Category: Conferences

NACDL’s 5th Annual Defending the White Collar Case Seminar – “Capitol Chaos–What’s Happening in D.C.?,” Friday, October 2, 2009

October 2nd, 2009

Guest Blogger: Ross H. Garber, Shipman & Goodwin (Hartford, CT)

Panelists: Shara-Tara Regon, Kathleen Sullivan

Legislative Update

Shana Regon, NACDL’s Director of White Collar Crime Policy, provided an
update on NACDL’s efforts on Capitol Hill. She began by talking about
NACDL advocacy on attorney-client privilege and attorney work product
protection issues, particularly related to DOJ policy on requesting
waivers of the privilege and protection from cooperating companies.
She also talked about proposed legislation, HR 1947, that would
regulate deferred prosecution agreements (DPAs) and non-prosecution
agreements (NPAs). Among the provisions of HR 1947 are those that
would require court approval of DPAs and NPAs and require posting of
all DPAs and NPAs on the DOJ website. Shana also talked about NACDL’s
efforts to educate Congress about overcriminalization including
ambiguous mens rea standards, mandatory minimums, the federalization of
criminal conduct and the adoption of overlapping statutes covering the
same conduct.

Supreme Court Update

Kathleen Sullivan of Quinn Emanuel spoke about some recent white collar
cases decided by the Supreme Court in the past session: Diaz v.
Massachusetts; Yaeger v. United States; and Nijhawan v. Holder. In
Malendez-Diaz, the Supreme Court held in a 5-4 decision that the
confrontation clause applies to an affidavit from a crime lab analyst
because it is testimonial in nature. Kathleen emphasized that this
decision would apply to any forensic experts. In Yaeger, the court
held that when a jury acquits on some counts and hangs on others, the
government may not re-try the defendant on any of the counts. In
Nijhawan the Court interpreted the deportation statute for aggravated
felonies with respect to crimes of fraud or deceit involving more than
$10,000. The Court held that the $10,000 requirement is met based on
the facts of the case, even if the underlying aggravated felony statute
itself does not require a $10,000 loss

Kathleen noted that in this session, the Court is considering several
honest services cases. Among the issues the Court will tackle is
whether the mail fraud statute criminalizes mere ethical missteps.
Among the honest services cases are United States v. Weyrauch, in which
an Alaska legislator was convicted of soliciting legal work from
clients when he was in a position to benefit clients and not disclosing
the work. The question posed in this case is whether the government
must prove violation of disclosure requirements otherwise required by
state law.

In a case involving Conrad Black, the Supreme Court will evaluate
whether there must be an intent to and likelihood of depriving a
corporation of a business opportunity for an executive to be found
guilty of the honest services provision of the mail fraud statute.
Kathleen said she expects these cases to be decided for the defendants
on narrow statutory grounds.

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NACDL’s 5th Annual Defending the White Collar Case Seminar – “More Jail, Less Justice – White Collar Sentencing Unhinged From Reality,” Thursday, October 1, 2009

October 1st, 2009

Guest Blogger: Ellen C. Brotman, Montgomery McCracken (Philadelphia, PA)

Moderator: Gerald Goldstein

Panelists: Ellen C. Brotman, Evan Jenness, Hon. Jed Rakoff, Alan Vinegrad

The panel started with Evan Jenness who made the important point that we must push back against the government’s loss numbers in complicated financial crimes cases and focus on how to calculate the “realistic economic loss proximately caused by your client’s criminal conduct.” Arriving at this number and persuading the government to accept it before the charges can be critical. Primarily, this strategy permits the sentencing hearing to focus not on the Guidelines calculations but on the characteristics of your client that properly mitigate the harshness of the sentence. Evan focused on United States v. Nacchio, Olis, and Kosky as cases which support a nuanced approach to loss calculations. These cases look at external factors affecting loss including market fluctuations, third party conduct, and residual value in assets.

Alan Vinegrad spoke next about whether there has been a real change post-Booker in sentencing. He had some “scary and sobering statistics” — fraud sentences are up 69%; bribery sentences are up 150%; tax sentences are up 78%; overall sentencing considerations for economic crimes are up 38%. He explained this based on two phenomena: the increase in the fraud loss table and the new discretionary nature of the Guidelines.

