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

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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It’s a lamentable fact that very few white-collar cases in federal court go to trial. Most plead. Many of those that plead also involve someone providing evidence to the government against someone else; the people involved cooperate (or flip, or snitch, depending on who is talking about what happened).

White-collar cases, at least after an indictment, are often litigated with an eye toward the sentence that will come out at the end. And, with significant sentences in white-collar cases, that makes sense.

Most people plead rather than go to trial because a plea generally locks in some certainty about what will happen at sentencing. (True, in a world where the sentencing guidelines are discretionary, a judge may have a lot of power to decide a sentence that defeats a party’s expectations, but, generally, either by creative use of a statutory maximum — the government agreeing to make certain recommendations — or the simple fact that pleading guilty is a recognition that you aren’t going to spend a lot of the judge’s time sitting in trial, a plea can give a reason to think that the sentence at the end of the case will be lower. Though, of course, there’s always a Madoff exception.)

The flip side, of course, is that there’s a penalty for folks who decide that they would like to go to trial. Indeed, a recent report said that it’s a huge problem in drug cases.

And, on the trial penalty, there is some very interesting litigation in the federal courthouse in DC right now.

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Probably the most interesting question in white-collar crime these days is why there were no prosecutions arising out of the financial meltdown a few years ago.

As with most interesting questions, there are two polarized sides — one side wants to take up pitchforks and torches and head to Wall Street now, and the other side thinks that perhaps we should be a bit more circumspect about throwing people in prison (from that description, you can probably guess which side I’m on).

Judge Rakoff — a man we should all listen to one almost any subject — has weighed in with a thoughtful piece in the New York Review of Books called “The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?

How does Judge Rakoff answer the question?

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The Wolf of Wall Street, by Martin Scorsese and starring Leonardo DiCaprio, is out, and is the story of the rise and fall of Jordan Belfort, a stockbroker who, if the movie is to be believed (and maybe it mainly should be, including the dwarf tossing) built a fabulously successful and fundamentally corrupt trading firm, then was indicted, then went to federal prison and cooperated against two dozen of his friends and co-conspirators.

The film has been criticized for glorifying fraud and being dangerous — a “reckless attempt at continuing to pretend that these sorts of schemes are entertaining” — in a letter by the daughter of someone who went to prison for the stuff in the movie. Apparently traders love it in a creepy and not good way.

DiCaprio responded, saying that Scorsese’s vision is to show characters as they really are and ask “Who am I to judge anybody?” Apparently Pope Francis is contagious.

I don’t think the movie glorifies fraud any more than, say, Macbeth glorifies ambition. It seems like there are some pretty awesome parts to fraud, like you can use fraud to get a lot of money, which you can use to buy cool things. The movie is also frank that there are some serious downsides, like you can go to prison for committing it.

The film is also a largely accurate portrayal of the reality of a lot of white-collar practice.

Here’s how . . 

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Christmas came early for folks who are skeptical about the Department of Justice and how it does business.

Michael Horowitz, the Inspector General at the Department of Justice, issued a memorandum to the Attorney General listing his office’s view of the “Top Management and Performance Challenges Facing the Department of Justice.”

Whether you’re someone with a political axe to grind against a Department of Justice run under a Democratic President, a libertarian who simply doesn’t like the government doing much of anything, or someone in the trenches of the criminal justice system who wants to see the guts of the Department of Justice on display, there’s something for everyone to like in the IG’s memo.

And, of course, the IG’s memo is, institutionally, a bit odd. One would think that Eric Holder, the Attorney General, would be the guy issuing memos about the top issues facing the Department of Justice. But, happily, we have the IG — pulling up the dark parts of the Department and bringing them to the public eye.

So here, just so you don’t have to read it, are the most interesting parts of the Inspector General’s memo for folks in the white-collar world.

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A Washington Post article this past weekend gave me the willies.  It was about SIGTARP – the Special Inspector General for the Troubled Asset Relief Program.

Leave aside that the article hits the tired drum that more people should have gone to prison after the financial crisis – because, of course, the only thing that causes an economic downturn is crime.

Instead, check out how SIGTARP shows us that they’re doing good work as a law enforcement agency.

[Special Inspector General Christy] Romero noted that the average prison sentence imposed by courts for crimes investigated by SIGTARP is five years and nine months — nearly twice the national average for white-collar fraud.

Right – SIGTARP is a serious player because it’s getting serious prison time…

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Ed. note: Matt Kaiser founded The Kaiser Law Firm PLLC, a white-collar boutique in Washington, D.C., and will now be writing a weekly column for us about white-collar practice and his adventures in building a law firm. Matt previously covered the Supreme Court for us. This is the second installment of his new column.

Suppose you’re a fourth-year associate in a litigation department in a large firm on one of the coasts. You’ve worked on a lot of different matters — you’ve done document review for commercial litigation. You put together a privilege log for some patent litigation (who says patent litigation is specialized?). You waded through documents in an FCPA case. You even got to do some deposition digesting for a reinsurance lawsuit!

You really liked your work on the FCPA document review. You noticed that the documents related to a foreign country, which sounded exotic. You could sit in your office, staring at the brick wall on the other side of the alley, and imagine that you were an extra in Casablanca, with a view toward how the world really works overseas.

Perhaps most importantly, you loved how your friends from law school reacted when you told them you were working on an FCPA matter. Cocktail parties became more interesting when people thought of you as a white-collar criminal defense lawyer, rather than the reinsurance guy. You resolved that you’d do more white-collar work and perhaps make this noble practice area the focus of your career.

But how?

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Ed. note: Matt Kaiser founded The Kaiser Law Firm PLLC, a white-collar boutique in Washington, D.C., and will now be writing a weekly column for us about white-collar practice and his adventures in building a law firm. Matt previously covered the Supreme Court for us. This is the first installment of his new column.

When I meet non-lawyers — a rare and jolting occurrence -– or talk to lawyers who don’t practice in the white-collar criminal space, I’m frequently surprised at how few of them know what “white-collar criminal defense” means.

Yet, whatever it is, white-collar work is seen as sexy. Just about any fifth-year associate who has reviewed documents as a part of an FCPA investigation has “white-collar criminal defense” listed as a practice area on his firm bio. Fewer, I suspect, have a clear understanding of what white-collar work is.

There are clear cases. The prosecution of John Edwards is classically a white-collar case: it involved campaign finance, was in federal court, was litigated like a civil case, and Abbe Lowell represented the defendant (any case involving Abbe Lowell is per se white-collar).

Then there are the less-clear cases….

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