Tuesday, April 10, 2018
Michael Cohen's Attorney Speaks - No Need For a Search
Playing the press has become an important component in handling a white collar case. In the past, one might remain silent and let the case be resolved prior to making any statements, especially press-related statements. With the speed of the internet, it often becomes necessary for attorneys to respond to allegations to provide a level playing field. It, therefore, was no surprise to see Michael Cohen's attorney, Stephen M. Ryan, issuing a press release. (see here). He calls the US Attorneys Office "completely inappropriate and unnecessary." He argues that his client "has cooperated completely with all government entities, including providing thousands of non-privileged documents to the Congress and sitting for depositions under oath."
It is interesting to see the use of a search here as opposed to a subpoena. The downside of the government using a search is that it is more expensive, not secret like the grand jury process, requires probable cause, and if the probable cause is later found lacking the entire search can be invalidated. The upsides of a search are surprise, getting the material immediately without having to wait for the grand jury, obtaining items that might be found in plain view, and also receiving possible incriminating statements from individuals while performing the search, this latter one mostly applicable in the corporate or business context. One can argue obstruction of justice either way. On one hand you get the items in question before there is any possibility of them being destroyed. On the other hand if documents were destroyed, prosecutors would have a "short-cut offense" to charge of obstruction of justice.
In my Article, White Collar Shortcuts, forthcoming in the Illinois Law Review, I note how prosecutors are using investigative and charging "short-cuts" more frequently in white collar cases. Whether the use of a search warrant was a "short-cut" here, remains to be seen.
April 10, 2018 in Defense Counsel, Investigations, Obstruction, Prosecutors, Searches | Permalink | Comments (0)
Monday, April 9, 2018
Law Office Searches - Nothing New Except the President's Lawyer This Time
The NYTimes is reporting that the FBI raided the office of President Trump's personal attorney, Michael Cohen. (see here). Raids on law offices are not new, and there have been many law offices throughout the years that have had FBI teams show up to obtain boxes of materials and computers. In places such as the Southern District of Florida, one might find a law office raided by the FBI when the attorneys represented individuals engaged in drug dealing, and the government believed that the attorneys were involved in the illegality. But perhaps what is new here, is that the attorney represented the President of the United States, albeit in his personal capacity.
Law firm searches are particularly tricky as the attorney is likely to have privileged information that may be compromised when the investigating agents view items in cases they are opposing. The US Attorney's Manual sets forth a procedure for searching law offices (U.S. Attys Manual - 9-13.420) to protect this information. The Manual provides that "[f]or purposes of this policy only, 'subject' includes an attorney who is a 'suspect, subject or target,' or an attorney who is related by blood or marriage to a suspect, or who is believed to be in possession of contraband or the fruits or instrumentalities of a crime." The Manual notes that:
There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients. Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search. Therefore, the following guidelines should be followed with respect to such searches:"
The guidelines then note that prosecutors should use the "least intrusive approach," obtain "authorization by United States Attorney of Assistant Attorney General," consult with the Criminal Division - including submitting "a draft copy of the proposed search warrant, affidavit in support thereof, and any special instructions to the searching agents regarding search procedures and procedures to be followed to ensure that the prosecution team is not "tainted" by any privileged material inadvertently seized during the search." "If exigent circumstances prevent such prior consultation, the Criminal Division should be notified of the search as promptly as possible." The guidelines also provide that there is "safeguarding procedures" in place "to ensure that privileged materials are not improperly viewed, seized or retained during the course of the search." And in conducting the search, "to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a "privilege team" should be designated, consisting of agents and lawyers not involved in the underlying investigation." Specific procedures are used for searching and seizing computers. Finally, guidelines also exist concerning the review of the materials obtained.
Bottom line - 1) All of this takes time. 2) The use of a search warrant against a law firm is not new. 3) Can a government taint team really assess privileged material? 4) The government procedures are concerned about protecting their cases, but who is monitoring and protecting the attorney's cases?
Hopefully, a court will soon step in to evaluate any privilege issues.
