Tuesday, August 31, 2010

Roger's Reputational Dilemma

As expected, Roger Clemens pled not guilty on Monday to charges of perjury, false statements, and obstruction of Congress. He is represented by two of the ablest white collar criminal defense attorneys in the country—Rusty Hardin of Houston and San Diego’s Mike Attanasio. I know these men and their work. They are stellar lawyers.

The government asked Judge Reggie Walton to make Clemens surrender his passport in order to reduce the risk of flight. Honest. They really did. Give me a break. Walton didn’t buy it.

It is generally assumed that Clemens could have taken five before Congress and was therefore foolish to testify and subject himself to possible perjury charges. I’m not completely convinced of this, since the activity Congress was investigating at the time appears to have been beyond the statute of limitations. How can you incriminate yourself by truthfully admitting to something that you can no longer be prosecuted for?

At any rate, Clemens appeared without a subpoena, so there was no question of him not testifying. His attorneys will be able to argue to the jury that he had everything to lose and nothing to gain by appearing and testifying. Ergo, he must have been telling the truth. This can be a powerful argument in skilled hands, particularly in front of a DC jury, but it is better not to be forced to make it at all-better not to be indicted in the first place.

Roger's dilemma is the dilemma of the client with exposure, even limited exposure, who cannot or will not do the prudent thing and shut the hell up. It is best not to testify under oath, or even talk to the government, if you face potential criminal prosecution. Just ask Martha Stewart. But some high profile clients cannot take the perceived damage to their reputations involved in invoking the privilege. Clemens had the example of Mark McGwire in front of him. McGwire’s reputation was permanently and severely damaged by his refusal, on Fifth Amendment grounds, to answer a Congressional panel’s questions. 

I know, I know; the privilege protects the innocent as well as the guilty. But nobody believes that in television land. Had Clemens publicly invoked the privilege, he would have been scarred for life. And he is not some dime-a-dozen, $40 million bonus CEO. He is one of the immortals.

The reputational dilemma is not confined to high-profile clients or the decision to invoke the Fifth Amendment. As a prosecutor, I saw defendants refuse to take plea offers, including misdemeanors with no jail time, because they could not admit wrongdoing to a spouse or child. It is a reminder that the strategy and tactics of criminal defense work are not always confined to logical analysis. The human, emotional element is ever present.


August 31, 2010 in Celebrities, Congress, Current Affairs, Defense Counsel, Martha Stewart, News, Perjury, Privileges, Prosecutions, Prosecutors, Sports, Statutes | Permalink | Comments (6) | TrackBack (0)

Monday, August 30, 2010

Upcoming Conferences

ABA, The Fourth Annual National Institute on Criminal Enforcement of Intellectual Property Rights, Nov. 5, 2010, San Francisco here

ABA, The Fifth Annual National Institute on Securities Fraud, October 7-8, New Orleans here 

Strafford Webinars & Teleconferences - Foreign Corrupt Practices Act in Sub-Saharan Africa -Compliance Strategies Given the Region's Unique Cultural and Governmental Intricacies - Oct. 7, here

ABA, The Supreme Court’s Ruling on Honest Services Fraud:Where Do We Go From Here? - Sept. 14, here

ABA 2010 Fall Conference, Third Annual Sentencing and Reentry Institute and Criminal Justice Legal Educators Colloquim, Nov. 5, Washington, D.C. here 

Town Hall Meeting on The State of White Collar Crime (Ticketed Event): Thursday, Nov. 4 - 4:00 -5:30 p.m. Town Hall Meeting on The State Of White Collar Crime The ABA Criminal Justice Section White Collar Crime Committee invites you to join us for a discussion of critical White Collar Crime practice issues. The Town Hall Meeting will place a heavy emphasis on audience participation. This is your chance to be heard and to ask questions of White Collar Crime experts on these and other timely topics. Will honest services, public corruption, Brady compliance still be hot in November? Join us and find out. Knowledgeable practitioners from the government and the defense bar will be part of a panel of experts to provide issue background as the conversation unfolds. 5:30 – 7:00 p.m. Reception (Catered by Washington, DC Chef Art Smith)  here

NACDL, Ignorance Is Bliss, But Is It Also a Crime? Opening Your Eyes to the Willful Blindness Doctrine, Sept. 16, 2010 5-7:30 p.m. Washington DC here


August 30, 2010 in Conferences, News | Permalink | Comments (0) | TrackBack (0)

Sunday, August 29, 2010

11th Circuit Reverses on Failure to Give Good Faith Reliance Instruction

The Eleventh Circuit Court of Appeals reversed several convictions in the case of United States v. Kottwitz for failure to give a "requested special instruction to the jury on their good faith reliance on their accountant's advice."

