Wednesday, February 24, 2021

Garland Hearing

One thing is pretty clear from the Garland hearing - he will easily be confirmed.  Non-political, experienced, caring, and yet determined to restore the DOJ to some of its roots was apparent in his testimony.  Check out, Jack Queen, Garland Aced His AG Audition. Next Comes The Hard Part. But there are still many questions that will await review when he becomes the AG - how he will handle the many challenges facing the department.


February 24, 2021 | Permalink | Comments (0)

Sunday, February 21, 2021

Upcoming Garland Hearing for Attorney General

Many are opining on what to expect at the Garland hearing this week:

Jack Queen, What To Watch For At Garland's AG Confirmation Hearings, Law360

Carrie Johnson, Merrick Garland Heads For Confirmation Hearing, 5 Years After He Was Denied A Vote, NPR

Garland's opening statement is noted on CNN here.

Some thoughts on his opening statement -

  1. First page after preliminary thanks and expounding on the historical role of AG is to emphasize the "rule of law" and "independence of the Department from partisan influence in law enforcement investigations."
  2. Civil Rights and its importance is placed in the context of history.
  3. He speaks about his role in the Oklahoma City prosecutions and moves into foreign and domestic enemies.
  4. Two terrific Robert Jackson quotes highlight the ending. 

It is a short statement, and provides little about his priorities as AG.  But it does set a tone that fairness and a nonpolitical administration will be what overrides everything. One can expect he will be peppered with questions about many areas of concern. 


February 21, 2021 | Permalink | Comments (0)

Saturday, February 20, 2021

NACDL Model Rule Under Due Process Protection Act

The Due Process Protection Act (see here and here), provides that:

In all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law.

But it also requires that:

Each judicial council in which a district court is located shall promulgate a model order for the purpose of paragraph (1) that the court may use as it determines is appropriate.

So what should that Model Order look like?  The National Association of Criminal Defense Lawyers (NACDL) has such an order for court's to use. It is an order that promotes due process, fairness to the accused, while also balancing the rights of others. A copy of that Order can be found here.  Importantly, it includes provisions of the consequences when there is a failure to comply.

(esp)(disclosure that I was part of the drafting team).

February 20, 2021 | Permalink | Comments (0)

Thursday, February 18, 2021

Top Attorney Added to Manhattan DA's Team

Wednesday, February 17, 2021

From Rob Cary's Representation of Senator Ted Stevens to the Due Process Protection Act

David Oscar Markus has a terrific podcast interviewing Rob Cary of Williams and Connolly on his representation of Senator Ted Stevens. See here. It is important to be reminded of the important role that Judge Emmet Sullivan played in exposing discovery violations that had occurred in this case.    We are starting to see the full effect of what happened in the Steven's case with the recent passage of the Due Process Protection Act of 2020, which reminds prosecutor's of their discovery obligations under Brady.  


February 17, 2021 | Permalink | Comments (0)

Sunday, February 14, 2021

The Dichotomy Between Overcriminalization and Underregulation

My recent Article - The Dichotomy Between Overcriminalization and Underregulation, 70 Am. U. L. Rev. 1061 (2021) -  available at - here and here.

The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the conduct. The question is whether the harms accruing from misconduct and later criminal prosecutions could have been prevented if agency oversight had been stronger. Even if criminal punishment were still necessitated, would prompt agency action have diminished the public harm and likewise decreased the perpetrator’s criminal culpability?

Criminalization and regulation, although two distinct systems, can be evaluated from the perspective of their substantive structure—a universe of statutes or regulations—as well as their enforcement procedures, the prosecution of crimes, or enforcement of regulatory provisions. The correlation between criminalization and regulation is less noticed, however, as the advocacy tends to land in two camps: (1) those advocating for increased criminalization and regulation or (2) those claiming overcriminalization and overregulation.

This Article examines the polarized approach to overcriminalization and underregulation from both a substantive and procedural perspective, presenting the need to look holistically at government authority to achieve the maximum societal benefit. Focusing only on the costs and benefits of regulation fails to consider the ramifications to criminal conduct and prosecutions in an overcriminalized world. This Article posits a moderated approach, premised on political economy, that offers a paradigm that could lead to a reduction in our carceral environment, and a reduction in criminal conduct.


