Wednesday, July 8, 2020

NY Department of Financial Services and Deutsche Bank - Jeffrey Epstein

The NY Department of Financial Services entered into a Consent Order with Deutsche Bank AG (NY Branch) and Deutsche Bank Trust Company America with the Bank agreeing "to pay $150 million in penalties" "for significant compliance failures in connection with the Bank's relationship with Jeffrey Epstein and correspondent banking relationships with Danske Bank Estonia and FBME Bank."  The press release notes that "[t]his agreement marks the first enforcement action by a regulator against a financial institution for dealings with Jeffrey Epstein." "

"Superintendent Lacewell said. 'In each of the cases that are being resolved today, Deutsche Bank failed to adequately monitor the activity of customers that the Bank itself deemed to be high risk. In the case of Jeffrey Epstein in particular, despite knowing Mr. Epstein’s terrible criminal history, the Bank inexcusably failed to detect or prevent millions of dollars of suspicious transactions.'" 

It is a fascinating consent decree with details of alleged suspicious banking activities. One item stated in the Consent decree is "[t]he interpretation was exemplified by a later email exchange in March of 2017, when a member of the transaction monitoring team responded to an alert about payments to a Russian model and Russian publicity agent, stating, '[s]ince this type of activity is normal for this client it is not deemed suspicious.'"

In the Consent decree one sees a good number of unnamed individuals (Co-conspirator 1, 2, and 3; US Bank -1; Relationship Manager -1; Executive -1 and 2; AML Officer -1 and 2; Coverage Team Member -1; Accountant -1; AML Compliance Director-1; Attorney -1; Offshore Company -1). 

(esp)    

July 8, 2020 in Investigations, Money Laundering, Settlement | Permalink | Comments (0)

Thursday, July 2, 2020

Supreme Court Accepts Cert on Redaction Issue in Mueller Report

Will the Court allow the release of the redactions in the Mueller Report?  The issue accepted by the Supreme Court is  "[w]hether an impeachment trial before a legislative body is a 'judicial proceeding' under Rule 6(e)(E)(i)?   

The briefs on the Cert Petition are:

Government Brief  on Petition for Cert here

House Judiciary Committee Brief here

DOJ Reply Brief here

(esp)

July 2, 2020 | Permalink | Comments (0)

Wednesday, July 1, 2020

Short Take: Flynn and FARA

A frequent accusation hurled at the Michael Flynn camp is that Flynn’s plea deal was a tremendous boon to him, because Flynn faced possible charges, or, in the words of Lawfare’s Ben Wittes, “massive criminal liability”, for failing to register as a foreign agent for Turkey, during the transition period, in violation of the Foreign Agents Registration Act (“FARA”).

This argument is absurd. For openers, almost nobody faces massive criminal liability under FARA. It has a five year statutory maximum and would, in Flynn's case, probably be scored under Section 2B1.1 of the Sentencing Guidelines. (This is because FARA has no Guideline section attached to it and 2B1.1, is "the most analogous" offense Guideline.) And no amount of monetary loss would be factored in. Thus, even a defendant in Flynn's shoes who went to trial and got convicted could easily receive a Guidelines range of 0-6 months. 

Second, it is not at all clear that Flynn was an agent of Turkey during the transition period or that he could have been successfully convicted as such pursuant to FARA. Flynn severed his ties with Turkey shortly after Trump won the election. His partner in Flynn Intel Group (Bijan Rafiekian) was tried and convicted in the Eastern District of Virginia for conspiring to violate FARA (by submitting a materially false FARA filing ) in relation to a transaction that Flynn himself participated in. (Indeed, the government's Statement of the Offense in U.S. v. Flynn included allegations of false statements by Flynn in connection with the very project at the heart of Rafiekian's case.) The highly respected trial judge, Anthony Trenga, however, threw out the jury's verdict after trial based on insufficient evidence, ruling that no rational juror could have found Flynn’s partner guilty. See U.S. v. Rafiekian Opinion Granting Rule 29 Motion. That ruling is currently being appealed by the DOJ at the Fourth Circuit.