The court stated: "A trial court is not free to determine the existence of the defendant’s theory of defense as a matter of law; it is established by the defendant’s presentation of an evidentiary and legal foundation and, once established, the defendant is entitled to jury instructions on that defense theory." (citations omitted) 

The court also stated: "The defendant bears an "extremely low" threshold to justify the good faith reliance instruction and does not need to prove good faith."

 Finally the court said: "The instruction is appropriate even where the evidence might lead the jury to conclusions that would not benefit the defendant because refusing the charge withdraws the point from the jury’s consideration and a jury should be given the opportunity to resolve all questions of fact."

See also Carl Lietz & Paul Kish, Federal Criminal Lawyer Blog, Kottwitz: Eleventh Circuit Holds Trial Court Should Have Given Good Faith Defense Jury Instruction


August 29, 2010 in Judicial Opinions, Tax | Permalink | Comments (2) | TrackBack (0)

Wednesday, August 25, 2010

Recommended Reading: Kings of Tort

The second edition of Kings of Tort has recently been released by Pediment Publishing. Billed as "the true story of Dickie Scruggs, Paul Minor, and two decades of political and legal manipulation in Mississippi," it is written by my old friend Tom Dawson (former AUSA and Criminal Chief in the Northern District of Mississippi) and Alan Lange. The story is clearly told from a pro-prosecution point of view, but, that said, it is a terrific read.  The case fell into Dawson's lap through the courage of  Mississippi State Court Judge Henry Lackey, who was offered a bribe (in a case pending before him) by a co-conspirator of tort king Dickie Scruggs. Lackey went to the feds and the rest is history. The book gives a fascinating look at the strategy and tactics employed by Dawson, his colleagues at the U.S. Attorney's Office, and the FBI. Dawson had to keep the entire investigation secret in a very small legal community where everybody's business is typically well known. Good luck, good planning, and tough professionalism kept the undercover operation running smoothly, while co-conspirators were confronted and turned one by one. Make no mistake about it, this is an account written from the federal government's perspective. Yet it offers a unique contemporary glimpse into how a federal public corruption case is built. The subtitle is somewhat misleading, as there is far more about the Scruggs case than the Minor case in the book. I recommend it highly. There is an accompanying web site, with supplementary materials, at kingsoftort.com.


August 25, 2010 in Books | Permalink | Comments (1) | TrackBack (0)

Saturday, August 21, 2010

New Book - Careers In Criminal Law

Ellen C. Brotman, Careers in Criminal Law   - The promo states:

The book is organized into five different parts:

  • Part I focuses on traditional criminal defense, including public defending, white collar criminal defense, big firm practice, solo practice and appellate and post conviction advocacy.
  • Part II tells the stories of those who prosecute, in state court, federal court, and juvenile court.
  • Part III describes the journeys of three judges in three very different venues.
  • Part IV explores careers representing defendants who have been convicted as they attempt to get back on track.
  • Part V presents a handful of careers in criminal law that simply defy categorization.

Some legal career books provide advice on how to enter and succeed in a certain niche; some provide checklists on how to open a practice; some provide the necessary basic black letter law. While the articles in this book have components of all these types of useful advice, this book has tried to do more. This book seeks to give the reader insight into the type of person who will do well in a career in criminal law.

(esp)(hat tip to Evan Jenness)

August 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 19, 2010

Roger Clemens Indicted

The Washington Post story is here and has a link to the indictment. Nothing yet up on PACER. Clemens is charged in six counts with perjury, false statements, and obstruction of Congress.


August 19, 2010 in Celebrities, Congress, Current Affairs, Grand Jury, Investigations, Media, Obstruction, Perjury, Prosecutions, Sports | Permalink | Comments (2) | TrackBack (0)

Clemens to be Charged?

The Wall Street Journal is reporting here that baseball great Roger Clemens will soon be indicted by a federal grand jury for perjury.


August 19, 2010 in Celebrities, Congress, Current Affairs, Grand Jury, Investigations, Obstruction, Perjury, Prosecutions | Permalink | Comments (0) | TrackBack (0)

In the News & Around the Blogosphere

Post-Skilling Documents

NACDL's White Collar Policy Department would like to compile all filings and rulings in honest services fraud cases post-Skilling.  They plan to make these documents available in an online repository for the benefit of NACDL members.  They are interested in identifying cases, filings and decisions in this emerging area of law.  Briefs, motions, petitions for cert., as well as habeas petitions are appreciated.  To the extent that you are even aware of a pending case that is likely to involve post-Skilling litigation, please share that information with this office. 

All information and materials should be sent to Tiffany Joslyn at tiffany@nacdl.org.  We prefer materials in PDF or Word format.  Should you have any questions, please contact Tiffany at the above email
address or (202) 872-8600 x260. 

