March 29, 2013
White Collar Criminal Law is Heating Up?
Two news items today highlight that the white collar area continues to be a key component of the criminal justice system. In Atlanta we see a Fulton County Grand Jury issuing indictments for claims that an alleged test cheating scandal involves criminal activity. See Michael Winerip, NYTimes, Former Atlanta Schools Chief Is Charged in Testing Scandal.
And the headline of the Tampa Bay Times is FBI Raid Signals End of Universal - an article describing the FBI raid of Universal Health Care.
June 22, 2011
Second Chance for Bad Guess?
The appeal of former New York State Senate majority leader Joseph L. Bruno, argued last week before the United States Court of Appeals for the Second Circuit, has raised some interesting double jeopardy issues which may or may not be addressed by the court. Bruno was convicted of honest services fraud under 18 U.S.C. 1346 based on an undisclosed self-dealing theory. After Bruno’s conviction and while his case was on appeal, the Supreme Court in United States v. Skilling rejected the undisclosed self-dealing theory under Section 1346 and limited the statute’s application to cases involving bribery or kickbacks (thereby making the statute virtually superfluous since such conduct is usually covered by other statutes). On appeal in Bruno, the government, conceding reversal was required because the court’s instructions to the jury were flawed under Skilling, nonetheless argued that it should be given a second shot at Bruno, this time with a superseding indictment more specifically alleging bribery.
Generally, an appeal of a criminal trial marred by instructions proper under prevailing law at the time given (as they apparently were here) but later found defective by a higher court in that or another case results in a retrial with proper instructions. One underlying justification is that the prosecution cannot be expected to anticipate changes in the law and should be able to rely on current law. This case is somewhat different, however. Here, the government could not, or certainly should not, have failed to realize that the theory it chose to pursue was constitutionally questionable on vagueness and overbreadth grounds. The theory of prosecution had been questioned by courts, scholars, and lawyers and was about to be considered by the Supreme Court pursuant to a grant of certiorari. The government nonetheless chose to go forward on this theory, most likely because it was easier to prove factually, rather than a bribery charge that was less assailable legally but probably more difficult to prove. This case thus appears to be a classic example of a prosecutor deciding to seek the instant gratification of a conviction at trial and not to worry about the appeal until later.
Last week, in Davis v. United States, the Supreme Court held in a search and seizure case that evidence should not be excluded if the evidence was seized pursuant to police procedures compliant with then-binding legal precedent even though that precedent was subsequently overruled. Following that line of reasoning, a court may well rule that there should not be a double jeopardy bar to retrial if the prosecutor’s conduct was compliant with binding legal precedent that was subsequently overruled. A different approach seems appropriate, however, when the law the prosecutor relied on was, as here, up in the air. Indeed, Justice Sotomayor, concurring in Davis, made such a distinction, stating that she would have ruled differently if the law the police relied on was unsettled. It will be interesting to see how the Second Circuit, if it reaches this issue, will decide it.
January 17, 2011
Speech and Debate Clause Hampers DOJ
Boo hoo. The Washington Post has a good article here, by Jerry Markon and R. Jeffrey Smith, about the Constitution's Speech and Debate Clause, and the various ways in which it is hampering DOJ corruption probes. Unfortunately, the article implies that certain high-profile cases were dropped primarily or solely because of Speech and Debate. This unfairly maligns the named lawmakers and/or former lawmakers in question, and makes it seem that they were let off on a technicality. That damned technical Constitution--always getting in DOJ's way. In fact, the very idea that DOJ wiretapping of House members was, until recently, considered a legitimate and entirely appropriate law enforcement tool is a testament to how out of whack the balance of powers between the Legislative and Executive Branches has become. Congress finally woke up and smelled the coffee and, with an assist from the DC Circuit in U.S. v. Rayburn House Office Building, is resisting Exective Branch encroachment on its institutional powers.
September 30, 2010
NACDL's 6th Annual Defending the White Collar Case Seminar – “iDefense: Strategic & Ethical Issues in the Digital Age,” Thursday, September 30, 2010
Moderator: Gerald B. Lefcourt
The panel was moderated by Gerald Lefcourt and included defense lawyers Elkan Abromowitz, Mark Hellerer, Daniel Gelb, and Eric Mazur, a forensic expert from Navigant Consulting.
Gerry introduced the panel, speaking about the sea change in the law and life arising out of the explosion of technological changes such as smart phones that have us carrying our personal information about all our contacts, our emails, a GPS device that allow others to know where we are at all times, our photos, and a history of our web browsing.
