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Video Collection: 2016 Vail Hip Symposium
Watch presentations recorded at the 2016 Vail Hip Symposium on January 14-16, 2016. The faculty...
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Evaluation and Treatment of Partial Rotator Cuff Tears
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text:
- Report: #772559
Report - Rebuttal - Arbitrate
Complaint Review: Menards
Menards1898 Ventura Dr. Ottumwa, Iowa United States of America
Menards Employee at Menards called my 5 year old son a SPIC! Ottumwa, Iowa
*Consumer Comment: Work Somewhere Else
*UPDATE Employee: Shop somewhere else
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Several weeks ago, I purchased some custom blinds. On the date that I was told they would be available, I went to pick them up....but they were not ready. A second time, I went to pick them up, but they indicated that they couldn't verify my purchase in the system, despite that I had the receipt in my hand. On the third occation, I got a bit testy and requested that when they got their act together, they needed to ship the blinds to me as I live 30 minutes from the store and have already spent a significant amount of time in transit due to their error.
At that point the employee, Andy said that he would not ship them to me and then said "You and your SPIC son can get get yourself in the car and come to get them!"
When I asked for his boss, he said "I am the boss". I later called the store and recieved the name of his boss Patrick who was on vacation, and has yet to return my call. I have since filed a formal complaint with Menards corporate office.
I am VERY surprised and upset that Menards seems allow this type of behavior from their employees. If this is how they treat small children...how they are treating others of color, differing religions, abilities or life styles. I will be doing my home improvements shopping elsewhere.
This report was posted on Ripoff Report on 09/02/2011 08:41 PM and is a permanent record located here: http://www.ripoffreport.com/r/Menards/Ottumwa-Iowa-52501/Menards-Employee-at-Menards-called-my-5-year-old-son-a-SPIC-Ottumwa-Iowa-772559. The posting time indicated is Arizona local time. Arizona does not observe daylight savings so the post time may be Mountain or Pacific depending on the time of year.
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#1 Consumer Comment
Work Somewhere Else
AUTHOR: Me - (United States of America)
SUBMITTED: Thursday, March 07, 2013POSTED: Thursday, March 07, 2013
As profanity is discouraged here, I will refrain from calling you what you really are, which rhymes with "bass-hat."
The fact that you are perpetuating the racist stereotype that your "co-worker" used shows how incredibly small-minded you are. Did you know that the people to which you refer are college educated, tax-paying upstanding citizens, who are of American and European descent? Did you?
Whhhhhaaaaattt?? Did you mean to judge them thus?
If not, well, you just proved yourself an idiot by passing judgement on someone you do NOT know jack crap about.
If so, well, you just proved yourself an idiot, in that people ABOVE you are no good, and obviously people "below" you are no good. That must mean EVERYBODY is no good. Go jump in a lake.
People like YOU are the reason this country is going to crap. America was built on the backs of immigrants and laborers. You are no better than any of them. Until YOU have walked a mile in the shoes of someone who is different from you (be it race, gender, cognitive ability, or what), you will remain an ignorant crap-head.
Have a nice day.
Are you an owner, employee or ex-employee with either negative or positive information about the company or individual, or can you provide "insider information" on this company?
#2 UPDATE Employee
Shop somewhere else
AUTHOR: DGILL - (United States of America)
SUBMITTED: Thursday, March 07, 2013POSTED: Thursday, March 07, 2013
Are you an owner, employee or ex-employee with either negative or positive information about the company or individual, or can you provide "insider information" on this company?
Advertisers above have met our
strict standards for business conduct.

subset: commoncrawl


text:
|Boxing Champions | Boxing Schedule | Boxing Video | Boxing History | Pound For Pound | Lounge | The Wire | Arcade
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I had teachers like that, they'll literally throw some papers at you and sit on their ass, so I know exactly where the kid is coming from.
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He's right but the teacher is not fully at fault. The reality is that we live in a country where education is very low on the priority list, teachers don't get paid much money and the curriculum is getting easier and easier.
I mean have any of you taken a look at the F-CAT test? It's a fukin joke and kids are failing it.
We need better teachers but like everything else, money talks and BS walks. We can't pay teachers like we do dishwashers and expect the educational system to be on par with other countries.
If they paid more money, I would seriously consider becoming a teacher.
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Just seen the video
All his hand movements made me laugh.
"If you would just get up and teach them instead of handing them a frickin' packet YO!"
Completely agree with him
Had teachers myself who just sit there and tell you to read from a text book and other teachers who have passion and encourage the students to be more engaged.
And we all know which teachers we learnt best from
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We've all had teachers like that in HS, just sit at the desk and read from a text book or from a PowerPoint. But the thing is, that's what college and a job will be like. They don't baby you in college like they do in school, it's up to you to pass. I learned this lesson the hard way my first year
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This thick, creamy Greek yogurt dip recipe is loaded with mango and black beans, creating the perfect healthy Caribbean-inspired dip for snacking on game day, or any day! It's full of fiber and gluten free, too!
My 50th birthday bash week is off and running at full speed! If you haven't visited my earlier posts yet, go grab some awesome recipes for my Low Carb Slow Cooker Italian Meatloaf and Bernadette's Bacon, Jalapeno & Monterey Jack Tamale Bites.
Today's recipes are for my GREEK YOGURT SNACK DIP (get the recipe below) and Gillian's OATMEAL CREAM PIES and wait until you see the giveaway prizes that are up for grabs! CRAZY GOOD!
I'm so happy that you're here to get in on this fun week!
There'll be a whole new giveaway EVERY DAY this week, through Thursday, so please stop back each day to see what new prizes are up for grabs.
HERE'S what's up for grabs today:
- A HUGE case of Late July snack chips (assorted flavor varieties) and coupons for Stonyfield Greek Yogurt (open to U.S. residents only)
- A copy of Amanda Rettke's cookbook, "Surprise-Inside-Cakes" (Amanda is the brilliant blogger behind I Am Baker) open to U.S. AND Canadian residents*
- a $25 Amazon gift card or Paypal cash! open to U.S. AND Canadian residents*
Scroll to the end of this post to get entered to win! OH, and GREAT news for my readers in Canada… you're eligible to win some of the prizes! I've been wanting to open giveaways up to you, but it's always been cost prohibitive…until now!
My Greek yogurt dip recipe features Stonyfield Greek yogurt. I'm a member of the Stonyfield Clean Plate Club and I was provided with free samples of their yogurt to create this recipe with, and they sent me a huge case of Late July snack chips to dip into my dip with.
The triple bonus was that they offered to send a case of Late July chips and some Greek yogurt for one of you lucky readers. If you're looking for a healthy, all-natural snack chip that's lower in carbs and calories than traditional snack chips, you're gonna be in snacking Heaven with these!
I had several flavors of chips to choose from, so Brian and I did a taste test and determined that we couldn't pick a favorite… we loved every single variety!
With that being said, 3 of the flavor varieties, Red Hot Mojo, Sub Lime, and Mild Green Mojo, are sort of Caribbean-inspired in flavor. I wanted to find a chip that would help to accent those flavors, so I added mango and black beans to my dip. I also added a small amount of vanilla yogurt to bring an extra touch of sweetness. The dip was so good that Brian, who's also known as Mr. "I hate yogurt", helped me to devour the batch in less than 30 minutes. Can you say smashing success?
You can have this healthy Greek yogurt dip put together in less than 5 minutes and in front of your game day crowd of hungry eaters in record time!
This Recipe Makes/Serves: 2
This thick and creamy Greek yogurt snack dip is loaded with mango and black beans, creating the perfect healthy dip for snack chips, raw veggies, or as a topping for potatoes or a salad!
5 minPrep and Rest time (if applicable)
5 minTotal Time
- 2 containers (5.3 ounces each) plain flavored nonfat Greek Yogurt
- 1 container (5.3 ounces) vanilla flavored nonfat Greek Yogurt
- 1/2 cup fresh or frozen mango, diced small
- 1/4 cup cooked black beans (if using canned, rinse well and drain)
- 1/4 teaspoon vanilla extract
Add all ingredients to a mixing bowl and use a wooden spoon or spatula to combine.
Serve with snack chips, raw veggies, or as a topping for baked potatoes, rice, or salad
OK, so now that you've got more great recipes to try (don't forget to check out Gillian's recipe for OATMEAL CREAM PIES), here's your chance to get your hands on more great prizes, too. GOOD LUCK!
The giveaway has ended.
Thanks to the bloggers and brands that are celebrating with me this week!


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Skip to comments.CAPTION THIS PHOTO OF SPITZER & SPOUSE!
Posted on 03/10/2008 1:01:31 PM PDT by Red Badger
Does this mean she's gonna run for Senate?
"Hmmm, how much can my lawyer get me and the kids."
"But is wasn't a "wide stance", dear..
$5,500 an hour?
This guy makes Rudy look like a Boy Scout.
Maybe, but she's gonna definitely run for the lawyer's office, first!.....
"What do you mean 'What's with my teeth?'
No, she did not punch me in the mouth."
I can't believe we - ahem I mean I - got caught.
The voters were screwed more by this scumbag than the ho or his wife. Check the general fund!!!!!!!!
