The average American spends a little over five hours a day
watching television. Malik M. Al-Dor
should watch more of it, especially crime shows. Criminal trial lawyers in Cuyahoga County are
a sorry lot, at least according to criminal appellate lawyers. And one other thing we learn from the spate of
decisions from the 8th District over the past two weeks - besides the fact that
the number of them in 2013 declined by 13% over 2012 - is that New Year's is a
more... um... challenging holiday than Christmas:
the court spewed out 19 decisions the day after St. Nick's visit, but
mustered the strength to dispense only one the day after the ball fell on Times
Square. Make of that what you will.
What's Up in the 8th
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Reimagining a New Ending to “Reimagining Legal Services”
Mitchell Kowalski, Avoiding Extinction: Reimagining Legal Services for the 21st Century (2012).Richard ParnhamSpoiler alert: This Jotwell review reveals the plot of Mitchell Kowalski’s book, Avoiding Extinction: Reimagining Legal Services for the 21st Century.
In recent years, those of us who are interested in legal services market innovation and disruption are often presented with two different types of source materials to satisfy our curiosity. First, there is blue-skies thinking—ideas that might ultimately become mainstream but not in the immediate future. Secondly, [...]
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Marijuana Trial to Begin for Malcolm French, Rodney Russell & Kendall Chase
This week, one of the largest marijuana busts in Maine history will go to trial in Bangor federal court. Malcolm French, Rodney Russell and Kendall Chase, all businessmen in their 50s, are accused in a marijuana trafficking conspiracy involving thousands of marijuana plants worth some $9 million. The indictment alleges that from 2006 to 2009, the men ran an outdoor marijuana grow of at least 1000 plants in rural Washington County Maine. Federal law mandates a minimum prison sentence of 10 years and a maxim sentence of life.All three defendants remain free on bail since they initial arraignments in September of 2012. French is represented by Walter McKee, Russell by Stephen Peterson and William Maddox, and Kendall Chase is represented by Jeffrey Silverstein. AUSA Joel Casey is the lead prosecutor.The indictment alleges 11 criminal counts and separate forfeiture allegations naming at least four parcels of land and the entirety of a company known as Haynes Timberland Inc. That company is also named as a defendant and is represented by Thomas Marjerison. Timberland will join the three human defendants at trial. Jury selection is scheduled for January 8, 2014 with opening statements immediately after.For more details about the case, read the government’s trial brief. It runs about 25 pages and gives an overview of the investigation and trial evidence. You can can also read coverage of the case in the Portland Press Herald. Check back here for updates as the trial unfolds. It will likely continue through the end of the month.Image by eggrole via flickr
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DPAs, NPAs and the Hybrid Corporate Monitor
In the relatively short but significant history of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs), imposition of an independent monitor has typically been an all-or-nothing proposition. A monitor was either required for the entire term of the agreement (usually three years), or a monitor was not required at all. Recent enforcement actions, however, signal an increased willingness to compromise on the all-or-nothing approach. In two recent FCPA-related settlements in the medical devices industry in February and March 2013, and in the manufacturing industry in October 2013, DOJ adopted a “hybrid” approach to monitoring. The DPAs entered in each settlement imposed a compliance monitorship whereby the company must retain an independent monitor for an 18-month period and then self-monitor and report its compliance with the agreement for the remaining 18 months of the DPA. The agreements also provided DOJ discretion to reduce or extend the monitor’s term (a provision infrequently included in previous DPAs and NPAs).
Although the “hybrid” approach to corporate monitoring is not new, recent comments by Charles Duross, DOJ’s FCPA unit deputy chief, suggest it is here to stay. In his remarks last month at the American Conference Institute’s 30th International Conference on the Foreign Corrupt Practices Act, Duross noted that DOJ is employing greater flexibility with respect to corporate monitors and will continue to implement the hybrid approach. When combined with DOJ’s detailed guidance on the selection and use of monitors found in its so-called “Morford Memo” (2008) and “Grindler Memo” (2010), the hybrid monitor approach offers counsel a significant opportunity to advocate for their clients and lessen the burden and cost of complying with the rigorous terms of DPAs or NPAs. More importantly, it rewards companies that heavily invest in post-enforcement compliance and remediation that are designed to detect and correct the types of misconduct that resulted in the underlying criminal action.
While notable in and of itself, this evolution of law enforcement thinking with respect to the use of monitors is a reminder that the DPA and NPA approach to resolving white collar matters is a relatively young philosophy. This philosophy is subject to further development through advocacy and actual experience derived from a growing population of completed DPAs and NPAs. Practitioners should remain mindful that there is ample room for driving further evolution with practical and creative thinking.
