Here is the Order, straight from PACER.
You are currently browsing the monthly archive for June 2009.
President Obama, through White House Counsel Gregory Craig, accepted Kent’s resignation. This means no disability-based resignation and no pension/retirement benefits related to Kent’s former judgeship. The House impeached Kent on June 19. Kent’s resignation will almost certainly forestall a Senate trial on the impeachment. Hard to impeach someone who has already resigned. The Houston Chronicle carries Suzanne Gamboa’s AP story here.
The Washington Post carries the Reuters story here. U.S. District Judge Hittner heard arguments today on the government’s appeal of U.S. Magistrate Judge Stacy’s jaw-droppingly low bond setting.
The Wall Street Journal reports here on the 150 year term of imprisonment imposed today by U.S. District Judge Denny Chin on all-time Ponzi King Bernie Madoff. If he behaves himself in prison, Madoff will be eligible for release at the age of 199. Initial press reports do not indicate whether Madoff’s sentence includes a term of supervisory release following imprisonment, but it is statutorily mandated. Judge Chin called Madoff’s fraud “staggering” “unprecedented” and “evil.” Chin also said that the 150 year sentence was symbolically important in sending a general deterrence message to future fraudsters. It is clear that neither the judge nor prosecutor believes Madoff has been fully cooperative.
The Houston Chronicle’s Kristen Hays and Tom Fowler report here on the latest moves in the Allen Stanford prosecution. On Friday, Senior U.S. District Judge David Hittner granted a stay (pending appeal) of U.S. Magistrate Judge Frances Stacy’s surprisingly low bail setting ($500,000.00 with a $100,000.00 cash bond). Hittner will apparently hear the matter on Monday morning. Prosecutors are entitled to appeal such determinations to the district court.
Here is a fascinating story by Jake Bernstein of ProPublica.org about Madoff “victim” Jeffrey Picower. “Between December 1995 and December 2008, Picower and his family withdrew from their various Madoff accounts $5.1 billion more than they invested with the self-confessed swindler, according to a lawsuit filed by the trustee who is trying to recover money for those Madoff defrauded.” This is investigative reporting at its best.
Mary Flood and Tom Fowler of the Houston Chronicle report here on the latest developments.
Sir Allen “no relation to Leland” Stanford has turned himself in to the FBI, according to his lawyer, Dick DeGuerin, and this ABC News.com piece. Sealed indictments were returned in the case earlier today in Houston. Stay tuned.
Carrie Johnson of the Washington Post has written another remarkable piece on the current travails of DOJ’s Public Integrity Unit in the wake of the Ted Stevens debacle. Her article details personnel shifts, the current roles of Chief William Welch and Deputy Chief Brenda Morris, continuing discovery drops and re-examined verdicts in the Alaskan corruption probe, and understandable morale problems. Apparently, the newly produced documents in two of the Alaskan cases are extensive in nature. Most intriguing, however, is this item from Johnson’s story:
“Sources said that among the questions investigators are pursuing is how closely the work of the Stevens trial team was supervised by officials in the Criminal Division. Senior political and career lawyers there may have offered input and monitored decisions about the kinds of material to turn over to Stevens’s defense team at Williams & Connolly, the sources added.”
Senior political and career lawyers in the Criminal Division were monitoring and offering input on the trial team’s discovery obligations? If true, this is extraordinarily unusual, even for a high-profile corruption case, absent a specific complaint or request by the defense team. And if these senior officials really were micro-managing the trial team’s Brady productions, they seem to have screwed up in spectacular fashion.
Well, not exactly. Former Cendant Corp. CEO Walter Forbes is doing 12 years in Allenwood for accounting fraud. His sentence included a $3.275 billion restitution order. The federal government moved, post-sentencing, to liquidate Forbes’ assets in order to satisfy the restitution order. The feds wanted Forbes’ $5 million house, claiming that it was purchased with ill-gotten gains. Now Forbes’ wife Caren has filed for divorce seeking equitable division of the couple’s property. But the mansion is currently held in Caren’s name only, having been sold to her by Walter for a mere $10. Our government is not amused. Nora Dannehy, Acting U.S. Attorney for the District of Connecticut, has taken the highly unusual step of moving to intervene in the Bridgeport Superior Court divorce action. According to Dannehy’s motion: “This court should not allow the Forbes family to undermine the government’s work to enforce the restitution order under the guise of a simple, uncontested, family court matter.” The Connecticut Post story by Daniel Tepfer is here.
Carrie Johnson of the Washington Post reports here on Attorney General Eric Holder’s first oversight appearance in front of the Senate Judiciary Committe. Holder said that OPR’s investigatory report on the role of Bush-appointed DOJ attorneys in drafting/approving so-called “torture memos” could be released to the public in a matter of weeks.
I am always suspicious when an Inspector General gets fired. The Washington Post carries an AP story here, by Ann Sanner and Pete Yost, on President Obama’s firing of Corporation for National and Community Service Inspector General Gerald Walpin, and on Walpin’s response. Walpin had investigated misuse of AmeriCorps federal education grants by Sacramento Mayor, and Obama supporter, Kevin Johnson. Walpin also sent a criminal referral on the matter to the Sacramento U.S. Attorney’s Office in August 2008.
The Acting U.S. Attorney in Sacramento, Lawrence Brown, criticized the referral and reported Walpin to an integrity committee for inspectors general. According to Brown’s letter of complaint, the U.S. Attorney’s Office “highlighted numerous questions and further investigation they [Walpin's office] needed to conduct, including the fact that they had not done an audit to establish how much AmeriCorps money was actually misspent.”
