Corruption by kdeen1

VIEWS: 24 PAGES: 17

									CORRUPTION LAW OUTLINE                                                    Prof. Zack SPRING 2011

FEDERAL CORRUPTION
Public Corruption Def: The steering of benefits to an official, their family members, or connections
    - Bribery
    - Gifts for influence
             o Food
             o Parties
             o “cash in a bag”
    - Gratuities
PURPOSE: Public officials are under oath to serve the public, and by allowing outside influences to bear
on that, the public is not being put first (the officials needs are). Tax payers are like consumers because
they expect to get their money’s worth. They are unlike consumers in that there is little recourse for
dissatisfied “customers” (not really any competition, other than voting for someone else in the next
election)
     Ex: United States v. Jefferson (brought in the E. District of VA)
             o FACTS: Prosecution brought charges based on violation of D’s oath as an official.
                  Prosecution also cited violation of House Rules requiring the reporting of his income and
                  that of his family. Case was brought against Jefferson in Arlington because that is where
                  his home was an d where he accepted the bribe. Jefferson admitted that what he did
                  was sleazy, but that he did not do anything illegal, and therefore should not have to go
                  to jail
                        Tensions:
                                 Article I § 6 immunity clause reserves the privilege to arrest (accept for
                                    treason, felony, or breach of peace) public officials during their
                                    attendance at the session of their respective houses (going to and
                                    from), and for any speech or debate in either house
                                        o Yet, the FBI searched Jefferson’s office
                                        o Process creates some tension
                  HELD: Convicted on 11/16 counts. Jefferson argued that what the FBI did was wrong,
                  and was against the immunity clause under Article I § 6 (Speech & Debate Clause). How
                  can the FBI search if they are constantly afraid of coming across privileged material. In
                  order to find the $90,000, they had to look in places that might include legislative
                  materials (in file cabinets). The court said they had to return everything that was
                  privileged, and got to keep anything that wasn’t.
     Ex: United States v. Cunningham
             NOTE: The difference between Jefferson and Cunningham is that Jefferson was smart about
             it, and getting deals for family members; whereas Cunningham’s schemes were a little less
             evasive. Therefore Cunningham was only charged with 2 counts.
             o FACTS: Cunningham was charged with bribery and tax evasion (where do you claim
                  bribes on your taxes?  no one would expect you to claim it on your taxes). He
                  deposited checks in his own bank account. He also had a friend purchase his house for
                  $500,000 more than it was worth so that someone looking at the records would think it
                  was legitimate. He pleaded guilty and cooperated with authorities.



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STATE CORRUPTION
United States v. Blagojevich



LOCAL CORRUPTION
RULE: The federal government is also responsible for prosecuting local officials
     Ex: United States v. Kilpatrick
            o FACTS: Kwame was already in jail for perjury. Recently the federal government
                announced that they would bring federal corruption charges against him. Should an
                official already serving/facing punishment face additional charges when they are already
                paying their dues in one form or another
                      YES.
Police Corruption


Protection of Government Integrity

 Bribery/Gratuity Offenses Involving Federal Employees – 18 U.S.C. § 201
   Def: Bribe - When a thing of value is given in exchange for an official act
          o Ex: Loans can be bribes when they are given in exchange for favors of official acts
   RULE: § 201 (which covers federal officials) prohibits bribes to federal officials (Ex: Jobs)
      United States v. Valdes

 18 U.S.C. § 201 – Defines a public official and an official act
 Hobbs Act - Extortion Involving State/Local Officials – 18 U.S.C. § 1951
RULE: U.S. Federal law prohibits actual or attempted robbery or extortion affecting interstate commerce
or foreign commerce. It is also prohibited to conspire to commit robbery or extortion.
         Originally enacted to comeback racketeering in labor-management disputes, it is frequently
         used in connection with cases involving public corruption, commercial disputes, and corruption
         directed at members of labor unions.
Covers 2 distinct forms of extortion
    1. Extortion by fear
    2. Extortion by color of law
             a. Where a government official uses his position to obtain payment from a victim
             NOTE: Unlike federal bribery, and gratuity statute, federal, state and local officials can all be
             prosecuted for extortion by color of law


STANDARD: Requires only a minimal effect on interstate commerce. If industry has some effect on
interstate commerce, and is the victim of extortion, the Hobbs Act applies.
        The government will often use the depletion of assets theory to prove the jurisdictional
        element. Under this theory, interstate commerce is affected when an enterprise, which either is
        actively engaged in interstate commerce or customarily purchases items in interstate
        commerce, has its assets depleted through extortion, thereby curtailing the victim's potential as
        a purchaser of such goods. While the courts have interpreted the jurisdictional element liberally,
        it is not a formality; courts have drawn a distinction under the depletion of assets theory