April 9, 2018 in Privileges, Searches | Permalink | Comments (0)
Wednesday, April 4, 2018
Mueller: What Could He Do And When Could He Do It?
Monday night, in the U.S. District Court for the District of Columbia, Special Counsel Robert Mueller filed his Response [Government's Response in Opposition to Motion to Dismiss] to Paul Manafort's Motion to Dismiss the Superseding Indictment. Manafort's Motion to Dismiss is bottomed on the alleged invalidity of Acting AG Rod Rosenstein's May 7 2017 Order Appointing Robert S. Mueller III as Special Counsel and defining Mueller's jurisdiction. As part of his Response, Mueller referenced and filed Attachment C, a redacted version of Rosenstein's August 2 2017 Letter Re The Scope of Investigation and Definition of Authority.
Before Monday night there was no public knowledge of this August 2 letter, which sets out in detail, among other things, the specific matters already under investigation before Mueller came on board. According to the August 2 letter, the May 7 Order had been "worded categorically in order to permit its public release without confirming specific investigations involving specific individuals." The private August 2 letter, in contrast, "provides a more specific description of your authority." Recall that the May 7 Appointment Order authorized Mueller to "conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including...(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R § 600.4(a)." The August 2 letter unequivocally states that "[t]he following allegations were within the scope of the Investigation at the time of your appointment and are within the scope of the Order:
• Allegations that Paul Manafort:
º Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government's efforts to interfere with the 2016 election for President of the United States, in violation of United States law;
º Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych;
In other words, FBI Director Comey was already investigating Manafort for possible criminal collusion with the Russians and for payments Manafort received from Yanukovych, before Mueller came into the picture. By including the Yanukovich payments in his probe of Trump, Comey displayed an aggressiveness sadly absent from the investigation of Ms. Clinton's email server.
What is odd is that Rosenstein's August 2 letter was sent almost three months after Mueller began his inquiry. You would think that such a specific private memo detailing the scope of Mueller's investigative authority would have been issued contemporaneously with the May 7 Order. That it wasn't suggests there were disagreements in defining the outer boundaries of Mueller's charter or that Mueller or Rosenstein began to perceive problems with the wording of the May 7 Order and foresaw the possibility of just the sort of Motion to Dismiss ultimately filed by Manafort.
Rachel Stockman at Law and Crime notes here that the more specific delineation of authority laid out in the August 2 letter came one week after the raid on Manafort's home. Mueller may have wanted written reassurance that the search and seizure were within his authority ab initio, or, as we say in Texas, from the get-go.
April 4, 2018 in Corruption, Current Affairs, Defense Counsel, Government Reports, Grand Jury, Investigations, News, Obstruction, Prosecutions, Prosecutors, Searches | Permalink | Comments (0)
Monday, October 30, 2017
On the Brink of Charges? UPDATE
The first thing to ask, if CNN's Friday night report is accurate, is who leaked? Because if the leak came from the government or court staff it is almost certainly an illegal violation of a sealed court order and/or grand jury proceedings. And if it came from the defense attorney of the party to be charged, who told him or her? The whole point of sealing something is so that the public doesn't know about it. All a courthouse staffer, moonlighting as media lookout, could have legitimately told the press is that "we saw so and so going into the court's chambers" or something along those lines.
Second, why would charges be sealed in the first place? Perhaps because the prosecution is afraid that someone will flee. That is the only legitimate reason I can think of to place an indictment under seal. If it was placed under seal to give government agents the opportunity for an early morning arrest it wouldn't surprise me one bit, given Andrew Weissman's dismal track record for hardball, heavy-handed tactics. (It will be interesting to find out someday just exactly what the government told a federal magistrate in order to get that no-knock warrant to search Paul Manafort's residence.)
Is it possible that the sealing was done in order to protect a defendant from having to spend the weekend (or at least one night) in DC jail? Unlikely. For defendants who do not turn themselves in by mid-morning in DC, the possibility of a night in jail is real. But if the prosecutors really cared about that, why not bring the charges on a weekday morning and allow the defendant to turn himself in the next day? This is done all the time.
