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Employment Arbitration Rulings, Qui Tam Retaliation Claims, and Collateral Estoppel

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I recently came across an interesting case that further illustrates the perils to False Claim Act relators who split their employment and FCA retaliation claims. In the unpublished case of Kalyanaram v. New York Institute of Technology, 2013 WL 6482578 (2nd Cir., December 11, 2013), the Court dismissed the relator's retaliation claim against his employer on the grounds that it was barred by the doctrine of collateral estoppel. Collateral estoppel is the common law rule that prevents a party from re-litigating an issue or fact that has previously been decided, even if that issue or fact was decided in a different case, as long as there was "full and fair opportunity" to litigate the issue in the prior proceeding.  In Kalyanaram, the relator's employer, a technical school, fired the relator, a teacher, on the grounds that he was engaging in professional misconduct. The relator contested his firing in an arbitration proceeding pursuant to a collective bargaining agreement. While that case was pending, the relator also filed a qui tam against his employer alleging that the school submitted false financial aid information so that its students would get federal and state financial aid and that the school retaliated against him for complaining about it.The relator argued in his employment arbitration that the school retaliated against him for his complaints about the school's alleged deceptive and fraudulent practices. The relator, however, did not allege in the arbitration that the school retaliated against him because he had been either a qui tam whistleblower or had filed a False Claims Act suit. The arbitrator rejected his retaliation claims, such as they were, and found that the relator had engaged in professional misconduct by authoring pseudonymous emails "in order to convey unsubstantiated and potentially scurrilous innuendos and accusations to the detriment" of his employer. When the federal court that was hearing the relator's qui tam heard about the relator's adverse arbitration decision, the Court on its own motion ordered briefing on whether the relator's retaliation claim was barred by collateral estoppel and ultimately dismissed the retaliation claim on that ground.The Second Circuit upheld the District Court's dismissal of the relator's retaliation claim. The Court observed that "collateral estoppel turns not on whether a prior adjudication found that an employer had a reasonable basis to discipline an employee, but on whether an employee raised a claim that behind the veil of reasonableness lay an impermissible motivating factor." Though the relator did not ever raise that he had filed a qui tam suit in the arbitration, given the relator's complaints about retaliation in that forum, the Court found that the arbitrator "actually and necessarily decided . . . that [the school] had not disciplined [the relator] in retaliation for his critiques of the school's fraudulent practices." Stated more simply, once the arbitrator found that there was a legitimate basis for discharging the relator and that the employer's reason for firing the relator was not a pretext for some other impermissible reason, that arbitration decision served to estopp and prevent the relator from claiming in the qui tam proceeding that he had been retaliated against by his employer for a different reason.The relator complained in his appeal that he "never had a full and fair opportunity to present a compete picture of his whistleblower activities," but the Court found "he had only himself to blame." Essentially, the relator chose not to tell his arbitrator about the qui tam, even though the federal court permitted him to reveal it to the arbitrator and to "respond to any questions" about in it in that proceeding.Of course, this case also appears as an application of that sometime informal rule of procedure known as the "bad man rule." That informal rule of procedure is normally found only in criminal cases, and frequently appears as the "real reason" for many otherwise unexplained court rulings. Though it did not explicitly reference the bad man rule, the Second Circuit did observe that the relator "repeatedly lied under oath," "presented an elaborate, fabricated defense," and "clung to this strategy through almost a year." In short, he was a "very bad man" who lied to the arbitrator and the Court and got what he deserved.A. Brian AlbrittonDecember 16, 2013

San Antonio Four case, Texas junk science writ lauded in national press

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Attorney Mike Ware and Elizabeth RamirezA couple of national stories - from USA Today and Time magazine deserve Grits' readers attention related to the San Antonio Four case and Texas' new law allowing habeas corpus writs for convictions based on junk science. Mike Ware, pictured at left, who's a member of the Innocence Project of Texas board of directors, was lead attorney on the case. The new law was championed in the Texas Legislature by state Sen. John Whitmire and state Rep. Sylvester Turner. Here's a notable excerpt from the Time magazine story, in which your correspondent was quoted: [I]t was unlikely the San Antonio Four would have walked free without the passage of the so-called “junk science” law earlier this year. Habeas writs based on new evidence are very difficult to win, according to legal experts, especially in Texas courts.The seeds of change were sown in 1999, the first year of prison life for the San Antonio Four. That July, a drug task force raided a poor, black community in the Panhandle town of Tulia, sweeping up scores of residents. Perry later pardoned 35 defendants, casting a shadow on law enforcement practices in rural Texas. That same year, convicted rapist Timothy Cole died in prison, 14 years into a 25-year sentence.  He had refused to admit guilt in exchange for parole, and was later exonerated by DNA evidence.More people have been exonerated by DNA evidence in Texas than any other state, according to the National Innocence Project, which puts the state’s total 48 ahead of Illinois with 43 and New York with 27.“The DNA exonerations have changed the terms of the debate for everyone,” says Scott Henson, policy director for the Innocence Project of Texas, which lobbied for the “junk science” law and several other similar measures.Henson credits Republican lawmakers open to religious appeals for changing attitudes about criminal justice, beginning in 2003 when the party took control of both houses of the state legislature. Under GOP control, the statehouse reduced sentences for drug possession and ended the state’s prison-building boom.“Over the past several cycles we had more and more religious conservatives coming into the legislature,” Henson says. “These are folks who hear these stories and tend to be moved by the DNA exonerees who come to the capitol. Hearing their stories — Christ was an innocent man hung on the Cross and here are these innocents — it resonated with them.”

