Thursday, February 1, 2024
The briefing is now complete on Hunter Biden's Motion to Dismiss Based on Immunity Conferred by his Diversion Agreement. This motion was filed in the District of Delaware where three felony gun counts are pending against Biden. Biden contends that the Diversion Agreement was a binding contract once signed by the parties to it, and that the only parties to it were Biden and the U.S. Attorney's Office. DOJ disagrees on both points. Biden also argues that U.S. Probation's approval was not necessary and that, even it was necessary, U.S. Probation in fact approved the Agreement. A similar motion will no doubt be filed in the federal tax case now pending in the Central District of California, with respect to the aborted tax-related Plea Agreement, but Biden's chances of success are much better at getting the federal gun charges in Delaware dismissed, since Diversion agreements do not require approval by the district court. The Diversion Agreement was related to the overall Plea Agreement that blew up last July in Judge Maryellen Noreika's Delaware federal courtroom. Here are Biden's original brief, the Government's Response, and Biden's Reply. Attached also is the Declaration of Christopher Clark, who was Biden's attorney involved in the negotiations surrounding the Plea and Diversion Agreements.
February 1, 2024 in Celebrities, Corruption, Current Affairs, Defense Counsel, Deferred Prosecution Agreements, Investigations, Judicial Opinions, Media, News, Privileges, Prosecutions, Prosecutors, Tax | Permalink | Comments (0)
Monday, December 11, 2023
The Hunter Biden Indictment for tax evasion, filing false tax returns, and failure to pay and file taxes was handed down last Thursday in the Central District of California. There were nine counts--three felonies and six misdemeanors. The felonies were for willfully filing a false 2018 personal tax return, willfully filing a false 2018 corporate return, and willful evasion of the 2018 tax assessment. Presumably, no major new investigative steps were taken after the original plea deal blew up in July of this year. Here is the Hunter Biden Central District of California Tax Evasion Indictment. Although this appears to be a well-crafted and aggressive speaking Indictment brought by Special Counsel David Weiss, Hunter has an outstanding criminal defense team, lead by Abbe Lowell, and potentially better defenses than the typical tax evasion defendant.
Monday, November 20, 2023
On Friday, D.C. United States District Court Judge Tanya Chutkan, unsurprisingly, denied former President Donald Trump's Motion to Strike Inflammatory Allegations from the Indictment in U.S. v. Trump. At issue were the portions of the Indictment covering the January 6, 2021, assault on the U.S. Capitol by some of Trump's supporters, which, according to the defense, constitute irrelevant and prejudicial surplusage. Motions to strike surplusage are disfavored under U.S. Court of Appeals for the D.C. Circuit case law and need not be granted by the trial court unless a defendant can establish that the challenged language is both irrelevant to the charges and prejudicial. Judge Chutkan did not reach the question of relevance, finding that Trump had failed to show that the alleged surplusage would prejudice the jury, particularly in light of her practice, which she intends to follow in this case, of not sending indictments back to the jury room during deliberations. Chutkan also promised to weed out prejudice in the jury panel, caused by the government or Trump, during the voir dire process. Here is the opinion. U.S. v. Donald Trump - Order Denying Defendant's Motion to Strike Inflammatory Allegations from the Indictment
Saturday, November 18, 2023
The parties' briefs are all in and the case is set for oral argument on Monday, November 20, at the U.S. Court of Appeals for the District of Columbia. Gathered together here are: Former President Trump's Opening Brief re Appeal of Judge Chutkan's Gag Order; the Government's Answering Brief; Trump's Reply Brief; and the Gag Order itself.
Wednesday, November 15, 2023
Today Hunter Biden's lawyers filed a Motion for Pretrial Issuance of Subpoenas Duces Tecum, pursuant to Federal Rule of Criminal Procedure 17(c)(1), to Donald Trump, William Barr, Jeffrey Rosen, and Richard Donoghue. The proposed subpoenas demand documents relating to decisions involving the investigation or prosecution of Hunter Biden in both the Trump and Biden Administrations. The defense maintains that the documents are highly likely to be relevant to its contention that the Hunter Biden Indictment is an example of a constitutionally impermissible vindictive or selective prosecution. Defendants are entitled under the Sixth Amendment to present a defense and to compulsory production of witnesses and documents in aid of that right. Here is the motion. U.S. v. Hunter Biden - Defense Motion for Issuance of Subpoenas Duces Tecum Pursuant to Rule 17(c) and Memorandum in Support.
