A lot has happened in the last few months. This is so both in the world of white-collar enforcement and just in the world. I thought I’d share some thoughts on last week’s news about Michael Flynn and the Supreme Court’s decision in the “Bridgegate” case.

I. Flynn-sanity or: Gee, it must be nice to be the President’s buddy when you lie over and over again.

First up, Michael Flynn. He’s been a repeat player on this blog.

The Background. The short version is this: After the 2016 election but before the 2017 presidential inauguration, incoming National Security Advisor Flynn spoke to Russia’s ambassador to the U.S. about U.S. sanctions against Russia. He asked the Russians not to escalate tensions. But he told incoming Vice President Pence later in the transition that he had not discussed the sanctions. He told the FBI the same thing in late January 2017. He pleaded guilty to one charge of making a false statement to the FBI, and also admitted that he had acted as an unregistered agent of the Turkish government during the transition, and that he made false statements to DOJ in March 2017 about his actions on Turkey’s behalf. But then he tried to withdraw his guilty plea. Last week, DOJ filed an unusual motion asking the court to drop the charges against Flynn.

The Controversy. Depending on who you ask, this is either (1) vindication for an innocent man railroaded by the FBI, (2) a stunning assault by the Attorney General on the rule of law and an act of pure corruption to protect the President’s allies, or (3) a small taste of the kinds of pressures that less well-connected subjects of federal investigation face every day. For my part, I lean toward some version of (2) and (3), though neither completely captures my view. Continue Reading Some Thoughts on Michael Flynn & Bridgegate

80 years ago today, Edwin Sutherland introduced the phrase “white-collar criminal.” Sutherland, a noted criminologist, coined the phrase in an address—”White-Collar Criminality”—to the American Sociological Association on December 27, 1939.

The speech focused “crime in the upper or white-collar class, composed of respectable or at least respected business and professional men . . . .” Sutherland contended that criminologists were mistaken to tie understandings of criminal behavior to poverty and mental illness, because most of the data on which those criminologists drew excluded studies of white-collar criminals. In a particularly perceptive passage, Sutherland flagged that the social class from within which many white-collar criminals are drawn plays an outsized role in making the laws.

It’s a fascinating read, and I highly recommend it to any interested in one historical snapshot of white-collar crime and its academic study.

Ten years later, Sutherland published a book, White Collar Crime, which also had a tremendous influence in the field.

 

What happens when the President of the United States asks for a bribe?

I know what you’re thinking: what could possibly have inspired this topic? I’m not here to throw partisan stones or to take sides on the House’s ongoing impeachment inquiry, though publicly available information is pretty damning. Instead, I want to look at what we know now—and what we might know in the future—through the lens of the federal criminal law governing bribery.

I want to briefly explain four things:

  1. What the bribery statute says
  2. Why the facts about Ukraine-gate potentially implicate the solicitation—but not the offering—of a bribe by the President
  3. Whether the bribery statute applies to the President
  4. What legal defenses the President may have if he’s ultimately prosecuted

Continue Reading Presidential Bribery

Recent weeks have seen a few significant white collar issues in the Pacific Northwest and nationally.

Perhaps none has attracted more national attention than the charges against an accused hacker who allegedly compromised the personal and financial data of more than 100 million Capital One customers. The defendant is also suspected of hacking data held by dozens of other companies. She has been detained pending trial. Wired has a great write up on the case. We may explore “cryptojacking”—using the processing power of computers one doesn’t own to mine cryptocurrency, as the defendant here is alleged to have done in a few instances—in a future post.

After 18 years, there have finally been criminal charges related to the tragic murder of a federal prosecutor here in Seattle. We’ve discussed the murder before, when former Deputy Attorney General held a press conference on the subject. Unfortunately, the new charges are not for the murder, but for a witness’s allegedly false statements before a grand jury. One can only hope that these actions represent meaningful progress on seeking justice for a profound tragedy and an assault on the rule of law itself.

Continue Reading Data Breaches and More False-Statements Charges

This last week saw the passing of two titans of American law: John Paul Stevens and Robert Morgenthau. Both led remarkable lives and careers.