Third, the DOJ itself told Judge Trenga that Flynn was not a co-conspirator with his Rafiekian. The DOJ tried to reverse its position on this point when Flynn moved to withdraw his DC plea, but Trenga was having none of it.

Thus, there is no indication that Flynn feared going to trial under 18 U.S.C. Section 1001 or FARA. His original lawyers didn't see a crime. Flynn had a good chance to win and the downside was small, which is quite rare in federal prosecutions. But the government threatened to charge Flynn's son. It’s as simple as that. Then the prosecutors left that key condition out of Flynn’s written plea agreement, so that this part of the deal wouldn’t necessarily have to be revealed as Giglio to future defendants who Flynn might be called to testify against. That's how the sausage is sometimes made in white collar cases. But let's not pretend anything other than his son's fate was at stake for General Flynn. Either a guilty plea or a guilty jury verdict would have been equally devastating for Flynn's reputation. 

(wisenberg)

July 1, 2020 in Current Affairs, Investigations, Judicial Opinions, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)

Friday, June 26, 2020

White Collar Briefly MiniPod - Six Podcasts on White Collar Crime

Co-sponsored with the ABA's Global Anti-Corruption Committee, Perkins Coie's Markus Funk, Chelsea Curfman, and Kevin Feldis  have released a podcast series (six so far) as follows:

Introducing the White Collar Briefly MiniPod

They include candid conversations with a variety of special guests, including:

· American “book of the year” author, editor, screenplay writer and publisher Dave Eggers- see here

· Joel Esquenazi (defendant in the high-profile U.S. v. Esquenazi FCPA case)- see here

· Molson Coors’ Global Ethics & Compliance Chief Caroline McMichen see here

· Chicago-based U.S. District Judge Virginia Kendall - see here

· University of Colorado COO (and former GC) Patrick O’Rourke - see here

· Avanos Medical Deputy GC Ross Mansbach - see here

(esp)

June 26, 2020 | Permalink | Comments (0)

Thursday, June 25, 2020

Disparity in White Collar and Non-White Collar Compassionate Release

There appears to be a growing economic disparity between those benefitting from compassionate release and those who are not being heard. Paul Manafort and others are being sent home due to COVID19 concerns. The latest is former judge Michael Conahan, who was allegedly involved in a scheme involving kickbacks from juvenile facilities.  See Michael R. Sisak & Michael Balsamo, AP, Kids-for-cash judge released from prison over virus concerns 

Many of the individuals receiving this relief should in fact be released.  Our prisons could certainly use some social distancing, not to mention the fact that we are country with exhorbitant prison populations.  But how about some parity in this relief?

(esp) 

June 25, 2020 | Permalink | Comments (0)

Wednesday, June 24, 2020

Judiciary Hearing - Stone Case & Antitrust - Politics Does Not Belong in DOJ

This is one of the saddest hearings I have heard in a long time - "special treatment" clearly entered into decisions at the Department of Justice.  We heard a member of congress tapping on the table to interfere with our ability to hear what the speaker was saying. But despite this conduct by a member of the House, we eventually did get to hear from civil servant witnesses - who risked their careers to come forward with important information concerning improper influence being used in the DOJ.  

Two AUSAs testified to influence beyond the merits being considered in matters in the DOJ. And it is not limited to just one area - testimony is that it happened with the Stone case, and happened in Antitrust.  Politics did enter into DOJ years back.  For example, there was an investigation in June 2008 of allegations of politicized hiring in the Department of Justice Honors Program and Summer Law Intern Program here.  But one would have hoped that lessons would have been learned from this past conduct.  It is more disturbing to hear that Presidential tweets are factoring into conduct at the DOJ.

Thank you John Elias and Aaron Zelinsky for coming forward - "the truth still matters." 