Is it possible that the pending indictment report, true or false, is a deliberate ruse to see who will attempt to flee? In other words, does the government actually want someone to try to flee? After all, flight can be used as evidence of guilt in court. Unlikely, but anything is possible with Weissman in the number two slot.
We should find something out today. Here is Politico's excellent background piece by Darren Samuelsohn.
If there are any charges, expect them to be ancillary in nature. Look for false reporting violations or false statements to government agents. More to come.
The Indictment is out and we will try to get it up as soon as possible. It is obvious that the prosecutors did the right thing in allowing Paul Manafort and Rick Gates to turn themselves in and that, in all likelihood, one of the defense attorneys leaked the news to CNN. Grand jury secrecy rules do not apply to witnesses or to those who receive their information from witnesses.
October 30, 2017 in Current Affairs, Grand Jury, Investigations, Legal Ethics, News, Prosecutions, Prosecutors, Searches | Permalink | Comments (0)
Saturday, February 4, 2017
Microsoft Wins Again Regarding Warrant for International Data
An important issue to watch this year is the ongoing battle over access to data collected by companies and stored overseas. This issue heated up last year when Microsoft won its Second Circuit challenge of a 2013 warrant for emails housed in an Irish data center. In the Second Circuit decision from July 2016, the court determined that U.S. law did not allow the enforcement of warrants for customer email content housed overseas, even though Microsoft is a U.S. service provider.
Last week, the Second Circuit denied rehearing the Ireland case by a divided 4-4 vote. The decision contains a number of interesting arguments from the judges and is worth a read for those involved in cases with international data issues.
The Second Circuit decision now sets the case up for a possible Supreme Court challenge by the government. According to Orin Kerr, writing in the Washington Post, however, Senator Sessions indicated during his confirmation hearings that he might seek a legislative remedy to address the Microsoft issue. Either way, this topic is one to keep an eye on in 2017.
February 4, 2017 in Congress, International, Investigations, Judicial Opinions, Searches | Permalink | Comments (0)
Friday, June 27, 2014
The Importance of the Fourth Amendment
This past Wednesday's Supreme Court decision in Riley v. California stressed the importance of law enforcement needing to obtain a warrant if they sought to search digital information contained on a cell phone that had been seized from the individual. From this decision we can see that the Fourth Amendment is alive and well in the Supreme Court.
But is that the case in the Manhattan District Attorney's Office? Larry Goldman notes here on the White Collar Crime Prof Blog that the District Attorney's Office recent prosecution in a computer related case had 4th Amendment problems. And this morning's New York Times article by Vindu Goel and James McKinley, Jr., Facebook Bid to Shield Data From the Law Fails, So Far shows how the Manhattan district attorney's office has been obtaining Facebook information using demands for documents from Facebook without notification to the individuals who posted the information on Facebook, and precluding Facebook from notifying them. Admittedly in this instance the Manhattan DAs Office did obtain a warrant, but Facebook and individuals who had items being obtained from Facebook were precluded from fighting the warrant. According to this article, Facebook has continued to fight these warrants and hopefully a court will see the importance of having oversight when it comes to overbroad computer related searches.
One of the possible ramifications of what the Manhattan D.A. is doing it that when cases eventually come to court, the overbreadth of these searches will be raised. And hopefully attorneys handling these cases will have been alerted by this posting, the New York Times article, and other media sources who may be reporting on these events. But it is hard to believe that all the information received by the Manhattan DA will be used for a prosecution, and many of these individuals will never know that their privacy had been compromised. As we move further into a digitial age, the principles of the Fourth Amendment need to be maintained. Judges reviewing these search warrants need to provide clearer oversight when granting a warrant, especially when terrorism is not the focus of the search.
June 27, 2014 in Investigations, Prosecutors, Searches | Permalink | Comments (0) | TrackBack (0)
Sunday, June 9, 2013
"'We the people' are the boiling frog, and the water has started to boil."