For those who do not mind having these items posted online on the blog - send them to me at epodgor@law.stetson.edu


August 19, 2010 in Fraud, Judicial Opinions | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 18, 2010

New Blog - Washington Post's Market Cop

Welcome to the blogosphere the Washington Post's new financial crime blog - Market Cop here.


August 18, 2010 in News | Permalink | Comments (0) | TrackBack (0)

Barclays Bank PLC Forfeiting 298 Million Dollars

Many of the recent corporate settlements with the government have focused on violations of the Foreign Corrupt Practices Act.  This one is somewhat unique in that the $298 Million Dollars being forfeited are for violations of the International Emergency Economic Powers Act (IEEPA) and the Trading with the Enemy Act (TWEA). A DOJ Press Releasestates that "[t]he violations relate to transactions Barclays illegally conducted on behalf of customers from Cuba, Iran, Sudan and other countries sanctioned in programs administered by the Office of Foreign Assets Control (OFAC)." The forfeiture was part of a deferred prosecution agreement with DOJ and the NY County District Attorney's Office. 

Barclay's press release notes that it "worked closely and constructively with the US Authorities."  They noted that "[t]he US Authorities have recognised Barclays substantial cooperation in the resolution." It sounds like 100,000 members of Barclay's staff will be going through training programs.

See also Mike Scarcella, BLT Blog, Judge Approves $298M Settlement Between DOJ, Barclays Bank; William McQuillen & Jesse Westbroook, Barclays Follows Citigroup With Court Rejection of U.S. Accord


August 18, 2010 in Deferred Prosecution Agreements, International | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 17, 2010

Blago Verdict: Read All About It

The former Governor of Illinois is convicted on one Section 1001 count while the jury hangs on the other 23 charges. The jury hangs on all counts against Blago's brother. The Los Angeles Times has the story here. When the testimony wrapped up two weeks ago, Esquire asked its reporter John Bohrer to pretend he was a juror and opine on the outcome. Bohrer's analysis of the evidence is here. In a remarkable bit of prescience, Bohner noted that, "the Government couldn't close the deal. And that's why I'm voting to acquit." Bohrer still hated Blago, but did not feel that he belonged in prison or was worth the expense to prosecute. "I'll hand it to the prosecution on one of these charges: It does seem like he stone-cold lied to the FBI when they questioned him about whether he mixed state business with fundraising."  Pretty close call. Pretty amazing.


August 17, 2010 in Celebrities, Corruption, Current Affairs, Fraud, Prosecutions, Prosecutors, Verdict | Permalink | Comments (1) | TrackBack (0)

Monday, August 16, 2010

Ellen Podgor Receives Heeney Award

The National Association of Criminal Defense Lawyers' most prestigious award is the Robert C. Heeney Memorial Award, established in 1981 in honor of Heeney, NACDL's 18th President. According to NACDL's website, the Heeney Award "is given annually to the one criminal defense attorney who best exemplifies the goals and values of the Association, and the legal profession." Past winners have included such giants in our profession as Albert Krieger, Barry Tarlow, Nancy Hollander, Barry Scheck, Barbara Bergman, Gerry Goldstein, Lisa Wayne, and Jeffrey Fisher.

This past Saturday in Toronto, at its annual convention, the NACDL gave the 2010 Heeney Award to Ellen S. Podgor. I can't think of anyone more deserving. Congratulations, Professor Podgor!


August 16, 2010 in Celebrities, Conferences, Current Affairs, Defense Counsel, News | Permalink | Comments (2) | TrackBack (0)

Sunday, August 15, 2010

UC College of Law Faculty Position Posting

The University of Cincinnati College of Law invites applications from entry-level and lateral candidates for as many as two tenure-track or tenured faculty positions in a broad number of areas, including agency/partnership/unincorporated business associations, civil procedure, commercial law, corporations, criminal law, criminal procedure, employment and labor law, evidence, immigration, international law, property, torts, and wills and trusts. We also seek applications for visiting faculty positions in those areas. All applicants should have a distinguished academic background and either great promise or a record of excellence in both scholarship and teaching. The University of Cincinnati is committed to a diverse faculty, staff, and student body. We encourage applications from women, people of color, persons with disabilities, and others whose background, experience, and viewpoints would contribute to the diversity of our faculty. Contact: Professor Verna L. Williams, Chair, Faculty Appointments Committee; University of Cincinnati College of Law; P.O. Box 210040; Cincinnati, OH 45221-0040.