(esp) 

June 24, 2020 in Prosecutors | Permalink | Comments (0)

Commentary on Flynn Decision - What Should Judge Sullivan Do Now?

The opinion of the DC Circuit Court can be found here - Download Flynn opinion 

Some thoughts - 

1.  Bottom line is that the decision in a 2-1 vote that the Flynn case should be dismissed.

2. Rule 48 plays a crucial role in the decision - " Whatever the precise scope of Rule 48's 'leave of court' requirement, this is plainly not the rare case where further judicial inquiry is warranted."

3. The court rejects Flynn's request to seek reassignment of the district judge. 

4.  The court relies heavily on the Fokker decision.

5.  Much of the decision (7 pages) is spent on responding to the dissent. 

6. The court states - "This is not a case about whether 'a district judge may even hold a hearing on a Rule 48(a) motion. . . .  Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus, encouraging public participation, and probing the government's motives." 

The dissent - 

1.  This is first time granting a mandamus without first giving the lower court a chance to rule. - "Flynn fails to carry his burden, and especially given that the District Court has yet to rule on the motion to dismiss, the writ should not issue to compel the District Court to grant the motion."

2. The court is using dicta from the Fokker case, which creates a split with other Court of Appeals.  

3. "Both this Court and the Supreme Court regularly permit the participation of amici in the criminal context, however, and there is no readily apparent reason why, in appropriate circumstances, a district court might not exercise its inherent power to do the same - especially in the absence of any authority expressly prohibiting it."

So what happens now?

Will  Judge Sullivan ask for an en banc review of this decision?  Will he conduct an inquiry as he did in the Ted Stevens case?  And are there other options here?  Stay tuned. 

(esp)

June 24, 2020 in Judicial Opinions | Permalink | Comments (0)

Amicus Briefs in Flynn Case - And Opinion by DC Circuit Court

It started with a Motion to Dismiss the Flynn case here. Sol Wisenberg posted here some of the filings in the Circuit Court, and here some of the filings in the District Court.   Here are some additional amici briefs that raise some interesting points.  And the court's opinion is here - Download Flynn opinion

Amicus Brief for the States of Ohio, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas, Utah and West Virginia as Amici Supporting the Petitioner - Download Amicus - states for petitioner

Amicus Brief of Lawyers Defending American Democracy, Inc. - In Opposition to the Petition for a Writ of Mandamus - Download Amicus - ldad amended (1)

Corrected Brief of Watergate Prosecutors as Amici Curiae in Support of Respondent - Download Amicus - watergate prosecutors corrected

Corrected Brief of Amicus Curiae John M. Reeves in Support of Granting Mandamus in Favor of Petitioner Michael T. Flynn and Respondent the United States - Download Amicus - john reeves for petitioner corrected 

(esp)

 

June 24, 2020 | Permalink | Comments (0)

DC Circuit Rules in Flynn Case - Dismiss Case

Harper Neidig, Appeals court orders judge to dismiss Flynn charges, The Hill.

Commentary to follow.

(esp) 

June 24, 2020 | Permalink | Comments (0)

Tuesday, June 23, 2020

Politics in DOJ- The Stone Case

Karoun Demirjian, Matt Zapotosky & Rachael Bade, Prosecutor to tell Congress of pressure from ‘highest levels’ of Justice Dept. to cut Roger Stone ‘a break’, Wash Post here (check out the opening statement of Aaron Zelinsky).

(esp) 

June 23, 2020 | Permalink | Comments (0)

Friday, June 19, 2020

U.S. v. Michael Flynn: The Responses to Gleeson's Amicus Brief in Judge Sullivan's Court

Attached are the separate Responses of Michael Flynn and the Department of Justice to former federal judge John Gleeson's Amicus Brief in U.S. v. Flynn.  A copy of Gleeson's Brief is also attached for ease of reference. Keep in mind that all of these papers were filed in Judge Emmet Sullivan's court, rather in the DC Court of Appeals which is hearing General Flynn's Petition for Writ of Mandamus against Judge Sullivan. This is because it was Judge Sullivan who decided to appoint an amicus and set a lengthy briefing schedule instead of granting the Motion to Dismiss outright or simply holding a hearing in the first place.

