Saturday, 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

(esp)

August 14, 2010 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, June 19, 2010

New Scholarship

Wednesday, May 26, 2010

When the Law Is the Perp

Guest Blogger - Op Ed

By Cynthia Hujar Orr, President, National Association of Criminal Defense Lawyers (NACDL)

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.”

(cho)

May 26, 2010 in Defense Counsel, Prosecutions, Scholarship, Think Tank Reports | Permalink | Comments (1) | TrackBack (0)

Friday, 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."

(esp)

May 21, 2010 in Defense Counsel, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, April 12, 2010

New Scholarship

Thursday, March 25, 2010

Vanderbilt Law Review En Banc Roundtable on Skilling

Monday, March 22, 2010

The Extraterritoriality of RICO

It's an interesting question presented in a cert petition filed in the Supreme Court. It's especially problematic when Congress fails to address the extraterritorial reach of a statute. Some courts look to international principles and use an "effects" test.  But in this day and age, what doesn't affect the US?  I have written articles on the extraterritorial prosecution of white collar crimes (here), computer crimes (here), and business crimes ("Defensive Territoriality": A New Paradigm for the Prosecution of Extraterritorial Business Crimes, 31 Georgia Journal International & Comparative Law 1 (2003)),

See British American Tobacco (Investments) Limited v. U.S. - Download BATCo Cert Petition and Appendix

(esp) 

March 22, 2010 in RICO, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 15, 2010

"The Twilight of the Pardon Power"

The title of this post is the title of this article from former US Pardon Attorney Margaret Colgate Love now available via SSRN.  Here is the abstract:

Throughout our nation’s history, the president’s pardon power has been used with generosity and regularity, to correct systemic injustices and to advance the executive’s policy goals. Since 1980, however, presidential pardoning has fallen on hard times, its benign purposes frustrated by politicians’ fear of making a mistake, and subverted by unfairness in the way pardons are granted.  The diminished role of clemency is unfortunate, since federal law makes almost no provision for shortening a prison term and none at all for mitigating the collateral consequences of conviction.  It would be bad enough in these circumstances if presidents had made a conscious choice not to pardon at all, or to make only token use of their constitutional power. But what makes the situation intolerable is that, as the official route to clemency has all but closed, the back-door route has opened wide. In the two administrations that preceded President Obama’s, petitioners with personal or political connections in the White House bypassed the pardon bureaucracy in the Department of Justice, disregarded its regulations, and obtained clemency by means (and sometimes on grounds) not available to the less privileged. Much responsibility for the desuetude and disrepute into which a once-proud and useful institution of government has fallen must be laid at the door of the Justice Department, which during the past two administrations failed in its responsibilities as steward of the power, exposing the president to embarrassment and the power to abuse.  To date, President Obama has taken no steps to reform and reinvigorate a pardon process that has, in Justice Anthony Kennedy’s words, been “drained of its moral force.”

Who hijacked the president’s pardon power?  Is it worth rescuing, or should it be left to die in peace? To find the answers, this article first looks at pardoning practices in the 19th and early 20th centuries, a time when the pardon power played an important operational role in the federal justice system. It describes how pardon evolved into parole, and after 1930 came to be used primarily to restore rights of citizenship.  It then examines the reasons for pardon’s decline in the 1980s and its collapse in the Clinton Administration.  Finally, it argues that President Obama should want to revive the power, and suggests how he might do it.

The link to this paper is here

March 15, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, March 14, 2010

The Utilitarian vs Kantian Methods of White Collar Crime Punishment

Guest Blogger - Brooklyn White

It’s becoming more rampant now than it ever was, largely because of the advances being made in technology and communications. White collar crime is now the main tool for those who want take the easy road to riches and wealth – yes, there is hard work involved, but it is all directed to the immoral and unethical practices of fraud, forgery, embezzlement and trickery. We’re all aware that white collar criminals are punished differently from those who commit blue collar crimes like murder, rape, arson, burglary and assault, and there is considerable debate on why this discrimination exists. With federal sentencing guidelines for these crimes being advisory rather than mandatory, it is up to the presiding judge to use their discretion in deciding how to punish the criminal.

