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Monday, June 28, 2010

Sarbanes-Oxley Convictions in Danger?

Now that the Supreme Court has ruled unconstitutional Sarbanes-Oxley Act provisions regarding the Public Company Accounting Oversight Board (in its decision in Free Enterprise Foundation v. PCAOB), what about criminal convictions and civil judgments arising from the Board's rules?   If the Board itself is unconstitutional, wouldn't any actions, regulations or judgments made by the Board be rendered invalid?  What about judgments, criminal charges and civil penalties based on the same?  Could those judgments and convictions now be attacked? I would think so.

More Supreme Court Rulings

Today, more opinions on:

(1) Narrowing the business method patent protection in Bilski;

(2) Christian Life decision, ruling a law school could withhold recognition from a Christian student group which did not admit gay students -- a decision which, ignoring the case at issue, may as precedent have troubling implications for the First Amendment freedom of association and thus for all sorts of other organizations (particularly political, social, ethnic and religious). This will require careful reading.

(3) The Chicago case in which a strict gun control statute was struck down, a big victory for Second Amendment advocates.

Much more to come on (2) and (3), but later tonight.

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Sarbanes-Oxley Accounting Board Ruled Unconstitutional

An important decision handed down today by the Supreme Court (see in the case of Free Enterprise Fund v. Public Company Accounting Oversight Board.

The Court has ruled the Public Company Accounting Oversight Board (PCAOB) unconstitutional on separation of powers grounds because board members had executive branch execution powers, without being subject to executive branch removal, insofar as they could be removed only for "good cause" and only by other commissioners of the Securities and Exchange Commission (whom in turn are removable by the President only for cause).  The second level of limited removal powers was found to be an unconstitutional limitation on presidential power.  Sounds eminently reasonable.

Consider this may open the door to argue that the entire Sarbanes-Oxley Act is unconstitutional because it lacks a "severability" clause that would preserve the rest of the Act if one part was struck down.  That does not mean the entire Act will be invalidated, but expect an attack anyway.

Congress can now act to strengthen Sarbanes Oxley, especially before the November elections and anticipated Democratic losses.  An alternative would be to pass an entirely new anti-fraud act.  The opponents of Sarbanes-Oxley may be premature in any celebration.

Friday, June 25, 2010

Limiting "Honest Services" Fraud Sends Message To Congress and Justice Department

On Thursday, the Supreme Court handed down a host of rulings including three cases involving the "honest services" statute.  In its ruling involving Enron executive Jeff Skilling, the court's majority (led by Justice Ruth Bader Ginsberg) voted to curtail the "honest services" fraud to instances of bribery or kickbacks.   Three judges, led by Antonin Scalia, voted to invalidate the entire statute.  (If interested, the ruling involving former newspaper baron Conrad Black is also available at
As this New York Times editorial points out, the decisions send a message to the executive branch -- chiefly, the Justice Department but also all the investigative agencies like the FBI, IRS, Homeland Security and so on -- to do "more thorough investigations" and to the legislative branch to enact "sharper laws." 
Crime, Politics and Policy has long criticized various government players for sacrificing the rights of the governed, and particularly of the innocent, in the name of expediency and the convenience of the government.   Any damage suffered by the innocent is condescendingly considered to be acceptable collateral damage that goes with the territory of being an American private citizen. 

Wednesday, June 23, 2010

Raymond Donovan's Reputation

Many years ago, Reagan Administration Labor Secretary Raymond Donovan was charged for crimes in connection with the defense contractor Wedtech. After being acquitted by a federal jury of all charges, Donovan famously remarked:

 "Which office do I go to get my reputation back?"

A useful recap of some prominent dropped prosecutions alleging some sort of business crime, where charges were filed and then retracted, is found this morning at The cases include that of former Collins & Aikman CEO David Stockman.

Perhaps a little more care should have been taken before these charges were filed, as these men attest that reputational damage (perhaps never greater than in the internet age) is hard or impossible to reverse.

The text that follows will be appearing in an upcoming issue of Bloomberg Markets magazine, printing August 1st:

[Regarding the article to which a link is provided above] ...a good idea for
a related followup would be to examine the role one's prominence or standing (whether it be socially, politically, academically or financially) plays in making oneself an attractive target for government investigators and prosecutors who, in turn, will use the target to publicize their work and their abilities.

