Monday, January 17, 2022

Fifth Circuit Reverses Tax Counts

Last week in United States v. Pursley, the Fifth Circuit reversed and remanded all counts of conviction against appellant Jack Pursley. Appellant had been charged with a Klein conspiracy and three tax evasion counts.  The convictions were reversed because: 1) the trial court refused to give a requested instruction requiring the jury to find that the charged offenses were committed within the 6 year statute of limitations period; and 2) the trial court neglected to make a ruling as to how long the statute of limitations had been suspended pursuant to 18 U.S.C. Section 3292 (suspension of limitations to obtain foreign evidence). Under Section 3292 (b), "a period of suspension under this section shall begin on the date on which the official request is made and end on the date on which the foreign court or authority takes final action on the request." According to the Fifth Circuit, the trial court must make the factual determination as to the date on which the foreign court or authority took final action on the request for evidence, assuming that there is a dispute as to this issue, but failed to do so here. It is often not at all clear when such final actions by foreign authorities take place. Sometimes the foreign authority will state that it has taken final action, but continue to send documents after this date. Sometimes the foreign authority will not indicate whether  it is taking its final action. The case has a good discussion of statute of limitations issues in tax evasion cases.

(wisenberg)

 

January 17, 2022 in Judicial Opinions, Prosecutions, Tax | Permalink | Comments (0)

Monday, January 10, 2022

Briefs Filed in Ruan and Khan.

Last November, guest bloggers Eugene Gorokhov and Jonathan Knowles posted here about the Supreme Court's granting of certiorari in Ruan v. United States and Kahn v. United States, two federal Circuit Court of Appeals decisions that effectively eviscerate the scienter requirement in criminal cases charging physicians with illegal distribution of Schedule II drugs. There is a longstanding split between those federal circuits that have criminalized malpractice and those requiring the government to actually prove beyond a reasonable doubt that physician defendants had a subjective intent to prescribe drugs for no legitimate medical purpose and outside the scope of their professional practices. Other circuits fall in-between, allowing hybrid jury instructions with objective and subjective intent elements. Amicus Briefs and the Petitioners' Briefs were filed in late December. I am posting some of them here. The smart money is on the Court substantially clarifying and strengthening the government's obligation to prove knowing or intentional efforts by physicians to prescribe outside the scope of professional practice and without a legitimate medical purpose. 

Brief of Petitioner Shakeel Kahn

Ruan Brief for the Petitioner

Ruan - Amicus Brief of Due Process Institute

National Pain Adv Ctr Amicus Brief

Amicus Brief of NACDL

(wisenberg)

January 10, 2022 in Judicial Opinions, Prosecutions | Permalink | Comments (0)

Tuesday, January 4, 2022

More on Elizabeth Holmes

The speculation now begins about where Elizabeth Homes will serve her sentence, what her sentence will be, and how "cushy" she will find things in confinement. The Bloomberg Law story is here. Her sentence is likely to be more substantial than the three years being predicted by anonymous experts in this story. Nevertheless, as a first-time offender with no violent past and a non-violent offense of conviction, she is very likely going to a minimum security camp unless her sentence is longer than 10 years. That's the way the system works.

(wisenberg)

January 4, 2022 in Prosecutions, Securities, Sentencing | Permalink | Comments (0)

Monday, January 3, 2022

Theranos Founder Elizabeth Holmes Convicted On 4 Of 11 Counts. And That Will Be Enough.

Here is the CNN story.  The jury acquitted Holmes, the former CEO of blood-testing startup Theranos, on all 4 counts related to the alleged defrauding of patients. She was convicted on 4 counts related to defrauding of investors, including a conspiracy count. The jury hung on 3 additional investor fraud counts. There will be no retrial of the counts that the jury could not reach agreement on, because Holmes' ultimate sentence would not be affected by a guilty verdict on those counts. Moreover, under current Supreme Court case law, the trial court can (unfortunately) consider the government's evidence against Holmes on both the acquitted and hung counts in determining her sentence. The SEC long ago settled its case against Holmes without demanding an admission of wrongdoing on her part. Had she made such an admission there would have been no need for a criminal trial.

