Wednesday, November 8, 2023
On Friday afternoon, November 2, 2023, the U.S. Court of Appeals for the District of Columbia Circuit granted an administrative stay of Judge Chutkan's 10-17-23 Gag Order in U.S. v. Trump. The Court was careful to point out that, "[t]he purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motion for a stay pending appeal and should not be construed in any way as a ruling on the merits of that motion." In other words, the Court issued an administrative stay while considering, on an expedited basis, Trump's Motion for a Stay of the Gag Order pending appeal of that Order. The granting of the administrative stay did not involve any analysis of the likelihood of Trump's ultimate success on the merits of the Gag Order. Trump's brief on the Motion for Stay Pending Appeal is due today, 11-8-23, as is the Joint Appendix. The Government's Response is due 11-14-23. Trump's Reply is due 11-17-23. Oral argument is set for 11-20-23.
Here is the Circuit Court's Friday Order Granting an Administrative Stay. U.S. v. Donald Trump - U.S. Court of Appeals for D.C. Order Granting Administrative Stay of Trump Gag Order.
Stay tuned for more.
Monday, October 30, 2023
Chutkan Order and Opinion Lifting Administrative Stay of Donald Trump Gag Order and Denying Former President Trump's Motion to Stay Gag Order Pending Appeal
The U.S. District Court for the District of Columbia has finally fixed the glitch in its electronic filing system. Here is yesterday's U.S. v. Trump - Opinion and Order Denying Motion to Stay Gag Order Pending Appeal. Judge Chutkan also lifted her prior administrative stay of the Gag Order, so it is now in effect. She denied without prejudice the government's request to modify the Gag Order as unnecessary, even assuming it was procedurally proper. The defense maintained that the Gag Order could not be modified since the case was on appeal.
Former President Trump had filed his Reply in support of the Motion to Stay on Saturday, and Judge Chutkan discusses Trump's Reply in her Sunday Opinion and Order. Here is Trump's Reply: U.S. v. Trump - President Trump's Reply in Support of Motion for Stay of Gag Order Pending Appeal.
Here, for convenience purposes, is the 10-17-23 Trump Gag Order in DC Case.
Sunday, October 29, 2023
Thursday, October 26, 2023
Former President Donald Trump appealed U.S. District Court Judge Tanya Chutkan’s October 17 Gag Order the day it was issued and asked Judge Chutkan on October 20 for a stay of the Gag Order pending appeal and an immediate administrative stay of the Gag Order while the Stay Motion was being briefed in her court. Judge Chutkan granted an administrative stay on October 20 and ordered the government to respond to Trump’s Stay Motion by October 25. Special Counsel Jack Smith filed his response in opposition to the stay last night. But Smith was able in his Response to complain about new Trump posts and comments that have occurred in the 5 days since the Gag Order was imposed and Smith now wants the stay lifted and the Order modified to make it even stronger. Here are former President Trump's Motion to Stay and the Government's Opposition.
Wednesday, October 25, 2023
Diana Toebbe and her husband were arrested and charged with espionage-related crimes--specifically, conspiracy to communicate, transmit, or disclose Restricted Data of the U.S. Navy (relating to Virginia-class nuclear-powered submarines) with the intent to injure the United States, in violation of 42 U.S.C. Section 2274(a). The plot was foiled when the foreign government solicited by the Toebbes tipped off the U.S. Government. Diana's original binding plea agreement, providing for a sentence of not more than 36 months, was rejected by the U.S. District Court as "strikingly deficient." The government and Toebbe returned with a new plea agreement, which contained the standard federal waiver of the right to appeal (that is, a waiver for everything other than prosecutorial misconduct or ineffective assistance of counsel) and bound the court to sentence Toebbe to the lowest possible Guideline sentence within the Guidelines Range determined by the sentencing court. All of the other stipulations in the second plea agreement were recommendations only, which did not bind the court. The government recommended a Guidelines range of 108 to 135 months. The court accepted the plea agreement but rejected some of the parties' recommendations, including Toebbe's status as a minor participant and a three-point downward adjustment for acceptance of responsibility. The court also rejected the government's motion for a three-level downward departure for substantial assistance and assessed two points for obstruction of justice (based on two coaching letters that Toebbe unsuccessfully attempted to send to her husband). The result? A Guidelines Range of 262-327 months. The sentencing court, abiding by the binding terms of the plea agreement, then sentenced Toebbe to 262 months. This was longer than the sentence received by her husband, the person who stole the Restricted Data in the first place. Toebbe made various arguments as to why the sentence was invalid, all to no avail. It could happen to any of us. Binding plea deals to a set specific maximum sentence, like the one contained in the original plea agreement, are still a rarity in most federal jurisdictions. Reading the warning signs when the judge emphatically rejected the original deal, the parties came back with a substantially harsher sentencing recommendation, but one that was a recommendation only, based on predicate recommendations that the court also was not bound to accept. And there is nothing that anybody can do about it, given the standard appellate waiver demanded by the government in most federal plea deals. Here is the opinion in U.S. v. Diana Toebbe (4th Cir. 2023).
