White Collar Crime Prof Blog

Hunter Biden Testifies

Here is the transcript of Hunter Biden's testimony before a joint session of the House Judiciary Committee and House Oversight and Accountability Committee on February 28, 2024.

Hunter Biden House Testimony Transcript.

(wisenberg)

Robert Hunter Biden Motion to Dismiss Federal Gun Charges: The Briefs Are In.

The briefing is now complete on Hunter Biden's Motion to Dismiss Based on Immunity Conferred by his Diversion Agreement. This motion was filed in the District of Delaware where three felony gun counts are pending against Biden. Biden contends that the Diversion Agreement was a binding contract once signed by the parties to it, and that the only parties to it were Biden and the U.S. Attorney's Office. DOJ disagrees on both points. Biden also argues that U.S. Probation's approval was not necessary and that, even it was necessary, U.S. Probation in fact approved the Agreement.  A similar motion will no doubt be filed in the federal tax case now pending in the Central District of California, with respect to the aborted tax-related Plea Agreement, but Biden's chances of success are much better at getting the federal gun charges in Delaware dismissed, since Diversion agreements do not require approval by the district court. The Diversion Agreement was related to the overall Plea Agreement that blew up last July in Judge Maryellen Noreika's Delaware federal courtroom. Here are Biden's original brief, the Government's Response, and Biden's Reply. Attached also is the Declaration of Christopher Clark, who was Biden's attorney involved in the negotiations surrounding the Plea and Diversion Agreements.

U.S. v. Robert Hunter Biden-Defendant's Motion to Dismiss Indictment Based on Immunity Conferred by Diversion Agreement.

U.S. v. Robert Hunter Biden-Government's Response to Defendant's Motion to Dismiss Indictment Based on Immunity Conferred by Diversion Agreement.

U.S. v. Robert Hunter Biden-Reply in Support of Motion to Dismiss the Indictment Based on Immunity Conferred by Diversion Agreement.

U.S. v. Robert Hunter Biden--Declaration of Christopher J. Clark.

(wisenberg)

 

 

U.S. v. Stephen Bannon Case Materials: Willfulness and the Reliance on Advice of Counsel Defense.

We are awaiting any day now a ruling from the U.S. Court of Appeals for the District of Columbia Circuit on Steve Bannon's appeal of his conviction for violating Title 2, United States Code, Section 192 by willfully refusing to testify or provide documents to the January 6 Committee in response to its subpoena. In allowing Bannon to remain free on bond pending appeal, U.S. District Judge Carl Nichols noted that Bannon's appeal raised substantial questions of law: "In particular, as I've noted throughout this case, there is a substantial question regarding what it should mean for a defendant to willfully make default under the contempt of Congress statute and what evidence a defendant should be permitted to introduce on that question." Bannon was prevented from introducing evidence, arguing to the jury, or having the trial court instruct the jury, that his attorney had advised him not to comply with the subpoena. Under a 63-year-old D.C. Circuit precedent, Licavoli v. United States, willfulness in the context of Section 192 does not require a showing that the defendant intended to violate the law or acted with an evil motive or bad purpose. The government need only prove that the failure to comply was deliberate. It is extremely unlikely that Licavoli is still good law today, given numerous Supreme Court white collar crime opinions since 1961 requiring the government to prove an intent to violate a known legal duty in order to show willfulness. Here are some case materials from U.S. v. Stephen Bannon.

U.S. v. Stephen Bannon - Sentencing Hearing Transcript Excerpt.

U.S. v. Stephen Bannon - Declaration of Robert J. Costello.

U.S. v. Stephen Bannon - Defendant's Opposition to Government Motion in Limine on Advice of Counsel.

U.S. v. Stephen Bannon - Government's Reply re Motion in Limine on Advice of Counsel Defense 3.8.22 - FINAL.

U.S. v. Stephen Bannon - Defendant's Surreply re Government Motion in Limine on Advice of Counsel.

(wisenberg)

Judge Chutkan Denies Trump's Motion To Strike Allegedly Inflammatory Portions of the Indictment

On Friday, D.C. United States District Court Judge Tanya Chutkan, unsurprisingly, denied former President Donald Trump's Motion to Strike Inflammatory Allegations from the Indictment in U.S. v. Trump. At issue were the portions of the Indictment covering the January 6, 2021, assault on the U.S. Capitol by some of Trump's supporters, which, according to the defense, constitute irrelevant and prejudicial surplusage. Motions to strike surplusage are disfavored under U.S. Court of Appeals for the D.C. Circuit case law and need not be granted by the trial court unless a defendant can establish that the challenged  language is both irrelevant to the charges and prejudicial. Judge Chutkan did not reach the question of relevance, finding that Trump had failed to show that the alleged surplusage would prejudice the jury, particularly in light of her practice, which she intends to follow in this case, of not sending indictments back to the jury room during deliberations. Chutkan also promised to weed out prejudice in the jury panel, caused by the government or Trump, during the voir dire process. Here is the opinion.  U.S. v. Donald Trump - Order Denying Defendant's Motion to Strike Inflammatory Allegations from the Indictment

(wisenberg)

Trump Gag Order Appeal: Oral Arguments Are Next Up In D.C. Circuit

The parties' briefs are all in and the case is set for oral argument on Monday, November 20, at the U.S. Court of Appeals for the District of Columbia. Gathered together here are: Former President Trump's Opening Brief re Appeal of Judge Chutkan's Gag Order; the Government's Answering Brief; Trump's Reply Brief; and the Gag Order itself.

10-17-23 Trump Gag Order in DC Case

U.S. v. Trump - Donald Trump's Opening Brief re Appeal of Gag Order

U.S. v. Trump - Answering Brief of the United States re Donald Trump's Appeal of Gag Order

U.S. v. Trump - Reply Brief of Defendant-Appellant Donald Trump re Trump's Appeal of U.S. District Court Chutkan's Gag Order

(wisenberg)

Trump Indictment # 2

First there was an indictment against Former President Donald Trump coming out of the Manhattan DA's office - here (Indictment # 1)

Now there is a federal indictment against Former President Donald Trump coming out of an investigation of Special Counsel Jack Smith into the alleged conduct by Trump in handling sensitive classified documents and conduct responsive to requests by DOJ for return of these documents - here. 

It remains to be seen if the former president will face additional indictments in Georgia or Washington, DC. 

