Tuesday, September 13, 2022

Cryptocurrency and Insider Trading

The DOJ issued a press release  -Tippee Pleads Guilty In First Ever Cryptocurrency Insider Trading Case

This is a particularly interesting case because it lets everyone know that insider trading prosecutions can be brought when the alleged scheme involves insider trading in cryptocurrency assets. 

(esp)

 

September 13, 2022 in Prosecutions | Permalink | Comments (0)

Monday, September 5, 2022

Appointment of a Special Master - Court Order in Trump Case

When the affidavit on the warrant was released, albeit redacted, it was clear that this was a situation where the government asked for materials for the National Archives and Records Administration (NARA) but received only some of the materials, and that a search was conducted to get the rest of the materials, although it remains to be seen whether they obtained everything initially requested. The Search Warrant referenced the Obstruction of Justice statute 18 U.S.C. 1519. (see here).  As a backdrop to this search was the fact that there exists a Presidental Records Act that controls Presidential records. (44 U.S.C. 2201 et. seq.) So irrespective of the former President's claim that he declassified these documents (a mindboggling admission), they were still subject to be returned to the National Archives. (see here).

Now we see a  court discussion as to whether these documents that he allegedly declassified are subject to executive privilege. Despite President Trump no longer being the executive, the court leaves that issue open for further legal argument (see here). 

It is one thing to find that alleged attorney-client privilege material may be interspersed with folders marked classified information and/or personal clothing, and appoint a special master to keep the attorney-client material from anyone's view. Appointing a special master for potential attorney-client privileged material, whether it be the lawyer or the client is a better way to review attorney-client privileged material than a government filter or taint team. (see here)

It is hard to imagine that someone would have classified material, and would nevertheless allow that material to be left in an unsecured location amongst other material.  We are not dealing with a teenager needing to clean their room - but rather the former top head of this country possessing what might be highly sensitive information. And it is good to see the judge allowing the classification review and/or intelligence assessment by the Office of the Director of National Intelligence to continue, not impeded by her restraint of the government using other materials. 

But the executive privilege claim discussed by the court is confusing me. On one hand the court is saying there might be  privileged material and on the other hand former President Trump has stated that he declassified the material. Clearly, these are two different concepts, but is it privileged material or has it been declassified and should it be open to the public.  If it is privileged material that was not turned over when the first request was made, then the Trump team should have been in court arguing to retain information as privileged material well before the search.  If it was all declassified than why was it not turned over to the Archives upon the government's request. Will the former president really argue that all this alleged declassified material is now material subject to an executive privilege? And irrespective of whether it was declassified or it is executive privileged material, why was it not turned over under NARA.

(esp)

 

September 5, 2022 in Investigations, Judicial Opinions, News, Obstruction | Permalink | Comments (0)

Friday, August 26, 2022

Obstruction of Justice - A Topic in the Release of the Search Warrant Affidavit

Not surprising, the release of the Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize items from Mar-a-Lago is heavily redacted.  This is necessary, as it is clear that individuals and information need protection. Equally important is that we are dealing with classified material and whatever that information may be, it needs protection.  It is frightening to think that some of this nation's security secrets may have been compromised.

But what is also noteworthy here, is that there is concern about a possible obstruction of justice.   

  1. We asked you for it. It looks like the National Archives and Records Administration (NARA) has been trying to get this material for some time - " NARA had ongoing communications with the representatives of former President Trump throughout 2021." (p. 8) 
  2. You gave us some of it. It looks like the Former President gave up some information. (15 boxes were received on Jan. 18, 2022) (p. 1)
  3. You didn't give us all of it. It looks like the Former President failed to provide all the information. And here we are 6 months later and the rest of the materials have not been provided.  

And so the question is whether there has been an obstruction of justice. As stated in the Affidavit - "Further, there is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the PREMISES.  There is also probable cause to believe that evidence of obstruction will be found at the PREMISES." (p. 2)

Former President Trump is in a catch-22 position. He is saying he declassified the info, mind boggling as that admission may be, and thus admitting that information was still there. But if there are documents still there than you have a violation of the Presidential Records Act.  And on the other hand, if there is information there and the government was not given that information under a lawful request, you have a possible obstruction of justice. (18 U.S.C. 1519). 