Tuesday, October 24, 2023
From yesterday's opinion in Wayne Lee v. United States:
"The IRS penalizes taxpayers for filing late tax returns, unless the delay 'is due to reasonable cause and not . . . willful neglect.' 26 U.S.C. § 6651(a)(1). In United States v. Boyle, the Supreme Court established the bright line rule that 'reliance on an agent,' without more, does not amount to “reasonable cause” for failure to file a tax return on time. 469 U.S. 241, 248, 252 (1985). The question in this appeal is whether Boyle’s bright line rule applies to e-filed returns." Gues what? It does. Even though Plaintiff Wayne Lee's CPA failed to file Lee's tax returns for three straight years (2014-16), the IRS assessed penalties of over $70,000.00 and refused to let Lee apply his 2014 overpayment to the 2015 and 2016 tax years. Lee argued that his delay in filing was due to reasonable cause, rather than willful neglect, as he relied on his CPA to file the returns in a timely manner. The district court ruled against Lee, citing Boyle and the 11th Circuit affirmed. The opinion is here.
Thursday, October 19, 2023
Title 18, United States Code, Section 1521 prohibits the knowing filing of false liens or encumbrances against the property of an individual described in 18 U.S.C. Section 1114 [an officer or employee of the United States], "on account of the performance of official duties by that individual." In U.S. v. Pate, the 11th Circuit recently held that the statute did not apply to liens filed against individuals listed in Section 1114 if the individuals were no longer in office when the liens were filed. This was an en banc decision. Appellant, a tax protester, had knowingly filed liens against the respective properties of a former IRS Commissioner and a former Secretary of the Treasury. Pate conceded that he filed the liens on account of the officials' performance of their official duties, but contended that the statute only applied to officials still serving when the liens were filed. A majority of the 11th Circuit judges agreed.
Wednesday, October 18, 2023
Release Pending Appeal Granted Based on Substantial Question Regarding Ineffective Assistance of Counsel
It is a truism that federal circuit courts very seldom entertain ineffective assistance of counsel claims on appeal, because the record below is usually inadequately developed. Criminal defendants typically must wait to raise such claims in a habeas petition. But last week the Sixth Circuit released appellant Faraday Hosseinipour pending her appeal, holding that she had already raised a substantial question regarding her trial counsel's competence. Trial counsel was her brother-in-law who had almost no federal criminal experience. More to come on this case in the coming days. Here is the 6th Circuit Order on Motions for Release Pending Appeal.
Tuesday, October 17, 2023
Here is Judge Chutkan's gag order issued earlier today in United States v. Trump in the U.S. District Court for the District of Columbia: 10-17-23 Trump Gag Order in DC Case.
By way of comparison, in August 2023, SDNY District Judge Lewis Kaplan granted the government's motion to revoke Defendant Sam Bankman-Fried's bond and detain him. Although Judge Kaplan's Order itself was only a one-pager he accepted the government's argument which was laid out in detail in a letter brief. Here is U.S. v. Sam Bankman-Fried - Government's Letter Brief in Support of Revoking Defendant's Bond.
Tuesday, August 15, 2023
Fulton County Georgia District Attorney Fani Willis spoke about the Georgia Grand Jury Indictment issued yesterday. A review of the Indictment and my thoughts are below:
- The Indictment has 19 defendants and all 19 of these individuals face a RICO charge. Each of these defendants also has at least one other charge. No one is indicted solely for the conspiracy. This is noteworthy if one is looking at what might be dropped if there is a plea agreement reached with any of the parties.
- The Indictment has 41 total felony counts and it is 97 pages long.
