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White Collar Defense & Compliance

Developments in Criminal Law, Federal Case Law and Statutory Developments

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Posted in Uncategorized

Alain Leibman writes:

We have endeavored from the outset of this blog to offer thoughtful, possibly useful, and occasionally provocative analyses of developments in the criminal law, a time-intensive effort.  Regrettably, a busy workload and other professional and firm commitments have left insufficient time to properly tend to this White Collar Defense blog.  The result has been too few posts of the quality and substance which we intended would be our standard.

So, please look for future articles across a range of criminal defense issues to appear on my LinkedIn posts page: https://www.linkedin.com/today/author/30159679.  I hope to see you there.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

Does your Third Circuit judge vote as a “conservative, moderate, or liberal”?

Posted in Uncategorized

Alain Leibman writes:

Matthew Stiegler, a Philadelphia attorney, has a terrific blog dedicated to reporting on, and thoughtfully analyzing, developments in the Third Circuit Court of Appeals, called the CA3blog.  Matthew has written a March 17th post concerning voting patterns among Third Circuit judges, which I commend to any practitioner interested in divining the ideological bent of their panel members.  Called “A closer look at the Third Circuit’s recent en banc cases,” the post closely analyzes the Court’s votes in 18 en banc cases over the last five years in an effort to assign the designations “liberal,” “moderate,” and “conservative” to each of the judges voting in those cases (more recently-appointed judges are excluded).

Although one could disagree with how the “liberal” and “conservative” appellations are assigned — after all, a “liberal” on criminal justice matters might well behave as a “conservative” or “moderate” in commercial litigation cases — Matthew’s conclusions are provocative.  I won’t give anything away here, but they are well worth the time invested in reading his CA3blog.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

 

Third Circuit Opinion Cites Alain Leibman’s Fox WC Blog Entry

Posted in Sentencing

Alain Leibman writes:

Those of you who follow, or at least sporadically read, this blog know that it attempts to treat in a considered way important issues facing the white collar bar and our clients.  Still, like any blog, it exists largely in the ether, the cabined air of the blogosphere where interesting ideas are explored and debated.  Like the proverbial falling tree in a forest, though, one cannot be certain that any blog-based analysis finds resonance in the real world.

Until now, that is.  I blogged here recently about an inexplicable decision of the Third Circuit in United States v. Erwin.   Erwin had bargained for a cooperating plea agreement, gotten it, and performed his end of the bargain, both by pleading guilty and by cooperating successfully with the Government.  A minor, boilerplate provision in his plea agreement provided that he waived any appeal of his sentence.  Dissatisfied with his cooperation-reduced sentence, Erwin filed an appeal anyway, and a vindictive prosecution not only sought its dismissal as frivolous, but asked for, and was granted by the Circuit as a punitive measure, the right to a sentencing de novo where the Government would no longer be obliged to credit Erwin for cooperation.

Erwin sensibly moved for rehearing by the panel, or in the alternative, by the entire Court.  The entire Third Circuit, in a split decision rendered on December 31, 2014, but filed yesterday, denied rehearing.  However, several Judges joined an opinion written by Judge Ambro which would have affirmed only the dismissal of the appeal on the basis of the waiver, but which dissented from the broader judgment vacating the original sentence and granting de novo sentencing.  In so doing, and in a very unusual sight, Judge Ambro cited to and quoted from the earlier blog entry in this space, among other blog entries critical of the original panel’s decision:

The panel provides no sound reason for its new remedy, and I join the growing chorus of commentators who have lamented this decision.  See Kevin Bennardo, United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements, 71 Wash. & Lee L.Rev. Online (2014); Alain Leibman, “Third Circuit Holds that Breach of Agreement not to Appeal Justifies Government’s Withdrawal of 5K Motion,” White Collar Defense and Compliance (Sept. 18, 2014), available at http://whitecollarcrime.foxrothschild.com/2014/09/articles/sentencing-1/third-circuit-holds-that-breach-of-agreement-not-to-appeal-justfies-governments-withdrawal-of-5k-motion/ (“Not only did the court get it wrong in terms of appreciating the true nature of the parties’ exchange of commitments, but it did not even apply contracts law correctly.”) ….

No. 13-3407, at 6 (emphasis added).

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

Alain Leibman And Fox Rothschild Acknowledged For Veterans’ Assistance

Posted in Uncategorized

Alain Leibman writes:

Departing from the usual subjects discussed in this space, I wanted in the spirit of the season to share with our readers an example of lawyers giving back to their larger community.  Three years ago, with the firm’s encouragement, I started at the site of the Veterans Administration hospital and campus in Lyons, New Jersey, a first-of-its-kind legal clinic.  With colleagues from Fox Rothschild, we have ever since set up shop there every other month in order to meet with any veteran with a legal problem or need.  In all types of cases — such as landlord-tenant disputes and child support and custody cases — we have made numerous court appearances, filed dozens of motions, and assisted our clients in navigating legal mazes.  Sometimes all that was needed was to ferret out information to allow someone to regain driving privileges, or to expunge an old conviction in order to create new employment opportunities.

