Saturday, October 29, 2022
We are continuing to witness inconsistent jury charges in the wake of the Supreme Court's groundbreaking decision late last term in Ruan v. United States. In Ruan, the Court made it clear that a health care professional cannot be convicted of illegal distribution of narcotics unless the government proves beyond a reasonable doubt that he intended to prescribe, or knew he was prescribing, narcotic drugs without "a legitimate medical purpose...in the usual course of his professional practice." But the Court did not define "legitimate medical purpose" or "usual course of professional practice."
In United States v. Cristobal, which went to the jury on September 7, 2o22, Judge Katherine Polk Failla, United States District Court Judge for the Southern District of New York, informed the jury that, "[t]he terms 'legitimate medical purpose' and 'usual course of of professional practice' means acting in accordance with a standard of medical practice generally recognized and accepted in the State of New York." This is inconsistent with several recent post-Ruan jury instructions in other federal districts, which explicitly inform the jury that there is no accepted definition of "legitimate medical purpose" and "usual course of professional practice." For example, in United States v. Rahbarvafaei, tried in the Central District of California, the jury was instructed that, "[t]here are no specific guidelines in the law defining what is the usual course of professional practice or defining a legitimate medical purpose." Rahbarvafaei was acquitted on all counts. Cristobal, a licensed nurse practitioner, was convicted on three of eight counts.
The Cristobal offense instruction tells the jury in effect that an intentional violation of the standard of care in the prescribing of drugs is a criminal offense. In the Ninth Circuit, however, it has long been the law that an intentional violation of the standard of care is not alone enough to convict a physician defendant in a narcotics distribution case.
Stay tuned. Undoubtedly, more inconsistences and confusion await us and the Supreme Court will need to step in again soon to provide needed clarifiaction.
Saturday, October 22, 2022
More on Post-Ruan Jury Charges: Outside the Usual Course of Professional Practice Does NOT Equal Standard of Care. It DOES Equal Drug Pusher
As federal trial courts and litigators struggle with how to construct jury charges in light of the U.S. Supreme Court's decision late last term in Ruan v. U.S. and Kahn v. U.S. (hereinafter Ruan), it is paramount that white collar criminal defense practitioners resist all efforts by courts and prosecutors to tie, within the jury instructions, the concept of "course [or scope] of professional practice" to the "standard of care" in the medical community. But old habits die hard, even when the Supreme Court sends a clear signal that most lower courts have been getting things wrong for several years. So in some recent post-Ruan offense instructions, district courts have kept in references to the standard of care, but tried to limit the effect of such references. In my last post, I criticized the appalling offense instruction in United States v. Romano and praised the court's instruction in United States v. Rahbarvafaei. In the latter case, the trial court told the jury it could "consider the standards to which medical professionals generally hold themselves, including standards of care among medical professionals." But the court then added this proviso: "However, any finding of criminal liability must ultimately depend on the mental sate of the defendant herself, not what a hypothetical 'reasonable' medical practitioner would do or intend. Because of the need for the government to prove the defendant's criminal intent, this case is different from a medical malpractice case." The better practice is to eliminate all references to the standard of care in offense instructions. Courts also need to make it pellucidly clear to juries that a doctor only acts outside the scope of his or her practice when he or she in effect ceases to act as a doctor. U.S. District Court Judge Casey Rodgers, in the Northern District of Florida, recently did just this in her jury charge in United States v. Given, although Judge Rodgers also left in language that was explicitly criticized in Ruan. Judge Rodgers told the jury that, "in order for a physician to violate the Controlled Substances Act, he must knowingly issue a prescription for a controlled substance outside the course of medical practice or for other than a legitimate medical purpose, which means he abandoned his role as an authorized physician." (emphasis added). That's pretty strong stuff for the defense and is in accord with the view Judge Rodgers expressed, during the Rule 29 argument, that a doctor is only operating outside the scope of his practice when he acts as a drug pusher. Here are the U.S. v. Michael Given Offense Instructions and the GIVEN.RULE29ARGUMENTTRANSCRIPT.