- The two individuals facing the most counts are former President Donald Trump and former Mayor Rudolph Giuliani - each with 13 counts.
- Three individuals have a total of two counts, the RICO charge and one other charge (Mark Meadows; Jeffrey Clark; Jenna Ellis).
- The 97-page Indictment includes a 3-page Table of Contents. It is reader and law student friendly.
- DA Fani Willis in her press conference repeated 2X that the individuals are all presumed innocent, and that the prosecution must provide proof beyond a reasonable doubt.
- Willis stated in her press conference that she wants this case to go to trial within six months.
- She stated that those accused have until noon on Friday, August 25th to voluntarily surrender.
- She also stated that she intended to try all of the defendants together. Let's dissect that statement - 19 defendants, all need to have separate defense counsel and some are likely to have more than one defense counsel. Because of the possibility of future pleas, it would be ethically difficult for defendants to share counsel. My questions - Can a Georgia courtroom hold that many people? How long might a trial like this last? Is this manageable from a court perspective?
- It would be difficult to try all of these defendants together, but the likelihood of it being a mega-trial is slim. It is ironic that Defendant Guiliani is facing a mega-trial, a practice of the past in New York. A practice fraught with issues not only of logistics, but of what happens if there is an error midway through the trial - you may have to start over for all. And the appeal can be massive if there is a conviction - think of the size of the transcript. Now think about the attorney fee costs of handling a case that will take more time because of the number of defendants. Mega trials can be difficult to handle. When cases are brought with many defendants, courts may choose to break them into groups and proceed with each group separately. Convictions from the first group can make the remaining cases proceed quickly as others are then quick to move to plea agreements. On the other hand, if you have a not guilty in the first group, others may be apt to take the risk of going to trial. Weighing the considerations here requires skilled counsel. Most importantly, will the time line for accepting pleas be open once trials start?
- With this many defendants there are likely to be some joint defense agreements so that parties can share evidence and the costs of the litigation. But these can also be fraught with issues, especially if one of the parties in a joint defense agreement decides to plead.
- One should focus not only on who is charged, but also on who is not charged. The provider of the evidence - will it be more than telephone calls, documents, and tapes? Or will individuals be presenting this evidence? Notice on page 15 - "unindicted co-conspirators Individuals 1 through Individual 30" - the DA already may have a good number of folks cooperating.
- This is an important case - like Indictment # 3, this case involves alleged conduct that tests whether we will continue to be a democracy.
More to come later .....
Sunday, August 6, 2023
Former President Trump's counsel of the past have faced a lot of questions, and may face more if they are called as witnesses in one of his upcoming trials. Questions such as attorney-client privilege, the crime-fraud exception, and perhaps even questions revolving around an advice of counsel defense may be on the horizon. These cases will offer many issues for discussion.
Two of his current counsel (Drew Findling and John Lauro) are individuals who have handled many criminal defense cases, and in some instances very successfully for a defendant. In this regard we are likely to see many pre-trial motions and there may also be a possibility of appeals to resolve legal issues prior to trial.
Drew Findling, a past president of the National Association of Criminal Defense Lawyers and a member of the esteemed American Board of Criminal Lawyers, is not an attorney who shies away from trial. Unlike some former prosecutors who are now criminal defense counsel, Attorney Findling knows his way around a courtroom and has successfully defended a long list of clients including many in the hiphop world (see here). If an indictment is handed down in Georgia, this likely last case against Trump may be primed to be the first case that goes to trial. But here again, legal issues may be raised with attempts to get appellate rulings that could stall the legal process.
In the DC case, we see Attorney John Lauro, an experienced white collar attorney, as one of the lead counsel for Mr. Trump. He spent the day on many TV talk shows and also did this heart-to-heart talk with David Oscar Marcus (here). One argument that Lauro will likely be making in his court arguments is that he needs more time to prepare for trial. But the prosecution may come back noting the many interviews that he did have time for today.
A key factor in many of these cases will be timing. Will the defense want to go to trial as was the case of a speedy trial being granted to the late-Senator Ted Stevens who went to trial about 40 days prior to Alaskans voting in his Senate race? Or will the defense want to stall trials for fear of a conviction prior to the election? And as discovery starts rolling out, will the defense position change? Will the discovery prove detrimental to his political aspirations, perhaps even hurt his political ambitions, and if that happens will Trump perhaps be the one asking for a speedy trial?