The wonderful John Wesley Hall concisely explains, at Welcome to the Fourth Amendment.com, the decades-long erosion of our Fourth Amednment rights, at the hands of the Supreme Court and a succession of do-nothing Congresses. No surprises here, as Hall laments:
"What is Congress doing? Essentially nothing. Proposing a law with great fanfare is meaningless if it goes nowhere. I wrote my Senators about email privacy, so I figure they don’t care since they never wrote back. So, I haven’t bothered to write to them about Sen. Paul’s bills. Congress is too mired in gamesmanship to do their damned jobs of actually legislating in the public interest."
"Now, what are we going to do about it? Complain, but sit on or wring our hands and do nothing?"
Hat Tip to NACDL's tireless weekend warrior, Ivan J. Dominguez, for sending this out. Similar points were made on Friday by the inimitable Scott Greenfield at Simple Justice in Seize It All And Trust the Government To Sort IT Out:
"Yet all the hand-wringing interest today will fade and we will elect the same men and women to power to continue to re-enact the same laws that allow the government to do such things to its own people, and presidents who believe so strongly in their own exceptionalism that they can be trusted with our personal data even though the other team could never be."
Cheery thoughts for a Sunday afternoon.
June 9, 2013 in Congress, Current Affairs, Judicial Opinions, Searches | Permalink | Comments (0) | TrackBack (0)
Friday, March 29, 2013
White Collar Criminal Law is Heating Up?
Two news items today highlight that the white collar area continues to be a key component of the criminal justice system. In Atlanta we see a Fulton County Grand Jury issuing indictments for claims that an alleged test cheating scandal involves criminal activity. See Michael Winerip, NYTimes, Former Atlanta Schools Chief Is Charged in Testing Scandal.
And the headline of the Tampa Bay Times is FBI Raid Signals End of Universal - an article describing the FBI raid of Universal Health Care.
March 29, 2013 in Investigations, News, Searches | Permalink | Comments (1) | TrackBack (0)
Wednesday, June 22, 2011
Second Chance for Bad Guess?
The appeal of former New York State Senate majority leader Joseph L. Bruno, argued last week before the United States Court of Appeals for the Second Circuit, has raised some interesting double jeopardy issues which may or may not be addressed by the court. Bruno was convicted of honest services fraud under 18 U.S.C. 1346 based on an undisclosed self-dealing theory. After Bruno’s conviction and while his case was on appeal, the Supreme Court in United States v. Skilling rejected the undisclosed self-dealing theory under Section 1346 and limited the statute’s application to cases involving bribery or kickbacks (thereby making the statute virtually superfluous since such conduct is usually covered by other statutes). On appeal in Bruno, the government, conceding reversal was required because the court’s instructions to the jury were flawed under Skilling, nonetheless argued that it should be given a second shot at Bruno, this time with a superseding indictment more specifically alleging bribery.
Generally, an appeal of a criminal trial marred by instructions proper under prevailing law at the time given (as they apparently were here) but later found defective by a higher court in that or another case results in a retrial with proper instructions. One underlying justification is that the prosecution cannot be expected to anticipate changes in the law and should be able to rely on current law. This case is somewhat different, however. Here, the government could not, or certainly should not, have failed to realize that the theory it chose to pursue was constitutionally questionable on vagueness and overbreadth grounds. The theory of prosecution had been questioned by courts, scholars, and lawyers and was about to be considered by the Supreme Court pursuant to a grant of certiorari. The government nonetheless chose to go forward on this theory, most likely because it was easier to prove factually, rather than a bribery charge that was less assailable legally but probably more difficult to prove. This case thus appears to be a classic example of a prosecutor deciding to seek the instant gratification of a conviction at trial and not to worry about the appeal until later.
Last week, in Davis v. United States, the Supreme Court held in a search and seizure case that evidence should not be excluded if the evidence was seized pursuant to police procedures compliant with then-binding legal precedent even though that precedent was subsequently overruled. Following that line of reasoning, a court may well rule that there should not be a double jeopardy bar to retrial if the prosecutor’s conduct was compliant with binding legal precedent that was subsequently overruled. A different approach seems appropriate, however, when the law the prosecutor relied on was, as here, up in the air. Indeed, Justice Sotomayor, concurring in Davis, made such a distinction, stating that she would have ruled differently if the law the police relied on was unsettled. It will be interesting to see how the Second Circuit, if it reaches this issue, will decide it.
