Matt Kaiser

Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. He can be reached at mattkaiser@thekaiserlawfirm.

Posts by Matt Kaiser

For a guy who hasn’t done much in the last few weeks but go to Vegas, Chris Christie’s past and future has gotten a lot of attention this week.

Ryan Lizza has a long piece in the New Yorker about Christie that is not terribly dissimilar in conclusion than Joe Patrice’s prior Christie observations on these pages. Lizza’s piece starts with a description of a roast of Lat’s former boss, where, among other zingers,

a New Jersey judge turned comedian, noted, “It really is an honor to be standing next to what could be the next President of the—.” He shuffled some papers on the lectern. “I’m sorry, these are the wrong notes. I’m doing a roast next week with Jeb Bush.”

Ouch.

More damning, though, and more relevant to this column, is Jeff Smith’s piece over at Politico – “Chris Christie is Toast.” (incidentally, Joy Behar makes the same bread-based observation about Christie in Lizza’s piece).

Jeff Smith is an interesting guy to write that article. The former Wunderkind of Missouri Democratic politics was brought down by a federal investigation into campaign finance problems that ultimately landed him in a federal prison.

So, why might one think that Christie is toast?

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Zachary Warren

Recently, Lat suggested that it wouldn’t have been worth it for Zachary Warren to hire a lawyer early in the Dewey investigation. As Lat frames the question, “How much could a lawyer have helped?”

Now that we know a little more about the case — especially the identities of the Secret Seven — let’s think about whether Warren could have benefited from hiring counsel early. And, more generally, what benefit anyone gets who is in a white-collar investigation from hiring a lawyer early.

We know that Warren was concerned about money (as most folks are). The reasonable question is what Warren would get with the money he’d spend on a lawyer.

Of course, there are no certainties — hiring a lawyer in a white-collar case, like in most litigation matters, is a little like buying a lottery ticket. How much does your spend on counsel change the odds in your favor?

So, what are the odds that a good lawyer could have made a difference?

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Here’s a sentence from a recent Seventh Circuit opinion:

[T]his case shows every sign of being an overzealous prosecution for a technical violation of a criminal regulatory statute — the kind of rigid and severe exercise of law-enforcement discretion that would make Inspector Javert proud.

This was a sentence from the dissent.

Amazingly, though, the majority voted to reverse the conviction. Judge Sykes, who authored the dissent, would have affirmed the conviction — though, presumably, not because she thinks a Javert-like prosecution is a model that the Department of Justice ought to aspire to.

It’s an odd day when such strong language appears in an opinion that supports a court of appeals affirming a district court decision. And this case, United States v. Abair, is odd. (And thank you, Professor Volokh, for pointing the case out!)

Why is the case odd?

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The indictment of Zachary Warren is troubling for a lot of lawyers because, well, he seems like one of us. His post-Dewey path to a great law school, two cool clerkships, and an offer from a great law firm, is something we, as lawyers, can identify with.

What’s most frustrating about Zachary Warren’s situation is that it looks like he was charged largely because he decided to talk to law enforcement without hiring a lawyer first.

Most of us would like to think that, as lawyers, we’re smart enough to make the right legal moves if we’re in a place where we need to. Yet Warren talked to law enforcement, when most of us know that’s the wrong move (and, if you don’t know that’s the wrong move, there’s a short video on my firm’s webpage explaining how we look at it). What’s up with that?

As Lat mentioned earlier this week, there’s a dispute about what happened. Some of Warren’s friends say he was essentially duped about his status or the nature of the interview he participated in. The Manhattan D.A. has pushed back, through spokeswoman Erin Duggan Kramer: “The facts [in this New York Times piece] are incorrect. The claim that an attorney with a federal clerkship could have any misunderstanding of what it means to speak with and agree to meet with the D.A.’s office is preposterous.”

Kramer’s point makes seems intuitively compelling. Why would a smart lawyer talk?

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There are so many interesting parts of the Dewey criminal charges, it’s hard to count them all.

For starters, there are the emails laid out by the SEC in its complaint, such as:

  • “I don’t see how we’ll get past the auditors another year.”
  • “I assume you [k]new this but just in case. Can you find another clueless auditor for next year?”
  • “I don’t know anything about [the contracts] and I don’t want to cook the books anymore. We need to stop doing that.”
  • “I don’t know. He’s starting to wig a little. Maybe he’s hearing and seeing too much . . . .”

Sadly for people and happily for prosecutors, regrettable emails are simply a fact of modern electronic life. Still, “I don’t want to cook the books anymore” has to be pretty high on the list of things that one is likely to regret putting in an email.