All in all, we have been immensely rewarded by this opportunity to provide a service to those who have risked all for our country, only to find that their efforts are often inadequately appreciated at home.  We at Fox are there to say “thank you” to our honored veterans.  You may read about our efforts here.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

Fox Rothschild Obtains Complete Dismissal Of Federal Trade Secret Theft Case

Posted in Health care fraud, Uncategorized

Alain Leibman:

On Friday, December 5th, the Department of Justice finally surrendered in a multi-defendant trade secret case being prosecuted in the Southern District of Indiana on behalf of complainant Eli Lilly and Company. (United States v. Cao and Li, Case No. 1:13-cr-150-WTL).  Following 14 months of hard litigation — including a successful three-month fight with Lilly over trial-subpoenaed documents it did not want to give up, and successive discovery and Brady motions which increasingly forced disclosure of Lilly and Government errors, miscalculations, and poor decisions – the Government last week finally acceded to our long-standing demand that the case be dismissed in its entirety, and requested dismissal of all charges against all defendants, which the Court quickly granted.

Our client was the lead defendant, and he and his co-defendant are scientists who were charged with misappropriating allegedly confidential and proprietary Lilly information concerning molecular targets under research and development for cardiovascular, diabetes, and oncology drugs.  They were arrested in their homes and then branded by the Government at their initial detention hearing in October 2013 as “traitors” who stole American trade secrets and transferred them to a Chinese pharmaceutical company.  My colleague, associate Matt Adams, and I took over the defense immediately thereafter, and in a series of bail motions and hearings showed that these drug targets were publicly known and hence not confidential, or, as the Court put it in an order revoking detention, we revealed “holes in the Government’s case.”  We first obtained their release to a halfway house, and then to house arrest.  At the same time, we hammered both Lilly and the Government in multiple court filings and hearings, leading the Government at first to abandon their trade secrets theory in favor of more ambiguous wire fraud charges, and then finally to give up altogether.  No plea of guilty to even a misdemeanor, not even a pretrial diversion or deferred prosecution – total dismissal was the demand and total dismissal was secured.

So, the U.S. Attorney’s Office moved to end arguably the highest-profile matter in that District, dealing a blow to the Indianapolis-based Lilly, which had invested substantial time and money standing up the case.  This is, appropriately, a complete vindication of our client, as reported in Ed Silverman’s Pharmalot blog in the Wall Street Journal, as well as here, here, and here.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

 

Alain Leibman’s Law360 Article About Justice Department’s Partial Retreat On Appeal Waivers

Posted in Constitutional law, Sentencing

Alain Leibman writes:

We recently blogged here  and here about the DOJ’s blatant and increasingly harsh use of leverage against pleading defendants to force their waiver of important rights attendant to the sentencing and appeal process.  A fuller treatment of this issue, and of the recently-announced change in DOJ policy intended to partially ameliorate this unfairness, is found in my article today for Law360, which may be read here.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

Federal Prosecutors May No Longer Be Able To Demand Blanket Appeal Waivers

Posted in Sentencing

Alain Leibman writes:

Two weeks ago we posted here about a recent, fairly awful Third Circuit decision, United States v. Erwin, upholding boilerplate waiver-of-appeal clauses to the point of punishing a wayward appellant — who took a sentencing appeal in apparent violation of his waiver agreement — by setting his case down for resentencing and releasing the Government from its obligation to file a downward departure motion for cooperation.  Now it appears that the Department of Justice is rethinking its prosecutors’ insistence on broad waiver clauses which bar defendants from appealing at all.

In its September 27-28, 2014 edition, the Wall Street Journal reported in a story entitled “U.S. Moves to Curb Use of Waivers in Guilty Pleas” (Section A4) that the DOJ is finally considering amending its policy.  The Journal reports that fully a third of the 94 U.S. Attorneys’ Offices have moved to a standard waiver-of-appeal provision in all plea agreements.  The story further reports that bar associations in twelve states have condemned the practice as unethical and improper.  Normally, the DOJ does not much care what positions state bar associations take on a given subject, believing associations to be populated with criminal defense attorneys acting in their own clients’ interests.  But the Journal reports that, drawing upon such bar association positions, federal judges are becoming increasingly critical of the widespread use of waivers.   The DOJ cares a great deal more about what judges do, of course, than about what defense lawyers think.

