea Bargaining, Discovery and the Looming Battle Over Impeachment Evidence
Professor Mike Cassidy (Boston College) has a wonderful new piece titled Plea Bargaining, Discovery, and the Looming Battle Over Impeachment Evidence, which will be published in Vol. 64 of the Vanderbilt Law Review (October 2011). With the discovery under review, this is a very important piece and I recommend it highly. The SSRN abstract states:
"In a criminal justice system where guilty pleas are the norm and trials the rare exception, the issue of how much discovery a defendant is entitled to before allocution has immense significance. This article examines the scope of a prosecutor’s obligation to disclose impeachment information before a guilty plea. This question has polarized the criminal bar and bedeviled the academic community since the Supreme Court’s controversial decision in United States v. Ruiz (2002). A critical feature of the debate has been the enduring schism between a prosecutor’s legal and ethical obligations – a gulf that the American Bar Association recently widened by issuing a controversial opinion interpreting Model Rule of Professional Conduct 3.8(d) to impose obligations on prosecutors well beyond the requirements of the due process clause.
"For reasons of institutional competence and legitimacy, the author argues that rules of criminal procedure are a far better vehicle for regulating pre-plea impeachment disclosures than state attorney conduct rules. As the Advisory Committee on Criminal Rules convenes this year to contemplate controversial amendments to the Federal Rules of Criminal Procedure with regard to the disclosure of exculpatory evidence, the author proposes a categorical approach to impeachment disclosures that will mediate the tension between the defendant’s interest in accurately assessing the strength and weaknesses of the government’s case, and the state’s interest in protecting the privacy and security of potential witnesses."
April 27, 2011
New Article - Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer's Responsibility for Real Evidence
Professor Stephen Gillers has a wonderful new piece in 63 Stanford Law Review 813 (April 2011), titled, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer's Responsibility for Real Evidence. (click here to read it on the Stan. L Rev website) This one is a must-read. We all know how to handle weapons, drugs, or stolen property. But happens with the document in a white collar case? This piece offers some wonderful thoughts of dealing with documents provided to counsel.
April 10, 2011
New Book - Winning the Acquittal: Tips from a High-Profile Trial
Check out Michael S. Pasano's new book, Winning the Acquittal: Tips from a High-Profile Trial.
April 03, 2011
New Scholarship - Brotman on Sentencing
Check out Ellen C. Brotman's (Montgomery, McCracken, Walker & Rhoads) article: Make Probation a Real Option at Sentencing, 23 Federal Sentencing Reporter 257 (No. 4) (April 2011). Her opening line: "My advice to the Commission is to amend the Guidelines to establish probation as a distinct type of sentence with independent value, rather than as merely a lenient option to be used only in extraordinary cases."
(esp)(hat tip to Evan Jenness)
March 27, 2011
New ABA Website Features U.S. and International Anti-Corruption News and Peer-Reviewed Analysis by and for Practitioners
The American Bar Association’s Criminal Justice Section is launching a new website that provides up-to-date, practitioner-oriented information and analysis on global anti-corruption matters. Managed by the section’s Global Anti-Corruption Task Force, the site features, among other unique categories of information: Peer-reviewed articles and analysis from practitioners worldwide; Up-to-date news reports; Extensive online resource links; A library of presentations; and Notices of upcoming anti-corruption events and seminars. The task force provides a neutral, practitioner-focused online resource to monitor, evaluate and report on anti-corruption news and developments in transnational anti-bribery efforts. Focus is on the interplay between anti-corruption governmental efforts and the effect that those efforts have on global commerce and business development. The website’s distinguishing features are: a) all published articles are peer-reviewed and available free of charge online; b) its subject-matter focus covers the globe, and not just the United States; c) published pieces come from leading practitioners and industry leaders from all over the world; and d) its objective is to provide news and analysis that is "for and by" practitioners who are looking for the latest developments and insights in the ever-changing global anti-corruption arena. The site also provides extensive real-time news announcements and reports on criminal and regulatory enforcement activities relating to the Foreign Corrupt Practices Act, as well as similar international instruments such as the United Kingdom Bribery Act, the German Anti-Corruption Act, Russia’s National Plan for Counteraction to Corruption, and the U.N. Convention Against Corruption. The Global Anti-Corruption Task Force is co-chaired by Assistant U.S. Attorney Andrew S. Boutros (in his personal capacity) and Perkins Coie Investigations and White Collar Defense Group partner (and former Assistant U.S. Attorney) T. Markus Funk. A link to the task force website is available here.