Justice Stevens died last Tuesday at age 99. Over more than 30 years on the U.S. Supreme Court, he authored critical majority and dissenting opinions on issues central to white collar criminal enforcement—indeed to criminal law generally. To start, he authored several of the decisions that have transformed criminal sentencing. One of these was Apprendi v. New Jersey, which held that any fact (other than a prior criminal conviction) that increases a defendant’s punishment beyond the otherwise applicable statutory maximum had to be proven to a jury beyond a reasonable doubt. Another, United States v. Booker—a fractured opinion in which Stevens wrote in part for the majority and partially in dissent—the Court invalidated a federal statute that generally required judges to sentence defendants within the ranges set by the U.S. Sentencing Guidelines.

Stevens also dissented from the Supreme Court’s 1987 decision that the federal mail and wire fraud statutes required the government to prove that defendants had deprived their victims of tangible property, including money. It was not enough, the majority said, for a victim to have been fraudulently deprived of “honest services.” Justice Stevens disagreed. He wrote that the Court’s decision undermined Congress’s efforts to broadly proscribe fraudulent schemes. Congress ultimately vindicated Stevens’s view by enacting a new honest services statute the year after the Court’s decision.

Finally, I urge you to read this recent piece in the The Atlantic discussing Stevens’s formative encounter with white collar issues and the criminal justice system more generally when his father was convicted with embezzlement when Stevens was a child. The conviction was ultimately overturned.

I’m not really equipped to comment on all the ways that Justice Stevens made our society better. He was a veteran, an able lawyer, and a judge who always kept the humanity of the parties before him centered in his opinions.

Continue Reading This Week in White Collar News: In Memoriam

  • We’ve linked to alleged gold-based fraud schemes before. Here’s another set of charges—for mail fraud in Oregon—against the owners of a coin business who allegedly misrepresented their operations to clients.
  • And in Alaska, a sparsely detailed indictment for money laundering growing out of a drug operation.
  • DOJ dispatched a representative to Prague to deliver remarks to the ABA’s Global White Collar Crime Institute Conference. The focus was on international cooperation in anti-bribery efforts.
  • And a few items of interest at the Supreme Court. Most significantly, longtime Deputy Solicitor General Michael Dreeben will be leaving DOJ. It’s a loss for the government to be sure: there are few more widely admired experts on federal criminal law out there.
  • In a 7–2 opinion, the Supreme Court also re-affirmed the separate sovereigns doctrine in its double-jeopardy jurisprudence that we’ve discussed before.
  • Though it’s a bit far afield from the world of corporate criminality and fraud, the Supreme Court’s fractured opinion in another criminal case featured a casual snipe by several Justices at one of the administrative law premises underlying modern governance. Too early to tell, but the case may be a harbinger of a resurrected non-delegation doctrine: Just when you thought it was defeated, it attacks again like “actual cannibal Shia LaBeouf.”

Lots of national white collar stories in recent weeks.

But first, why no thoughts (yet) on the Mueller Report? First, it’s been and will continue to be widely covered elsewhere. Second, it’s been a busy two days, and I haven’t finished reading it yet. You probably shouldn’t trust the analysis of anyone else who hasn’t done so either. There are lots of other white collar happenings, though:

  • Part 234 of our ongoing series, “Don’t Lie to Federal Agents,” features former Obama White Counsel Greg Craig’s indictment for lying about work for the Ukrainian government, a subject we’ve covered before.
  • And speaking of conduct that implicates the Foreign Agents Registration Act, convicted FARA violator Sam Patten awkwardly asked a question of a panel featuring the head of the DOJ’s FARA unit.
  • Meanwhile, in my old stomping grounds of Santa Ana, California, a federal grand jury has added sweeping new charges of tax evasion and bilking clients against very bad lawyer/person Michael Avenatti.
  • Noted non-legal-expert Edward Snowden thinks that the conspiracy charges against Julian Assange represent a “dark moment for press freedom.” As with so many other topics, Snowden is wrong.
  • Closer to home, there’s a wire fraud and money laundering indictment in Portland for allegedly persuading victims to deposit bitcoins into an investment scheme promising “zero risk” and 20 to 50 percent returns. Those promises are what some call red flags . . .
  • A top Aequitas executive pleaded guilty yesterday to federal mail and wire fraud charges in Portland.
  • Yet more fraud action in Portland, with an indictment for allegedly avoiding millions of taxes and various bank fraud schemes.
  • And by way of update on my favorite fraud story of 2019 to date—a man posing as a British billionaire to lure investors—a federal judge in Seattle has approved the seizure of $600,000 from a bank account owned by a third-party who allegedly rented a mansion to the fake Brit to help him keep up appearances.
  • Former Manhattan U.S. Attorney and legal podcast star Preet Bharara was in Seattle a few weeks ago promoting his book. It was a great talk, and the book is thus far a great read.

