“Nathan, when you become mayor, I’m gonna be the first volunteer for your security detail.” This was a detective speaking, back when we were an ADA in the Manhattan DA’s office. My office, as usual, had about five cops in it. I liked this detective, and asked how come he...
We’re still waiting to hear how the Supreme Court decides the trio of cases on “honest services” fraud. In the meantime, we’re wondering if yesterday’s Dolan decision might be a harbinger of what’s to come. In Dolan, the Court was dealing with a vague statute. It left out a crucial statement...
In the early days of the War on Terrorism, the Bush administration wanted to know what interrogation techniques were legal. So it asked the DOJ’s Office of Legal Counsel for a memo on what could and could not be done to prisoners. Staff lawyer John Yoo was tasked with doing...
It was a case of very strange bedfellows today at the Supreme Court. The 5-4 decision in Dolan v. U.S. (opinion here) wasn’t split on ideological lines, but on lines of seniority. The majority consisted of the five most junior Justices, while the senior Justices were joined in a solid dissent. ...
It’s hard not to love the recently-retired Justice Souter. A one-of-a-kind individual who writes, not with a computer or even a typewriter, but with a fountain pen. Who never uses email, cell phones or answering machines. Whose home is filled with thousands of books, but no TV. More than that,...
The International Criminal Court came into being almost 8 years ago. It has jurisdiction to prosecute genocide, crimes against humanity, war crimes, and criminal aggression. Well, that is, it has jurisdiction to prosecute those crimes once they’ve been defined. And to date, they haven’t yet come up with a definition...
Extortion is a kind of threat. A threat that’s so bad, it’s criminal. For a threat to be criminal extortion, it needs to be of a kind to make someone do something against his will, that’s adverse to his own interests. Threatening to kill a child if the parents...
There are four Mondays left in June. Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term. That’s about one case per day from now till then. We’re picturing the Justices pulling all-nighters, stacks of...
So yesterday, the Supreme Court ruled 5-4 in Berghuis v. Thompkins (opinion here) that you need to actually tell the cops that you’re invoking your right to remain silent, if you want them to stop asking questions (or at least not be able to use your subsequent responses against you). ...
When we first moved to NYC in 1997, we thought we knew what racial tension was. After all, we’d grown up in various parts of the South and out West, and had seen and heard quite a lot of invidious prejudice. But we hadn’t seen anything, by comparison. We’d seen...
What’s with all the lawyers getting arrested these days, being charged with financial frauds, Ponzi schemes and the like? Is this a new trend? It sure seems like one.
The latest news is the announcement about an hour ago that the SDNY is charging one Kenneth Starr (no, not that one, this one), money manager for a bunch of celebrities, with yet another Ponzi scheme, funnelling $30 million of investors’ money into his own pockets. He’s a lawyer in New York. (You can read the complaint here.)
Then there’s the former law firm partner Michael Margulies, charged the other day with embezzling $2 million from his firm and clients in Minneapolis over the past 16 years. Coincidentally-named lawyer James Margulies of Cleveland was charged the other day in a $60 million stock swindle. A couple of weeks ago, two lawyers were charged with a mortgage-rescue fraud involving stripping $3 million in equity. A lawyer went to prison a little before that for rigging tax-lien auctions.
That’s just a handful of headlines from this month alone. But it’s been going on for several months now. We’ve been noticing lawyers getting charged with increasing frequency ever since last July when Marc Dreier got sentenced to 20 years for hedge fund swindles totaling God knows how many hundreds of millions of dollars. It really kicked into high gear, however, in December, after Scott Rothstein was arrested for a $1.2 billion Ponzi scheme. And now there are several cases being announced every month.
What’s going on here?
Sure, these kinds of schemes tend to get noticed all at once, when the economy goes south, and the market’s gains no longer mask the fraud. So we’re not wondering why all of a sudden there’s a bunch of financial-fraud arrests. Our question is how come so many of these cases involve lawyers.
Has the profession changed? Is it something new about how lawyers are getting more involved as investment managers and financial advisors? Or is there a new focus by law enforcement? We really don’t know.
But it sure looks like something’s going on out there. What do you think?