The American Bar Association’s Criminal Justice Section is launching a new website that provides up-to-date, practitioner-oriented information and analysis on global anti-corruption matters. Managed by the section’s Global Anti-Corruption Task Force, the site features, among other unique categories of information:
Peer-reviewed articles and analysis from practitioners worldwide;
Up-to-date news reports;
Extensive online resource links;
A library of presentations; and
Notices of upcoming anti-corruption events and seminars.
The task force provides a neutral, practitioner-focused online resource to monitor, evaluate and report on anti-corruption news and developments in transnational anti-bribery efforts. Focus is on the interplay between anti-corruption governmental efforts and the effect that those efforts have on global commerce and business development.
The website’s distinguishing features are: a) all published articles are peer-reviewed and available free of charge online; b) its subject-matter focus covers the globe, and not just the United States; c) published pieces come from leading practitioners and industry leaders from all over the world; and d) its objective is to provide news and analysis that is "for and by" practitioners who are looking for the latest developments and insights in the ever-changing global anti-corruption arena.
The site also provides extensive real-time news announcements and reports on criminal and regulatory enforcement activities relating to the Foreign Corrupt Practices Act, as well as similar international instruments such as the United Kingdom Bribery Act, the German Anti-Corruption Act, Russia’s National Plan for Counteraction to Corruption, and the U.N. Convention Against Corruption.
The Global Anti-Corruption Task Force is co-chaired by Assistant U.S. Attorney Andrew S. Boutros (in his personal capacity) and Perkins Coie Investigations and White Collar Defense Group partner (and former Assistant U.S. Attorney) T. Markus Funk.
A link to the task force website is available here.
February 06, 2011
Scholarship - New Book
Lance Cole & Stanley M. Brand, Congressional Investigations and Oversight: Case Studies and Analysis, Carolina Academic Press (2011) - Carolina writes:
"This book examines the legal and policy issues surrounding congressional investigations through a series of case studies, with an emphasis on the period from the second half of the twentieth century to date. It is organized by case study topic, with each chapter using one or two case studies to introduce and analyze a discrete area of legal authorities and policy issues. The central thesis and organizing principle of this book is to highlight the importance of effective congressional oversight and investigative activities in our American democratic system of government, as well as the constitutional and parliamentary bases for this legislative power. In addition to collecting legal authorities, the book includes relevant historical information and structural analysis of government functions, with an emphasis on separation of powers issues."
January 26, 2011
Scholarship - New Book
Peter D. Hardy, BNA - CRIMINAL TAX, MONEY LAUNDERING & BANK SECRECY ACT LITIGATION
Peter D. Hardy, BNA - CRIMINAL TAX, MONEY LAUNDERING & BANK SECRECY ACT LITIGATION- An analysis of the law and procedure relating to federal criminal cases handled by the IRS and DOJ, addressing the pragmatic and strategic challenges at every stage of litigation.
January 23, 2011
New Scholarship - Articles
Sara Kropf, Andrew George, William C. Cleveland & Julie Rubenstein, The 'Chief' Problem With Reciprocal Discovery Under Rule 16, The Champion, Sept/Oct. 2010
Charlotte Simon, Ryan D. McConnell, & Jay Martin, Plan Now or Pay Later: The Role of Compliance in Criminal Cases
January 20, 2011
Scholarship - Insider Trading
Oxford University Press recently published William K.S. Wang & Marc I. Steinberg “Insider Trading” (3d ed. 2010). An abstract can be found on SSRN here.
January 07, 2011
Bill Black Sounds The Toscin: Whatever Happened To Prosecuting Real Fraud?
Okay, let me take off my white collar defense attorney hat and put on my former prosecutor hat for a minute. Call it my citizenship hat. Don't most of us want real, unadulterated big-time crooks to be investigated and, where appropriate, charged? Where are all the investigations and prosecutions of the accounting control fraud that caused one of the greatest recessions in U.S. history? You know, the current recession.