Looks like she is trying to figure out exactly what she can get in the divorce now after his fall from grace.
"Damn, he spent all my alimony on the hookers."
She looks like Jennifer Aniston a little. The governor is very lucky to have a hottie like her. What the heck was he thinking???????????????
Bet it's been fun if you are a spectator at the Spitzer household the last few days.
She looks contemplative, like, "He's gonna pay and pay and pay and pay!"..................
What possesses these weak women to just take this?
feel awful for her. He also has three daughters, whom I sure he would not want being a hooker.
Another family ripped apart.
Did Hillary sic the Feds on Eliot for RUINING her over the drivers licenses for ILLEGALS!!
Elliot you dumb*ss, you left your dentures back at the hotel.......
Mrs.. I've spent all these years being faithful to you ugly bald big eared idiot for you to do this to me... I ain't Hillary, you can't bribe me with a Senate seat.
Makes you wonder what she got for their last anniversary gift........
The look of caught..
I feel sorry for her.
My first thought at seeing his expression, and her slightly glancing at him.
Spitzer looks like "Batboy" from the National Enquirer!
I think she's in the know on this.
Obviously he married above his level.
She is not bad looking ( at least in this picture ) he is a doofus.
He needs to move to New Orleans, he could easily get elected in that swamp. He would add real clout to Mardi Graus.
Yahoo just put up a photo of him, his wife and three daughters going to church.
She's probably thinking, "Mother was right, after all, about THIS guy!"...............
I KNEW we should have taken separate cars . . . . #@!$%&*!
Can't caption- lol'ing too much right now.
Good point. One look and listen to Hillary and one can at least understand, if not approve, of Bill's activities but Spitzer has no excuse.
With a puss and a physic like that I'd say Spitzer was using a low-rent ring... ick..
Wifee-poo ... "You're getting kick to the curb!! You'll be lucky if you get the old Ford out back to sleep in."
I don't care - just lower our taxes in here NY and get the Gov't out of everything.
Let me introduce my wife, Donna Hanover!
"What the hell is my lawyers name?"
I feel sorry for any mother and wife who gets betrayed like this. I am in her court 100% whether she sticks with him or leaves him, I think anyone who does this deserves everything they get.
Eliot "Client-9" Spitzer with Mrs. Client-9 at the governor's coming out party...ha, ha, ha!
Not with THAT look on her. She's furious. I know the look.......
Another family ripped apart.
Me, too. Someone is going to have to explain all this to their children, and you pretty much know it will be her.
Was this today?
Hehehe, love to be a fly on the wall when her parents hear about this...
Potential money.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.


text:
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New York, Brook Haven, Hempstead, Babylon, Yonkers, Albany and others.
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When searching for something specific, search with that truck's make and model, or use a general phrase such as "used trucks for sale in New York" or "used chevrolet trucks in New York" for example.
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You can avoid unnecessary travel and pushy salespeople! Use the internet to your full advantage or call ahead. Find phone numbers of local used truck dealers in
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Many truck dealerships have websites that showcase their current stock.
Truck Websites:
Truck websites are similar to online classified ad websites, but they have a focus on new trucks and used trucks.
There are thousands of these websites online. Some enable all sellers (including dealers in New York) to upload information about a truck that is for sale.
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The buyer who scoops up these deals often see a truck with a for sale sign by the road or at the local store in New York. So pay attention, and watch for those for sale signs, you just might get a great deal!
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Truck Dealers for New York.
Di Blasi Ford
11221 Northern Blvd, Corona, NY 11368
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Patrick Buick GMC & Used Car SuperCenter
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383 State Route 3, Plattsburgh, NY 12901
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131 US Highway 6, Port Jervis, NY 12771
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Wilbur-Duck Chevrolet Buick
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Adirondack Chevrolet Buick
7504 US Route 9, Elizabethtown, NY
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Christman Motor Sales Inc
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Hillside Auto Mall, Inc.
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Steet Toyota
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Get the best deals on used trucks for sale in New York here!


text:
Item: NWF357
Supports healthy glucose levels already within the normal range
3 chromium forms
500 mcg 90 Vcaps
Supports healthy glucose levels already within the normal range
3 chromium forms
NOW Foods' Tri-Chromium features three chromium forms to support healthy glucose levels that are already within the normal range. Chromium is an essential trace mineral that works with insulin to support healthy blood glucose levels already within the normal range and plays an important role in the proper utilization of protein, fat and carbohydrates. Cinnamon has been used throughout history by herbalists to promote healthy digestion and metabolism. Contains no sugar, salt, yeast, wheat, gluten, corn, soy, milk, egg, shellfish or preservatives.
Serving Size 1 Vcap®
|Amount Per Serving
|% Daily Value
|Chromium (Tri-Chromium™) [from Chromium Picolinate, Chromium Chelavite® (chromium amino acid chelate) and ChromeMate® (chromium polynicotinate)]
|500 mcg
|Cinnamon (Cinnamomum verum) (Bark)
|250 mg
† Daily Value not established.
Other Ingredients: Cellulose (capsule), Rice Flour, Silica and Magnesium Stearate (vegetable source).
Suggested Usage: As a dietary supplement, take 1 Vcap® daily, preferably with meals.
Contains no: sugar, salt, yeast, wheat, gluten, corn, soy, milk, egg, shellfish or preservatives. Vegetarian/Vegan Product.
Caution: Do Not Eat Freshness Packet. Keep in Bottle.
Diabetics: Use only under a physician's supervision.
Vcaps® is a registered trademark of Capsugel.
Chromium Chelavite® is a registered trademark of Albion Laboratories.
ChromeMate® is a registered trademark of Inter-Health Nutraceuticals Inc. (US Patent nos 4,923,855; 4,954,492 and 5,194,615).
.14 lbs
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We are dedicated to offering the highest quality products at the best price. Find out more about how we ensure such a high standard in everything we do.Learn More


text:
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text:
Local man denies domestic assaultApril 17,2013Local man denies
domestic assault
A Mendon man charged with beating and choking a woman last week was jailed on $10,000 bail Monday after denying felony domestic assault.
Tristan L. Taylor, 29, pleaded innocent in Rutland criminal court to a charge of aggravated domestic assault in the second degree. He remained behind bars Tuesday in the Rutland jail.
Rutland City Police arrested him Friday night after they were called to an apartment on Grant Street by a woman who said Taylor assaulted her during an argument. The woman told police Taylor kicked her, grabbed her by the hair and threw her onto a bed where he allegedly choked her.
The woman told police she tried to fight back by biting and kicking and flailing her arms.
Taylor was not at the home when police arrived, but he was found shortly after at the corner of Elm Street and Grant Avenue. He told police he had just been attacked by a group of people who pulled up in a car and beat him up, according to court records.
If convicted, Taylor faces up to five years in jail.MORE IN This Just InBENNINGTON A Sandgate man with a previous conviction for a sex crime against a child in New... Full StoryThousands of Vermonters will have the chance to get their drivers licenses back starting Thursday. Full StoryA Castleton man, who police said has had several incidents at Fowler Services, denied striking... Full Story
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text: The Insurance Institute for Highway Safety evaluated the seats and head restraints on fourteen minivans in rear-end crashes. Seats were places on sleds in a simulated 20 mph crash. Only two, the Ford Freestart and Mercury Monterey, were rated good. The Dodge Grand Caravan and Chrysler Town and Country were rated acceptable. The Honda Odyssey was rated marginal. Rated poor were the Chevrolet Uplander, Buick Terraza, Pontiac Montana SV6, Saturn Relay, Chevrolet Astro, GMC Safari, Mazda MPV, Nissan Quest and Toyota Sienna. To protect against whiplash, don't drive with your seat tilted back, and the headrest should be within four inches of your head and it should always be above your ears.


text:
Columns in the WCR
We know him from religious art – he is always shown as a dove. We know him from the catechism and from the New Testament story of his descent upon the disciples. He came upon them as fire that did not burn, as wind that did not destroy.
Read the rest of entry »
I'm often asked about how we can make our society more inclusive and accessible for the disabled. There are obvious physical barriers for those who have physical disabilities. Those normally take some engineering or construction thought.
A murder trial is playing out in Pennsylvania. In 2011, Philadelphia late-term abortionist Dr. Kermit Gosnell was charged with the murder of seven infants born alive after botched abortions. (Three of those charges were later dropped for lack of evidence.) Gosnell was also charged with the murder of Karnamaya Mongar, 41, who died of a medication overdose during an abortion at his clinic.
My first full-time job started in the mid-1970s at the Archdiocese of Regina, setting up a social action office in Archbishop Charlie Halpin's offices on 13th Avenue. Here I met, for the first time, the Sisters of Service, who had their offices on nearby Cameron Street.
Do I believe in the Life Everlasting?
There are many theories as to why the murder trial of Philadelphia abortion doctor Kermit Gosnell is getting sparse media coverage. But it is hard to avoid the conclusion that the decades-long government cover-up of Gosnell's grotesque abortion clinic is being perpetuated by the media.