Wednesday, August 2, 2023
Special Prosecutor Jack Smith's recent Indictment of former President Donald Trump carries serious charges, and this is the most important case for our country and our constitutional processes. My thoughts:
- The Indictment is 45 pages long and has four charges: Count 1: 18 U.S.C. § 371 (Conspiracy to Defraud the United States); Count 2: 18 U.S.C. § 1512(k) (Conspiracy to Obstruct an Official Proceeding); Count 3: 18 U.S.C. §§ 1512(c)(2), 2 (Obstruction of and Attempt to Obstruct an Official Proceeding); Count 4: 18 U.S.C. § 241 (Conspiracy Against Rights).
- What is not in the Indictment is important - that is, a charge related to incitement. Special Prosecutor Jack Smith removes many of the First Amendment defense arguments by making this a case about obstruction and conspiracy. The Indictment (p.2) openly states that "[t]he Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome -determiniative fraud during the election and that he had won." Removing free speech claims and instead focusing on the unlawful activity itself will eliminate some of the challenges that might have been raised.
- Donald Trump is the sole defendant - this is significant, as the case can move faster without needing to accommodate the schedules of co-defendants. It is also significant because the jury will be focused only on one person and four charges. This streamlining makes it easier for the jury to understand.
- The Indictment reminds me of someone building a structure using Legos. It is methodical and all the pieces fit together. And when you put all the pieces together you have a clear picture.
- Arguably, this indictment is more of a speaking indictment than the prior charges brought by Jack Smith in Indictment #2 against Donald Trump. But one could say that even alleged comments like the former president saying to former VP Mike Pence - "You're too honest" - are likely to be admissible at trial. After all, it can be offered as evidence to show Trump's mens rea.
- The Indictment would make a terrific ethics class on what a lawyer should and should not do. You can call it - the lawyers who violated the law v. the lawyers who saved democracy. The unindicted co-conspirators who are portrayed in some instances as lawyers who failed to remember basic ethical principles against the lawyers who refused to perpetuate lies and adhered to a constitutional process.
- Many ask why so many unindicted coconspirators, why did Jack Smith not charge them. My thoughts are that it puts these individuals on notice that several avenues might be pursued: a) They could come forward now, reach an agreement and cooperate, receiving the benefits of cooperation; b) The prosecutor could grant them immunity and then they would no longer be able to claim a 5th amendment privilege --they would be required to testify and if they testified falsely the prosecutor has additional ammunition in charges such as perjury; c) The prosecutor could indict them in a separate or later indictment; or d) The prosecutor could keep them as witnesses, unidentified and uncharged co-conspirators, and not move against them. It is always possible that an unindicted coconspirator is already cooperating. So, beyond the indictment, Jack Smith has possible additional evidence if he needs more.
- It is likely that there is more evidence that is not outlined in this Indictment. At the J6 hearings, we all heard testimony of Trump's alleged obstruction. So cooperation agreements, or just witnesses testimony, may already be evidence held by the government.
- Some question - why this Indictment took so long in being charged. This is not a new argument - we hear it all the time in white collar cases. The bottom line is that white collar cases often involve documents and the process can be significantly slower than a street crime case. Additionally the government typically proceeds with cases working up the ladder. The initial J6 prosecutions were for individuals on the ground committing criminal acts. The government then moved to leaders of various groups. Moving next to those at the top, therefore, makes perfect sense.
- The initial charge, 18 USC 371, is the classic generic conspiracy charge used often by the government. In the federal system, unlike some states, a prosecutor can charge both the conspiracy and the underlying offense. What is somewhat unique here is that there are two ways to bring a 371 charge -- a) conspiracy to commit a specific offense; or b) conspiracy to defraud. Typically the first is used by the government - a conspiracy to commit a specific offense, with the offense being anything from obstruction, wire fraud, mail fraud, etc. The government here chose to charge conspiracy to defraud the government, a less used basis for conspiracy charges. But in looking at the alleged evidence, this charge is the essence of that conduct - namely, the defendant is alleged to have been part of a conspiracy to defraud the United States.
- The last charge, 18 USC 241, is not something we often see charged. According to Syracuse's Trac Reporting there have only been 11 prosecutions in 2023 with this as the lead charge. And that is a 1600 % increase from last year, 113% from five years ago. If you go back 20 years, during the Bush presidency, it was a heavily used charge. To use a charge that has not been heavily used in the past few years may provide less caselaw with interpretation, but it also demonstrates how significant this alleged conduct may be.