This is not a case of fish being thrown overboard when a fisherman was instructed to bring it back to shore (Reversed in Yates v. United States).  This is a case of sensitive government documents.  

This is also not a case of dealing with a politician who did not want to disclose personal tax returns.  This is a case of determining whether presidential documents that require preservation under law were not properly preserved and whether there was an obstruction in failing to give these documents when requested by the government.  What remains unanswered is what Attorney General Merrick Garland does with all of this. 

(esp)  

August 26, 2022 in Investigations, Obstruction, Prosecutions | Permalink | Comments (0)

Wednesday, July 20, 2022

Health Care Fraud Charged in Coordinated Government Enforcement Action

A DOJ press release today noted that they brought "criminal charges against 36 defendants in 13 federal districts across the United States for more than $1.2 billion in alleged fraudulent telemedicine, cardiovascular and cancer genetic testing, and durable medical equipment (DME) schemes." (see here).  The Press Release notes that:

The coordinated federal investigations announced today primarily targeted alleged schemes involving the payment of illegal kickbacks and bribes by laboratory owners and operators in exchange for the referral of patients by medical professionals working with fraudulent telemedicine and digital medical technology companies. Telemedicine schemes account for more than $1 billion of the total alleged intended losses associated with today’s enforcement action. These charges include some of the first prosecutions in the nation related to fraudulent cardiovascular genetic testing, a burgeoning scheme. As alleged in court documents, medical professionals made referrals for expensive and medically unnecessary cardiovascular and cancer genetic tests, as well as durable medical equipment.

The breadth in location of these cases is noted in the many US Attorneys offices that will be handling these cases. ("District of New Jersey, Eastern District of Louisiana, Eastern District of Texas, Middle District of Florida, Middle District of Tennessee, Northern District of Georgia, Northern District of Mississippi, and Western District of North Carolina").

(esp)

July 20, 2022 in Prosecutions | Permalink | Comments (0)

Wednesday, July 6, 2022

Fourth Circuit Affirms Andrew Powers Conviction: General Allegation of Venue Sufficient

The Fourth Circuit has affirmed the wire fraud conviction of Communique founder Andrew Powers. The opinion is here. Powers argued that the Indictment failed to properly allege venue, because it did not specify where each alleged fraudulent wire and mailing were sent from or received. The Fourth Circuit held, unsurprisingly, that the general allegation of venue lying in the EDVA was all that was required to defeat a motion to dismiss for failure to allege venue. No more detail was required in the charging instrument.

(wisenberg)

July 6, 2022 in Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Monday, July 4, 2022

DOJ Strategic Plan

Every good organization should have a strategic plan, so it is wonderful to see DOJ taking this step (see here).  The plan not only provides priorities, but also provides a Mission with Values (see here).  One certainly can't fault these four key values - "Independence and Impartiality, Honesty and Integrity, Respect, and Excellence."  Most important is the first one - independence and impartiality - something that was compromised during the last administration. 

The key goals of the strategic plan are equally admirable - "Uphold the Rule of Law, Keep our Country Safe, Protect Civil Rights, Ensure Economic Opportunity and Fairness for All, and Administer Just Court and Correctional Systems."  The statements are fortified with strategies to ensure success. For example for "Uphold[ing] the Rule of Law" there are five strategies (see here) - 

Strategy 1: Reaffirm and Strengthen Policies Foundational to the Rule of Law

Strategy 2: Protect the Justice Department from Improper Influence

Strategy 3: Protect Public Servants from Violence and Threats of Violence

Strategy 4: Protect the Public Fisc from Fraud on Government Programs

Strategy 5: Combat Foreign Interference in Democratic Processes

Strategy 6: Ensure Effective Oversight and Public Accountability

It may seem obvious that the Justice Department needs to be clear of improper influence, but in watching the January 6th hearings it is clear that this needs to be reaffirmed. 