In his autobiography, Morris West suggests that at a certain age our lives simplify and we need have only three phrases left in our spiritual vocabulary: Thank you! Thank you! Thank you!
Today – today I choose to indulge myself. At four score years and four, I presume to take a stand on that thin collection of privileges earned by age. I make a claim for wisdom: T. S. Eliot's wisdom – the wisdom of humility. I find shelter in his claim that "The only wisdom we can hope to acquire is the wisdom of humility."
Life, marriage and family are gifts of God. As we now embark upon the Week for Life and Family, we Bishops of Alberta and the Northwest Territories wish to reflect with you on the beauty and wonder of these realities, and offer our closeness and support to any who are struggling.
The fragility of life broke through the turmoil of our everyday lives when Boston Marathon bombs unleashed their cowardly indiscriminate destruction.


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Rocky 5 Points Rock and roll! Medal Stats.
Rebelious 5 Points Take revenge, man. Do it. Medal Stats.
Total Medals Earned: 199 (From 34 different games.)


text:
Tuesday, March 25, 2014
Gupta Conviction Affirmed by Second Circuit
The Second Circuit Court of Appeals affirmed Rajat Gupta's convictions for securities fraud and conspiracy to commit securities fraud. (See here). The decision should be a hit for future evidence casebooks as it provides detailed analysis of a host of different evidence rules - Rules 403, 801, 802, 803, and 804.
But what the decision summarily denies is the argument that the "wiretap authorizations were obtained in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, ... and the Fourth Amendment to the Constitution." The Second Circuit notes that since Rajaratnam's challenges were rejected, "Gupta's Title III and constitutional challenges are thus foreclosed." Hopefully a higher Court will examine the use of wiretaps in such white collar cases.
March 25, 2014 in Insider Trading, Judicial Opinions, Securities | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 5, 2014
Kaley Opinion, Based on Legal Fiction, is Harmful to Defendants and Lawyers
In Kaley v. United States (12-464, decided February 25, 2014) (see here), the Supreme Court by a 6-3 vote extended the rulings of United States v. Monsanto, 491 U.S. 600 (1989) and Caplin & Drysdale v. United States, 491 U.S. 617 (1989) by determining that a grand jury finding of probable cause that a federal defendant committed a crime was conclusive in any effort by that defendant to secure funds out of temporarily restrained assets to hire a private attorney of his choice. A defendant seeking release of funds may still be able to challenge the grand jury determination that there was probable cause that the assets seized resulted from or were involved in the purported criminal activity, but not that the activity was criminal.
The opinion, written by Justice Kagan, exalts the inviolability of the grand jury and demonstrates a naive misunderstanding of (or lack of concern about) the reality of its role in the determination of probable cause, ignores the presumption of innocence, and denigrates the importance of independent defense counsel in the criminal justice system. It tilts the playing field of justice in the government's favor by giving the government, in some cases, the option to deprive the defendant of the counsel he has selected or intends to select.
Essentially, the premise of the opinion is that since grand juries historically have the unreviewable power to determine probable cause to indict and require a person to stand trial and thus derivatively to deprive him of pre-trial liberty, they similarly have the power derivatively to deprive him of his right to counsel of choice. Justice Kagan, worrying that a different decision would be incongruous and unsymmetrical, seems more concerned with the effect of the decision on the pillars of architecture of the criminal justice system than the pillars of justice and fairness.
The underlying (but unspoken) foundation of the opinion is essentially fraudulent: the legal fiction that federal grand juries actually make independent, considered determinations of probable cause necessary to indict. Every experienced federal prosecutor, defense attorney, or judge knows otherwise; grand juries, especially federal ones, are virtually invariably merely "rubber stamps" for the prosecution. The government -- not the grand juries -- makes the actual decision who and for what to indict.
Former New York Court of Appeals Chief Judge Sol Wachtler famously said, "A grand jury would indict a ham sandwich" -- referring to a grand jury in a state where prosecutors are constrained because they know that judges are mandated by law upon defense motion to review the grand jury minutes to determine whether the evidence presented was legally sufficient and to dismiss the indictment if not, and where hearsay evidence is not admissible. In contrast, in federal courts, as stated in Kaley (quoting United States v. Williams, 504 U.S. 36, 54 (1992)), "a challenge to the reliability or competence of the evidence supporting a grand jury's finding of probable cause will not be heard" (and an indictment may be, and sometimes is, based wholly on hearsay, often from a single government agent). A federal prosecutor thus has no such constraint as his New York State counterpart; he knows that no matter how flimsy or inadmissible the evidentiary basis for an indictment may be, that basis is unchallengeable. Thus, if a New York State grand jury would indict a ham sandwich, a federal grand jury would indict a slice of bread.
* * *
Chief Justice Roberts, to my knowledge the only current justice who had a significant career representing paying clients and thus may have greater empathy for the private bar than most of his colleagues, wrote a powerful dissent noting the basic lack of fairness allowing the prosecution essentially to disqualify an accused's counsel of choice without even a hearing. He wrote:
[F]ew things could do more to undermine the criminal justice system's integrity than to allow the Government to initiate a prosecution and, then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice -- without even an opportunity to be heard. . . . [I]t is fundamentally at odds with our constitutional tradition and basic notices of fair play. . . .
The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial. . . .
In my view, the Court's opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant's chosen advocate strikes at the heart of that significant role.
* * *
Following Monsanto, which explicitly left open the question as to whether a hearing on the provenance of seized funds was required, the federal courts divided on the issue. Some prosecutors had chosen to allow defendants to pay from restrained funds reasonable and legitimate fees to counsel of choice. Most had done so in order to avoid giving the defendant a preview of their case; others had done so out of respect for the constitutional right to counsel and a robust adversary system -- a right apparently not as much respected by the Court majority -- and a preference for a fair fight where the accused is not hampered by denial of his choice of counsel.
The elimination of the requirement in many courts for what was called "a Monsanto hearing" (a term likely to be soon forgotten) will undoubtedly eliminate, or at the very least severely limit, the opportunity for defendants in federal courts to pay counsel of choice from seized funds. Prosecutors who had chosen to allow defendants to pay counsel from restrained assets in order to avoid discovery of their cases will no longer have that reason to do so. Those who used the avoidance of discovery as a cover out of respect for the constitutional right to counsel of choice or the adversary system will no longer be able to do so. Pre-trial forfeiture claims will now in some cases offer a prosecutor a potential bonus beyond the stated goals of depriving a defendant of wrongfully-gained assets and using them for governmental purposes -- the elimination of a top-notch adversary. Thus, there is now a tactical trial benefit to the prosecutor to institute pre-trial asset restraint. In white-collar cases, where the prosecutor often knows who will probably represent the defendant from pre-indictment discussions, his determination to seek pre-trial restraint may be affected by whether he likes or dislikes the attorney, whether the attorney is dogged and aggressive, or whether the attorney is likely to give the defendant a better chance of success than a replacement.
The Kaley decision will also have a severe harmful effect on the finances of an already financially-distressed private middle-class (other than big-firm) criminal defense bar, which will (as will large firms) be deprived of a considerable number of well-paying clients because of lack of available assets outside of those seized. Defendants -- generally either drug or white-collar defendants, those who had a considerable amount of money prior to pre-trial seizure -- will be deprived of representation by the most experienced and successful criminal defense lawyers. They will be represented by court-appointed public defenders, institutional or private appointed attorneys, or less expensive private attorneys -- often, but not always, experienced, dedicated and able, but generally less so than high-profile, high-paid private attorneys, and almost always with more cases and clients and less time and resources to devote to them than well-compensated private attorneys (and it is unlikely that government funding will be increased to provide public defenders those resources). The ability, energy and knowledge of who represents them will often depend on the luck of the draw from assigned counsel lists, rather than their considered choice. The gulf between counsel of choice and public defenders is greatest in white-collar cases since few public defenders have experience in these cases, or ample resources to defend them.
In his opinion, Chief Justice Roberts alluded to, but failed to state explicitly, the general disparity between the selected best of the private bar and the average (and an assignment-by-rotation system necessarily leads to the mean or average) public defender or assigned attorney. It is unfashionable (and politically incorrect) for judges (and bar leaders) to say or write anything that might be construed to disparage public defenders (and perhaps provide ammunition to ineffective assistance claimants). Rather, they, as did Chief Justice Roberts, often speak of "counsel of choice" when they mean "the private bar." Lawyers -- whether chosen or assigned -- are not fungible. Just as there is a difference in quality between a $300,000 Bentley and a $15,000 Toyota Corolla, there is usually a difference in quality between an attorney who commands large fees because of her reputation and stature and the average assigned attorney. (To be sure, like automobiles, there are lemons and diamonds among both the expensive and the inexpensive.)
As Chief Justice Roberts said, "The possibility that a prosecutor could elect to hamstring his target by preventing him from paying his counsel of choice raises substantial concerns about the fairness of the entire proceeding." Just as a basketball team opposing the Miami Heat might choose, if it could, that LeBron James sit out the game, so too a prosecutor, if he could, might now choose to seek pre-trial restraint to keep a first-rate private lawyer on the bench.