(wisenberg)

January 3, 2022 in Current Affairs, Fraud, News, Prosecutions, SEC, Securities, Sentencing, Settlement, Verdict | Permalink | Comments (0)

Saturday, April 3, 2021

Be Careful What You Ask For: Third Circuit Vacates Two Sentences For Defense Breaches Of Plea Agreement

In two cases consolidated for appeal, U.S. v. Yusuf and U.S. v. Campbell, the Third Circuit reversed downward variances based on defense breaches of the plea agreement. Both cases came out of the District of New Jersey and both involved plea agreements that recognized the sentencing court's ability to downwardly vary, but forbade the defense from arguing for a departure or variance below the recommended Guidelines range. The agreements also forbade the government from arguing for a departure or variance above the recommended range. Yusuf pled guilty to aggravate identity theft and conspiracy to commit bank fraud. Campbell pled guilty to felon in possession. Both cases involved mitigating circumstances that typically garner downward variances. Both cases involved sympathetic judges who all but encouraged defense breaches based on their searching inquiries during sentencing. Both cases stand for the proposition that there is a difference between defense counsel presenting the sentencing judge with all relevant facts about the defendant and the offense, including mitigating facts, and defense counsel asking for a downward variance, either directly or through questions to the client. This distinction is critical for defense counsel to keep in mind, even in response to questions for the court. In Campbell, defense counsel had the client ask the court for no jail time. In Yusuf, a much closer case in the Third Circuit's view, defense counsel suggested a sentence below the recommended Guidelines range. The Court distinguished defense counsel's sentencing hearing arguments in Yusuf from those of counsel for Yusuf's co-defendant Adekunle. (Adekunle's case was not on appeal and he had been sentenced by a different judge.) Adekunle's lawyer had reminded the sentencing court of its duty to consider proportionality, and the sentences handed down to co-defendants, but never asked for a downward variance and reminded the court twice that she was bound by the plea agreement: "I am constrained from arguing a below guideline sentence." The government also argued in Campbell that presenting character letters to the court asking for probation violated the plea agreement. The Third Circuit declined to reach this issue, which had not been preserved at sentencing, based on its finding that counsel's arguments alone constituted a breach. The Court cautioned district court judges at sentencing, "to be particularly mindful of the strictures on counsel when plea agreement provisions like the ones here are in place."

(wisenberg)

April 3, 2021 in Computer Crime, Defense Counsel, Fraud, Judicial Opinions, Prosecutions, Prosecutors, Sentencing | 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.

(esp)

February 4, 2021 in Prosecutions | 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.

(esp)

August 28, 2020 in Judicial Opinions, Prosecutions | 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.

(wisenberg)

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

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 "He...is 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)

(wisenberg)

 

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.

(wisenberg)

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

Monday, July 20, 2020

New Filings in Flynn Mandamus Action

Michael T. Flynn's Opposition to Rehearing En Banc has been filed today in the United States Court of Appeals for the D.C. Circuit. This is in opposition to Judge Emmet G. Sullivan's Petition for Rehearing En Banc, filed on July 9. The Department of Justice was invited by the Court to respond and did so today in the United States' Response to the Petition for Rehearing En Banc.

Both Flynn and DOJ argue that Sullivan lacked standing to file the Petition for Rehearing, as he is not a party and there is no longer a case or controversy. Apparently only one federal judge in history has filed such a petition and it was denied. DOJ's brief also argues in detail, quite effectively I think, that the panel's decision granting mandamus does not conflict with: D.C. Circuit precedent; precedent in other circuits; or Supreme Court precedent. 