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        between individuals and businesses. While depletion of a business' assets is usually sufficient to
        show an effect on interstate commerce, depletion of an individual's assets generally is not.
        United States v. Urban
        United States v. Faison
        Evans v. United States
        McCormick v. United States

 Bribery involving federal funds – 18 U.S.C. § 666
RULE § 666: Statute that prohibits someone from taking a bribe if the program that is involved in the
bribe receives federal funding.
        Sabri v. United States
        United States v. Whitfield



HONEST SERVICES FRAUD – 18 U.S.C. §§ 1341, 1343, 1346
“Sunshine is said to be the best of disinfectants.” - L. Brandeis, Other People’s Money
       The public shining light on what officials do will cause them to behave (ethically or morally)

Def: Crimes that do not fit into the bribery or extortion categories – prohibits bribes and kickbacks
HISTORY: Honest Services Fraud comes out of mail fraud and wire fraud statutes.
RULE: It is a federal crime to commit a scheme to defraud the public
    - Only covers state employees (not federal employees)
    - Mail and wire fraud cover federal employees
PROCESS: State, federal and local government officials must disclose their financial interests and those
of their family members.
         This discloses where your private financial interests are
Some officials are permitted to hold other jobs.
    - PROs: On very local levels, the positions pay next to nothing (Ex: Mayor makes $5,000/yr) –
         incentive to take that position
    - CONs: May fuel/encourage corruption and abuse of power; may not ask within the best
         interests of the public, but in the best interests of the official
Disclosure:
     Family members’ pay
     Campaign contributions
     Travel expenses
     Former employment
             PURPOSE: The theory of failure to disclose is a valid theory[…]; bribery is difficult to
                 prove, and such a tool is a vital for prosecutors (United States v. Kemp)
RULE: The public is entitled to the unbiased services of an official
     Ex: Taking a kickback from the tobacco industry, and voting in their favor for the sole purpose of
         repaying their kickback
              o Extends to an employee disregarding his/her duty
     Ex: McNally v. United States
              o HELD: Did not fit within the fraud statute: needs to be a property interest. The fact that
                  you are corrupting a public official is not a property interest.




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                       RULE: Under the mail fraud statute (federal law), the public does NOT have the
                        intangible right to honest services. It must be tangible (not a public official or a
                        private individual)
                     POSTURE: Congress responded by passing 1346, “the term ‘property includes
                        the intangible right to honest services.”
Reining In Honest Services Fraud:
    1. Prohibiting behavior that is otherwise illegal – clearly criminal (bribery and kickbacks)
            a. Downside of such broad regulation – will not be uniform because state laws are not
               uniform. Could have someone committing a federal crime (sentences are longer than
               the state) vs. state prosecutions
            b. Too much discretion left to federal prosecutors

What was Congress thinking when it passed §1346
RULE: For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or
artifice to deprive another of the intangible right of honest services
     1. Broad Language Argument – Used broad language, which leads some to argue that they
          intended It to be broad (and therefore tough)
     2. Narrow Language Argument (Skilling) – In Skilling, the Court held that Congress was intending
          to limit this regulation to bribery and kickbacks. This narrowed the mail fraud statute
                         Ex: Skilling v. United States – Court justifies by saying they must take the more
                            narrow path of application where there are two diverging interpretations
                                  How does the court read “bribery” and “kickbacks” out of § 1346, based
                                      on Congress’ language?
               o COUNTER: If so, why didn’t they explicitly use “kickback/bribery” language and
                   explicitly limit the power
               What Now?? – Do we fix the court’s decision in skilling (amend the state)? Are we ok
                  with the states take action in favor of the Court’s decisions in these cases?