Ellen C. Brotman (me) pinch hit for Amy Baron Evans who was on the injured list but will be back in the rotation any day. I described the process of deconstruction and discussed the NACDL Amicus Brief in United States v. Tomko. The Tomko brief posits the radical but rational and well reasoned theory that, because the Commission’s review of past practices did not include any cases that resulted in probation, thus ignoring approximately 40% of all past cases in the relevant time frame, the Guidelines are not based on empirical evidence as they apply to first time non-violent offenders. I urge everyone to read the brief and the articles that Amy has published, found on the wonderful, amazing and inspiring Defender website: www.fd.org.

Judge Rakoff spoke next and agreed that Booker has made it harder to sentence but has created a more rationalized process. The judge said that reducing individualized sentencing with its myriad factors to an arithmetic process was “absurd.” He also speculated that the early adherence to the guidelines post-Booker was motivated by fear that the Bush administration would somehow create a legislative backlash. However, the Judge also felt that, for whatever reasons, there was more comfort level with variances now and that issue was where the sentencing energy should be focused.
The panel then turned its attention to the hypothetical and had a lively discussion that fleshed out the issues raised above.

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NACDL’s 5th Annual Defending the White Collar Case Seminar – “Choppy Waters – The Ethics of Privilege and Disclosure,” Thursday, October 1, 2009

October 1st, 2009

Guest Blogger: Peter D. Hardy, Post & Schell, P.C. (Philadelphia, PA)

Moderator: Gerald B. Lefcourt

Panelists: Robert Cary, Hon. Nancy Gertner, Prof. Bruce Green, Paul Shechtman, Larry Thompson

Gerald Lefcourt noted that it has been over 46 years since the Brady decision was issued, yet we still have no firm definition of Brady that most federal prosecutors can follow. There are varying and conflicting practices amongst prosecutors in regards to definitions and the proper time frame for disclosures. Moreover, incidents of Brady violations or potential violations are not uncommon.

Robert Cary represented Senator Ted Stevens. The heart of the defense was a note that Senator Stevens had sent to Bill Allen, the key government witness and the builder making improvements on the Senator’s chalet, which stated in part that the Senator wanted to make sure that Allen got fully paid, and that “friendship is one thing, but compliance with these ethics rules is another[.]” The government responded to this note by eliciting testimony from Allen that the note was just the Senator trying to concoct a cover story. After the guilty verdict, the second FBI agent on the case filed a self-described whistleblower complaint regarding conduct by the prosecution team. The Court ordered the government to provide discovery regarding the complaint, and a new prosecution team was put in place. New discovery contradicted directly the government’s theory and evidence at trial that Allen regarded the note as a mere cover story. Carey described the Attorney General as a hero for moving to dismiss the case. All of this happened only after a long trial and post-trial process (as well as Senator Stevens losing his re-election bid). Judge Sullivan, who oversaw the case, is to be commended for being careful and not simply taking the government’s word.

So, what should be done? Judge Gertner explained that the solution needs to involve the rules (ethical, court, and criminal procedure). The case law has slid into an outcome-determinative approach, which makes it very hard for the prosecutor to predict. The materiality standard is colliding with the harmless error doctrine. Brady had more to do with a failure to turn over evidence impugning the system, rather than predictions regarding potential outcomes. The definition of Brady should be re-assessed, and there also should be deadlines set for when information should be turned over: for example, 28 days before.

Professor Green described how the ABA code of ethics set forth in the 1970s a discovery rule for prosecutors: you must turn over information that would tend to negate the guilt of the accused. Everyone had assumed that this rule overlapped with Brady. But, the rule is not co-extensive with Brady – for example, it does not have a materiality standard. Rather, it categorically requires the disclosure of favorable information, or information which might lead to favorable evidence. A materiality test is really directed at post-conviction review, and is not well suited to govern the conduct of prosecutors at the time they are making their discovery decisions. Defense attorneys also need to know about exculpatory information in order to assess a case and decide whether or not to proceed to trial.

Paul Shechtman described federal plea agreements in New York which require waivers by the defendant of either impeachment and/or all exculpatory information. These plea waivers apparently run afoul of the rules just described by Professor Green. Current cases strongly suggest that prosecutors need more education regarding their obligations under Brady, in order to be better able to appreciate the exculpatory value of evidence. We need to reassess Brady, which has been hijacked by the materiality doctrine. The burden now is on the defendant to show materiality. In Brady, Justice Marshall wrote in dissent that the test instead should be harmless error, in which the government has the burden to show that the conviction should not be reversed. The materiality requirement invites courts to preserve convictions, despite poor decisions and poor decision-making processes by prosecutors.

