White-Collar Crime

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….

double red triangle arrows Continue reading “White Collar Trials, Snitches, And Telling The Truth”

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?”

Criminal defense lawyers who practice in federal court bemoan the lack of jury trials these days.

According to the administrative office of the U.S. courts, in the twelve months ended March 31, 2013, in our federal courts, 83,614 people entered a plea of guilty. Only 1,953 went to a jury trial (there were 173 bench trials too, for what it’s worth).

So, around 2 percent of the folks who are charged in federal court go to trial — the rest plead guilty.

The numbers in white-collar cases are a little better. For fraud cases there were 9,925 guilty pleas and 411 jury trials — so about 4 percent of people accused of fraud opt to see a jury. For regulatory offenses there were 1,480 pleas and 47 jury trials — about 3 percent.

There are a lot of reasons why so many people plead guilty and so few go to trial. One reason is that the acquittal rate is low — about 13 percent overall (there were 260 acquittals overall in FY 2013). For what it’s worth, while fraud acquittals were in line with that, regulatory offenses had an acquittal rate that was much higher — 20 acquittals (counting bench and jury trials) out of 55 trials. That’s about 35 percent.

Another big reason is that people accused of a crime are meaningfully prevented from testifying — and if a trial turns on what a person knew, as many white-collar cases do, their ability to put on a defense is compromised by their inability to testify. They can see a bad verdict coming….

double red triangle arrows Continue reading “Why Johnny Can’t Talk: Federal Rule of Evidence 608(b) and the Difficulty of Trial”

As Chief Judge Alex Kozinski recently wrote, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

But judges need to know about prosecutorial misconduct in order to do anything about it. The public needs to be made aware of this important issue as well.

Last week, I interviewed Sidney Powell, a former federal prosecutor who has written a new book — a book that pulls no punches when it comes to her former colleagues at the U.S. Department of Justice….

double red triangle arrows Continue reading “Prosecutors Run Amok: An Interview With Sidney Powell, Author Of Licensed To Lie”

A famous criminal defense lawyer was asked about how to hire a lawyer for a criminal defense case. Imagine, he was asked, that a relative was charged with a serious crime in a place where he didn’t know anyone. How would he go about finding a lawyer for his friend?

The answer — hire the best lawyer in the next town over.

A good criminal defense attorney will have relationships with the local prosecutors. She’ll know the local judges. And when you hire a criminal defense attorney, you assume that one thing you’re getting is a favorable presentation to those prosecutors and judges. The trouble is, that lawyer may have more of an interest in her professional standing in the community than in your case.

If you’re really in trouble — life is on the line kind of trouble — that criminal defense lawyer’s advice was to hire someone who knows what they’re doing and is willing to ruffle feathers on your behalf. Everyone is a little beholden to their own community. Find someone from another community.

There’s a nice example of that principle in action in a complex white-collar case in the Wall Street Journal this week.

double red triangle arrows Continue reading “If You Have a FERC Problem, Maybe Don’t Hire a FERC Lawyer”

* Florida is woefully unprepared for a zombie apocalypse. [Lowering the Bar]

* Congratulations to Sujit Choudhry on being named dean at Boalt Hall. [Prawfs Blawg]

* Justice Scalia is a delusional hack. Well, that’s not really news… [Salon]

* Just how suspect was that referendum on Crimean annexation? Even the Russian government is questioning it. [The Volokh Conspiracy / Washington Post]

* A look at how Lauren Giddings’s killer could have gotten free. [The Telegraph (Macon)]

* The KABA and JABA have issued a joint statement on the lawsuit surrounding the Glendale, CA, Comfort Women Memorial. [Korean American Bar Association / Japanese American Bar Association]

* A governor’s cronies get the plum state judgeships. That may not be surprising, but the negative impact it has on the quality of the judiciary deserves more attention. [The Center for Public Integrity]

* I’d never heard of “The Full Kagan,” and I’m not sure I want to know what it relates to. [Excess of Democracy]

* Much has been made of federal prosecutors failing to go after the “Too Big To Fail” banks. After the jump is a primer on why they haven’t. [Bloomberg TV]

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