Back in the late 1980s, when the S&L Crisis hit and the Dallas-based S&L Task Force was formed, federal law enforcement officials quickly realized that, in many instances, colossal fraud had been committed by the very players who controlled the S&Ls. The S&L fraud was overwhelmingly based on sham transactions and sham accounting for those transactions. Massive resources were committed to investigating and prosecuting the S&L fraud. It was understood that the crooked players had hijacked their S&Ls and defrauded depositors and/or the FSLIC. This rather elementary distinction between the savings and loan as an institution and the fraudsters who controlled it was grasped by AUSAs and effectively conveyed to juries across the land.
Nothing like this is happening today with respect to the federal government’s investigation of the housing bubble, liars’ loans, and Wall Street's subprime lending scandal. The overwhelming number of investigations and prosecutions seem to be focused on piker fraudsters—corrupt individual borrowers or mortgage brokers. These cases are easy pickings, but do not get to the massive fraud that clearly permeated the entire financial system.
Professor William Black, of Keating Five fame, has written a scathing piece all about this for the Huffington Post. Here it is. Among Black's revelations? "During the current crisis the OCC and the OTS - combined - made zero criminal referrals." Astounding. These two agencies accounted for thousands of criminal referrals per year during the S&L Task Force years. More fundamentally, Black argues that today's federal prosecutorial authorities do not comprehend that individuals in control of an institution can have an incentive to engage in short-term fraud that enriches them individually while destroying the long-term prospects of the institution and the larger economy.
Nobody should be charged with a white collar crime unless the crime is serious and the prosecution believes in good faith that a jury will find guilt beyond a reasonable doubt. But how about a substantive investigative effort, including commitment of appropriate resources? Why are such huge resources being spent on dubious endeavors like insider trading and FCPA enforcement, while elite financial control fraud goes largely unaddressed? Professor Black's piece is highly recommended reading.
December 08, 2010
Jonathan C. Cross, law.com, RICO's Post-'Morrison' Reach: Will Other Courts Adopt the 2nd Circuit's Approach?
Margaret Colgate Love, Wash Post, Time to pardon people as well as turkeys, Mr. President
October 28, 2010
Cooperation Costs - New Scholarship
Cooperation Costs by Miriam H. Baer (Brooklyn) - forthcoming article is Washington U. Law Review - here
This Article explores the costs and benefits of criminal cooperation, the widespread practice by which prosecutors offer criminal defendants reduced sentences in exchange for their assistance in apprehending other criminals. On one hand, cooperation increases the likelihood that criminals will be detected and prosecuted successfully. This is the "Detection Effect" of cooperation, and it has long been cited as the policy’s primary justification.
On the other hand, cooperation also reduces the expected sanction for offenders who believe they can cooperate if caught. This is the Sanction Effect of cooperation, and it may grow substantially if the government signs up too many cooperators, sentences them too generously, or causes them to become overly optimistic about their chances of receiving a cooperation agreement.
When the government allows the Sanction Effect to grow too large, it undermines one of its key tools for improving deterrence. Indeed, when the Sanction Effect outweighs the Detection Effect, cooperation reduces deterrence, and the government unwittingly encourages more crime. Since cooperation is itself administratively costly, the policy perversely causes society to pay for additional crime.
This Article reorients the cooperation debate around the fundamental question of whether cooperation deters wrongdoing. Drawing on economics and behavioral psychology, it provides a framework for better understanding how and when cooperation "works." Government actors who laud and rely on cooperation must address the fundamental question of whether it actually deters wrongdoing. To do otherwise, is to leave society vulnerable to cooperation’s greatest cost.
October 07, 2010
Harvard Law and Policy Review - Online Jrl - Miranda
With more and more white collar cases experiencing issues that normally would come up in street crime cases, it becomes important to see what is happening with topics such as Miranda. So check out the Harvard Law & Policy Review - Online Jrl article, Death by a Thousand Cuts: Miranda and the Supreme Court’s 2009-10 Term by Anthony J. Franze.
