A recent victory by Raleigh white collar criminal defense lawyer Elliot Abrams in an asset forfeiture case was the subject of a front page article in NC Lawyers Weekly last month.
As Elliot Abrams and his co-counsel Samuel Hartzell told Lawyers Weekly, “Th[e] ruling will protect innocent people and businesses and is a strong step toward restoring the balance of power between
the government and the accused.”
The decision was issued by the entire Fourth Circuit sitting en banc. (Full text of opinion). It overruled decades’ old precedent that allowed the government to seize assets from individuals even though the government acknowledged that those assets were not earned illegally.
Election season has just ended, so investigations into campaign donations are likely to begin. Politically-active people and companies should be aware that these investigations often result in serious federal criminal charges.
Elections laws are complex, and even perfectly legal conduct can carry the appearance of corruption, particularly when people with business interests donate money to politicians.
Therefore, if you are approached or contacted an investigator about your campaign donations, assume that you are suspected of a serious crime and contact an experienced election law & campaign finance criminal defense lawyer immediately. Making an unrepresented statement could ruin your future and your livelihood.
At Cheshire Parker, we have decades of experience representing individuals under investigation for suspected political crimes. If you have questions or concerns about your donations or other election-related activity, contact us today.
The New York Times has published a fascinating op-ed on the irrationality of life sentences. (Link) The author, Jennifer Lackey, argues that such sentences prohibit future consideration of the most important information bearing upon the appropriateness of continued incarceration.
For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal. Nothing. So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated. Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.
Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform. Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades-from-now prisoner deserves?
Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars. Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information. Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence.
If Hume is right that “a wise man proportions his belief to the evidence,” then our beliefs about the punishment a person deserves at any given time need to be sensitive to the evidence available at that time. But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence.
The same argument can be made for any lengthy fixed-length sentence. Thus, it is basically an argument for the reestablishment of the parole system. So-called “truth in sentencing” regimes, which ended parole while also increasing punishments for many crimes, have led to the outrageous mass incarceration of our population–with the U.S. having less than 5% of the world’s population but nearly 25% of the world’s prisoners.
Judges have argued for an ability to review sentences; the US Supreme Court has declared mandatory life sentences for juveniles unconstitutional and made that ruling retroactive; and the president has begun to pardon many people serving lengthy federal sentences. But, at its core, the problem is the lack of a review of the appropriateness of continued imprisionment for those serving lengthy sentences as a matter of course.
If we want a punishments to be proportional and individually tailored, we must recognize the potential for prisoner rehabilitation. Otherwise, a few poor souls may be treated appropriately, but the vast majority of reformed prisoners will continue to serve unnecessary time–costing taxpayers billions in wasteful spending and undermining the dignity of those who have worked hard to reform themselves. In the end, truth in sentences and the end of the parole system has been a failed experiment. We should recognize that failure and reinstitute parole.
Elliot Abrams is a Raleigh criminal defense attorney. He can be reached at (919) 833-3114, or through the contact form here.
Eleven years after informing a reporter at the New York Times about possibly illegal spying by the NSA on American citizens–reporting that ultimately won the NY Times a Pulitzer–the whistleblower has been accused of ethical violations by the DC Office of Disciplinary Counsel.
He faces two charges.
First, he is accused of failing to report possibly illegal activity to superiors at DOJ.
Second, he is accused of disclosing confidential information about his “client,” DOJ.
The charging papers are available here.
Typically, state bars have been reticent to get involved in misconduct by DOJ lawyers, so this will be an interesting case for professional license defense lawyers to follow. The conduct complained of here was not prosecutorial misconduct–such as the withholding and manipulation of evidence in the prosecution of Senator Ted Stevens, which the DC Office of Disciplinary Counsel let DOJ handle internally. So it interesting that the same office is now, eleven years later, getting involved here.
The North Carolina professional license defense lawyers at CHESHIRE PARKER handle all types of professional disciplinary matters. If you are facing an ethics violation or other professional grievance, contact us today.
A N.C. State Professor has launched a site, http://kingsfirstdream.com/, that contains a newly discovered audio recording of a speech by King in Rocky Mount, NC, in which he used the refrain “I have a dream.”