Homicide Suspected in Death of 71-year-old Ann Arbor Man at Senior Community, Neighbors Shocked

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David Maurer, a 71-year-old man who lived at the Lurie Terrace senior community in Ann Arbor, was found dead inside his apartment on December 1. Police believe he died approximately a week earlier, and that three men who allegedly robbed the elderly man are responsible for his death. Neighbors who describe the victim as a gentle and quiet man are shocked, according to news reports. On Sunday December 15, three men were arraigned on charges of murder and robbery. They include 20-year-old Ricky Ranger, 19-year-old Mark Paling, and 19-year-old Richard Thompson. Although the connection is not clear at this time, police believe the suspects were known to Maurer. The three have been charged with unarmed robbery, larceny in a building, open murder, conspiracy to commit unarmed robbery, and larceny of a firearm. According to reports, the suspects stole multiple items from the victim's apartment including credit cards, a cell phone, firearm, computer, money, and a controlled substance. All three of the suspects are scheduled for a December 26 preliminary exam; if convicted, the maximum sentence is life in prison. Police did not reveal how Maurer was killed, or when investigators began viewing the victim's death as a homicide. Police would only say that upon responding to his residence on December 1, Maurer's body was badly decomposed. All three suspects will be represented by the Washtenaw County Public Defender's Office according to a news article at Mlive.com. All are being held without bond. While no motive is given for the alleged homicide, perhaps if the suspects knew the victim, they felt they had to quiet him after robbing his apartment. Regardless of how or why the incident occurred, it is certainly tragic for both the victim and the suspects, who are young and have their entire lives ahead of them. If convicted, it is likely these three young men will spend a substantial portion of their lives, and possibly the remainder of their lives, locked behind bars.

Saginaw Man Facing Drug, Fleeing Charges after Escaping Prison Time for July 2010 Robbery

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In February of this year, three brothers who are triplets were sentenced in connection with a Buena Vista Township incident involving unarmed robbery and other charges including assault with intent to commit murder. Deshawn, Devon, and Juronn Shivers were all sentenced in the case, Deshawn and Juronn to probation, Devon to imprisonment until at least 2042. Now, Juronn may be joining his brother in prison if convicted of new charges involving drugs and fleeing police, according to a news article at Mlive.com. On November 11, Michigan State Police troopers witnessed Juronn Shivers driving at excessive speeds in the Brookwood area on Saginaw's southeast side. Lt. Brian Cole said that when troopers initiated a traffic stop, Shivers complied; however, upon troopers approaching the vehicle, the suspect took off and a chase ensued which resulted in damage to multiple patrol vehicles. Eventually Shivers' vehicle was stopped after troopers implemented a PIT maneuver. Shivers had been charged by prosecutors in late October with a misdemeanor count of possessing marijuana, and felony count of possession of less than 25 grams of cocaine in connection to an April incident in Saginaw. Shivers had since remained at large on that warrant. The defendant has been arraigned on the marijuana and cocaine charges, and was arraigned on Friday, December 13 on the fleeing/eluding charges. Third-degree fleeing and eluding police carries a maximum of five years in prison for those convicted. If convicted on the marijuana and cocaine charges, Shivers may face up to four years in prison for the felony charge. While fleeing and eluding police is a very serious offense, drug crimes are also extremely serious in the state of Michigan. Certain offenses involving the manufacture and distribution, sale, or delivery of Schedule 1 or 2 drugs may leave an individual facing a lifetime behind bars if convicted.

