Articles Posted in White Collar Crime

I have often enjoy re-telling the old joke about how there are three kinds of lies: 1) Lies, 2) Damn Lies, and 3) Statistics.  Many of my federal criminal cases here in Atlanta and elsewhere involve one or more of these three types of “incorrect” information.  Some government witnesses tell little lies, while others tell big whoppers that are flat-out lies designed to help the liar and hurt my client.  On some other day I will pontificate about how the system of rewarding “cooperating witnesses” is a perversion of our justice system that leads to some its greatest failures.  But today, I want to talk about how statistics and their analysis and manipulation can sometimes be the greatest lie of all.

Now remember, most lawyers are not “numbers people.”  That’s the reason we went to law school, because some teacher or school just flat-out insisted that we needed to learn calculus. For the most part, attorneys are not at their strongest when dealing with mathematic or scientific issues.  While most good trial lawyers are bright and can quickly pick up new concepts, this is not our main area of expertise.

So, we have a system where most of the main participants are not all that great with numbers or science, and then we have cases that are chock full of both types of information. Here is what usually happens.  A prosecutor hears about a new type of evidence, such as DNA analysis and comparisons to see if the person on trial had some connection with the victim or crime scene.  It’s only been 30 years since this evidence was first accepted into court, and in the early years virtually all prosecutors and defense lawyers simply deferred to whatever the “experts” claimed.  Then as time progressed, more and more lawyers got comfortable with the basic science behind DNA analysis, and began poking holes in the claims, leading to the far too many cases where DNA analysis has actually exonerated previously convicted Defendants.

I just finished the Atlanta federal criminal securities fraud case that I have been working on for the past three and a half years.  After a two-day sentencing hearing, my client was given a sentence of 10 years in custody, along with being required to pay back around $1.4 million dollars to some investors.

The case generated some publicity.  Some readers know how I like to pontificate about how the press more and more simply repeat any “press release” issued by some prosecutor’s office.  For example, compare the prosecution’s press release about this case with the story in the local paper, the Atlanta Journal Constitution (usually called “the AJC” by folks hereabouts).  Note that the AJC simply rephrases and rehashes the press release with absolutely no mention of anything from the defense side.  Next, compare the AJC’s story with two other stories in publications devoted to the legal industry, Law.com and Law360.  Each of these latter stories give a far more nuanced and complete story from the sentencing hearing, and include portions of the defense arguments or statements by me.

I’ve already written about how cases with some publicity add an additional level of stress for the criminal defense lawyer.  The other day I posted about the difficulty of doing a federal criminal sentencing hearing when the Probation Officer seems to recommend every potentially applicable sentencing enhancement to the federal Sentencing Guidelines, and how hard it is to get a “good” sentence when the lawyer spends so much energy showing the Judge the probation officer’s errors that the Judge is kind of tired of ruling for the defense when it comes to the final sentence.  Instead of those topics, today, I want to briefly talk about long-term relationships in criminal cases.

I’m working on a case with a very talented Atlanta-based criminal defense lawyer.  Our clients were accused of and later convicted for fraud involving several businesses.  These are a somewhat different type of white collar offense, for some of the crimes are what we call “securities fraud”, meaning fraudulent conduct relating to the offering or sale of what most people call “stocks”.  However, our clients are going to be sentenced soon, and we are preparing for the upcoming sentencing hearing.  This other attorney and I are running headlong into the extraordinarily unfair sentencing guidelines in these type of federal cases.  Although the Guidelines are extremely unfair, we discovered that a lot of federal judges have been extremely critical of these Guidelines and have extensively criticized this approach over approximately the past decade.

First, a little history (those who know me remember that I majored in history and often try and place issues into historical context for better understanding).  The Guidelines came into effect in 1987, and were supposed to iron out differences between the sentences issued by different judges.  Then, we had the big corporate meltdowns in the early 2000’s, Enron, Worldcom, Arthur Anderson, etc.  Congress responded with what is usually called “Sarbanes/Oxley“, a series of laws designed to prevent such corporate high-level shenanigans.  All fine and good, from my viewpoint.  However, (and here’s the “unfair sentencing guidelines part” coming back), as part of this Sarbanes/Oxley law Congress also told the United States Sentencing Commission to greatly ratchet up the sentences imposed on high-level corporate fraudsters, the kind who led to Enron, Worldcom, Arthur Andersen, etc.  Again, fine and good.

The problem, of course, is that the Sentencing Commission created new and extremely punitive Guidelines that are more of a “one-size-fits-all” set of enhancements for most corporate offenders if a case involves securities or stocks.  As a respected Senior Judge in New York wrote in the opening lines of his decision in United States v. Parris:  “I have sentenced Lennox and Lester Parris today to a term of incarceration of 60 months in the face of an advisory guidelines range of 360 to life. This case represents another example where the guidelines in a securities-fraud prosecution “have so run amok that they are patently absurd on their face,” United States v. Adelson, 441 F. Supp. 2d 506, 515 (S.D.N.Y. 2006), due to the “kind of `piling-on’ of points for which the guidelines have frequently been criticized.” Id. at 510.”