(esp)

July 4, 2022 in About This Blog, Government Reports, News, Prosecutors | Permalink | Comments (0)

Saturday, July 2, 2022

Supreme Court Accepts Two Fraud Related Cases

The Supreme Court accepted two cases that provide questions related to how to interpret current fraud statutes, specifically mail and wire fraud.  

In Percoco v. United States, the question presented is "[d]oes a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decisionmaking, owe a fiduciary duty to the general public such that he can be convicted of honest-services fraud?" (see here).

In the second case, Ciminelli v. United States, the question presented is " "[w]hether the Second Circuit's "right to control" theory of fraud-which treats the deprivation of complete and accurate information bearing on a person's economic decision as a species of property fraud­ states a valid basis for liability under the federal wire fraud statute, 18 U.S.C. § 1343.  (see here)

These cases offer an opportunity to the Court to provide better clarity to "honest services" fraud and also to how the "right to control" theory may apply. The decisions could affect a wide range of cases, such as those that are part of the Varsity Blues prosecutions.  Leaving fraud as a "stop-gap device" until particularized legislation, is not the way to proceed with criminal prosecutions that could result in years of incarceration. It is time to provide clarity as to what is criminal and what is not when it comes to fraud related offenses. We don't need a statute for every imaginable type of fraud (e.g., we don't need a Beanie Baby fraud statute here).  But we do need clarity in the areas of honest services fraud and the right to control. Mail fraud was an 1872 statute and even with its 1909 amendment, more is clearly needed.   

See my prior article on Criminal Fraud here

(esp)(h/t Peter Goldberger)

July 2, 2022 in Fraud, Prosecutions | Permalink | Comments (0)

Wednesday, June 29, 2022

Total Victory for the Defense in Greenbelt Health Care Fraud Case

After a three-week trial, and only one full day of deliberations, a federal jury in Greenbelt, MD acquitted Kasandra Vilchez-Duarte and Donnie Amis on all counts of an indictment charging conspiracies to defraud Medicaid and violate the Anti-Kickback statute.  Congratulations to the defense teams: Federal Defenders Maggie Grace & Ned Smock on behalf of Ms. Vilchez-Duarte, as well as John McNichols & Allie Eisen (Williams & Connolly) and Eugene Gorokhov (Burnham & Gorokhov) on behalf of Mr. Amis.

(wisenberg)



June 29, 2022 in Defense Counsel, Fraud, Privileges, Verdict | Permalink | Comments (0)

Monday, June 27, 2022

Massive Victory for Physicians and the White Collar Bar in the Government's War Against Doctors

We have posted several times over the past year about the consolidated cases of Ruan v. United States and Kahn v. United States, pending at the U.S. Supreme Court this term. The cases involved the level of scienter required to convict doctors of illegal distribution of Schedule II Narcotics under the Controlled Substances Act. The opinion in Ruan v. U.S. and Kahn v. U.S. is now out and it is even better than most of us thought it would be. "After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so." The ruling was 9-0 on the final outcome, but 6-3 on the majority's reasoning. Justice Alito, joined  by Justice Thomas and, far the most part, Justice Barrett, concurred in the result only. They did not join the majority's holding that, once the defendant meets the burden of production, the burden of proof beyond a reasonable doubt shifts back to the government. All nine Justices agreed that the jury instructions in the two trials were defective because they injected objective reasonableness requirements into their good faith instructions. Many issues remain to be resolved in these Pain Doctor cases, but the victory here is truly sweeping. Doctors have been convicted nationwide over the past several years under what amounts, in many circuits, to a civil malpractice/negligence standard. Those days now appear to be gone.

(wisenberg)

June 27, 2022 in Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Wednesday, June 15, 2022

Intent Can Be Inferred From the Circumstances

A basic principle taught in law school is that intent can be inferred from the circumstances.  Juries routinely look at the surrounding evidence to determine if the accused had the intent to commit a crime. In street crime cases it is common for the crime to be committed outside the presence of the police, and prosecutors demonstrate the intent of the accused by presenting the evidence that allows the jury to infer from that evidence that the intent was present. 