This leads to their ability to "slingshot" themselves with the resulting publicity into positions of higher pay and prominence. In essence, it is a system whereby some can build their careers by destroying others.  There are many others who, despite being totally innocent and sometimes with the
documents to prove it, are not indicted but nonetheless are accused or threatened with ruin on the basis of evidence which would be perjurious if uttered under oath. It suggests a prosecutorial culture where one may be threatened with impunity, one must (as a practical matter, not as a legal
threshold) prove his innocence (I.e., proving a negative), and where the harm to the innocent is considered acceptable collateral damage.

Tuesday, June 22, 2010

Do-Gooders Beware of Terrorists in Sheep's Clothing

Here is the Supreme Court's 6-3 decision in Holder v. Humanitarian Law Project which, in this observer's view, puts anyone who gives money or provides services to another person or entity at some potential risk of criminal prosecution and incarceration should the recipient of the services or money be connected to or somehow involved with supporting "terrorism." 

A completely harmless activity, or the most altrustic of acts can, if the recipient of your charity conceals his true intentions (and of course this is possible -- see Madoff, Bernie) can subject you to the intrusive and destructive force of the federal government should it choose to "investigate" you and thereafter prosecute you (either civilly or criminally).   The problem for you is that when you are innocent, it takes time for the government to determine that; what you go through in the meantime is considered acceptable collateral damage, i.e., it's your problem.

 This is the product of a federal law banning "material support" to "terrorists" which is now interpreted to cover entirely innocent and harmless activities or assistance (like money) to organizations which may be deemed -- by some bureaucrat in the State Department, under a dubious standard of review or simply at someone's whim -- to be connected to terrorism.   The problem here is how one defines every subject or verb in the preceding sentence.   How they are defined, and who does the defining, can make the difference between your actions being considered lawful, or criminal.

The vagueness in this and other federal and state laws is susceptible to abuse by unscrupulous bureaucrats, regulators and prosecutors who may use such laws to target people or organizations which they disagree with or find unpopular.  The laudatory goal -- here, of fighting terrorism -- provides the "cover" for official actions which could be argued to violate the First, Fifth, and/or Fourteenth Amendments.

Under the majority's opinion, lawyers who represent nonprofits which are somehow connected (as determined by someone in the government) to an organization which in turn is connected to terrorism could be deemed to be giving "material support" to terrorists!  If you disagree, go find the "safe harbor" in either the various statutes or the opinion (link provided above, statutes' language is provided in the footnotes to the majority opinion).

Of course, the prudent and totally risk-averse course of action for anyone on American soil to do is to have nothing to do with any nonprofit, particularly one which engages in educational or training activities.

This concern is in no way intended - and should not be construed as - to defend or rationalize any terrorist sympathizer.  As the Newark Star-Ledger's Paul Mulshine has set forth with his "Moron Perspective Alerts," criticizing a position does not mean one is supporting the holder (no pun intended) of the opposite view; here, criticism of the Justice Department's view should never be construed as supporting terrorists.  This disclaimer is necessary because America is full of cretins, who watch reality television and believe most of what they are told, have the analytical abilities of a hockey puck and, sadly, both procreate and vote.

One guiding principle of our criminal justice system is that our citizens should be able to determine from the law what the law is, so that we may act with a reasonable certitude that our actions are lawful (unless they are not, of course). 

The Supreme Court decision, inadvertently, places a degree of uncertainty on otherwise, totally benign activities.

A donor to a charity -- which we assume to have satisfied the IRS criteria for classification as a 501(c)(3) or (4) organization and to have been granted such status by the IRS -- must now be totally certain rhat the organization is not connected in any way to terrorism.   If it is, the donor could be considered to be giving material support to terrorists and thus faces possible prosecution...while being totally innocent.

As a practical matter, there may be a small risk.  The risk I have outlined may be discounted for the common sense and "prosecutorial discretion" that most federal prosecutors have.   The problem -- and the risk to you -- is that not all prosecutors have this discretion or share these scruples.

And a small risk -- however much you want to discount certain factors -- is a risk nonetheless.   Anything above zero is a risk.   Giving money to a charity now poses some risk (however remote) of criminal investigation, prosecution, and upon conviction, incarceration.  And the assumption of risk of being prosecuted for an innocent act is not part of being an American.

My initial point may be summed up thusly:   In order to be certain that one is not at risk of being deemed a material assister to terrorists, one cannot give money to any charity.   Such certitude requires knowing -- literally -- where your funds go and how they are actually used.

This cannot be the intended consequence of the law passed by Congress.