June 22, 2011 in Fraud, Prosecutions, Searches | Permalink | Comments (0) | TrackBack (0)
Monday, January 17, 2011
Speech and Debate Clause Hampers DOJ
Boo hoo. The Washington Post has a good article here, by Jerry Markon and R. Jeffrey Smith, about the Constitution's Speech and Debate Clause, and the various ways in which it is hampering DOJ corruption probes. Unfortunately, the article implies that certain high-profile cases were dropped primarily or solely because of Speech and Debate. This unfairly maligns the named lawmakers and/or former lawmakers in question, and makes it seem that they were let off on a technicality. That damned technical Constitution--always getting in DOJ's way. In fact, the very idea that DOJ wiretapping of House members was, until recently, considered a legitimate and entirely appropriate law enforcement tool is a testament to how out of whack the balance of powers between the Legislative and Executive Branches has become. Congress finally woke up and smelled the coffee and, with an assist from the DC Circuit in U.S. v. Rayburn House Office Building, is resisting Exective Branch encroachment on its institutional powers.
January 17, 2011 in Congress, Corruption, Current Affairs, Investigations, Prosecutions, Prosecutors, Searches | Permalink | Comments (0) | TrackBack (0)
Thursday, September 30, 2010
NACDL's 6th Annual Defending the White Collar Case Seminar – “iDefense: Strategic & Ethical Issues in the Digital Age,” Thursday, September 30, 2010
Guest Blogger: Debra A. Karlstein, Spears & Imes LLP (New York, NY)
Moderator: Gerald B. Lefcourt
Panelists: Elkan Abramowitz, Daniel K. Gelb, Mark R. Hellerer and Eric V. Mazur
The panel was moderated by Gerald Lefcourt and included defense lawyers Elkan Abromowitz, Mark Hellerer, Daniel Gelb, and Eric Mazur, a forensic expert from Navigant Consulting.
Gerry introduced the panel, speaking about the sea change in the law and life arising out of the explosion of technological changes such as smart phones that have us carrying our personal information about all our contacts, our emails, a GPS device that allow others to know where we are at all times, our photos, and a history of our web browsing.
Elkan Abromowitz addressed three issues. First, Elkan spoke about the Fourth Amendment’s prohibition on unreasonable searches of papers and effects in the modern age when people have all types of private information on their computers, desktops or blackberries. The Ninth Circuit has held that law enforcement can look at information on a laptop at a border search – for any person entering or leaving the country–even in the absence of reasonable suspicion. (By contrast, reasonable suspicion is still required for a personal search, even though most of us carry far more information on our laptops than on our physical bodies!).
Second, Elkan spoke about the Balco case, in which the Ninth Circuit restricted the ability of law enforcement to obtain subpoenas that would allow the government to obtain information on computers that go beyond what was actually sought. En banc, the Ninth Circuit removed certain guidelines set forth in the original opinion, leaving some uncertainty about the proper breadth of a reasonable search in the context of a subpoena for computer records.
Third, Elkan spoke about the Quon case in the Supreme Court, which held that an employer can review emails sent on work computers and mobile devices issued by the employer–regardless of whether the employee has a reasonable expectation of privacy–as long as there is a non-investigatory workplace reason to do so.
Eric Mazur spoke about the exponential increase in the amount of data available and the ability of forensic experts to retrieve it.
Mark Hellerer also spoke about the increase in data and its impact on electronic discovery. In civil cases, the Sedona Conference has met annually to try to develop guidelines and best practices. In criminal cases, companies are faced with the daunting task of trying to respond to extremely broad subpoenas. Mark noted that there are certain limits on the proper scope of a grand jury’s investigative powers, and courts have at times been willing to apply Rule 17(c)’s limitation to quash–or more likely modify–unreasonably overbroad and unduly burdensome subpoenas.