Willful blindness is commonly used in white collar cases when the individual, like a CEO, claims that he or she did not know the criminal conduct was occurring in the company.  As stated in the Supreme Court's Global Tech case, "the defendant must subjectively believe that there is a high probability that a fact exists;" and "the defendant must take deliberate actions to avoid learning of that fact." Willful blindness is unnecessary as a tool to show knowledge when you have actual knowledge or when knowledge can be inferred from the circumstances. 

Yes, you need a crime and there has been evidence presented of crimes.  But I think we need to stay tuned further to determine who further committed these crimes.  We already know that the DOJ has brought criminal cases against hundreds of individuals (see here).  And as is typical in many criminal prosecutions, you start at the bottom and work up to higher level individuals. How high this will go remains to be seen, but cases have already been brought for charges of Conspiracy and Obstruction of an Official Proceeding, in addition to other criminal charges. Threatening the life of a vice-president and trespassing and damaging government property are not ones that will be overlooked with claims of the First Amendment. 

As we listen to the January 6th hearings, it is important to keep in mind that 18 U.S.C. 371, the conspiracy statute, has two provisions - one is the conspiracy to commit a specific offense and the other is a conspiracy to defraud the government.  It reads, "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy..." (emphasis added). For right now, I am looking closely at not only the first part of this statute - the specific offense part - but also at the second part of the conspiracy statute - a conspiracy to defraud the United States. 

(esp) 

June 15, 2022 | Permalink | Comments (0)

Tuesday, June 14, 2022

Willfully Blind As To What?

The January 6 Committee spent much of Monday's hearing focusing on all of the advisors and experts who told Donald Trump that he lost the 2020 election fair and square and not through vote fraud. As political theatre it was impressive, but I'm not sure how relevant it will be to any decision by AG Merrick Garland to charge Trump with a federal crime. Since the testimony was aired, however, multiple cable news commentators have explained the concept of willful blindness in dramatic tones. The white collar world is well versed in the doctrine and no doubt many white collar defendants have endured guilty verdicts courtesy of the willful blindness jury instruction, which is far too frequently handed out. But a criminal defendant must be willfully blind with respect to some conduct that the criminal law prohibits. Is  obstructing a Congressional proceeding any less obstructive. or seditious conspiracy any less seditious, if the defendant truly believes he or she is in the right? If half of Trump's advisors told him the election was rigged would that have justified his aiding and abetting an attempt, "by force to prevent, hinder, or delay the execution of any law" of the United States or an attempt to obstruct by force a Congressional proceeding? I think not, any more than the efforts by the opponents of Brett Kavanaugh's nomination to obstruct and delay his hearing were justified by their sincere belief that he was evil personified and would destroy the Constitution as they interpreted it. And the analysis does not change if we confine ourselves to the non-violent white collar world. I believe that the efforts to fashion a crime out of the GOP's flouting of the Electoral Count Act are farfetched. But assuming you could do it, is at any defense that you think your guy actually won? If Trump truly believed that he won the election would it justify paying a $1 million bribe to Pence to delay certification? The question is whether the crime was committed with the requisite intent--not whether your motives were pure or evil. There is an additional problem here, a First Amendment problem, in attempting to criminalize supposedly false political speech. Our courts have, largely, not tolerated this approach in the last 60 years. Few commentators seem to recognize this reality.  