The DOJ Response, in addition to demolishing Gleeson's legal arguments, puts more stress than before on the Interests of Justice rationale for moving to dismiss the case against General Flynn. I'll be commenting on that in the next few days. DOJ also goes out of its way to oppose the Flynn camp's position that there was prosecutorial misconduct connected to the prosecution. DOJ rejects this out of hand, both with respect to all of the older exculpatory materials and the information discovered, declassified, and turned over by U.S. Attorney Jeffrey Jensen within the last two months. DOJ in fact turned over a significant amount of exculpatory material prior to General Flynn's guilty plea. Of course, we still have the mystery of the missing original draft 302, which has not been explained to my satisfaction by the Fan Belt Inspectors. 

As noted, the Jensen documents were not turned over until very recently, but there is no indication that any prosecutor knew, much less received, these items. That's important, because these items unmistakably lend further support to the view that Flynn's January 24 statements to FBI Special Agents were not material to the FBI's Crossfire Hurricane investigation. This makes the items Brady in my view. But DOJ still has its institutional interests to protect. And it has historically been in the forefront of seeking to limit the reach of Brady. 

More to come on all of this.

Brief for Court Appointed Amicus John Gleeson

Gov. Response to Gleeson Br.Final

FLYNN OPPOSITION TO GLEESON FILING v.25

(wisenberg)

June 19, 2020 in Contempt, Current Affairs, Government Reports, Judicial Opinions, Legal Ethics, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)

Sunday, June 14, 2020

The Flynn Plea Agreement: A Pernicious Paragraph

One of the ironies of high-profile, criminal investigations of public officials, particularly Special and Independent Counsel investigations, is the outrage expressed by certain segments of the populace upon discovering the existence of very common law enforcement techniques. Hence the outrage among President Clinton's supporters when they learned that Linda Tripp secretly tape-recorded her "best friend" Monica Lewinsky at the behest of Ken Starr's prosecutors. Hence the outrage, among Trump's supporters,  when they discovered that FBI officials wanted to catch General Flynn in a lie and threatened his son with prosecution in order to coerce a guilty plea. "That happens all the time," say the know-it-all criminal law cognoscenti who fellow-travel with one side or another, as well as their minions who parrot the party line to the faithful. Except in the case of Judge Starr. Almost nobody was on our side, parroting our points. Except the courts. Most of the time. But I digress.

Our subject today is a nasty little paragraph inserted into General Flynn's plea agreement by Bob Mueller's staff. I first started noticing this provision 5 or 6 years ago in some of the plea offers that came my way, depending on which U.S. Attorney's Office I was dealing with at the time. It has shown up more often since then, but is far from universal. It can be found in most or all of the Mueller team's plea agreements. It is typically found in Paragraph 9(F) within the Waivers section. It states as follows: "Your client agrees to waive all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including and without any limitation any records that may be sought under the Freedom of Information Act, 5 U.S.C. Section 552, or the Privacy Act, 5 U.S.C. Section 552(a), for the duration of the Special Counsel's Investigation." The limiting of the waiver to the duration of the investigation is not a feature I have previously encountered.

Although the waiver does not mention Brady material on its face, it clearly applies to requests for exculpatory records. (As I noted here recently, it was after General Flynn’s case was transferred to Judge Sullivan’s court, and Sullivan entered his broad standing Brady Order, that Mueller’s team appears to have provided voluminous additional discovery to Flynn’s lawyers.) Prosecutors have a constitutional duty to turn over exculpatory information to the defense even if defense counsel does not request it. But case law holds that more detailed, specific defense requests create a greater prosecutorial obligation. In my view, this paragraph forces defense counsel to breach his or her ethical duties to the client to vigorously demand Brady material as well as mitigating information required under state ethical rules and the McDade Amendment. The Department of Justice should put a stop to this and prohibit all such provisions from being part of its plea agreements. This includes FOIA requests, which serve to ensure, post-judgment, that the government's Brady obligations have been met.  Here is the Flynn Plea Agreement.