Larry Thompson described a case in Detroit in which the prosecutor made false statements to the Court, and actually was prosecuted himself. Judge Gertner noted that part of the problem here is lack of meaningful remedies. There is professional discipline, but discipline is unlikely.

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NACDL’s 5th Annual Defending the White Collar Case Seminar – “Keynote Address: Lanny A. Breuer, Assistant Attorney General, Criminal Division, U.S. Department of Justice,” Thursday, October 1, 2009

October 1st, 2009

Guest Blogger: Ivan J. Dominguez, Assistant Director of Public Affairs & Communications, National Association of Criminal Defense Lawyers

Keynote Address: Lanny A. Breuer, Assistant Attorney General, Criminal Division, U.S. Department of Justice*

Assistant Attorney General of the Criminal Division Lanny A. Breuer traveled from Washington, D.C., to deliver a lunchtime address to NACDL’s 5th Annual White Collar Seminar at Fordham Law School in New York City.

Breuer, who was confirmed almost six months ago, repeatedly emphasized his admiration for the professionalism and commitment of career prosecutors. He shared his perspective that, as a general proposition, career law enforcement officials have an “abiding commitment to the highest standards of ethical conduct.” He also told of how he recently returned from Mexico City where he met with a U.S. resident legal adviser and said that it is his goal to meet all resident legal adviserss around the world.

The focus of his talk was an overview of some of the DOJ’s, and specifically the Criminal Division’s, law enforcement priorities, stating that “the risks we face from white collar criminals have never been greater.” This is so, he said, because of the ever-growing sophistication of white collar criminals combined with a financial intervention by the government “on a massive scale…unparalleled in our history.” “We’ve already seen egregious instances of fraud and abuse on the road to [economic] recovery,” he said.

Breuer specifically identified the “unprecedented amounts” that Congress has made available to facilitate recovery as giving rise to the government’s focus here. Indeed, he further explained that Congress has expressed its concern that government be vigilant as it guards against those who would take advantage of the $787 billion American Recovery and Reinvestment Act. In order to accomplish its goals in the face of these challenges, Breuer explained that his mantra is that the Department be “smart, nimble and focused” in fighting white collar crime. Specifically, throughout his speech he emphasized (i) the importance of interagency cooperation and collaboration and (ii) the value of using vast storehouses of data to drive the Department’s work.

Breuer also individually explored the following “white collar crime priorities”: health care fraud, financial fraud (including mortgage fraud) and public corruption.

On the topic of health care fraud, which he called “particularly severe,” Breuer said that much of the $800 billion dollars per annum that the government spends on Medicare and Medicaid is lost to “waste, fraud and abuse,” which he estimated at a minimum of 3% of those expenditures. In this context, interagency efforts are being pursued in what he characterized as an “innovative, data driven approach.” For example, pointing to multiple recent indictments in Detroit, Mich., he said that government investigation is driven by data such as information about which geographic areas have higher Medicare billing. He promised that such enforcement action will be spreading to new cities, explaining that government data shows that Medicare billings go down after the strike force goes into cities.

“Nowhere do you see [interagency] collaboration as much as in [financial fraud] arena,” Breuer said. In the area of mortgage fraud, he said that the Department is focused on those exploiting the most vulnerable homeowners among us.” He pointed to the National Mortgage Fraud team’s access to a “warehouse” of FBI data to aid in their work, explaining that the team at the FBI has developed sophisticated techniques with the data and that law enforcement is using this intelligence to combat mortgage fraud in “a very targeted” way.

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NACDL’s 5th Annual Defending the White Collar Case Seminar – “Cyberspace – The Black Hole Where Ethics, Strategy, and Technology Collide,” Thursday, October 1, 2009

October 1st, 2009

Guest Blogger: Cynthia Hujar Orr, President, National Association of Criminal Defense Lawyers

Panel Moderator: Gerald Goldstein

Panelists: 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.

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NACDL’s 5th Annual Defending the White Collar Case Seminar – “Pay to Play – The Current Wave of Public Corruption Cases,” Thursday, October 1, 2009

October 1st, 2009

Guest Blogger: Linda Friedman Ramirez, P.A. (Tampa St. Petersburg, FL)

Panel Moderator: Abbe David Lowell

Panelists: Robert Trout, Karen Patton Seymour, Reid Weingarten, and Edward Genson

NACDL's 5th Annual White Collar Crime Conference kicked off today with the Pay to Play
panelists jumping into a thorough discussion of the key issues in the
defense of a public corruption case via a hypothetical created by panel
moderator Abbe Lowell.

