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)

Monday, February 7, 2022

Naming Conventions And Naming Convictions

What’s in a name? Several of the individuals indicted in connection with the January 6, 2021, assault on the U.S. Capitol have been charged under Title 18, United States Code, Section 1512(c)(2). Subsection (c) of 18 U.S.C. §1512 seeks to punish: “Whoever corruptly--(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” 18 U.S.C. §1515 supplies definitions for some of the terms used in §1512 and defines “official proceeding” to include, among other things, “a proceeding before the Congress.” Many of the motions to dismiss filed by January 6 defendants, and judicial opinions denying these motions, center around whether  §1512(c)(2) was meant to be confined to proceedings that are quasi-judicial or evidentiary in nature, even if the proceedings take place in Congress. I previously posted three of these judicial opinions. That is not my focus here. 

18 U.S.C §1512, a lengthy statute with several subsections, has a title as well. The official title is: “Tampering with a witness, victim, or an informant.” That is the only title the statute has. None of the subsections of §1512 contains an additional or separate subtitle. Note, however, that none of the persons charged under 18 U.S.C. §1512(c)(2) has been literally charged in his or her Indictment, or in any press coverage that I have seen, with, “tampering with a witness, victim, or an informant,’ which, again, is the only title of §1512. To take one example, in U.S. v. Nordean et al., the defendants are charged in the First Superseding Indictment with “Obstruction of an Official Proceeding and Aiding and Abetting.” This makes sense. The facts alleged against the defendants appear to align with the literal language of §1512(c)(2) and do not involve witness tampering.

Fast forward to the recent indictment of Oath Keeper Elmer Steward Rhodes III and others for “Seditious conspiracy,” pursuant to 18 U.S.C. § 2384. The defendants are also charged with violating several other statutes, including 18 U.S.C. §1512(c)(2). While 18 U.S.C. § 2384, unlike §1512(c)(2), does not have separately numbered subsections, it clearly sets out several different ways in which the crime can be committed. For example, one cannot “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them.” I believe something like this formulation is what most people think of when they think of sedition. But Rhodes and his Oath Keepers were not charged under that "overthrow the Government" portion of the statute. They were charged with conspiring “by force to prevent, hinder, and delay the execution of any law of the United States.” (The laws allegedly being hindered were the Electoral Count Act and the Twelfth and Twentieth Amendments to the U.S. Constitution.) The caption in the Indictment could have set the charge out in this fashion, as a “conspiracy to by force prevent, hinder, and delay” particular laws of the United States, with a citation to 18 U.S.C. §2384. That is not what Department of Justice officials decided to do, however. They captioned the charge as “seditious conspiracy.” There was nothing improper about their decision, just as there was nothing improper about their decision to list §1512(c)(2) in the caption of Nordean as “obstruction of an official proceeding” rather than “witness-tampering.”

But the effect in the wider media culture was predictable. Several pro-Trump television commentators had been making the point that none of the January 6 defendants were seditionists, because none had been charged with seditious conspiracy. They could not say this anymore in light of the Rhodes Indictment and their prior comments were thrown back in their faces by progressive commentators. So be it. That’s politics. But, at least with respect to the indicted January 6 rioters, conspiring by force to prevent, hinder, and delay the execution of the Electoral Count Act (“seditious conspiracy”) is not substantially different than corruptly obstructing or conspiring to corruptly obstruct the very Congressional proceeding in which the Electoral Count Act is being executed. They are both serious charges that should be prosecuted vigorously if the facts so warrant. And if any Congressperson, Executive Branch official, or podcast host aided and abetted or joined a conspiracy to violate either statute, under traditional criminal law principles, he or she should be prosecuted as well.

Sloppy language, however, invites sloppy thinking and prosecuting someone for aiding and abetting a violent mob intent on forcefully stopping a critical Congressional proceeding or the execution of a statute, is quite different than prosecuting someone for seditious conspiracy because he told a crowd that the election was stolen, invited them to peacefully protest the vote count, or tried to convince Mike Pence that he had the power to refuse to certify certain slates of electors. (I wrote about John Eastman's potential criminal exposure, in the context of the Fifth Amendment's Privilege Against Self-Incrimination, here.) Likewise, prosecuting anyone for delaying the vote count by using the procedures set out in the Electoral Count Act, is without more, doomed to fail under rather basic constitutional and criminal law tests. The devil is always in the details of the purportedly criminal acts under examination.