One version of “white collar crime” that often winds in federal court is called “honest services fraud”.  The basic version of the crime is when someone (usually a person who works either for some large organization, like a business or government) engages in a “scheme to defraud” that is intended to deceive or cheat another and to obtain money or property or cause the potential loss of money or property to another by means of materially false or fraudulent pretenses, representations or promises, or to deprive another of the intangible rights to honest services.  In 2010, the Supreme Court limited the words “intangible rights to honest services” to mean this law only applies to situations involving either a bribery or a kickback.   As a general rule, prosecutors need to prove an exchange, or “quid pro quo”, and must prove that the Defendant did, or refrained from doing, an “official act”, in exchange for money or something else of value.  However, there have been questions as to the type of “official act” which forms the basis of this crime.  Last Friday, the United States Supreme Court agreed to review the case of former Virginia Governor Robert McDonnell which could provide some answers in this area.

As noted above, honest services bribery or kickback requires an exchange of an official act for money or property. Some earlier decisions rejected efforts by prosecutors to expand the phrase “official acts” to include actions that are “customary” in the performance of many jobs. One court reversed the conviction of a state official who offered, for a fee, to introduce an architectural firm to high-ranking officials who could then secure contracts for the firm. The Defendant there promised to make introductions, but no evidence established that he promised to use his official position to influence those to whom the architectural firm was introduced. That court recognized a distinction between affording access versus actions that influence a decision.

Another federal court of appeals seems to take the same position. That Court said a legislator could not be convicted for taking money from a hospital in return for lobbying mayors to comply with state law in a way that benefited the hospital. That case also seemed to distinguish between actions that use or threaten the use of official powers versus actions that merely trade on reputation or access that accompanies the holding of a certain office.  Yet one more federal appellate court said that “official acts” are limited to those that influence an actual decision about real policies. That case involved a policeman who took payments in exchange for using an official police database to perform license plate and outstanding warrant searches. While accessing the database was part of the officer’s duties, he did not perform an “official act” in return for the money, in that the officer did not exercise any inappropriate influence on decisions made by the organization for which he worked.

Politics impacts many of our criminal cases here in Atlanta, throughout Georgia, Florida and Alabama, and in federal cases we do throughout the country. The intersection of politics and criminal prosecutions is especially prevalent in public corruption investigations. Prosecutors often have a political motive in “going after” a particular defendant, and many a prosecutor has made a name for him or herself by bagging a politician. These principles were on full display in the case against Tom Delay, the former Majority Leader of the United States House of Representatives. Last week, the Texas Court of Appeals reversed Delay’s convictions, ruling that he had not committed any crime. The ruling is here.

Delay was known as a hard-charging Republican advocate, whose nickname of “the Hammer” demonstrated his supposedly ruthless tactics. In 2002, Delay wanted to have the Texas Legislature turn solidly Republican, which it did. To accomplish, he asked for a series of corporate political contributions to a campaign committee. Afterwards, that solidly Republican legislature allegedly jiggered the voting districts so that the Texas federal delegation was far more likely to elect Republicans to the U.S. Congress. All well and good, hard nosed politics.
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I recently posted about how we convinced the United States Court of Appeals for the Eleventh Circuit here in Atlanta to reverse the federal criminal case against our radiologist client because the trial judge prevented us from using important “peer review” testimony from another doctor who would have told the jury that he reached the same conclusions as did our client. Recently, another federal court did something similar, reversing a federal criminal conviction because the trial judge would not allow the defense to present certain evidence to the jury. That case was decided by the Seventh Circuit, which was sitting in what we lawyers call an en banc session, meaning all of the judges on that entire court participated. The case is U.S. v. Lacey Phillips and Erin Hall, and can be viewed here.

The basic story is familiar. Back in 2006, the defendants, an unmarried couple (they’ve since married) were looking for a house to buy. She had good credit, he did not. She applied for the loan, and the application asked for the “borrower’s income.” The defendants wanted to tell the jury that the mortgage broker had told them that “borrower’s income” was really a term of art, and meant the total amount of money that would be used for paying the mortgage, whether or not it was money earned by the person signing the mortgage. So, like many couples, they combined her income and his income on the loan application. They also sort of dressed up her job title, making it look as if she had the sort of employment that would generate the overall joint income of the couple.
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We do lots of sentencing hearings in federal criminal cases, here in Atlanta, throughout Georgia and other parts of the country, like Florida, Alabama, New York, California and Tennessee. Whatever state they are in, all federal judge are first required to consult the Federal Sentencing Guidelines when deciding the appropriate sentence for a person who has either pled guilty to or who a jury has found is guilty of a federal crime. These Guidelines are amended all the time, and it seems for some categories of crimes the suggested range of punishment keeps getting more and more harsh. However, what we lawyers call the “Ex Post Facto” clause from the Fifth Amendment to our beloved Constitution says that it is unconstitutional to increase punishments “after the fact.” Several days ago ( I was not able to get to this post as I have been in federal court all week) the United States Supreme Court held that the Ex Post Facto clause requires a new sentencing hearing for an Illinois businessman who had been convicted of bank fraud. The case is Peugh v. United States and can be accessed here.