The DOJ, according to the Journal, will this week announce that it will no longer allow its prosecutors to require defendants to waive all appeals, instead preserving for appeal any claim of ineffective assistance, presumably whether it occurs in the plea negotiation and hearing process or at sentencing.  Mr. Erwin would not himself have benefited from this change, since his appeal issues did not encompass poor attorney performance.  But this change, if it comes as reported, may at least stanch the momentum across the federal landscape in favor of standardized waivers.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

Third Circuit Holds That Breach Of Agreement Not To Appeal Justifies Government’s Withdrawal Of 5K Motion

Posted in Sentencing

Alain Leibman writes:

It has become the norm for the Government to insist in plea agreements, cooperating or otherwise, that the defendant waive his/her right to appeal the resulting sentence, as long as the sentence is no more severe than augured by the applicable advisory Sentencing Guidelines range.  So, if the facts of the case stipulated by the parties in the plea agreement point to a 12-18 months Guidelines range, then the defendant can only appeal if his/her sentence ends up being more than 18 months in jail; anything less is deemed within the pre-sentencing expectations of the defendant and non-appealable.  This now-form provision has its roots in efforts by the Department of Justice to reduce sentencing appeals, and is no longer even capable of being bargained out of a plea agreement.  It comes with the territory.

So, it is remarkable that the Third Circuit recently held that not only had the Government in United States v. Erwin, 2014 WL 4194129 (3rd Cir., Aug. 26, 2014) bargained for inclusion of an appeal waiver, but that bargain was so material to the agreement that when the defendant improperly filed an appeal contrary to its provisions, his breach freed the Government from its (actually-bargained for and truly important) commitment to file a U.S.S.G. 5K1.1 cooperation downward-departure motion for Erwin.  In addition to the usual argument that the appeal should be dismissed as improper, the Government had argued to the Court of Appeals that mere dismissal was not enough of a sanction — dismissal would not “make the Government whole for the costs it has incurred because of Erwin’s breach ….” Id., at *6.  The Court agreed, finding that the Government had “devoted valuable resources to litigating an appeal that should never have been filed in the first place.”  Id., at 8.

Let’s pause for a moment.  These statements by the Court and the Government are nonsense.  As noted above, the appeal waiver is not even a subject of bargaining, and is now as boilerplate as any standard clause.   Also, the notion that a U.S. Attorney’s Office, with a cadre of attorneys dedicated entirely to handling appeals, has incurred material costs or lost valuable resources in moving to dismiss an appeal on procedural grounds is absurd.

What’s worse is the remedy sought by the Government and granted by the Court: a de novo sentencing with the Government freed of its obligation to re-file a downward-departure motion.  That motion, in contrast to the appeal waiver, was explicitly bargained for and is the sine qua non of the plea, without which the defendant may well have gone to trial rather than plead.  Conversely, the actual measure of the bargain obtained by the Government in exchange for that motion was (a) a guilty plea and (b) cooperation from Erwin, both of which were seemingly received in full measure.  Not only did the court get it wrong in terms of appreciating the true nature of the parties’ exchange of commitments, but it did not even apply contracts law correctly.  It is not every breach by one party which justifies a failure to materially perform by the other; it is only the most material of breaches which carry that consequence.  So, a defendant’s failure to enter the guilty plea or failure to fully cooperate and stay out of trouble would have been material breaches, justifying the Government’s non-performance of its essential promise to seek a reduced sentence.  But a defendant taking a frivolous appeal?  Not material by any measure.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

FBI Agent Cannot Testify As Human Lie Detector, Opining On Defendant’s Truthfulness

Posted in Evidence

Alain Leibman writes:

Sometimes, a court opinion reveals the prosecutorial tactic under scrutiny, the lower court’s endorsement of the same and defense attorney’s failure to object to the same, to be a real head-scratcher, a kind of “what in the world could they have been thinking?” experience.  The Tenth Circuit recently had such an experience involving a federal prosecutor’s decision to call an FBI agent as an expert witness on truth detection and to have the agent opine as to the deceptiveness of a defendant during a custodial interview; a defense lawyer’s inexplicable failure to object contemporaneously to any portion of that remarkable testimony; and the trial court’s allowance of clearly impermissible opinion testimony in contravention of its Federal Rule of Evidence 702 gateway function.

In United States v. Hill, 749 F.3d 1250 (10th Cir. 2014), a bank robbery suspect gave a custodial interview to FBI Agent Jones, in which the defendant made exculpatory statements challenged by the interviewer.  At trial, the videotaped statement was played, although the defendant unsurprisingly did not take the stand.  Agent Jones was called as the final witness on the government’s case, qualified as an expert interviewer based on his FBI training and allowed by the trial court, in the face of absolutely no objection to qualifications or the helpfulness of the testimony, to opine on all the ways in which the defendant had revealed himself in the interview to be untruthful: his mumbling; his avoiding certain questions; his use of the phrase “to my knowledge” in answering other questions; his invocation of religious belief; and the like.  (For fans of Monty Python, the recap of this testimony is worth reading, if only because its absurdity invokes the “Witch or not a witch” flotation test employed in a skit based on a fictitious version of medieval England).