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.
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.
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.
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.
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)
Monday, July 4, 2022
Every good organization should have a strategic plan, so it is wonderful to see DOJ taking this step (see here). The plan not only provides priorities, but also provides a Mission with Values (see here). One certainly can't fault these four key values - "Independence and Impartiality, Honesty and Integrity, Respect, and Excellence." Most important is the first one - independence and impartiality - something that was compromised during the last administration.
The key goals of the strategic plan are equally admirable - "Uphold the Rule of Law, Keep our Country Safe, Protect Civil Rights, Ensure Economic Opportunity and Fairness for All, and Administer Just Court and Correctional Systems." The statements are fortified with strategies to ensure success. For example for "Uphold[ing] the Rule of Law" there are five strategies (see here) -
Strategy 1: Reaffirm and Strengthen Policies Foundational to the Rule of Law
Strategy 2: Protect the Justice Department from Improper Influence
Strategy 3: Protect Public Servants from Violence and Threats of Violence
Strategy 4: Protect the Public Fisc from Fraud on Government Programs
Strategy 5: Combat Foreign Interference in Democratic Processes
Strategy 6: Ensure Effective Oversight and Public Accountability
It may seem obvious that the Justice Department needs to be clear of improper influence, but in watching the January 6th hearings it is clear that this needs to be reaffirmed.
Friday, March 18, 2022
AG Garland announced a new policy this week in a press release titled, Attorney General Merrick B. Garland Issues New FOIA Guidelines to Favor Disclosure and Transparency . The actual policy that favors transparency in FOIA requests is located here. The new guidance says that there is a presumption of openness.
Years back the National Association of Criminal Defense Lawyers (NACDL) filed a FOIA request for DOJ's Blue Book on the discovery protocols used by the government. The DOJ argued the book was work-product and only a small portion was released following a lawsuit. See Louis Virelli & Ellen S. Podgor, Secret Policies, 2019 Illinois Law Rev. 463 (2019). Perhaps now is a good time for the government to think about transparency in discovery practices so that fewer discovery violations occur in criminal cases.
Friday, February 18, 2022
Here is the Sussman Motion to Dismiss for Failure to State an Offense, filed in Special Counsel John Durham's 18 U.S.C. Section 1001 false statement prosecution against former Perkins Coie attorney Michael Sussman. Sussman's argument is that even if the facts laid out in Durham's Indictment are true, they fail, as a matter of law, to allege/establish the essential Section 1001 element of materiality or to establish a sufficient nexus between Sussman's alleged falsehood and the agency (FBI) decision purportedly capable of being affected. Keep in mind that Sussman's alleged false statement to FBI General Counsel James Baker was that he was not acting on behalf of any client in reporting the Alfa Bank tip to Baker, when, in truth and in fact, Sussman was there representing and acting on behalf of Tech-Executive 1 and the Clinton Campaign. The materiality portion of the Sussman Indictment has always struck me as weak, but very little is required of the government in order for it to prove materiality in a Section 1001 prosecution. Sussman's real problem in winning on this motion is decades of case law holding that an indictment setting out the statutory elements of the offense, along with minimal factual allegations, is sufficient to allege an offense as a matter of law. In other words, the defendant is not allowed to go beyond the indictment's allegations in litigating whether it alleges an offense. There appears to be no recognition of this case law in the Sussman brief. Durham was not required to put much meat on the skeletal elements of the offense. But he chose to do so, presenting a 27-page speaking indictment to the grand jury. There is some scattered authority for the proposition that an indictment setting out in detail what appear to be the full and undisputed facts behind the offense, in addition to the statutory elements, can be defeated by accepting those facts as true and arguing that the do not constitute the purported offense being charged. See for example, U.S. v. Ali, 557 F.3d 715, 719-20 (6th Cir. 2009). That's what Sussman is up to here. Durham's response will surely be that he has set out the required statutory elements plus additional contextual detail and that the Government must be allowed to show its full factual case to the jury in order to prove why, under said factual particulars, Sussman's alleged lie was material.