Lanny Breuer, the DOJ’s Assistant Attorney General for the Criminal Division, gave a speech today announcing a “new era of heightened white-collar crime enforcement — an era marked by increased resources, increased information-sharing, increased cooperation and coordination, and tough penalties for corporations and individuals alike.”
You can read his prepared remarks here. We did, and we find them very troubling.
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“The techniques that have been used historically to go after organized crime or blue-collar crime need to be used at times in white-collar crime, because the American people expect no less.” That’s a quote from Breuer’s speech today.
That ought to scare you. It scares us. We’re going to have mob agents looking at Wall Street with the wrong filter. Bring a shopping bag to a friend’s house? It’s a cash delivery! Share gossip and rumors heard on the street? It’s insider trading!
And how many federal prosecutors really understand the day-to-day nuts and bolts of the financial world? Sure, they’re mostly bright and well-educated, but how many know the lingo? How many know what actually goes on at those long tables, with everyone on the phone and banging away on their keyboards? Considering where federal prosecutors come from, we’re willing to bet it’s not a big number at all.
So agents are going to be interpreting things wrong. And prosecutors are going to be interpreting things wrong. And now they’re just going to be doing it more.
How is that not scary?
There’s a great post today on the New York Criminal Defense blog, explaining the history and proper use of the Bill of Particulars in NY criminal practice. Our readers are encouraged to check it out here.
This has long been a pet peeve of ours. An astounding number of prosecutors just don’t get the concept of a Bill of Particulars in this state. And far too few defense attorneys and judges hold the People to their obligations here.
Which is bizarre, because it’s really quite simple. All the Bill needs to do is specify what facts the People intend to prove which make out the elements of the crimes charged in the indictment, without explaining how the People intend to prove those facts.
For example, a buy-and-bust with stash and cash might have a Bill that states, at such-and-such time and place, “the defendant handed to an undercover police officer two bags containing crack cocaine in exchange for money. Twenty-four bags containing crack cocaine were recovered from the ground where the defendant threw them.” That’s all that’s needed. No mention is required of how the People will prove the stuff is crack, or anything about the money that was recovered, or anything else.
And yet prosecutors keep doing it wrong. We routinely get Bills of Particular that contain nothing more than bare conclusions of law, such as “the defendant sold crack cocaine to a police officer and possessed crack cocaine with the intent to sell it.” Or worse than that, just a recitation of the time, date and location, and an assurance that the indictment contains all the information that is needed.
Failure to provide a sufficient Bill renders the indictment defective. We’re amazed that more defense counsel don’t pursue this aggressively, and educate their judges who may be a little complacent given the lack of rigor by many attorneys.
Once again, we highly recommend this article to our readers. It was written, by the way, by Jill Paperno of the Monroe County Public Defender’s office, so kudos to Jill.
Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.
The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.
Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”
But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.
Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.
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For as long as we’ve been practicing law, everyone has been complaining bitterly about …
The Supreme Court today decided Graham v. Florida, ruling 6-3 that it violates the Eighth Amendment’s Cruel and Unusual Punishment clause to sentence a juvenile offender to life in prison without parole, for a non-homicide crime. This is a hugely significant decision, creating a new precedent in sentencing law (and also forcing Florida to make some law of its own, as it did away with parole a while back).
(Companion case Sullivan v. Florida was dismissed, as certiorari was improvidently granted in light of the Graham decision.)
The opinions are a stirring read. Chief Justice Roberts, in the majority, was in strong opposition against his fellow conservatives Alito, Thomas and Scalia, who dissented. During oral argument, it was clear to observers that Roberts wanted to bring them into the fold and get a unanimous decision that youth deserves a second chance at some point.
Roberts couldn’t get them to agree, which must have been a disappointment to the Chief, who openly aspires to as much unanimity and consensus as possible on his Court. It moved him enough to write a scathing concurring opinion, taking to task the arguments of his conservative brethren.
Kennedy doesn’t let any of the conflict or disappointment show in his majority opinion, which is a balanced and philosophical treatise of the evolution of Cruel and Unusual Punishment law, and well worth reading.
(Had it been up to us, we’d have preferred for the Chief to write an opinion that stays above the fray, and leave it to others to write the criticisms of the dissents. That would free it of any taint of personal feeling.)
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This was really an unexplored territory in American jurisprudence. The Supreme Court has long carved out exceptional …
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