March 5, 2014 in Attorney Fees, Defense Counsel, Forfeiture, Grand Jury, Judicial Opinions, Prosecutors | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 26, 2014
Unwarranted Sentencing Disparities Among Defendants With Similar Records Who Have Been Found Guilty Of Similar Conduct
Juan Prado was a mildly corrupt Chicago cop who pled guilty to taking bribes from tow truck operators in order to funnel business their way. At sentencing he argued for a downward variance based on several factors, including the downward variance received by James Wodnicki, an allegedly similarly situated Chicago cop who was sentenced in a related case. The sentencing court ruled, incorrectly, that Seventh Circuit precedent only allowed it to consider nationwide sentencing disparities under 18 U.S.C. Section 3553 (a)(6). It refused to consider any arguments, from either the prosecution or defense, based on Wodnicki's downward variance, and sentenced Prado to a within-Guidelines prison term of 42 months. Last week, in United States v. Prado, the Seventh Circuit reversed, since the sentencing court was unaware that it could consider Wodnicki's sentence in applying 3553 (a)(6), and since the Seventh Circuit thought this may have affected Prado's sentence. The opinion reaffirms two important points, to wit--that sentencing disparities can be considered on both individual and global levels, and that within-Guidelines sentences can be reversed when based on erroneous assumptions. Interestingly, Prado did not raise this specific ground of error until the case reached the appellate court, but the government failed to argue Prado's waiver on appeal. Ergo, the waived waiver doctrine applied.
February 26, 2014 in Judicial Opinions, Sentencing | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 25, 2014
Denied Three Times (by Moses--not Peter) While Trying to Make a Record
This isn't exactly a white collar case, but America is our beat. Few things are more frustrating to a competent criminal defense attorney than a judge who won't allow her to make an adequate record. This problem seems to be getting worse in the federal system. What a nice surprise then that the Fifth Circuit, through Judge Ed Prado, is not having any of it. In United States v. Salazar, the district court revoked defendant's supervised release, sentenced him to a prison term, and imposed an additional supervised release term with new conditions. The new supervised release conditions were not announced by the trial court until near the end of the sentencing hearing. When defense attorney Angela Saad tried to object, the judge (Alia Moses) cut her off three times. On appeal, Salazar challenged Supervised Release Condition 6. The government argued for plain error review because Saad's objections to the new conditions were global and not specific. Salazar urged that abuse of discretion was the appropriate standard, as the judge had cut off counsel's attempts to object in more detail. The Court sided with Salazar. "Salazar had no reason to object to the conditions prior to sentencing, as they were not announced until that time." Moreover, "[c]ounsel...initially objected broadly to the conditions on account of their overly burdensome nature, but before counsel had an opportunity to finish her sentence, the court overruled her objection three times. Salazar's counsel reasonably believed that the district court would not have welcomed or entertained any further discussion of the issue." The Court ultimately vacated Condition 6, because the trial court had not adequately explained why it was reasonably related to statutory supervised release factors. This is a good case for a criminal appellate attorney to keep in his back pocket. It is altogether fitting that Prado wrote it. He was an outstanding trial judge who was always respectful to attorneys on both sides, and let them try their cases.
February 25, 2014 in Judicial Opinions | Permalink | Comments (0) | TrackBack (0)
Monday, February 24, 2014
Cotton Comes To Foley Square
In United States v. Rubin, appellant maintained that his conviction for conspiracy to violate the Unlawful Internet Gambling Enforcement Act of 2006 ("UIGEA") was invalid, despite his unconditional guilty plea, because the indictment against him alleged conduct exempt from prosecution under UIGEA, and therefore deprived the district court of subject matter jurisdiction. Defendants who voluntarily plead guilty generally waive all non-jurisdictional defects in prior proceedings. (Conditional guilty pleas require the agreement of the government and the trial court.) Applying the U.S. Supreme Court's unfortunate decision in United States v. Cotton, 535 U.S. 625 (2002), the Second Circuit squarely rejected Rubin's contention. Could Rubin have successfully argued, for the first time on appeal, pursuant to Fed. R.Crim.P. 12 (b)(3)(B), that his unconditional guilty plea was invalid because the indictment simply failed to allege an offense, irrespective of any jurisdictional issues? We do not know. According to the Second Circuit, his attorney failed to raise that point.
February 24, 2014 in Judicial Opinions | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 28, 2014
Supreme Court Narrowly Defines Term "Result From"
The degree of causation necessary to impose legal blame is an interesting philosophical, policy and, of course, legal issue. It is an issue that probably arises more often in tort than criminal cases, but is nonetheless important in criminal law in several areas, including sentencing considerations.
In Burrage v. United States, ___ U.S. ___ (12-7515, January 27, 2014), the Supreme Court considered the meaning of the term "result from" in a case where the district court imposed a 20-year mandatory minimum sentence upon a defendant for the sale of one gram of heroin since a buyer's death had "result[ed] from" the use of the heroin as one of several drugs he consumed that contributed to the death.
Burrage was convicted of distribution of narcotics to Banka, who died after imbibing the heroin and several other drugs. Medical experts at trial could not rule out that Banka might have died from using the other drugs even if he had not taken the heroin, but opined that the heroin use was a contributing factor to his death.
The district court declined to accept the defense contention that the statutory term "result from" required a "but-for" standard. Instead, it construed the phrase to mean that the drug sold had only to be a "contributing cause" of the death and so charged the jury. The Eighth Circuit affirmed.
In a unanimous opinion, written by Justice Scalia (who has authored some of the most innovative and pro-defense decisions by the Court in recent years), the Court reversed, ruling that the term "result from" should be construed in its "ordinary meaning" to require a "but-for" standard of causation -- that the harm would not have resulted "but for" the defendant's conduct. It was, therefore, the Court found, not enough for the trier of fact to find that the drug transfer was merely a "contributing factor" to the death. The opinion discussed the Model Penal Code, the Restatement of Torts, baseball, and the rule of lenity, as well as the Court's recent restrictive reading of the term "because of" in discrimination cases, a discussion which triggered a special concurrence by Justice Ginsberg (which she apparently would not have felt the need to write "but for" that discussion).
The government, not untypically, made a doomsday argument that defining "result from" as the Court did would "unduly limit criminal liability" and "cannot be reconciled with sound policy." The Court disagreed, doubting that the opinion would prove to be a "policy disaster."
Although very unlikely to be a "disaster," the opinion may have ramifications beyond drug cases. The issue of what consequences resulted from the defendant's conduct arises frequently in homicide and assault cases, and also occasionally in white-collar cases, for instance in determining the amount of loss or harm for sentencing purposes. At the least, it appears that in federal criminal law the term "result from" now will have a more narrow meaning than previously.
January 28, 2014 in Judicial Opinions, Sentencing | Permalink | Comments (0) | TrackBack (0)
Thursday, January 16, 2014
Second Circuit Denies Fifth Amendment Protection for Required Foreign Bank Account Records
One of the increasing incursions into constitutional rights in the white-collar area is the expansion of the "required records" exception to the Fifth Amendment privilege against self-incrimination. In general, that doctrine provides that an individual or entity required by law to maintain for regulatory purposes certain records has no Fifth Amendment right to refuse to produce them to the government.
The Second Circuit last month, in affirming a contempt finding against an individual for failing to produce to a grand jury records of foreign bank accounts mandated to be kept by regulations promulgated pursuant to the Bank Secrecy Act, 31 CFR 1012.420 ("BSA"), held, in accord with prior rulings by other circuits, that the "required records" exception to the Fifth Amendment privilege against self-incrimination pertains to the production of such records. In Re Grand Jury Subpoena Dated February 2, 2012, (13-403-CV, Dec. 19, 2013).
The individual contended that he had a Fifth Amendment right to refuse to comply with a grand jury subpoena for foreign bank records. He claimed that the subpoena put him in a Catch-22 position: produce documents that might incriminate him or confirm that he failed to maintain records of his foreign bank accounts, which also might incriminate him. The court essentially said "tough," and affirmed the contempt order.
The court first considered whether the "act of production" doctrine (see United States v. Hubbell, 500 U.S. 27 (2000)) applied to "required records." Under that doctrine, generally a person could on Fifth Amendment grounds resist a subpoena for the production of records unless the government could demonstrate it was a "foregone conclusion" that the person actually possessed such records. Although the contents of the records, as in the case of "required records," might not be privileged, by producing them the individual essentially incriminated herself by its production by admitting, among other things, that she possessed such records. The court held that the Fifth Amendment did not apply to required records, either as to the content of or production of such records, and thus the "act of production" privilege, a form of Fifth Amendment protection, did not apply.
The court then applied the three-prong test of Grosso v. United States, 390 U.S. 62 (1968), to determine whether the required records doctrine applied to the BSA regulation. That test provides, first, that the purpose of the legal requirement must be "essentially regulatory;" second, that the information sought must be of a type "customarily kept;" and third, that the records must have "public aspects" which make them at least analogous to public documents. The court then held that the regulation, although it was designed in part to facilitate criminal prosecutions, was "essentially regulatory" in that it did not target only those suspected of criminal activity since possession of foreign bank accounts by itself was not unlawful. Second, it held that the records were "customarily kept" since holders of bank accounts are likely to be aware of or have records of the details of their accounts. Third, the court held that "records lawfully required to be kept" for purposes of constitutional analysis by definition have "public aspects." Practically, such a finding eliminated this third prong as an independent prerequisite for application of the exception.