Judge Rules Saginaw Man Charged with Sexual Assault Mentally Fit for Trial

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Derrick Conway, a 50-year-old Saginaw man, has been charged with sexually assaulting a mentally handicapped woman from April to June of this year, according to a news article at Mlive.com. Conway, who was charged with five counts of first-degree criminal sexual conduct, underwent examination to determine if he is mentally fit to face trial. The defendant was found mentally competent according to a report from the Center for Forensic Psychiatry. The alleged victim is said to be in her early 20s. According to his arrest warrant Conway assaulted the victim who was determined to be mentally incapacitated or incapable, or physically helpless using coercion or force and/or caused personal injury. Conway's defense lawyer, Philip Sturtz, requested an exam to determine whether his client is mentally fit. Following Saginaw County District Judge M.T. Thompson's ruling on Monday that Conway is mentally fit to stand trial, his preliminary hearing was scheduled for December 19. A preliminary hearing is when it is determined whether probable cause exists for trial. If convicted, Conway will face a maximum sentence of life in prison. He remains in jail on a $500,000 bond. First-degree criminal sexual conduct is the most serious sex crime of all, leaving those accused facing life-changing penalties if convicted. Depending on the circumstances, individuals who are found guilty may be sentenced to up to life behind bars. All sex offenses are serious, and require the legal guidance and support of a capable Michigan sex crime defense attorney.

GA - Georgia putting gay people behind bars?

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Government bedroom intrusionOriginal Article 12/16/2013 By Mark Kernes CHEROKEE COUNTY - Way back in 1997, _____ and another guy and two women were getting it on in a hotel room, though not the way you might think: The consensual sex was between _____ and the other guy—no word on what the two women were doing—and somehow, the local cops got wind of the gay hookup and busted _____ for violating Georgia's sodomy statute. This being 1997, the law under which _____ was charged was the one upheld... [[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]

Summary court-martial

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An 18-year-old girl complained that she had been raped by approximately four military personnel in an apartment. The allegations were thoroughly investigated by army investigators in conjunction with local police. One of the military personnel was not identified by the complainant in a lineup, and medical examination and forensic evidence from the scene failed to corroborate the allegations against him, but he gave a statement admitting that he engaged in consensual oral sodomy and sexual intercourse with the complainant. Sources revealed that within twelve hours of the initial report, military authorities had learned that the complainant had previously made a false report of attempted rape against military personnel and had been admitted to a mental hospital two weeks earlier suffering from an emotional unstable personality disorder, and had been classified with a mental deficiency handicap level of 80%. Further, it is possibly the factors which prompted the authorities not to prosecute and prompted the personnel to offer the complainant a summary court-martial on what would appear to be very serious criminal charges. Primarily, the accused soldiers were held by the civilian authorities pending a decision regarding formal trial in the court, but were temporarily released to the army investigators for interrogation only. Afterward, the man who admitted the crime signed a written waiver of rights generally corresponding to Miranda warnings. Later that day, he wrote out a statement in which he acknowledged that, together with five other soldiers, he had accompanied the complainant to the apartment with the intention of engaging in sexual activities. He contended that the oral sodomy was completely consensual on complainant's part, but admitted that she had said no after a couple of minutes. The man also stated that he did not take seriously the complainant's verbal resistance to vaginal intercourse, but did leave the room when she pushed him away. A sworn oral interview was also conducted by army investigator. After several days, the man was accused of wrongful use of marijuana, based upon urinalysis and other evidence. Even if the man exercised his right not to make a statement in that case, the charge was sustained. As a result, he was reduced in rank, given forty-five days' extra duty and restricted for forty-five days. After six months, the man was tried by summary court-martial. He was then convicted of indecent assault and sodomy by force without consent, and was required to forfeit two thirds of his base pay for one month, sentenced to fifteen days' confinement and given an other than honorable discharge. Upon his release from the army, the man signed an acknowledgment that he had been informed that he would be required to register as a sex offender in the state in which he was to reside and may be subject to criminal prosecution upon failure to do so. Based on records, the notice of the man's conviction of a sex offense was provided to the state board of examiners of sex crimes offenders. Following the board's determination, the man was required to register and he was sent notice to appear in court. To Be cont....