One suspects this is a law whose interpretation by the Executive Branch (via the Justice Department and Department of Homeland Security bureaucrats) has gone awry, captive to bureaucrats, regulators and others with a vested interest in either showing off how smart they think they are, or demonstrating that they are doing their job and mucking up plenty of things in the process.

More commentary will follow.

Sunday, June 20, 2010

Eyewitness Evidence: More Scrutiny To Protect Innocent

New Jersey courts are on the verge of taking a big step to protect the innocent.
State courts will be advised to adopt stricter procedures for admitting eyewitness testimony into evidence, according to a state court's Special Master's Report (in the case of State v. Henderson). 
The report cites findings that eyewitness evidence is often unreliable.  (There are many other sources with the same conclusion.)  In addition, there are many other reasons why witness testimony can be either flawed or outright perjurious.  This is how flawed cases (where the state cannot reasonably prove a case "beyond a reasonable doubt") or entirely false cases are built against innocent people. 
The report may also be used to combat a pro-prosecution / pro-more government power culture -- which some say has been growing -- where many judges (some of whom are former prosecutors) are heavily predisposed (some would say "biased") towards anything said by a prosecutor or state investigator or police officer.   In such an environment, perjury can flourish.  This is true, particularly in cases where someone in authority can decide that someone is "just a bad guy" and use that to rationalize "cutting corners" or other misconduct to get the miscreant off the streets. 
The potential for abuse is always great.  Often, the opportunity for abuse is also great, and growing.  These proposed procedures may be a big step in the opposite direction, away from state abuse and more towards protecting the innocent.
Don't be afraid that these revisions will lead to lawlessness and more crime.   There are always people in government and law enforcement who use these scare tactics anytime someone complains about protecting civil rights, constitutional rights, procedural fairness and any regard for the potentially entirely innocent.  As for the guilty and the fact that the state's job may get "tougher," the gut reaction here says that state prosecutors and others in law enforcement should buckle down and work harder and smarter.   There are always people who want to bend or nullify the rules -- and violate your rights -- so their job can be easier.  These people will invoke the "fighting crime" mantra and the scare tactics of impending lawlessness.   These are the same people who seem to be allergic to hard work.   They should rise to the challenge.   There's always the private sector -- without its cushy pensions and benefits -- if they find it to be too demanding. 
One final note:  Let's hope that these proposed revisions are applied to civil as well as criminal cases.    
Eric Dixon is a New York attorney who is admitted to the Bar in both New York and New Jersey.  He is available for consultation and comment via 917-696-2442 and

Saturday, June 19, 2010

Cumulative Voting Rights Experiment in New York past week a special election was held in the New York hamlet of Port Chester which featured the concept of cumulative voting.   See this Washington Post report.  This concept was most famously espoused -- to her professional detriment -- by law professor Lani Guinier when she was being considered for appointment by President Clinton to be Attorney General back in the pre-internet days of 1993.

In this election, each voter was allowed to cast six votes.   One could choose to cast one vote for up to six candidates, or concentrate all of his/her votes on some or just one candidate.

The objective by at least some proponents of cumulative voting was to have underrepresented groups -- here, Hispanics -- have the opportunity to concentrate (or pack) their votes behind one or more Hispanic candidates, assuming most other voters would vote conventionally (i.e., use their six votes for six candidates).  

The essence of voting rights is not and never should be the outcome.  It should be about a free, fair and equal choice by all voters.   I think cumulative voting adds an intriguing strategic concept and affords additional opportunities for ethnic groups or special interest groups to "pack" or target their support behind one candidate in order to gain a foothold within a larger legislative body.    This concept deserves further consideration.

Eric Dixon is an election lawyer in New York and participated in a special task force effort by the Election Law Committee of the New York City Bar to monitor the Port Chester, NY election.  Mr. Dixon's comments here are his own and do not represent the opinion of the Election Law Committee.   Mr. Dixon is available for comment or consultation at 917-696-2442.

Friday, June 18, 2010

Christie Loves Monopolies

Someone recently was declaring to me that New Jersey Governor Chris Christie is a conservative. This makes no sense, not when considering the Christie administration's desire to select Rutgers University as the sole grower and provider of medical marijuana, and not when considering its recent decision to ban research gardening of oysters and shellfish in the New York Harbor and Raritan Bay.  

It makes no sense to describe someone as a conservative when he favors shutting down private activity because (as he asserts) the state government cannot protect the public.  

