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Practice Notes: First Circuit Cases Yield White Collar Rulings on Materiality and Upward Variance/Departure
Two white collar decisions emerged last week from the First Circuit, both related to the Rwandan genocide. United States v. Kantengwa reinforces an old truth for white collar practitioners. If you don't win on materiality at trial, you are totally screwed on appeal. According to the First Circuit, the appellant was "a member of a prominent political family allegedly
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Second Circuit Clarifies Nature of Deliberation Under Guidelines Section 2A6.1(b)(6)
Christine Wright-Darrisaw was found guilty of threatening the President under 18 U.S. Code Section 871(a). Ms. Wright-Darrisaw experienced a negative result in her local Family Court. She called the White House switchboard and, after two and one-half minutes of incoherent barnyard gibbersih, threatened to fornicate and kill President Obama. She was entitled to a four
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“Should the Medium Affect the Message? Legal and Ethical Implications of Prosecutors Reading Inmate-Attorney Email”
New Student Note – Brandon P. Ruben (Fordham) – here Abstract: The attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or
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More on Yates: Fish and Overcriminalization
Co-blogger Solomon Wisenberg's post on today's Supreme Court decision in Yates v. United States highlights the plurality opinion that focuses on a straight statutory interpretation analysis. But there is an interesting and important note in the dissent that is worth mentioning. In Part III of the dissent it states, "That brings to the surface the
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You Must Remember This. A Fish Is Just A Fish.
The U.S. Supreme Court has rendered its opinion in Yates v. United States. A fish is still a fish, but it is not a tangible object under 18 U.S.C. Section 1519, which was passed as part of the Sarbanes-Oxley Act. Under Section 1519: Whoever knowingly alters, destroys, mutilates, conceals, covers-up, falsifies, or makes a false entry in
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The Kroll Report on UT-Austin and the Limits of Internal Investigations
Any internal white collar invesitgation is limited by the nature and scope of the investigation and the power of the entity conducting it. And those are just the tangible, objective limiting factors. Are you reporting to the Audit Committee or directly to the Board? Does your law firm (or audit firm or private investigation firm) have other business, or
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More Information Regarding the Proposed Amendments to the Fraud Guidelines
There has been much talk recently regarding Section 2B1.1 of the Federal Sentencing Guidelines, commonly referred to as the Fraud Guidelines. Earlier this year, I noted in a post that the American Bar Association had issued a report calling on the Sentencing Commission to revise Section 2B1.1. Specifically, this report contained a number of suggestions
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New York State Assembly Speaker Sheldon Silver Faces Federal Fraud Charges
The New York Times has the story, with a link to the criminal complaint, here. U.S. Attorney Preet Bharara followed his longstanding tradition of holding a press conference in order to make inflammatory, prejudicial, and improper public comments about the case. (wisenberg)
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Australian Bank Bill Swap Rate Investigation Continues
For more than a year now, the Australian Securities and Investments Commission has been investigating a number of large Australian banks regarding allegations of collusion in the setting of the Bank Bill Swap Rate (BBSR). The BBSR is an interest rate benchmark that is used when banks lend to one another. This rate also impacts
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Ninth Circuit Rules That Ineffective Assistance of Counsel is Not a Mitigating Sentencing Factor
The case is United States v. Dibe. Claudio Dibe pled guilty, without a plea agreement, to wire fraud and received a below Guidelines sentence. He complained on appeal that his sentence would have been lower if the sentencing court had considered his counsel's ineffective assistance in failing to adequately explain the benefits of the government's initial plea
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