Here are some thoughts of Indictment # 2 -

1. The Indictment charges Trump with 37 counts - the charges are: 31 counts of Willful Retention of National Defense Information (793(e)); 1 count of Conspiracy to Obstruct Justice (1512(k)); 1 count of Withholding a Document or Record (1512(b)(2)(A)); 1 count of Corruptly Concealing a Document or Reconrd (1512(c)(1)); 1 count of Concealing a Document in a Federal Investigation (1519); 1 count of Scheme to Conceal (1001(a)(1)) and 1 count of False Statements and Representations (1001)(a)(2).
2. The Indictment charges Waltine Nauta with 6 counts - the charges are  1 count of Conspiracy to Obstruct Justice (1512(k)); 1 count of Withholding a Document or Record (1512(b)(2)(A)); 1 count of Corruptly Concealing a Document or Reconrd (1512(c)(1)); 1 count of Concealing a Document in a Federal Investigation (1519); 1 count of Scheme to Conceal (1001(a)(1)) and 1 count of False Statements and Representations (1001)(a)(2).
3. The 44 page Indictment (49 if you count the Trial Attorney Certificates) is detailed – but it is not a speaking indictment (there are no irrelevancies in the Indictment).  Compare this to the Michael Sussman indictment of one count that was 27 pages and resulted in a jury verdict of not guilty. 
4. Special Counsel Jack Smith's statement from his press conference on Friday afternoon is professional, limited (only 347 words), and he does not grandstand - see here. This emphasizes that this is a non-political investigation. He makes a point of noting that "It’s very important for me to note that the defendants in this case must be presumed innocent until proven guilty beyond a reasonable doubt in a court of law." 
5. Some of this case appears to come from former President Trump's prior lawyers.  The attorney-client privilege is sacred, but it can be pierced when the client attempts to use the lawyer to commit a crime or fraud. 
6. It is difficult to try a case involving classified material as the government will likely not want to disclose the actual classified material.  But that should not present a problem here as the charges go to obstructing justice, concealing information, and false statements.  The actual content, other than it being a high security level and having potential damage to national security, should not be an issue.
7. Should a judge who is appointed by the accused remain on the case? Remember, this is not a situation of looking at a policy or action of the plaintiff or defendant, this is a criminal case and the defendant appointed the judge to her position.  
8. One has to give Jack Smith credit for filing this in Florida.  He could have stetched the envelope and charged it in DC, but instead he did the right thing and followed venue rules that should be adhered to. 
9. If these same charges were against any other defendant, would it be likely that they would result in a quick plea? But a defendant has the right to challenge charges against him or her and the right to a trial by jury.
10. Attorney General Merrick Garland has removed politics from the DOJ, which is a good thing. He even removed himself from this case and appointed a special prosecutor.   Remember Jack Smith handled the prosecution against Democrat John Edwards, who was not convicted. Claims that this is a political indictment have no basis. 

(esp)

More Varsity Blues - Privilege and Perspective

So Felicity Huffman gets 14 days (see here and here) in the college admissions scandal. But there are problems with this -

1. 14 days serves no real punishment purpose.   It is not the prison time that will deter her in the future.  The general deterrent and rehabilitation was accomplished the minute she was indicted.  The indictment in this case served that purpose because it stigmatized her and her family and brought their then-current lives to a crushing halt.  The 14 days is a token to society that only costs the taxpayer money with no benefit. It was unnecessary here.
2.  Should she have gotten more time?  Absolutely not. As stated above this public shaming was more than sufficient and one can only hope that she and her family can rise above this event and move on in a positive way to assist society. Your mother loves you - forgive her and be there for her. 
3.  Is the sentence an acknowledgement of disparity in the criminal justice system?  Definitely yes.  Accused individuals who are poor or minorities can suffer significantly greater consequences. There are too many examples of this to even mention.  This case highlights the disparity in our judicial system and for that alone, courts should go back and resentence those who received greater sentences for less activity - and reduce their sentences. The case was supposed to punish privilege but ends up acknowledging that privilege matters. This is no fault on the part of the sentencing judge - it is a problem of how society treats criminal justice. I applaud the judge for not giving a harsher sentence.
4.  This case brought forth improprieties in college admission testing and admissions. This needs serious reevaluation. In the corporate criminal sphere - a rogue employee can sometimes still hold the entity liable. Although, there is no criminality here, nor should there be, hopefully admissions testing processes will go through massive re-evaluation, not only on how they are administered, but also on the value of these exams.    
5.  Was there a better way to handle all of this?  Yes. If prosecutors had proceeded on correcting this unethical conduct by exposure - a report - and sending a message to all that privilege in national testing will not be tolerated, then stopping this unethical conduct could have been accomplished.  Using a broken criminal justice system to attempt to correct this process just ends up showing how broken the system really is.
6. The individual who brought in so many parents into this scheme deserves stiff punishment.  Giving cooperator status to the individual who promoted this unethical conduct is backwards.  The parents who were roped into this scheme, oftentimes of their free will, should be the ones testifying here. If you want to stop the criminal conduct, punish the party who made the crime possible.  
7. Bottom line - what were the parents all thinking - really?  The criminal justice system is not the answer to the problem here. 

(esp)

See also excellent op-ed -David Oscar Marcus, Felicity Huffman's 14-Day Sentence is Unjust - Because It's Too High, The Hill, here.