Mr. Peugh was convicted of five counts of bank fraud in a scheme that caused more than $2.5 million in losses by the victim bank. The crimes took place around 1999 and 2000. However, when he went to court years later, the Sentencing Guidelines in effect at the time of his sentencing hearing suggested 70 to 87 months in prison. Peugh objected to use of the 2009 guidelines, insisting that the judge should use the guidelines in effect at the time of his crimes. Under those earlier Guidelines, the appropriate sentence ranged from 30 to 37 months in prison. Peugh argued that relying on higher guidelines enacted after his crimes were committed would amount to the use of an ex post facto law. The sentencing judge rejected the argument, and sentenced Peugh to 70 months in prison. A panel of the Seventh US Circuit Court of Appeals also rejected the ex post facto argument and upheld the sentence.
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Federal Criminal Charges were announced yesterday here in Atlanta by the U.S. Attorney. The feds have indicted a well-known State legislator, Representative Tyrone Brooks. According to the indictment, Representative Brooks committed mail fraud, wire fraud, and tax crimes. The grand jury returned a 30-count indictment which charges that, from the mid-1990s through 2012, Brooks solicited contributions from individuals and corporate donors to combat illiteracy and fund other charitable causes, but then used the money to pay personal expenses for himself and his family.

It seems there are three basic sets of crimes alleged in the indictment. First, there are two separate supposed frauds, followed by allegations that Representative Brooks violated the tax laws.
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Many public corruption investigations turn into federal criminal cases, here in Atlanta and around the country. Our firm is involved in several of these matters right now. Most of these “white collar” cases result in our clients being charged with some variety of fraud. The feds almost always resort either to the mail or wire fraud statutes. Each of these laws requires a “scheme or artifice to defraud” another out of money or property. A 1988 law says that these statutes include schemes to defraud another out of the “intangible right of honest services.” A 2010 case from the United States Supreme Court restricted the “honest services” version to cases involving bribes and kickbacks, and held that these statutes cannot be used to prosecute a person merely because the Defendant violated some fiduciary duty to a governmental agency or other entity or otherwise engaged in a conflict of interest. I wrote a recent post about how the local federal court of appeals issued a recent decision upholding the conviction of a man in Jacksonville, Florida. That case was an example of how the feds try to get around the recent restrictions on the honest services theory.

The feds recently made a splash in New York, arresting a politician who allegedly was trying to buy his way into the Republican race for Mayor. This is but the latest in a string of high-profile cases in that city involving allegations of bribery, payoffs and the like. A recent article I came across notes that despite the restrictions on the honest services theory, federal prosecutors continue to use this species of fraud when going after politicians. The article quoted a former high ranking federal prosecutor as saying that the restrictions on honest services actually helped the government when making such cases.”I thought the court did us – prosecutors – a favor, because I never thought juries liked conflict-of-interest cases. … Juries want to see bribes or kickbacks” because conflicts of interest “seem more like ethical violations than criminal.”
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As I noted in this post, on Tuesday the Supreme Court granted certiorari in Kaley v. United States, a case calling on the Justices to answer the question of whether the Sixth and Fifth Amendments afford a Defendant the right to a pretrial hearing to challenge the seizure of her assets under the federal forfeiture laws when that seizure basically prevents her from hiring and paying for counsel of her choice. It is more than a little ironic that they decided to review the case on the same day we were all celebrating the 50th anniversary of Gideon v. Wainwright, the landmark case ruling by the Supreme Court that everybody facing felony charges has the right to an attorney, even if he or she cannot afford to pay the lawyer. While we have made strides in the past five decades, in many ways we are worse off when a person faces the wrath of the federal government bent on a criminal prosecution.

On the one hand, we still have a long way to go when we provide counsel to people who cannot afford to pay for a lawyer. Many wonderful lawyers are public defenders who struggle to provide the best defense they can while handling massive and crushing caseloads. While Defendants have the “right” to an attorney, far too often the system is set up so that the public defender simply cannot spend much time with any one client, more or less rendering meaningless the Constitutional “right to counsel” enshrined in the Gideon case.
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