It makes no sense to describe someone as a conservative when he favors creating a public government monopoly, expanding government's power and ability to command and control the citizenry.  Each of these actions prohibits private activity and allows the activity only by a public entity, or not at all. This creates a government monopoly, pure and simple.  Either the government does "it" or no one does it at all. Of course, government being nothing more than a collection of individuals looking to score on connections, contracts and favors, this could be seen as just a new way to funnel more economic benefits to a select, or "connected," few.

It seems that when Christie was a prosecutor, this favor-trading was considered corrupt and possibly criminal. (We agree: it doesn't exactly pass the smell test.) Now that Christie is governor, such actions are ostensibly to protect the public. One suspects this is more using government power to create and benefit from a public monopoly.

Christie and the Republican establishment call this conservative. Others call it crony capitalism; yet others call it socialism for the rich (or connected). As a taxpayer and ordinary citizen, you get a restriction or ban on your activity, no freedom of choice to research environmental conditions in New York Harbor...and the bill for it from a government monopoly.   I call this the typical big-government, pro-bureaucracy mentality that has led the country into near-insolvency.   Maybe all we are seeing in New Jersey is a reshuffling of the deck chairs, instead of genuine reform.

How is this "conservative"?

Corrupt Court Administrator a Jersey City Disgrace

A Jersey City Municipal Court administrator is facing jail time for fixing 214 parking tickets she incurred over an eight-year period.   (That's an average of two a month.)  Virginia Pagan admitted guilt in New Jersey's Hudson County Superior Court yesterday, with her plea following a guilty plea from former Municipal Court Judge Wanda Molina.

This corruption, by a judge and court administrator, severely undermines the public's faith in the even-handedness of the judicial system and in the administration of justice itself.

Both Pagan and Molina face future permanent bars of public employment and restitution obligations; Molina should also be facing disbarment from the state bar.  (I would advise she should resign in advance of her criminal sentencing in order to show contrition for a crime to which she has admitted as a prerequisite for more leniency.) 

I have previously suggested that Molina should be barred from running or being employed by any nonprofit organization (of which many such organizations receive most or all of their funding from government sources and are thus de-facto public sector employers), and I would add in a bar for-profit corporation which receives government grants or contracts.   The same should apply for Virginia Pagan.   Such a bar would be a stronger punishment and more of a deterrent than a short jail sentence -- which for many in New Jersey's public sector seems to be some perverse rite of passage.

Eric Dixon is a New York investigative lawyer who specializes in corporate, business and election law and civil and constitutional rights matters.   He is available for comment at 917-696-2442. 

Thursday, June 17, 2010

New Laws, or Better Enforcers?

The knee-jerk response to many crises, or embarassing situations, is for legislators (and commentators) to call for new laws, stronger laws and greater punishments.

There are several premises to these calls. One is that the existing laws are too weak, and that they are insufficient in deterring illegal conduct (that is, crime) or undesirable conduct, or acts which in hindsight might be argued to be negligent. Another premise is that the people charged with enforcing the law cannot adequately protect the public with existing laws and thus need new tools -- that is, new laws.

It is funny how the prospect of the enforcers either being incompetent, lazy or negligent almost never comes into the discussion.

Maybe we need fewer laws, and more enforcers and harder-working enforcers. However, that would take effort and cost money; it would inconvenience the bureaucratic/political class. It is simpler and more convenient for the lawmakers to pass more laws, regulations and protocols so that the burden of compliance and obedience falls more heavily on the people.

Whether it's the Gulf oil spill, the Arizona immigration bill, the Puerto Rico government's decision to invalidate all birth certificates it issued prior to July 1, 2010, or the New Jersey Department of Environmental Protection's decision to ban research-related oyster and shellfish gardening in New York Harbor because it cannot police the Harbor itself (see, we see a common thread of people's rights and freedoms being diminished for no other reason than the government's failure (or refusal) to do its job.

Once more, the people end up assuming the costs of the government's failures.

Houses of Cards: Huge Mortgage Fraud Bust

In a development which surely is just the tip of the iceberg, the Justice Department has announced the arrests of 485 people in mortgage fraud cases involving a total of 1,215 criminal defendants.

Fraud comes in many forms and mortgage fraud has many varieties. Fudging some income information or lying about a vacation home being a primary residence are just two of the simplest types of fraud. Outright fabrications of individuals, employers and credit data is identity fraud and can hurt unsuspecting people. It is NOT a victimless crime.