RACKETEERING ACT (RICO) – 18 U.S.C. §§1961-68
 Racketeering Act (RICO)
    Def: Similar to Honor Services; allows you to turn state crime into those of federal law if (ex: using
    the mail to commit crimes, after so many times you can be charged with a federal crime). Allows law
    enforcement to charge a person or group of people with racketeering – committing multiple
    violations of certain varieties – within a 10 year period.
        o PURPOSE: the elimination of the infiltration of organized crime and racketeering into a
            legitimate organizations operating in interstate commerce
        Statute of Limitations – If the government does not charge you within 10 years of the statute,
        you cannot be charged.
United States Attorney’s Manual §9-110.000 (RICO)
     Ex: United States v. Harrison (Taxi Cab Inspectors)
     Ex: United States v. Kwame M. Kilpatrick




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TRAVEL ACT – 18 U.S.C. § 1952
 The Travel Act
  Def: Similar to RICO – incorporates state law – travel or use of interstate facilities (wires or the
  mails) to commit state law violations in a violation of federal law
      NOTE: Some state laws when added into interstate commerce violate federal law

FOREIGN CORRUPT PRACTICES ACT – 15 U.S.C. § 78DD-2(A)
 Foreign Corrupt Practices Act
  Def: Prohibits bribery by domestic companies/individuals from paying bribes to foreign companies
      If you are doing business in a foreign country (or a foreign country doing business in the U.S.), is
      a violation of the Foreign Corrupt Practices Act
   Ex: United States v. Gonclaves



LABOR CORRUPTION - LABOR UNIONS & PUBLIC OFFICIALS – 29 U.S.C. § 186
Labor Unions hold a lot of power
   - Can deliver votes
   - Votes can decide elections
   - Money/donations
   - Tradition in PA of political leaders being labor union leaders
RULE: There is only 1 primary statute dealing with labor corruption (very broad) – 29 U.S.C. § 186
                “It shall be unlawful for an employer [or similar person or entity]…to pay, lend, or deliver, or
                agree to pay, lend or deliver, or any money or other thing of value… (2) to any labor
                organization, or any officer or employee thereof, which represents, seeks to represent, or
                would admit to membership of any of the employees of such employer who are employed in an
                industry affecting commerce; or (4) to any officer or employee of a labor organization.”
EXCEPTIONS:
   - Compensation as an employee
   - Payment of judgment
   - Sale or purchase of an article at market price
   - Dues of a union
   - Payments to such things as pension trusts or medical benefit plans

LM-30 – Disclosure Agreement
RULE: Union officials must disclose any payments they have received from outside sources
       Includes all income received outside position as a union official
    Ex: Dougherty
           o FACTS: Charged with operating a cash payroll, D paid employees in case to avoid paying
               taxes, and reporting to the union. By paying in cash, he was paying below market value
               for the work. Prosecution brought labor corruption charges. In one instance, D sold his
               condo to John Dougherty for below market value, did upgrades to the property, and
               didn’t charge him for them. Also performed renovations on the union official’s home
               and only charged for a portion of it ($250,000 – $310,000)




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FRAUD AND MISUSES OF GOVERNMENT/CHARITABLE ASSETS
       Ex: Fumo
            o FACTS: Part of Fumo’s position as an official was to decide which committees received
                money in the democratic state senate. He used state resources for his personal gain,
                misused senate resources, mischaracterized charitable ventures (his non-profit -
                received grants from the state for his charity and pressured people to make
                contributions), had state workings doing tasks for his charity, and affected the passing of
                legislation that personally benefited him
       Detroit Investigation

CONDUIT CONTRIBUTIONS & ELECTION CRIMES
2 U.S.C. § 441(f) - No person shall make a contribution in the name of another person or knowingly
permit his name to be used to effect such a contribution, and no person shall knowingly accept a
contribution made by one person in the name of another person.
RULE: NO person shall make a contribution in the name of another person or knowingly permit his name
to be used to effect such a contribution, and no person shall knowingly accept contributions made in the
name of another person
     Ex: United States v. Curran
             o FACTS: D arranged to reimburse individuals for contributions they had made, at his
                 instigation, to his campaign funds for candidate for federal office. He was actuall
                 prosecuted for causing the campaign to submit a false report to the FEC. The statute of
                 limitations had run on the other crimes, so the government go around it with a different
                 charge  committed a misdemeanor, but did so in the jurisdiction of the U.S.
                 government. They chose the more narrow (as opposed to the more broad competing
                 charge), which was a felony. He testified at trial that he was aware that corporate funds
                 could not be used to make contributions, that there were limits, and that he was not
                 really focused on reports.
                 HELD: Court of appeals reversed the conviction and sent it back, because the jury
                 instructions needed to show that he specifically intended for that person to violate
                 federal law; he did not tell the lie, but he cause it. Intentionally  mens rea
                 requirement
                       The jury instructions said that he just had to know that what he was doing was
                          wrong, and lacked the information that it had to be the heightened standard –
                          must knowingly and willingly intend.
     Ex: United States v. Anibal Acevedo Vila, et al
             o FACTS: Donors looking for specific favors from candidate/elected governor of Puerto
                 Rico. The names and amounts donated do not appear on any FEC forms submitted to
                 the government.
                 HELD: Governor Acquitted (even though he was charged for more $$ than Curran)