Monday, February 7, 2022
What’s in a name? Several of the individuals indicted in connection with the January 6, 2021, assault on the U.S. Capitol have been charged under Title 18, United States Code, Section 1512(c)(2). Subsection (c) of 18 U.S.C. §1512 seeks to punish: “Whoever corruptly--(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” 18 U.S.C. §1515 supplies definitions for some of the terms used in §1512 and defines “official proceeding” to include, among other things, “a proceeding before the Congress.” Many of the motions to dismiss filed by January 6 defendants, and judicial opinions denying these motions, center around whether §1512(c)(2) was meant to be confined to proceedings that are quasi-judicial or evidentiary in nature, even if the proceedings take place in Congress. I previously posted three of these judicial opinions. That is not my focus here.
18 U.S.C §1512, a lengthy statute with several subsections, has a title as well. The official title is: “Tampering with a witness, victim, or an informant.” That is the only title the statute has. None of the subsections of §1512 contains an additional or separate subtitle. Note, however, that none of the persons charged under 18 U.S.C. §1512(c)(2) has been literally charged in his or her Indictment, or in any press coverage that I have seen, with, “tampering with a witness, victim, or an informant,’ which, again, is the only title of §1512. To take one example, in U.S. v. Nordean et al., the defendants are charged in the First Superseding Indictment with “Obstruction of an Official Proceeding and Aiding and Abetting.” This makes sense. The facts alleged against the defendants appear to align with the literal language of §1512(c)(2) and do not involve witness tampering.
Fast forward to the recent indictment of Oath Keeper Elmer Steward Rhodes III and others for “Seditious conspiracy,” pursuant to 18 U.S.C. § 2384. The defendants are also charged with violating several other statutes, including 18 U.S.C. §1512(c)(2). While 18 U.S.C. § 2384, unlike §1512(c)(2), does not have separately numbered subsections, it clearly sets out several different ways in which the crime can be committed. For example, one cannot “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them.” I believe something like this formulation is what most people think of when they think of sedition. But Rhodes and his Oath Keepers were not charged under that "overthrow the Government" portion of the statute. They were charged with conspiring “by force to prevent, hinder, and delay the execution of any law of the United States.” (The laws allegedly being hindered were the Electoral Count Act and the Twelfth and Twentieth Amendments to the U.S. Constitution.) The caption in the Indictment could have set the charge out in this fashion, as a “conspiracy to by force prevent, hinder, and delay” particular laws of the United States, with a citation to 18 U.S.C. §2384. That is not what Department of Justice officials decided to do, however. They captioned the charge as “seditious conspiracy.” There was nothing improper about their decision, just as there was nothing improper about their decision to list §1512(c)(2) in the caption of Nordean as “obstruction of an official proceeding” rather than “witness-tampering.”
But the effect in the wider media culture was predictable. Several pro-Trump television commentators had been making the point that none of the January 6 defendants were seditionists, because none had been charged with seditious conspiracy. They could not say this anymore in light of the Rhodes Indictment and their prior comments were thrown back in their faces by progressive commentators. So be it. That’s politics. But, at least with respect to the indicted January 6 rioters, conspiring by force to prevent, hinder, and delay the execution of the Electoral Count Act (“seditious conspiracy”) is not substantially different than corruptly obstructing or conspiring to corruptly obstruct the very Congressional proceeding in which the Electoral Count Act is being executed. They are both serious charges that should be prosecuted vigorously if the facts so warrant. And if any Congressperson, Executive Branch official, or podcast host aided and abetted or joined a conspiracy to violate either statute, under traditional criminal law principles, he or she should be prosecuted as well.
