Monday, May 23, 2011

President Obama Grants Eight Pardons

It is good to see that President Obama is using his pardon powers, granting eight pardons this past week. (See Press Release here) Clearly more pardons would have been better as there are many suffering from the collateral consequences of a conviction that should not have happened. Likewise, there are many that have significantly reformed their lives and are deserving of a second chance.    Some observations about these pardons:

  • Four of the eight included a conspiracy count.
  • Three of the eight had a drug related charge.
  •  The largest sentence that had been given in any of these offenses was five years.
  •  Four had a sentence of no prison time.
  • The most recent sentencing from these cases was 2001.
  • Seven of the eight cases were prior to 2000.
  • Only two cases were from the same state, that being Indiana.

An important question to ask is whether any of these cases should have been criminal activity in the first place. Did we really need to send someone to prison for "the possession and sale of illegal American alligator hides" in violation of the Lacey Act?  Would a civil fine have been sufficient?

(esp)

May 23, 2011 in Government Reports, Money Laundering, News, Prosecutions, Sentencing, Verdict | Permalink | Comments (3) | TrackBack (0)

Monday, April 18, 2011

Reflecting on Skilling after the Barry Bonds Verdict

Guest Blogger - Dane C. Ball (Gerger & Clarke)

I was annoyed by the result in Skilling—that the unquestionable honest-services error was “harmless” beyond a reasonable doubt.  But at the time I couldn’t articulate exactly why.  After the Bonds verdict, I can.  In short, the Bonds verdict illustrates the silliness of the conclusion in Skilling that appellate courts can and should sit as the 13th, 14th, and 15th jurors, then use a cold record to speak for the first 12 jurors while pretending appellate courts have crystal balls that make this okay.

 Compare the two cases.  Skilling’s trial was infected by honest-services error:  in the indictment; in the evidence; in the argument; and in the instructions.  Kicking a door cracked open by the Supreme Court in Pulido, the Fifth Circuit swept this under the rug—finding harmlessness—by pretending it could satisfactorily predict that the jury would have convicted on all counts even absent the error.  To be sure, this put the nail in the coffin for the Yates standard of review, which said that when multiple theories are charged and instructed and one is impermissible, reversal usually is automatic because it is “impossible to tell” whether the jury relied on the impermissible theory.  The Yates standard respected the constitutional right to an impartial jury of one’s peers (which appellate courts concerned with finality and efficiency certainly are not); it recognized the limitations of an appellate court’s ability to predict the past under changed circumstances; and it acknowledged that juries are composed of human beings (not robots) who can be and often are influenced by intangibles not apparent in a paper record. 

The Bonds verdict illustrates why eradicating the Yates standard was a bad idea—and indeed leads to a standard that infringes the right to an impartial jury of one’s peers.  Bonds was charged with repeatedly lying to a grand jury, and obstruction of justice essentially based on repeatedly lying to that grand jury.  With a proper indictment and charge, the impartial jury of Bonds’ peers hung on whether Bonds lied to the grand jury, but agreed that he obstructed by lying to the grand jury.  There are hyper-technical legal ways to attempt to explain this—but in reality (where jurors live), the verdict makes little sense.  And surely Bonds’ attorneys will file a motion challenging the sole conviction on this basis. 

But more importantly to me, Bonds illustrates what was right with Yates and what is wrong with Skilling.  Appellate court’s aren’t very good at predicting the past under changed circumstances.  I’d venture to guess that if the Fifth Circuit judges who decided Skilling had placed bets on the Bonds verdict, they’d have batted 0 for 3 predicting hung counts on lying but conviction on obstruction based on lying. 

I hope the defense bar won’t give up on the Yates standard.

(dcb)

April 18, 2011 in Celebrities, Enron, Judicial Opinions, Obstruction, Prosecutions, Verdict | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 13, 2011

News Reports on Verdict in Barry Bonds Trial

AP, AJC, Barry Bonds found guilty of obstruction

Maura Dolan, LATimes, Barry Bonds Convicted of Obstruction of Justice in Steroids Case

Ben Forer, ABC News, Barry Bonds Convicted of Obstruction of Justice, but Jury Hung on Other Charges

Fox News, Bonds guilty of obstruction of justice

Juliet Macur, NYTimes, Bonds Guilty of Obstruction of Justice

Laird Harrison & Dan Levine, Reuters, U.S. jury finds Barry Bonds guilty on one count

Alan Duke, CNN, Bonds convicted of obstruction of justice

 Why is it that the headlines tend to focus on the conviction and not the counts that did not result in a conviction (although it is noticed that ABC News did not do this).  Was this long investigation and trial worth it?  Is this how our tax dollars should be spent?

