Tuesday, February 20, 2018
Special Counsel Mueller's office has charged Alex Van Der Zwann, apparently a former Skadden associate, with violating 18 U.S.C. Section 1001, for lying to FBI Special Agents about his conversations with Richard Gates and an unnamed individual. More to come as events develop. Here is the Criminal Information in U.S. v. Alex Van Der Zwann.
Sunday, February 18, 2018
The speaking indictments of this past week provide a clear trail to Russian individuals and entities allegedly interfering in the 2016 Presidential election. The choice of charges, which include conspiracy to defraud, are no surprise. An indictment under section 371 can take one of two avenues: conspiracy to commit a specific offense or conspiracy to defraud the government. This is a classic case for the defraud statute to be used, as it is the U.S. election process that is alleged to be compromised here. Several questions to consider here:
- Why has it taken so long for this indictment? Answer - it hasn't. Actually Mueller's team is moving faster than we often see in white collar cases where the investigation can take many years. In less than a year, the Special Counsel's Office has accumulated several cases (see here). Computer related cases can take even longer as tracking items on the web are not easy, especially when a perpetrator tries to mask its origin.
- Can the U.S. prosecute extraterritorial conduct? Answer - Yes and No. You will notice that the alleged conduct in this indictment either took place inside the U.S. or had an "affect" here in the U.S. Under principles of "objective territoriality," the U.S. has, in many instances, prosecuted conduct occurring outside the U.S. that has an effect in this country. As one who has been somewhat critical of objective territoriality, I have been a strong advocate for using what I term "defensive territoriality." Interfering in a U.S. election would most definitely fit the bill of conduct that the U.S. needs to defend against. Over the past few years, the Supreme Court has wrestled with the issue of the application of different U.S. statutes for conduct occurring outside this country. A three-fold response here: 1) this is not extraterritorial conduct, 2) even if it is extraterritorial, there are enough acts in this country to allow for jurisdiction here, and 3) the U.S. needs to defend its election process.
- Can the government bring the charged Russians to the U.S.? Answer - It may be difficult here. Do we think that the Russian government will be turning over these individuals for a U.S. prosecution? Without a U.S.-Russian extradition treaty the chances of this happening are diminished. Perhaps one of them will travel to a country where the U.S. does have an extradition treaty (see here). Other methods exist, such as luring (see here), but the international community frowns on its use. Prosecuting these individuals/entities are less important than letting the public know that our election process has allegedly been the subject of attacks from Russia. Mueller's team definitely accomplishes this here.
The more interesting Information and Statement of the Offense relates to Richard Pinedo, a cooperating witness who has a plea agreement for a violation of section 1028. Although the Information has section 1028 on it, it also is termed identity fraud and speaks to an alleged violation of the wire fraud statute found in section 1343. The Information only speaks about a Count One. Whether there is another document with other counts is unknown. We saw this previously with the Informations of Michael Flynn and George Papadopoulos, so it is doubtful that the use of "1" without a "2" is significant. The special counsel's website has "et al" after Pinedo's name, but no other names listed. Other Indictments and Informations on the Special Counsel's website do not have "et al." (See Flynn, Manafort, Gates, and Papadopoulos). The Pinedo Information says it was filed on February 7, 2018, as "sealed." The header on the understanding for the plea is also marked sealed, but dated February 12, 2018. All of this may be nothing, but it is interesting to note. Finally, kudos to the special counsel's team for writing a plea that does not include offensive language such as a waiver of any possible claims of ineffective assistance of counsel. These documents go a step further to allow for such claims to be brought by the accused even though they are pleading guilty. Ethically, this is the way a plea should be written, but some past documents in some US Attorneys' Offices have not always done this. The Florida Ethics Board went so far as to issue an ethics opinion prohibiting waivers of ineffective assistance of counsel (see here). So Mueller's team taking the high road on the wording of its pleas, is nice to see.
What happens next? The Mueller team may know, but we don't. So stay tuned.
Sunday, February 4, 2018
John F. Savarese, Ralph M. Levene, Wayne M. Carlin, David B. Anders, Jonathan M. Moses, Marshall L. Miller, Louis J. Barash, & Carol Miller, White Collar and Regulatory Enforcement: What to Expect in 2018, Compliance & Enforcement
Friday, February 2, 2018
"American Bar Association President Hilarie Bass sent a letter to the Senate Judiciary Committee expressing concerns over a proposed anti-money laundering bill that would undermine the attorney-client privilege and impose burdensome and intrusive regulations on millions of small businesses, their lawyers and other agents, and the states." See more here.
Hats off to the government for dismissing the case against Senator Robert Menendez. Corruption cases are important, but it is also important to assure that the prosecution of these cases meet the law. Hats off also to Attorney Raymond Brown, who represented Menendez. See Nick Corasaniti, Justice Department Dismisses Corruption Case Against Menendez, NYTimes, Jan. 31, 2018
Thursday, February 1, 2018
Syracuse Trac just reported the number of environmental criminal prosecutions is continuing to drop. (see here). Based upon first quarter statistics, the "annual total [projected] prosecutions will be 220 for this fiscal year." This would be down from 338 for FY 2017 and 393 for FY 2016. In 2007 the number was above 900 prosecutions for the year.
(esp) (w/ disclosure that she is a B.S. graduate of Syracuse U.- home of the Trac Reports).
NYU Law School Center on the Administration of Criminal Law will be hosting a symposium titled, The Martin Act: A Tool for Reform or an Abuse of Power? On Monday, February 26, 2018 from 9:30 -2:00 p.m. More information and to register, see here. The program is as follows:
Panel One: The Martin Act and the Need for State Action
- Harlan Levy, partner at Boies Schiller Flexner LLP and former Chief Deputy Attorney General, New York Attorney General’s Office
- Katherine Milgram, Chief, Investor Protection Bureau, New York Attorney General’s Office
- Chad Johnson, partner at Quinn Emanuel Urquhart & Sullivan LLP and former Chief of the Investor Protection Bureau, New York Attorney General’s Office
- Eric DiNallo, Executive Vice President/General Counsel at The Guardian Life Insurance Company of America, former Chief of the Investor Protection Bureau, New York Attorney General’s Office
Panel Two: Practitioners Speak: How to Handle a Martin Act Investigation
- Charles Stillman, partner at Ballard Spahr LLP
- David Zornow, partner at Skadden Arps Slate Meagher & Flom LLP
- Jeffrey Scott, partner at Sullivan & Cromwell LLP
- David Anders, partner at Wachtell Lipton Rosen & Katz LLP
- Cynthia Hanawalt, Enforcement Section Chief, Investor Protection Bureau, New York Attorney General’s Office
Panel Three: The Martin Act: An Abuse of Power?
- James Park, Professor of Law at UCLA School of Law
- Rachel Barkow, Segal Family Professor of Regulatory Law and Policy, Faculty Director of the Center on the Administration of Criminal Law at NYU Law School
- Ellen Podgor, Gary R. Trombley Family White-Collar Crime Research Profesor, Stetson University College of Law
- James Copland,Senior Fellow, Director of Legal Policy at The Manhattan Institute
- John Gardiner, partner at Skadden Arps Slate Meagher & Flom LLP