White Collar Crime Prof Blog

Siegelman - Politics Everywhere

Check out Bob Johnson's article, Al.com (AP) "Siegelman Attorney Asks for Canary Investigation"  There are clearly some interesting legal questions here.  An attorney with DOJ recuses herself, but the question may be what this attorney did prior to the recusal, and whether there was any involvement after it. Without the documents that are in the hands of the government, defense counsel is at a loss to prove anything. Defense counsel in these type of situations can be placed in a "catch-22" position.  They need the evidence to present their claim, but need some showing of the claim to be able to secure the evidence.  But more importantly, should DOJ be the one investigating this case, or would it have been better if there was an independent investigation here. And if there is nothing to hide than perhaps an independent investigation would be best for all sides. And why is the name Karl Rove surfacing in this article, yet again.

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Annual Survey of Supreme Court Decisions

At the upcoming ABA conference, the Criminal Justice Section will be sponsoring a program that reviews the Supreme Court's criminal decisions of this past term.  The program is being held on Friday, August 8, 2008 from 3:45 - 5:15 P.M. in Conference Room L, Executive Conference Center, Sheraton, New York. The program chair is Professor Rory Little (Hastings), and the speakers are Robert Dean, Katherine P. Failla, Professor Julie O'Sullivan (Georgetown),  and  Hon. Stephen C. Robinson.  For details, including cost, see here.   I'd be willing to bet that the recent money laundering decisions will be something covered by this panel.

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One Day Sentence Affirmed

The Ninth Circuit Court of Appeals affirmed a one-day sentence here.  The case involved a plea to "several counts of health care fraud, embezzlement, and money laundering."  The sentence was to be served at a facility that would allow the defendant to "work, pay restitution and visit with his then 11-year-old son."  But the corrections center "would not house prisoners" so the court amended the sentence to "one day of imprisonment and three years of supervised release, with the condition that he serve 12 months and one day of his supervised release" at this center.  The government unsuccessfully took this modification up on appeal. 

Guest Bloggers at Sentencing Law & Policy here have analysis of this decision, including the strong dissent that like the majority interprets the recent Supreme Court decision in Gall.   In the dissent, Circuit Judge Gould states:

"To provide for a mere slap on the wrist of those convicted of serious economic crimes, with no or virtually no time imprisoned as punishment, strikes a blow to the integrity of our criminal justice system. In the end, if not corrected, the majority’s approach will be dangerous to respect for our legal system. Can it be seriously maintained that wilful offenders who commit white collar crime, who steal intentionally hundreds of thousands or even millions of dollars, should receive no forced incarceration, while those poor and powerless criminal defendants who commit common larceny or theft often serve extensive hard time?"

The majority, in a footnote, lists the many sentences that have provided a like punishment in a white collar crime case. But more importantly, is it a "mere slap on the wrist" to brand a person for life as a convicted felon? And  is this true when the convicted individual is being held up in society as felon who committed crimes such as money laundering? And in the case of a non-violent crime, should innovative sentences such as this be welcomed? Maybe part of the problem for the government is the charging of this conduct using so many different federal statutes. 

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No Recusal of Judge for Jamie Olis

Jamie Olis' motion to recuse Judge Sim Lake from his case was denied by Judge Sim Lake.  The court found the motion untimely and insufficient.  Here is one passage from the judge's decision:

"Olis states that when Shelby moved to Phoenix in 1997 the court gave Shelby a gift and told him that the court knew he would be back someday. However, Olis neither describes the gift nor the circumstances under which it was given. Since Olis fails to state facts showing that prior to giving Shelby the gift the court ever met Shelby socially as opposed to professionally in open court, and since the word “gift” covers a wide array of items including items that are given to professional acquaintances merely as souvenirs or symbolic gestures of good will, absent allegations showing that the gift was more than a souvenir or symbolic gesture of good will, Olis’ statement that over ten years ago the court gave Shelby a going-away gift does not support an inference that the court and Shelby shared a close personal friendship."