Jeffrey Epstein: The Unanswered Questions

1. Who in DOJ made the ultimate decision to drop the proposed felony indictment of  Jeffrey Epstein and to cap the Non-Prosecution Agreement ("NPA") sentence at two years--later reduced to 18 months? The 6-2-17 affidavit of AUSA Ann Marie Villafaña, the lead prosecutor on the original federal criminal case, largely supports Alex Acosta's account of certain key events in this week's press conference. Keep in mind, however, that her affidavit was filed as part of the Jane Doe 1 and Jane Doe 2 litigation in SDFL, which resulted in Judge Marra's ruling that SDFL violated the Crime Victim's Rights Act ("CVRA") by failing to notify Epstein's victims about the NPA.  At the time it was filed, the affidavit was focused on the effort to convince Marra that SDFL had not violated the conferral/right to be heard provisions of CVRA. On pages 8 and 9 of her affidavit, Villafaña attests that: "Prior to the Office making its decision to direct me to engage in negotiations with Epstein's counsel, I discussed the strengths and weaknesses of the case with members of the Office's management and informed them that most of the victims had expressed significant concerns about having their identities disclosed. While I was not part of the final decision-making at the Office that arrived at the two year sentence requirement, I was part of the discussions regarding sex offender registration and the restitution provision. It is my understanding from these and other discussions that these factors, that is, the various strengths and weaknesses of the case...together with the Office's desire to obtain a guaranteed sentence of incarceration for Epstein, the equivalent of uncontested restitution for the victims, and guaranteed sexual offender registration...were among the factors that informed the Office's discretionary decision to negotiate a resolution of the matter and to ultimately enter into the NPA." Translation: Villafaña disagreed with dropping the indictment and was not part of the group that made the ultimate decision to go for an NPA with a two year state prison cap. If she was even present at the meeting where the decision was made, she disagreed with the decision and was thus not "part of the final decision-making process." It is unusual, but not unheard of, for the lead prosecutor to be overruled on a case. It is very unusual to go from a 50-plus page multi-count felony sex trafficking indictment to an NPA with no federal charges, particularly when your lead prosecutor wants to go to trial. Villafaña was and is a respected career AUSA. Apparently DOJ's Office of Professional Responsibility ("OPR") is looking into how the case was handled.  OPR will want to see Villafaña's  original pros memo in the case, will seek to interview all government participants in the negotiations, and will want to know every DOJ person involved in the ultimate decision to drop the indictment.
2. Why was DOJ's standard language making it explicitly clear that the NPA bound only the SDFL not included in the NPA? Such language is employed every day by U.S. Attorneys' Offices throughout the United States and has been for years. It goes like this: "The defendant understands that this agreement is binding only on the U.S. Attorney's Office for the ________ District of _______." Why wasn't that done in Epstein's case? Epstein is now arguing that the SDFL NPA prevents his prosecution in SDNY. He will probably lose, given Second Circuit case law, but why even leave the possibility of challenge open? The NPA does not even include a standard integration clause. This is strange.
3. Why was the entire NPA placed under seal? I understand the Government's desire to protect the identity of Epstein's victims, but this could have been done through a redacted version of the NPA, and indeed this has been done in the subsequent litigation.
4. Why weren't all of Epstein's known victims notified of the NPA and its terms in a timely fashion? Acosta and Villafaña have explained that they did not want the victims to see the civil damages portion of the NPA before SDFL was certain that Epstein would be pleading to the Florida felony, because they did not want the victims to be cross-examined about having seen those provisions in the event the deal broke down and SDFL took Epstein to trial. Epstein signed the Florida plea papers only a few days before he actually pled guilty and there was not enough time to notify all the victims. I understand the explanation, and assume no bad faith on SDFL's part, but it doesn't cut the mustard. If Judge Marra is correct, CVRA required notification. And either the NPA or Florida plea deal could have been structured to prevent the fiasco of having to locate and confer with victims over a weekend. Marra ruled that SDFL affirmatively hid the NPA from the victims and essentially deceived them into thinking that the office was still investigating Epstein well after the NPA was signed. That scenario should have been avoided.
5. Why were Epstein's lawyers allowed to lobby Main Justice after the NPA was signed? I understand going to Main Justice and arguing to overturn an individual office's charging decision. Not every lawyer obtains such access and these efforts to overturn are rarely successful. But they almost always occur BEFORE an indictment has been returned. Why was Epstein's team allowed to lobby for several months AFTER the NPA was signed. The original NPA was signed by attorneys on both sides in September 2007. An addendum was signed by the attorneys in October 2007. Epstein signed in December 2007. The Oosterbaan letter, explaining why federal involvement was legitimate, was not signed until May 15, 2008. This is weird.

I do not believe that the Epstein deal was "dirty" in any way. I have heard from multiple sources that Acosta is a person of high integrity, who was well regarded within the office. I was impressed with Acosta's handling of the press conference. I don't think he should have resigned. I don't know how easy or hard it would have been for SDFL to achieve a victory at trial or how many victims would have been further traumatized by a trial. I do know that SDFL has a long history of aggressively prosecuting these types of cases--child sex trafficking and kiddie porn. And I do believe SDFL should have conferred with the victims before NPA was inked. Acosta had no criminal trial experience when he became U.S. Attorney. Was he was out-negotiated here, or overawed by the team of big name defense lawyers representing Epstein? His First Assistant Jeffrey Sloman, a veteran prosecutor who was deeply involved in the negotiations and signed the NPA, has denied this and has publicly defended both Acosta and the deal.

Still, the questions I and others have posed are legitimate and deserve answers. Perhaps we will get them from the OPR investigation.

Here are some additional documents. The first three were made available by Acosta in connection with his press conference in order to help support his explanation of the NPA. Next is the Jeffrey Sloman op-ed defending Acosta and the deal. The final three documents are the most recent filings in the SDNY case and all deal with the government's effort to detain Epstein pending trial.

 Villafana Declaration

 Kuyrkendall Second Affidavit

 Acosta Letter to Starr

 Sloman Op-Ed

 Epstein-Original Government Letter Requesting Detention

Epstein-Letter Motion for Pretrial Release

Epstein-Government Response to Bail Motion

(wisenberg)

A Deep State Story: The James Wolfe Indictment

Here is the Indictment returned late last week in U.S. v. James Wolfe. Wolfe worked for 30 years for the United States Senate Select Committee on Intelligence ("SSCI") handling top secret and other classified information provided by the Executive Branch to Congress. According to the Indictment, Wolfe leaked the identity of "Male-1" to at least two reporters on two separate occasions and then lied about it to FBI Special Agents. Male-1 is none other than Carter Page and it is clear that the leaks were intended to damage Donald Trump. Reporter #2, referenced in the Indictment, is New York Times reporter Ali Watkins who was romantically involved with Wolfe for almost four years. Records of Watkins' email and phone contacts (but apparently not their contents) were subpoenaed from third party providers. Andrew McCarthy of NRO Online has commentary here, while Alex Pappas of Fox News examines some of Ms. Watkins' embarrassing historical tweets concerning the identity of leakers and the propriety of sleeping with sources. The press and certain members of Congress are concerned, as well they should be, about DOJ's capture of journalistic records. But keep in mind that the press is not the only institution with a watchdog role. The SSCI performs that function as well, and does so officially, with respect to intelligence-related oversight, and it is ironic (in a bad way) that its Chief of Security, if the charges are accurate, betrayed SSCI's trust. At this point Wolfe has only been charged, under 18 U.S.C. Section 1001 (the Martha Stewart statute) with lying to the FBI.

(wisenberg)

49 Questions All In A Line. All Of Them Good Ones? All Of Them Lies?

The leak and publication of 49 questions for President Trump, orally given to President Trump's lawyers by Robert Mueller's team and then transcribed by Jay Sekulow, has unquestionably damaged Team Mueller's reputation. Why? Many of the questions are incredibly broad, incredibly stupid, and/or incredibly intrusive forays into core functions of the Executive Branch. But whose questions were they? The original New York Times story indicated that the questions were revealed orally in a meeting between Team Trump and Team Muller and then transcribed by Team Trump. Next we were informed by other media sources that Sekulow was the scrivener and that the 49 questions may be more in the nature of a Team Trump moot court briefing book, based upon a smaller set of inquires/topics broached by Team Mueller. For example, the AP reported that a "person familiar with the matter, who insisted on anonymity to discuss ongoing negotiations, said Trump’s lawyers extrapolated a list of expected questions based on conversations with Mueller’s team. The questions contained in a document posted online by the Times on Monday night reflected questions that defense lawyers anticipated rather than verbatim queries that Mueller’s team provided, the person said."  The subsequent clarifications have been all but forgotten on the Internet and cable news shows and it is still widely assumed that the 49 questions are a verbatim rendition of those directly relayed by Team Mueller to Team Trump.

But the difference between the two versions is significant. If these are the literal questions from Mueller's team, they reflect (in addition to the flaws noted above) a dangerously elastic view of criminal obstruction of justice. If they are mere briefing book questions, intended to prepare the President for every possible question Team Mueller may ask, they should be of much less concern to Team Trump and to observers attempting to fairly critique the Mueller operation. Finally, if these are briefing book questions that were deliberately leaked and packaged to the media by Team Trump as if they were Team Mueller's literal proposed interview questions for President Trump, this says something disturbing about the Trump legal operation.