September 06, 2010
The Patient Protection and Affordable Care Act of 2010 Reduces the Criminal Mens Rea Requirement for Healthcare Fraud and Increases Penalties Under the Federal Sentencing Guidelines
GUEST BLOGGER-BENSON WEINTRAUB
There has been a significant uptick in the number of criminal statutes enacted by Congress that diminish or eliminate the mens rea or “guilty mind” requirement. The Patient Protection and Affordable Care Act of 2010 (“PPACA”), Pub. L. No. 111-148, Title VI, §§ 10606, 6402, 124 Stat. 1008 (Mar. 23, 2010), is the most recent and significant example of legislative relaxation of the standard of criminal culpability in federal courts and healthcare fraud cases in particular.
The PPACA added subsection (b) to the healthcare fraud statute, 18 U.S.C. §1347, stating: “With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section.” The same language was added to the Anti-Kickback Statute now codified at 42 U.S.C. 1320a-7b(h).
Section 1347 previously contained elements of the offense underscoring that a specific intent to knowingly or willfully violate the criminal healthcare fraud statute is necessary before imposing criminal liability:
To support a conviction for health care fraud under 18 U.S.C. § 1347, the government must prove that the defendant: (1) knowingly and willfully executed, or attempted to execute, a scheme or artifice; to (2) defraud a health care benefit program or to obtain by false or fraudulent pretenses any money or property under the custody or control of a health care benefit program; (3) in connection with the delivery of or payment for health care benefits, items, or services.
United States v. Abdallah, 629 F.Supp.2d 699, 720 (S.D.Tx. 2009); United States v. Choiniere, 517 F.3d 967 (7th Cir. 2008), cert. denied, 130 S.Ct. 193 (2009).
Moreover, the Patient Protection and Affordable Care Act of 2010 includes Congressional mandates increasing the Sentencing Guidelines in healthcare fraud cases. Under the PPACA, the Guidelines will be amended to provide a specific offense characteristic enhancing the otherwise applicable fraud Guideline by two to four additional levels according, again, to the amount of “loss.” Loss is an elusive term of art and the Guidelines authorize several methodologies for loss determination.
Yet, the Act materially impacts the common law of sentencing’s definitions of loss and instead directs that: “… the aggregate dollar amount of fraudulent bills submitted to the Government health care program [which] shall constitute prima facie evidence of the amount of the intended loss by the defendant. Pub. L. No. 111-148 at §10606(a)(2)(B).
In conclusion, one result of the PPACA engenders conflict between competing values of allocating criminal blameworthiness for culpable criminal conduct and reconciling social imperatives reflected by Congressional intent to deter burgeoning healthcare fraud. On balance, the legal issues that emerge from amendment of 18 U.S.C. §1347(b) and 42 U.S.C. §1320a-7b(h) will be the subject of significant litigation concerning both the guilt/innocence and penalty phases of healthcare fraud prosecutions.
September 05, 2010
New Books, Articles, and Other Materials
Sara Sun Beale, (forthcoming Ohio St J of Criminal Law), An Honest Services Debate
Alexander Bunin (Federal Public Defender Northern District of NY), Federal Convictions Reversed (a wonderful compilation of federal cases from the United States Courts of Appeal and the United States Supreme Court. The opinions contain at least one point favorable to criminal defendants), Download Federal Convictions Reversed 08.2010
August 14, 2010
New Books and Articles
Gary Collins & David Z. Seide, Warning the Witness: A Guide to Internal Investigations and the Attorney-Client Privilege, ABA here
Harvey Silverglate, Forbes, Trust Me: Justice Is My Last Name
June 19, 2010
Robert W. Tarun, ABA Book Publishing, The Foreign Corrupt Practices Act: A Practical Guide for Multinational General Counsel and White Collar Criminal Practitioners
Stuart Green,Thieving and Receiving: (Over)Criminalizing the Possession of Stolen Property - New Criminal Law Review, Forthcoming
Samuel W. Buell, Good Faith and Law Evasion - UCLA Law Review Forthcoming
Edited - Timothy Lynch, In the Name of Justice: Leading Experts Reexamine the Classic Article "The Aims of the Criminal Law" (CATO Institute)
Grant Thornton LLP, CorporateGovernor white paper, Fraud in the economic recovery
May 26, 2010
When the Law Is the Perp
Guest Blogger - Op Ed
With more than 20 years as an American criminal defense lawyer, I have witnessed the drafting and enforcement of innumerable federal criminal laws and regulations that patently fail to meet the basic requirements of fairness and justice. More and more, ordinary, hard-working people are being prosecuted for doing seemingly lawful, everyday things that run afoul of federal authorities or the tax collector. And then their nightmare begins.
