Friday, January 7, 2011
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.
Wednesday, December 8, 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
Thursday, October 28, 2010
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.
Thursday, October 7, 2010
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.
Monday, September 6, 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.
Sunday, September 5, 2010
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
Saturday, August 14, 2010
Saturday, 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
Wednesday, May 26, 2010
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.”
Friday, May 21, 2010
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."
Monday, 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
Thursday, March 25, 2010
The Vanderbilt Law Review En Banc has published an online Roundtable on Skilling v. United States. The Roundtable includes:
Nancy King, Introduction: Skilling v. United States
William H. Farmer, Presumed Prejudiced, but Fair?
Abbe David Lowell, Christopher D. Man & Paul M. Thompson, "Not Every Wrong is a Crime": The Legal and Practical Problems with the Federal "Honest-Services" Statute
Ellen S. Podgor, Intangible Rights-A Deja Vu
Monday, March 22, 2010
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
Monday, March 15, 2010
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.
Sunday, March 14, 2010
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.
Wednesday, February 17, 2010
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."
Tuesday, February 16, 2010
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.
Saturday, January 2, 2010
Kevin E. Davis, Does the Globalization of Anti-Corruption Law Help Developing Countries? (SSRN - NYU Law and Economics Research Paper No. 09-52)
Thursday, December 24, 2009
Albert Alschuler, Two Ways to Think About the Punishment of Corporations - here
Larry Ribstein, How Movies Created the Financial Crisis
Tuesday, December 15, 2009