Sunday, February 28, 2010

Jeff Skilling's Day With the Supremes is Today

Today is Jeff Skilling's chance to convince the Supreme Court that either section 1346 (intangible rights to honest services) is vague or should only apply to bribery cases, or that his trial was tainted and that there should have been a change for venue.  The Skilling case is one of three cases before the Court this term examining section 1346, the honest services fraud provision of the fraud statutes. One thing I continue to maintain is that the government can survive without section 1346 (see here).  My preview for the Black and Weyrauch case are here, and much of this applies to this case.  Unlike the past two cases, the Skilling decision is a frontal attack on the statute, although Skilling also has a fallback position as noted above.

The Briefs for the case can be found here.  See also Scotus Blog here.

Below is a listing of prior posts that lead up to today's oral argument:

 Skilling Files Petition for Cert

Skilling Asks for En Banc Hearing

What Others Are Saying About the Skilling Decision

Skilling - Commentary on the Decision

Skilling- Sentencing Reversal and Remand; Conviction Stands

Skilling Hearing - Sounds Like it Wasn't a Hot Bench

They're Expecting A Crowd for Skilling

Wednesday Is Jeffrey Skilling Day


February 28, 2010 in Fraud | Permalink | Comments (1) | TrackBack (0)

Reining In Honest Services Fraud

Guest Blogger - Stephen Richer

Stephen Richer is the Director of Outreach at Washington Legal Foundation

"Show me the man, and I will show you the crime," said Lavrenti Beria, Stalin’s Chief of Police. 

Such is the sentiment that Noel J. Francisco of Jones Day evoked when describing the Honest Services Fraud Statute at a recent Washington Legal Foundation Media Nosh.

The Honest Services Fraud refers to the 28 word addition to the mail and wire fraud statute: "For the purposes of this chapter, the term, scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services."

In so few words lies enormous prosecutorial power, and, as such, the statute has been the subject of two recent Supreme Court arguments: Weyhrauch v. United States and Black v. United States, and is the focus of the upcoming hearing of Skilling v. United States.

According to Mr. Francisco, such cases arise out of the government’s desire to respond to public outrage, and the Honest Services Fraud statute is a perfect tool for doing so. "This is a typical executive response of we've gotta’ find scalps," said Mr. Francisco.

Only later—many years after the fact—does the judiciary have the chance to review such governmental actions. Mr. Francisco predicts that after hearing this third case on the issue, the Supreme Court will "either strike down this intangible right to honest services or reign it in significantly."

To hear Mr. Francisco’s full remarks, as well as the remarks from The Honorable Dick Thornburgh, The Honorable Gregory G. Garre, and Patricia A. Millett, visit Washington Legal Foundation’s website for the archived version of the seminar.

Available here (the webcast must be accessed through Internet Explorer)


February 28, 2010 in Conferences, Fraud, News | Permalink | Comments (0) | TrackBack (0)

Happenings in Scholarship

Check out Prosecution Notes here (NYU) It includes an article by Michael L. Volkov & Allyson Miller (Dickinson Wright) titled, Prosecutorial Misconduct: An Increasing Problem or Overblown Hysteria?


February 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 25, 2010

In the News & Around the Blogosphere

Third Circuit Remands Brown (Rite-Aid) Case for Resentencing

An opinion issued by the Third Circuit Court of Appeals here affirmed the convictions of an individual who worked for the Rite Aid Corporation, on convictions for "conspiracy to commit accounting fraud, filing false statements with the SEC, conspiracy to obstruct justice, obstruction of grand jury proceedings, obstruction of government agency proceedings, and witness tampering."  Brown, age 76, received a sentence of ten years, but the sentencing was prior to Booker.  The court stated, "[l]acking this clairvoyance the Court failed to explain, in the manner now required, how it considered the factors listed in section 3553(a) in imposing Brown’s sentence."

See also Shannon P. Duffy, Legal Intelligencer,, 3rd Circuit Upholds Conviction of Former Rite Aid General Counsel


February 25, 2010 in Judicial Opinions, Sentencing | Permalink | Comments (0) | TrackBack (0)

In the News & Around the Blogosphere

Wednesday, February 24, 2010

Nadel Pleads Guilty

Michael Pollick & John Hielscher of the Sarasota Herald Tribune has the story here.

See also Thom Weidlich, Bloomberg, Florida Money Manager Nadel Pleads Guilty to Fraud


February 24, 2010 in Fraud, News, Prosecutions, Settlement | Permalink | Comments (0) | TrackBack (0)

Monday, February 22, 2010

In the News & Around the Blogosphere

Sunday, February 21, 2010

99 Year Sentence in State Case

We have seen some high sentences in white collar cases in federal court.  But it now looks like a high sentence is being given in a white collar state case.  Check out, press release, Texas State Securities Board,Jury Hands Down 99-Year Sentence for Architect of Multistate Securities Fraud.