Wednesday, October 12, 2022
A Post-Ruan Problem: Jury Instructions Tying "Usual Course of Medical Practice for a Legitimate Medical Purpose" to Standard of Care
In a recent post, I briefly discussed the offense instruction in U.S. v. Romano--a post-Ruan illegal distribution case out of the Southern District of Ohio. I noted that the jury charge in Romano, "tied the concept of 'usual course of professional practice for a legitimate medical purpose' to a 'standard of medical practice generally recognized and accepted in the State of Ohio.'" I think this type of instruction, often used in the pre-Ruan era, should be considered improper in post-Ruan times. Although Ruan left many questions unsettled for now, the Supreme Court made it clear that no objective "reasonable physician" standard can constitutionally be superimposed onto the government's obligation to prove scienter beyond a reasonable doubt. Justice Breyer did say that criteria such as "legitimate medical medical purpose" and "usual course course of professional practice" were objective in nature and that the more unreasonable the defendant's beliefs and misunderstandings were, "especially as measured against objective criteria," the more likely it is that the jury will find that a defendant knew his conduct was unauthorized. But the Romano instruction risks having the jury equate "standard of care," a staple of civil malpractice cases, to "legitimate medical purpose" and "usual course of professional practice." Criminal defense practitioners in illegal distribution prosecutions of physicians and other medical professionals are all too familiar with government experts who are willing to testify that this or that particular practice or procedure by the defendant physician did not comport with a state or national standard of care. It is one thing to allow testimony of this type in order for the government to show how far a particular defendant deviated from the broad consensus of medical opinion and to further show how this deviation, in combination with other facts in the case, is circumstantial evidence of scienter. It is something different I believe to import this unexplained into the offense instruction. The Ninth Circuit has long held that a physician defendant cannot be convicted of unlawful distribution merely by showing that he or she intentionally violated a standard of care. The government must also show that he or she acted without a legitimate medical purpose. I realize that the distinctions being discussed here can be extremely subtle in nature, but that is exactly why they can lead to jury confusion. For this reason, I much prefer the U.S. v. Saloumeh Rahbarvafaei Offense Instruction which referenced standards of care, but did so in the following context: "There are no specific guidelines in the law defining what is the usual course of professional practice or defining a legitimate medical purpose. Therefore, in determining whether the defendant acted outside the usual course of professional practice, you may consider the standards to which medical professionals generally hold themselves, including standards of care among medical professionals. However, any finding of criminal liability must ultimately depend on the mental sate of the defendant herself, not what a hypothetical 'reasonable' medical practitioner would do or intend. Because of the need for the government to prove the defendant's criminal intent, this case is different from a medical malpractice case."
Monday, October 10, 2022
Congratulations are in order for Licensed Physician's Assistant Saloumeh Rahbarvafaei and her defense attorneys, Federal Public Defenders Erin Murphy and Michael Driscoll, Jr. Rahbarvafaei was acquitted in late August on all eight charged counts of illegal distribution of a narcotic controlled substance. The case was out of the Central District of California. Michael Fitzgerald was the judge. This is the third total victory for a defendant health care professional that I am aware of since Ruan v. United States was handed down by the U.S. Supreme Court on June 27, 2022. Here is the U.S. v. Saloumeh Rahbarvafaei Offense Instruction on the elements of illegal distribution. It is the best one I have seen so far in the post-Ruan era. Keep in mind that 9th Circuit jury instructions in this area were already among the most defense friendly in the country. More to come on jury instruction permutations, post-Ruan, in future installments.
Sunday, October 9, 2022
Three recent post-Ruan cases, two resulting in acquittals and one in a guilty verdict, yielded three different offense instructions for illegal distribution of a controlled substance by a physician.
In United States v. Bothra, et al., which went to the jury on the morning that the consolidated cases of Ruan v. United States and Kahn v. United States (hereinafter Ruan) were handed down by the U.S. Supreme Court, the trial judge used a simple one page instruction, closely hewing to the bare bones holding of the Supreme Court. There was no good faith defense instruction (over defense objection) and no deliberate ignorance instruction. Here is the United States v. Bothra et al. Jury Instruction on Illegal Distribution. All Defendants were acquitted on all charges.