Here is the UNC School of Government’s take:
<< Monday was Martin Luther King Jr. Day and Americans across the nation observed the national holiday and celebrated Dr. King’s contribution to the Civil Rights Movement. ABC 11 reports here that N.C. State professor Jason Miller launched a website that contains a restored recording of a November 1962 speech that King delivered in Rocky Mount. The website explains that King first delivered the famous “I have a dream” refrain during the Rocky Mount speech. The tape recording of the speech was stored for nearly 50 years before being discovered in a library in 2013. The analog tape was digitally restored and the nearly hour-long speech is now available for listening on the website. >>
Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.
Congratulations Joe and Brad! If you need representation, contact one of our award-winning Raleigh criminal defense lawyers today.
As a follow up to this post, the Supreme Court has granted review of the question of the scope of the term “official act” in federal bribery law. This is an important question for white collar defense lawyers, particularly those who deal with allegations of public corruption. This case and the Fourth Circuit’s ruling upholding it seriously blurred the line between typical political activity and illegal federal bribery, and reversing the conviction would go a long way toward giving fair notice to public officials regarding what conduct they can engage in without fear of a federal bribery or honest services wire fraud conviction.
In 2014, a federal jury convicted the former mayor of New Orleans (2002-2010) of twenty federal white-collar felonies including bribery, honest service wire fraud, conspiracy to commit money laundering, and filing false tax returns. (Here’s the opinion). The mayor appealed his conviction for honest service wire fraud as well as the judge’s imposition of a money judgment for forfeiture.
The appeal of the honest service wire fraud conviction was a long shot. He argued that the judge misstated the law when it instructed the jury that it could convict the mayor of honest service wire fraud for accepting a post-mayoralty employment contract in exchange for performing official act of supporting a city contract for the future employer even if the jury found that the mayor would have supported the contract even if he was not promised employment later. The mayor argued that he could only be convicted of honest service wire fraud if the government proved that he was influenced in his official action by the promise of future employment. But bribery is complete as soon as a person accepts a payment knowing that it is being given by the payor with the intent that the payment influence an official act–the act need never be completed. Therefore, the Fifth Circuit rejected this argument.
The asset forfeiture portion of the appeal is more interesting. The mayor argued that the judge erred by issuing a money judgment for forfeiture, instead of tying the forfeiture to certain assets that were obtained illegally.
The asset forfeiture laws operate through tainted property analysis. A piece of property obtained through an illegal transaction is tainted property and is subject to forfeiture. Any property later acquired with tainted property is also tainted and is similarly subject to forfeiture. Moreover, if the government proves that the defendant placed certain property beyond the reach of the government, the government may be able to take other “substitute property” in criminal asset forfeiture proceedings. However, each of these asset forfeiture analyses–directly tainted property, indirectly tainted property, and substitute asset theory–rely on some tracing of the illegally obtained property. On the other hand, the government has begun arguing that all it must do is prove the amount of money or property that the defendant received illegally and ask for a “money judgment for forfeiture” in that amount. Nothing in the asset forfeiture statutes authorizes this procedure. But, unfortunately, courts have routinely accepted it.
The Fifth Circuit relied on prior cases to uphold the money judgment for forfeiture in this case. However, it left the door open for later defendants to make the argument that money judgments for forfeiture are only appropriate where the government can prove that the property it seeks to forfeit is substitute property under 21 U.S.C. 853(p). The circuits disagree on this point, and it is an issue that should be taken to the Supreme Court for resolution.
This case shows how complicated and confusing asset forfeiture law is, and illustrates why people facing public corruption and other economic or white-collar offenses must hire an experience asset forfeiture defense lawyer when facing investigation or criminal prosecution. Our Raleigh asset forfeiture lawyers have developed substantial experience in this area of the law. If you are facing prosecution, contact us today.
We are proud to announce that Business North Carolina‘s 2016 Legal Elite has named four of Cheshire Parker’s Raleigh criminal defense lawyers as Legal Elite in the field of criminal law.
Elliot Abrams, Bradley Bannon, and Collin Cook have been named as current Legal Elite in the criminal law field. Joe Cheshire has been named in the Legal Elite Hall of Fame, which means that he previously received the most votes in the criminal law Legal Elite balloting and is no longer eligible for the annual list.