Sloppy language, however, invites sloppy thinking and prosecuting someone for aiding and abetting a violent mob intent on forcefully stopping a critical Congressional proceeding or the execution of a statute, is quite different than prosecuting someone for seditious conspiracy because he told a crowd that the election was stolen, invited them to peacefully protest the vote count, or tried to convince Mike Pence that he had the power to refuse to certify certain slates of electors. (I wrote about John Eastman's potential criminal exposure, in the context of the Fifth Amendment's Privilege Against Self-Incrimination, here.) Likewise, prosecuting anyone for delaying the vote count by using the procedures set out in the Electoral Count Act, is without more, doomed to fail under rather basic constitutional and criminal law tests. The devil is always in the details of the purportedly criminal acts under examination.
The people intent on federally prosecuting Trump and his cohorts for the events on and surrounding January 6, 2021, need to think small and in terms of traditional criminal law principles. We witnessed a riot. We witnessed criminal assaults. We witnessed people invading Congressional offices and threatening to “Hang Mike Pence.” Some of the people who committed these acts were attempting to prevent the peaceful transfer of power to Joe Biden. There are statutes in place that appear to criminalize this conduct. The quest to use the criminal law to “go after the higher-ups” should focus on who, if anybody, aided, abetted, counseled, commanded, induced or procured the commission of these specific criminal offenses--not on people engaged in protected First Amendment political activity. In the words of the standard pattern aiding and abetting instruction, “whoever intentionally associated himself in some way with the crime and intentionally participated in it as he would in something he wished to bring about,” is punishable as a principal. My guess is that some pretty well-known people are sleeping uneasily these days. My further guess, and it is no more than a guess, is that the DOJ has been looking at these people for some time. But I seriously doubt, based on currently known information, it will go much beyond these folks.
Tuesday, November 30, 2021
The Supreme Court recently granted certiorari in two cases addressing criminal liability for doctors who prescribe controlled substances in good faith. It is also considering a similar petition from the Fourth Circuit, which includes Maryland and Virginia. The Court last addressed this issue nearly 50 years ago. United States v. Moore, 423 U.S. 122 (1975). Since then, the federal courts have drawn very different conclusions as to the level of wrongdoing required for prosecution. These cases present an opportunity for the Supreme Court to clarify whether physicians can become criminals for a simple mistake.
As two professors of health law point out, the potential for injustice goes far beyond those who are imprisoned. Fear of prosecution may inhibit other doctors from prescribing medicine, to the detriment of patients with legitimate medical needs. The easier it is to convict a medic, the more cautious one will be with medicine that many patients find necessary.
Too low a bar also risks interfering with traditional regulation of the medical profession. One of the defendants, Dr. Saheel Kahn, was twice investigated—and cleared—by the Arizona Medical Board. Nevertheless, he was found guilty of violating federal law.
Just the Facts
Saheel Kahn, who practiced in Arizona and Wyoming, failed to realize that some of his patients were selling their medication. Xiulu Ruan owned a pain clinic and pharmacy in Alabama, where he prescribed unusually large numbers of pain-killers. George Naum worked at an addiction clinic in West Virginia, where he signed prescriptions based on his nurse’s evaluations and reports. All were charged with distributing controlled substances.
Dr. Kahn, Dr. Ruan, and Dr. Naum maintained that they had their patients’ best interests at heart. The courts said, in effect, that it didn’t matter. All of the doctors were convicted. Two of them were sentenced to decades of imprisonment.
Is Legitimate Medical Purpose A Defense?
A physician violates the law when by distributing controlled substances “outside the usual course of professional practice.” Moore, 423 U.S. at 124. Thus, physicians can be prosecuted when they prescribed drugs “not for legitimate purposes” or their “conduct exceeded the bounds of ‘professional practice.’” Id. at 135, 142.