(wisenberg)

 

 

June 14, 2020 in Current Affairs, Defense Counsel, Investigations, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)

Thursday, June 11, 2020

Michael T. Flynn Petition for Writ of Mandamus: Case Materials

Reply briefs were filed yesterday in the U.S. Court of Appeals for the D.C. Circuit in In re: Michael T. Flynn. Oral arguments are set for tomorrow morning, June 12. Attached here are; Flynn's Emergency Petition for Writ of Mandamus; the D.C. Circuit's  highly unusual May 21, 2020 Order requiring Judge Emmet Sullivan to respond to the Petition's argument that Sullivan is obliged to grant DOJ's Motion to Dismiss the Flynn Indictment with prejudice; Judge Sullivan's June 1, 2020 Brief in Response to the Court of Appeals Order; Flynn's June 10 Reply Brief; DOJ's June 10 Reply Brief; and a further Response Brief on behalf of Judge Emmet G. Sullivan. Enjoy!

In re Micheal Flynn Petition for a Writ of Mandamus

U.S. Court of Appeals Order Directing Judge Sullivan to Respond to Michael Flynn's Emergency Petition for a Writ of Mandamus

Brief for Judge Emmet Sullivan in Response to DC Circuit Court Order

DOJ DC Circuit Reply to Sullivan Response on Flynn Petition for Mandamus

Flynn DC Circuit Reply to Sullivan Response on Flynn Petition for Mandamus

Judge Emmet Sullivan's 6-10-2020 Response to the other briefs

(wisenberg)

June 11, 2020 in Contempt, Current Affairs, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)

Saturday, June 6, 2020

Materiality and the Flynn Prosecution

Title 18, United States Code, Section 1001, criminalizes certain false statements or omissions made to the federal government. The statute requires that the false statement be material to a matter within the jurisdiction of a federal agency or department. Materiality is an element of the offense that must be alleged and proved beyond a reasonable doubt. It is usually a fairly easy element for prosecutors to establish.

General Michael Flynn was charged with violating Section 1001 in a one count Criminal Information that tracked a portion of the statutory language. The Information was filed in federal court on December 1, 2017, by prosecutors in Special Counsel Robert Mueller's office. Those prosecutors charged Flynn with lying to the FBI during the course of a White House interview conducted on January 24, 2017. The January 24 interview concerned late December 2016 conversations between Flynn and Russian Ambassador Vitaly Kislyak during the post-election Presidential transition period.

A federal court cannot accept a guilty plea without a Factual Basis, sometimes referred to as a Factual Statement or Statement of the Offense. It is typically filed along with the Plea Agreement or is incorporated into the Plea Agreement itself. According to the Statement of the Offense filed in General Flynn's case:  "Flynn's false statements and omissions impeded and otherwise had a material impact on the FBI's ongoing investigation into the existence of any links or coordination between individuals associated with the Campaign and Russia's efforts to interfere with the 2016 presidential election." We now know this wasn't true. Flynn's statements, whether false or not, had no effect on the Russian Collusion investigation.

Crossfire Hurricane, launched on July 31, 2016, was the name given to the FBI’s counterintelligence investigation into possible collusion, witting or unwitting, between members of Trump’s campaign team and Russians attempting to influence the 2016 election. Crossfire Hurricane was not begun based on any allegations related to General Michael Flynn.  Instead, the Bureau authorized Crossfire Hurricane after it learned, third-hand, that Russia may have “suggested” assisting the Trump campaign by anonymously releasing dirt on Hillary Clinton. An FBI subfile was created on Flynn, not because of any allegations against him, but because of Flynn’s known contacts with Russia. Such contacts would hardly be surprising for a former Director of the Defense Intelligence Agency who was a Trump advisor rumored to be Trump’s choice for National Security Director if he won the election. The subfile investigation of Flynn was known as Crossfire Razor.

