Defense Bar Stifled
In National Association of Criminal Defense
Lawyers (NACDL) v. Executive Office for United States
Attorneys, the U.S. District Court for the District of
Columbia refused to require the Department of Justice (DOJ) to
provide the NACDL a copy of its discovery manual, called the
"Blue Book." The NACDL had filed a Freedom of Information
Act (FOIA) request for the Blue Book, which the DOJ denied,
claiming the Blue Book was exempt as attorney work product. The
parties filed cross-motions for summary judgment. The NACDL claimed
the Blue Book simply contained guidelines to govern discovery in
criminal cases, but the DOJ claimed it contained "legal
advice, strategies, and arguments for defeating discovery
claims." After conducting an in camera review of the Blue
Book, the court agreed it "is attorney work-product protected
from disclosure pursuant to FOIA Exemption 5." As a result,
the court granted the DOJ's motion.
No More Prosecutions for Impeding the Tax Laws in the
Dark
The U.S. Court of Appeals for the Sixth Circuit in United States v. Miner clarified the
intent requirements to be convicted of violating 26 U.S.C. 7212(a),
which criminalizes corruptly endeavoring to obstruct the "due
administration" of federal income-tax laws. In the case, David
Miner had been prosecuted for engaging in two schemes that promised
to defeat the "proverbial inevitability" of taxes. Miner
offered to assist clients in altering their "Individual Master
Files," which are internal records at the Internal Revenue
Service (IRS), for a fee of $1,800. He also offered clients the
chance to create "common-law business trusts" that he
claimed would shield assets from tax liability. The IRS
investigated his activities, and the government ultimately charged
him with violating section 7212(a), among other statutes. At trial,
he was convicted and was sentenced to 18 months' imprisonment.
He appealed, claiming the trial court improperly failed to charge
the jury that he "could only be convicted if he was aware of a
pending IRS proceeding that could be impeded." Putting to rest
a long-standing conflict within the circuit, the Sixth Circuit
agreed with him, finding error, but alas, concluded the error was
harmless and affirmed the conviction.
The Sentence Pronounced Trumps the Judgment
The Tenth Circuit in United States v. Kieffer took the
district court to task for imposing a different sentence on
defendant Howard Kieffer in the written judgment than it had
pronounced at the sentencing hearing. Kieffer had represented
clients as a criminal-defense lawyer in Colorado and North Dakota.
The problem was he was not a licensed attorney. He was convicted in
the District of North Dakota and sentenced to 51 months'
imprisonment. A year later, he was convicted in the District of
Colorado, and sentenced to 57 months' incarceration to be
consecutive to his North Dakota sentence. He appealed, and the
Tenth Circuit vacated his sentence because a consecutive sentence
was improper. Still wanting Kieffer's term to effectively be
consecutive, the judge announced a longer term of 99 months in
prison to run concurrently with the North Dakota sentence. But the
written judgment said the term was to be "a remaining
sentence" of 48 months' incarceration. When the Bureau of
Prisons was confused, the court issued several amended judgments in
an effort to clarify its sentence. Ultimately, the fourth amended
judgment imposed a sentence of 88 months. On appeal, the Tenth
Circuit concluded the district court's amended judgment did not
adhere to its orally pronounced sentence and therefore was
unlawful. It remanded the case for resentencing with instructions
that the district court "enter a new and final judgment
consistent with its orally pronounced sentence of 99 months"
with credit for time served. The effect is a sentence of 88
months' incarceration.
DOJ Stepping Up Its Anti-Cybercrime Efforts
In a speech at the Cybercrime 2020 Symposium, Assistant Attorney
General Leslie R. Caldwell announced the creation of a dedicated
Cybersecurity Unit within the Criminal Division of the DOJ.
Caldwell noted that while advances in technology have created
"new opportunities for innovation, productivity, and
entertainment," "cyber criminals are taking advantage of
the same advances in technology to perpetrate more complex and
extensive crimes." According to Caldwell, "Prosecutors
from the Cybersecurity Unit will provide a central hub for expert
advice and legal guidance regarding the criminal electronic
surveillance statutes for both U.S. and international law
enforcement conducting complex cyber investigations to ensure that
the powerful law enforcement tools are effectively used to bring
the perpetrators to justice while also protecting the privacy of
every day Americans." Further, recognizing the fight could not
be waged alone, she emphasized, "Prosecutors from the
Cybersecurity Unit will be engaging in extensive outreach to
facilitate cooperative relationships with our private sector
partners."
International Criminal Discovery
The Second Circuit in In re Application for an Order Pursuant to 28
U.S.C. §1782 to Conduct Discovery for Use in Foreign
Proceedings held the statute "permits discovery for
use in a foreign criminal investigation conducted by a foreign
investigating magistrate." The case involved a Swiss criminal
investigator, Franck Berlamont, who sought documents regarding a
Bernard Madoff "feeder fund" in Switzerland. Berlamont
sought certain documents that were part of the discovery obtained
in a case pending in the U.S. District Court for the Southern
District of New York. The court agreed to provide the documents
pursuant to section 1782. That section permits federal courts to
order the production of documents "for use in a proceeding in
a foreign or international tribunal, including criminal
investigations conducted before formal accusation." When the
issue reached it, the Second Circuit analyzed the plain language of
the statute and affirmed, concluding section 1782 "applies to
a foreign criminal investigation involving an investigating
magistrate seeking documents in the United States."
Chasing an Elusive Target
Practitioners in the securities-fraud arena undoubtedly have seen,
cited and interpreted cases involving Paul Bilzerian. Those cases
arose from the efforts of the DOJ and the Securities and Exchange
Commission (SEC) to penalize Bilzerian for his conduct in the
1980s. See, e.g., United States v. Bilzerian, 926 F.2d
1285 (2d Cir. 1991); SEC v. Bilzerian, 378 F.3d 1100 (D.C.
Cir. 2004). For a fascinating article cataloguing the SEC's
somewhat futile efforts to collect on judgments against Bilzerian,
click here.
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