Recently, I represented a physician who with other physicians and a medical supply company were involved in what can only be described as a profound personal and professional nightmare for them. Federal prosecutors decided to publicly investigate the clients for making treatment referrals that were not covered by Medicare or Medicaid. The patients in question, a number of whom were injured on the job and on worker’s compensation, came to the clients seeking to be made well again. When the clients made referrals for special treatment for patients with private insurance, sometimes the claims would be covered and honored by the insurance carrier, and sometimes they would not. It would depend on the carrier and the individual’s circumstances. To be sure, the treatment in question in this case has been covered by multiple insurance carriers whose names we all recognize.
Well, buried deep in the criminal code and the accompanying regulations, there are criminal penalties for making certain types of medical referrals when the patient’s medical care is covered by, in this case, (federally funded) Texas Medicaid or Medicare. In fact, a referral for more than $100 of the particular treatment in this case for a Medicaid/Medicare-covered patient can result in many years in prison – if dishonesty is involved. But today, the federal prosecution bar is set much lower than the bar for ordinary crimes such as theft. Even a mere paperwork mix-up can result in a major criminal investigation where federal regulations are concerned.
After three years of search warrants, subpoenas, interrogations, public embarrassment and scrutiny in the media, threats to their professional licenses, and significant legal and other expenses, it was determined that, as the clients knew all along, they had done nothing wrong. No indictments were issued. Their lives, the lives of their patients, and necessarily the lives and practices of other physicians and professionals seeking nothing more than to do right by their patients and clients, will never be the same. They must now live with the knowledge of what we as criminal defense attorneys have been watching unfold for decades – we are all potential victims of poorly drafted laws that can be improperly and selectively applied by prosecutors. The irony has not been lost on me. These doctor-clients were prosecuted not because they harmed anyone, but because they tried to help people.
To be sure, health care fraud is a pretty big business in America, with significant costs to all of us. But when the laws passed to deter and punish those who are actually committing those crimes are so poorly crafted that they lead to honorable, decent, everyday people becoming ensnared in our criminal justice system, there is no better evidence that we have a serious problem that must be addressed at the highest levels. We have reached a point where the federal criminal code rivals or exceeds the federal tax code in volume and complexity.
For nearly two years, the National Association of Criminal Defense Lawyers and the Heritage Foundation have studied this problem, and its causes, in great depth. Noting that the federal criminal code alone now has an estimated 4,450 federal crimes, with an estimated tens of thousands more criminal provisions buried in the federal regulatory code, our organizations set out to see how defective laws, specifically those lacking adequate intent requirements, actually get enacted. The conclusions of this study, and the common sense recommendations to stop and reverse this trend and return the federal criminal law to its rightful role in our free nation, are set forth in a recently released report, "Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law."
As a practicing member of the criminal defense bar, I know that a lawyer’s job is to protect everyone’s rights, not just those of the criminally accused. Congress makes that job harder when it fails to recognize that a criminal law that no one understands – particularly one that can be violated accidentally, with no intent to hurt anyone – disserves society. Congress is eroding a core element of the criminal law – the intent to do harm or unjustly enrich one’s self. I hope members of Congress and their staff will consider that, and our report, the next time someone says, “There oughta be a law.”
May 21, 2010
The White Collar Associate
The Ohio State Journal of Criminal Law is hosting an amici blog of views from the field. Online is a piece by Jocelyn Kelly (Jones Day, Cleveland) that is titled, "Advocacy Before the Courtroom: The Life of an Associate in a White Collar Criminal Defense Practice."
April 12, 2010
James K. Robinson, Jeannine F. D'Amico & Anne Marie Helm, Recent Developments in Requiring Expert Testimony in Criminal Securities Fraud Cases
Amanda P. Reeves & Maurice E. Stucke, Behavioral Antitrust