Bribery has got to be smooth …

Happy new year! While the shutdown has slowed DOJ, it has not stopped it. And we have fraud documentaries from Netflix and Hulu.

  • Just after the new year, the Senate confirmed Brian Moran as the Western District of Washington’s new U.S. Attorney.
  • Also in Seattle, a guilty plea to wire fraud and filing a false tax return. The scheme involved defrauding the Washington Department of Revenue by under-reporting chewing tobacco purchased from tribal smoke shops and claiming phony tax credits for sham tobacco sales to those smoke shops.
  • A cautionary tale: one of the country’s most prominent law firms has to fork over $4.6 million to the government for its work on behalf of Ukraine’s government. The firm was acting as unregistered agent of a foreign principal, a no-no under the Foreign Agents Registration Act (“FARA”). Though the work was Manafort-related, these requirements govern folks from both parties. The lead lawyer was former Obama White House Counsel Greg Craig, politely referred to as “Partner-1” in the firm’s agreement with DOJ. According to that same agreement, Partner-1 made false and misleading statements to DOJ’s FARA Unit. While we can’t know the implications without more information, I wouldn’t want to be Partner-1 right now.
  • Nor would I want to be Individual-1. We all remember him, right? Well, yesterday Buzzfeed [insert joke about listicles here] dropped a bombshell report claiming that President Trump directed Michael Cohen to lie to Congress. If true, that’s a game-changer. But I wouldn’t jump to any conclusions yet: the notoriously tight-lipped Special Counsel’s Office said today that Buzzfeed‘s characterization is inaccurate. Jokes aside, however this story turns out, Buzzfeed has been doing some exceptional reporting for years, and Jason Leopold and Anthony Cormier—the co-authors of this story—are required reading on the Russia investigation.
  • Because we live on the strangest possible timeline, not one but two documentaries about the infamous Fyre Festival are now out—one from Hulu and the other from Netflix. We’ve brought up Fyre Fest before on these pages. Though it’s hard to feel too bad for victims who shelled out obscene amounts of money for the chance to take an Instagram selfie with Kendall Jenner, lots of people—including local workers in the Bahamas—were hurt by the 2017 debacle.
  • Finally, my favorite (or perhaps favourite?) fraud story of 2019 thus far: an indictment in Seattle for a Canadian man who allegedly pretended to be a British billionaire to bilk investors. I hope the accent was convincing.

Happy holidays after a long break. While we may have been quiet, DOJ has not.

  • The U.S. Attorney’s Office in Portland has charged three men with bank fraud and money laundering. The three allegedly used SnapChat to recruit students at Grant High School in Portland to deposit counterfeit checks, luring the teens with pictures of fancy cars and piles of cash in a social media group called the “God Squad.” Start ’em young, I guess.
  • In Eastern Washington, an indictment divides 101 felony counts  among 22 defendants for a massive alleged fraud scheme that involved staging car, boat, and slip-and-fall accidents in four states over five years. The racket made more than $6 million from insurance payouts.
  • In news that should bring some holiday cheer to corporations in DOJ’s cross-hairs, Deputy Attorney General Rod Rosenstein announced a slight revision to the policy in DOJ’s much-vaunted Yates Memo. The biggest change is to relax the requirement that corporations identify all individuals involved in any aspect of criminal misconduct to receive any cooperation credit. Cooperation credit will now be contingent on a corporation identifying those individuals who were significantly involved in or  caused the criminal conduct.
  • In Pennsylvania, DOJ has joined a False Claims Act suit about alleged kickbacks paid to physicians.
  • Remember when Michael Flynn ruminated about sending a Turkish cleric from the US to Turkey but omitted that he and his company got paid half a million dollars by the Turkish government? Well, DOJ remembered . . . .