Recusal motions seem to be a hot topic these days. See Marcia Coyle, National L.J.,  High Court Review Sought on Judicial Recusals; Howard Bashman, How Appealing here.

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Wecht Appellate Argument

The appellate argument that Cyril Wecht should not be subject to retrial as a result of double jeopardy was heard by the Third Circuit Court of Appeals. For commentary on the oral argument see-

Howard Bashman, How Appealing here

Harold Hayes, KDKA, Appeals Court to Decide if Cyril Wecht Has Retrial here

Jason Cato, Pittsburgh Tribune Review, Panel criticizes Wecht Judge

Ramesh Santanam, Philadelphia Inquirer (AP), Wecht's lawyer asks appeals court to dismiss case

Paula Reed Ward, Pittsburgh Post-Gazette, Appeals judges hear Wecht's argument against new trial

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Paul Minor - In or Out on Appeal - Government Says "No" Politics

Paul Minor's request to be released pending appeal is responded to by the government by cold language and language that perhaps warrants careful scrutiny (for background on this case see here).  Here are two points that are particularly bothersome:

1. The government's brief (see below) with respect to the medical condition of Minor's wife displays a sad state for our legal system.  The brief, in speaking to whether the court should consider releasing Paul Minor to care for his wife, states that this "certainly evokes sympathy, it is not a legal basis for his release from prison."  Basically, the government is saying that compassion does not play any role in how we adjudicate matters.  To have third parties bear the consequences and be punished for the actions is harsh punishment for individuals who committed no crime.  To say that the government does not have discretion to insert compassion into the process is also bothersome. It wasn't in the law to work the sentences for the Fastow's to account for the care-taking of their children. (see here)  Is there a different standard used for compassion when it comes to those who cooperate with the government and those who proceed to trial?

2.  The government's response includes statements that this case was not a political prosecution ("nothing more than wild speculation and innuendo unsupported by the evidence").  Attorney Abbe David Lowell, in footnote 4 (how appropriate for it to be this number), says it all when he points out that the government seems to be pre-judging a matter that is under investigation. This is a clear indication that an independent investigation of this matter is warranted. (see here)

Government's Opposition to the Motion of Defendant-Appellant Paul S. Minor for Release pending Appeal -

Download govt. Opp. to Minor Release Motion.PDF

Defendant-Appellant Paul S. Minor's Reply Brief in Support of Motion for Release Pending Appeal -

Download minors_reply_brief_in_support_of_mot. for Release.PDF

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Upcoming Conferences & Post Conference Materials

ABA Criminal Justice Section, Sentencing Advocacy, Practice, and Reform Institute - Washington DC - October 24

ABA National Institute on Securities Fraud - Washington DC - October 2-3

NACDL & Georgetown, Defending White Collar Crimes - Washington DC - November 6-7

ABA, Section for Litigation & Continuing Legal Education, Keeping It Real: Making the White Collar Defendants Blue Collar, post conference CLE material here

FCPA - Strafford -Foreign Corrupt Practices Act in Russia - Compliance Strategies Given Russia's Unique Cultural and Governmental Intricacies- For information here

National Association of Sentencing Commissions Annual Conference -- Building Bridges: Philosophy, Policy & Performance- For information here.

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In the News

Amanda Bronstad, National Law Journal, Law.com, Prosecutors recommend One Year of Probation for Milberg Kickback Defendant

Liz Rappaport, WSJ, Treasury Ex-Official Is at Center of UBS Probe

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In the News and Blogosphere

Mary Flood, Houston Chronicle, Federal Judge Denies Recusal Request in Olis Case

Jason Cato, Pittsburgh Tribune-Review, Court Rules Names of Jurors Must Be Public; Paul Reed Ward, Pittsburgh Post-Gazette, Wecht Jurors' Names Must be Made Public

DOJ Press Release, Two Physicians Plead Guilty in International Internet Pharmacy Conspiracy   

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Stringer - No Rehearing En Banc

With a few modifications to its opinion, the Ninth Circuit entered an order in United States v. Stringer denying the defendant's petition for rehearing and suggestion for rehearing en banc.