FBI officials Jim Comey, Andy McCabe, Peter Strzok, and Lisa Page each knew, well before Flynn's January 24 interview, that the General had no involvement whatsoever in any improper or illegal coordination with Russia regarding the 2016 election. Flynn had already been completely cleared in Crossfire Razor by January 4, 2017. A draft Closing Communication, documenting the complete lack of evidentiary support for Flynn's involvement in, or knowledge of, 2016 election collusion, was prepared on January 4 by the Crossfire Razor team. But the decision to close the file had been made even before January 4. Such a draft Closing Communication would never have been commenced unless the case agents had received prior approval from their FBI Supervisor, and Former FBI Director Comey testified that he authorized the closing of Crossfire Razor by December 2016. 

But none of this exculpatory information regarding materiality was shared at any time with the original defense attorneys representing Flynn, either before or after he entered his December 1, 2017 guilty plea. (Nor was it shared with Deputy Attorney General Rod Rosenstein, who was by then the Acting Attorney General for purposes of the Mueller Investigation and had final authority over Mueller's charging decisions.) The knowledge that Flynn's January 24, 2017 interview responses did not influence and were arguably incapable of influencing the Crossfire Hurricane investigation was relevant both to Flynn's guilt and punishment. While there is some uncertainty in the law as to whether Brady material must be turned over to the defense prior to a guilty plea, there is no uncertainty about Judge Emmet G. Sullivan's standing Discovery Order that he enters in every criminal case, and entered in Flynn's. It directs the government "to produce to defendant in a timely manner any evidence in its possession that is favorable to defendant and material either to defendant's guilt or punishment. This government responsibility includes producing, during plea negotiations, any exculpatory evidence in the government's possession."

Flynn had already pled guilty when his case was transferred to Sullivan's court, but he was still awaiting punishment. After the case was transferred, and Sullivan entered his Standing Order, Mueller's team produced voluminous additional documents to Flynn's team. Why did they do this when, under the terms of the Plea Agreement, Flynn was no longer allowed to request additional documents from the government? Because Mueller's prosecutors knew the significance of Sullivan's Standing Order and the additional burden it placed on them. Moreover, Sullivan had Flynn reaffirm his original plea colloquy, under oath, in December 2018. There is thus no question that the information discovered by Eastern District of Missouri U.S. Attorney Jeffrey Jensen, and publicly released for the first time last month at the direction of Bill Barr, should have been produced by Mueller's team to Flynn. What we don't know yet is whether any prosecutor on Mueller's original team, or on the post-Mueller team handling the Flynn case, knew about the recently disclosed documents. 

And one more thing. You can ignore commentators like Chuck Rosenberg, who recently listed here, in the Washington Post, all the folks (Trump, Pence, Priebus, etc.) who presumably thought Flynn's allegedly false statements were material. Chuck is relying on the general public's ignorance of federal criminal law. The only materiality at issue in U.S. v. Flynn is the materiality of the January 24, 2017 statements Flynn made to high-ranking FBI Supervisory Agents, which statements formed the basis of Michael Flynn's guilty plea and Statement of the Offense. Those post-inauguration statements about post-election conversations with Ambassador Kislyak, were clearly immaterial to an investigation of election-related collusion that had already cleared Flynn.

(wisenberg)

June 6, 2020 in Current Affairs, Defense Counsel, Government Reports, Investigations, Judicial Opinions, News, Obstruction, Perjury, Prosecutions, Prosecutors, Sentencing | Permalink | Comments (1)

Thursday, May 7, 2020

DOJ Moves to Dismiss Flynn Case

Here is a copy of the Government's Motion to Dismiss the Criminal Information Against the Defendant Michael T. Flynn  - Download U.S. v. Flynn--Government Motion to Dismiss (1)  But will it be as easy as some may think?  Commentary to follow.

