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

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.

double red triangle arrows Continue reading “Long Nights at the ABA White Collar Crime Conference”

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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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.

double red triangle arrows Continue reading “Unsealing The Trial Penalty?”

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.

double red triangle arrows Continue reading “Prison, Federalizing State Crime, And Drones — All That And More In The Inspector General’s Year-End Memo”

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