Offices of the Prosecutors and Investigators
    - United States Attorney’s Offices
    - Criminal and Tax Divisions of U.S. Department of Justice
    - Federal Bureau of Investigation
    - International Revenue Service
    - United States Department of Labor
    - Inspector Generals

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The History, Role & Responsibilities of the Inspector General’s Office in Philadelphia
Inspector General’s Office Exists at all levels of Government
    - State
    - Federal
    - County
    - City
BACKGROUND: Federal IG established in major departments in the 1970s, followed by proliferation of
non-federal level IVs in major cities. In 1994, the national AIG established and published standards
(Green Book) for all non-federal IG office
ROLE: To promote and foster accountability and integrity in government at all levels
         Through oversight responsibilities of investigations and audit programs
Standards
     Statutory
              o NOTE: Few are created legislatively; most were created through executive order
     Investigate/audit
     Powers-subpoena, law enforcement authority, access to all records, reporting requiremenets for
         officials/employees
Confidentiality
Staff requirements
     Non political professionals
Independence



STATE & LOCAL CORRUPTION LAWS/FEDERALISM ISSUES
Disclosure Laws
         65 Pa. CSA § 1104(a)
         Philadelphia City Code §§ 20-608 and 20-610
         68 De. Laws § 433
         New Castle County Code §§ 2.03(A)(2) and 2.03.107
Conflict of Interest Laws
         65 Pa. C.S.A. § 1103(a); Philadelphia City Code §20-607
         68 Del. Laws § 433; 11 Del. C. § 1211(2); New Castle County Code §§ 2.03(A)(1); 2.03.104(A)
Bribery/Gratuity Statutes
         65 Pa. C.S.A. §§ 1103(b), (c); Philadelphia City Code §§20-604
         N.J.S.A. 2C:27-2(a)

State/Local Prosecutions
3 Types of State and Local Corruption Laws
    1. Disclosure
            a. Involving mostly financial relationships
    2. Theft Laws
            a. Prevent diversion of public resources for personal interest
    3. Conflict of interest laws
            a. Laws to assign public employees to work on individual elections




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RULES:
 § 1101 – PURPOSE
       (a) Declarations – The legislature hereby declares that the public office is a public trust and that
           any effort to realize personal financial gain through public office other than compensation
           provided by law is a violation of that trust…

 § 1103 – Restricted Activities
      (a) Conflict of Interest – No public official or public employee shall engage in conduct that
          constitutes a conflict of interest

 § 1105 – What must be disclosed

Why do we have/need/should we have federal policing of state and local officials?
   PRO:
          o If you look at the Constitution, there are several examples of how the federal
              government is expected to ensure orderly conduct of the states
   ANTI:
          o There is nothing in the Constitution (no compelling reason) why the federal government
              needs to act where the officials are extorting state and local business

      Commonwealth of PA v. Francis
              FACTS: D argued that he was not extorting, but bribing. He argued that he did not use
              the power of his office to pressure the giving of gifts.
              HELD: Question of whether it was extortion or bribery is a question for the jury.
      Commonwealth of PA v. Habay
              FACTS: Was a House of Representatives’ state legislator, and used several of his
              employees to raise money and campaign for his own election. These were tax paid
              employees and were assigned to run his own state political campaigns.
              HELD: Sentence Affirmed. (1) D hired people for the sole purpose of campaigning for
              him, which was a misappropriation of taxpayer funds  shuts down both possibly
              vagueness arguments (vagueness in law, and vagueness in conduct); (2) the
              Commonwealth used the more specific of the statutes, so even if there were a conflict
              there was no violation (under specificity).
      Commonwealth of PA v. Carlisle
      Commonwealth of PA v. Veon et al (Bonusgate)
When do federal criminal prosecutions Improve Non-federal democracy?