Elkan Abromowitz addressed three issues. First, Elkan spoke about the Fourth Amendment’s prohibition on unreasonable searches of papers and effects in the modern age when people have all types of private information on their computers, desktops or blackberries. The Ninth Circuit has held that law enforcement can look at information on a laptop at a border search – for any person entering or leaving the country–even in the absence of reasonable suspicion. (By contrast, reasonable suspicion is still required for a personal search, even though most of us carry far more information on our laptops than on our physical bodies!).
Second, Elkan spoke about the Balco case, in which the Ninth Circuit restricted the ability of law enforcement to obtain subpoenas that would allow the government to obtain information on computers that go beyond what was actually sought. En banc, the Ninth Circuit removed certain guidelines set forth in the original opinion, leaving some uncertainty about the proper breadth of a reasonable search in the context of a subpoena for computer records.
Third, Elkan spoke about the Quon case in the Supreme Court, which held that an employer can review emails sent on work computers and mobile devices issued by the employer–regardless of whether the employee has a reasonable expectation of privacy–as long as there is a non-investigatory workplace reason to do so.
Eric Mazur spoke about the exponential increase in the amount of data available and the ability of forensic experts to retrieve it.
Mark Hellerer also spoke about the increase in data and its impact on electronic discovery. In civil cases, the Sedona Conference has met annually to try to develop guidelines and best practices. In criminal cases, companies are faced with the daunting task of trying to respond to extremely broad subpoenas. Mark noted that there are certain limits on the proper scope of a grand jury’s investigative powers, and courts have at times been willing to apply Rule 17(c)’s limitation to quash–or more likely modify–unreasonably overbroad and unduly burdensome subpoenas.
Daniel Gelb talked about the statutory and constitutional limits on the reach of law enforcement with respect to electronically stored information in GPS devices, social media websites, et cetera. He noted that there is no reasonable expectation of privacy in comments posted on social media sites such as Facebook, even if directed only to a limited group of individuals such as “friends.” In addition, the government can often circumvent the need to obtain a search warrant upon a showing of probable cause by issuing a subpoena to cell phone providers who now collect GPS tracking devices.
Finally, the panelists discussed a hypothetical (based on an actual case in Washington, DC) involving a law firm partner who was prosecuted for obstruction of justice, along with his registered domestic partner and roommate, in connection with a homicide. Although the defendants were acquitted, the wife of the deceased brought a wrongful death lawsuit and has sought emails sent and received by the law firm partner on the firm’s computers.
October 01, 2009
NACDL's 5th Annual Defending the White Collar Case Seminar - "Cyberspace - The Black Hole Where Ethics, Strategy, and Technology Collide," Thursday, October 1, 2009
Guest Blogger: Cynthia Hujar Orr, President, National Association of Criminal Defense Lawyers
Panel Moderator: Gerald GoldsteinPanelists: AUSA Joey Blanch, Blair Brown, Marcia Hofmann, Alexander Southwell
Gerald Goldstein grabbed the attention of the NACDL White Collar seminar telling us that each time we hit the send button on the internet a new government exhibit is created.
Blair Brown spoke about the Balco Investigation, Comprehensive Drug Testing, case and its ground breaking opinions. They answered many previously unanswered questions regarding the operation of the plain view doctrine and appropriate limits and procedures for the execution for computer search warrants. The Baseball Players Association conducted anonymous testing in order to determine whether comprehensive drug testing should be imposed on the sport. However, a search warrant issued for drug test results for specific athletes and promised to screen and limit the search of the computers to records of specific athletes through off site screening procedures. The government rejected assistance on site to produce just the records that the government sought. In fact, the case agent viewed all of the records under the theory that they were in "plain view." Three separate district judges found the government acted in an outrageous fashion, executing general warrants. Blair explained the appropriate limits and procedures that the Court held should have been followed instead.
Alexander Southwell explained the government's application of the Computer Fraud Abuse Act to the public's use of social networks in the context of the Laurie Drew case. Drew had created a fake "my space" account culminating in the suicide of a young woman distressed by the postings from the fake site. The government pressed charges for formation of a fake account, criminalizing the violation of the terms and conditions of a social network. Drew was convicted and the court entered a judgment of acquittal from which the government has taken an appeal. Therefore, the story has not been written on the sweep of the Computer Fraud Abuse Act (CFAA), 18 U.S.C. Section 1030. He explained the difficulty of the criminal law to keep up with technology and the importance for criminal defense lawyers to push back when the government attempts to apply the criminal law to current social practices.