- Of the cases pending against former President Trump, it is my opinion that this case is the most signifcant. Although national security is crucial to our country (case # 2), this case involves alleged conduct that tested whether we would continue to be a democracy.
Saturday, July 8, 2023
How To Think About The Hunter Biden Whistleblowers’ Disclosures And The Hunter Biden Plea Agreement. Part I.
There are three key elements to the recent disclosures by IRS Criminal Investigation Division whistleblowers concerning the DOJ’s criminal investigation of Hunter Biden: 1) the false and/or conflicting statements by Delaware U.S. Attorney David Weiss and Attorney General Merrick Garland about the degree of authority and independence conferred upon Weiss by DOJ; 2) the alleged efforts of Delaware AUSAs and DOJ Tax Division prosecutors to slow-walk the case and block or delay avenues of investigation; and 3) the alleged underlying criminal conduct of Hunter Biden.
Let’s start with the false and/or conflicting statements by Garland and Weiss. AG Garland has repeatedly made public statements, sometimes sworn, indicating that Trump-appointed Delaware U.S. Attorney Weiss had (and still has) complete independence and authority to bring charges against Hunter Biden in any federal district where venue might lie, free of political interference. Note that there is a difference between being able to run your investigation free of political interference and having the authority to bring charges in a federal district outside of Delaware. You can give Weiss all of the freedom to investigate he wants and still deny him the ability to bring charges in the District of Columbia or the Central District of California. But Garland recently reiterated that Weiss had (and has), “complete authority to make all decisions on his own,” had, “more authority than a special counsel,” and was “authorized to bring a case anywhere he wants in his discretion.” Garland has also stressed that Weiss never came to him asking for special counsel authority.
But here is a key contradictory fact we now know, thanks to the transcribed interview of IRS-CID Supervisory Special Agent (“SSA”) Gary Shapley, a/k/a Whistleblower #1 and the documents Shapley provided. Delaware U.S. Attorney Weiss told a roomful of IRS and FBI special agents and DOJ attorneys, on October 7, 2022, "that he is not the deciding person on whether charges are filed." He then revealed that, months before, he had sought and been denied the authority to bring felony tax evasion charges against Hunter Biden in the District of Columbia by District of Columbia U.S. Attorney Matthew Graves. Weiss further told the agents at the same October 7, 2022, meeting that he had requested special counsel status from Main Justice in order to bring charges in the District of Columbia but had been rebuffed. (Weiss also told the agents and prosecutors in the October meeting that the case was then at the U.S. Attorney’s Office for the Central District of California awaiting its decision on whether to file. He stated that if CDCAL rejected his request he would go to Main Justice again to ask for special counsel status.)
Weiss’s October 7, 2022, statement to the roomful of agents and prosecutors is clearly at odds with Garland’s public comments that Weiss had all the authority he needed to bring charges in any federal district. Garland has not indicated how he conferred this authority on Weiss. Was it reflected in a written authorization giving Weiss special attorney status under 28 USC §515(a)? Was it orally conveyed? If orally conveyed, did Garland merely invite Weiss to ask in the future for any authority he needed? Is this all a shell game in which Weiss asked Deputy Attorney General (“DAG”) Lisa Monaco for special attorney or special counsel status which she rebuffed and never reported to Garland?
Weiss’s June 7, 2023, letter to Congressman Jim Jordan, purported, “to make clear that, as the Attorney General has stated, I have been granted ultimate authority over this matter, including responsibility for deciding where, when, and whether to file charges and for making decisions necessary to preserve the integrity of the prosecution, consistent with federal law, the Principles of Federal Prosecution, and Department regulations.” This statement had to be clarified once the Shapley transcript and supporting documentation were released to the public. So on June 30, 2023, Weiss wrote again to Jordan, setting out his geographically limited charging authority but noting his ability to request special attorney status under 28 U.S.C. § 515 in the event that a U.S. Attorney in another federal district does not want to partner with him on a case. Then the kicker: “Here, I have been assured that, if necessary after the above process, I would be granted § 515 Authority in the District of Columbia, the Central District of California, or any other district where charges could be brought in this matter.” Translation? I never asked Main Justice for special attorney status or authority. But if Weiss was being truthful in his June 30, 2023 letter to Jordan, he certainly lied to federal agents on October 7, 2022 when he told them that he had asked for special counsel authority to bring the Hunter Biden case in the District of Columbia and been denied.