That, standing alone, sounds pretty lame to me. If a U.S. Attorney reported every incomplete federal criminal referral to an integrity committee, we would have quite a backlog. Besides, the U.S. Attorney’s job is to assess the criminal referral and either reject it outright or direct the referring agency to do additional work. It is the very rare referral that results in an immediate indictment.
However, Acting U.S. Attorney Brown also complained about something much more serious in my view–repeated statements to the media by Walpin’s office prior to the Sacramento mayoral election. These statements apparently prompted the U.S. Attorney’s Office to announce, before the election, that it would not file charges against Johnson. Negative statements to the news media by law enforcment sources about politicians embroiled in election battles are, barring unusual circumstances, clearly improper. It is not a federal agent’s job to attempt to influence an election.
Walpin staunchly defended his work, stating that he acted with “the highest integrity” and that he reported his conclusions “in an honest and full way.”
Pardon my absence, but, in addition to my regular day job, I have had the honor this week of serving on a petit jury in a DC Superior Court criminal trial.
On June 8, my birthday, I reported for grand jury duty and talked my way out of it, once I learned that the grand jury panel would have to meet all day every day for 27 calendar days, straight through until July 10. Who in the world has time for such a schedule? When the clerk told our group that we couldn’t sit on the grand jury if we had a pending felony or misdemeanor charge, I offered to step outside and commit a misdemeanor. She was not amused.
The price for talking my way out of the grand jury was a trip to the petit jury panel, where I was sure I would be struck since I do criminal defense work. Wrong! The defense wanted me on and the AUSA figured that my past life as a prosecutor rendered me safe.
The trial, which involved charges related to the carrying of an unlicensed firearm, was presided over fairly, patiently, and masterfully by the Honorable John H. Bayly, Jr. Both the prosecutor and defense attorney were young, earnest, and competent.
My fellow jurors were pleasant, and we tried our best to listen attentively to the evidence and the court’s instructions. We deliberated about thirty minutes and acquitted the defendant of all charges.
After a career as a trial lawyer, this was my first experience as a juror. It was a very simple case, with only two witnesses for the government and none for the defense. What really hit home for me was how irritated I became when either side wasn’t ready to proceed. It is one thing as a trial lawyer to intellectually understand that jurors get annoyed at delays. It is quite another thing altogether to experience that annoyance as a juror. This is something I intend to keep in mind. Not that I’ve ever caused any unnecessary delay.
DOJ has uncovered Brady violations in the cases of two convicted Alaska politicians, Pete Kott and Vic Kohring, whose appeals are pending in the 9th Circuit. Both of these prosecutions were part of DOJ’s longstanding probe of Alaska public corruption, which also included the Ted Stevens case. The charges against Stevens have already been dismissed with prejudice due to Brady violations. In the cases involving Kott and Kohring, DOJ has moved for a remand to the district court so that the trial judge can sort out the Brady issues. In the meantime, DOJ has agreed that Kott and Kohring should be immediately released from prison on their own recognizance.
The Anchorage Daily News story is here. DOJ’s press release announcing the move is here. The Government’s Motion in Kott’s case is here.
Attorney General Eric Holder stated as follows: “After a careful review of these cases, I have determined that it appears that the Department did not provide information that should have been disclosed to the defense….Department of Justice prosecutors work hard every day and perform a great service for the American people. But the Department’s mission is to do justice, not just win cases, and when we make mistakes, it is our duty to admit and correct those mistakes. We are committed to
doing that.”
Assistant AG Lanny Breuer added: “The Criminal Division must ensure that defendants receive all appropriate discovery materials, and today’s action demonstrates that commitment to this responsibility….We will continue regular discovery training for all Criminal Division prosecutors to make certain that they perform their duties in adherence to the highest ethical standards. Every day, hundreds of career prosecutors work to uphold this Division’s proud tradition of being vigilant, ethical and stellar in the
execution of their work. This action is faithful to that tradition.”
Kudos are in order for Holder and Breuer. Their statements strike just the right balance. The overwhelming majority of DOJ prosecutors perform their work in an entirely ethical manner. The production of exculpatory material to defense counsel remains the chief area in which some fall short of the mark. Of course, the jury is still out on who fell short and why in the Stevens and other Alaska prosecutions.
Kohring is an arch-conservative Republican. According to his attorney, DOJ’s action “is enough to make Vic Kohring become a Democrat.”
Reminds me of the old joke: A conservative is a liberal who got mugged. A liberal is a conservative who got arrested.
Here, courtesy of the WSJ, is the SEC’s civil complaint filed today in the Central District of California against Angelo Mozilo, David Sambol, and Eric Sieracki.
Professor Ellen Podgor over at White Collar Crime Prof Blog has this excellent and detailed post discussing Judge Sonia Sotomayor’s approach to white collar crime cases. Ellen sees Sotomayor as decidedly pro-government. Not surprising when you think about it. Most judges from politically liberal backgrounds tend to be pro-government and anti-business. It is only natural that this attitude would flow over into and affect their views on corporate crime. Sotomayor was, in my view, on the wrong side of U.S. v. Rybicki, the Second Circuit’s major private sector honest services fraud case. I agree with Ellen that Sotomayor’s attempt to bring coherence to the various case law defintions of “willfull” criminal conduct in U.S. v. George was both scholarly and impressive. At any rate, you should go read Ellen’s entire analysis. I highly recommend it.