White-Collar Crime

It would be hard to overstate the importance of Riley v. California. Now data on cell phones (and, hopefully soon, other electronic media) requires a search warrant for law enforcement to get access to it during an arrest (generally — check your individual situation; exceptions may apply).

It’s so hard to overstate the importance of Riley that I don’t think a single media outlet has done it yet (which is really saying something in light of the current state of Supreme Court coverage).

As you may dimly remember from the criminal procedure class you took in law school, the “search incident to arrest” doctrine is a little screwy and subject to abuse. The general rule is that police can search things on your person or in the area of your arrest to make sure you don’t destroy evidence or hurt them, but nothing else. Later cases have held that the area you can reach while you’re being arrested (where you could destroy evidence or find something to hurt the police) includes the entire interior area of your car, regardless of how far you can reach or how wedged under the seat cushions that currency counterfeiting machine is.

This body of law is a lovely example of how pro-law enforcement results drive any reasonable understanding of how a test should be applied. Reading these cases in law school is a formatively disheartening experience (“really, that’s the kind of junk judges come up with? Why have laws at all?” etc.).

Riley, though, draws a line around your phone. Sure — the police can look into your pocket to see if that square box is a cell phone or a detonating device, and they can look in the back of your van to see if you could have reached a butterfly knife if you had a 20-foot arm span — but they can’t look inside the phone without first getting a warrant.

Of course, the Court could have decided this in a few ways. It could have written a very narrow doctrinal opinion. Or it could have issued a deeply divided set of opinions where there isn’t a clear statement about the development of the law as much as a resolution of one case. But, instead, the Court issued a 9-0 decision, authored by the Chief Justice, which was a celebration of the importance of electronic privacy and recognizes that we’re in a new world — and need new rules to handle it….

double red triangle arrows Continue reading “Search Warrants To ISPs, The Supreme Court, And Electronic Privacy”

There’s a curious case making the rounds today involving a top law school, its LL.M. program, and a convicted con man.

Mauricio Celis was convicted in 2009 for pretending to be a lawyer in Texas. Celis said that he was barred in Mexico but authorities contended that he was not, though Celis maintains his innocence.

In any event, after his conviction for unauthorized practice of law, he went to get an LL.M. After he enrolled, paid money, and spent months in the program, the school found out about his conviction and expelled him before graduation. After expulsion, Celis essentially filed an Adam Sandler-style lawsuit against the school, arguing that this was news that could have been brought to his attention yesterday.

While most of the internet is reacting with antipathy towards Celis, I’m going to defend the man. If schools weren’t so desperate to cash in on foreigners through expensive LL.M programs, they might have noticed the easily available public information about Celis’s past…

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As Lincoln said, “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”

It’s a familiar enough idea. You see it in both Macbeth and the genesis story of just about every Marvel supervillan. It’s true, I think, not just of people but also of institutions. Like governments.

Just about every time I go to federal court for a sentencing hearing — where it seems the AUSA is fighting for each additional month in prison like it will take a point off his mortgage — I think about this quote from Nietzsche:

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Zach Warren

Back in March, we wrote the following about Zachary Warren, the young lawyer hit with criminal charges arising out of his post-college, pre-law-school employment at Dewey & LeBoeuf: “we’ve heard rumors that in the coming weeks the DA’s office will show more of its hand — in ways that could materially affect our perception of Zach Warren. We reserve the right to change our opinion of him after additional facts emerge.”

Now some additional facts (or at least allegations) have emerged. As we noted in Morning Docket, the Manhattan District Attorney’s office just laid more of its cards on the table, in opposing Warren’s motion to have his trial severed from that of his more notorious co-defendants.

We have a copy of the government’s opposition. What revelations does it contain?

double red triangle arrows Continue reading “New And Juicy Details Of Zachary Warren’s Alleged Role In The Dewey Debacle”

Good bye, sweet Generalist. We hardly knew ye.

I’m a white-collar criminal defense lawyer. I love it. There are times when I think that I’ve won the work lottery. Yet, in this column, I’m going to complain about it.

Normally, I think that being a white-collar defense lawyer means that I represent folks who are under investigation by the Department of Justice, a law enforcement agency that would refer a case to the Department of Justice, or a regulator like the SEC, CFTC, or Office of Inspector General (in some situations — OIG’s both handle debarment and developing a case for DOJ).

But sometimes I’ll do other kinds of work too. Recently, I’ve represented clients in civil litigation. I’ve represented clients in arbitrations. And I’ve negotiated resolutions of disputes where litigation is looming but not yet happening. I’ve gotten really good results for clients in these kinds of cases (and, like any lawyer, I’ve had some cases break bad too). I like to think that if a case comes in that presents a relatively sophisticated litigation problem that doesn’t require a specialist (think of an ERISA case) I would consider doing it. And there are other lawyers in my firm who, to be sure, do primarily civil work.

But, despite that, I identify myself as a white-collar defense lawyer.

Sometimes, even though a potential client is exactly the kind of person I want to represent, presenting myself or being known as a white-collar defense lawyer is a problem.