Quick Overview of the Hypothetical – Alice Adams, the Democrat Maryland
Speaker of the House, is also a civil attorney. Her firm Murphy andSchaeffer also has a lobbying practice. Her Chief of Staff Bruce Bannon is an attorney in private practice but has no office. Funhouse hires Murphy and Schaeffer
to promote gambling legislation in Maryland. Alice earns a percentage
of her law firms fees. She introduces and fast tracks legislation to
legalize gambling. In an ethics form regarding outside employment, she
discloses Murphy andSchaeffer but does not discuss specific clients. Funhouse CEO also hires Bannon
for personal estate planning work and essentially pays him $50,000 for
a will. There is a federal and state joint investigation and grand jury
subpoenas are issued for records investigating allegations of bribe,
theft of honest services, and wire fraud.

The panel agreed that attorneys are needed for all individuals and
entities subpoenaed. The first question is whether joint defense
agreements are more problematic than helpful. There seemed to be a
consensus that there might be some benefits, particularly when working
with attorneys with whom there has been no prior experience or quirky
clients, but most panelists expressed reservations about their use.

Next up – the panelists discussed the subpoena for records relating
to the legislative process and the Speech and Debate privilege. Who
asserts? The panel propounded on the importance of collaboration
between the attorney for Alice and the attorney for House. Also, how to
handle keeping back documents that may be privileged and the concept of
using a privilege log? TheDOJ’s view of the Speech and Debate clause is in a great deal of flux, and DOJ’s view has changed radically. Further, if it is a federal subpoena does this change anything? And how does the counsel for Funhouse
handle its own subpoena? The four panelists explored the issues
relevant to subpoenas for contribution records and the intersection
with the First Amendment.

Another important issue for practitioners is how to respond to precharge
or pretrial publicity in high profile cases, including responding to
questions by investigative reporters. Clients often have a strong
desire to speak to the public. Different responses from the panelists:
give clients a limited script; have the attorney act as spokesperson —
though that raises the concern for attorneys of moving into the realm
of public relations; hiring surrogates.

Also, what happens if a client wants to make his case to the
prosecutor? Is this a good strategy? Of course the most important
issues are whether the facts are sufficient for a prosecution pursuant
to 18 U.S.C. 1346? Is conflict of interest + non-disclosure enough
under this statute? This was the meat of the panel and the discussion
was exciting and demonstrated the knowledge of the panel. Also,
Moderator Abbe Lowell injected into the discussion 18 U.S.C. 666, which
is the jurisdictional statute for prosecution of offenses committed by
state public officials and the requirement of a connection with the
receipt of federal funds 18 U.S.C 666 (b).

By the close of the panel it was clear that an hour and a half was not nearly enough time to explore this topic!

(lfr)
Vanderbilt Criminal Justice Program

September 22nd, 2009

Vanderbilt University Law School now has a Criminal Justice Program, directed by Professor Christopher Slobogin.   The Program sponsored its first Roundtable on September 11 & 12 of this year.   Participants included Douglas Berman (Ohio State), Stephanos Bibas (Pennsylvania), Dan Kahan (Yale), Tracey Meares (Yale), Joan Petersilia (Stanford), Kevin Reitz (Minnesota), Daniel Richman (Columbia), David Sklansky (Berkeley), Kate Stith (Yale), Robert Weisberg (Stanford).   Also participating were members of Vanderbilt’s criminal justice faculty, including Slobogin, Nancy King, Ed Rubin, Nita Farahany, Terry Maroney, Robert Mikos, Alistair Newbern (Director, Appellate Litigation Clinic), Yolanda Redero (Director, Domestic Violence Clinic) and Susan Kay (Director, Criminal Clinic).

    Six papers were introduced by discussants, followed by comments from the paper’s author and reaction by the rest of the participants. The featured papers were Tracey Meares & Bernard Harcourt, Randomization and the Fourth Amendment (discussant: Slobogin); David Sklansky, Hearsay’s Last Hurrah (discussant: Richman); Dan Kahan, Who Perceives What, and Why, in “Acquaintance Rape” Cases? An Experimental Investigation of Culture, Cognition, and Consent (discussant: Weisberg); Doug Berman, Can Checks and Balances, Penumbras and Footnote 4 Improve Eighth Amendment Jurisprudence (discussant: Mikos); Stephanos Bibas, Alternatives to Imprisonment (discussant: Stith); Kevin Reitz , The Illusion of Proportionality: Desert and Repeat Offenders (discussant: King).