Honest prosecutors running a legitimate criminal investigation do not need to lie to their case agents or prevaricate in their public pronouncements. And Garland surely realizes that his public statements to date, for whatever reason, have left a misleading impression. Yet he has done noting to get to the bottom of what happened. It’s time for him to lance the boil. More to come in Parts II and III.
July 8, 2023 in Corruption, Current Affairs, Fraud, Government Reports, Grand Jury, Investigations, Legal Ethics, Money Laundering, Privileges, Prosecutions, Prosecutors, Tax | Permalink | Comments (0)
Friday, June 9, 2023
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 -
- 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).
- 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).
- 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.
- 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."
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Sunday, March 12, 2023
Elon Musk and the Law
Stetson Law Review Symposium
8:30 a.m. -4:30 p.m.
Virtual or In-Person at Stetson's Gulfport Campus
Admission - $50 - Legal Practitioners & Others; $40 Stetson Alumni; Free- Stetson Law Students and Faculty
For More Information and to register - here
Sunday, January 22, 2023
Telemedicine emerged as a lifeline during the COVID-10 pandemic. Although the technology existed long before the pandemic, its use was limited due to strict government regulations that limited reimbursement for telemedicine visits. In response to the pandemic, the Government waiver many of its restrictions for the duration of the Public Health Emergency. These changes fueled the growth of telemedicine.
The problem, however, is that telemedicine makes it easier to conduct fraud on a larger scale because without in-person visits, medical providers can reach many more beneficiaries in a short period of time. Thus, the size and scale of typical health care fraud schemes, such as sending medically unnecessary durable medical equipment, is magnified. This type of fraud has been on the rise since 2016, and, with the relaxed rules for telemedicine reimbursement during the pandemic, there is a serious concern that there will be a sharp increase in telemedicine fraud.
This Article examines the fraudulent practices in the telemedicine industry and the conditions that permit them to flourish. This Article critically assesses the changes to telemedicine coverage and their relationship to fraud. It examines the fraudulent practices through the lens of the fraud triangle to determine why telemedicine fraud occurs. After assessing the cause of telemedicine fraud, this Article argues that there is no need for additional criminal statutes to address telemedicine fraud. As the typical telemedicine scam involves the payment of kickbacks and bulling for medically unnecessary treatment and services, the existing fraud laws such as the Anti-Kickback statute and the False Claims Act are sufficiently capacious to address the criminality involved in these cases. This Article also argues that in lieu of the additional criminal statutes, the Government should focus on additional measures to prevent or detect telemedicine fraud because preventative measures are the best way to safeguard the integrity of federal health care programs.
Friday, January 20, 2023
The new DOJ Corporate Prosecution Policy Revisions of January 17, 2023 discussed here, makes the point of noting that the policy "is not in any way predicated upon waiver of the attorney-client privilege or work product protection, and none of the requirements above require such waiver." This is a wonderful statement to be included in this policy where there is a discussion of cooperation, as it emphasizes the importance of the respect for the attorney-client privilege. (9-47.120 - Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy - here). In defining self-disclosure it notes the following requirements:
The Criminal Division will require the following items for a company to receive credit for voluntary self-disclosure of wrongdoing (beyond the credit available under the U.S.S.G.):
• The voluntary disclosure must be to the Criminal Division;
• The company had no preexisting obligation to disclose the misconduct;
• The voluntary disclosure qualifies under U.S.S.G. § 8C2.5(g)(1) as occurring “prior to an
imminent threat of disclosure or government investigation”;
• The company discloses the conduct to the Criminal Division within a reasonably prompt
time after becoming aware of the misconduct, with the burden being on the company to
demonstrate timeliness; and
• The company discloses all relevant, non-privileged facts known to it, including all relevant
facts and evidence about all individuals involved in or responsible for the misconduct at
issue, including individuals inside and outside of the company regardless of their position,
status, or seniority.
But the paragraph that caught my eye is this one about de-confliction which states:
“De-confliction” is one factor that the Criminal Division may consider in appropriate cases in
evaluating whether and how much credit that a company will receive for cooperation. When the
Criminal Division makes a request to a company to defer investigative steps, such as the interview
of company employees or third parties, such a request will be made for a limited period of time and
be narrowly tailored to a legitimate investigative purpose (e.g., to prevent the impeding of a
specified aspect of the Criminal Division’s investigation). Once the justification dissipates, the
Criminal Division will notify the company that the Criminal Division is lifting its request.