DOJ also responds directly and succinctly to Judge Sullivan's argument that mandamus was premature, because he had not yet held a hearing or made a ruling on DOJ's Motion to Dismiss. Flynn therefore had an effective remedy on appeal from any adverse ruling. This argument ignores the continuing harm to the Executive Branch's interests occasioned by the judge's dilatory behavior:

"That objection misses the point: at stake is not mere consideration of a pending motion, but a full-scale adversarial procedure spearheaded by a court-appointed amicus hostile to the government’s position raising factual questions, relying on extra-record materials, probing the government’s internal deliberations, and second-guessing core prosecutorial judgments.... Accordingly, while the panel specifically recognized that '[a] hearing may sometimes be appropriate before granting leave of court under Rule 48,' it determined that the hearing contemplated by the district court here would 'be used as an occasion to superintend the prosecution’s charging decisions' and would cause 'specific harms.' "

My prediction is that Judge Sullivan's Petition for Rehearing En Banc will be denied.

(wisenberg)

July 20, 2020 in Current Affairs, Defense Counsel, Government Reports, Investigations, Judicial Opinions, Legal Ethics, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)

Wednesday, July 1, 2020

Short Take: Flynn and FARA

A frequent accusation hurled at the Michael Flynn camp is that Flynn’s plea deal was a tremendous boon to him, because Flynn faced possible charges, or, in the words of Lawfare’s Ben Wittes, “massive criminal liability”, for failing to register as a foreign agent for Turkey, during the transition period, in violation of the Foreign Agents Registration Act (“FARA”).

This argument is absurd. For openers, almost nobody faces massive criminal liability under FARA. It has a five year statutory maximum and would, in Flynn's case, probably be scored under Section 2B1.1 of the Sentencing Guidelines. (This is because FARA has no Guideline section attached to it and 2B1.1, is "the most analogous" offense Guideline.) And no amount of monetary loss would be factored in. Thus, even a defendant in Flynn's shoes who went to trial and got convicted could easily receive a Guidelines range of 0-6 months. 

Second, it is not at all clear that Flynn was an agent of Turkey during the transition period or that he could have been successfully convicted as such pursuant to FARA. Flynn severed his ties with Turkey shortly after Trump won the election. His partner in Flynn Intel Group (Bijan Rafiekian) was tried and convicted in the Eastern District of Virginia for conspiring to violate FARA (by submitting a materially false FARA filing ) in relation to a transaction that Flynn himself participated in. (Indeed, the government's Statement of the Offense in U.S. v. Flynn included allegations of false statements by Flynn in connection with the very project at the heart of Rafiekian's case.) The highly respected trial judge, Anthony Trenga, however, threw out the jury's verdict after trial based on insufficient evidence, ruling that no rational juror could have found Flynn’s partner guilty. See U.S. v. Rafiekian Opinion Granting Rule 29 Motion. That ruling is currently being appealed by the DOJ at the Fourth Circuit.

Third, the DOJ itself told Judge Trenga that Flynn was not a co-conspirator with his Rafiekian. The DOJ tried to reverse its position on this point when Flynn moved to withdraw his DC plea, but Trenga was having none of it.

Thus, there is no indication that Flynn feared going to trial under 18 U.S.C. Section 1001 or FARA. His original lawyers didn't see a crime. Flynn had a good chance to win and the downside was small, which is quite rare in federal prosecutions. But the government threatened to charge Flynn's son. It’s as simple as that. Then the prosecutors left that key condition out of Flynn’s written plea agreement, so that this part of the deal wouldn’t necessarily have to be revealed as Giglio to future defendants who Flynn might be called to testify against. That's how the sausage is sometimes made in white collar cases. But let's not pretend anything other than his son's fate was at stake for General Flynn. Either a guilty plea or a guilty jury verdict would have been equally devastating for Flynn's reputation. 

(wisenberg)

July 1, 2020 in Current Affairs, Investigations, Judicial Opinions, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)

Friday, June 19, 2020

U.S. v. Michael Flynn: The Responses to Gleeson's Amicus Brief in Judge Sullivan's Court

Attached are the separate Responses of Michael Flynn and the Department of Justice to former federal judge John Gleeson's Amicus Brief in U.S. v. Flynn.  A copy of Gleeson's Brief is also attached for ease of reference. Keep in mind that all of these papers were filed in Judge Emmet Sullivan's court, rather in the DC Court of Appeals which is hearing General Flynn's Petition for Writ of Mandamus against Judge Sullivan. This is because it was Judge Sullivan who decided to appoint an amicus and set a lengthy briefing schedule instead of granting the Motion to Dismiss outright or simply holding a hearing in the first place.