The people intent on federally prosecuting Trump and his cohorts for the events on and surrounding January 6, 2021, need to think small and in terms of traditional criminal law principles. We witnessed a riot. We witnessed criminal assaults. We witnessed people invading Congressional offices and threatening to “Hang Mike Pence.” Some of the people who committed these acts were attempting to prevent the peaceful transfer of power to Joe Biden. There are statutes in place that appear to criminalize this conduct. The quest to use the criminal law to “go after the higher-ups” should focus on who, if anybody, aided, abetted, counseled, commanded, induced or procured the commission of these specific criminal offenses--not on people engaged in protected First Amendment political activity. In the words of the standard pattern aiding and abetting instruction, “whoever intentionally associated himself in some way with the crime and intentionally participated in it as he would in something he wished to bring about,” is punishable as a principal. My guess is that some pretty well-known people are sleeping uneasily these days. My further guess, and it is no more than a guess, is that the DOJ has been looking at these people for some time. But I seriously doubt, based on currently known information, it will go much beyond these folks.

(wisenberg)

February 7, 2022 in Congress, Current Affairs, Government Reports, Investigations, Media, Obstruction, Prosecutions, Prosecutors | Permalink | Comments (0)

Thursday, January 27, 2022

Stetson Business Law Review Symposium: 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

(esp)

January 27, 2022 in Conferences | Permalink | Comments (0)

Tuesday, January 18, 2022

Peter Henning RIP

Peter

Peter Henning was an incredible writer, scholar, and teacher.  Most of all to me - he was a good friend.

In November of 2004, Peter Henning and I started this WhiteCollarCrimeProfBlog. He moved on to later write the White Collar Watch for the NYTimes, but we continued to co-author many a book on criminal law, criminal procedure, and white collar crime.  Whether it was a criminal law casebook, a criminal procedure treatise, or the hornbook on white collar crime, Peter was amazing. He understood the nuances in cases, the rationales of the prosecutors, and had a gift of writing quickly in highly complex areas of the law. 

On the rules of law he and I seldom disagreed.  On whether the prosecution or defense had the better argument, however, we often differed. When that happened, our rule was simple - let the reader hear both sides, but always make sure the representations were accurate.

I will miss Peter's humor, his writing, and his friendship. His family was his everything to him, so my heart goes out to them. 

RIP Peter.

Wayne State Law School Announcement - here

(esp)

January 18, 2022 in News | Permalink | Comments (0)

Monday, January 17, 2022

Fifth Circuit Reverses Tax Counts

Last week in United States v. Pursley, the Fifth Circuit reversed and remanded all counts of conviction against appellant Jack Pursley. Appellant had been charged with a Klein conspiracy and three tax evasion counts.  The convictions were reversed because: 1) the trial court refused to give a requested instruction requiring the jury to find that the charged offenses were committed within the 6 year statute of limitations period; and 2) the trial court neglected to make a ruling as to how long the statute of limitations had been suspended pursuant to 18 U.S.C. Section 3292 (suspension of limitations to obtain foreign evidence). Under Section 3292 (b), "a period of suspension under this section shall begin on the date on which the official request is made and end on the date on which the foreign court or authority takes final action on the request." According to the Fifth Circuit, the trial court must make the factual determination as to the date on which the foreign court or authority took final action on the request for evidence, assuming that there is a dispute as to this issue, but failed to do so here. It is often not at all clear when such final actions by foreign authorities take place. Sometimes the foreign authority will state that it has taken final action, but continue to send documents after this date. Sometimes the foreign authority will not indicate whether  it is taking its final action. The case has a good discussion of statute of limitations issues in tax evasion cases.

(wisenberg)

 

January 17, 2022 in Judicial Opinions, Prosecutions, Tax | Permalink | Comments (0)

Monday, January 10, 2022

Briefs Filed in Ruan and Kahn.

Last November, guest bloggers Eugene Gorokhov and Jonathan Knowles posted here about the Supreme Court's granting of certiorari in Ruan v. United States and Kahn v. United States, two federal Circuit Court of Appeals decisions that effectively eviscerate the scienter requirement in criminal cases charging physicians with illegal distribution of Schedule II drugs. There is a longstanding split between those federal circuits that have criminalized malpractice and those requiring the government to actually prove beyond a reasonable doubt that physician defendants had a subjective intent to prescribe drugs for no legitimate medical purpose and outside the scope of their professional practices. Other circuits fall in-between, allowing hybrid jury instructions with objective and subjective intent elements. Amicus Briefs and the Petitioners' Briefs were filed in late December. I am posting some of them here. The smart money is on the Court substantially clarifying and strengthening the government's obligation to prove knowing or intentional efforts by physicians to prescribe outside the scope of professional practice and without a legitimate medical purpose. 