In general, white collar crimes are punished by a large monetary fine and/or some time in prison. Some criminals may even be let off after being set to perform social service while others may be confined to their home as punishment. No matter how you look at it, white collar crime seems to be higher up on the ladder than the blue collar variety. The criminals are mostly rich enough to be able to fork out the fines (without it affecting their financial standing significantly) and/or bribe people to get their sentences reduced.

There are two schools of thought on imposing punishment for white collar crime:

The Kantian Method: takes a stand that white collar crime is as bad as the blue collar kind and so, must be punished on similar levels. According to the Kantian perspective, white collar criminals must be punished to the full letter of the law. By Kant’s argument, the people who perpetrate the crime are acting rationally, and this means that they should suffer the consequences of their actions.

The Utilitarian Method: follows the idea that if the crime is for the "greater good", then it is not punishable or punishable by lenient methods. Those who believe in this perspective tend to take the view that it is acceptable to accept plea bargains if some criminals turn state’s witnesses and turn their partners in crime in. Here, punishment is doled out according to the final utility value created.

Both perspectives have their pros and cons – with the Kantian method, we can justify that every white collar criminal knows what they are doing and are completely rational in their thoughts and actions. Also, they fail to consider the effect that their actions have on the people they defraud or cheat – lives are ruined and some victims are even driven to commit suicide. Also, if burglary is a blue collar felony, then why are large scale frauds and embezzlements treated under the more fanciful umbrella of white collar crime?

The Utilitarian method begs the question – who decides what the greater good is? What’s good for you may not be as good for me, so under what conditions is the overall utility value of the crime judged?

Punishment in white collar crimes must be severe enough to prevent the perpetrator from repeating their ways and also a definite deterrent to others who want to tread the same path. And with most white collar criminals being rich with deep pockets, the only thing they’re probably afraid of is time in a maximum security prison.

(bw) Forensic Science Technician Schools

March 14, 2010 in Scholarship, Sentencing | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 17, 2010

Scholarship - Sentencing

A  Note by Duke law student Derick R. Vollrath presents an important view on white collar sentencing. The Note titled, Losing the Loss Calculation: Toward a More Just Sentencing Regime in White-Collar Criminal Cases, states in the abstract that "[m]oreover, the loss calculation fails to adequately approximate a defendant’s culpability, dwarfing traditionally relevant considerations such as the manner in which the defendant committed the crime and the defendant’s motive for doing so."

(esp)

February 17, 2010 in Scholarship, Sentencing | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 16, 2010

University of Texas Symposium - White Collar Crime

The University of Texas, The Review of Litigation's Symposium this year was devoted to white collar crime.  Titled,  White Collar Crime and the Changing Corporate Environment, Chief Symposium Editor Heather Mahurin and staff did an incredible job of bringing together top practitioners and a judge to examine the evolution of white collar crime and factors affecting this area. The event was sponsored by the law firm of Vinson & Elkins.  I had the pleasure of being the first speaker and providing an evolution of white collar crime.

The first panel of Tim McCormick (Thompson & Knight) and Carl Wessel (DLA Piper) looked at internal investigations and when one should seek outside counsel. It was not surprising to hear them mention the recent FCPA investigations, noting that the pharmaceutical area seems to also be part of the recent DOJ focus. Tim McCormick also talked about the concerns that get raised with Upjohn warnings.

A second panel looked at white collar crime prosecutions and it was appreciated that the Hon. Jennifer Coffman, Chief Judge of the Eastern District - Kentucky offered a judicial perspective.  Along with Kent Schaffer (Bires and Schaffer), there was a good bit provided on how emails were affecting the landscape of white collar cases. Mr. Shaffer noted how "people put things in emails that are shocking."  Telling "the story" to the jury is important, as is humanizing one's client. The participants on this panel also provided wonderful information on dealing with experts in white collar cases. The expert needs to be "not too academic" and "clear."