(wisenberg)

 

June 14, 2022 | Permalink | Comments (0)

Monday, June 13, 2022

The Timothy Shea Mistrial: It's Tough To Dismiss An Obstinate Juror

SDNY Judge Analisa Torres granted a mistrial last week in the federal fraud trial against "We Build A Wall" Defendant Timothy Shea. On June 2, 11 of the jurors sent a note to the judge, asking that a 12th juror be dismissed because he allegedly refused to deliberate, based on what appeared to be his Trumpian political comments and bias.  The hold-out denied the charges, and accused his fellow jurors of liberal political bias. Judge Torres questioned the juror on the record, but in private away from the public and the other jurors. According to the New York Times account, "she asked whether the juror had 'biases or personal views' that would prevent him from being 'fair and impartial,' whether he could determine facts subject to her explanation of the law and whether he could consult with other jurors. The juror replied no to the first question and yes to the second two." Judge Torres declined to kick the hold-out off the jury, gave a modified Allen charge, and told the jury to continue deliberations. By Tuesday they were at a total impasse and a mistrial was declared. Shea's counsel, John Meringolo had already filed a motion for mistrial, based on Judge Torres' modification of the Allen charge and the 11 jurors' alleged breach of jury secrecy when the jury note revealed their numerical division. It doesn't look like Judge Torres ever ruled on that motion. She didn't need to, once the jury reached a total impasse. 

Recall that the case concerned the alleged fraudulent diversion of funds solicited under the premise of finishing then-President Trump's wall between the U.S. and Mexico. Shea allegedly conspired with others, including former Trump advisor Steve Bannon who was pardoned by Trump. Venue could have been had in a number of jurisdictions, but the prosecutors chose SDNY. Gee. I wonder why. So did the 12th juror. Was the 12th juror truly refusing to deliberate or was he simply unconvinced of Shea's guilt beyond a reasonable doubt. According to the Times, the other jurors spoke of the hold-out's refusal, "to deliberate based on evidence." Hmmm. Does that mean the evidence as they saw it, but not the hold-out? You can see the danger in dismissing hold-outs in this context, particularly in a politically charged case. Any 11 could complain about the hold-out's recalcitrance and "refusal to deliberate." Was there truly a "refusal to deliberate" or 11 bullies ganging up on a principled hold-out? We'll never know of course. The Second Circuit law is very clear on this issue. Once the hold-out answered Judge Torres's questions in the manner he did, he could not be removed. Under United States v. Thomas, 116 F.3d 606, 608 (2nd. Cir. 1997), a juror can be dismissed "for a refusal to apply the law as instructed only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution's case." That standard was simply not met in Shea's case. This was the right result under the case law. Meringolo's objection to the modified Allen charge was based on Judge Torres's additional admonition that the jurors not be swayed "by sympathy, emotion, or political views or opinions." (emphasis added).

Here is the New York Times story. Here is Meringolo's U.S. v. Timothy Shea Letter Motion for Mistrial.  

(wisenberg)

June 13, 2022 in Current Affairs, Defense Counsel, Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Sunday, June 12, 2022

2022 Business Law Symposium White Collar Crime: A Look into The Past, Present, and Future *Event Recording*

Did you miss the The Stetson Business Law Review inaugural Symposium: White Collar Crime: A Look into The Past, Present, and Future? This symposium featured keynote speakers in both the academic morning session and practitioner panels in the afternoon sessions.

The conference includes topics such as white collar crime investigations, insider trading, prosecution and punishment of offenders, discovery issues, and ethical considerations that surround the white collar criminal practice.

The Event Recording is available here.  Costs are explained here

Academic Panelists:

  • Professor Katrice Bridges Copeland
  •  Professor Lucian Dervan 
  • Professor Mihailis Diamantis
  •  Professor W. Robert Thomas
  • Professor Joan Heminway 
  • Professor David Kwok
  • Professor Tracey Maclin
  •  Professor Jennifer Taub
  • Professor Pedro Gerson
  • Professor Joseph Morrissey
  • Professor Karen Woody

Practitioner Panelists:

  • Hank Asbill
  •  Simon A. Latcovich
  • Drew Findling 
  • Marissa Goldberg
  •  Ian Friedman
  •  Erik Matheney
  • Amy Richardson
  • Addy Schmitt
  • Ellen Brotman
  • Katherine Yanes

 

June 12, 2022 | Permalink | Comments (0)

Saturday, March 26, 2022

Not Guilty After Trial - Former Boeing Pilot

Many accused of crimes do not take the risk of going to trial - they take a plea agreement. Our legal system has become more and more a system of pleas, with fewer trials, especially in the white collar area. But occasionally someone takes that risk, and is found not guilty.  That happened this week in the case of a former Boeing pilot accused of four counts of wire fraud.  Hats off to attorneys David Gerger and  Jeff Kearney. See WSJ, here, NYTimes here

(esp)

March 26, 2022 in Prosecutions | Permalink | Comments (0)

Friday, March 18, 2022

DOJ Moves Toward Transparency - Will it Include Discovery?