(wisenberg)

Point of Personal Privilege: Means & Ends In the War Against Trump

News is coming in fast and furious, since Friday night's firing of Former FBI Deputy Director Andrew McCabe.

First, there was McCabe's own defiant and somewhat poignant statement, seriously marred by his ludicrous suggestion that the career professionals at DOJ-OIG and FBI-OPR, appointed respectively by Obama and Mueller, were only doing Donald Trump's bidding.

Second, came President Trump's mean spirited tweet celebrating McCabe's firing.

Third out of the box? Trump Lawyer John Dowd's nutty call for Rod Rosenstein to shut down Mueller's probe. What else?

Brennan's tirade against Trump amid reports that McCabe has given notes of his conversations with Trump to Mueller. (Who hasn't done that?)

Jonathan Turley suggests here that McCabe's full statement poses potential problems for Comey, because McCabe claims that his conversation with the WSJ was authorized by Comey. This arguably contradicts Comey's sworn statement to Congress that he did not leak or authorize the leak of Clinton investigation details to the press. Turley also believes that McCabe's firing may embolden Trump to fire Mueller if McCabe, unlike Flynn, isn't prosecuted for lying to investigators. To top things off, there is the growing consensus that DOJ-FBI's original probe, taken over by Mueller after Comey's firing, was marred from its inception by the FISA affidavit's over-reliance on the Steele Dossier, made worse by the failure to disclose (to the FISA judges) that the dossier was bought and paid for by the DNC and Clinton's campaign. 

Some things to keep in mind. The ends almost never justify the means. Whatever McCabe thought of Trump, he had no business leaking classified law enforcement information to a WSJ reporter in order to protect the Bureau's image surrounding its handling of the Clinton email and Clinton Foundation investigations. And of course McCabe had no right to lie about it to investigators, under oath or otherwise.

In the rush to hate Trump at all costs, care must be taken not to compromise the criminal law, investigative norms, or the Constitution. Trump may be unfit in many ways to serve as President of the United States. But he won the election. I see no substantive evidence on the public record now before us that he did so unlawfully. There is a difference between his repeated violations of decades-long institutional norms, regardless of how repulsive those violations may be, and impeachable or criminal offenses. Failure to recognize this difference, or bending the rules to get Trump, will have disastrous consequences in the long run.

(wisenberg)

Movie "Sully" Reveals Different Perceptions of Investigators and Investigatees

In the recently-released hit movie "Sully," about a pilot who landed a disabled US Airways plane on the Hudson River after its engines hit a flock of geese shortly after taking off from LaGuardia Airport, the film's heroes,  Capt. Chesley B. Sullenberger lll (the "Sully" of the title), played by Tom Hanks, and the co-pilot Jeff Skiles, played by Aaron Eckhart, worry that the agency investigating the water landing, the National Transportation Safety Board ("NTSB") will publicly criticize  them for making a dangerous water landing rather than just turning around and returning to LaGuardia.  In the movie, the agents appear adversarial and close-minded and looking to blame the pilots based on simulated tests and preliminary expert evaluation.

NTSB released a statement regretting that the filmmakers had not asked it to review the film before its release, and the now-retired leader of the NTSB  inquiry complained that the film unfairly characterized the agency as prosecutorial.  According to the New York Times (Negroni, "'Sully is Latest Historical Film to Prompt Off-Screen Drama" Sept. 9, 2016), the NTSB maintained that its investigations are primarily meant to understand how humans and machines fail to prevent accidents, and not to blame individuals. (Later that week, however, the NTSB strongly criticized the pilot and crew of a Delta airplane that had skidded off a LaGuardia runway).

While "true story" films often veer from accuracy, as this one apparently did, one of the film producers denied that the film took creative license as to the pilots' fears, saying that the film was told through the perspectives of the pilots, who felt under "extreme scrutiny."  And, Mr. Sullenberger, in an e-mail to the Times, wrote that the film accurately reflects his state of mind. "For those who are the focus of the investigation, the focus of it is immense," he wrote, and that the investigative process was "inherently adversarial, with professional reputations absolutely in the balance."

The contrasting viewpoints of the former NTSB investigator and its investigatee, Mr. Sullenberger, demonstrates the not uncommon disconnect in perception between how those who investigate and those who are investigated.  Investigators view their behavior, even if aggressive and apparently hostile, as just rightfully doing their jobs.  Those being investigated, no matter how innocent or blameless they might be, often feel that the investigators are biased and out to get them, regardless of their blameworthiness or lack of it. 

To be sure, investigators often believe that an aggressive, hostile, unbelieving manner is a good way to reach the truth.  Those being questioned often view that type of investigation and interrogation as a means to reach a predetermined result regardless of its accuracy. 

Investigators - and I include criminal prosecutors - often lack sensitivity to how those they investigate perceive them or the psychological toll their investigations take.  They rarely understand, in Sully's words, "the  [immense] intensity " that affects an individual, including the innocent.   Investigators virtually never take into consideration how heart-wrenching, all-consuming and destructive an investigation may be to an individual when they determine whether and how to investigate.  They generally believe, and judges rarely disagree, they (and especially the grand juries prosecutors nominally act for) have an absolute right to investigate and question (with some constitutional and statutory restraints) anyone.  In the movie, and in real life, the investigation consumed and heavily worried the pilots, members of a profession known for calm and equanimity.  One would expect  people in other walks of life to be more affected.

I do not suggest that prosecutors or agencies forego investigations if based on reasonable suspicion or another more than insubstantial basis.  I do suggest, however, in instances where there is little factual or other basis to suggest wrongdoing by an individual, that prosecutors and agencies consider the human cost and anguish an investigation or the manner in which it will be conducted may cause the person being investigated or interrogated.

As a young lawyer just out of a prosecutor's office, I worked for a state investigative commission with subpoena power.  Its chair, a prominent Wall Street lawyer and former bar association president, was hesitant to issue subpoenas to individuals without a substantial basis to believe there was wrongdoing, a hesitancy which bothered its ex-prosecutor lawyers (including me), who used to issue subpoenas like street vendors issue flyers.  As Sully's situation suggests, some hesitancy in starting investigations, issuing subpoenas or harshly interrogating witnesses based on how it would affect the individuals involved may be appropriate. 

McDonnell Decision Gives Sheldon Silver Breathing Room

The Supreme Court decision in McDonnell v United States, decided June 27, has given several politicians whose corruption convictions are on appeal both a cause for optimism and freedom on bail pending appeal.  Last week SDNY District Judge Valerie Caproni granted former New York Assembly Speaker Silver's request for bail pending appeal on the grounds that there was a "substantial question" whether the court's instruction defining "official act" passed muster in light of the narrow definition of that term announced in the later Supreme Court decision. 