February 14, 2021 | Permalink | Comments (0)

Saturday, February 13, 2021

Prosecution of COVID Related Fraud Cases Picking Up

DOJ prosecutions related to COVID Fraud are clearly picking up. The DOJ's website front page instructs viewers on reporting COVID-19 crime.  And the Justice News shows a line of recent press releases focused on COVID related fraud.   One sees prosecutions for alleged "schemes purporting to sell Covid-19 Vaccines" (here), pandemic unemployment benefits fraud (here), and charges being brought for alleged "misappropriating monies designed for COVID Medical Provider Relief (here).


February 13, 2021 in Fraud | Permalink | Comments (0)

Thursday, February 4, 2021

Health Care Related Prosecution Settled With Qui Tam

DOJ Press Release reports, "Florida Businesswoman Pleads Guilty to Criminal Health Care and Tax Fraud Charges and Agrees to $20.3 Million Civil False Claims Act Settlement." (see here). The government notes that along with the criminal matter being resolved (although sentencing as not occurred yet), the settlement of the civil false claims case "includes the resolution of claims brought under the qui tam or whistleblower provisions of the False Claims Act." The settlement can be found here.


February 4, 2021 in Prosecutions | Permalink | Comments (0)

Wednesday, February 3, 2021

CEO Sentenced for $150 Million Health Care Fraud and Money Laundering Scheme

DOJ Press Release reports, "The CEO of a Texas-based group of hospice and home health entities was sentenced today to 15 years in prison for falsely telling thousands of patients with long-term incurable diseases they had less than six months to live in order to enroll the patients in hospice programs for which they were otherwise unqualified, thereby increasing revenue to the company." Full press release here.   


February 3, 2021 | Permalink | Comments (0)

Monday, February 1, 2021

Acting AG Reinstates Former AG Holder Policy on Charging and Sentencing

The DOJ's Acting Attorney General Monty Wilkinson reinstated the Department Policy on Charging and Sentencing of May 19, 2010.  Although noted that this is an interim measure pending the confirmation of a new Attorney General, it demonstrates the forceful return to a policy that is premised on "individualized assessment."   The new policy dated January 20, 2021 states, "The goal of this interim step is to ensure that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts while longer-term policy is formulated."  See Policy here.  

In a country that is plagued with mass incarceration and racial inequities, it is wonderful to see reinstated a policy that will allow disparities to be corrected. As noted in this memo, "Together we will work to safeguard the public, maximize the impact of our federal resources, avoid unwarranted disparities, promote fair outcomes in sentencing, and seek justice in every case."

See also Stewart Bishop, Acting AG Drops Trump-Era Tough-On-Crime Charging Policy here.


February 1, 2021 in Prosecutors | Permalink | Comments (0)

Friday, January 29, 2021

Corporate Criminal Reform

Professor Brandon Garrett here looks at books by  Jennifer Taub here and Hon. Jed Rakoff here in discussing corporate criminal reform.  This is definitely an area that President Biden will need to re-examine.


January 29, 2021 | Permalink | Comments (0)

Friday, January 1, 2021

Former AG Richard Thornburgh RIP

The press is reporting the death of former Governor of Pa. and Attorney General Richard "Dick" Thornburgh (see here and here). Many will reflect on his handling of the Three Mile Island crisis.  Others will look at his time as Governor. 

But criminal defense attorneys will likely recall the Thornburgh Memo that called for prosecuting or pleading to the "most serious readily provable offense."  There were some exceptions in the guidance, and in some ways this posture can be traced back to AG Civiletti.  (See Alan Vinegrad, Justice Departments New Charging Plea Bargaining and Sentencing Policy, NYLJ explaining the differences and sameness in DOJ  AG Policies). Others may recall his memo that allowed prosecutors to contact defense counsel's clients without their permission.  The highly controversial memo questioned whether US Attorneys were subject to state ethics rules. (See Allen Samuelson & Robert Maxwell, State Ethics Rules Now Apply to Federal Prosecutors)  In the end, the ethics rules prevailed, with the passage of the McDade Amendment in 1998 that legislatively held that attorneys for the government would be subject to state ethics rules. (see here). 