For background see here.

(esp)

April 13, 2011 in Antitrust, Celebrities, Obstruction, Sports, Verdict | Permalink | Comments (0) | TrackBack (0)

Monday, November 15, 2010

Kevin Ring Convicted Yet DOJ Wants More in an Honest Services Statute

According to a DOJ Press Release, "a federal jury in Washington convicted Kevin A. Ring, a former lobbyist who worked with Jack A. Abramoff, on five counts related to a scheme to corrupt public officials by providing a stream of things of value."  The Press Release states that:

"The jury found Ring guilty on one count of conspiring to corrupt congressional and executive branch officials by providing things of value to them and their staff in order to induce or reward those who took official actions benefitting Ring and his clients.   In addition, Ring was convicted of one count of paying a gratuity to a public official and three counts of honest services wire fraud for engaging in a scheme to deprive U.S. citizens of their right to the honest services of certain public officials.   The jury acquitted Ring on three counts of honest services fraud.   A previous federal jury failed to reach a verdict in the case and the court declared a mistrial."

Interestingly, this verdict comes on the heels of a response by Assistant AG Lanny Breuer to a question by Senator Patrick Leahy, where Breuer claims that there is a need to revise the honest services statute post Skilling. The Court's decision in the Skilling case had limited honest services to "bribery and kickbacks."  Breuer's first answer to a question posed to him tells of two cases where honest services premised on self-dealing was charged - but in both instances he says that it was in addition to bribery charges.  If bribery was present in these two cases, then why should Congress revise the mail fraud statute?  DOJ fails to present a specific need for this legislation.

Breuer then proceeds to state that "without a legislative fix, it will be more difficult and, in some instances, impossible to prosecute federal officials, as well as state and local officials for significant corrupt conduct."  See letter -Download Breuer_Answers  But he can provide no cases and his reasoning for not using existing statutes like section 208 is because this statute is not a predicate for a RICO charge, while mail fraud does serve this function. Is Assistant AG Breuer telling us that he can't circumvent the limits of RICO without this mail fraud fix? Is he saying that Congress should extend a statute so that he can get around congressional intent in the RICO statute?  It's also, he says, because he needs honest services as a predicate for Title III wiretaps. Here again is he saying that he can't circumvent the limits of Title III wiretaps without having a loose mail fraud statute that allows DOJ to use and abuse their discretion. 

With a conviction in the Ring case, it is hoped that the Senate will look closely at the rationale offered by DOJ for needing to expand the honest services provisions of the mail fraud statute. It is also hoped that DOJ will think twice about allowing the possible use of mail fraud to circumvent the existing RICO and wiretap mandates. It is a sad day when prosecutors ask for more power in a statute so that they can use it to circumvent existing laws. 

(esp)

November 15, 2010 in Fraud, Verdict | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 17, 2010

Blago Verdict: Read All About It

The former Governor of Illinois is convicted on one Section 1001 count while the jury hangs on the other 23 charges. The jury hangs on all counts against Blago's brother. The Los Angeles Times has the story here. When the testimony wrapped up two weeks ago, Esquire asked its reporter John Bohrer to pretend he was a juror and opine on the outcome. Bohrer's analysis of the evidence is here. In a remarkable bit of prescience, Bohner noted that, "the Government couldn't close the deal. And that's why I'm voting to acquit." Bohrer still hated Blago, but did not feel that he belonged in prison or was worth the expense to prosecute. "I'll hand it to the prosecution on one of these charges: It does seem like he stone-cold lied to the FBI when they questioned him about whether he mixed state business with fundraising."  Pretty close call. Pretty amazing.

(slw)

August 17, 2010 in Celebrities, Corruption, Current Affairs, Fraud, Prosecutions, Prosecutors, Verdict | Permalink | Comments (1) | TrackBack (0)

Monday, June 21, 2010

Not Guilty for Miami Cops Charged With Perjury

Three Miami police officers were found not guilty after a trial by jury on charges of conspiracy to make false statements, perjury and obstruction of justice.  One of the individuals was represented by Attorney Richard Sharpstein.