    On January 29 and 30, 2010, Vanderbilt’s Criminal Justice Program will be sponsoring a Roundtable for faculty who are early in their careers.   In addition to Vanderbilt’s criminal justice faculty, participants will include Laura Appelman (Willamette), Josh Bowers (Virginia), Eve Brensike (Michigan), Samuel Buell (Washington University), Bennett Capers (Hofstra), Roger Fairfax (George Washington), Barbara Fedders (North Carolina), Lea Johnston (Florida), Erin Murphy (Berkeley), James J. Prescott (Michigan), and Alice Ristroph (Seton Hall).

   Other projects, past and future, of Vanderbilt’s Criminal Justice Program include initiation last March of a Juvenile Justice Colloquium, composed of academics, practitioners and government officials from the Nashville area, and partial sponsorship of a visit this November by the United States Court of Appeals for the Armed Forces, which will hear oral arguments at the school in a criminal case involving a privilege issue. Additionally, this spring four members of the Program, Farahany, King, Mikos and Slobogin, will teach a short course on “Sentencing, Corrections, and Punishment,” which will cover theories of criminal punishment, the relationship between sentencing and actual harms, guidelines sentencing, collateral consequences of convictions (e.g. deportation, disenfranchisement, and forfeiture), probation, state regulation of incarceration (e.g., good-time credits, supervised release, parole, mandatory and discretionary release sentencing systems), and innovations in punishment (e.g. preventive detention, sexual predator statutes, "dangerous offender" statutes, notification, monitoring, mental health courts, drug courts, habitual offender statutes, shaming penalties). One goal of the course is to develop materials that might be used in a sentencing component to the first year criminal law course, on the theory that a grasp of the nature and scope criminal sanctions and their alternatives is crucial to understanding the theory and current practice of criminal law.
Conferences

September 20th, 2009

ABA – Second Annual Sentencing Advocacy, Practice and Reform Institute – November 6, Washington, D.C. – Download 2009fallconference

ABA – Fourth Annual National Institute on Securities Fraud – October 15-16, Washington D.C. here

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NACDL Summer Series – The Use of Classified Information in White Collar Cases

September 15th, 2009

The last of its summer series, NACDL with Joshua Dratel, Abbe Lowell & Ed MacMahon, Jr this Wed., September 16th on - "The Strategy of Secrets: The Use of Classified Information in White Collar Cases."

Program Summary:

The Classified Information Procedures Act (CIPA) establishes detailed procedures for “matters relating to classified information that may arise in connection” with a prosecution. In today’s world, the use of evidence the government would rather keep secret has started to, and will continue to, seep into a wide range of federal criminal prosecutions. Our panel of highly experienced white collar defenders will provide strategic guidance in how to respond when the government claims the evidence in your case is classified as well as when a defender might use CIPA to their own advantage for affirmative discovery.

Details – CLE Program: 5:00 – 7:00 pm
Wine & Cheese Reception with the Panelists: 7:00 – 7:30 pm

Costs and RSVP see here

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Upcoming Conferences

September 9th, 2009

ABA – Foreign Evidence: Collecting It and Protecting It – Washington, D.C. – Sept. 17, 2009 – Download Foreign Evidence Invitation

ABA – Second Annual Sentencing Advocacy, Practice and Reform Institute With Special Focus on Reentry – Washington, D.C. – November 6, 2009 – here

NACDL – Defending White Collar Crimes – October 1-2, NY – here

American Conference Institute, Foreign Corrupt Practices Act (FCPA) – November 17-18, 2009 – Washington, D.C. here ($200 discount to blog readers when they reference discount code "White Collar Crime."

American Conference Institute, Financial Institution Fraud Enforcement & Financial Recovery – November 16-17, 2009 – Washington, D.C. here [$400 discount off the standard price (for a price of $1795 – no expiration) when they reference discount code "White Collar Fraud"]

ABA - 4th Annual National Institute on Securities Fraud – October 15-16, Washington, D.C. – Download CEN9SFR FINAL BROCHURE 929032_R5

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