Fulton & Truman
Both were former Philadelphia police officers we were hired and paid as political consultants, but did
not report this information on their taxes.
        Should the federal government have brought charges against them for tax evasion, just because
        they couldn’t get them on corruption charges?
                 Yes. They didn’t pay their taxes. If they had, they could have run the elections AND had
                 their taxes paid (without repercussions)

Local (Philadelphia) Inspectors General are different from investigators (such as the FBI)



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       In addition to investigating criminal activities, they also make recommendations on how to
       approve city departments
                The FBI is not involved in making recommendations on how to conduct departments
                more efficiently, and to deter corruption; they just do investigations)



CORRUPTION INVESTIGATIONS
Wire Taps
    Ex: United States v .Giordano
    Ex: United States v. Blagoievich
Undercover Investigations
   - Approvals
   - Entrapment Issues
   - Abscam
          o Ex: United States v. Jannotti
   - Tennesse Waltz
          o Ex: United States v. Dixon
          o Ex: United States v. Hooks
   - Problem Cooperators
          o Ex: U.S. v. Callaway
   - Joint Defense Agreements/Conflicts of Interest
          o Ex: In re Jury
          o Ex: United States v. LeCroy
GRAND JURY
ROLE:
   1. Can hear any kind of crime
          a. Can investigate merely on suspicion, or merely for assurance that a crime has been
              committed
   2. Used to bring charges
   3. Secret proceeding
          a. Witnesses are allowed to be represented by lawyers, but they are not permitted to be
              present during proceedings
                    i. Government lawyer
                   ii. The grand jurors
                  iii. Court report
   4. Government defines scope of investigation
          a. Very few limits on what the government can bring to Grand Jury
   5. Not part of any branch of government

BACKGROUND: There has been an increase of investigations and prosecutions of federal and local
corruption. To conduct some of the investigation techniques, the petition must be approved by
investigators in Washington D.C. (U.S. Attorney General)
STANDARD: Federal investigators are held to a higher standard than local investigators
        This often leads to higher confidence in them because they are somewhat insulated form
        politics, and are willing to prosecute both sides of the aisle.
                  Criminal Charges – brought by Assistant Attorney General for Criminal Division


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              Tax Division (in Washington) – in order to be brought in any district, tax issues must be
              approved by Washington first. IRS is involved in a great deal of corruption cases,
              because officials do not report it on their taxes
              FBI – Corruption is the FBI’S 4th priority
PURPOSE: to determine whether criminal charges are warranted
    Why Grand Jury secrecy important:
          1. If you were to use it to further another investigation (that was not intended for criminal
              charges) there would be abuse there
          2. Sometimes difficult to get people to come forward in an investigation if they believe
              that their identity will be revealed to the public
          3. Not every Grand Jury investigation results in an indictment; want to protect those who
              are potentially innocent
                  a. Not fair to subject innocent subjects to unnecessary ridicule.

The 4th Amendment and exclusionary rule are limited to trial; therefore illegally obtained evidence may
be presented for consideration to the Grand Jury.
     Subpoenas
           o RULE: If you receive a subpoena to testify, you MUST appear
                    Can still plead the 5th
                    Can still claim privilege
           o Rule 17 says you can quash a subpoena if it is unreasonable or oppressive
                    Ex: United States v. R. Enterprises
     Subpoenas to Reporters
           o In re Grand Jury Subpeona, Judith Miller
     Grand Jury Testimony
           o Policy on Targets
                     1. Must appear
                     2. Must testify
                     3. Warnings to Witnesses
           o Perjury Trap
                    Def: The deliberate use of the Grand Jury to secure perjured testimony
                    STANDARD: very high standard to reach
                             United States v. Caputo
                             United States v. Simone

Filing an Information – If D agrees, it is filed without having to go to a Grand Jury, the charges are just
filed

       Search Warrants
            o United States v. Rayburn House Office Building
       Privilege Issues
            o Attorney Clinet/Governmental Attorney Client
       Attorney Client Privilege
            o Protects conversations between attorney and client
            o Crime-Fraud EXCEPTION
                      Can be overridden if the client used the lawyer’s services to further a continuing
                         or future crime or fraud


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                              Whether lawyer knows or not is not necessarily relevant so long as the
                               client knew
                            Burden falls on the party seeking application of the exception
           o   Government lawyers held to the same standard
                    The policy behind it is that we want people to have the best legal advice they
                       can get
                            We want public officials to have the best legal advice too
                            Lawyer will need the candid facts in order to be able to give sound
                               advice
                    Costs Associated
                            Lack of transparency – the lawyer must keep confidential information
                               from the tax-payers (whom he serves), which dos them a disservice, and
                               drains their resources
                    In re Grand Jury
           o   Crime Fraud Exception
                    In re Grand Jury
           o   Speech and Debate/Legislative Deliberative Process
                    In re Grand Jury