Brief of Petitioner Shakeel Kahn

Ruan Brief for the Petitioner

Ruan - Amicus Brief of Due Process Institute

National Pain Adv Ctr Amicus Brief

Amicus Brief of NACDL

(wisenberg)

January 10, 2022 in Judicial Opinions, Prosecutions | Permalink | Comments (0)

Tuesday, January 4, 2022

More on Elizabeth Holmes

The speculation now begins about where Elizabeth Homes will serve her sentence, what her sentence will be, and how "cushy" she will find things in confinement. The Bloomberg Law story is here. Her sentence is likely to be more substantial than the three years being predicted by anonymous experts in this story. Nevertheless, as a first-time offender with no violent past and a non-violent offense of conviction, she is very likely going to a minimum security camp unless her sentence is longer than 10 years. That's the way the system works.

(wisenberg)

January 4, 2022 in Prosecutions, Securities, Sentencing | Permalink | Comments (0)

Monday, January 3, 2022

Theranos Founder Elizabeth Holmes Convicted On 4 Of 11 Counts. And That Will Be Enough.

Here is the CNN story.  The jury acquitted Holmes, the former CEO of blood-testing startup Theranos, on all 4 counts related to the alleged defrauding of patients. She was convicted on 4 counts related to defrauding of investors, including a conspiracy count. The jury hung on 3 additional investor fraud counts. There will be no retrial of the counts that the jury could not reach agreement on, because Holmes' ultimate sentence would not be affected by a guilty verdict on those counts. Moreover, under current Supreme Court case law, the trial court can (unfortunately) consider the government's evidence against Holmes on both the acquitted and hung counts in determining her sentence. The SEC long ago settled its case against Holmes without demanding an admission of wrongdoing on her part. Had she made such an admission there would have been no need for a criminal trial.

(wisenberg)

January 3, 2022 in Current Affairs, Fraud, News, Prosecutions, SEC, Securities, Sentencing, Settlement, Verdict | Permalink | Comments (0)

Sunday, January 2, 2022

Attorney Joshua Treem and Investigator Sean Gordon Acquitted On All Federal Charges

Congratulations are in order for Bob Trout and Noah Cherry of DC's Schertler Onorato Mead & Sears and to Dan Goldstein on the 12-28-21 federal district court acquittal of their client, longtime Baltimore criminal defense attorney Joshua Treem. Treem had been accused of conspiracy to obstruct an official proceeding and related charges in connection with his representation of Baltimore attorney Kenneth Ravenell in a criminal case. Also acquitted of all charges was private investigator Sean Gordon who was the private investigator working with Treem on the Ravenell matter. Gordon was represented by Geremy Kamens and Rebecca LeGrand. Congratulations to them as well. Here is the Baltimore Sun's story on the acquittal. According to Trout: "The prosecution of Josh Treem was an utter failure of judgment by the U.S. Attorney’s Office in Maryland." Kamens commented that, "these people were defending a client; they were not committing a crime." Here are the respective judgments of acquittal: Joshua Treem Judgment of Acquittal and Sean Gordon Judgment of Acquittal.

(wisenberg)

January 2, 2022 in Defense Counsel | Permalink | Comments (0)

Saturday, January 1, 2022

Three New Opinions on the Meaning of Corrupt Obstruction

Three federal district court opinions on the meaning of "corruptly" obstructing, influencing, or impeding an official proceeding, under 18 U.S.C. Section 1512 (c)(2), have been issued in the past month. Each case is from a different federal district judge in the District of Columbia. Although each case pertains to the actions of alleged participants in the January 6, 2021 Capitol Riot, the cases also have significant implications for future white collar prosecutions--implications that should benefit white collar defendants. Here are the opinions in  U.S. v. Nordean, U.S. v. Caldwell, and U.S. v. Sandlin. More to come on this issue in the next week.

(wisenberg)

 

 

January 1, 2022 in Current Affairs, Judicial Opinions | Permalink | Comments (0)