The DOJ Response, in addition to demolishing Gleeson's legal arguments, puts more stress than before on the Interests of Justice rationale for moving to dismiss the case against General Flynn. I'll be commenting on that in the next few days. DOJ also goes out of its way to oppose the Flynn camp's position that there was prosecutorial misconduct connected to the prosecution. DOJ rejects this out of hand, both with respect to all of the older exculpatory materials and the information discovered, declassified, and turned over by U.S. Attorney Jeffrey Jensen within the last two months. DOJ in fact turned over a significant amount of exculpatory material prior to General Flynn's guilty plea. Of course, we still have the mystery of the missing original draft 302, which has not been explained to my satisfaction by the Fan Belt Inspectors. 

As noted, the Jensen documents were not turned over until very recently, but there is no indication that any prosecutor knew, much less received, these items. That's important, because these items unmistakably lend further support to the view that Flynn's January 24 statements to FBI Special Agents were not material to the FBI's Crossfire Hurricane investigation. This makes the items Brady in my view. But DOJ still has its institutional interests to protect. And it has historically been in the forefront of seeking to limit the reach of Brady. 

More to come on all of this.

Brief for Court Appointed Amicus John Gleeson

Gov. Response to Gleeson Br.Final

FLYNN OPPOSITION TO GLEESON FILING v.25

(wisenberg)

June 19, 2020 in Contempt, Current Affairs, Government Reports, Judicial Opinions, Legal Ethics, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)

Sunday, June 14, 2020

The Flynn Plea Agreement: A Pernicious Paragraph

One of the ironies of high-profile, criminal investigations of public officials, particularly Special and Independent Counsel investigations, is the outrage expressed by certain segments of the populace upon discovering the existence of very common law enforcement techniques. Hence the outrage among President Clinton's supporters when they learned that Linda Tripp secretly tape-recorded her "best friend" Monica Lewinsky at the behest of Ken Starr's prosecutors. Hence the outrage, among Trump's supporters,  when they discovered that FBI officials wanted to catch General Flynn in a lie and threatened his son with prosecution in order to coerce a guilty plea. "That happens all the time," say the know-it-all criminal law cognoscenti who fellow-travel with one side or another, as well as their minions who parrot the party line to the faithful. Except in the case of Judge Starr. Almost nobody was on our side, parroting our points. Except the courts. Most of the time. But I digress.

Our subject today is a nasty little paragraph inserted into General Flynn's plea agreement by Bob Mueller's staff. I first started noticing this provision 5 or 6 years ago in some of the plea offers that came my way, depending on which U.S. Attorney's Office I was dealing with at the time. It has shown up more often since then, but is far from universal. It can be found in most or all of the Mueller team's plea agreements. It is typically found in Paragraph 9(F) within the Waivers section. It states as follows: "Your client agrees to waive all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including and without any limitation any records that may be sought under the Freedom of Information Act, 5 U.S.C. Section 552, or the Privacy Act, 5 U.S.C. Section 552(a), for the duration of the Special Counsel's Investigation." The limiting of the waiver to the duration of the investigation is not a feature I have previously encountered.

Although the waiver does not mention Brady material on its face, it clearly applies to requests for exculpatory records. (As I noted here recently, it was after General Flynn’s case was transferred to Judge Sullivan’s court, and Sullivan entered his broad standing Brady Order, that Mueller’s team appears to have provided voluminous additional discovery to Flynn’s lawyers.) Prosecutors have a constitutional duty to turn over exculpatory information to the defense even if defense counsel does not request it. But case law holds that more detailed, specific defense requests create a greater prosecutorial obligation. In my view, this paragraph forces defense counsel to breach his or her ethical duties to the client to vigorously demand Brady material as well as mitigating information required under state ethical rules and the McDade Amendment. The Department of Justice should put a stop to this and prohibit all such provisions from being part of its plea agreements. This includes FOIA requests, which serve to ensure, post-judgment, that the government's Brady obligations have been met.  Here is the Flynn Plea Agreement.