See also David Oscar Markus, Southern District of Florida Blog,  NGs for the cops on trial before Judge Middlebrooks; David Ovalle, Miami Herald, Federal Jury Acquits Miami-Dade Cops of Perjury in Weapons case 

(esp)

June 21, 2010 in Verdict | Permalink | Comments (0) | TrackBack (0)

Saturday, June 12, 2010

Charging Many Counts Can Result in Hearing the Words "Not Guilty" Many Times

Sholom Rubashkin, the manager of a kosher meat plant in Iowa, had been unsuccessful in federal court as he was found guilty of bank fraud and related charges resulting from a raid premised on illegal immigration. He awaits sentencing in that case (see background here).  But the same result is not seen on the state side in charges that came from the federal case, albeit different allegations.  Following a five-week trial (yes - five weeks), he was found not guilty of 67 counts (yes - 67 counts) of child labor.   What is particularly noteworthy here is that he was initially charged with 9,311 counts of child labor violations as the state had charged a separate criminal charge for each day of the 31 minors alleged in the case. Prior to trial they reduced this to 67 counts and the judge granted a directed verdict as to 16 of these counts. This was not an easy case for the defense as the court's instructions included a mistake of fact instruction that stated that any mistaken belief in the age of the workers had to "be because of a good faith reasonable belief" and that the defendant "must inquire or determine what is true when to do so would be reasonable under the circumstances." A change of venue had been granted in this case, but it remained in Iowa where jurors may have been aware of the federal case. Despite these obstacles for the defense, the jury returned not guilty verdicts. The defendant was represented by Mark E. Weinhardt and Holly Logan of Belin McCormick, PC (Des Moines, Iowa) and F. Montgomery Brown of Brown Scott, PLC (West Des Moines, Iowa). 
 
 
(esp) (blogging from Marseille, France)

June 12, 2010 in Verdict | Permalink | Comments (0) | TrackBack (0)

Thursday, December 3, 2009

Petters Guilty

Steve Karnowski, law.com (AP), Jury Finds Minn. Businessman Petters Guilty in $3.5 Billion Ponzi Scheme; Steve Karnowki, StarTribune (AP), Petters defense team plans appeal  It will be interesting to see if the sentences given to Petters is vastly different from those individuals who plead guilty and cooperated.

(esp)

December 3, 2009 in Verdict | Permalink | Comments (0) | TrackBack (0)

Thursday, November 19, 2009

Shelnutt - Not Guilty

The U.S. Attorney's Office for the Southern District of Georgia has their press release telling the world of a 40 count indictment of a Columbus, Georgia attorney.  But no where on the website is the fact that a jury acquitted this same individual on all counts. As ministers of justice it should not be enough for prosecutors to merely say on the courthouse steps that they accept the jury verdict. Prosecution press releases should not be limited to indictments and guilty verdicts, but should also include the not guilty verdicts.

Shelnutt had been charged with a list of offenses that reads like someone opening the federal statutes and trying to find anything that could be used to destroy an attorney especially one who represents criminal defendants.  They charged him with money laundering, aiding and abetting a cocaine conspiracy, attempted bribery of a federal official, witness tampering, failure to file cash reporting forms, and making false statements to an FBI agent.

The bottom line is that the jury did not accept the government's case. See Chuck Williams, Ledger - Enquirer, Shelnutt acquitted -Juror says government's case 'had a lot of holes'

Mark Shelnutt was represented by a legal team headed by Thomas A. Withers, Gillen, Withers & Lake, LLC.

(esp)

November 19, 2009 in Defense Counsel, Verdict | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 10, 2009

Not Guilty for Former Bear Stearns Managers

Zachery Kouwe, NYTimes, Bear Stearns Managers Acquitted of Fraud Charges reports on the acquittal of two former Bear Stearns Managers who faced government indictment. Unlike many, these two individuals risked going to trial and were acquitted by a jury that heard the evidence. As initially noted on this blog here, "[t]he case is the classic case of the funds going down and everyone then looking for someone to blame."  This blog also stated:

Clearly honesty in the market is important.  But one also has to wonder if the use of criminal charges is appropriate in cases that would not have occurred but for the poor economy. It is also a concern that the government is using overly broad statutes to criminalize an alleged lack of honesty.

Interestingly, although one rarely finds press releases from a U.S.Attorney following a not guilty verdict, one was issued by the U.S. Attorney's Office from the Eastern District of New York. The press release is definitely a step in the right direction for the DOJ, but they should not be "disappointed by the outcome in this case" as "ministers of justice" should be elated with all jury verdicts as they demonstrate that justice has been served.