The Tenth Circuit pointed out that not only was expert testimony on credibility ruled out by its own precedent as to Rule 702, but that every court of appeals to have considered the question had come to the same conclusion.  So awfully impermissible was this testimony that even on plain error review, necessitated because defense counsel had lodged no objection at trial, the conviction had to be reversed, making Hill “one of the exceptional cases in which we exercise our discretion to notice the plain error ….”  Id. at 1252.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

Eleventh Circuit Broadly Defines FCPA “Instrumentality” To Include Commercial Businesses

Posted in Foreign Corrupt Practices Act

Christopher M. Varano writes:

At long last, a federal circuit court has stepped forward to provide guidance as to when an entity is an “instrumentality,” such that its employees are “foreign officials” under the FCPA.  In a recent ruling, the Eleventh Circuit held that it is a violation to bribe an employee of a commercial business if that commercial business is controlled by foreign state and performs a function that the foreign government treats as its own.  United States v. Esquenazi, 2014 WL 1978613 (11th Cir., May 16, 2014)

In Esquenazi, the Eleventh Circuit reviewed the conviction of the two co-owners of Terra Telecommunications Corp., a Florida company which purchased phone time from foreign vendors and resold the minutes to customers in the United States, for violations of the FCPA.  The defendants were found to have bribed the Director of International Relations of Telecommunications D’Haiti, S.A.M. (Teleco), a Haitian company with connections to the Haitian government.  The relationship between Teleco and the Haitian government was a disputed issue in the case.

The FCPA prohibits bribery of a “foreign official”, which is defined as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof.”  15 U.S.C. §§ 78dd-2(h)(2)(A) (emphasis added).  At issue in Esquenazi was whether Teleco was an “instrumentality” under the FCPA.  The FCPA does not define “instrumentality,” and according to the Esquenazi court, no previous circuit court had defined it, either.

Thus, the Eleventh Circuit in Esquenazi undertook to define an “instrumentality” under section 78dd-2(h)(2)(A) of the FCPA as “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own.”  Thus, a commercial business becomes an “instrumentality” subject to the FCPA when it is controlled by a foreign state and serves a public purpose.

The DOJ failed to convince the court to automatically convert any business with government ownership into an instrumentality.  Instead, the Eleventh Circuit proffered a multi-factor test to determine whether a commercial enterprise should be considered an “instrumentality” under the FCPA.  First, according to the court in Esquenazi, the entity must be “under the control or dominion of the government to qualify as an ‘instrumentality’ within the FCPA’s meaning . . . and must be doing business with the government.”  The Eleventh Circuit provided the following factors to consider when deciding if the foreign government “controls” an entity:

To decide if the government “controls” an entity, courts and juries should look to the foreign government’s formal designation of that entity; whether the government has a majority interest in the entity; the government’s ability to hire and fire the entity’s principals; the extent to which the entity’s profits, if any, go directly into the governmental fisc, and, by the same token, the extent to which the government funds the entity if it fails to break even; and the length of time these indicia have existed.

The second element of the “instrumentality” test in Esquenazi is whether “the entity performs a function the government treats as its own.”  For this prong, the Eleventh Circuit provided the following factors to consider:

Courts and juries should examine whether the entity has a monopoly over the function it exists to carry out; whether the government subsidizes the costs associated with the entity providing services; whether the entity provides services to the public at large in the foreign country; and whether the public and the government of that foreign country generally perceive the entity to be performing a governmental function.

The Esquenazi court found that Teleco met the test for an “instrumentality” under the FCPA, and affirmed the convictions of the co-owners of Terra.

The takeaway here is that companies that deal with commercial businesses with close ties to foreign governments should ensure that proper FCPA compliance measures are in place.  Those compliance measures should take into account that employees of entities which meet the Eleventh Circuit’s “instrumentality” test could rise to the level of “foreign officials” under the FCPA, and thus dealings with those employees should be FCPA compliant.

(Christopher M. Varano, Esq., is an associate in the Philadelphia office of Fox Rothschild.  Chris  has guided clients through complex disputes involving white collar and securities issues, breach of contract claims, partnership rights and interests, unfair and deceptive business practices, employment issues, and administrative investigations.  He is adept at translating for his clients’
action the many nuances of business, partnership, and employment agreements and has experience in representing companies and individuals in these areas.)