The McGuireWoods Guest Blogger is Brandon M. Santos, an associate based in McGuireWoods LLP's Richmond office who advises and defends corporate and individual clients facing regulatory, administrative and criminal investigations.
This article originally appeared on the McGuireWoods blog Subject to Inquiry, which provides commentary on white collar, congressional, SEC, energy enforcement and other government inquiries.
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ARTHUR HEARINGS UNDER ATTACK
This email crossed our desk yesterday:Has anyone else recently been told by ASA that if you proceed forward with an Arthur hearing, there will be no below guidelines plea later?I have burg/batt case. Client is friend of victim family and visits often. He was super high on drugs, went into house and was caught stealing stuff. No priors. Fight among three teenage boys.... all who have been friends for years. Client then went into convulsions.Clearly, a judge would grant a bond but, ASA threw that bombshell at me.Anyone been down this road?Rumpole replies: Yes, we've been down this road, and let us guide you. We have no idea whether or not this is the new policy of the Dade SAO or some pissant ASA who is either 1) lazy; 2) trying to make a name for themselves or 3) both. Here is how you respond to this type of tyrannical bullying:Dear ASA:You informed me that if I asked for an Arthur hearing for my client for the purposes of obtaining a bond that you would, in your official capacity, retaliate against my client by refusing to ever in the future examine the merits of the case and the justice of what punishment my client deserves, and punish my client for having the temerity for seeking his rights under the constitutions of the United States and Florida. As you informed me, the punishment for seeking to exercise his right to bond would be that you would NEVER offer a below guidelines plea regardless of how the facts in this case are developed through discovery and whether justice would require a below guidelines plea. Good for you. Could you please respond in writing confirming that it is your policy, and your office's policy, to punish defendants who exercise their constitutional rights? While we are at it, besides your office exacting punishment for a defendant seeking bond, are there any other exercises of constitutional rights that your office has decided merits punishment? For instance, will asking for discovery trigger an increase in the offer? Will taking depositions trigger a larger increase in the offer? Will demanding a trial by jury trigger a decision by your office to seek the maximum allowable punishment under Florida Law? Is there a part of your office's website that conveniently lists the "triggers" and corresponding punishments? Are you proud of your role in punishing defendants for the exercise of their constitutional rights? Did they recently change the oath you take as a prosecutor, changing the requirement of protecting the constitution and constitutional rights to suppressing those rights that you find personally troubling or time consuming? I am assuming that the punishment for asking for an Arthur hearing includes the blanket refusal by your office to ever drop charges even in the event my client turns out to be innocent. Clearly a dismissal would be a below guidelines result. I await your response. Yours, etc.__________Your name Here, Esq. Any input from the FACDL (besides their annual dues bill)? The point here is to never, ever, ever back down when a prosecutor threatens your client for exercising a right under the constitution. The remedy is to embarrass them. Make them say it in open court on the record. Ask in writing that they confirm the conversation-threat. If they don't think there is anything wrong with their policy, why shouldn't they proudly announce it on the record and in writing? That the Dade SAO continually seeks to play these types of games is troubling. "The only thing necessary for evil to flourish is for good men to do nothing."Edmund Burke. See you in court. Site Feed
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E.D. Wis.: A backpack may be subjected to a frisk
A backpack was a proper subject of a frisk under Terry and Long. There was reasonable suspicion for a frisk of defendant’s backpack for a weapon on the totality of circumstances. It was a proper subject of a frisk. He was a suspect in a burglary, was suspected to be armed with a weapon in the backpack, and refused to stop when the police called out to him. Alternatively, the court finds the officers’ claim that defendant consented not believable because they claimed he repeatedly said he consented but the defendant said he repeatedly said he did not consent. The government did not carry the burden on consent. United States v. Leo, 2013 U.S. Dist. LEXIS 182360 (E.D.Wis. October 30, 2013).
Officers had a credible report from a citizen’s informant that there had been domestic violence on the property, and that justified their coming. When there was no answer at the door, it was reasonable for them to enter. United States v. Dupree, 2014 U.S. App. LEXIS 164 (10th Cir. January 6, 2014).*
The statement from the officer wasn’t false under Franks. The law recognizes that facts are gathered hastily and can be inaccurate without invalidating a warrant. In addition, even if false, it wasn’t presented in bad faith, so Franks affords no relief. United States v. Holmes, 2013 U.S. Dist. LEXIS 182388 (W.D. Tenn. December 9, 2013).*
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N.D.Ohio: Failure to use date filter in computer search wasn't constitutionally overbroad
In a computer search warrant, the failure to abide by a date search filter did not make the search constitutionally overbroad. United States v. Rarick, 2014 U.S. Dist. LEXIS 953 (N.D. Ohio January 6, 2014):
=> Read more!