Here's why. This type of fraud hurts banks, which in turn pass the costs on to depositors and borrowers. Banks are for-profit and fraud hurts their bottom line. The next time you complain about a zero passbook savings rate, think about the prevalence of mortgage fraud.

One characteristic of mortgage fraud is the overstating of the value of the property.   Rarely is a property undervalued as part of a fraud, unless an undervaluing pursuant to a buyer-friendly appraisal is needed to convince a bank to go along with a deceptive short sale.

Wednesday, June 16, 2010

Political Bribery: Follow the Money

The ongoing criminal investigation by the Manhattan District Attorney into the alleged misuse of funds originating with New York City Mayor Michael Bloomberg, then going to the New York State Independence Party and much of the funds ultimately going to Republican campaign operative John Haggerty will be interesting.  A New York Post report ( on Thursday, June 17th suggested that state party chairman Frank MacKay and another man, Sean Connelly, received ambiguous payments from the party after Mayor Mike Bloomberg paid over $1 million to the state party. 

What may also be interesting: any parallel (and separate) criminal investigation by the United States Attorney's Offices in either Manhattan, Albany or Brooklyn. All could have jurisdiction over such a case (the party is based in Albany and Haggerty's actions may have occurred in Queens, where he lives).

Just wondering: If Bloomberg were brave enough to run as a small "I" independent, or as a Democrat, none of this would have happened.

Just wondering: Isn't a $1.1 million payment to the state Independence Party, in which one is not enrolled and thus needs the legal "Wilson-Pakula" authorization to run, suggestive of a quid pro quo? (Others have gone further, suggesting Bloomberg literally financed his own endorsement by the Independence Party. Read and various Tom Robbins and Wayne Barrett stories at

Also wondering: Does anyone doubt that if New Jersey's new Governor Chris Christie were the U.S. Attorney, he would have initiated a criminal investigation of his own?

Think of the elasticity of the phrases, and underlying concepts of, "corruptly influenced" and "under color of official right."

Monday, June 14, 2010

Bloomberg's Buyer's Remorse?

Monday morning brought the news that a prominent New York City Republican campaign operative (of which there are few) for Mayor Mike Bloomberg was indicted by a Manhattan grand jury on charges including grand larceny for deceiving Bloomberg into paying him about $750,000 for get out the vote efforts on Election Day.

Manhattan district attorney Cy Vance stresses that Bloomberg is not under investigation. However, the state Independence Party (which received funds from Bloomberg and then paid the operative, John Haggerty) is under investigation.

This investigation was sparked by some intrepid reporting by the New York Post's David Seifman a few months ago.

One quick thought: the case is being called a case of grand larceny (the main charge) but the corporate lawyer in me sees this as a possible breach of contract and possible fraud.

There are questions as to why the state Independence Party was involved in such get out the vote efforts. The party reportedly kept a portion of the $1.1 million it was paid by Bloomberg and did not pass it all on to the operative.

Questions: why did the Bloomberg campaign seem content with the operative's work and not raise questions, until the Post started asking questions? Did the campaign throw this operative under the bus? Did prosecutorial scrutiny spark campaign dissatisfaction that wasn't originally there? Perhaps there have been other questions raised which are not being made public.

Why did the Independence Party "stonewall" the DA's investigation, as Vance claims?

Just speculation, but the Independence Party's need (or desperation) to keep ballot status (so it needs a gubernatorial candidate to get 50,000 votes on its line to stay a party under state election law) may have motivated its leadership (under its state chair, Frank MacKay) to do get out the vote efforts for Bloomberg for which it assumed Bloomberg would pay, and pay well. (This has been documented widely over the years. See various stories by Tom Robbins in the Village Voice.)

One has to know the mechanics -- as opposed to the people, who are interchangeable and fungible -- to understand the possible motives and agendas at play. Asking the "why" question may solve the questions of whether there was a crime, and if so, whodunit?

Eric Dixon is an investigative lawyer in New York who is experienced in complex investigations and election law. He is not involved in representing any individual or entity involved in this case. He can be reached at 917-696-2442 for comment.

Thursday, June 10, 2010

Flip a Short-Sale Home, Go Directly to Jail?

A seemingly innocuous residential real estate transaction -- the flip -- may now be viewed by the federal authorities as potentially criminal in nature.  A new twist on bank fraud. Read this report at

The gravamen of this crime is the illicit influencing of the appraiser to come up with an artificially low price so as to induce the bank holding the mortgage to take a loss, which later results in an illicit gain when the buyer sells. Actually, I don't see how the resale is an element of the crime -- it isn't -- but it helps prove intent.