Judge Caproni made it clear that she had little doubt about Silver's guilt of the major accusations against him, stating, "There is no question that Silver took a number of official acts - most obviously passing legislation and approving state grants and tax-exempt financing - as part of a quid pro quo scheme."  These acts would clearly fall within the Supreme Court definition of "official act."  But the judge recognized that there were other acts committed by Silver that were presented to the jury by the government, such as holding a meeting or arranging an internship, that might not fall within the narrow Supreme Court definition of "official acts."   The jury was thus presented with instructions which may have permitted it to find Silver guilty for actions that were not criminal even if bought and paid for.

18 USC 3143(b)(1) allows a convicted defendant to be granted bail pending appeal if, inter alia, there is "a substantial question of law or fact likely to result in (i) reversal [or] (ii) an order for a new trial...."   Finding the existence of a "substantial question,"  despite the literal language of the statute,  does not mean that the judge believes there is a likelihood of reversal, only that if there were   a substantial question which if decided in the defendant's favor would bring such relief.   United States v. Miller, 750 F2d 19 (3d Cir 1985).  Appellate courts deal with a lot of "substantial questions" that have led to bail pending appeal, but rarely reverse trial convictions.

Here, it appears that under the instructions it was given, the jury could have convicted Silver based on acts not within the statute as limited by the Supreme Court..   But that is not the end of the analysis.  The appellate court will also consider, and the decision is likely to turn on, whether the evidence is considered so strong that the jury would have undoubtedly convicted Silver under a proper charge - in other words, whether the erroneous instruction constituted "harmless error."

I hesitate to predict the outcome of the appeal.  Cases of political figures, as demonstrated by McDonnell, are scrutinized by appellate courts more carefully than, for instance, cases of drug dealers.   I believe it is likely, and will appear likely to the appellate court, that Silver would have been convicted upon a proper instruction.  How likely is the issue.  Is it so likely that the court will find the error "harmless?"  What is "harmless error' is in many ways just a visceral judgment by the judges putting themselves in the role of jurors.  Harmless error analysis, thus, arguably deprives an accused of his basic constitutional right to a determination by a properly-instructed jury of peers and I believe should be applied rarely.  

Other factors the appellate court will probably consider include whether the defense proposed an instruction in accord with the standard set forth in McDonnell, and whether the defense specifically objected to the definition given by the trial court as too broad.  Another factor that may conceivably affect the decision, although unlikely to be mentioned, is whether the judges believe the 12-year prison sentence imposed on the 72-year old Silver is excessive.  And, of course, there may be other, unrelated issues raised.  In any case, based on the "official act" issue  issue alone, a reversal will likely not give Silver a dismissal, but only a new trial, presumably with proper jury instructions. 

One lesson that lawyers - both prosecutors and defense lawyers - might learn from this situation is to be aware and up-to-date on cases for which the Supreme Court has granted cert and, if any concern issues that might arise in a pending case, to craft requests to charge in anticipation of the possible result of the Supreme Court case.  Another lesson - for judges and prosecutors more than defense lawyers - is to adjourn a pending case that might be affected by a pending Supreme Court case until after that decision.  A third lesson - for prosecutors - is to analyze all aspects of their prospective case and discard legally or factually questionable ones when there are strong aspects.

Would Trump and Lochte Have Received Acceptance of Responsibility Reductions?

   Criminal defense lawyers in federal courts in this nation on an average plead 35 defendants guilty for every one they take to trial.  Accordingly, many criminal defense lawyers are not much more "trial lawyers" than the many big firm "litigators" who have never selected a jury or cross-examined a trial witness.  However, one area in which federal defense lawyers have plenty of experience is crafting the expressions of remorse made at sentencing by virtually every criminal defendant (save those who were convicted after trial and intend to appeal and do not wish to make any sort of admission because it might later be used against them).    The expression of remorse, a near uniform ritual in every federal sentencing proceeding, is made in order to ensure  that the court grant a reduction in the Sentencing Guidelines level of two or three levels for "acceptance of responsibility" (USSG Sec. 3E1.1) and to demonstrate that the defendant is truly sorry and contrite for having committed criminal acts, a factor many judges consider in the sentencing determination. 

   To be sure, the incantation of remorse is often less than fully sincere, and the defendant is actually only sorry that he was caught and is now facing punishment.  An astute defense lawyer will counsel her client that the expression of remorse should reflect his realization of and sorrow for the wrong he has done and harm he has caused to his victims and to society in general, and not only to his family and friends, and not to excuse or justify his acts, or minimize the damage.  She will counsel her client not to use weak words like "regret" or stiff ones like "remorseful."  Thus, it is difficult for a judge to distinguish the absolutely genuine shame and sorrow some defendants feel from the false impression of remorse others present.

   Some judges do suspect or realize that the expression of remorse is not genuinely sincere, but feel that the mere expression of remorse is itself a step forward.  Others, while perhaps doubtful of the defendant's sincerity, accept the expression of remorse  without comment or much consideration.   Some judges accept the apology at face value and credit it.  Some few listen carefully and skeptically, and,  if they detect a false note, sometimes comment on the defendant's lack of genuine remorse to justify, in part, a severe sentence (which they had probably decided beforehand to impose in any case).  I have not heard of a judge who denied an acceptance of responsibility reduction solely because of the defendant's presumed insincerity.   (I wonder whether such a determination would be upheld on appeal; I suspect, depending on the facts, that it might.)

   Last week, two notable men, presidential candidate Donald Trump and Olympic swimmer Ryan Lochte (neither of course criminal defendants) made widely-publicized "apologies" of sorts.  Both "apologies" would trouble a judge considering whether to credit the speakers for "acceptance of responsibility" or genuine remorse.

   Mr. Trump. who in the course of his campaign has insulted the parents of a heroic soldier who died in action, a woman Fox television commentator, a federal judge of Mexican ancestry, a U.S. Senator who was a prisoner of war for five years, a disabled reporter, and, generically, Mexicans and Muslims, chose to use the word "regret" rather than "sorry" or "apologize."   And his "regret" was for an inadvertent slip of the tongue, rather than a deliberate slur, and without any specificity of what statements he regretted or whom he may have harmed and no direct admission that they did harm anyone.  He said, "Sometimes in the heat of debate, and speaking on a multitude of issues, you don't choose the right words or say the right thing.  I have done that, and, believe it or not, I regret it, I do regret it, particularly where it may have caused personal pain."