In sum, the court essentially ruled that any records ordinarily kept by individuals that are required to be made available to governmental authorities pursuant to a law not primarily designed to detect criminal activity lack Fifth Amendment protection.
Thus, the decision essentially gives federal prosecutors the ability to subpoena any person and demand that she produce any foreign bank records she possesses, even absent any knowledge or suspicion that she has such an account. To be sure, in this case, and virtually all other reported cases involving subpoenas of foreign bank accounts, the government appears to have had a considerable basis to believe the person subpoenaed does have a foreign bank account. The Second Circuit's ruling, however, at least implicitly, does not require that such governmental knowledge be a prerequisite for an enforceable subpoena for foreign accounts. "Fishing expeditions" for foreign bank account information appear to be allowed.
I would not be surprised, therefore, to see a considerable increase in the number of governmental subpoenas for records of foreign bank accounts, and perhaps the addition of a boilerplate request for foreign bank records in other subpoenas for financial records. As they say, there's no harm in asking.
January 16, 2014 in Contempt, Grand Jury, Investigations, Judicial Opinions, Obstruction, Privileges, Prosecutors | Permalink | Comments (0) | TrackBack (0)
Friday, December 27, 2013
Judge Rakoff Wades In
In the current New York Review of Books, Judge Jed Rakoff presents the most thoughtful, balanced analysis I have seen to date regarding DOJ's failure to prosecute high-level executives at elite financial institutions in connection with the recent financial crisis. Appropriately entitled, The Financial Crisis: Why Have No High Level Executives Been Prosecuted?, Judge Rakoff is careful not to point fingers, rush to judgment, or even allege that fraud has definitively been established. And that's a big part of the DOJ's problem. How can you establish fraud if the effort to investigate it has been haphazard and understaffed from the outset? Rakoff is someone worth listening to. An unusually thoughtful federal district judge, he has presided over many significant securities and bank fraud cases, served as chief of the Securities Fraud Unit in the SDNY U.S. Attorney's Office, and worked as a defense attorney. Oh yeah. He also hates the Sentencing Guidelines.
Among the many theories Rakoff posits for the failure to prosecute what, it bears repeating, only may have been fraud, are two that I take issue with. These investigations were apparently parceled out to to various OUSA districts, rather than being concentrated in the SDNY. Judge Rakoff believes that the SDNY would have been the more logical choice, as it has more experience in sophisticated fraud investigations. This may be true as a general proposition. But the most plausible historical fraud model for the mortgage meltdown-fueled financial crisis is the Savings & Loan Scandal of the late 1980s, so successfully prosecuted by DOJ into the mid-1990s. The SDNY had very little of that action.
Judge Rakoff also notes the government's role in creating the conditions that led to the current crisis as a potential prosecution pitfall. But this did not stop the S&L prosecutors from forging ahead in their cases. Back then, virtually every S&L criminal defendant claimed that the government had created that crisis by establishing, and then abandoning, Regulatory Accounting Principles, aka RAP. (One marked difference between the two scandals is that the S&L Scandal was immediately met with public outrage and a sustained Executive Branch commitment to investigate and prosecute where warranted. The sustained Executive Branch commitment has not happened this time around, for whatever reason.)
But these are minor quibbles and Judge Rakoff is spot on in most of his observations.
Judge Rakoff is right to reject the "revolving door" theory of non-prosecution. Any prosecutor worth his salt would love to make a name for himself, and would definitely enhance his private sector marketability, by winning one of these cases. Judge Rakoff also correctly notes that these cases are hard and time-consuming to investigate.
The judge's most salient point has nothing to do with the various theories for DOJ's failure to prosecute. Instead, it is his observation that there is no substitute for holding financial elites responsible for their major criminal misdeeds. The compliance and deferred prosecution agreements favored today are simply a cost of doing business for most big corporations. What's worse, in the current environment, DOJ is giving a walk to elite financial actors and simultaneously prosecuting middle-class pikers with a vengeance that is sickening to behold. The elite financial actors may not have committed criminal fraud, but many of them bear heavy responsibility for the ensuing mess. It is so much easier for DOJ to rack up the stats by picking the low hanging fruit.
The one thing Judge Rakoff cannot do, and does not try to do, is answer the question of whether criminal fraud occurred in the highest sectors of our financial world. The answer to that question can only be supplied, at least as an initial matter, by the AUSA in charge of each investigation. And if no prosecution occurs, you and I are unlikely to ever know the reason why.
December 27, 2013 in Fraud, Investigations, Judicial Opinions, Mortgage Fraud, Prosecutions, Prosecutors, Securities | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 18, 2013
Judge Kozinski's Dissent Scolds The Ninth Circuit's Majority On Brady/Giglio
What a marvelous dissent by Chief Judge Alex Kozinski, joined by judges Pregerson, Reinhardt, Thomas, and Watford, in United States v. Olsen. He dissented from the Ninth Circuit's refusal to rehear en banc the panel decision which excused an appalling example of Brady/Giglio error as immaterial. As Judge Kozinski so eloquently put it: "There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."
December 18, 2013 in Judicial Opinions | Permalink | Comments (0) | TrackBack (0)
Saturday, December 14, 2013
Fourth Circuit Extends Required Records Exception to Foreign Bank Accounts
Yesterday, in U.S. v. Under Seal (4th Cir. 2013), the Fourth Circuit, joining several other federal circuits, extended the Fifth Amendment's Required Records Exception to records of foreign bank accounts required to be maintained pursuant to the Bank Secrecy Act ("BSA"). John and Jane Doe received a subpoena to turn over records of their Swiss bank accounts. They responded that complying with the subpoena compelled them to testify against themselves, as they were required to create and maintain such records pursuant to the BSA. They also argued that the long-standing, judicially-created, Required Records Exception did not apply in this case, because the BSA's record-keeping provisions are essentially criminal, rather than regulatory, in nature. The district court disagreed, the Does took civil contempt, and an appeal ensued. Unsurprisingly, the Fourth Circuit sided with the government, accepting its argument that the BSA's record-keeping provisions are essentially regulatory in nature. You are shocked? There's not exactly a strong constituency, public or judicial, for foreign bank account tax evasion.
December 14, 2013 in Antitrust, International, Investigations, Judicial Opinions, Prosecutions, Prosecutors, Qui Tam, Tax | Permalink | Comments (0) | TrackBack (0)
Thursday, December 12, 2013
Second Circuit Reverses Convictions, Rejecting Government's Expansive "Continuing Conspiracy" Theory
Guest Blog by - Sara Kropf, Law Offices of Sara Kropf; Grand Jury Target Blog
The Second Circuit recently reversed the convictions of three defendants convicted in a municipal bond bid-rigging scheme, rejecting the government's attempt to rely on an attenuated theory of continuing conspiracy. The three defendants were immediately released from prison and the indictment was dismissed. The opinion sets a much-needed limit on the government's unfettered use of the continuing conspiracy theory to avoid the statute of limitations.
Background: The World of Municipal Bond Taxes
The case involves the somewhat esoteric world of municipal bond taxes. Municipalities issue bonds. Because the bond funds are usually used for long-term projects, municipalities often do not spend the bond funds immediately.
To earn additional revenue from the funds, the municipal bond issuer may invest in "guaranteed investment contracts" ("GICs") provided by financial institutions, such as GE (called a "provider"). GICs pay predetermined interest payments to the municipality, providing an additional source of income. Municipalities must rebate to the Treasury any interest earned over bond interest rate.
The tax code has certain provisions to prevent arbitrage in GICs. Important here, municipalities must determine the "fair market value" of the GIC. This is difficult because, as the Second Circuit noted, "GICs are not regularly traded."
To ease the burden on municipalities, IRS regulations provide for a safe harbor to the "fair market value" calculation if the municipality holds a competitive bidding process among GIC providers. Third-party brokers solicit blind bids from several providers. The bidders do not know who else is bidding or the rates of interest being offered by their competitors.
The Defendants' Role
Three defendants worked for a unit of GE that provided GICs. One left in 2001 to work with a company called Financial Security Assurance, Inc. Between 1999 and 2004, "the Defendants (on behalf of their employers GE and FSA) agreed to pay kickbacks to three brokers . . . and the brokers obliged by rigging the bidding process in several ways." For example, the broker would disclose the amount of other bids or keep other bidders off the bid list.
The kickbacks helped GE and FSA win bids to provide GICs to municipalities at a lower interest rate. This, in turn, potentially affected whether any interest payments would be rebated to Treasury. According to the Second Circuit, "each deal defrauded the municipality, the Treasury, or both."
The Indictments
On July 27, 2010, a grand jury returned an indictment. A superseding indictment was then returned for one count of wire fraud and six counts of conspiracy.
The defendants moved to dismiss on statute of limitations grounds. The district court granted the motion as to the substantive wire fraud count but refused to dismiss the conspiracy counts. It reasoned that as long as unindicted co-conspirators GE and FSA made interest payments on the GICs, the conspiracy was continuing.