CHARGING ISSUES
Target Letters
PURPOSE: They allow for a lot of informal discussions. Are encouraged by the Justice Department, and
used almost exclusively in white collar cases.
Advantages of a Target Letter
    1. If you might want to use this person as a cooperating witness
    2. Forthcoming criminal allegations if it is ongoing
    3. A way to start the discussion with a target
    4. Important way of letting a target know that they are going to be indicted

   -   Timing
   -   Charging both public officials and payers
           o United States v. Lynch, et al
   - Court’s rejection of pleas
           o Ex: United States v. Conham
                    HELD: Judge rejects the plea agreement, claiming that it is too light a sentence
                      and that the defendants should face the full brunt of the justice system. The
                      government was concern with getting an admission, because the judges had
                      gone out and denied the allegations.
Charging Corporations
    Deciding whether to bring forth charges on a corporation (pg. 38)
           1. Nature and seriousness of the offense, including the risk of harm to the public
           2. Pervasiveness of wrongdoing within the corporation, including complicity in or
              condoning of the behavior
           3. Corporate history of similar misconduct
           4. The corporation’s timely and voluntary disclosure of wrongdoing
           5. Existence and effectiveness of the corporations’ pre-existing compliance program

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           6. The corporations remedial actions
           7. Collateral consequences, including a disproportionate harm to shareholders, pension
              holders, employees, etc…
           8. Adequacy of the prosecution of individuals responsible for the corporation’s
              malfeasance
           9. Adequacy of remedies such as civil or regulatory enforcement actions
      When might you not want to bring charges on a corporation?
           1. When there are other remedies available to the government
           2. When dealing with one “bad apple”
           3. When there might be disproportionate harm to those uninvolved (ex: shareholders,
              employees, etc…)
      PUNISHMENT: In instances where charges are brought both against an official and a
       corporation, can require the corporation to be put on probation, to do institute a new
       compliance program, appoint a person who is a monitor for compliance, or require it to report;
       can even impose a fine


   -   Additional Charges
          o Tax Charges
          o Money Laundering
          o Obstruction/Perjury Charges
                    United States v. Libby
                    United States v. Bazemore
                           FACTS: Employees of the Medical Examiner’s Office were charged with
                             lying and obstruction of justice for false statements in the course of an
                             investigation of rampant theft of bodies brought to the office. The
                             witness was asked “do you remember or were you aware of any thefts
                             that happened with connection to the medical examiner’s office.” The
                             witness said he did not remember (which is perjury if you do remember)
          o Mail Fraud Injunction
                    United States v. Moran



TRIAL ISSUES
      Politics
           o United States v. Breebery
                  FACTS: Defendant filed a “Motion for Discovery of Evidence Relevant to Political
                     Motivation for Prosecution and for Leave to Serve Subpoenas Require
                     Production of Documents Before Trial (but even if she could get them, what
                     would she do with them – Mention it in their opening and closing, since it is
                     nota defense to violating the law)
                  HELD: Denied. Does not pertain to whether or not they violated the law. There
                     is limited relevance whether the political motivation has any particular
                     relevance to the jury. Can cross examine and ask witnesses as their political
                     background (and use it for impeachment purposes).
           o United States v. Fieger