Family Law Nightmare: The Novacks

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It always amazes me to hear another “stripper marries millionaire” story, but it seems to be one of the favored professions for more than a few millionaires. The story of the Novacks from Florida is just such a case. Ben Novack Jr. was the son of the owner of the spectacular Fountainbleu Hotel in Miami. […]

WV - Operation Lump of Coal found 54 sex offenders out of compliance

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Lump of coalOriginal Article It should be called "Operation Goose Step" in our opinion! 12/17/2013 BECKLEY - A major four-day law enforcement blitz aimed at verifying compliance of more than 317 registered sex offenders currently residing in five southern West Virginia counties found 54 offenders out of compliance, U.S. Attorney Booth Goodwin, U.S. Marshal John D. Foster, and West Virginia State Police Capt. Brad Mankins announced during a press conference in Beckley, W.Va. The initiative,... [[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]

Gershowitz on Using "The Wire" in Criminal Law and Procedure Classes

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Adam M. Gershowitz (William & Mary Law School) has posted The Wire as a Gap-Filling Class on Criminal Law and Procedure (Journal of Legal Education, 2014, Forthcoming) on SSRN. Here is the abstract: Over the last decade, criminal law professors...

UK - David Mitchell Charged With Dewsbury Sex Offender's Murder

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Original Article So why are all the media outfits showing the murdered sex offenders mug shot and not the murderers? Are they attempting to justify murder or something? 12/17/2013 A man has now been charged with the murder of a missing Dewsbury sex offender. _____ was reported missing on the evening of 11th December and has not been seen since. He was last seen on CCTV in Huddersfield Bus Station, along with another man. Yesterday detectives recovered suspected human remains in the area... [[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]

FL - Florida "gets tough" on sexual offenders but what about those on the police force?

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Original Article 12/17/2013 By Sally Kestin and Dana Williams Florida senators filed four bills Tuesday cracking down on sex predators in what they described as an aggressive, bipartisan effort to make Florida "the most unfriendly place in America for sexually violent criminals." - Does that include the police officers who are committing a ton of the sexual crimes?  Or politicians like Mark Foley for example? The legislation increases prison sentences and probation terms for certain... [[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]

Ohio Man Pleads Guilty to $100 Million Ponzi Scheme

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A Cincinnati man has agreed to plead guilty to criminal charges that he masterminded a massive Ponzi scheme that took in at least $100 million from investors.  Glen Galemmo agreed to plead guilty to one count of money laundering and one count of wire fraud according to documents filed by federal prosecutors.  Each count carries a potential maximum prison sentence of twenty years, as well as a monetary penalty.  Galemmo's attorneys are seeking a sentence ranging from 8 years to 10 years, while prosecutors are seeking a lengthier term ranging 12.5 years to 15 years. Galemmo operated Queen City Investment Fund ("Queen City"), along with a dozen other investment entities.  Touting himself as an experienced trader, Galemmo promised lucrative returns to potential investors through investments in stocks, bonds, futures, and commodities.  Investors were provided with promotional materials indicating Queen City had enjoyed a streak of consistently above-average returns, including a return of nearly 20% in 2008 when the S&P 500 experienced a -38.49% loss. Potential investors were assured that Galemmo obtained annual audits of Queen City, and were provided with monthly statements showing steady returns.  In total, Galemmo raised at least $100 million from individuals, trusts, and even charitable organizations. However, Galemmo's touted prowess as a savvy trader was pure fiction.  Galemmo was able to pay the promised outsized rates of return not through trading stocks and bonds, but from using incoming investor funds to pay existing investors - a classic sign of a Ponzi scheme.  Nor was the Queen Fund audited; rather, Galemmo simply listed the name of an audit firm that had not had a relationship with Galemmo or his fund since 2003.  Galemmo also created fictitious trading and account statements that were distributed to investors.  Investor funds were diverted by Galemmo for a variety of unauthorized uses, including the purchase of real estate, the payment of fictional interest and principal distributions, and even to operate other businesses such as entertainment complexes.   As outlined in the criminal charging document, authorities are also seeking forfeiture of Galemmo's assets traceable to the fraud, including more than $1.7 million from bank accounts, the fund's former office building, two homes in Cincinnati and Florida, and five automobiles.   A copy of the criminal charging document is below: Glen Galemmo Information by jmaglich1  

Utah Driver Pleads Guilty to Negligent Homicide

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A Utah woman has pleaded guilty to negligent homicide in a case where she was accused of hitting a woman and her 6-year-old child; the child didn’t survive the accident. No Winners in Auto Accident Janeen Lundberg was recently sentenced to serve two concurrent prison sentences for her role in the death of a Utah […]

The Hill: Lawmakers applaud court ruling against NSA || yet they're still doing nothing


"Vermont's Chief Justice Is Speaking Out Against the Drug War: Is Anyone Listening?"

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Doug Berman at Sentencing Law & Policy has this post, excerpting this newspaper article.

