White-Collar Crime

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?”

Last week, I wrote about why so few people go to trial, and I talked about some of the challenges of going to trial in a criminal case in federal court, particularly in a white-collar case.

This week, I’d like to talk about another challenge with going to trial — statements made to law enforcement by the person who is accused of a crime.

After Zachary Warren was indicted in connection with the Dewey implosion, there was a lot of coverage of why, exactly, a smart, educated, fancy lawyer would talk to law enforcement without a lawyer present. (See, e.g., here, and here, and here).

As these prior pieces talk about, there’s a tactical problem with talking to law enforcement in the first place — the agent may say that he or she is just giving you a chance to “tell your side of the story” or “get the truth out” but, really, that person’s interest is in getting a conviction so they get a stat. They’re trying to build a case against you and that has less to do with celebrating the importance of impartial truth seeking, and much more to do with boxing you in so that a trial would be hopeless (see this on one way to think about the agent’s priorities when they’re taking a statement).

There is, though, another problem with talking to law enforcement — one that, hopefully, DOJ is actually making better.

double red triangle arrows Continue reading “The Perils of A Criminal Trial Redux; or, DOJ Belatedly Notices It Has Recording Equipment”

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]

double red triangle arrows Continue reading “Non-Sequiturs: 05.06.14″

The criminal justice system has all sorts of problems. Far, far, far too many people are in prison. Hell, lots of them are downright innocent. Most of those inmates are drawn disproportionately from the poor and minority population while the more affluent and white receive better treatment for the same crimes. And the wealthy, mostly white people who caused widespread economic pain not only avoided prosecution, but made healthy sums.

But one big problem with the criminal justice system that we’ve harped on before is the broad, largely unchecked power of federal prosecutors to bully the accused.

A prominent federal judge thinks it’s gone too far and he’s got a proposed solution.

Too bad it’s far too sensible for anyone in a position of power to actually adopt….

double red triangle arrows Continue reading “Judge’s Proposal For Criminal Justice System Is Far Too Sensible For Anyone To Actually Implement”

Raven 23 was a team of Blackwater employees who provided security in Iraq for U.S. government personnel. On September 16, 2007, a car bomb went off, and Raven 23 was called on to secure an evacuation of a diplomat. As a federal court described it later, “a shooting incident erupted, during which [some of the members of Raven 23] allegedly shot and killed fourteen [Iraqi civilians] and wounded twenty others.”

After September 16, the firefight moved to federal district court in the District of Columbia when the U.S. Attorneys Office for the District of Columbia brought charges against some of the members of Raven 23.

And, as legal battles go, what a firefight it is.

There’s been a Kastigar hearing, a direct appeal, a mandamus action, a judicial call for an Inspector General investigation into the State Department’s conduct in the case, a promised request for the government to pay attorneys’ fees for one of the members of Raven 23, posturing about new charges, and threats of motions for vindictive prosecution.

If you find yourself with some time, reading the papers in the case – the case number is 08-360 on D.D.C.’s docket – isn’t a bad way to spend it.

If you find yourself without that kind of time, here’s a blow by blow of some of the most interesting bits.

double red triangle arrows Continue reading “A Battle in Iraq Leads to a Battle in the Federal Courts in D.C.”

For a guy who hasn’t done much in the last few weeks but go to Vegas, Chris Christie’s past and future has gotten a lot of attention this week.

Ryan Lizza has a long piece in the New Yorker about Christie that is not terribly dissimilar in conclusion than Joe Patrice’s prior Christie observations on these pages. Lizza’s piece starts with a description of a roast of Lat’s former boss, where, among other zingers,

a New Jersey judge turned comedian, noted, “It really is an honor to be standing next to what could be the next President of the—.” He shuffled some papers on the lectern. “I’m sorry, these are the wrong notes. I’m doing a roast next week with Jeb Bush.”

Ouch.

More damning, though, and more relevant to this column, is Jeff Smith’s piece over at Politico – “Chris Christie is Toast.” (incidentally, Joy Behar makes the same bread-based observation about Christie in Lizza’s piece).

Jeff Smith is an interesting guy to write that article. The former Wunderkind of Missouri Democratic politics was brought down by a federal investigation into campaign finance problems that ultimately landed him in a federal prison.

So, why might one think that Christie is toast?

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Zachary Warren

Recently, Lat suggested that it wouldn’t have been worth it for Zachary Warren to hire a lawyer early in the Dewey investigation. As Lat frames the question, “How much could a lawyer have helped?”

Now that we know a little more about the case — especially the identities of the Secret Seven — let’s think about whether Warren could have benefited from hiring counsel early. And, more generally, what benefit anyone gets who is in a white-collar investigation from hiring a lawyer early.

We know that Warren was concerned about money (as most folks are). The reasonable question is what Warren would get with the money he’d spend on a lawyer.

Of course, there are no certainties — hiring a lawyer in a white-collar case, like in most litigation matters, is a little like buying a lottery ticket. How much does your spend on counsel change the odds in your favor?

So, what are the odds that a good lawyer could have made a difference?

double red triangle arrows Continue reading “Should Zachary Warren Have Hired A Lawyer Sooner?”

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