   Mr. Lochte,  in a television interview and at least one social media post, presented a fictitious account of robbers in police uniforms pulling over a taxi he and fellow swimmers were in and robbing them at gunpoint.  This account received widespread publicity (perhaps to Mr. Lochte's surprise)and was a great international embarrassment for Brazil, a country which with its many troubles appeared to have demonstrated competence and provided adequate safety for the Olympics.  In fact, as Mr. Lochte's swim team colleagues later admitted, they were drunk, urinated on a wall, and vandalized the gas station, and that the guns were drawn by security guards who demanded they pay compensation for the damage before they left.  Faced with the contradictory statements by his colleagues, Mr. Lochte  then said, "I want to apologize for my behavior last weekend - for not being more careful and candid in how I described the events of that early morning."  He went on to excuse himself even for that minor transgression by seemingly claiming he was victimized: "It's traumatic to be out late with your friends in a foreign country - with a language barrier - and have a stranger point a gun at you and demand money to let you leave."  While Mr. Lochte did use the word "apologize," his apology minimized his misbehavior by describing it as lack of carefulness and candor rather than lying, and omitted any mention of the intoxication, urination and vandalism.

   Similar "apologies" by criminal defendants would both cause scrutiny and little impress federal sentencing judges.  Mr. Trump's was limited by the use of the wishy-washy word "regret."  Both Mr. Trump's and Mr. Lochte's  played down their own seeming misbehavior.  And, both contained defenses or excuses to justify or mitigate the limited degree of impropriety they admitted.  Defense lawyers should keep copies of these "apologies" to show their clients how not to do it.

   Were Mr. Trump or Mr. Lochte  criminal defendants  who had offered "apologies,"  a federal judge might have some difficulty finding, even if they had pleaded guilty, that they had "clearly demonstrate[d] acceptance of responsibility for the offense."  USSG Sec. 3E1.1(a).

  

 

Comey's Pronouncement and Lynch's Recusal Both Inappropriate

The declination to prosecute Hilary Clinton and the public announcement of that decision by FBI Director Comey, were, in my opinion, wholly proper.  When an investigation of a public figure receives widespread notice, it should be incumbent on the prosecuting agency to make public a decision not to prosecute.

However, the severe criticism of Ms. Clinton  by Director Comey was inappropriate.  I do not know enough to assess the accuracy or fairness of his report and do not challenge it.  However, the FBI (either acting, as here, as the surrogate prosecutor, or otherwise) should not, in the absence of sufficient evidence to recommend charges,  issue a public declaration of fault in any case, let alone one that affects a presidential election.  By his pronouncement, Comey, obviously knowingly, did so.  That he had no business doing.

The Department of Justice is also at fault.  Attorney General Lynch should never have agreed to meet with Bill Clinton, the husband of the target of a criminal investigation under her supervision, even if he were a past President and even just to exchange pleasantries.  I do understand how Attorney Lynch, a classy and courteous person, would have been reluctant to refuse to meet a past President, but propriety should have trumped gentility.   Worse, she never should have abdicated the responsibility of the Department of Justice  to determine whether to prosecute.  If she felt she were or appeared to be personally tainted by the meeting, she should at most have recused herself and left the decision to her deputies, not have turned it over to an investigating agency.

The American system of justice essentially places the responsibility of investigation on the investigators and the decision to prosecute based on the results of that investigation to the prosecutors.  Effective prosecution often involves an integration of and input from both agents and prosecutors, but the prosecutors still should be the sole and final deciders of whether to prosecute.  There is an inherent bias on the part of investigators, wanting a positive and public result of their work, in favor of arrest and prosecution.  The prosecutors, more knowledgeable about the law and the workings of the court system than the investigators, should act as  a buffer and, giving regard to the investigators, make the determination whether to prosecute.  That is an important check in the criminal justice system's checks and balances.  I hope this unusual situation does not serve as a precedent.

Settlement by Trump Required Alleged Victims to Tell DA They Don't Want to Assist

The New York Times reported on Tuesday, April 5 that Donald Trump, contrary to his asserted practice of refusing to settle civil cases against him, had settled a civil fraud suit brought by disgruntled purchasers of Trump SoHo (New York) condos setting forth fraud allegations that also were being investigated by the District Attorney of New York County ("Donald Trump Settled a Real Estate Lawsuit, and a Criminal Case Was Dismissed").  The suit alleged that Trump and two of his children had misrepresented the status of purchaser interest in the condos to make it appear that they were a good investment.

What made this case most interesting to me is language, no doubt inserted by Trump's lawyers, that required as a condition of settlement that the plaintiffs "who may have previously cooperated" with the District Attorney notify him that they no longer wished to "participate in any investigation or criminal prosecution" related to the subject of the lawsuit.  The settlement papers did allow the plaintiffs to respond to a subpoena or court order (as they would be required by law), but required that if they did they notify the defendants.

These somewhat unusual and to an extent daring conditions were no doubt designed to impair the District Attorney's investigation and enhance the ability of the defendants to track and combat it, while skirting the New York State penal statutes relating to bribery of and tampering with a witness.  The New York statute relating to bribery of a witness proscribes conferring, offering or agreeing to confer a benefit on a witness or prospective witness upon an agreement that the witness "will absent himself or otherwise avoid or seek to avoid appearing or testifying at [an] action or proceeding" (or an agreement to influence his testimony). Penal Law 215.11 (see also Penal Law 215.30, Tampering with a Witness).  Denying a prosecutor the ability to speak with prospective victims outside a grand jury makes the prosecutor's job of gathering and understanding evidence difficult in any case.  Here, where it is likely, primarily because of a 120-day maximum residency limit on condo purchasers, that many were foreigners or non-New York residents and thus not easily served with process, the non-cooperation clause may have impaired the investigation more than it would have in most cases. 

A clause requiring a purchaser to declare a lack of desire to participate, of course, is not the same as an absolute requirement that the purchaser not participate.  And, absent legal process compelling one's attendance, one has no legal duty to cooperate with a prosecutor.  It is questionable that if, after one expressed  a desire not to participate, his later decision to assist the prosecutor voluntarily would violate the contract (but many purchasers would not want to take a chance).  The condition of  the contract thus, in my view,  did not violate the New York statutes, especially since the New York Court of Appeals has strictly construed their language.  People v. Harper, 75 N.Y.2d 373 (1990)(paying victim to "drop" the case not violative of statute).

I have no idea whether the settlement payment to the plaintiffs would have been less without the condition they notify the District Attorney of  their desire not to cooperate.  And, although the non-cooperation of the alleged victims no doubt made the District Attorney's path to charges more difficult, the facts, as reported, do not seem to make out a sustainable criminal prosecution.  Allegedly, the purchasers relied on deceptive statements, as quoted in newspaper articles, by Mr. Trump's daughter Ivanka and son Donald Jr. that purportedly overstated the number of apartments sold and by Mr. Trump that purportedly overstated the number of those who had applied for or expressed interest in the condos,  each implying that the condos, whose sales had actually been slow, were highly sought.  A threshold question for the prosecutors undoubtedly was whether the statements,  if made and if inaccurate, had gone beyond acceptable (or at least non-criminal) puffing into unacceptable (and criminal) misrepresentations.