A final panel was focusing on  parallel proceedings and included top individuals like Solomon Wisenberg (Barnes & Thornburg).   It will be good to see the published works from this important symposium.  

(esp)

February 16, 2010 in Investigations, Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, January 2, 2010

Recent Scholarship

Thursday, December 24, 2009

Recent Articles

Tuesday, December 15, 2009

Jenia Turner - New Book on Plea Bargaining

Jenia Turner, Southern Methodist University Dedman Law School, has a new book titled, Plea Bargaining Across the Borders.  It provides a "comparative, transnational, and global analysis" on plea bargaining.

(esp)

December 15, 2009 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, December 13, 2009

SEALS - CALL FOR PAPERS

SEALS Call for Papers

Law Professors -  The Southeastern Association of Law Schools (SEALS) has a call for papers -

CALL FOR PAPERS

A roundtable discussion will be held at SEALS 2010 on "Re-evaluating Corporate Criminal Liability."

Among the questions that deserve focus in this area are the following:

  • Should we discard corporate criminal liability?
  • Should we expand corporate criminal liability?
  • Should we modify the ALI standard for corporate criminal liability?
  • Can tort actions properly accommodate corporate misconduct?
  • Is corporate regulation sufficient to handle corporate misconduct?

Participants will prepare a paper of approximately ten pages related to this topic, and the papers will be distributed prior to SEALS 2010. At SEALS, each of the participants will be given a few minutes to summarize their paper, which will be followed by a moderated discussion on the topic.

Two of the participants in this roundtable will be selected from a Call for Papers that will be reviewed by Professor Joan Heminway (Tennessee), Professor Andrew Taslitz (Howard), and Professor Ellen S. Podgor (Stetson).

Papers must be received by January 1st to be considered for this Roundtable. You are welcome to submit an abstract by this deadline, but papers are more likely to be given stronger consideration. Submit all papers to Ellen S. Podgor at epodgor@law.stetson.edu

(esp)

December 13, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, October 24, 2009

The Recession Discussion - University of Chicago Legal Forum

The University of Chicago's Legal Forum - 2009 Symposium  on Crime, Criminal Law and the Recession -began with opening remarks from Anton Valukas(Jenner & Block), who many remember as the former United States Attorney from the Northern District of Illinois in the days of Greylord. Now appointed the Examiner in Lehman Brothers Holdings bankruptcy, he was speaking as the opening  keynote on recession and crime. He reminded us of the history of downturns in the economy and how individuals "get caught" when the economy goes soar. He spoke also about the role of lawyers, accountants, and other gatekeepers.

The first panel was Brian Walsh from the Heritage Foundation and myself.  Brian Walsh, in a well received talk, stressed how the tools to fight the criminality have been there and adding more to the federal criminal code is not the answer. My talk looked at accountability (the lack of it at the time), who people are blaming (not necessarily accurately), and what transparency will provide us with in the future.  A concern, which will be a focus of my paper, is with the diminishing media and its potential impact on investigative reporting that brings to light criminality, oftentimes government corruption.

The second day proves to be a promising discussion with Stuart Green (Rutgers-Newark), John Pfaff (Fordham), Carol Streiker (Harvard), and Jordan Streiker (Texas) talking about the economics of punishment. Roger Fairfax (George Washington), Alex Kreit (Thomas Jefferson),  Justin McCrary (Boalt), and Robert Mikos (Vanderbilt) will be speaking about state and local budgets - changes in police and prosecution.  The final panel is Richard McAdams (Chicago) and Jonathan Simon(Boalt) speaking about social inequality and crime.