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                     FACTS: Fieger was indicted for violation of campaign finance funds (gave
                      $100,000 through his employees, where the limit was only $3,000). Cited other
                      situations where others had done the same thing, but they had been charged
                      civilly, not criminally. These types of prosecutions must go through the Justice
                      Department, therefore the sensitivity is critical. The U.S. attorney recused
                      himself, but his office is still being used, and another attorney signs off on it.
                      There were over 100 agents used on this case.
                            POSTURE: the search itself was approved in Washington D.C., in an
                                effort to show that Roberto Gonzalez had a hand in the investigation –
                                however, this is because it is a law office. There is a special unit in the
                                Washington D.C. office that must approve the search of a law office
                                because of the attorney-client privilege and to ensure that property
                                safeguards are taken  Taint Team. Also, cites U.S. attorney firings in
                                support of his claim that the Justice Department is focusing only on
                                Democrats. Uses the Thompson case as an example of government
                                overreaching also cites study called the “shield study” to show that this
                                Justice Department has focused and prosecuted 7x more Democrats
                                than Republicans
                            HELD: Motion denied (but ultimately acquitted by a jury)
                            REMEDY: Remedy would likely be dismissal of the case, though this
                                would likely only occur in rare situations
                   RULE: In a selective prosecution claim, the moving party must demonstrate, by
                      clear and convincing evidence, that (1) the federal prosecutorial policy had a
                      discriminatory effect and, (2) that it was motivated by a discriminatory purpose.
                      Armstrong, 517 U.S. at 465; see also United States v. Smith, 231 F.3d 800, 808
                      (11th Cir. 2000). Discriminatory effect is proven by showing that similarly
                      situated individuals were not prosecuted, Ah Sin v. Wittman, 198 U.S. 500
                      (1906), and discriminatory impact may be demonstrated by showing a disparate
                      impact. Yick Wo v. Hopkins, 118 U.S. 356 (1886)(holding that disparate impact is
                      sufficient to show a discriminatory effect).
                   STANDARD: That he knew that these limits existed, and that he acted
                      intentionally to get around them
        o United States v. Thompson
   Judge’s Bias (Recusal)
    RULE: When you have a judge you believe to be biased, there is not much you gan do – relief is
    limited. You can request that they recues themselves, but not likely to happen.
        o Ex: Freebery – a case where the judge was very hostile to the government. The Ds had
             filed several pre-trial motions to limit the government’s case (even before it went to the
             jury), and several were allowed.
        o Ex: United States v. Wecht
   Jury Selection
   Jury Deliberations
        o Ex: United States v. Kemp
                   FACTS: Juror(s) refused to deliberate. Had to bring out each juror in cameral and
                      question them.
                            How do you tell a juror who has bias, and one who feels that – even
                                having seen all the evidence – refuses to change their position?


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                   STANDARD: The court must be convinced beyond a reasonable doubt that the
                    juror olds bias. If there is any possibility that a juror is simply making a
                    determination (however irrational) based on the evidence that differs from the
                    rest of the jurors.
                   HELD: Judge finds the juror not credible, and removes her from the jury on that
                    basis.

   Trial Themes
   Hyde Amendment
    RULE: A criminal defendant can file a motion to have the government pay his attorney’s fees if
    the defendant is the prevailing party, and can show that the prosecution was vexatious,
    frivolous, or in bad faith.
         o Ex: United States v. Carlson
                  HELD: Because the government had sufficient evidence to go to trial, their
                      charges were not frivolous, but had standing. Therefore, motion was denied for
                      attorney’s fees.
   Prost-Indictment Statement
         o Ex: Commonwealth of PA v. Perzel
   FRE 404(b) – Other Acts of Evidence
   Consciousness of Guilt
    RULE: If the government questions a target or a subject, and they lie, it is evidence of guilt –
    shows an attempt to conceal criminal conduct (often comes up in federal trials)
   Consciousness of Innocence
    Def: Consciousness of innocence approach – Defendant’s belief that they have done nothing
    wrong
         o Ex: United States v. Kemp
                  HELD: Not admissible because the government’s use is supposed to override the
                      presumption of innocence, and any other use would be hearsay.
   First Amendment issues during trial (U.S. v. Kemp)
         o FACTS: Media wanted the Grand Jury information (transcript, search warrant affidavit)
             released on 1st Amendment grounds, and the they argued that there should be a right of
             the media to inform the public
             HELD: This is a sensitive matter, and it is important for the public to know whether their
             public officials are corrupt, but there is a presumption of innocence and the spirit and
             credibility of the system requires careful action. The court wants to ensure the
             procedure is fair for both sides. Releasing such sensitive information (Grand Jury
             Material and search warrant affidavit) puts people’s privacy at stake.
         o DICOTOMY: Want to keep the government honest, but also want to protect the privacy
             of [potentially innocent] individuals
         o Search Warrant Affidavits
                  United States v. Certain Premises
                  United States v. Thomas
                           HELD: Court agreed to release an unredacted version of the search
                               warrant. In Kemp, the judge puts it more in terms of qualified access. In
                               Thomas, the court talks about the McVeigh case in not releasing
                               information that was no admissible at court, because the court could
                               not consider it; therefore it shouldn’t be released. The court is
                               concerned D’s right of privacy is protected

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                                     o D still has a Title III right of privacy
                                     o Also talked about common law right of access to court
                                       documents – newspapers argued that when they were asking
                                       for the search warrant affidavits, that they were court
                                       documents, and therefore the public has a limited right to
                                       certain court documents.
                                             EXCEPTION: those that are sealed, limitedly tailored, or
                                                 sensitive for other reasons
                               POLICY: Releasing only admissible material may discourage some
                                witnesses from coming forward and cooperating
       DISCOVERY
           o Tools for cross-examining a witness
                   Record
                   Some other bias that the witness has against the defendant
                   Some other act that would weigh on the witness’ credibility
           o Ex: United States v. Fumo
           o Exhibits
                   Access to the Government’s exhibits
                           NOTE: There is very little material that is public prior to an indictment