Lawyers settling civil cases where there are ongoing or potential parallel criminal investigations are concerned whether payments to alleged victims may be construed by aggressive prosecutors as bribes, and often shy away from inserting restrictions on the victims cooperating with prosecutors.  On the other hand, those lawyers (and their clients) want some protection against a criminal prosecution based on the same allegations as the civil suit.  Here, Trump's lawyers boldly inserted a clause that likely hampered the prosecutors' case and did so within the law.  Nonetheless, lawyers seeking to emulate the Trump lawyers should be extremely cautious and be aware of the specific legal (and ethical) limits in their jurisdictions.  For instance, I personally would be extremely hesitant to condition a settlement of a civil case on an alleged victim's notifying a federal prosecutor he does not want to participate in a parallel federal investigation.  The federal statutes concerning obstruction of justice and witness tampering are broader and more liberally construed than the corresponding New York statutes.

 

Bulger Appeals Court Upholds Denial of Right to Argue Immunity Before Jury

What do Bill Cosby and Whitey Bulger have in common?  Both have lost challenges to criminal accusations based on the claim that their prosecutions were barred because they received oral, informal grants of immunity from prosecutors.

Last week, the First Circuit denied the appeal of Joseph (Whitey) Bulger, the notorious Boston mobster who was on the lam for 17 years until his 2011 arrest in California.  Bulger was convicted after trial in 2013 for racketeering for participating in eleven murders and other crimes, and was sentenced to two life sentences plus five years.  He is now 86.

Bulger's primary claim on appeal was that he was denied his constitutional rights to testify and to present an effective defense by the refusal of the trial judge to allow him to testify before the jury that he was granted immunity for both past and future crimes by a now-deceased high-ranking DOJ prosecutor.   Interestingly, Bulger claimed that that the purported immunity grant was not in exchange, as one might suppose, for his providing information to or testifying for the prosecutor, but for his protecting the prosecutor's life.  He insisted, contrary to widely-accepted reports, that he was not an informant.

The Court of Appeals upheld the district court's rulings that whether the prosecution was barred because of immunity was to be determined prior to trial by the judge, and  not by  the jury, and thus Burger could not present to the jury testimony about the purported immunity promise .  Although the appeals court ruled that Burger had waived consideration of the issue on the merits by his failure to present the trial judge with any evidence, but only with a "broad, bald assertion from defense counsel lacking any particularized details," it reviewed the judge's merits determination on a "plain error" standard, and found that the judge was not "clearly wrong" in deciding  that Bulger had failed to demonstrate either that the promise had been made, or, that if it had been made, that the promising prosecutor had authority to make it..

The government described Bulger's claim that the prosecutor promised him immunity "frivolous and absurd."  What did give Bulger's contention an infinitesimally slight possibility of credibility, however, was that there was a demonstrated history (although not presented at the trial) that the Boston FBI had for years ignored Bulger's criminal acts when he served as an informant for them.

To be sure, the similarities between the Cosby and Bulger situations are limited.  In the Cosby case the then District Attorney, the prosecutor who, if anyone, had authority to grant immunity, testified that he did promise not to prosecute Cosby.  Here, there was no corroboration whatsoever of the purported promise by a now-dead prosecutor, and the Department of Justice strongly contended that even had such a promise been made, the prosecutor had no authority to make it.  However, the decision, made by a respected appellate court (although under a different set of procedural rules and no binding or other authority over a Pennsylvania state trial court) does squarely hold that whether a prosecutor has granted immunity is not a jury question.  And, should Cosby try to re-litigate the immunity issue before his jury, the decision will likely be cited by the District Attorney.

Brady Appeal Focuses on Destruction of Evidence

   New England Patriot quarterback Tom Brady did not get the reception he wanted at the oral argument of the appeal of the National Football League (NFL) of a district court decision overturning his four-game suspension in the so-called Deflategate case.  Brady has been accused of conspiring with Patriot employees to deflate footballs so that they were easier for him to throw in a game in cold weather.  The appellate court spent a considerable amount of time questioning Brady's counsel about Brady's destruction of his cellphone shortly before he was to appear before NFL investigator Ted Wells.

   In my view the evidence concerning whether the footballs were deflated was equivocal and, even if they were deflated, the evidence that Brady was knowingly involved was largely speculative, and in total, absent an inference of wrongdoing from the unjustified destruction of evidence, probably not sufficient to meet even the minimal 51-49 "more probable than not" standard used in the NFL and most other arbitrations.  Evidence of the suspiciously timed destruction of the cellphone, and the lack of a convincing justification for it, however, for me pushes the ball over the 50-yard line and may be the linchpin of an appellate decision upholding the suspension.  As Judge Barrington Parker stated at oral argument, "The cellphone issue raised the stakes.  Took it from air in a football to compromising a procedure that the commissioner convened."  He asked Brady's counsel,"Why couldn't an adjudicator take an inference from destroying a cellphone?," then stated that Brady's explanation - that he regularly destroyed cellphones for privacy reasons - "made no sense whatsoever." 

   Courts are understandably especially sensitive (sometimes too sensitive and too punitive, in my view) to acts like perjury or destruction of evidence which obstruct investigations or prosecutions.  Our justice system relies, at least theoretically, on the basic (although somewhat erroneous) principle that, at least generally, witnesses will not violate the oath to tell the truth.   It is therefore no great surprise that the court focussed on Brady's destruction of evidence and his purportedly lying about it.  Indeed, Judge Parker appeared to accept that even if Brady had not been involved in tampering with the footballs, his destruction of evidence would justify Goodell's decision.  "Let's suppose a mistake was made and the footballs weren't deflated, and then a star player lies in his testimony and destroyed his phone.  An adjudicator might conclude the phone had incriminating evidence.  Why couldn't the commissioner suspend Brady for that conduct alone?" 

   Of course, it would be rather perverse if Brady's suspension were upheld when in fact he had actually not been involved in deflating footballs and  had destroyed his cellphone as an excuse for not producing it and lied about it for reasons unrelated to the deflating issue, such as that the phone contained wholly unrelated embarrassing information or that he possesses an Apple-like principled view of privacy rights.   It calls to mind Martha Stewart, who was convicted and jailed  for lying to federal agents and prosecutors in a proffer session even though the underlying insider trading allegation about which she was questioned, was not prosecuted.  On the other hand, it would not be perverse if in fact the destroyed cellphone did contain incriminating conversations.

   Sometimes a client under investigation asks his lawyer what the client should do with incriminating evidence he possesses.  As much as the lawyer in his heart may want the evidence to disappear, he cannot ethically or legally advise the client to conceal the evidence.  (The specific advice will vary depending on the facts and circumstances.)  The lawyer should frankly explain his ethical and legal obligations.  However, generally the client doesn't give a hoot about them.  The lawyer should  explain that destruction, tampering and concealment of evidence, if discovered by the prosecutor, will undoubtedly eliminate the possibility of non-prosecution, lessen the possibility of a favorable plea deal, strengthen the prosecution's case at trial, and, if there is a conviction, undoubtedly cause a more severe sentence.  Just as lawyers sometimes invoke the Stewart case to caution about the danger of voluntary interviews with prosecutors, so might they invoke the Brady case to caution about the danger of destruction of evidence.