(These emails, and more, are collected in the Bloomberg piece by Matt Levine wonderfully titled “Law Firm Accountants Were Bad at Accounting, Law.”)

But, probably more interesting than these regrettable emails is what the Dewey prosecution can tell us about white-collar prosecutions in New York more generally….

double red triangle arrows Continue reading “Dewey Know Why The D.A., And Not The U.S.A.O., Is Going After Folks From This Former Firm?”

I pity lawyers licensed in Virginia, or at other states that require CLE credit. When they go to a conference, they have to actually go to the conference.

For the rest of us, a conference – especially the ABA’s white-collar criminal defense conference – drops much of the pretense of being an educational experience. It’s an odd thing. One would think that the point of going to a conference would be to learn about the law. Yet, sometimes that’s not the move.

I spent some wonderful years in my 20s living in New Orleans. During Mardi Gras, social obligation would require that I attend certain parties before and then after a parade, but they often started really early in the morning and ended very late at night. The entire week before Fat Tuesday became something of a Bataan Death March of merriment, which, when you’re in the middle of it, is not quite so merry after all.

(Relatedly, there’s now a service in New Orleans that will give you an IV of fluids if you happen to have been making merry too much. Gotta love entrepreneurship.)

Aside from the poor schlubs who have to go to the conference to satisfy a state bar that they’re continuing to learn about their profession, laissez les bon temps rouler.

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The biggest business issue confronting the white-collar criminal practitioner is getting paid. It’s trickier in the white-collar world than in other practice areas for a few reasons.

First, normally you’re representing an individual. People normally have less money than companies.

Second, many people who commit crimes to get money do it because they don’t have money to begin with. That includes money to pay you.

Third, if a potential client made money through whatever conduct landed them in a criminal case, the Supreme Court just held that now it’s easier for the government to take that money away from them so they can’t pay you.

As the Chief Justice summarized what the Court did, in dissent,

We have held… that the Government may effectively remove a defendant’s primary weapon of defense — the attorney he selects and trusts — by freezing assets he needs to pay his lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an oppor­tunity to challenge the Government’s decision to freeze those needed assets.

WTF?

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I’ve represented a decent number of people who have been accused of fraud.

Some folks who are accused of fraud are really truly unambiguously guilty. They were presented with an open cookie jar, they thought no one was looking, and they took a cookie (metaphorically). They were presented with a morality test and they just didn’t pass.

Like Glenn Frey teaches us in Smuggler’s Blues, “It’s the lure of easy money; it’s got a very strong appeal.”

Other cases have a lot more nuance.

Most federal prosecutors, I find, tend to see cases as not terribly nuanced. They tend to think that each case is a morality test. Once you get the facts figured out, for the typical AUSA, the moral judgments follow pretty quickly.

My sense, though, is that the world is almost always less clear and clean, even when you have all the facts.

With that background, I read with interest James Surowiecki’s piece — “Do the Hustle” — in the New Yorker a few weeks ago about America and its con men.  (And, yeah, I know, it was a few weeks ago. You finish the New Yorker right when it comes out? I didn’t think so.).

What does the con man tell us about America?

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Most of the Eastern Seaboard is buried under a snowstorm today. Yet, a deeper, harder freeze is finally lifting.

For too long now, the federal government has been living with sequestration. Agencies have seen their budgets frozen or cut. At the same time that the private sector market for lawyers has contracted, getting a job as a lawyer in the federal government has been incredibly hard. It’s been winter in the federal employment world.

And, this week, the Department of Justice has announced that the DOJ hiring freeze is finally over.

This news was so important that the Attorney General himself made the announcement in a video message on the DOJ webpage. (And, by the way, check out the Attorney General’s tie. Very nice.)

The hiring freeze has lifted as a result of a two-year budget deal that President Obama signed in December.

What does this mean for the legal world? More after the jump…

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It’s tricky to be a lawyer these days.

You have to get clients. You have to know how to help them with their legal needs.

You have to know the law, and know how to work appropriately with other lawyers (the ones who have interests aligned with your clients, adverse to your clients, and in that funny other space where you aren’t really sure yet).

And, at some point in your career, you also have to figure out how to get someone to pay you for doing this work for your clients.

If you’re trying to build a white-collar practice, it can be daunting to figure out how to do these things. Happily, there are a few places that can help (with the knowing the law, helping clients with their legal needs, and knowing how to work with other lawyers problems – the getting clients and getting paid problems less so).

Perhaps you also have a strong pressing need to go out of town where you can have all the fun of both missing your family and increasing the chance that you’ll be attacked by bedbugs.

If so, you’re in luck! The white-collar world has not one, but two great conferences (and one of them is coming up soon).

My take on which are the must-attend conferences of the white-collar world is after the jump.

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