This means that the Ninth Circuit reversal of the district court dismissal of the indictments in the Stringer case remains the court's ruling. The district court had dismissed the indictments concluding "that the government had engaged in deceitful conduct, in violation of defendants' due process rights, by simultaneously pursuing civil and criminal investigations of defendants' alleged falsification of the financial records of their high-tech camera sales company." The lower court had also stated that "should there be a criminal trial, all evidence provided by the individual defendants in response to Securities and Exchange (SEC) subpoenas should be suppressed."  For discussion of the 9th circuit reversal of the district court opinion, see here.

(esp)(blogging from SEALS '08 in Palm Beach, Florida) 

In the News & Blogosphere

Dan Slater, WSJ Blog, Tenth Cir. Grants Review of Nacchio’s Insider Trading Case

Larry Neumeister, Yahoo News (AP), Court overturns convictions of NYSE specialists

Guest Bloggers, Sentencing Law & Policy, Former Newark, NJ Mayor Sentenced to 27 Months

Adam Lynch, Jackson Free Press, More Judicial Horseplay? (discussing Paul Minor Case)

Janet Novak & William P. Barrett, Forbes.com, Feds Hound Bodog

Del Quentin Wilber, Alaska Senator Stevens Pleads Not Guilty in Corruption Case

DOJ Press Release, Bennett Environmental Inc. Pleads Guilty to Defrauding the U.S. Environmental Protection Agency (Company to pay $1 million criminal fine)

Paul Donsky & Sierra Brown, Atl Jrl Constitution, Telecom chief found guilty of bribing Atlanta school official

Mike Robinson (AP), Yahoo News, Former head of Ill. prisons sentenced to 2 years

DOJ Press Release, Former Department of Interior Official Pleads Guilty to Conflict of Interest Charge

DOJ Press Release, Former Department of Defense Official Pleads Guilty to Making False Statement

(esp)(blogging from SEALS '08 in Palm Beach, Florida)

Contempt Citation Against Karl Rove

LATimes, Karl Rove in Contempt: Is it Justice or a Witch Hunt?

AP, House Panel Votes to Cite Rove for Contempt

James Rowley & Robert Schmidt, Bloomberg, U.S. House Panel Votes to Hold Karl Rove in Contempt

But one headline that can't go unnoticed is Dublin's RTE News - 'Bush's brain' faces contempt charge

(esp) (blogging from SEALS '08 in Palm Beach, Florida)

Who Gets to Decide Whether to Continue An Investigation?

Back in November 2007, the blog (here) discussed the BAE investigation. Now, David Leigh, The Guardian has an article titled, "Law Lords: Fraud Office Right to End Bribery Investigation in BAE Case" that tells of a recent ruling that supports the right of the Serious Fraud Office (SFO) to cease an investigation. (see also Francis Gibb, Times Online, "SFO 'Courageous' in Dropping BAE Arms Probe ; Forbes -Thomson Financial,House of Lords clears SFO of 'unlawful' conduct in Saudi arms case) It seems the Serious Fraud Office made a decision to stop an investigation involving BAE.  The media notes that the reason for terminating the investigation was based on considerations of public interest, but that many were not happy with this decision.

In the United States, prosecutors have enormous discretion in deciding who will be investigated and for what, if any, possible crimes. In considering these discretionary decisions, the DOJ gives deference to executive power. Thus, it is possible that conduct might not be fully investigated if the result would hurt international relations.  The public has little recourse in the U.S. to contest the prosecutorial decision-making when an investigation ends.

Stopping an investigation can sometimes be detrimental to the person or entity being investigated.  Never having the chance to prove innocence can hurt the person or entity.  On the other hand, if the person or entity had possible criminal exposure, ceasing an investigation would likely be very welcomed.

(esp) (blogging from SEALS '08 in Palm Beach, Florida)