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W.D.Tenn.: Apparently erroneously shifting burden to defendant, he can't show seizure of house was invalid
Seemingly shifting the burden of proof (“Having failed to present any factual or legal support, Defendant's contention is without merit.”) the seizure of defendant’s property pending obtaining a warrant was valid. United States v. Bigbee, 2014 U.S. Dist. LEXIS 694 (M.D. Tenn. January 3, 2014).*
Defendant’s claim that consent was consent was coerced by a threat to shoot defendant’s dogs is rejected on the facts. United States v. Mason, 2014 U.S. Dist. LEXIS 866 (D. Ore. January 6, 2014).*
The stop was justified at its inception by a traffic offense and a tip, and it was not unreasonably extended. United States v. Segura, 2014 U.S. Dist. LEXIS 1044 (W.D. Tex. January 6, 2014).*
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Proposed Ohio Alcohol Law Would Loosen Open Container Law
A proposed change in Ohio Alcohol Law would allow folks to walk around with an open container.
Senate Bill 116 allows for the creation of municipal entertainment districts in cities where the population is more than 50,000. Under the law, patrons of establishments that sell beer or liquor would be permitted to take their drinks outside of the bar or restaurant where it was purchased. Only holders of A-2 and D liquor permits would qualify under the proposed law. The [Read the full post. . .]
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Po-Verletzung: Frau will 100.000 Euro nach SEK-Einsatz
Ein bizarrer Fall beschäftigt das Landgericht Augsburg: Eine Frau erlitt Verbrennungen an ihrem Allerwertesten, als das SEK beim Aufbruch ihrer Wohnung Blendgranaten warf – nun will sie Schmerzensgeld. Die Spezialkräfte wollten den Mann der Frau festnehmen, der unter anderem des unerlaubten Waffenbesitzes beschuldigt wurde. Die vermummten Beamten stürmten das Haus des Waffennarrs, der mit einer […]Original: Po-Verletzung: Frau will 100.000 Euro nach SEK-Einsatz
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Large proportions of young men arrested by age 23
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DWI Blood Draws and Your Drivers License
When I first started DWI defense lawyering blood draws were pretty rare in DWI cases, but today they are becoming more common with the “no refusal” weekends etc. This has caused some problems as far the ALR/driver license suspensions are concerned. How does a blood draw affect your drivers license? Let’s take a look. When […]
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Criminal Case Prosecution in San Diego: Do I Have to Show Up in Court If I Don’t Want to Prosecute?
Many criminal offenses in San Diego California include an alleged victim. Theft, rape, and domestic battery, for example, include a victim as part of the crime. Sometimes, the alleged victim has a change of heart after reporting the crime and doesn’t want to pursue the matter. This, in turn, often ...The post Criminal Case Prosecution in San Diego: Do I Have to Show Up in Court If I Don’t Want to Prosecute? appeared first on Law Office of Domenic J. Lombardo.
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Real Estate Agents Settle Fraud Allegations
Jana DeWitt and Kenneth Westfall, licensed real estate agents operating in Colorado Springs, Colorado, have paid the United States $93,500 in civil penalties to settle allegations that they engaged in deceptive conduct that violated the Financial Institutions Reform Recovery and Enforcement Act (FIREEA). According to the United States, Jana DeWitt engaged in fraud in at […]
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Agent Sentenced for Her Role in a Real Estate Fraud Scheme
Teresa Rose, Ramona, California, a real estate agent, was sentenced to 15 months in custody by U.S. District Judge John A. Houston for her role in an investment and mortgage loan fraud scheme that generated tens of millions of dollars in fraudulent loans and millions in illegal kickbacks to the participants. In addition, Rose was […]
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PA: Possession of a car is indicative of standing, but it's not controlling
Being in possession of and driving a car is indicative of standing, but it only a factor. More is required. The trial court’s conclusion on the probable cause question is a mixed question of law and fact, and the appellate court disagrees here that there was probable cause for a search of defendant’s car. The police had reasonable suspicion but not probable cause. Therefore, the motion to suppress should have been granted. Commonwealth v. Newman, 2014 Pa. Super. LEXIS 2 (January 6, 2014).*
Officers had reason to stop defendant for taillights and no LPN. He consented to a search of his person and a contact lens case which had methamphetamine in it. United States v. Stringer, 2014 U.S. App. LEXIS 157 (8th Cir. January 6, 2014).*http://media.ca8.uscourts.gov/opndir/14/01/123397P.pdf