(esp) 

May 7, 2020 in Current Affairs, Prosecutions, Prosecutors | Permalink | Comments (0)

Bridgegate Convictions Reversed - Unanimous - Of Course!

Of course the Bridgegate (Kelly v. United States) case was reversed by the Supreme Court here. And of course, it was unanimous. (Just like McDonnell)

Justice Kagan authored the 12 1/2 page decision. Yes, the court did note that the lanes leading to the George Washington Bridge were realigned and that "they did so for a political reason - to punish the mayor of Fort Lee for refusing to support the New Jersey Governor's reelection bid." But the Court holds, "not every corrupt act by state or local officials is a federal crime."  Here are some key points:

  • This decision reminds us that no matter how many times the government tries to get around the "money or property" element of the statute - it will not work. 
  • The Court makes it clear that regulatory activity is not property - repeating its holding from Cleveland.
  • "Employee's labor was just the incidental cost of that regulation, rather than itself an object of the officials' scheme."  The Court later says, "[b]ut that property must play more than some bit part in a scheme: It must be an 'object of the fraud.'"  "Or put differently, a property fraud conviction cannot stand when the loss to the victim is only an incidental byproduct of the scheme."
  • The Court reminds readers of the Skilling opinion  - "We specifically rejected a proposal to construe the statute as encompassing 'undisclosed self-dealing by a public official' even when he hid financial fraud interests."

Many will not like this opinion, but it really is good to see for several reasons. For one it shows a united Court interpreting a statute consistently.  Two it shows that when the government goes to stretch the statute it will not be tolerated.  Three it puts back on the states the police power to stop activities within their powers. And most importantly, although the Court does not state this, the decision sends a message to the public of the importance of the ballot box - if you don't like political activities, voting is your place to express it.

(esp)

May 7, 2020 in Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Sunday, May 3, 2020

"Designing Corporate Leniency Programs"

Professor Miriam H. Baer of Brooklyn Law School recently posted on SSRN a chapter titled Designing Corporate Leniency Programs, to be published in the forthcoming book Cambridge Handbook on Compliance (D. Sokol & B. van Rooij eds.).  The Abstract states:

"Corporate leniency programs promise putative offenders reduced punishment and fewer regulatory interventions in exchange for the corporation’s credible and authentic commitment to remedy wrongdoing and promptly self-report future violations of law to the requisite authorities.

Because these programs have been devised with multiple goals in mind—i.e., deterring wrongdoing and punishing corporate executives, improving corporate cultural norms, and extending the government’s regulatory reach—it is all but impossible to gauge their “success” objectively. We know that corporations invest significant resources in compliance-related activity and that they do so in order to take advantage of the various benefits promised by leniency regimes. We cannot definitively say, however, how valuable this activity has been in reducing either the incidence or severity of harms associated with corporate misconduct.

Notwithstanding these blind spots, recent developments in the Department of Justice’s stance towards corporate offenders provides valuable insight on the structural design of a leniency program. Message framing, precision of benefit, and the scope and centralization of the entity that administers a leniency program play important roles in how well the program is received by its intended targets and how long it survives. If the program’s popularity and longevity says something about its success, then these design factors merit closer attention.

Using the Department of Justice’s Yates Memo and FCPA Pilot Program as demonstrative examples, this book chapter excavates the framing and design factors that influence a leniency program’s performance. Carrots seemingly work better than sticks; and centralization of authority appears to better facilitate relationships between government enforcers and corporate representatives.

But that is not the end of the story. To the outside world, flexible leniency programs can appear clubby, weak and under-effective. The very design elements that generate trust between corporate targets and government enforcers may simultaneously sow credibility problems with the greater public. This conundrum will remain a core issue for policymakers as they continue to implement, shape and tinker with corporate leniency programs."