Dick Thornburgh was also known for "shepherding the American with Disabilities Act"(here) When he dedicated the Eleazer courtroom on Stetson Law's campus he said, "[t]he Eleazer courtroom doesn’t simply accommodate wheelchair access, though that is monumental in its own right. It goes so much further. Its technology will enable people with various sensory impairments to participate fully in our judicial process." (see here

Finally, Thornburgh supported the importance of the Mueller Investigation and the need for this investigation. In an op-ed piece in USA Today he stated, "We must insist that the Department of Justice perform its duties vigorously and follow the evidence wherever it leads. Our democracy demands no less."  (see here).


January 1, 2021 | Permalink | Comments (0)

Thursday, December 31, 2020

2020 White Collar Crime Awards

Almost each year this blog has honored individuals and organizations for their work in the white collar crime arena by bestowing "The Collar" on those who deserve praise, scorn, acknowledgment, blessing, curse, or whatever else might be appropriate. With the appropriate fanfare, and without further ado, The Collar for 2020 is:


Happy New Year! See y'all next year.


December 31, 2020 | Permalink | Comments (0)

Saturday, December 26, 2020

Corporate Transparency Act

The Corporate Transparency Act is part of the 2021 National Defense Authorization Act (NDAA). This is important bi-partisan legislation that will provide transparency when companies and individuals are using shell corporations to "thwart law enforcement and hide their illicit activities." (See Rep. Carolyn B. Malony's webpage).  A description of the Act can be found here.  See Morris Pearl, Congress just passed the most important anti-corruption reform in decades, but hardly anyone knows about it , (Dec. 26, 2020).  


December 26, 2020 | Permalink | Comments (0)

Friday, August 28, 2020

COVID19 & Jury Trial

Judge Gary R. Brown issued a Memorandum & Order in U.S. v. Cohn allowing for a waiver of a jury trial despite government objection. In this unusual move, in these unusual times, he is allowing for a securities fraud related case to proceed to a bench trial with the defendant's consent, but without the government's approval. See here.


August 28, 2020 in Judicial Opinions, Prosecutions | Permalink | Comments (0)

Wednesday, August 12, 2020

Flynn Hearing - Maybe This is Not Mandamus

Yesterday's Flynn hearing was long - almost four hours - and somewhat contentious. But it was more about the role of Mandamus then what Flynn's attorney would have wanted the court to consider. 

Prosecutors typically do have discretion to dismiss cases as they so please.  But when an individual has already plead guilty, the question is more complicated, as forcing a judge to just dismiss without asking questions as to why the DOJ is dismissing, would render the court a rubber stamp of prosecutorial discretion. Interesting issues discussed during the hearing included whether the district court can inquire as to the reasons for the dismissal. After all, Federal Rule of Criminal Procedure 48(a) allows for government dismissal "with leave of court."

But for the most part, the hearing turned on the remedy being employed by defense counsel to secure a dismissal - A Writ of Mandamus. One has to wonder if defense counsel had just waited for the court to rule on the DOJ's Dismissal Motion whether this hearing would even be happening. 

See Khorri Atkinson, Full DC Circ. Not Inclined to Immediately Halt Flynn's Case.


August 12, 2020 | Permalink | Comments (0)

Tuesday, August 11, 2020

What A Durham Report May Look Like: Hasn't Anyone Heard of Speaking Indictments?

Speculation is rampant about indictments that may result from Connecticut U.S. Attorney John Durham's probe into the FBI's handling of the Crossfire Hurricane investigation, and the Bureau's four materially false FISA Applications submitted to the FISA Court. Fans of the President, expecting or demanding a rash of indictments, are likely to be as disappointed as Trump haters were when Robert Mueller's investigation of Trump-Russia criminal collusion turned out to be a dud. Rumors also abound that, indictments or not, Durham will issue a Report, naming names and detailing the FBI's multiple misdeeds. Opponents of such a Report point out that the Department of Justice ("DOJ"), except in the unusual circumstance of a Special Counsel's Report, does not typically smear people when the grand jury fails to return indictments. You know some folks are getting worried when Mueller Pit Bull Andrew Weissmann pens a New York Times Op-Ed all but urging career DOJ officials to refuse to cooperate with the highly respected Durham if he asks the grand jury to return indictments within 90 days of the the 2020 election.

Attorney General William Barr has already made it clear (sending a not very subtle hint to the faithful) that not all governmental abuses of power, even serious abuses, constitute crimes. To take an obvious example, I consider the set-up of Trump's first National Security Advisor Michael Flynn, by the FBI's Comey-McCabe Cabal, to be one of the most significant abuses of law enforcement power in recent American history. But I don't see any federal criminal statute that was violated in the process of the set-up. 