(wisenberg)

 

 

June 14, 2020 in Current Affairs, Defense Counsel, Investigations, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)

Thursday, June 11, 2020

Michael T. Flynn Petition for Writ of Mandamus: Case Materials

Reply briefs were filed yesterday in the U.S. Court of Appeals for the D.C. Circuit in In re: Michael T. Flynn. Oral arguments are set for tomorrow morning, June 12. Attached here are; Flynn's Emergency Petition for Writ of Mandamus; the D.C. Circuit's  highly unusual May 21, 2020 Order requiring Judge Emmet Sullivan to respond to the Petition's argument that Sullivan is obliged to grant DOJ's Motion to Dismiss the Flynn Indictment with prejudice; Judge Sullivan's June 1, 2020 Brief in Response to the Court of Appeals Order; Flynn's June 10 Reply Brief; DOJ's June 10 Reply Brief; and a further Response Brief on behalf of Judge Emmet G. Sullivan. Enjoy!

In re Micheal Flynn Petition for a Writ of Mandamus

U.S. Court of Appeals Order Directing Judge Sullivan to Respond to Michael Flynn's Emergency Petition for a Writ of Mandamus

Brief for Judge Emmet Sullivan in Response to DC Circuit Court Order

DOJ DC Circuit Reply to Sullivan Response on Flynn Petition for Mandamus

Flynn DC Circuit Reply to Sullivan Response on Flynn Petition for Mandamus

Judge Emmet Sullivan's 6-10-2020 Response to the other briefs

(wisenberg)

June 11, 2020 in Contempt, Current Affairs, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)

Saturday, June 6, 2020

Materiality and the Flynn Prosecution

Title 18, United States Code, Section 1001, criminalizes certain false statements or omissions made to the federal government. The statute requires that the false statement be material to a matter within the jurisdiction of a federal agency or department. Materiality is an element of the offense that must be alleged and proved beyond a reasonable doubt. It is usually a fairly easy element for prosecutors to establish.

General Michael Flynn was charged with violating Section 1001 in a one count Criminal Information that tracked a portion of the statutory language. The Information was filed in federal court on December 1, 2017, by prosecutors in Special Counsel Robert Mueller's office. Those prosecutors charged Flynn with lying to the FBI during the course of a White House interview conducted on January 24, 2017. The January 24 interview concerned late December 2016 conversations between Flynn and Russian Ambassador Vitaly Kislyak during the post-election Presidential transition period.

A federal court cannot accept a guilty plea without a Factual Basis, sometimes referred to as a Factual Statement or Statement of the Offense. It is typically filed along with the Plea Agreement or is incorporated into the Plea Agreement itself. According to the Statement of the Offense filed in General Flynn's case:  "Flynn's false statements and omissions impeded and otherwise had a material impact on the FBI's ongoing investigation into the existence of any links or coordination between individuals associated with the Campaign and Russia's efforts to interfere with the 2016 presidential election." We now know this wasn't true. Flynn's statements, whether false or not, had no effect on the Russian Collusion investigation.

Crossfire Hurricane, launched on July 31, 2016, was the name given to the FBI’s counterintelligence investigation into possible collusion, witting or unwitting, between members of Trump’s campaign team and Russians attempting to influence the 2016 election. Crossfire Hurricane was not begun based on any allegations related to General Michael Flynn.  Instead, the Bureau authorized Crossfire Hurricane after it learned, third-hand, that Russia may have “suggested” assisting the Trump campaign by anonymously releasing dirt on Hillary Clinton. An FBI subfile was created on Flynn, not because of any allegations against him, but because of Flynn’s known contacts with Russia. Such contacts would hardly be surprising for a former Director of the Defense Intelligence Agency who was a Trump advisor rumored to be Trump’s choice for National Security Director if he won the election. The subfile investigation of Flynn was known as Crossfire Razor.