The risk to the innocent: How does one distinguish between a valid flip on serendipitious circumstances and terms, and a criminal low-appraisal to defraud the bank?

Here, innocent homebuyers seeking to get a great deal may run some risk of law enforcement scrutiny and possibly the presumption of illegality.   To make matters worse, this virtually criminalizes the use of leverage and negotiating power in a business transaction, elements which have been used in commerce since the beginning of recorded human history. 

So what is really criminal here?   Could we have a new, unspoken, intended rule -- that any profits from a quick resale of a house first bought from a bank in a short sale belong to the bank?  If that is true, then the  bank gets to "cut its losses" (but also realize, or "book" them) by doing the short sale, thus ending its downside exposure while thereafter keeping the upside potential.   The subsequent buyer has a far different deal -- he risks criminal investigation and prosecution if he sells the house too quickly, and he faces having to surrender any gains on the house to the bank, but has no downside protection -- he has all the liabilities of a property owner and can lose all his equity.

Maybe the lesson here is that while banks get taxpayer bailouts to compensate them for their losses -- while the banks continue to hand out million-dollar executive bonuses and advertise and sponsor sports stadia -- individual homeowners (especially those who can afford their mortgage) can absorb the full risk of loss.   Moreover, criminal prosecution awaits anyone who tries to take advantage of a bank's financial distress to score a good deal.   
Unless these prosecutions and investigations are brought in the narrowest, most egregious of cases, local U.S. Attorney's Offices run a risk of seriously discouraging knowledgeable, prospective purchasers by implementing a de facto policy of pursuing such cases.  (There are even constitutional issues here, with the executive branch Justice Department creating and enforcing a de facto law of its own creation -- but that's a different story for another time.)  Banks will have more difficulty finding buyers at certain price points -- even the reviled speculators and flippers will be dissuaded from the market.   This will seriously hurt the residential real estate market. 
Eric Dixon is a New York lawyer who regularly comments on legal and economic issues. He is available for comment at 917-696-2442.

Wednesday, June 9, 2010

50 Years For Evil Lawyer Rothstein

Breaking: South Florida disgraced and disbarred former lawyer Scott Rothstein just got sentenced to 50 years in federal prison for masterminding a billion dollar scam using his law firm.

This means that even with time off for good behavior, Rothstein will be more than 90 years old when he is eligible for release.

Perhaps the "essentially life" standard enunciated by New York federal judge Jed Rakoff (in sentencing 59-year-old Marc Dreier to 20 years) in trying to extrapolate how long Dreier was likely to live was modified to be overly optimistic regarding Rothstein.

One note -- Rothstein's crimes included forging the signature of federal judges on purported orders. Serious crime in and of itself showing a complete disregard for the judicial process.

Sent from my Verizon Wireless BlackBerry

Monday, June 7, 2010

Scott Rothstein Sentencing

Notorious South Florida lawyer turned Ponzi schemer Scott Rothstein is scheduled to be sentenced Wednesday in a Fort Lauderdale, FL federal court.

Rothstein's lawyer, Marc Nurik (also a former partner of Rothstein's), has argued in a pre-sentencing brief that Rothstein deserves 30 years. Prosecutors argue for 40 years. (Click for the Rothstein sentencing memorandum and the Government's sentencing memorandum.)

I believe that both positions are flawed, if one uses as a guidepost the sentence handed down to the New York hot-shot lawyer turned Ponzi schemer, Marc Dreier of the eponymously named Dreier LLP (and formerly known as Dreier & Baritz LLP, also Dreier Baritz & Federmann LLP).

In the Dreier case, district judge Jed Rakoff (Southern District of New York) may have inadvertently established a de facto standard for sentences in these large dollar loss cases. In the sentencing hearing, Rakoff disagreed with the government's argument (read the Government's sentencing memorandum) for a Bernie Madoff style sentence (150 years from Judge Denny Chin, despite pleading guilty), stating that he contemplated a sentence that would essentially be a life sentence and asking the sides to discuss Dreier's future expected life expectancy. In the hearing it was argued by Dreier's counsel, Gerald Shargel (who argued for a ten-year sentence, see Defendant's sentencing memorandum), that Dreier (then 59) could reasonably be expected to live to near or about 80. Rakoff handed down a 20-year sentence that thus approximates life for Marc Stuart Dreier.   (Author's note:  A transcript of the hearing could not be available; I rely on my observations of the hearing in an adjacent courtroom with a video link for the overflow audience.)