February 21, 2010 in Fraud, News, Sentencing | Permalink | Comments (0) | TrackBack (0)

In the News & Around the Blogosphere

Memorial Site for Jack T. Litman z"l

Benjamin and Sacha Litman have created a wonderful memorial website for Jack T. Litman here

(esp) (see background here)

February 21, 2010 in Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Thursday, February 18, 2010

White Collar Crime - Up and Down

Trac Reporting here is saying that white collar crime prosecutions for November 2009 show a decrease of 25.0% from the prior month.  But on the other hand, when compared with a year ago, it is up 6.6 % and the percent change from 5 years ago is 18.6. (including magistrate court). The most telling increase is seen in the number of convictions.  Matched with 5 years ago, it is up 24.9% (see here). But again, these statistics need to be examined carefully. (see here and here), especially with regard to how the term "white collar crime" is defined.

(esp) (w/ disclosure that she is a B.S. graduate of Syracuse U.- home of the Trac Reports). 

February 18, 2010 in Think Tank Reports | Permalink | Comments (0) | TrackBack (0)

In the News & Around the Blogosphere

Wednesday, February 17, 2010

Scholarship - Sentencing

A  Note by Duke law student Derick R. Vollrath presents an important view on white collar sentencing. The Note titled, Losing the Loss Calculation: Toward a More Just Sentencing Regime in White-Collar Criminal Cases, states in the abstract that "[m]oreover, the loss calculation fails to adequately approximate a defendant’s culpability, dwarfing traditionally relevant considerations such as the manner in which the defendant committed the crime and the defendant’s motive for doing so."


February 17, 2010 in Scholarship, Sentencing | Permalink | Comments (0) | TrackBack (0)

Upcoming Conferences

24th Annual National Institute on White Collar Crime, Miami Beach, February 24-26 here

19th Annual National Seminar on the Federal Sentencing Guidelines, May 12-14, St. Petersburg, Florida here


February 17, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

In the News & Around the Blogosphere

New Scholarship

Tuesday, February 16, 2010

University of Texas Symposium - White Collar Crime

The University of Texas, The Review of Litigation's Symposium this year was devoted to white collar crime.  Titled,  White Collar Crime and the Changing Corporate Environment, Chief Symposium Editor Heather Mahurin and staff did an incredible job of bringing together top practitioners and a judge to examine the evolution of white collar crime and factors affecting this area. The event was sponsored by the law firm of Vinson & Elkins.  I had the pleasure of being the first speaker and providing an evolution of white collar crime.

The first panel of Tim McCormick (Thompson & Knight) and Carl Wessel (DLA Piper) looked at internal investigations and when one should seek outside counsel. It was not surprising to hear them mention the recent FCPA investigations, noting that the pharmaceutical area seems to also be part of the recent DOJ focus. Tim McCormick also talked about the concerns that get raised with Upjohn warnings.

A second panel looked at white collar crime prosecutions and it was appreciated that the Hon. Jennifer Coffman, Chief Judge of the Eastern District - Kentucky offered a judicial perspective.  Along with Kent Schaffer (Bires and Schaffer), there was a good bit provided on how emails were affecting the landscape of white collar cases. Mr. Shaffer noted how "people put things in emails that are shocking."  Telling "the story" to the jury is important, as is humanizing one's client. The participants on this panel also provided wonderful information on dealing with experts in white collar cases. The expert needs to be "not too academic" and "clear."

A final panel was focusing on  parallel proceedings and included top individuals like Solomon Wisenberg (Barnes & Thornburg).   It will be good to see the published works from this important symposium.  


February 16, 2010 in Investigations, Scholarship | Permalink | Comments (0) | TrackBack (0)

Anticipate More Health Care Fraud Cases

In a recent speech by AG Holder he recapped this year's health care fraud prosecutions and predicted that more would be coming. (see press release) Holder was speaking at the National Summit on Health Care Fraud.  He said that:

"last year brought record levels of achievement in our fight against health care fraud. In 2009, the Justice Department reached an all-time high in the number of health care fraud defendants charged, more than 800. We also obtained more than 580 convictions. And on the civil enforcement front, our health care fraud recoveries last year under the False Claims Act exceeded a stunning $2.2 billion dollars."

He spoke of five things that would be happening to combat health care fraud.  One of them was:

"we must strengthen HEAT. We will continue to combine and leverage our agencies’ resources and expertise, including the FBI and the Office of Inspector General at HHS, to prevent and prosecute fraud. HEAT will continue to work closely with local U.S. Attorneys Offices to pursue both civil and criminal cases. And in bringing these fraudsters to justice, we will use the power of the Internet and the media to inform the public and the health care industry about how to prevent future fraud schemes."

And just looking at this past month, one finds the emphasis on health care matters.  See DOJ Press Release,  Former Los Angeles Medical Center Owners Agree to $10 Million Consent Judgment for Medicare and Medi-Cal Fraud Scheme; DOJ Press Release, Jury Convicts Detroit Area Doctor of Health Care Fraud Conspiracy


February 16, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, February 15, 2010

DOJ Proactive Approach in Intellectual Property

DOJ is taking a pro-active approach in fighting intellectual property crimes.  AG Holder announced in a press release "the formation of a new Department of Justice Task Force on Intellectual Property as part of a Department-wide initiative to confront the growing number of domestic and international intellectual property (IP) crimes."


February 15, 2010 | Permalink | Comments (0) | TrackBack (0)