 

 

 

The Brady case highlights the danger of destruction of evidence and lying to investigators.

Cosby Decision May Affect Oral Agreements in Practice of Criminal Law

 

The decision by a Philadelphia suburban trial court that a previous prosecutor's publicly announced promise not to prosecute Bill Cosby was not enforceable has virtually no precedential value anywhere, but it may affect how prosecutors, defense lawyers, defendants and targets act throughout the nation. The rule of law from this case seems to be that a former prosecutor's (and perhaps a current prosecutor's) promise not to be prosecute, at least when not memorialized in a writing, is not binding, even when the target relies on it to his potential detriment.  That promise can be disavowed by a successor prosecutor, and perhaps by the prosecutor himself.

Occasionally, cases arise where defense lawyers contend that prosecutors violated oral promises made to them and/or their clients.  Such situations include those where a prosecutor, it is claimed, promised a lawyer making an attorney proffer that if his client testified to certain facts, he would not be prosecuted or would be given a cooperation agreement and favorable sentencing consideration.  Often these instances result in swearing contests between the adversary lawyers: the prosecutor denies making any such promise and the defense lawyer says he did.  In most instances, in the absence of a writing,  the court sides with the prosecutor.  With respect to plea agreements, some courts have set forth a black-letter rule that promises not in writing or on-the-record are always unenforceable.

The Cosby case is very different.  There the (former) prosecutor in testimony avowed his promise, which was expressed in a contemporaneous press release, although there was no formal writing to defense counsel or a court, and expressly testified he did so in part in order to deprive Cosby of the ability to invoke the Fifth Amendment in a civil case brought by the alleged victim,  he also said that he believed his promise was "binding."   Cosby, according to his civil lawyer, testified at a deposition because of that prosecutorial promise.  (Generally, prudent prosecutors, when they announce a declination to prosecute give themselves an "out" by stating that the decision is based on currently-known information and subject to reconsideration based on new evidence).

To a considerable extent, the criminal justice system relies on oral promises by prosecutors (and sometimes judges) to defense lawyers and defendants, especially in busy state courts.  And, in federal courts, while immunity agreements are almost always in writing, federal prosecutors (and occasionally, but rarely,  federal judges) often make unrecorded or unwritten promises.   Sometimes such prosecutorial promises are made in order to avoid the time-consuming need to go through bureaucratic channels; sometimes they are made by line assistants because they fear their superiors would refuse to  formalize or agree to such a promise;  sometimes they are made to avoid disclosure to  a defendant against whom a benefiting cooperator will testify.  Based on the Pennsylvania judge's decision,  some defense lawyers (and some defendants) will believe that prosecutors' oral promises are not worth the breath used to utter them, and, perhaps, since there appears to be no dispute that such a promise was made here, that written promises are barely worth the paper they are written on. 

Defense lawyers are frequently asked by their clients whether they can trust the prosecutor's word in an oral agreement.  My usual answer is that they can: most prosecutors are reliable and honest.  Defense lawyers are then sometimes  asked a variant question about what will happen if the promising prosecutor leaves the office or dies.  My usual answer is that if there is no disagreement as to whether the promise was made, it will be honored.  The Cosby decision has made me reconsider that response. 

There are certain highly-publicized cases of celebrities of little precedential or legal value that have a considerable effect on the practice of law by both prosecutors and defense lawyers.  The case of Martha Stewart, who was, on highly disputed testimony,   convicted of 18 USC 1001 for lying in a voluntary proffer to prosecutors investigating her purported insider trading (which, assuming it occurred, was most likely not a crime),  is still invoked by prosecutors in cautioning witnesses not to lie to them and by defense lawyers in cautioning witnesses about making a voluntary proffer.  The Cosby case will likely be cited by defense lawyers and their clients concerning the uncertain value of oral agreements with prosecutors.  The skepticism of many defense lawyers about the reliability of agreements with the government and trustworthiness of prosecutors will grow.   I suspect the sarcastic refrain of some defense lawyers, "Trust me, I'm the government," will be said more often. 

I assume that the decision will be appealed, and also that a motion will be made to exclude Cosby's deposition because it was a consequence of the promise.  That latter motion is likely to be denied based on the judge's decision on the issue discussed here, although since the judge failed to set forth any reasoning for his decision, there may be room for distinguishing that issue from the one decided.

Although the judge's ruling has no doubt pleased those clamoring for Cosby's conviction and those desiring a decision on the merits, it may have a considerable negative effect on the perceived integrity and reliability of prosecutorial  non-memorialized promises and the actual practice of criminal law.  And it reveals once again how celebrity cases often make bad law.

A Reply to Steven H. Levin's Responsive Blog on Hassert

   Last Friday attorney Steven H. Levin posted a guest blog disagreeing with my view in a blog earlier that day that Dennis Hastert should not have been prosecuted.  Hastert was charged with, and pleaded guilty to,  structuring withdrawals from financial institutions of his own apparently legitimately derived funds, purportedly to conceal payoffs to an alleged extortionist whom he had purportedly sexually victimized over 30 years ago.  Hastert, Mr. Levin said, "had to be prosecuted" because his prosecution had "potential deterrent effect" on "would-be structurers" and "would-be extortionists."

  Even if the Hastert prosecution were to  have a deterrent effect on such "would-be" criminals, I still believe, for the reasons I expressed, that this case was an appropriate one for the exercise of prosecutorial discretion.  I do recognize that deterrence is a commonly recognized goal of prosecution and sentencing, and accept that prosecutions do have a deterrent effect on some "would-be" white-collar criminals (but far less an effect on those who might commit crimes involving violence and narcotics).  Nonetheless,  I question whether this prosecution will cause a positive deterrent effect on those who are considering the commission of either structuring or extortion.

   I do accept that the publicity attendant to the prosecution will to an extent increase public awareness of the existence of a crime called structuring whose broad expanse covers acts committed by otherwise law-abiding citizens to maintain their privacy and avoid disclosure of things they prefer be confidential, and therefore may have some deterrent effect on those persons.  However, deterring people from committing essentially harmless acts even though criminalized by an overbroad statute does not appear to me to be much of a societal benefit.  And, to the extent that the attendant publicity will educate money launderers of criminal proceeds and deter them from violating the structuring statute, of which sophisticated criminals are overwhelmingly aware in any case, the positive effect is also questionable since its potential effects will be further concealment and consequent limitations on governmental discovery of criminality.

   Additionally, I doubt that many would-be extortionists would be deterred from acts of extortion by this prosecution, in which, it so far appears, the purported extortion victim has been prosecuted and the purported extortion perpetrator remains free and also has probably received millions of dollars in payments (and also perhaps achieved some measure of retribution by the exposure, so far limited, of Hassert's alleged misdeeds) .  To the extent it has any effect on rational would-be extortionists who weigh the benefit/risk ratio, this prosecution encourages rather than deters them.