(esp)(written in Chicago) 

October 24, 2009 in Conferences, Media, Scholarship | Permalink | Comments (1) | TrackBack (0)

Sunday, September 27, 2009

Simpson - Corporate Criminal Intent

William A. Simpson, Corporate Criminal Intent - SSRN Abstract -

This paper is about the corporation as criminal defendant. In common-law legal systems a fully constituted criminal offence normally requires proof of both the proscribed action (actus reus) and criminal intent (mens rea). However, it appears highly artificial to describe corporate mens rea with ordinary language terms such as “knowledge,” “belief,” “desire,” or “intention.” After a review of common-law and philosophical approaches to imputing criminal intent to the corporate defendant, this paper proposes a behavioral approach to attributing mens rea to corporations and concludes with a review of the (UK) Corporate Manslaughter and Homicide Act 2007 which, it is submitted, adopts just such an approach.

(esp)

September 27, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Schipani - Attorney-Client Privilege in Corporate Criminal Investigations

Cindy A. Schipani, The Future of the Attorney-Client Privilege in Corporate Criminal Investigations - SSRN Abstract -

This manuscript discusses how the Department of Justice (DOJ) has viewed waiver of the attorney-client privilege as an important factor evidencing cooperation when determining whether to enter non-prosecution or deferred prosecution agreements with firms allegedly involved in criminal activities. It further discusses recent changes to the DOJ's guidelines, purporting to take waiver out of the equation in deciding whether to prosecute. Questions remain as to whether the corporate attorney-client privilege is a relic of the past or whether the new guidelines, issued in August, 2008, have indeed restored the privilege to firms under federal investigation.

(esp)

September 27, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 14, 2009

New Scholarship - Should the SEC Spin Off the Enforcment Division

Professor Peter Henning (Wayne State, visiting at Indiana U- Indianapolis) posted a new piece on SSRN titled, Should the SEC Spin Off the Enforcement Division -

The abstract describes it as:

The current environment is highly supportive of increased government regulation, particularly in the financial field. One of the beneficiaries of this push for greater oversight of the markets appears to be the Securities & Exchange Commission, despite some recent high profile enforcement failures, most particularly the massive Ponzi scheme undertaken by Bernie Madoff. In this essay, I raise the question whether the SEC should retain its enforcement authority over fraud cases, or whether it would be better served if that function were shifted to the Department of Justice. The SEC’s recent push to take on a more prosecutorial air gives the clear impression that an adversarial approach to enforcement of the securities laws is in order. However, the Commission must continue to solicit the views of Wall Street to fulfill its regulatory function, much like Madoff was included in the SEC’s deliberations on rules related to the stock market. At some point in the future, the push for greater regulation is likely to pass from the scene as the pendulum swings back toward a less intrusive approach to oversight. Whether the Commission can resist renewed entreaties to go easier on enforcing the law to free the capital markets from strict regulation is an open question. To allow the SEC to regulate Wall Street properly, splitting off at least a portion of the enforcement function to an agency with expertise in prosecutions - the United States Department of Justice - is at least worthy of consideration as the government looks to increase regulation.

(esp)

September 14, 2009 in Scholarship, SEC | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 2, 2009

Commentary on Pfizer Settlement - "Educating Compliance"

Associate AG Perrelli states at the Pfizer Settlement Press Conference:

"today’s settlement reflects the Department of Justice working hard to protect American taxpayer dollars. This case is a great example of the Department’s commitment to fiscal accountability, combating fraud, and returning much-needed dollars back to the U.S. Treasury and state treasuries."

It is good to know that in these days of fiscal downturn, money is being obtained from a company that engaged in conduct disapproved by DOJ. (see here for background)  But wouldn't it have been better if the wrongdoing had not occurred in the first place.  I have to wonder what the government is doing pro-actively as opposed to re-actively to assure corporate compliance. Perhaps more dollars need to to be spent on "Educating Compliance"  My forthcoming article, "Educating Compliance" to be published in Georgetown's American Criminal Law Review can be found here.

(esp)

September 2, 2009 in Deferred Prosecution Agreements, Fraud, Scholarship | Permalink | Comments (0) | TrackBack (0)