Using what I will call the Rakoff Standard, "essentially life" for Rothstein (age 48) would be about 30 years, or what Nurik is arguing for.

There are differences in the cases. Dreier was released on bail to home confinement, the better with which to help the bankruptcy receiver untangle the finances. Rothstein, however, is being described as having provided "extraordinary" cooperation and prosecutors argue he deserves a break... That is, to 40 years.

(Extraordinary cooperation, or more lies?)

Another difference. The amount of the claimed losses. Dreier's losses were estimated to be north of $400 million; Rothstein's fraud is estimated to be about $1.4 billion. Loss amounts affect the advisory sentencing guidelines.

We shall see what happens Wednesday.

In the meantime, the respective firms' partners and administrative staff may still be under scrutiny.   Rothstein's assistant Debra Villegas recently pled guilty, and so far a few of Dreier's partners have pled guilty but no office staff / bookkeepers have been charged.   At least, that is what is being made known to the public.

Saturday, June 5, 2010

Sotomayor on the Right to Remain Silent

The newest Supreme Court justice, Sonia Sotomayor, deserves credit for boldly standing up for Americans' classic right to remain silent under the Fifth Amendment in her dissent in the recent ruling in Berghuis v. Thompson.   (You can read the decision here; her dissent starts at page 24.)  The Court, in a 5-4 vote, ruled that you cannot invoke your right to remain silent by remaining silent, but must speak it. In other words, you must declare your assertion of the right -- and depend entirely on the honesty of your listeners to acknowledge and respect your right.

A right which depends on the fidelity and integrity of those empowered and tempted to ignore it, is no right at all.  It becomes discretionary, arbitrary, and terribly susceptible to gross abuse.

This equates to: trust us, we'll report that you invoked your right.   Sure we will.

All Americans' Constitutional rights got considerably reduced and all Americans are now at risk of government abuse.  (And in fairness, police also suffer as well, as this ruling invites more questions, and more allegations of abuse, and will call into question more actions of perfectly law-abiding officers.)  
This decision should be rectified by Congress promptly.

Spellcheck Needed by Hudson County Republicans

Earlier this week we detailed New Jersey Republican Governor Chris Christie's repudiation of his own Education Commissioner Bret Schundler.  (Note the spelling; see below.)   One wonders if a new campaign mailer from Schundler's home of Hudson County -- provided to Crime, Politics and Policy -- intentionally disrespects Schundler by misspelling his name, or is a sign of the writer's lack of basic English skills and by extension, the pathetic state of the official party organization.
A campaign mailer from the Hudson County Republican Party, Inc., mailing from a post office box in Jersey City, NJ and purportedly sent out over the name (but with no signature) of Republican county chairman Jose O. Arango commits several heresies.  It spells the Education Commissioner's name as "Shundler" but has no problem with another state committee member's four-syllable name (Lee S. Lichtenberger).  One sentence lacks a subject and starts with a verb.   Finally, the letter exhorts Republicans to support a candidate who has a "chance to ride the Republican title wave." 
An alternate theory is that the letter was originally written in Spanish and then translated into English.  The literal translation would explain the bad syntax.
In any event, this is an embarassment.  We await Governor Christie's reaction.

Ron Paul: Fight Illegals, Junk The Fourteenth Amendment

A former Republican presidential contender and darling of self-styled libertarians is proposing that the federal government get much, much more involved in shaping the destinies of some of us who were born in the United States!

It was reported last week that Congressman Ron Paul (R-Texas) proposes that the U.S.-born children of illegal immigrants would be denied automatic citizenship and deportable along with their parents. This position would eviscerate the current Fourteenth Amendment providing that all who are born here are citizens.

Paul's proposal would create a new sub-class (or underclass) of people among the larger class of people born here.  It would establish the principle that some of us would pay the price for who our parents are.  This government-drawn distinction among those born here would also eviscerate the equal protection clause of the Fourteenth Amendment; it would make the concept of "equal rights" more Orwellian (i.e., some are "more equal than others," sayeth the pig Napoleon) than Jeffersonian.  We would be a hop, skip and jump away from a return to slavery.
Ron Paul would make a class distinction and codify a caste system, just like the kingdoms of Western Europe had in the Middle Ages and colonial era, the countries where society and law recognized concepts of sharp inequality expressed in terms like "one's betters."  Ron Paul would return us to the rigid English class consciousness of the 18th Century -- i.e., blatant discrimination on arbitrary bases.