The defendants were convicted after a three week-trial and three days of deliberations.
The Second Circuit's Reversal
The Second Circuit reversed, in an opinion authored by Judge Jacobs. United States v. Grimm, No. 12-4310. Judge Kearse dissented.
The applicable statute of limitations for general conspiracy is five years and for conspiracy to commit tax fraud is six years. The court noted that although the indictment listed 55 overt acts, the only ones within either limitations period "were the periodic interest payments made by providers to issuers pursuant to the GICs."
The court explained that only acts within the scope of the conspiracy could be properly considered in the statute of limitations analysis. The indictment alleged two purposes—the defendants sought to (1) "deprive issuers of money by causing them to award investment agreements at artificially determined or suppressed rates . . . " and (2) to impede the government's collection of tax revenue.
The court relied heavily on United States v. Salmonese, 352 F.3d 608 (2d Cir. 2003). That case held that a co-conspirator's receipt of profits from a financial instrument that was part of the fraud was an overt act in furtherance of the conspiracy because it was part of the co-conspirators' "anticipated economic benefits." But Salmonese also explained that the conspiracy ends if the "payoff merely consists of a lengthy, indefinite series of ordinary, typically noncriminal, unilateral actions . . . and there is no evidence that any concerted activity posing the special societal dangers of conspiracy is still taking place."
The Second Circuit explained that Salmonese's list of factors was not exclusive. It provided a more general enunciation of the rule:
[G]enerally, overt acts have ended when the conspiracy has completed its influence on an otherwise legitimate course of common dealing that remains ongoing for a prolonged time, without measures of concealment, adjustment or any other corrupt intervention by any conspirator.
Here, the court concluded, the GIC payments satisfied this rule and therefore were not within the scope of the conspiracy. The payments were indefinite (because they were "prolonged beyond the near future); they were ordinary (part of a commercial obligation); and they were made unilaterally (by the provider).
The court held that the interest payments were the "result of a completed conspiracy" and not "in furtherance of one that is ongoing." It noted that there was no indication that making the payments prolonged the conspiracy in any way. Because the payments were not overt acts in furtherance of the conspiracy, the government could not rely on them to satisfy the statute of limitations.
The Limits
Because white collar indictments frequently arise out of complex, long-term financial instruments (and are often the result of lengthy government investigations), the Grimm opinion is of note. The opinion announces a general rule that may be application to other financial fraud cases. And, of course, it is a refreshing change to see a court limit the government's use of the continuing conspiracy theory. Every minor ripple effect of a conspiracy should not be used to excuse the government's failure to bring a case within the already lengthy limitations period.
December 12, 2013 in Judicial Opinions | Permalink | Comments (0) | TrackBack (0)
Monday, November 18, 2013
Sixth Circuit Vindicates Assistant Federal Public Defender Debra Migdal.
How many federal appellate opinions begin like this?
"An attorney's reputation is her most valuable possession. It forms the basis for her peers' view of her and plays an important role-often a determinative one-in how she advances in her career. This case began with a government attorney's unauthorized filing of a motion for sanctions against Debra K. Migdal, an attorney who has served as an Assistant Federal Public Defender for nearly 25 years. It quickly took on a life of its own, resulting in two district-court orders strongly, publicly, and, we conclude, erroneously reprimanding Migdal. Because the record does not support any basis for these orders, we VACATE the sections of the first order pertaining to sanctions, REVERSE the second order in its entirety, and DISMISS the sanctions proceeding against Migdal."
And how many of them end like this?
"This opinion closes the book on a regrettable chapter in Debra Migdal's career, clears her of all claims that her conduct in this matter was sanctionable, and removes any taint of public censure on her reputation."
As anyone who practices criminal law in the federal court system knows, different districts, and sometimes different judges within a district, have different rules, formal and/or informal, for the issuance of subpoenas demanding early document production pursuant to Fed. R. Crim. Proc. 17(c). Some districts allow prosecutors and defense attorneys to issue the subpoenas, and examine documents, on their own. Other districts require a motion and court order. (Of course, the playing field is uneven, because the prosecution typically has the evidence it needs well before trial through the use of grand jury subpoenas.)
In 2011 Debra Migdal was an Assistant Federal Public Defender in the Northern District of Ohio handling a case in front of U.S. District Judge John R. Adams. At the time, neither the Northern District of Ohio nor Adams had any formal policy regarding the issuance of Rule 17(c) subpoenas. Migdal issued two Rule 17(c) subpoenas on her own, one of which was sent to the custodian of records at the U.S. Border Control, calling for the early production of materials in Judge Adam's court, but on a day she designated that was prior to a scheduled court date. Two previous district court opinions in the Northern District, neither of which were written by Judge Adams, had come to opposite conclusions about the propriety of issuing such subpoenas absent the court's permission. Migdal was unaware of the opinion holding that a court order is necessary.
Migdal used Administrative Office of the U.S. Courts Form AO 89, which commands both the appearance and testimony of the witness and, if necessary, the production of documents. In other words, unless the issuer crosses out the part of the authorized pre-printed form calling on the witness to testify, he/she is always commanded to appear and testify, even though in many cases the issuing party is only interested in obtaining documents. By way of contrast, on the federal civil side, there are two authorized subpoena forms, one calling for documents only and one calling for witness testimony.
AUSA Gregory Sasse told the Border Patrol Agent to ignore the subpoena. Sasse then moved to quash the subpoena and asked the court to impose whatever sanctions it deemed appropriate. Sasse wasn't authorized to move for sanctions and his superiors later withdrew this request. But Judge Adams was clearly not happy with Migdal. He held two hearings and publicly sanctioned Migdal under 28 U.S.C. Section 1927 and his inherent authority.
Section 1927 reads as follows:
"Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct."
The Sixth Circuit, noting that nothing whatsoever in the statute's language authorizes the imposition of non-monetary sanctions, ruled that Judge Adams abused his discretion in sanctioning Migdal under 1927.
The Sixth Circuit then rejected the three rationales Judge Adams relied on for sanctioning Migdal pursuant to his inherent authority. (Any sanctions against Migdal required a showing of bad faith on her part.)
1. Adams had ruled that a criminal defendant is entitled to materials under Rule 17(c) "only after requesting-and not getting-the necessary items from the government via Rule 16 discovery." Incredibly, he believed he had the inherent authority to sanction Migdal for failing to follow this protocol. But as the Sixth Circuit pointed out, no such protocol exists under Rules 16 and 17.
2. Adams had ruled that Migdal violated her duty of candor to to the court by commanding production at a hearing that had not been scheduled or requested. (He referred to it as a "fabricated" hearing.) Migdal acknowledged that the subpoenas were defective in this regard, apologized to the court, and argued that she had not acted in bad faith. The Sixth Circuit agreed, emphasizing that: a) AO Form 89 lacks clarity; b) Migdal called for production in Judge Adams' courtroom, so she was obviously not trying to hide anything from the court; c) the longstanding practice in Migdal's office and in many Federal Public Defender Offices, was to issue Rule 17(c) subpoenas without prior court approval; and d) Migdal relied on a prior Northern District of Ohio opinion specifically authorizing issuance of Rule 17(c) subpoenas without prior court approval. Judge Adams noted that he preferred the contrary judicial opinion. "But Judge Adams' inclination to side with one judge's view over that of another obscures the point that Migdal did not act in bad faith when she hewed to at least one judge's reading of the controlling rule."
3. Adams had ruled that Migdal "utterly disregarded Rule 17(c)'s implicit requirement that the court must approve and order early-production subpoenas." (internal quotations omitted). The Sixth Circuit carefully pointed out that reasonable people could disagree on this point, as evidenced by the conflicting district court opinions. That Migdal chose to take a view of Rule 17(c) at odds with Judge Adams' position, at a time when there was no clear controlling authority, could hardly amount to bad faith.
Throughout Judge Jane Stranch's opinion, for a unanimous Sixth Circuit panel, there runs a tone of incredulity at Judge Adams' actions in "branding a blemish on Migdal's reputation." It should never have happened. It should never happen again.
Here is the Sixth Circuit Migdal Vindication Opinion.
Congratulations to AFPD Migdal, by all accounts a fearless and hardworking AFPD. Congratulations to her attorney Greg Poe, of Poe & Burton, who wrote the brief and argued the case.
November 18, 2013 in Defense Counsel, Judicial Opinions, Prosecutors | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 5, 2013
Daubert Hearing Produces Defense Win
The defendant was charged with two counts of allegedly mailing threatening communications (18 U.S.C. § 876) and two counts of intentionally conveying false and misleading information (18 U.S.C. § 1038(a)(1)). The defendant challenged the "government's introduction of testimony by a handwriting expert pursuant to Federal Rules of Evidence 702 and 403." In this case it was a report and expert testimony of a US Postal Service handwriting analyst. The district court found that under the Daubert and Kumho standards "that the science or art underlying handwriting analysis falls well short of a reliability threshold when applied to hand printing analysis." This case was handled by Stephen J. Meyer (Madison, Wisconsin).