So, we are likely to see a small handful of indictments at most, based on the currently available public record. Were the Flynn-Kislyak phone calls feloniously leaked? Almost certainly so, absent Presidential declassification, but good luck proving who did it. The only known individual publicly referred for possible prosecution as a result of Michael Horowitz's OIG investigation into FISA abuse was former FBI Office of General Counsel Attorney Kevin Clinesmith. Clinesmith gave false information to  FBI Supervisory Special Agent #2, who served as the FBI's affiant on all three FISA Renewal Applications. Clinesmith also altered a key email from a CIA liaison, materially changing its meaning, and forwarded it to the same affiant. Of course it is possible that Clinesmith is cooperating and naming other people, but that is pure speculation at this point. More information may also come out explaining whether the predicate for Crossfire Hurricane, the Alexander Downer conversation with George Papadopoulos, was itself some kind of an intelligence agency set-up, but, again, turning that into an actionable crime is another matter. 

So how will the story be told by Durham? The easiest way will be through a lengthy speaking indictment against one person, or a handful of conspirators, that tells the prosecution's story of the case. Speaking indictments which have been common for decades in federal criminal cases, tell the tale of the prosecution's case in as many chapters as the prosecutors need or want to take. These speaking indictments can be broad enough to include manner and means and overt acts, criminal and non-criminal, as part of the mosaic. In other words, in telling the story, the government can include non-criminal conduct, or conduct that it could not prove beyond a reasonable doubt to a jury, as long as long as the conduct is rationally related to the charged crime. Mueller himself did this, through some of his indictments or informations (Manafort, Gates, and the Russian hacking and troll farm cases) and through the Statement of the Offense in cases where defendants pled guilty. in fact, it was through careful examination of the Special Counsel's charging instruments that knowledgeable observers were able to determine fairly early on that that Mueller had no criminal collusion case.

So, that's what I think we will see from John Durham. A small handful of defendants and at least one significant, story-telling, speaking indictment.


August 11, 2020 in Corruption, Current Affairs, Fraud, Government Reports, Grand Jury, Investigations, Legal Ethics, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)

Monday, August 10, 2020

Wednesday, August 5, 2020

Michael Flynn Update: D.C. Circuit Sets Argument Times and Asks Parties to Address Judge Sullivan's Possible Disqualification

The U.S. Court of Appeals for the D.C. Circuit today announced the allocation of oral argument time in the Michael Flynn Mandamus case, In re Flynn. This was expected. Twenty minutes each were allotted to General Flynn, the Department of Justice, and Judge Emmet Sullivan. The Court "FURTHER ORDERED that, in addition to the issue set forth in the court's order filed July 30, 2020, the parties be prepared to address at oral argument the effect, if any, of 28 U.S.C. §§ 455(a) and 455(b)(5)(i) on the District Court judge's Fed. R. App. P. 35(b) petition for en banc review." This was unexpected. The Court further Ordered "One counsel per side to argue."

Under the Federal Rules of Appellate procedure, only a party may petition a full appellate court for a rehearing en banc. Judge Sullivan is the person who filed the petition in In re Flynn. Both the Department of Justice and General Flynn argued in response to Judge Sullivan's Petition for En Banc Rehearing that he had no standing to even file such a Petition, because he was not a party to the Petition for Mandamus. But the full Court had not indicated, until yesterday, that it wanted to hear about that issue.

Under 28 U.S.C. § 455(a) "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 

Under 28 U.S.C. § 455(b)(5)(i), a judge "shall also disqualify himself" if " a party to the proceeding."

What is going on here? As noted above, originally, the full court only wanted to hear oral argument on whether Mandamus was the appropriate remedy under the facts of the case.

Judge Sullivan has not disqualified himself from the underlying case of U.S. v. Flynn.

Does the full Court simply want the parties to now be prepared to argue whether Judge Sullivan had standing to file the Petition for Mandamus? Are they saying, in effect, "We know Judge Sullivan would not make himself a party without disqualifying himself. Since he hasn't disqualified himself, is this further proof that he isn't a party and does not have standing in our Court?" Do they even want to hear from Sullivan on the 11th if he is not a party? If so, why did they grant his counsel 20 minutes to argue the case? Are they signaling Judge Sullivan to reassign the case below prior to the 11th?