Although the Criminal Division may, where appropriate, request that a company refrain from
taking a specific action for a limited period of time for de-confliction purposes, the Criminal
Division will not take any steps to affirmatively direct a company’s internal investigation efforts.
Is there a stronger link being developed between the government and the company, and is asking the company to defer an investigation furthering the company as an "agent" of the government? What happens if the company does not defer its internal investigation?
One final note - the policy states that "Declinations under this Policy will be made public." This acknowledgement of transparency on the part of the government should be applauded. But will a company want it known that they had been under investigation?
There are many questions yet to be answered, stay tuned.
Thursday, January 19, 2023
On January 17, 2023, Assistant Attorney General Kenneth A. Polite, Jr. Delivered Remarks on Revisions to the Criminal Division’s Corporate Enforcement Policy, in which he stated, "The policy is sending an undeniable message: come forward, cooperate, and remediate." The new guidance provides:
Accordingly, the Criminal Division is issuing this revised Policy, effective on a prospective basis as of January 2023, which provides, inter alia, that when a company has voluntarily self-disclosed misconduct to the Criminal Division, fully cooperated, and timely and appropriately remediated, all in accordance with the standards set forth below, there will be a presumption that the company will receive a declination absent aggravating circumstances involving the seriousness of the offense or the nature of the offender. (emphasis added)
In delivering remarks on the new policy, Assistant Attorney General Kenneth A. Polite noted that the presumption will not apply when aggravating circumstances exist. He stated -
Namely, even if aggravating circumstances are present, although a company will not qualify for a presumption of a declination, under the revised CEP I am announcing today, prosecutors may nonetheless determine that a declination is the appropriate outcome, if the company can demonstrate that it has met each of the following three factors:
• The voluntary self-disclosure was made immediately upon the company becoming aware of the allegation of misconduct;
• At the time of the misconduct and the disclosure, the company had an effective compliance program and system of internal accounting controls that enabled the identification of the misconduct and led to the company’s voluntary self-disclosure; and
• The company provided extraordinary cooperation with the Department’s investigation and undertook extraordinary remediation.
Each of these factors is familiar. That is by design. We are requiring companies seeking the possibility of a declination—even in the face of aggravating factors—to take extraordinary measures before, during, and after a Criminal Division investigation to earn such an outcome. This possibility is directed squarely at companies that take compliance and good corporate citizenship seriously.
Although the DOJ has moved to individual accountability years back, this new policy offers more of a carrot to companies who provide the evidence or assist the government is obtaining the evidence against individuals. AAG Polite stated:
Our number one goal in this area – as we have repeatedly emphasized – is individual accountability. And we can hold accountable those who are criminally culpable—no matter their seniority—when companies come forward and cooperate with our investigation.
It will be interesting to follow whether this new incentive to companies will provide for more prosecutions of individuals, and in turn result in more deterence with respect to corporate criminality.
More tomorrow on other interesting aspects of this new policy.
Thursday, January 5, 2023
Congratulations to Dr. Lesly Pompy, acquitted on all counts (illegal distribution and health care fraud) on January 4, 2023, in the Eastern District of Michigan. Kudos as well to his outstanding team of defense lawyers, Ronald Chapman II (Chapman Law Group), Joe Richotte (Butzel Long), and George Donnini (Butzel Long). Here is a recap from Ron's Federal Defense Blog. Attached below is Defendant's Proposed Jury Instruction. The proposed illegal distribution charge should serve as a model for other defense attorneys practicing in this area.
I don't yet have a copy of the district court's final jury instruction, but will post it as soon as it becomes available on PACER.
This is one of several post-Ruan acquittals that have come down in the last six months. In each of these cases the government's evidence was weak and the strengthened scienter requirement established in Ruan v. United States no doubt played a major role in facilitating the not guilty verdicts.
Wednesday, January 4, 2023
Two new white collar crime books were recently published -
Understanding White Collar Crime, Fifth Edition, by J. Kelly Strader, Todd Haugh (here)
White Collar Crime in a Nutshell, Sixth Edition, by Ellen S. Podgor, Jerold H. Israel, Miriam H. Baer, and Gregory M. Gilchrist (here)