SENTENCING ISSUES
PURPOSE:
   1. Promoting respect of the law
   2. Deter both the D and the public
   3. To protect the D from the public and himself
   4. Provide D with a sentence will give the D - and the public’s perception of the D – the best
      chance for rehabilitation

RULE: As of 2005, the Supreme Court has held that the sentencing guidelines could NOT be deemed
mandatory (Booker). Sentencing guidelines have their own section specifically for corruption cases
    PROCESS:
            o Asks questions, such as
                     Was the victim of the crime vulnerable?
                     Was the perpetrator one that held the trust of the public?
                     Was the D a low level official? A decision maker?
                     Was D in a high, sensitive position?
                     How much $$ was exchanged?
                     Did the corruption case danger or cause some potential danger to national
                        security?
    Guildines require the courts to look at the whole enterprise
            o Ex: If one public official is part of a larger bribe-taking enterprise, only took $2000 in
               pocket, but the plumbers over the enterprise, the public official would be held on all
               the money taken in the larger scheme
                     STANDARD: Must show some knowledge of the larger scheme, but to convict
                        someone of conspiracy, must prove beyond a reasonable doubt.




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                               At sentencing, do not have to prove the loss of amount beyond a
                                reasonable doubt, but by a preponderance of the evidence 
                                government’s burden is much lower at the sentencing stage
                              Most corruption cases give between 18 and 70 months
 Deterrence - #1 obstacle for defense attorneys
   DOJ Testimony
   Ex: United States v. Spano
         o FACTS: Ds had been sentenced before Booker. Booker gets decided, and they want to
             take a second shot at the District Court – seeking to be resentenced
             HELD: Entitled to be reviewed, but under review they had been sentenced correctly. The
             court talks about why it imposed the sentences that it did. D had tried to hide what they
             had done by remarking the transactions and services that they had rendered (which
             were paid for but actually a sham – fake $75,000 invoice that overbilled the city). Each D
             split it into about 1/3rd, but their sentencing was calculated as if each had gotten
             $75,000. Court found that the Ds’ sentence fell within what are now guidelines, even
             though they were handed down as being mandatory
                   Judge said he would have actually given them more time
                   Says he calculated the time correctly
         o NOTE: Judge did not change sentence, because they were asking for uniformity =
             IMPORTANT factor
                  1. Creates deterrence because long sentences are needed for the public so that
                        they maintain confidence in public officials
                  2. Want to deter public officials from using their legal knowledge to get around the
                        law
                  3. The prospective public officials and the present public officials are going to pay
                        attention to what happened to their predecessors. This serves as a deterrence
                        for them and hopefully modify their conduct and refrain from that conduct

        United States v. Ganim
        United States v. Mariano
                Trial court calculated los by considering
                         Amount laundered
                         What the defendant did/contribution
                         The amount stolen + interest
                         Entire cost of contract
                                 Public has been deprived entire value of honest services fraud
                                          Creates public cynicism, competitors who are both turned away
                                          and fleeing a seemingly corrupt system
Plea Agreements with Statutory Caps
        United States v. Powell
Bail Pending Appeal
        United States v. Libby




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ANTI-CORRUPTION REFORM
     MSRB Rule 38 – Outside Consultants
         o Used to be that under the old G-38, city institutions could hire someone connected to
            the mayor to help them get business.
                 Ex: Someone who could solicit business who lobbies to geet whom they want
                    within a certain sector
         o Today, it is a requirement that there be disclosure of this type of relationship. A firm
            cannot hire someone connected to the mayor in order to get business.
                 In response to what had been going on prior to that, the organization that
                    regulates municipal securities dealers could no longer hire someone to help
                    them and pay that person to get business (mayor’s fundraisers could not get
                    business for them)

     City of Philadelphia Reform Legislation
     Pension Forfeiture
     Other reforms
          o Mayor’s Task Force on Ethics and Campaign Finance Reform Report

      state ethics laws and municipal ethics laws require disclosure (personal finances, who their
      creditors are, family finances, etc… and why)
              1. Allows the public to make a determination of why the official is taking the actions
                   they are
              2. State and local laws prohibit conflicts of interest; have to act in the best interests of
                   the municipality and the tax payers, and cannot act in their own best interests




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