Marcia Hofmann working for the Electronic Frontier Foundation, a techie ACLU. She encouraged defense lawyers to reach out to EFF when confronting technical issues in your criminal cases. She discussed the evolution of the CFAA covering the cases that were the vehicles that expanded its use. Her discussion opened eyes about conduct that was not traditionally addressed by the criminal law.
AUSA Joey Blanch discussed child pornography in the age of the internet. Cases are exploding and proliferating. Every section of society in every walk of life ends up with people committing these crimes because people think they are anonymous on line. Blanch told the white collar lawyers that they will have a client with a child pornography case and explained how it could arise. Importantly, she discussed the new child pornography offenses effective in October of 2009. She also discussed the circuit split on the Mona Lisa defense. One of the new crimes is the Child Pornography Enterprise offense which creates a 20 year mandatory minimum for participation in child pornography internet groups. That was just the tip of the iceberg.
Using a hypothetical containing common real life circumstances the group guided the audience through what counsel should do in tough circumstances.
May 18, 2009
Key Evidence Tossed in Wecht Case - Should it be Called Dead?
The case against Dr. Cyril Wecht, former coroner in Allegheny County, Pa. and former President of the American Academy of Forensic Science, a started with many counts (see here) and eventually was reduced to 14. At the initial trial that lasted 7 weeks, the government presented 44 witnesses and the defense rested without presenting anything, which is not surprising considering the nature of this case. It resulted in a hung jury. But the government decided to proceed further.
The government's ability to now proceed on the remaining counts is in serious jeopardy as the court tossed out evidence obtained from a search warrant. The government is now faced with deciding whether to proceed to a higher court appealing the court's ruling on the search warrant. Is this case really worth any more tax dollars?
May 11, 2009
Wellcare - Deferred Prosecution Agreement
Back in October 2007, WellCare Health Plans, Inc. in Tampa was the subject of a search by government agents. (see here and here) Last week, the company entered into a deferred prosecution agreement. (see Bloomberg here). A DOJ Press Release outlines the obligations of WellCare under this agreement. It includes "consent to the civil forfeiture of $40,000,000," "pay an additional $40,000,000 in restitution to the Florida Medicaid and healthy Kids programs," "retain and pay an independent Monitor," and as usual for deferred prosecution agreements, cooperation in investigations, in this case investigations of "Wellcare executives and employees responsible for the alleged fraudulent conduct at issue."
But like so many of the recent deferred prosecution agreements, the DOJ plays a powerful position in the company's future. In this case the U.S. Attorney's Office gets to select the "independent Monitor." And if the "Monitor resigns or is unable to serve the balance of his or her term, a successor Monitor shall be selected by the USAO. . ." Additionally, a breach of the agreement rests in the sole discretion of the prosecution, although they do give the company time to respond to claims of a breach. And "[r]egardless of whether the USAO pursues criminal charges against WellCare upon any breach of the DPA, any monies paid to the USAO at any time by WellCare will not be returned to WellCare and WellCare will make no claim upon such monies." So much for contract law. (see here)
Deferred Prosecution Agreement here.
February 04, 2009
Ninth Circuit Limits Corporate Executives From Challenging a Search
In a recent decision of the Ninth Circuit, U.S. v. SDI Future Health Inc. the court decided "whether corporate executives may challenge a police search of company premises not reserved for the executives' exclusive use." As stated by the court, "While '[i]t has long been settled that one has standing to object to a search of his office, as well as of his home,' Mancusi v. DeForte, 392 U.S. 364, 369 (1968), this case presents the novel issue of the extent to which a business employee may have standing to challenge a search of business premises generally." The court stated:
"we conclude that, except in the case of a small, family-run business over which an individual exercises daily management and control, an individual challenging a search of workplace areas beyond his own internal office must generally show some personal connection to the places searched and the materials seized. To adapt Anderson, although all the circumstances remain relevant, we will specifically determine the strength of such personal connection with reference to the following factors: (1) whether the item seized is personal property or otherwise kept in a private place separate from other work-related material; (2) whether the defendant had custody or immediate control of the item when officers seized it; and (3) whether the defendant took precautions on his own behalf to secure the place searched or things seized from any interference without his authorization. Absent such a personal connection or exclusive use, a defendant cannot establish standing for Fourth Amendment purposes to challenge the search of a workplace beyond his internal office."
In applying the standard the court stressed "that particularity and overbreadth remain two distinct parts of the evaluation of a warrant for Fourth Amendment purposes." The court held in this particular case "that five of the twenty-five categories of materials listed in the search warrant were unconstitutionally overbroad and that no exception rescues them from suppression."