Wednesday, March 29, 2017
Former Illinois Congressman Aaron Shock's attorneys filed two motions in federal court yesterday, alleging massive government misconduct in the investigation that led to their client's indictment on multiple misconduct and fraud related charges. The allegations center around the government's alleged use of one of then-Congressman Schock's junior staffers as a confidential informant who purportedly recorded conversations covered by the Speech and Debate Clause and the attorney-client privilege, and also stole various privileged materials. The government has apparently conceded that some of the informant's actions were improper and has promised not to use certain evidence he obtained, but if even half of Schock's allegations turn out to be true it will constitute a major embarrassment to DOJ. You look at the facts detailed in Schock's motions and have to be wondering what the government was thinking in using these kinds of tactics in the wake of the Jefferson case and Abramoff era investigations that brought Speech and Debate issues to the fore. There is also an allegation that government prosecutors gave incorrect legal advice to the grand jury. Schock wants more information about the government's use of the informant and access to additional grand jury materials. Here are the Schock Memorandum in Support of Motion for Discovery Regarding Use of Confidential Informant and the Schock Memorandum in Support of Motion for Discovery of Grand Jury Materials. Here is coverage from The Hill and the Washington Post. More to come as this case progresses. Schock is represented by George Terwillliger, Bob Bittman, Benjamin Hatch, Nicholas Lewis, and Christina Egan of McGuie Woods in DC and Chicago and by Jeffrey Lang of Lane & Waterman in Davenport, Iowa. The case is being prosecuted out of the Central District of Illinois.
Sunday, March 12, 2017
It is fairly typical that US Attorneys offer their resignations when a new President, especially one of a different party, is elected. But firings and requiring same-day resignations are less common. This is particularly troublesome as many were finishing up work on current cases. Of the 46 who had not left and asked for their resignations this week were a few that it is sad to see leaving their post. I don't know all 46, but some that I do are mentioned below -
David Capp, U.S. Attorney Northern District of Indiana - Attorney Capp had planned to retire in June 2017. He issued a thoughtful statement here. He thanks the "men and women of the USAO for their dedication and professionalism, day-in and day-out." Thank you David for your dedication and professionalism. In the statement issued he notes -
"Some years ago I spoke one evening at a church in Gary. We had just made some arrests and closed down a drug operation in the neighborhood the church served. Afterwards a gentleman came up to me, shook my hand, thanked me for our efforts and told me “now my grandchildren can play in the yard again.” That has always stuck with me and kept me focused on what our work is really about. I hope that I have played a part in making more yards in the Northern District of Indiana safe for “grandchildren to play in."
Others that were forced to resign include US Attorney Paul J. Fishman (statement here), whose office had prosecuted some of the Bridgegate cases (see here). And Preet Bhatara who was fired after refusing to resign (see here) had done some interesting prosecutions related to Conspiracy to work for Russian Intelligence (see here).
Attorney General Jeff Sessions has much work ahead trying to match the work done by individuals of this caliber.
Addendum - Other statements regarding resignations -
District of Rhode Island - United States Attorney Peter F. Neronha Stepping Down
District of Minnesota - Statement From U.S. Attorney Andrew Luger
Eastern District of Arkansas - U.S. Attorney Christopher R. Thyer Announces Resignation
Friday, March 10, 2017
The New York Times reports that "Trump Abruptly Orders 46 Obama-Era Prosecutors to Resign." Sad.
Acting Assistant Attorney General Criminal Division Kenneth A. Blanco was the keynote speaker for the final morning's program of the ABA White Collar Crime Conference of 2017. He spoke about transnational and money laundering crimes and government prosecutions in this area. He emphasized the importance of international cooperation. He remarked that there has been an increase in multinational investigations and it is important to have strong relationships with our counterparts worldwide.
He used the word "global" 14 times, the word "international" 25 times, and "cooperation" 11 times. International collaboration and cooperation were without doubt his theme.
He spoke briefly about the Fraud Section Pilot Program, stating:
"Before I conclude, I would be remiss if I did not comment on the Fraud Section’s “Pilot Program.” Last year, the Fraud Section implemented a one-year “Pilot Program” for FCPA cases, to provide more transparency and consistency for our corporate resolutions. The “Pilot Program” provides our prosecutors, companies and the public clear metrics for what constitutes voluntary self-disclosure, full cooperation and full remediation. It also outlines the benefits that are accorded a voluntary self-disclosure of wrongdoing, full cooperation and remediation. The one-year pilot period ends on April 5. At that time, we will begin the process of evaluating the utility and efficacy of the “Pilot Program,” whether to extend it, and what revisions, if any, we should make to it. The program will continue in full force until we reach a final decision on those issues."
He ended with the lyrics from a 1960s song from Martha and the Vandellas – "Nowhere to run baby, Nowhere to hide."
A full copy of his talk can be found here.
Thursday, March 9, 2017
Hon. Paul L. Friedman moderated the judges panel. The judges on the panel were Hon. Gregg Costa, Hon. Charles Breyer, Hon. Nannette Jolivette Brown, Hon. Amy J. St. Eve, Hon. Kathleen M. Williams, and Hon. Carlos Mendoza.
Does your life experiences influence your judging? The judges talked about sentencing.