In United States v. Given, the trial court gave a lengthier and more traditional instruction, requested by the defense and agreed to by the government. The lone Defendant was acquitted on all counts. Although the Given jury instructions were obviously influenced by Ruan, the trial court surprisingly included some of the very language invalidated criticized and questioned by the U.S. Supreme Court in Ruan. Here is the U.S. v. Michael Given Offense Instructions. The trial court declined the government's request to give a deliberate ignorance instruction.
In United States v. Romano, the trial court tied the concept of "usual course of professional practice for a legitimate medical purpose" to a "standard of medical practice generally recognized and accepted in the State of Ohio." The court gave a deliberate ignorance instruction in tandem with a broad instruction on inferring intent. The Defendant was convicted on several counts. Here is the U.S. v. Romano Jury Instruction--Definition of the Crime. Here are the U.S. v. Romano Jury Instructions--Inferring Required Mental State and Deliberate Ignorance.
Clearly there will be quite a few kinks to work out in post-Ruan jury instructions until a coherent pattern emerges.
Saturday, October 8, 2022
Last June, in the consolidated cases of Ruan v. United States and Kahn v. United States (hereinafter Ruan) the U.S. Supreme Court considered the mens rea required to convict a physician charged with illegal distribution of narcotics under the Controlled Substances Act. The Court held as follows: "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 stunningly broad 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 producing any evidence that he or she was authorized to write prescriptions, the burden of proving beyond a reasonable doubt that the defendant intended to act, or knew he or she was acting, "in an unauthorized manner" falls on the government. But all nine Justices agreed that at least a portion of the jury instructions in each trial were defective because they injected objective reasonableness requirements into their good faith definitions. It is too early to predict with any certainty how the case law will develop in the post-Ruan world. Never underestimate the willingness of individual U.S. Attorney offices to find ways around inconvenient Supreme Court opinions. The convictions of Dr. Ruan and Dr. Kahn were not even overturned. Instead, the appellate judgments were vacated and the cases were sent back to their respective Courts of Appeals to determine whether the faulty instructions were harmless.
But here are some recent developments. In United States v. Bothra, et al. an Eastern District of Michigan case that went to the jury the very day Ruan came out, all Defendants were acquitted on all counts, 54 in total. In U.S. v. Given, in the Northern District of Florida, the lone Defendant was acquitted on all 33 counts. It should be noted that the government's evidence in each case was weak.
In United States v. Kim, in the Western District of Oklahoma, the the court granted the government's motion to dismiss without prejudice. The government seemed to concede that, in light of Ruan, the Indictment was defective.
Finally, in United States v. Brian August, a case in which I represented the Defendant, the United States filed, and the trial court promptly granted, a Motion to Dismiss, conceding that, among other things, the case could not go forward under the Ruan standard.
While these are promising signs, the dust has not yet begun to settle on post-Ruan developments. As I will explain in subsequent posts, the Ruan opinion leaves many questions unanswered. Is a physician-Defendant entitled to a subjective good faith instruction or no good faith instruction? Does the Defendant meet his or her burden of presentation merely by showing that he/she is authorized to prescribe narcotics? Must the government prove that a physician-Defendant had no legitimate medical purpose for his/her prescription and that he/she was operating outside the usual course of his/her medical practice or only one of these two factors? What should a proper jury instruction look like?
I will be posting more on these issues in the coming days, weeks, and months.
Tuesday, September 13, 2022
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.
Monday, September 5, 2022
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.
Friday, August 26, 2022
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.
- 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)
- 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)
- 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.
Wednesday, July 20, 2022
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").
Wednesday, July 6, 2022
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.
Monday, July 4, 2022
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.
Saturday, July 2, 2022
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)
Wednesday, June 29, 2022
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.
Monday, June 27, 2022
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.
Wednesday, June 15, 2022
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.
Tuesday, June 14, 2022
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.
Monday, June 13, 2022
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).
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.
- 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
- Hank Asbill
- Simon A. Latcovich
- Drew Findling
- Marissa Goldberg
- Ian Friedman
- Erik Matheney
- Amy Richardson
- Addy Schmitt
- Ellen Brotman
- Katherine Yanes
Saturday, March 26, 2022
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