(esp)

November 10, 2009 in Verdict | Permalink | Comments (0) | TrackBack (0)

Monday, August 17, 2009

Former Credit Suisse Broker Convicted

Following a three week trial, a former Credit Suisse broker was convicted of conspiracy and securities fraud. The DOJ press release from the Eastern District of New York tells how "the scheme was discovered when the market for the mortgage-backed CDOs purchased by the companies collapsed and various auctions for CDO-ARS began to fail." Many frauds are coming to light as a result of the financial downturn.

(esp)

August 17, 2009 in Fraud, Verdict | Permalink | Comments (0) | TrackBack (0)

Friday, May 8, 2009

W.R. Grace - Not Guilty

See Grace Case, A Joint Project of the School of Law & the School of Journalism,   W.R. Grace not guilty on all counts (and hats off to all the students and professors involved in the wonderful blog coverage of this trial).

(esp)

Note above website seems to be down. See also WSJ Blog here

May 8, 2009 in Environment, Verdict | Permalink | Comments (0) | TrackBack (0)

Saturday, March 7, 2009

Major Criminal Tax Fraud Trial Results In Complete Defense Victory

This past week a U.S. Virgin Island (USVI) federal jury returned not guilty verdicts on all twenty-six counts in a major federal criminal tax fraud trial. The government alleged that three individuals created and promoted Kapok, a USVI limited partnership, in order to unlawfully obtain tax benefits from a USVI economic development program.  The program provided a 90 percent federal income tax credit for eligible companies and individuals. Also charged were a St. Louis area auto dealer and several companies affiliated with the defendants. The government alleged a loss of more than $75 million in federal income taxes from Kapok's participating partners.

Blair G. Brown, a partner in Washington, DC's Zuckerman Spaeder, led the defense of one of the individual's accused, with assistance from associate Lani Cossette. "This case should never have been a criminal prosecution," said Mr. Brown. "The legal standards for USVI residency and qualifying income under the economic development program were vague. All of the defendants did their best in relying on the guidance of experts. The jury also correctly understood that the defendants and similar partnerships brought substantial economic benefits to the USVI."

"The defense was a real team effort that melded the strengths of all defense counsel. Sticking together and pounding our themes-vague standards, reliance, disclosure, and benefits to the USVI-were essential," added Mr. Brown. The defense presented only two witnesses, and none of the defendants testified.

Also representing the same person as Brown were Clyde Kuehn from Belleville, Ill., and USVI local counsel Lee Rohn. Other defense counsel were William Lucco of Edwardsville, Ill.; Chuck Meadows and Josh Ungerman of Dallas; Robert Webster of Dallas; Robert Smith of Dallas; and Gordon Rhea of Mt. Pleasant, S.C.  The government was represented by Assistant U.S. Attorneys from the Southern District of Illinois, where the case was originally indicted before its transfer to the USVI, and the U.S. Department of Justice Tax Division.

(esp)

March 7, 2009 in Tax, Verdict | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 23, 2008

The Holiday Pardons

President Bush issued some holiday pardons - 19 individuals were recipients, and one person had a sentence commutation. The list includes many older offenses, with a few being drug related crimes. 

The ones that might be considered white collar ones included a 1985 mail fraud conviction, a 1993 aiding and abetting embezzlement of bank funds, a 1993 conspiracy to defraud the U.S., a 1962 forging the endorsement on a US Treasury check, a 1998 concealment of information affecting Social Security benefits, a 1971 embezzlement of mail matter, a 2003 false statements to the HUD and mail fraud, a 1949 conspiracy to export and exportation of a military aircraft to a foreign country in violation of the Neutrality Act of 1939, and a 1992 aiding and abetting violation of the Archaeological Resources Protection Act.   

(esp)

For the story behind one of the pardons, see Eric Lichtblau, Jailed for Aiding Israel, but Pardoned by Bush

Additional Addendum, Jordan Weissmann, BLT Blog, Pardon Memo Puzzles Legal Experts

December 23, 2008 in Verdict | Permalink | Comments (0) | TrackBack (0)

Sunday, December 21, 2008

Safavian Convicted

The Abramoff aftermath never seems to end.  In the latest happenings, one sees that David Safavian, former chief of staff at the General Services Administration, is convicted in a retrial.  See Derek Kravitz, Washington Post, Ex-White House Official Convicted Again.  He was initially convicted after a trial by jury and given a sentence of eighteen months.  That conviction was overturned.  The interesting question is whether the court will keep the sentence constant in a post Gall and Kimbrough world. For background on the case see:

(esp)

December 21, 2008 in Verdict | Permalink | Comments (0) | TrackBack (0)

Monday, November 3, 2008

Former CEO National Century Financial Enterprises Convicted Again

A DOJ Press Release reports that "Lance K. Poulsen, former president, owner and chief executive officer of National Century Financial Enterprises (NCFE)" was convicted "of conspiracy, fraud and money laundering." Poulsen had been convicted of "conspiracy, witness tampering and obstruction on March 26, 2008, and [he] was sentenced to ten years in prison on those charges." (see here) The DOJ Press Release states that "[t]he charges stemmed from a scheme to deceive investors about the financial health of NCFE that cost investors more than $2 billion. The company, which was based in Dublin, Ohio, was one of the largest healthcare finance companies in the United States until it filed for bankruptcy in November 2002."

(esp)

November 3, 2008 in Verdict | Permalink | Comments (1) | TrackBack (0)

Monday, October 27, 2008

Stevens - Guilty

Details can be found at - CNN here; Washington Post here; NYTimes here; WSJ  here.  The question of whether it was a good move to proceed to trial quickly, to beat the forthcoming election, has now also been answered.

Indictment here

An added consideration to the prior blog post here, is that if there was any error that causes a reversal of this conviction, it is hard to remedy it prior to the election.  Appeals can take a long time, and certainly more time than the few days left before the election.

Trivia - The late Rep. Charles Diggs was re-elected while awaiting sentencing (although he did eventually resign) here.

(esp)

P.S.  Will the defense be raising an issue on appeal regarding a response to a jury question during the deliberation process?  See  BLT Blog here

October 27, 2008 in Verdict | Permalink | Comments (4) | TrackBack (0)

Friday, August 29, 2008

Pellicano and Christensen Convicted

A press release of the U.S. Attorney's Office for the Central District of California reports that "[f]ormer private investigator Anthony Pellicano and prominent entertainment attorney Terry Christensen were found guilty today of federal conspiracy and wiretapping charges in connection with their illegal wiretapping of the ex-wife of Christensen’s longtime client, billionaire Kirk Kerkorian, during a 2002 child support dispute."  The jury trial lasted 6 weeks.  Pellicano had previously been convicted of other charges, including RICO, in May.  The government had tapes in this case, something that can be very difficult for the defense to overcome.   

Dan Slater, Wall Street Jrl Blog, Terry Christensen, Pellicano Convicted on Wiretapping Charges

Above the Law - Lawyer of the Day - Terry Christensen

LATimes, Private eye Anthony Pellicano, attorney Christensen convicted of wiretap plot

(esp)

August 29, 2008 in Defense Counsel, Prosecutions, Verdict | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 4, 2008

Rezko Convicted

The press is reporting on the conviction of Antoin Rezko:

Bob Secter & Jeff Coen, Rezko Convicted of Corruption

Peter Slevin, The Trail Blog, Washington Post - Rezko Convicted of Influence Peddling

Fox News, Rezko Convicted on 16 Counts in Corruption Trial

Catrin Einhorn & Susan Sauley, NYTimes - Fund-Raiser Convicted in Illinois Bribery Scheme

Ilan Brat & T.W. Farnam, Wall St Jrl, Fund-Raiser Rezko Found Guilty in Illinois Corruption Trial

The case drew national attention when the names of Obama and Blagojevich surfaced during the trial. For background see here, here, here, here and here.  The initial DOJ Press Release can be found here.

(esp)(blogging from Atlanta)

June 4, 2008 in Corruption, Verdict | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 3, 2008

Not Guilty for 2 Former CVS Vice-Presidents

W. Zachary Malinowksi over at Projo.com reports (here) on the not guilty verdicts entered against the two former VPs from CVS.  Perhaps the most amazing aspect here is that the jury issued the verdict in 90 minutes. This is particularly noteworthy as one often does not find the quick verdict in white collar cases.  And although this case was not a heavy document case, it still involved allegations of fraud.  The accused individuals had been charged with bribery, conspiracy, and mail fraud (see here).  The case was built largely with testimony of a cooperating witness. One of the individuals in this case was represented by David B. Fein and Scott Corrigan of  Wiggin and Dana.   

Even though successful in court, it is never really a "win" for a criminal defendant who goes to trial. One cannot bring back the agony of facing the charges, the strain of the trial, and the personal costs one faces in maintaining innocence.

(esp)

June 3, 2008 in Verdict | Permalink | Comments (0) | TrackBack (0)