November 5, 2013 in Judicial Opinions, News | Permalink | Comments (0) | TrackBack (0)
Thursday, October 31, 2013
Ninth Circuit Vacates Conviction Due To Judicial Participation In Plea Discussions
The opinion is in United States v. Kyle. Although not a white collar prosecution, the ruling applies to all federal criminal cases in the Ninth Circuit. The Ninth Circuit noted that when a district court goes beyond giving the reasons for its rejection of a plea agreement and starts discussing hypothetical agreements that it might accept, "it crosses over the line establsihed by Rule 11."
October 31, 2013 in Judicial Opinions | Permalink | Comments (0) | TrackBack (0)
Wednesday, October 30, 2013
Sixth Circuit Reverses Convictions Under 18 USC Sections 1014 and 1028A
In United States v. Miller, the Sixth Circuit today reversed three of four counts of conviction in a mortgage fraud prosecution. The court held that appellant Miller did not unlawfully "use" a means of identification within the meaning of 18 U.S.C. Section 1028A, the Aggravated Identity Theft statute, when he falsely stated that two named individuals had given him authority to act on behalf of an LLC. Since Miller did not steal their identity, pass himself off as them, or purport to be acting on their behalf as individuals, he is not guilty of violating the statute. The government had argued for a broader construction, but the Sixth Circuit applied the rule of lenity.
The court also reversed a Section 1014 count, because it was bottomed on Miller's signing of a loan renewal and modification agreement. Since the modification and renewal agreement did not repeat the false statement contained in the original loan papers, Miller could not be guilty under Section 1014. The court indicated that Miller had engaged in fraud and false pretenses during the loan modification process. But this was not enough to support a Section 1014 conviction, which requires a knowingly false statement.
October 30, 2013 in Fraud, Judicial Opinions, Money Laundering, Prosecutions | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 22, 2013
Ninth Circuit Pops Stargell on Wire Fraud Affecting Financial Institution
Last week in United States v. Willena Stargell, the Ninth Circuit declared, in effect, "we are family with our sister circuits" in interpreting the federal wire fraud statute. Stargell, a tax preparer, was charged and convicted under 18 U.S.C. Section 1343 with wire fraud "affect[ing] a financial institution." Based on her filing of false tax returns, Stargell obtained Refund Anticipation Loans ("RALs") from financial institutions. Even though three of the four loans involved in Stargell's convictions did not result in a loss to any bank, the Ninth Circuit held that the statute was violated because, "[t]he increased risk of loss presented by fraudulent terms is sufficient to 'affect' a financial institution." The Ninth Circuit joined "our sister circuits in defining such term to include new or increased risk of loss to financial institutions." In fact, the only circuits the Ninth joined were the Seventh and Tenth. "The banks were affected because the risk of loss on the RALs was increased by the fraudulent nature of the related returns." The opinion takes a sledgehammer to the rule of lenity.
October 22, 2013 in Fraud, Judicial Opinions | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 15, 2013
Federal Trial Courts Can Require Sworn Allocutions
In what appears to be a case of nationwide first impression, the Third Circuit ruled today that federal district courts may require a defendant's sentencing allocution to be sworn, without violating Federal Rule of Criminal Procedure 32 or the U.S. Constitution. The textual Rule 32 discussion seems particularly weak as the rule itself nowhere requires the allocution to be sworn. The case is United States v. Ward. The opinion is here.
October 15, 2013 in Judicial Opinions, Sentencing | Permalink | Comments (0) | TrackBack (0)
Thursday, September 5, 2013
18 U.S.C. Section 1014: Dick and Frank (Posner and Easterbrook to you) Duke it Out.
Yesterday the Seventh Circuit, sitting en banc, reversed and remanded (7-2) a Section 1014 (and Section 317) conviction connected to the mortgage meltdown crisis. Judge Posner wrote the majority opinion. Chief Judge Easterbrook (joined by Judge Bauer) dissented. The opinion is United States v. Lacey Phillips and Erin Hall.
Section 1014 prohibits making any false statement or report for the purpose of influencing in any way a federally insured bank. Longstanding case law requires the government to prove that the defendant knew the statement was false at the time it was made. Phillips and Hall were an unmarried couple who applied for a home loan and were rejected. Hall then contacted his friend Bowling, a mortgage broker, who began advising Hall and Phillips and ultimately led them to a different bank, Fremont Investment & Loan, which granted a home loan to Phillips. Hall was not listed as a borrower. This was a stated income loan, also known in the industry as a liar's loan.
Phillips and Hall could not keep up with the payments and lost their home. A prosecution ensued. There were several false statements on the loan application, but Phillips and Hall testified that they only were aware of one of the statements, which was as follows. Under the Borrower's Income line, Phillips put down the couple's combined income.
Phillips and Hall wanted to testify that Bowling told them: 1) Phillips should be the only applicant for the stated-income loan, because her credit history was good while Hall's was bad because of the recent bankruptcy; 2) Hall's income should be added to Phillips' on the line that asked for borrower's gross monthly income; and 3) adding the incomes together was proper in the case of a stated income loan, because the bank was actually asking for the total income from which the loan would be repaid, rather than just the borrower's income.
The government wanted to keep this testimony from the jury and U.S. District Court Barbara Crabb (I kid you not) agreed. The Seventh Circuit, per Posner, reversed, in an unnecessarily complicated opinion, but one that is nevertheless fun and instructive to read.
I see it this way. According to Phillips and Hall, Bowling told them that, to Fremont Investment & Loan, Borrower's Income meant the total income from which the loan would be repaid. They were in essence informed that Borrower's Income was a term of art for Fremont. If Phillips and Hall believed that Borrower's Income meant (to Fremont) Combined Income of the People Repaying the Loan, then Phillips and Hall were not making a statement to Fremont that they knew was false. Their state of mind on this point was directly at issue. Theirs may have been be an implausible story, but the jury was allowed to hear it. Judge Posner's opinion has some important things to say about terms of art and interpretation of seemingly simple terms.
This case reminds me of a home loan I took out while I was an AUSA. The bulk of the down payment was being paid through my Thrift Savings Plan. That is, I was loaning myself money out of my government retirement fund. At the time, all of the standard loan applications required the borrower to state that no part of the down payment was coming from a loan. I asked my real estate agent and the mortgage broker whether that language applied to a Thrift Savings Plan Loan. They assured me that it did not. So, when I wrote down on the application that no part of my down payment came from a loan, I knew that in one sense this might be considered false, but to the bank, and presumably to any bank, it would be considered true, because the bank did not consider a Thrift Savings Plan Loan to be a loan. Had I defaulted and been prosecuted, I would have liked to present this as a defense, and it is hard to believe that any competent judge would have prevented me from doing so. But Judge Crabb did not allow this kind of evidence in, and Judge Easterbrook cheers her on.
Judge Easterbrook points out that the jury, in finding Phillips and Hall guilty, already determined that the couple knew several statements on the loan application were false. This is back-asswards and misses the point. This is not a sufficiency of the evidence case. If the jurors had heard the excluded testimony, they may well have been more likely to believe Phillips' and Halls' testimony that the rest of the false statements were made and submitted by Bowling without their knowledge. According to Posner, there was evidence to the effect that Phillips and Hall were naive, while Bowling (who pled guilty and cooperated) and Fremont (a bank that Posner deems disreputable) were sophisticated.
Of course, it is appalling and embarrassing that any self-respecting U.S. Attorney's Office would prosecute a case like this, but it is all part of DOJ's Piker Mortgage Fraud Initiative. Even more embarrassing was the government's contention on appeal that the excluded statements were hearsay. Posner called this a "surprising mistake for a Justice Department lawyer." I'm not so sure. Maybe it wasn't a mistake.
September 5, 2013 in Fraud, Judicial Opinions, Mortgage Fraud, Prosecutions, Prosecutors | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 4, 2013
Quality Control in the First Circuit: A Question of Materiality
In United States v. Russell, the First Circuit pays lip service to the materiality requirement in 18 U.S.C. Section 1035 (a) (2), prohibiting false statements in connection with the payment of health care benefits, but in reality reads this element out of the statute. After losing his job, appellant applied for and received health care benefits under a state-subsidized health care program in Maine. He was charged with making false statements/omissions to Dirigo Health Care Agency in order to obtain these benefits, by omitting the extra cash income he earned through work he performed at a friend's business. Appellant argued, to the jury and on appeal, that the government failed to prove the materiality of his statements/omissions, since he would have qualified for the subsidy even if he had accurately reported his income. In rejecting appellant's argument, the First Circuit correctly stated the standard materiality definition. But in describing the evidence presented by the government as to materiality, the Court stated the following:
None of this establishes that the amount of unreported income omitted by Russell could have affected the subsidy he received. The trial judge, though rejecting appellant's Rule 29 argument, assessed zero amount of loss and refused to order restitution, because appellant's unreported cash earnings could not be determined and there was no evidence that he earned enough to be disqualified from the subsidy program. As the trial judge put it, "if he had told the truth, the result would have been the same."