Daniel Gelb talked about the statutory and constitutional limits on the reach of law enforcement with respect to electronically stored information in GPS devices, social media websites, et cetera. He noted that there is no reasonable expectation of privacy in comments posted on social media sites such as Facebook, even if directed only to a limited group of individuals such as “friends.” In addition, the government can often circumvent the need to obtain a search warrant upon a showing of probable cause by issuing a subpoena to cell phone providers who now collect GPS tracking devices.
Finally, the panelists discussed a hypothetical (based on an actual case in Washington, DC) involving a law firm partner who was prosecuted for obstruction of justice, along with his registered domestic partner and roommate, in connection with a homicide. Although the defendants were acquitted, the wife of the deceased brought a wrongful death lawsuit and has sought emails sent and received by the law firm partner on the firm’s computers.
September 30, 2010 in Computer Crime, Conferences, Searches, Web/Tech | Permalink | Comments (1) | TrackBack (0)
Thursday, October 1, 2009
NACDL's 5th Annual Defending the White Collar Case Seminar - "Cyberspace - The Black Hole Where Ethics, Strategy, and Technology Collide," Thursday, October 1, 2009
Guest Blogger: Cynthia Hujar Orr, President, National Association of Criminal Defense Lawyers
Panel Moderator: Gerald GoldsteinPanelists: AUSA Joey Blanch, Blair Brown, Marcia Hofmann, Alexander Southwell
Gerald Goldstein grabbed the attention of the NACDL White Collar seminar telling us that each time we hit the send button on the internet a new government exhibit is created.
Blair Brown spoke about the Balco Investigation, Comprehensive Drug Testing, case and its ground breaking opinions. They answered many previously unanswered questions regarding the operation of the plain view doctrine and appropriate limits and procedures for the execution for computer search warrants. The Baseball Players Association conducted anonymous testing in order to determine whether comprehensive drug testing should be imposed on the sport. However, a search warrant issued for drug test results for specific athletes and promised to screen and limit the search of the computers to records of specific athletes through off site screening procedures. The government rejected assistance on site to produce just the records that the government sought. In fact, the case agent viewed all of the records under the theory that they were in "plain view." Three separate district judges found the government acted in an outrageous fashion, executing general warrants. Blair explained the appropriate limits and procedures that the Court held should have been followed instead.
Alexander Southwell explained the government's application of the Computer Fraud Abuse Act to the public's use of social networks in the context of the Laurie Drew case. Drew had created a fake "my space" account culminating in the suicide of a young woman distressed by the postings from the fake site. The government pressed charges for formation of a fake account, criminalizing the violation of the terms and conditions of a social network. Drew was convicted and the court entered a judgment of acquittal from which the government has taken an appeal. Therefore, the story has not been written on the sweep of the Computer Fraud Abuse Act (CFAA), 18 U.S.C. Section 1030. He explained the difficulty of the criminal law to keep up with technology and the importance for criminal defense lawyers to push back when the government attempts to apply the criminal law to current social practices.
Marcia Hofmann working for the Electronic Frontier Foundation, a techie ACLU. She encouraged defense lawyers to reach out to EFF when confronting technical issues in your criminal cases. She discussed the evolution of the CFAA covering the cases that were the vehicles that expanded its use. Her discussion opened eyes about conduct that was not traditionally addressed by the criminal law.
AUSA Joey Blanch discussed child pornography in the age of the internet. Cases are exploding and proliferating. Every section of society in every walk of life ends up with people committing these crimes because people think they are anonymous on line. Blanch told the white collar lawyers that they will have a client with a child pornography case and explained how it could arise. Importantly, she discussed the new child pornography offenses effective in October of 2009. She also discussed the circuit split on the Mona Lisa defense. One of the new crimes is the Child Pornography Enterprise offense which creates a 20 year mandatory minimum for participation in child pornography internet groups. That was just the tip of the iceberg.
Using a hypothetical containing common real life circumstances the group guided the audience through what counsel should do in tough circumstances.