AG Garland announced a new policy this week in a press release titled, Attorney General Merrick B. Garland Issues New FOIA Guidelines to Favor Disclosure and Transparency .  The actual policy that favors transparency in FOIA requests is located here.  The new guidance says that there is a presumption of openness. 

Years back the National Association of Criminal Defense Lawyers (NACDL) filed a FOIA request for DOJ's Blue Book on the discovery protocols used by the government. The DOJ argued the book was work-product and only a small portion was released following a lawsuit.  See Louis Virelli & Ellen S. Podgor, Secret Policies, 2019 Illinois Law Rev. 463 (2019).  Perhaps now is a good time for the government to think about transparency in discovery practices so that fewer discovery violations occur in criminal cases.

(esp)

March 18, 2022 in Prosecutions, Prosecutors | Permalink | Comments (0)

Wednesday, March 16, 2022

Oral Argument in Ruan and Kahn

Here is a transcript of the March 1, 2022, U.S. Supreme Court Argument in Ruan and Kahn. Ruan v. United States and Kahn v. United States are consolidated cases involving the kind of good faith instruction, if any, required when physicians are indicted and tried for illegally dispensing controlled substances. We have previously posted about these cases here, here, and here. More to come soon on these cases and the issues surrounding them.

(wisenberg)

March 16, 2022 in Judicial Opinions, Prosecutions | Permalink | Comments (0)

Thursday, March 3, 2022

Corporate Crime and COVID Fraud - Top Federal Priorities

AG Garland's speech today at the White Collar Crime Institute - get ready for more corporate crime and COVID fraud cases -  here

(esp)

March 3, 2022 in Fraud | Permalink | Comments (0)

Monday, February 21, 2022

Latest Filings in Ruan and Kahn Pain Management Physician Cases

We have posted previously, here and here, about the anticipated U.S. Supreme Court decision in the consolidated cases of Ruan v. United States and Kahn v. United States. The Supreme Court granted certiorari and consolidated the two cases last November. Oral argument is set for March 1, 2022. The cases involve the appropriate jury instruction to be given, and the required proof of scienter, when the government prosecutes pain management physicians for illegal distribution of Schedule II controlled substances under 21 U.S.C. § 841(a)(1). More precisely, as pointed out in the Joint Motion of Petitioners Ruan and Kahn for Divided Argument, the case "presents the question whether, and to what extent, a physician may assert a good faith defense to charges under the Controlled Substances Act (CSA)." There is a longstanding circuit split regarding the type of good faith instruction a defendant is entitled to in this type of case. Is the defendant entitled to the traditional subjective good faith instruction or can the government impose an objective component to good faith, such that the charged physician must act in accordance with what "a reasonable physician should believe" to be proper medical practice? The Petitioners wisely sought to divide their arguments, because the respective good faith instructions given in their trials differed and because they have different views on whether the two prongs of 21 C.F.R. § 1306.04(a) should be read and proven in the conjunctive or disjunctive--that is, whether the government must prove both that a physician lacked a legitimate medical purpose and was acting outside the usual course of professional practice, or whether the government must prove just one of those prongs. 

The larger issue lurking behind theses cases, which may or not be fully addressed by the Supreme Court's anticipated decision, is that pain management physicians are routinely convicted, at least in objective good faith circuits, under what amounts to a malpractice standard. Government experts testify that defendant physicians failed to meet the standard of care and missed/ignored various red flags. The "usual course of professional practice" is confused with the "standard of care" and an "objective"  good faith instruction often operates as the coup de grace against the charged physician.