Defendant was charged with contempt and witness tampering. There was probable cause and nexus to his house for a search warrant. United States v. Walker, 2013 U.S. Dist. LEXIS 182429 (D. Minn. December 4, 2013),* adopted 2014 U.S. Dist. LEXIS 692 (D. Minn. January 3, 2014).*
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Third Person Charged in HUD Mortgage Fraud Case
Sarah Kate Henecke, 35, also known as Alessandra Valencia Toscanelli, Las Vegas, Nevada, has been indicted for her role in a mortgage fraud scheme. Henecke was arrested in Nevada on December 11, 2013. She is scheduled to make her first appearance in federal court in Idaho at 11:00 a.m. on January 15, 2014, before U.S. […]
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Why Juvenile Cases Should Be Tried
When I was a public defender, a major challenge was the client with a lousy case and a good offer on the table who nevertheless insisted on taking his case to trial. He didn’t trust his lawyer to provide good legal advice. And he often had some zany idea about what he thought was going […]
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Other states reduce solitary use, Texas study authorized but languishes, unfunded
Grits wanted to alert readers to several interesting, recent items related to solitary confinement, which in Texas is called "administrative segregation," or "ad seg." Brandi Grissom at the Texas Tribune reports that an unfunded study of solitary confinement authorized by the Texas Legislature likely won't come off because nobody in state government is seeking "gifts, grants and donations" to make it happen, though one suspects grant funding would be available if they sought it. Said an advocate quoted in the story, “Texas has the second-largest administrative segregation population in the country, with over a quarter of the people in there with mental illness.”Meanwhile, the Wall Street Journal reported (Jan. 5) that:The New York City Department of Correction has stopped its controversial use of solitary confinement for mentally ill inmates who break the rules, a shift that jail officials are hailing as groundbreaking.The last of the prisoners being held in the Mental Health Assessment Unit for Infracted Inmates at Rikers Island jail were reassigned Dec. 31, and what is known as the punitive segregation program has been permanently closed, said Correction Commissioner Dora Schriro, an appointee of former Mayor Michael Bloomberg. ...The changes follow a September report commissioned by the City of New York Board of Correction, a watchdog agency with powers to order changes in the city's jail system. The report was critical of the practice of solitary confinement for mentally ill inmates. The report found that over the past six years the number of beds designated for punitive segregation in city jail increased by nearly 62% to 998 and that about 41% of those in segregation units were mentally ill. With the policy changes that number has dropped to 782 beds, and it is expected to decrease to about 650 by the end of June, said Ms. Schriro. Punitive segregation is still used for prisoners other than those with mental illness diagnoses, though Ms. Schriro said other recent changes have dropped the average confinement there by more than a third.Finally, the Albuquerque Journal published a column this week on solitary confinement which reported that "New Mexico officials have the goal of cutting their segregation statistics from near 10 percent of inmates to 5 percent. Why? Because they have found that it doesn’t really work." The article concluded:Even if we think prison should be a place where lawbreakers suffer for their misdeeds, why should we care [about solitary confinement]? From a bottom-line perspective, because solitary is expensive.From a practical perspective, because, as [Deputy Corrections Secretary Joe] Booker points out, nearly everyone gets out of prison. They come back to our towns and neighborhoods, and if they come back less socialized, their mental illness worse and their anger deepened, then we’ve only made one of our problems worse.
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Staatsanwaltschaft eröffnet Ermittlungsverfahren gegen Streaming-Abmahner
Seit Wochen beschäftigen die Streaming-Abmahnungen das Internet. Nutzer von RedTube wurden von einer Kanzlei abgemahnt, weil sie angeblich eine Urheberrechtsverletzung begangen haben sollen. Nun hat die Staatsanwaltschaft Hamburg ein Ermittlungsverfahren gegen den Geschäftsführer der abmahnenden Kanzlei eröffnet. Zuvor hatte eine andere Rechtsanwaltskanzlei eine Strafanzeige bei der Staatsanwaltschaft Hamburg wegen besonders schwerer Erpressung (§ 253 . . . → Read More: Staatsanwaltschaft eröffnet Ermittlungsverfahren gegen Streaming-AbmahnerÄhnliche Beiträge:Redtube-Abmahnungen: Wer sich vielleicht strafbar gemacht…Anklage gegen ehemaligen Geschäftsführer erhobenVerfahren gegen Jugendpfarrer ausgesetztDSK: Neues Ermittlungsverfahren?Verfahrenseinstellung im Fall eines zu schnellen…
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