As a matter of common sense, to avoid criminalizing medical error, conviction should require a lack of legitimate purpose and treatment beyond the bounds of medical practice. The appropriate regulation arguably supports this requirement: “A prescription . . . must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R. § 1306.04(a). A few appellate courts have unambiguously adopted this position. U.S. v. Pellman, 668 F.3d 918, 923 (7th Cir. 2012); U.S. v. Feingold, 454 F.3d 1001, 1010 (9th Cir. 2006).
Many circuits, however, have taken the opposite approach. In the Fourth Circuit, for example, the government must prove that a doctor’s actions “were not for legitimate medical purposes in the usual course of his professional medical practice” or that they were “beyond the bounds of medical practice.” U.S. v. Singh, 54 F.3d 1182, 1187 (4th Cir. 1995). Thus, “malicious motive or the desire to make a profit” is not required to convict a physician. Id. at 1188.
This reasoning reached its logical conclusion in Dr. Naum’s trial. Dr. Naum tried to prove that his treatment was for a legitimate medical purpose. The judge did not let him. The court of appeals affirmed his conviction: because the government wasn’t required to prove the lack of any legitimate medical purpose, it wasn’t relevant whether Dr. Naum had one. U.S. v. Naum, 832 F. App’x 137, 142 (4th Cir. 2020).
Similarly, in the Tenth Circuit, a physician may be convicted “if she prescribes the substance either outside the usual course of medical practice or without a legitimate medical purpose.” U.S. v. Nelson, 383 F.3d 1227, 1232 (10th Cir. 2004). The Court of Appeals denied Dr. Kahn’s request to reconsider this rule. U.S. v. Khan [sic], 989 F.3d 806, 822 (10th Cir. 2021). Dr. Kahn then sought certiorari on this issue.
What Is “Good Faith”?
Formally, good faith is a defense throughout the nation. Its effectiveness, however, varies greatly from circuit to circuit. Practically, in some parts of the country, it is no defense at all.
A few circuits have, with varying degrees of clarity, allowed a subjective test for good faith. That is, in some parts of the country, physicians may defend themselves by demonstrating that they were sincerely attempting to treat their patients.
By contrast, some circuits employ an objective standard. The Fourth Circuit is one of them. United States v. Hurwitz, 459 F.3d 463, 478-80 (4th Cir. 2006). Confusingly, some (non-binding) decisions arguably go further, suggesting that even an objectively reasonable belief is no defense. See United States v. Purpera, 844 F. App’x 614, 626-27 (4th Cir. 2021); United States v. Orta-Rosario, 469 F. App’x 140, 145-46 (4th Cir. 2012). In other words, it might not matter that a doctor believed he was following proper medical practice, only whether he should have believed it.
The Tenth Circuit leaves no doubt on this point: if a physician acted beyond professional boundaries, whatever her reasons, she cannot claim to have acted in good faith. Khan, 989 F.3d at 825-26. In the Eleventh Circuit, a defendant might not be entitled to a good faith instruction at all. U.S. v. Joseph, 709 F.3d 1082, 1097 (11th Cir. 2013). Effectively, there is no good faith defense within these circuits. It is on this issue that Dr. Ruan sought certiorari, as did Dr. Kahn.
These cases offer the Supreme Court an opportunity to correct the appellate courts’ error. The conflation of medical standards with legitimate purpose, and the absence of a good faith defense, mean that physicians can violate the law through a well-intentioned mistake. At best, this creates a crime out of what should be dealt with through professional discipline or malpractice lawsuits. At worst, it makes outlaws out of well-meaning doctors who trust their patients or employ unorthodox forms of treatment. In some cases, like Dr. Kahn’s, it can even lead to punishment where medical boards have investigated and found no wrongdoing.
Yet, a favorable decision alone will do little good for any individual defendant. An accused physician must understand precisely what the government will prove, how to convince the jury otherwise, and the necessary legal arguments. A small error, such as the failure to request the correct jury instructions, could ensure the conviction of even an innocent defendant. Therefore, as always, it remains important for wrongly-accused doctors to secure the representation of a skilled defense lawyer.
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."
Monday, February 1, 2021
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.
Tuesday, August 11, 2020
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.