(esp)

May 3, 2020 in Books, Deferred Prosecution Agreements, Investigations, Scholarship | Permalink | Comments (0)

Wednesday, March 25, 2020

Call For Papers: “Race AND Gender AND Policing”

FR: Program on Race, Gender & Policing
University of Nevada, Las Vegas
William S. Boyd School of Law

TO: Scholars of Law, Criminology, or Related Matters

We are pleased to announce a call for papers for a special issue of the Nevada Law Journal on “Race AND Gender AND Policing.” Guest-edited by the faculty board of UNLV Boyd School of Law’s Program on Race, Gender & Policing, this issue will bring together scholars of Law, Criminology, and related fields for an interdisciplinary conversation centered on the simultaneous analysis of race and gender and policing. We construe this topic broadly as encompassing all forms of surveillance and control, including but not limited to aspects of local law enforcement, national immigration policies, and school discipline rules that reflect or construct assumptions about both race and gender.

Interested parties should submit abstracts of at least 375 words (we encourage longer abstracts and draft papers are permitted) to frankrudy.cooper@unlv.edu with the heading “Call For Papers.” Submissions may be Essays of approximately 6,250 words or Articles of significantly greater length. Abstracts are due on or beforeMay 5, 2020. We will notify people of their acceptance by May 20, 2020. Complete first drafts of Essays will be due August 20, 2020. Submissions will be published in Volume 21, Issue 3 of the Nevada Law Journal, which will print in April 2021.

The Program on Race, Gender & Policing explores the relationship between race, gender, and the ways people are policed. Policing refers to not only the activities of law enforcement officers, but also the ways that other actors, such as immigration officials, prison officials, schools, and private civilians, participate in surveillance and control. The Program seeks to foster interdisciplinary research and concrete reforms in Nevada, the nation, and beyond. Our goal for this symposium is nothing less than to produce an issue that becomes the best statement of how race and gender and policing come together.

Potential paper topics include, but are in no way limited to, the following:

· Analyses of how police officers view both race and gender;
· Constitutional issues surrounding policing of both race and gender;
· Criminalization of Latinx identities;
· Police assaults against women of color;
· Policing of LGBTQ+ in Asia;
· Differential race and gender effects of private patrolling of space;
· Policing of Native women;
· Racial profiling and masculinities;
· Disappearances of women in Mexico, the U.S., Canada, or elsewhere;
· Disparities in policing in schools;
· Differential racial effects of low rape clearance rates;
· [Anything else addressing a form of policing and both race and gender].

We also encourage activists and practitioners to write accounts of their activities and cases that bring together issues of race and gender and policing. Regardless of an author’s topic, the editors will carefully review all proposals and make selections based on quality and relevance. We encourage both veterans of this topic and emerging scholars to submit proposals.

If you have any questions, please contact Frank at frankrudy.cooper@unlv.edu.

With gratitude,

Boyd Law Professors Stewart Chang, Frank Rudy Cooper, & Addie Rolnick,
Nevada Law Journal Editors John McCormick-Huhn & Gillian Block

(esp)

March 25, 2020 | Permalink | Comments (0)

Friday, March 20, 2020

NACDL Coronavirus Resources

NACDL created a resource page to assist criminal defense attorneys here.

(esp)

March 20, 2020 in Defense Counsel, News | Permalink | Comments (0)

Thursday, March 19, 2020

He Did What?

See Robert Faturechi & Derek Willis, Senator Dumped Up to $1.7 Million of Stock After Reassuring Public About Coronavirus Preparedness. ProPublica.

See also Michelle Ye Hee Lee & John Wagner, Sen. Richard Burr (R-N.C.), head of powerful committee, sold large amount of stocks before sharp declines in market, Wash Post

Should it be sufficient that his office says that he filed "financial disclosure form for personal transactions"? 

(esp)

March 19, 2020 in Insider Trading | Permalink | Comments (0)