FBI officials Jim Comey, Andy McCabe, Peter Strzok, and Lisa Page each knew, well before Flynn's January 24 interview, that the General had no involvement whatsoever in any improper or illegal coordination with Russia regarding the 2016 election. Flynn had already been completely cleared in Crossfire Razor by January 4, 2017. A draft Closing Communication, documenting the complete lack of evidentiary support for Flynn's involvement in, or knowledge of, 2016 election collusion, was prepared on January 4 by the Crossfire Razor team. But the decision to close the file had been made even before January 4. Such a draft Closing Communication would never have been commenced unless the case agents had received prior approval from their FBI Supervisor, and Former FBI Director Comey testified that he authorized the closing of Crossfire Razor by December 2016. 

But none of this exculpatory information regarding materiality was shared at any time with the original defense attorneys representing Flynn, either before or after he entered his December 1, 2017 guilty plea. (Nor was it shared with Deputy Attorney General Rod Rosenstein, who was by then the Acting Attorney General for purposes of the Mueller Investigation and had final authority over Mueller's charging decisions.) The knowledge that Flynn's January 24, 2017 interview responses did not influence and were arguably incapable of influencing the Crossfire Hurricane investigation was relevant both to Flynn's guilt and punishment. While there is some uncertainty in the law as to whether Brady material must be turned over to the defense prior to a guilty plea, there is no uncertainty about Judge Emmet G. Sullivan's standing Discovery Order that he enters in every criminal case, and entered in Flynn's. It directs the government "to produce to defendant in a timely manner any evidence in its possession that is favorable to defendant and material either to defendant's guilt or punishment. This government responsibility includes producing, during plea negotiations, any exculpatory evidence in the government's possession."

Flynn had already pled guilty when his case was transferred to Sullivan's court, but he was still awaiting punishment. After the case was transferred, and Sullivan entered his Standing Order, Mueller's team produced voluminous additional documents to Flynn's team. Why did they do this when, under the terms of the Plea Agreement, Flynn was no longer allowed to request additional documents from the government? Because Mueller's prosecutors knew the significance of Sullivan's Standing Order and the additional burden it placed on them. Moreover, Sullivan had Flynn reaffirm his original plea colloquy, under oath, in December 2018. There is thus no question that the information discovered by Eastern District of Missouri U.S. Attorney Jeffrey Jensen, and publicly released for the first time last month at the direction of Bill Barr, should have been produced by Mueller's team to Flynn. What we don't know yet is whether any prosecutor on Mueller's original team, or on the post-Mueller team handling the Flynn case, knew about the recently disclosed documents. 

And one more thing. You can ignore commentators like Chuck Rosenberg, who recently listed here, in the Washington Post, all the folks (Trump, Pence, Priebus, etc.) who presumably thought Flynn's allegedly false statements were material. Chuck is relying on the general public's ignorance of federal criminal law. The only materiality at issue in U.S. v. Flynn is the materiality of the January 24, 2017 statements Flynn made to high-ranking FBI Supervisory Agents, which statements formed the basis of Michael Flynn's guilty plea and Statement of the Offense. Those post-inauguration statements about post-election conversations with Ambassador Kislyak, were clearly immaterial to an investigation of election-related collusion that had already cleared Flynn.

(wisenberg)

June 6, 2020 in Current Affairs, Defense Counsel, Government Reports, Investigations, Judicial Opinions, News, Obstruction, Perjury, Prosecutions, Prosecutors, Sentencing | Permalink | Comments (1)

Thursday, May 7, 2020

DOJ Moves to Dismiss Flynn Case

Here is a copy of the Government's Motion to Dismiss the Criminal Information Against the Defendant Michael T. Flynn  - Download U.S. v. Flynn--Government Motion to Dismiss (1)  But will it be as easy as some may think?  Commentary to follow.

(esp) 

May 7, 2020 in Current Affairs, Prosecutions, Prosecutors | Permalink | Comments (0)

Bridgegate Convictions Reversed - Unanimous - Of Course!