October 1, 2009 in Computer Crime, Conferences, Legal Ethics, Searches, Statutes, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, May 18, 2009
Key Evidence Tossed in Wecht Case - Should it be Called Dead?
The case against Dr. Cyril Wecht, former coroner in Allegheny County, Pa. and former President of the American Academy of Forensic Science, a started with many counts (see here) and eventually was reduced to 14. At the initial trial that lasted 7 weeks, the government presented 44 witnesses and the defense rested without presenting anything, which is not surprising considering the nature of this case. It resulted in a hung jury. But the government decided to proceed further.
The government's ability to now proceed on the remaining counts is in serious jeopardy as the court tossed out evidence obtained from a search warrant. The government is now faced with deciding whether to proceed to a higher court appealing the court's ruling on the search warrant. Is this case really worth any more tax dollars?
For press coverage on the court's ruling, see here, here, and here.
May 18, 2009 in Fraud, Searches | Permalink | Comments (0) | TrackBack (0)
Monday, May 11, 2009
Wellcare - Deferred Prosecution Agreement
Back in October 2007, WellCare Health Plans, Inc. in Tampa was the subject of a search by government agents. (see here and here) Last week, the company entered into a deferred prosecution agreement. (see Bloomberg here). A DOJ Press Release outlines the obligations of WellCare under this agreement. It includes "consent to the civil forfeiture of $40,000,000," "pay an additional $40,000,000 in restitution to the Florida Medicaid and healthy Kids programs," "retain and pay an independent Monitor," and as usual for deferred prosecution agreements, cooperation in investigations, in this case investigations of "Wellcare executives and employees responsible for the alleged fraudulent conduct at issue."
But like so many of the recent deferred prosecution agreements, the DOJ plays a powerful position in the company's future. In this case the U.S. Attorney's Office gets to select the "independent Monitor." And if the "Monitor resigns or is unable to serve the balance of his or her term, a successor Monitor shall be selected by the USAO. . ." Additionally, a breach of the agreement rests in the sole discretion of the prosecution, although they do give the company time to respond to claims of a breach. And "[r]egardless of whether the USAO pursues criminal charges against WellCare upon any breach of the DPA, any monies paid to the USAO at any time by WellCare will not be returned to WellCare and WellCare will make no claim upon such monies." So much for contract law. (see here)
Deferred Prosecution Agreement here.
May 11, 2009 in Deferred Prosecution Agreements, Searches | Permalink | Comments (1) | TrackBack (0)
Wednesday, February 4, 2009
Ninth Circuit Limits Corporate Executives From Challenging a Search
In a recent decision of the Ninth Circuit, U.S. v. SDI Future Health Inc. the court decided "whether corporate executives may challenge a police search of company premises not reserved for the executives' exclusive use." As stated by the court, "While '[i]t has long been settled that one has standing to object to a search of his office, as well as of his home,' Mancusi v. DeForte, 392 U.S. 364, 369 (1968), this case presents the novel issue of the extent to which a business employee may have standing to challenge a search of business premises generally." The court stated:
"we conclude that, except in the case of a small, family-run business over which an individual exercises daily management and control, an individual challenging a search of workplace areas beyond his own internal office must generally show some personal connection to the places searched and the materials seized. To adapt Anderson, although all the circumstances remain relevant, we will specifically determine the strength of such personal connection with reference to the following factors: (1) whether the item seized is personal property or otherwise kept in a private place separate from other work-related material; (2) whether the defendant had custody or immediate control of the item when officers seized it; and (3) whether the defendant took precautions on his own behalf to secure the place searched or things seized from any interference without his authorization. Absent such a personal connection or exclusive use, a defendant cannot establish standing for Fourth Amendment purposes to challenge the search of a workplace beyond his internal office."
In applying the standard the court stressed "that particularity and overbreadth remain two distinct parts of the evaluation of a warrant for Fourth Amendment purposes." The court held in this particular case "that five of the twenty-five categories of materials listed in the search warrant were unconstitutionally overbroad and that no exception rescues them from suppression."
February 4, 2009 in Searches | Permalink | Comments (0) | TrackBack (0)