Hon. Carlos Mendoza spoke about how his diverse background has affected his sentencing. Hon. Amy J. St. Eve noted that judging is the most difficult thing that judges do. Hon Charles Breyer noted that there is no such thing as a "right sentence," but there is something called a "wrong sentence."
Some pointers offered:
- Sentencing memos are important
- "Educate us on your client"
- "Know your judge"
- Some Judges may not want 3 or 7 pages of Booker, and then finally saying -now here is what you can do - "I already know that."
- "Watch what your clients do" -Problems when the offender doesn't accept responsibility
- Come up with a better argument then the folks at the country club don't talk to him any more
- Not helpful when government just says - we want a sentence in the guidelines range
- If prosecutor and defense attorney agree on something (C1c), more inclined to do it
Deferred prosecution agreements were discussed as well as the managerial aspects of the judicial position. The panelists offered many reflections in thenearly two hour discussion. They also looked at high profile cases and whether they had any special procedures in these cases. Justice Breyer said the less said, the better. Hon. J. St. Eve said - "I don't read the coverage in a high profile case." They skipped over discussing Brady, but did discuss technology.
One question was whether the judge allowed the defense counsel to see the probation officer's recommendation. It was noted that the judges differed on whether the judge would allow counsel to see this.
Alan M. Dershowitz, the morning speaker, started by telling how he missed teaching. The amount of perjury committed by defendants is small in comparison to the amount of lying by police officers. He talked about how some witnesses are told not only to sing, but to compose. He noted that perjury in civil cases is pervasive. Perjury in civil cases, however, is seldom prosecuted. He also noted that most perjury does not occur on direct examination, but rather on cross-examination. Also he noted that there are often lies in depositions. He ended by saying that we should not be tolerating perjury, and also that we should be focusing on perjury beyond defendant perjury.
Wednesday, March 8, 2017
This is the first time the ABA White Collar Crime Conference had a panel focused on "Due Process on Today's Campus: Handling IX Abuse and Harassment Cases." Moderating this conference was Marcos Hasbun. Panelists were Carolina Meta, Thomas C. Shanahan, and Hon. Nancy Gertner. Many may think this is outside the scope of white collar criminal matters, but attorneys in the white collar area are often involved in the internal investigations for schools and criminal defense counsel can be called on in representation of clients - both individuals accused and victims.
Hon. Nancy Gertner noted that this was initially regulation guidance that was not issued with notice and comment. It has had earth shattering consequences, as described by Hon Nancy Gertner. The preponderance of the evidence standard being used was noted. But unlike ordinary civil cases, you don't have discovery. The panel discussed the "Dear Colleague" letter. She also noted the mandated procedures is how it has played out. Thomas Shanahan discussed the parallel proceedings that can occur with law enforcement and the university disciplinary proceeding.
It was noted that the university is under a mandate to move things along in 60 days. It was also noted that case lines are developing on two different tracks, including those arguing the denial of due process rights by the university.
Some argued that the process is focused on due process rights of the individuals making the accusation. But it was also noted that some states, like North Carolina, permits counsel during the proceedings for the respondent. It was noted it can be beneficial for counsel for the respondent to get the outside lawyer involved.
One of the opening panels of the conference was a breakout on Pre-trial Practice in Federal Criminal Cases. The panel included Hon. Cecilia Altonaga, Professor Ricardo Bascuas, Ryan O'Quinn, David Markus, and Vanessa Snyder. The moderator was Andrew Feldman.
The panel looked at motion filing, bail, and admission and exclusion of evidence as some of the topics for discussion.
From the prosecutor perspective Ms. Snyder emphasized the benefits of defense counsel calling prosecutors before filing motions. "See if you can work it out." It would lead to a more productive result, she stated. She stated that then if it is necessary you can file the motion if you can't work it out.
Judge Altonaga emphasized having a plan when filing pre-trial motions. Is it getting you to your goal or are you alienating the court and prosecutor. Pre-trial motions can be used to educate the court.
David Marcus spoke about the insignificant number of folks who skip on a bond and how the failure to give a bond proves detrimental to the system. Judge Altonaga spoke about the risk of flight standard. It helps if there are local ties, that is ties to the United States exist.
Professor Bascuas noted the increased number of individuals in prison and the decreased number of trials.
Ryan O'Quinn noted the long relationship that the prosecution and defense have prior to Indictment in white collar cases.
The panelists also discussed the admission and exclusion of 404(b) evidence and motions in limine.
Audience questions turned the discussion in a different direction - Brady.
Monday, March 6, 2017
U.S. Attorney Wifredo A. Ferrer Joins Holland & Knight as Head of Global Compliance and Investigations Team
Holland & Knight has announced that Wifredo A. Ferrer, U.S. attorney for the Southern District of Florida, will join the firm as a partner in its Miami office. Mr. Ferrer will lead the firm's Global Compliance and Investigations Team, which focuses on corporate compliance and government investigations within the firm's White Collar Defense Practice. Read more here.
The National Association of Criminal Defense Lawyers (NACDL), the leading national bar association representing the entire defense bar, is seeking a Counsel to work in its White Collar Crime Policy Department on a variety of white collar criminal defense and overcriminalization initiatives. This staff person is a member of NACDL’s national affairs team and works under the Director of White Collar Crime Policy. For more information, see here.