Business North Carolina explains the meaning of the rankings as follows:
Making the Legal Elite means a lawyer has been recognized by his or her peers as one of the state’s top practitioners. Even more elite are those who receive the most votes in each category. Since 2004, they have been elevated into the Hall of Fame and are no longer eligible for the annual list. There is no Hall of Fame for Young Guns winners, but they can only be elected in another category. Unless otherwise requested, Hall of Fame members are listed by their firm at the time of their selection.
Business North Carolina explains its methodology:
Since 2002, Business North Carolina magazine has honored Tar Heel lawyers by publishing Business North Carolina’s Legal Elite, a listing of the state’s top lawyers in business-related categories. Winners are chosen not by BNC editors but by the state’s lawyers. Business North Carolina’s Legal Elite has become the model for other awards and lists, but it remains unique as the only award that gives every active lawyer in the state the opportunity to participate. Business North Carolina’s Legal Elite includes the top lawyers chosen using this statewide ballot.
Each year, BNC sends ballot notices to every member of the N.C. State Bar living in North Carolina — asking each a simple question: Of the Tar Heel lawyers whose work you have observed firsthand, whom would you rate among the current best in these categories? Voters are not allowed to vote for themselves. They may select members of their firms only if they pick out-of-firm lawyers in the same categories, with the latter votes weighted more heavily. The top vote-getter in each category becomes a member of Business North Carolina’s Legal Elite Hall of Fame and is ineligible to win again.
Congratulations to this years winners! If you need representation, contact one of our award-winning Raleigh criminal defense lawyers today.
Virginia Governor Bob McDonnell was convicted last year of honest services wire fraud, a vague law that the Supreme Court saved from constitutional challenge by redefining it to outlaw bribery and kickbacks by public officials. Unlike the standard anti-political bribery statute, 18 USC 201, honest services wire fraud covers misconduct by state officials. (There was already a federal law that typically applied to state officials, 18 USC 666–but no matter, the Supreme Court did what it did.)
So Bob McDonnell was charged with the honest devices wire fraud, which required the government to prove that he corruptly accepted personal payments in exchange for his performance of an “official act.”
At trial, the government argued that the following acts were “official acts”:
- Asking an aide a question about research pertaining to a businessman’s company.
- Attending two receptions the businessman attended.
- Arranging a meeting with his staff and the businessman and suggesting another meeting to an aide.
The government argued that these acts were official acts because the governor’s ultimate aim was to obtain state government funding for the businessman’s business.
It bears mentioning that the businessman provided numerous things of value to the governor and his wife. But that alone is far from federal bribery. In fact, in Virginia, there is no prohibition on giving gifts to government officials.
So the issue is not whether the conduct is morally correct, but rather whether Mr. McDonnell could have reasonably foreseen that the acts listed above–setting up meetings an so forth–constitute “official acts” under federal bribery law.
A foundational principle of our democracy is that a person cannot go to prison for conduct if they could not have reasonably foreseen that the behavior was criminal. This fair warning requirement of due process is violated most often in public prosecutions, where prosecutors know that the public will find the political sausage-making distasteful. It is for this reason that Justice Scalia warned that honest services wire fraud statute “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate C.E.O.’s who engage in any manner of unappealing or ethically questionable conduct.”
Because Virginia law does not prohibit the payments in question, and because a reasonable person would not have fair warning that that above acts are official acts–like decisions to award a contract to a certain firm or to veto a law–31 current governors; 60 former state attorneys general; 13 former federal officials, including two former U.S. attorneys general and former legal counsels to every president starting with Ronald Reagan; and three law professors from Harvard University and the University of Virginia all have urged the Supreme Court to overturn McDonnell’s conviction.
We agree. The Supreme Court is poised to consider tomorrow whether to take up the case. We will continue to follow this important case in the area of political corruption law.
The Raleigh criminal defense firm of CHESHIRE PARKER SCHNEIDER & BRYAN handles all types of public corruption cases, including bribery and honest services wire fraud charges. If you are facing prosecution, contact one of our Raleigh criminal defense lawyers today.