Of course the Bridgegate (Kelly v. United States) case was reversed by the Supreme Court here. And of course, it was unanimous. (Just like McDonnell)

Justice Kagan authored the 12 1/2 page decision. Yes, the court did note that the lanes leading to the George Washington Bridge were realigned and that "they did so for a political reason - to punish the mayor of Fort Lee for refusing to support the New Jersey Governor's reelection bid." But the Court holds, "not every corrupt act by state or local officials is a federal crime."  Here are some key points:

  • This decision reminds us that no matter how many times the government tries to get around the "money or property" element of the statute - it will not work. 
  • The Court makes it clear that regulatory activity is not property - repeating its holding from Cleveland.
  • "Employee's labor was just the incidental cost of that regulation, rather than itself an object of the officials' scheme."  The Court later says, "[b]ut that property must play more than some bit part in a scheme: It must be an 'object of the fraud.'"  "Or put differently, a property fraud conviction cannot stand when the loss to the victim is only an incidental byproduct of the scheme."
  • The Court reminds readers of the Skilling opinion  - "We specifically rejected a proposal to construe the statute as encompassing 'undisclosed self-dealing by a public official' even when he hid financial fraud interests."

Many will not like this opinion, but it really is good to see for several reasons. For one it shows a united Court interpreting a statute consistently.  Two it shows that when the government goes to stretch the statute it will not be tolerated.  Three it puts back on the states the police power to stop activities within their powers. And most importantly, although the Court does not state this, the decision sends a message to the public of the importance of the ballot box - if you don't like political activities, voting is your place to express it.

(esp)

May 7, 2020 in Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Thursday, February 27, 2020

Overcoming Ethical Issues With CDAs

Coordinating Discovery Attorneys (CDAs) can play a crucial role in examining, organizing. and processing discovery in a white collar case with massive amounts of documents. Like joint defense agreements, the use of a CDA can significantly cut costs in a case. Many who cannot afford the fees of being represented in a document driven white collar case turn to the court for this assistance and appointment of a CDA. Some, however, may find the court reluctant to such an appointment, citing ethical issues.  For those facing this challenge, check out this recent Note - Hannah Silverman, The Role of "Coordinating Discovery Attorneys" In Multidefendant Federal Criminal Cases , 88 Fordham L. Rev. 1173 (2019) that "concludes that by carefully circumscribing the role and establishing proper ground rules, coordinating discovery attorneys can provide beneficial and substantive legal assistance to multiple codefendants at once."

(esp)

February 27, 2020 in Investigations, Prosecutions, Prosecutors | Permalink | Comments (0)

Tuesday, February 11, 2020

Four Prosecutors on Stone Case Withdraw From Case

The press is reporting that three four line prosecutors have filed to withdraw from the Roger Stone case. See Matt Zapotosky, Devlin Barrett, Ann E. Marimow & Spencer S. Hsu, Prosecutors Quit Amid Escalating Justice Dept. Fight Over Roger Stone's Prison Term)  This is highly unusual to have AUSAs withdraw after they have filed an initial Sentencing Memorandum.  It is anticipated that A new sentencing memo has now been filed  forthcoming -also unusual. 

In the initial sentencing memo the government included a 3C1.1 enhancement for obstruction of justice.The new memo is here (law.com). It excludes enhancements, including 3C1.1 for obstruction of justice. It states in part with regard to this enhancement, "it is unclear to what extent the defendant's obstructive conduct actually prejudiced the government at trial."  Yes, this is the government, not the defense, making this statement.  The initial memo was a detailed 26 page memo and it was replaced with a 5 page memo.  Whether the government should have initially asked for enhancements is something that many will question - but filing a second memo with this language is certainly unusual.  Will DOJ be filing memos in all the other cases out there with similar facts? 

 Two things to also watch here: 1) what will the probation department come in on sentencing; 2) what will the judge give as the sentence.  The final decision will be that of the judge.  

A question will also be whether there has been any political influence here.  Some of us can remember when there was an Investigation of Allegations of Politicized Hiring in the DOJ Honors Program - it didn't go well for DOJ. 

(esp)(updated)

February 11, 2020 in Current Affairs, Prosecutions, Prosecutors, Sentencing | Permalink | Comments (0)