Here is the Ruan v. U.S. and Kahn v. United States--Brief For the United States, filed on January 19. 

Here is the Xiulu Ruan Reply Brief, filed last week.

Here is the Shakeel Kahn Reply Brief, also filed last week.

(wisenberg)

February 21, 2022 in Judicial Opinions, Prosecutions, Statutes | Permalink | Comments (0)

Saturday, February 19, 2022

White Collar Crime: A Look into The Past, Present, and Future

The Stetson Business Law Review is thrilled to announce its inaugural Symposium: White Collar Crime: A Look into The Past, Present, and Future. This virtual symposium, set to be held on Friday, February 25th, 2022, will feature keynote speakers in both the academic morning session and practitioner panels in the afternoon sessions. 

The conference will include topics such as white collar crime investigations, insider trading, prosecution and punishment of offenders, discovery issues, and ethical considerations that surround the white collar criminal practice.  See the full program and speakers at these links  -

Summary, Agenda, & Speakers

Anticipated Academic Panelists:

  • Professor Katrice Bridges Copeland
  •  Professor Lucian Dervan 
  • Professor Mihailis Diamantis
  •  Professor W. Robert Thomas
  • Professor Joan Heminway 
  • Professor David Kwok
  • Professor Tracey Maclin
  •  Professor Jennifer Taub
  • Professor Pedro Gerson
  • Professor Joseph Morrissey
  • Professor Karen Woody

Anticipated Practitioner Panelists:

  • Hank Asbill
  •  Simon A. Latcovich
  • Drew Findling 
  • Marissa Goldberg
  •  Ian Friedman
  •  Erik Matheney
  •  Jason Mehta
  • Amy Richardson
  • Addy Schmitt
  • Ellen Brotman
  • Katherine Yanes

(esp)

February 19, 2022 | Permalink | Comments (0)

Friday, February 18, 2022

Michael Sussman's Motion to Dismiss

Here is the Sussman Motion to Dismiss for Failure to State an Offense, filed in Special Counsel John Durham's 18 U.S.C. Section 1001 false statement prosecution against former Perkins Coie attorney Michael Sussman. Sussman's argument is that even if the facts laid out in Durham's Indictment are true, they fail, as a matter of law, to allege/establish the essential Section 1001 element of materiality or to establish a sufficient nexus between Sussman's alleged falsehood and the agency (FBI) decision purportedly capable of being affected. Keep in mind that Sussman's alleged false statement to FBI General Counsel James Baker was that he was not acting on behalf of any client in reporting the Alfa Bank tip to Baker, when, in truth and in fact, Sussman was there representing and acting on behalf of Tech-Executive 1 and the Clinton Campaign. The materiality portion of the Sussman Indictment has always struck me as weak, but very little is required of the government in order for it to prove materiality in a Section 1001 prosecution. Sussman's real problem in winning on this motion is decades of case law holding that an indictment setting out the statutory elements of the offense, along with minimal factual allegations, is sufficient to allege an offense as a matter of law.  In other words, the defendant is not allowed to go beyond the indictment's allegations in litigating whether it alleges an offense. There appears to be no recognition of this case law in the Sussman brief. Durham was not required to put much meat on the skeletal elements of the offense. But he chose to do so, presenting a 27-page speaking indictment to the grand jury. There is some scattered authority for the proposition that an indictment setting out in detail what appear to be the full  and undisputed facts behind the offense, in addition to the statutory elements, can be defeated by accepting those facts as true and arguing that the do not constitute the purported offense being charged. See for example, U.S. v. Ali, 557 F.3d 715, 719-20 (6th Cir. 2009). That's what Sussman is up to here. Durham's response will surely be that he has set out the required statutory elements plus additional contextual detail and that the Government must be allowed to show its full factual case to the jury in order to prove why, under said factual particulars, Sussman's alleged lie was material. 

(wisenberg)

February 18, 2022 in Current Affairs, Defense Counsel, Fraud, Government Reports, Grand Jury, Investigations, Judicial Opinions, Prosecutions, Prosecutors | Permalink | Comments (0)