Or does the Court merely want to hear argument on whether, in the event that Mandamus is denied, the case should be assigned to another judge because Judge Sullivan's "impartiality might reasonably be questioned" or, more likely,  because he has made himself a "party to the proceeding" ?  (General Flynn has already argued for reassignment to another judge. DOJ did not ask for this.) In other words, is the Court basically saying to Judge Sullivan" "Since we voted to grant your Petition for Rehearing, haven't we implicitly accepted your status as a party? And if we have accepted your status as a party, how can you remain as the trial judge in Flynn's case, even if we deny the Mandamus Petition?"

I would think that the Court really wants to hear the reassignment issue, but the wording of the order leaves this open to question. Here is In re Flynn 8-5-20 Order re Oral Argument and 28 U.S.C. 455(a) and (b)(5)(1)



August 5, 2020 in Current Affairs, Investigations, Judicial Opinions, Legal Ethics, Prosecutions, Prosecutors | Permalink | Comments (0)

Friday, July 31, 2020

Where We Are Now In The Michael Flynn Case

           The full United States Court of Appeals for the D.C. Circuit yesterday granted Judge Emmet Sullivan’s Motion for Rehearing En Banc, vacating a decision by one its three-judge panels, and will soon decide whether to grant General Michael Flynn’s Petition for a Writ of Mandamus against Judge Sullivan. Flynn seeks the Writ of Mandamus in order to force Judge Sullivan to immediately grant the Department of Justice’s May 7, 2020 Motion to Dismiss the criminal case against him, a motion consented to by Flynn. Regardless of the full Court’s ultimate ruling on the mandamus issue, DOJ’s Motion to Dismiss will have to be granted sooner or later under governing legal precedents. No federal appellate court has ever sustained a district court’s refusal to grant an unopposed government motion to dismiss an indictment.

        There are two separate but related legal issues at stake before the Court of Appeals. First, does the law require Judge Sullivan to grant DOJ’s Motion to Dismiss in the absence of a grave constitutional issue, reducing Sullivan’s function to a ministerial one? Federal Rule of Criminal Procedure 48(a) requires “leave of court” when the government moves to dismiss an indictment, but an abundance of federal case law holds that the district court’s role is in fact quite limited when the government moves to dismiss a criminal case and the defendant consents. Second, is mandamus the appropriate remedy for Flynn given that Judge Sullivan has yet to rule on DOJ’s Motion to Dismiss? Mandamus is an extraordinary remedy, typically reserved for situations where the remedy provided at law is inadequate. Judge Sullivan had not yet ruled on DOJ’s Motion to Dismiss when Flynn filed his Petition for a Writ of Mandamus. Why didn’t Flynn just wait for Judge Sullivan to rule and for DOJ to appeal Sullivan’s order if he denied the motion?

        The DOJ has argued that Judge Sullivan’s: 1) appointment of retired federal judge John Gleeson as an amicus, or friend of the court, for the specific purpose of opposing DOJ’s Motion to Dismiss; and 2) Judge Sullivan’s indication that he intends to examine closely DOJ’s motives in filing the Motion to Dismiss, will themselves be an improper intrusion into Executive Branch functions, in violation of Separation of Powers. Flynn has argued that these same factors, along with Sullivan’s setting of a drawn out briefing schedule, harms him financially and reputationally by delaying the immediate relief he is entitled to.

        What is likely to happen next?

        Argument before the Court sitting En Banc has been set for August 11, but the Court wants no further briefing. The Court’s Order states that the parties “should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).” Cheney is a key Supreme Court case involving the intersection of Separation of Powers and Mandamus case law. In other words, the key issue before the full D.C. Circuit is whether mandamus is premature. Should Judge Sullivan have been allowed to hold a hearing and make a ruling before Flynn went to a higher court seeking mandamus relief or did the very mechanisms set in place by Sullivan create an improper intrusion into Executive Branch matters and a harmful delay in the relief to which Flynn was entitled?

        Even if the Court of Appeals ultimately holds that mandamus is premature, expect the full Court to set clear standards as to what Judge Sullivan can and cannot do (and how long he can take) in ruling on DOJ’s Motion to Dismiss. And make no mistake about it. The DOJ’s Motion will ultimately be granted.


July 31, 2020 in Current Affairs, Defense Counsel, Government Reports, Investigations, Judicial Opinions, Legal Ethics, News, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)