When is that?

double red triangle arrows Continue reading “The Downside To A Professional Identity; Or The Demise Of The Litigation Generalist”

In the past few columns, I’ve talked about the reasons why white-collar trials are hard in federal court. So few of them go to trial and, of those that go to trial, so few have a win for the defense. One reason is how people accused of crimes are treated as witnesses and Rule 608(b). Another reason is that, especially in white-collar cases it seems, folks who are later accused of crimes are chatty with agents, and that seemingly never fails to break bad.

Another reason is that lots of folks cooperate with the government. When many people realize that there’s going to be someone going to prison (see, e.g., the statistics on plea rates), they reason that they’d rather someone else go to prison instead of them.

Snitches are tricky. Often you don’t know what they’ve said before to the government until late in the game. Their statements are Jencks — so a defense lawyer is supposed to get them, but often federal judges only require that they’re turned over very close to trial.

Snitches are also crafty witnesses….

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Johnny Manziel (By: Thomas Campbell-USA TODAY Sports)

* Sad day for Jonathan Lee Riches. His lawsuit over Johnny Manziel’s penis has been thrown out of court. [Black Sports Online]

* Hot on the heels of yesterday’s item about SCOTUS porn parties, Professor Tribe guest blogs about his new book (affiliate link) and coercion, bribery, and influence. [The Volokh Conspiracy / Washington Post]

* Former Brooklyn DA and aspiring TV star Charles Hynes is staring down larceny accusations. [Gothamist]

* Texas basically assigns a cop to actively discourage investigate indigent parties seeking assigned counsel. [Socialist Gumshoe]

* The Supreme Court doesn’t like talking about patents — its opinions on the subject are getting shorter and shorter. [Patently-O]

* A lawyer is in hot water for allowing underaged drinking at a post prom party. The point was to keep the kids from driving. But no good deed goes unpunished. [Turn to 10]

* An interesting profile of one of my favorite professors, Ken Feinberg, labeling him “the lawyer who decides what a life is worth.” Yikes. [KDVR]

* The business strategy of just telling clients what they want to hear deflates. [Dealbreaker]

* Who says no one reads law reviews? The porn industry does and they really like this student Note. [XBiz]

* This is why we can’t have nice things. Second Circuit explains that if a revolving door agency of sycophants says it’s OK, it’s OK. Full opinion below…. [New York Times]

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Now that Patton Boggs is safely in the hands of Squire Sanders — minus a few notable defectors, such as Ben Ginsberg’s high-profile election-law team, which is leaving for Jones Day — observers of Biglaw are looking around for other possible trouble spots. And some of them are focusing on Bingham McCutchen.

Back in February, we covered some less-than-positive developments at Bingham: “tumbling profits, partner departures, and unfortunately timed staff layoffs.” What has happened since then?

As we mentioned earlier today, partner departures continue at the firm. Who are the latest partners to leave Bingham, and where are they going?

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Last month, I wrote about the Department of Justice’s case against Nicholas Slatten, a Blackwater employee who was being prosecuted — along with other members of Blackwater’s Raven 23 team — for a shooting incident in Iraq.

As one FBI Agent is reported to have described it, the shooting was “[t]he My Lai massacre of Iraq.”

That’s a really good sound bite. Nice work FBI!

DOJ brought charges based on the shooting against Slatten, which were dismissed by the court because, basically, DOJ failed to notice that the statute of limitations was running against Slatten after a dismissal of his case.

As the New York Times recently described it,

the government suffered another self-inflicted setback in April when a federal appeals court ruled that the prosecution had missed a deadline and allowed the statute of limitations to expire against a second contractor, Nicholas A. Slatten, a former Army sniper from Tennessee who investigators believe fired the first shots in Nisour Square. A judge then dismissed the case against Mr. Slatten.

(for more on this, see last month’s column on the case)

And, of course, the legal fire fight continues . . .

double red triangle arrows Continue reading “A Vindictive Prosecution Motion in the Continuing Saga of Nicholas Slatten”

Dinesh D’Souza pleaded guilty to a charge related to illegal campaign contributions in Manhattan federal court on Tuesday. D’Souza, a conservative commentator, Reagan White House policy adviser, and Christian apologist, is widely known for his documentary film 2016: Obama’s America. D’Souza faces up to sixteen months in prison. Sentencing is scheduled for September 23.

The case involved D’Souza’s use of “straw donors” when his own campaign contributions reached their legal limit. He encouraged two people close to him to each donate to the 2012 U.S. Senate campaign of his friend, Wendy Long. D’Souza promised to reimburse them for the donations. According to a press release by the Department of Justice, “Later that same day or the next day, D’SOUZA, as promised, reimbursed the Straw Donors $10,000 each in cash for the contributions.”

D’Souza’s defenders and critics can apparently agree on several points:

(1) D’Souza committed the crime.
(2) D’Souza committed the crime in an astonishingly ham-fisted way. (There’s nothing sly about handing over cash the day after a conversation like that. D’Souza might as well have delivered the money in a box marked “Campaign Finance Law Violation.”)
(3) The government is making an example of him.

What each side means by “making an example of him” is what makes this case more interesting . . . .

double red triangle arrows Continue reading “Selective Prosecution Or Equal Justice: What Kind Of Example Does Dinesh D’Souza Set?”

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