White-Collar Crime

* For all you surprised by LeBron James, let me remind you: Cleveland is all about two non-consecutive stints. [Wikipedia]

* Speaking of basketball, Mitchell Epner takes his talents to CNBC to breakdown the 5 things he learned during the first week of the Donald Sterling trial. [CNBC]

* Who is the Litigator of the Week, per Litigation Daily? It’s Daniel Gitner of Lankler Siffert & Wohl because he became the first lawyer to beat the S.D.N.Y. U.S.A.O. in an insider trading case. Also because he’s awesome. Pardon me while I put on my LSW shirt. [The Litigation Daily (sub. req.)]

* Hey! Take a second to take our latest law firm survey. We really want your feedback on your perception. [Above the Law]

* “5 Reasons the Sleeping Yankees Fan’s Lawyer Should Be Disbarred.” Fair enough. [Internet on Trial]

* Will the EPA’s latest carbon rule survive judicial challenge? I would have said “no” but after Homer City… [Breaking Energy]

* Do blondes make more money? I guess that’s the trade-off with being the focus of revenge porn. [The Careerist / American Lawyer]

* Aereo is back. Sort of. [Comm Law Blog]

* A former Patton partner lost his new job at Pillsbury over the Chevron case. Could anybody have suffered more over this case? Oh, right, all the Ecuadorians. [Legal Times]

* While you weren’t looking, even fewer people took the LSAT. Obviously. [LSAC]

Time Magazine cover boy Preet Bharara

In the federal criminal world, there are certain cases where the government almost always wins.

Illegal reentry for a previously deported person, for example, is pretty close to a lock for a government win — all the government has to show is that the person isn’t a citizen, was previously deported, and is in the United States again. If the dude’s in the courtroom, the government is a third of the way there. For example, in the last fiscal year, there were 20,840 folks charged with illegal reentry.  Four of them were acquitted at trial.

Similarly, bank robbery is a high-percentage game for the government. These days, most banks have amazing technology that lets them record pretty much everyone inside. Last fiscal year, 896 people were charged with bank robbery. One lucky guy was acquitted.

These days, federal law enforcement is using wiretaps and, according to the Wall Street Journal, old-school sting operations, to go build white-collar cases (it’s a pretty cool article — very cloak and dagger). The strategies that got the federal government the conviction rate it has in drug and gun cases are being applied to investment fraud and insider trading cases.

This is one reason that insider trading cases have looked like as much of a layup as a bank robbery case. The U.S. Attorney’s Office in the Southern District of New York has secured a record of 85 convictions in either guilty pleas or trials without a single loss.

Until this week….

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Conspiracy is probably the most charged offense in the federal courts. At core, its elements are simple (generally). A and B have completed the crime of conspiracy if they (1) have an agreement to do something illegal and (2) some co-conspirator committed an overt act in furtherance of the conspiracy. The overt act does not have to be illegal.

So, if Larry says to Doug, “Let’s lie through email to potential investors about how viable our real estate plan is,” then Doug says “That’s a great idea, let’s do it!” and the two put together a letter they would email to potential investors that contains a number of lies about how viable an investment is, they’ve probably conspired to commit wire fraud.

The tricky bit is that the agreement that’s at the core of a conspiracy charge — like many kinds of contracts — can be implied. It’s rare that folks in a conspiracy negotiate the terms of the conspiracy or memorialize it.

So, if Larry and Doug just sit down and work — together — on a letter that lies to investors, one may (depending on the other facts in the case) think that the two have an implied agreement to commit fraud and that they’re guilty of participating in a fraud conspiracy.

The tricky part is when one person says, in essence, it would be really freaking cool to do X (where X is illegal) but doesn’t really mean that she wants to do X.

For example, some people may think that it would be funny to blow a raspberry on Justice Scalia’s belly. But just because Doug tells Larry that it would be cool to blow a raspberry on Justice Scalia’s belly, and Larry then looks up Justice Scalia’s next public appearance, does not necessarily mean that either one of them actually intends to storm Justice Scalia’s security detail just to blow on the Justice’s stomach.

And, of course, a jury is most likely to find that Doug and Larry are guilty the more they’re doing something that the jurors themselves think of as not funny and, in fact, really quite repugnant.

Like kidnapping, killing, and eating women, or trying to foment a jihad….

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* The New York Court of Appeals put the hurt on defunct firms seeking unfinished business fees from former partners who left for greener pastures. Sorry, I didn’t follow ATL protocol: “Dewey think firms should collect unfinished business fees?” [WSJ Law Blog]

* We reported on the Tinder lawsuit yesterday. Here’s a collection of all the messed up texts involved. [Valleywag]

* Facebook’s lawyer is now calling the emotional manipulation study it recently conducted “customer service.” Dear Internet: Despite all your rage, you’re still just rats in a cage. [The Atlantic]

* So if you’re studying for the MPRE, blow jobs aren’t the preferred legal fee. [Legal Profession Blog]

* How did your last cell phone bill look? Because the FTC says T-Mobile knowingly added hundreds of millions of charges on. At least that girl in pink was cute, huh? [USA Today]

* BNP Paribas is confident it can pay its record fine. [Dealbook / New York Times]

* Meanwhile, Putin accused the U.S. of trying to use the BNP fine to blackmail France into turning its back on Russia. Because conspiracy theories are awesome. [Bloomberg]

* Lawsuit filed because right-wingers totally miffed that black people voted for a Republican. [Sun Herald (Mississippi)]

I was trying to achieve a work-life balance after I had missed my children’s lives.

Lee Smolen, the ex-Sidley Austin partner who was hit with ethics charges after he faked almost $70,000 in reimbursable car fare expenses, during his testimony last week before the Illinois Attorney Registration and Disciplinary Commission. The IARDC seeks a temporary suspension of Smolen’s license to practice law as punishment for his pilfering.

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….

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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?

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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?

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