August 15, 2010 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Saturday, August 14, 2010

New Books and Articles

Gary Collins & David Z. Seide, Warning the Witness: A Guide to Internal Investigations and the Attorney-Client Privilege, ABA here

Harvey Silverglate, Forbes, Trust Me: Justice Is My Last Name


August 14, 2010 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, August 13, 2010

New FCPA Article

Bruce Hinchey, Punishing the Penitent: Disproportionate Fines in Recent FCPA Enforcements and Suggested Improvements

Abstract (SSRN):
The Department of Justice has long promised tangible benefits to companies that voluntarily disclose Foreign Corrupt Practices Act (FCPA) violations. Justice Department officials have promised that the enforcement of the FCPA is both fair and consistent. Despite these promises, critics question the benefits of voluntary disclosure based on the outcome of a few, isolated cases. In this thesis, forty FCPA cases from 2002 through 2009 are compiled, comparing the ratio between bribes and fines for companies that do and do not voluntarily disclose. The results side with the critics and reveal that there does not appear to be a benefit to voluntary disclosure. The data from these cases is then used to identify how the FCPA can be honed to encourage compliance and deter violations in a fairer and more efficient manner. Next, comparisons are made between the FCPA and other anti-corruption organizations and entities, with the intent of incorporating refinements to the voluntary disclosure enforcement process. These comparisons consider not only the legal framework for preventing bribery but also how those laws are enforced. Finally, recent FCPA developments are considered along with some suggested actions to bring more fairness and efficiency to voluntary disclosures under the FCPA.

See also FCPA Blog here.


August 13, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 12, 2010

In the News & Around the Blogosphere

Wednesday, August 11, 2010

Money Laundering Counts Reversed in Two Sixth Circuit Cases

Two former officers and directors of the National Century Financial Enterprises had been convicted on multiple counts. The Sixth Circuit reversed the money laundering counts.

In the first case, United States v. Ayers, the court examined a conviction of conspiracy to commit money laundering and held that based upon Cuellar v. United States, 128 S.Ct. 1994 (2008), the conviction could not be upheld. The court stated:

"The government is correct that the Receivables Purchase Reports involved concealment: They falsely represented that investors’ funds were being legitimately used, and thereby induced the Trustees to wire the funds to providers. But that explains only how, and not why, the money was moved. The proposition that Ayers authorized the advances for the purpose of submitting phony Reports is simply implausible on this record. The government proved only that the Reports facilitated the advances; it did not prove that the Reports, or concealment generally, were the transactions’ purpose."

In Faulkenberry v. United States, the court stated in part:

"All of this reasoning, in our view, applies to the meaning of "designed" as used in § 1956(a)(1)(B)(i). To prove a violation of that subsection, therefore, it is not enough for the government to prove merely that a transaction had a concealing effect. Nor is it enough that the transaction was structured to conceal the nature of illicit funds. Concealment—even deliberate concealment—as mere facilitation of some other purpose, is not enough to convict. . . What is required, rather, is that concealment be an animating purpose of the transaction." (citations omitted)

"Money in motion does not necessarily equal money laundering."

Ayers was represented by Brian Dickersonand Faulkenberry was represented by Martin Weinberg.

Ayers -Download Ayers Opinion

Faulkenberry -Download Faulkenberry 1

(esp)(w/ a hat tip to Regina Ashmon and Monica Smith)

August 11, 2010 in Judicial Opinions, Money Laundering | Permalink | Comments (0) | TrackBack (0)

Monday, August 9, 2010

James K. Robinson 1943-2010 - He Did It All

Robinson_j We mourn the passing of James K. Robinson, educator/dean, prosecutor, defense counsel, and a truly wonderful person. He served as assistant attorney general in the US Department of Justice heading up the criminal division, as dean of the Wayne State Law School, and most recently as "a partner in the Business Fraud and Complex Litigation Practice in Cadwalader's Litigation Department" (see here).  He was actively engaged in law reform work and was a member of the American Board of Criminal Lawyers (ABCL). Henry "Hank" Asbill (JonesDay) said, "as a prosecutor, Jim embraced his duty fairly to seek justice; and as a defense attorney, he thrived on his responsibility to zealously defend his clients.  He was a true gentleman who was loved by many and admired and respected by all." I could not agree more.  He will be missed.  

See also Bill Laitner, Detroit Free Press, James K. Robinson: WSU Law School's former dean


August 9, 2010 in Defense Counsel, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Sunday, August 8, 2010

Wesley Snipes - Will He Get A New Trial?

Wesley Snipes remains free despite the Government's attempt to revoke his bail.  Additionally, the court is allowing the defense the opportunity to file a motion for a new trial and has outlined the briefing schedule for the defense and government.

Court's Order -Download 533_OrdHoldingUnderAdvise 080510

(esp) (blogging from Los Angeles)

August 8, 2010 in Celebrities, Judicial Opinions | Permalink | Comments (0) | TrackBack (0)