Authorities Charge Two More Sales Agents With Aiding $415 Million "Mini-Madoff"

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Federal authorities unveiled criminal charges against additional former sales agents of convicted Ponzi schemer Nicholas Cosmo, accusing the ex-employees of soliciting investors whilst ignoring numerous tell-tale signs of fraud.  Brian Arias, 40, and Shamika Luciano, 31, were charged with several fraud counts, while additional charges were levied against existing defendants Anthony Ciccone, Diane Kaylor, and Jason Keryc.  Each of the fraud counts carries a maximum term of twenty years in prison. Authorities arrested Cosmo in January 2009, charging him with operating a $415 million Ponzi scheme. According to authorities, Cosmo used his companies, Agape World Inc. and Agape Merchant Advance LLC (collectively, Agape), to solicit investors by promising high returns through purportedly making private bridge loans to commercial real estate companies and builders.  The scheme used a network of agents that received lucrative commissions in exchange for soliciting investors.  After pleading guilty in October 2010, Cosmo received a 25-year sentence in October 2011.   After Cosmo was sentenced to prison, authorities began investigating the scheme's use of commissioned agents to attract investors.  This included an assortment of false claims made to lure investors, including the safety of an investment, the intended use of investor funds, and the attractive rate of return. Authorities soon zeroed in on alleged misrepresentations and omissions made by agents in 2008 despite learning that previous bridge loans made in 2007 were either in default or on extension.  Cosmo's sales agents were richly rewarded for their efforts; Cosmo paid more than $50 million in commissions during the scheme's existence.   The sales commissions paid to both Arias and Luciano pale in comparison to their co-defendants.  While Arias earned approximately $1.7 million in commissions and Luciano received $275,000, their co-defendants Ciccone, Kaylor and Keryc allegedly received $10.7 million, $4.75 million, and $16 million, respectively. While irrelevant for charging purposes, the disparities in commissions would likely be a factor in any resulting sentences. A copy of a prior civil enforcement action filed by the Securities and Exchange Commission against the sales agents is below: comp-pr2012-112 by jmaglich1

Motor vehicle accident in California involves multiple cars

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Car accidents are never easy on the family of a victim if the individual passes away. The emotional toll that is placed on the family can change the lives of all those involved. However, when accidents occur around the holidays,...

Bowman on Back-End Release Authority in American Prisons

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Frank O. Bowman III (University of Missouri School of Law) has posted Freeing Morgan Freeman: Expanding Back-End Release Authority in American Prisons (3 Wake Forest Journal of Law & Policy (2013)) on SSRN. Here is the abstract: This article, written...

Refusing to Extend the Seal: Court Refuses Requests to Extend Seal of Qui Tams for Informal Discovery or Settlement Negotiations

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Section 3730(2), Title 31, of the False Claims Act ("FCA") provides that when a qui tam relator files an FCA complaint under seal, the case may remain under seal for "at least 60 days" while the government investigates and decides on whether or not to intervene. It is the rare case that remains under seal only 60 days, however, and in some cases, the government keeps the qui tam under seal for years, even over the objection of the relator. For example, one case in the Middle District of Florida, the Wasserman case, was filed under seal in 2004, but the government did not unseal it until 2010.Ben Vernia at False Claims Counsel blog recently wrote about one federal district court judge in South Carolina who has given notice that the court will no longer agree to these automatic extensions of the seal for qui tams. In a recent "standing order," U.S. District Court Judge Joseph Anderson, Jr. observed that in "recent years, this court has extended the seal period, at the request of the government, on eight occasions in two actions," only to be informed by the government after all that time that it was not going to intervene in those cases.Judge Anderson noted that the 4th Circuit observed that there are four reasons why Congress adopted the sixty-day seal period: "(1) to permit the United States to determine whether it already was investigating the fraud allegations (either criminally or civilly); (2) to permit the United States to investigate the allegations to decide whether to intervene; (3) to prevent an alleged fraudster from being tipped off about an investigation; and, (4) to protect the reputation of a defendant in that the defendant is named in a fraud action brought in the name of the United States, but the United States has not yet decided whether to intervene." Am. Civil Liberties Union v. Holder, 673 F.3d 245, 250 (4th Cir. 2011). Judge Anderson, however, noted that "none of the foregoing reasons for extending the seal period involve discovery of documents from the putative defendant or settlement negotiations." In turn, the Court observed further that the FCA's legislative history provides that "with the vast majority of cases, 60 days is an adequate amount of time to allow Government coordination, review and decision."In light of these considerations, Judge Anderson stated that in deciding whether "good cause" exists to continue the seal after 60 days, "henceforth, the court will no longer consider informal discovery and/or settlement negotiations as sufficient grounds for extending the seal period."If widely adopted, Judge Anderson's position would radically change FCA practice both for relators and qui tam defendants.A. Brian AlbrittonDecember 16, 2013
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