"At trial, the jury heard testimony from Dirigo's director that there was a limit on the income an applicant could earn in 2008 and 2009 to be eligible for an 80% health care subsidy like the one Russell was awarded. The jury learned that Dirigo does not employ investigators to verify statements made by applicants on subsidy applications and that the agency therefore has to rely on applicants' statements in determining eligibility. The agency requires the applicant to sign a certification to help it ensure that all the representations made by the applicant are true. Russell was awarded a $7,500 subsidy in 2008, and a $4,100 subsidy in October 2009, based on his representation in his application that he was neither employed nor receiving income. He signed the accompanying certifications attesting to the truthfulness of his statements in those applications."
The First Circuit analyzed the issue this way:
The Court's analysis seems to shift the burden of proof. The evidence, at least as specifically described in the Court's own opinion, fails to show what the unreported income was and whether it could have affected the subsidy amount. This is the government's burden to prove, not Russell's. If the unreported income did not reach a certain threshold, it simply was not capable of influencing the decision to grant Russell a subsidy. Russell is under no legal burden to prove the precise amount of unreported income he earned. If the evidence was there, the First Circuit should have clearly set it out in its opinion. The materiality element is easy enough to prove as it is. There is no reason to read it out of the statute entirely.
"Whether Russell's statements were material was ultimately a question for the jury. But the record clearly supports a finding that Russell received income in the amount he reported, plus some additional sums that he did not disclose. Had he forthrightly stated on his application that he had unspecified amounts of undocumented cash income above the precise amounts he reported, it is reasonable to believe that Dirigo might well have determined that he failed to meet his burden of proving eligibility. As we said, the government need only prove that the false statement had a 'natural tendency to influence, or [is] capable of influencing, the decision.' Neder, 527 U.S. at 16 (quoting Gaudin, 515 U.S. at 509) (alteration in original). Given the evidence presented at trial, we believe that a rational fact finder could conclude that they were material."
September 4, 2013 in Fraud, Judicial Opinions | Permalink
Monday, September 2, 2013
Second Circuit Rules 10(b) Does Not Apply Extraterritorially
In United States v. Vilar, the Second Circuit examined a post-Morrison decision with an issue of whether Section 10(b) of the Securities Exchange Act of 1934 applies to extraterritorial criminal conduct. The government had argued that the Supreme Court's decision in Bowman allowed for an extraterritorial application and that civil and criminal conduct should be treated differently and thus Morrison should not apply. The Second Circuit disagreed with the government saying that the Bowman decision was limited to conduct that was "aimed at protecting 'the right of the government to defend itself.'" In contrast, statutes such as 10(b) have as its "purpose [ ] to prohibit 'crimes against private individuals or their property,'" and therefore "the presumption against extraterritoriality applies to criminal statutes, and Section 10(b) is no exception."
The court also noted that "[a] statute either applies extraterritorially or it does not, and once it is determined that a statute does not apply extraterritorially, the only question we must answer in the individual case is whether the relevant conduct occurred in the territory of a foreign sovereign." Despite this legal analysis and ruling, the court found that there was no plain error with respect to territoriality on the counts here and thus no need to reverse on this issue.
Other issues raised by the defendants, such as those relating to a search warrant, jury instructions, and the admission of statements were found not to be in error. The court did, however, remand the sentence.
September 2, 2013 in International, Judicial Opinions, Prosecutions, SEC | Permalink | Comments (0) | TrackBack (0)


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Medicare Advantage:
Increased Spending Relative to Medicare Fee-for-Service May Not Always Reduce Beneficiary Out-of-Pocket Costs
GAO-08-359: Published: Feb 22, 2008. Publicly Released: Feb 28, 2008.
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In 2006, the federal government spent about $59 billion on Medicare Advantage (MA) plans, an alternative to the original Medicare fee-for-service (FFS) program. Although health plans were originally envisioned in the 1980s as a potential source of Medicare savings, such plans have generally increased program spending. Payments to MA plans have been estimated to be 12 percent greater than what Medicare would have spent in 2006 had MA beneficiaries been enrolled in Medicare FFS. Some policymakers are concerned about the cost of the MA program and its contribution to overall spending on the Medicare program, which already faces serious long-term financial challenges. MA plans receive a per member per month (PMPM) payment to provide services covered under Medicare FFS. Almost all MA plans receive an additional Medicare payment, known as a rebate. Plans use rebates and sometimes additional beneficiary premiums to fund benefits not covered under Medicare FFS, reduce premiums, or reduce beneficiary cost sharing. This report examines for 2007 (1) MA plans' projected rebate allocations; (2) additional benefits MA plans commonly covered and their costs; (3) MA plans' projected cost sharing; and (4) MA plans' allocation of projected revenues and expenses. GAO analyzed data on MA plans' projected revenues and covered benefits for the most common types of MA plans, accounting for 71 percent of all beneficiaries in MA plans.
In 2007, plans projected that relatively little of their rebates would be spent on additional benefits compared to cost-sharing and premium reductions. Of the average projected rebate amount of $87 PMPM, plans projected they would allocate about $10 PMPM (11 percent) to additional benefits, about $61 PMPM (69 percent) to reduced cost sharing, and about $17 PMPM (20 percent) to reduced premiums. Using funding from both rebates and additional premiums, plans covered a variety of additional benefits not covered by Medicare FFS in 2007, including dental and vision benefits. On the basis of plans' projections, GAO estimated that rebates would pay for approximately 77 percent of additional benefits and additional beneficiary premiums would pay for the remaining 23 percent. MA plans projected that, on average, beneficiaries in their plans would have lower cost sharing than Medicare FFS cost-sharing estimates, although some MA plans projected that their beneficiaries would have higher cost sharing for certain service categories, such as home health care and inpatient services. Because cost sharing was projected to be higher for some categories of services, beneficiaries who frequently used these services could have had overall cost sharing that would be higher than under Medicare FFS. On average, MA plans projected that they would allocate about 87 percent of total revenue ($683 of $783 PMPM) to medical expenses; approximately 9 percent ($71 PMPM) to non-medical expenses, including administration, marketing, and sales; and approximately 4 percent ($30 PMPM) to the plans' margin, sometimes called the plans' profit. About 30 percent of beneficiaries were enrolled in plans that projected they would allocate less than 85 percent of their revenues to medical expenses. Whether the value that MA beneficiaries receive in the form of reduced cost sharing, lower premiums, and additional benefits is worth the additional cost is a decision for policymakers. However, if the policy objective is to subsidize health care costs of low-income Medicare beneficiaries, it may be more efficient to directly target subsidies to a defined low-income population than to subsidize premiums and cost sharing for all MA beneficiaries, including those who are well off. As Congress considers the design and cost of MA, it will be important for policymakers to balance the needs of beneficiaries and the necessity of addressing Medicare's long-term financial health. In commenting on a draft of this report, the Centers for Medicare & Medicaid Services expressed concern that the report was not balanced because it did not sufficiently focus on the advantages of MA plans. GAO disagrees. This report provides information on how plans projected they would use rebates and identified instances in which MA beneficiaries could have out-of-pocket costs higher than they would have experienced under Medicare FFS.
Aug 26, 2016
Medicare Part B:Data on Coupon Discounts Needed to Evaluate Methodology for Setting Drug Payment RatesGAO-16-643: Published: Jul 27, 2016. Publicly Released: Aug 26, 2016.
Aug 5, 2016
Patient Protection and Affordable Care Act:Information on Approval Process for State Innovation WaiversGAO-16-637R: Published: Jul 6, 2016. Publicly Released: Aug 5, 2016.
Aug 1, 2016
Medicare Part B:CMS Should Take Additional Steps to Verify Accuracy of Data Used to Set Payment Rates for DrugsGAO-16-594: Published: Jul 1, 2016. Publicly Released: Aug 1, 2016.
Female Genital Mutilation/Cutting:Existing Federal Efforts to Increase Awareness Should Be ImprovedGAO-16-645: Published: Jun 30, 2016. Publicly Released: Aug 1, 2016.
Hospital Uncompensated Care:Federal Action Needed to Better Align Payments with CostsGAO-16-568: Published: Jun 30, 2016. Publicly Released: Aug 1, 2016.
Jul 7, 2016
Drug Shortages:Certain Factors Are Strongly Associated with This Persistent Public Health ChallengeGAO-16-595: Published: Jul 7, 2016. Publicly Released: Jul 7, 2016.
Jun 23, 2016
Defense Health Care:Availability and Quality Measurement of Women's Health Care Services in U.S. Military HospitalsGAO-16-596: Published: Jun 23, 2016. Publicly Released: Jun 23, 2016.
Jun 20, 2016
Federal Autism Activities:Agencies Are Encouraging Early Identification and Providing Services, and Recent Actions Could Improve CoordinationGAO-16-446: Published: May 20, 2016. Publicly Released: Jun 20, 2016.
Jun 15, 2016
Food and Drug Administration:Comprehensive Strategic Planning Needed to Enhance Coordination between Medical Product CentersGAO-16-500: Published: May 16, 2016. Publicly Released: Jun 15, 2016.
Medical Product Oversight:FDA Needs More Strategic Planning to Guide Its Scientific InitiativesGAO-16-432: Published: May 16, 2016. Publicly Released: Jun 15, 2016.
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