Another troubling aspect:  Ron Paul's proposal would shift the burden of proof from the state to the person.   As a hypothetical situation, let's say someone -- born to a citizen mother -- is abandoned at a hospital or fire station (as we now encourage mothers to do so newborns don't end up in trash bins).   The critical question for the abandoned child is: How would we know if the child came out of a citizen uterus?   Do we presume that he had alien parentage?  And who will be qualified -- or appointed by law -- to make such determinations?  What regulatory scheme will arise to make such decisions? 

Paul's proposal is also ironic. Classic libertarians want to reduce the degree of government control over the private affairs of people. However, once citizenship is not automatic by birth, it becomes a decision of "citizenship panels," and will engender processes sure to be rife with corruption and exploitation. It would make our federal government extremely involved in our lives by giving it the power to determine, in its discretion surely to be abused, who is an American.  Such a "citizenship arbiter" to determine "who is a real American" is sure to create a new bureaucracy...and engender related businesses and a likely rise in identity fraud.  This proposal would profess to fight and diminish government power -- by increasing it?   This is utter nonsense. 

Moreover, the proposal hints at hypocrisy from someone who professes fidelity towards the Constitution, yet is eager to make a radical amendment (essentially, a repeal of the Fourteenth Amendment) to it.

In short, I cannot fathom a position that is less "conservative,"  "libertarian" or even "constitutional."

Maybe these people just don't know what they're talking about.

Eric Dixon is a New York lawyer and strategic analyst. He handles legislative and policy analysis in addition to advocating on civil rights and election law matters. He is available for comment at 917-696-2442 and through this site.

Jersey City Judge Faces Jail in Ticket-Fix Scandal

In New Jersey, public corruption busting is not limited to the United States Attorney's Office.

A former chief judge of the Jersey City, NJ municipal court is facing a possible jail term for fixing (i.e. arranging to have dismissed) eight parking tickets written to one person whom authorities describe as a close personal companion, according to the New Jersey Attorney General's press release announcing Molina's guilty pleas here.  The press release details a separate indictment against the former Jersey City Municipal Court Administrator, Virginia Pagan, for "fixing" hundreds of parking tickets.  The inclusion of the Pagan indictment in the Molina press release suggests the official suspicion of a broader scheme of illegal conduct. 

Wanda Molina, whose LinkedIn account (click here) describes her as a "dynamic results-oriented" attorney and touts her memberships in organizations like the Hispanic Bar Association of New Jersey, is facing up to one year in jail in addition to probation and a bar from future public employment.   

Give credit where it's due.  Note that the press release credits Hudson County Superior Court presiding judge Maurice Gallipoli with referring the matter to the Attorney General's office.   

Looking Ahead At Sentencing.   Molina is facing some jail time, despite having plead guilty, but acts of public corruption are not ordinary "paper" crimes and compromise the entire system of government.   Such acts -- by a judge -- are viewed even more harshly. 

But also take note of the bar from future public employment of any kind.  In a state like New Jersey -- and especially in a county like Hudson County which is thick in a web of public entities, some of which actually provide useful services -- a bar from public employment may be the most painful from a financial standpoint.  I do not see a bar on Ms. Molina being involved in non-profit organizations -- many of which get all or most of their funding from government at some level, and exist nominally to "do good" while in reality exist to provide their founders with salaries.   Perhaps a bar from this type of de facto public employment would have been even more effective than a short jail sentence.

Professional discipline (such as suspension or disbarment) is likely to follow from the New Jersey Supreme Court.   Stay tuned.

Jersey Corruption "Bid Rig" Update: Anthony Suarez

A Northern New Jersey mayor under federal indictment for alleged corruption is apparently still on a court-sanctioned lawyers' committee to handle fee disputes between New Jersey lawyers and their clients.

Prior to his legal troubles, Ridgefield, NJ Mayor Anthony Suarez was appointed to a New Jersey court panel handling attorney-client fee disputes.  See this 2008 Report, page 93, under District IIB for South Bergen County.

There is no indication whether Suarez, currently under federal criminal indictment on corruption-related charges stemming from the "Bid Rig" series of investigations announced in July 2009 and starring intrepid filmmaker/cooperating witness/admitted-bank-fraudster Solomon Dwek, has resigned his post in the wake of the serious criminal charges.

Friday, June 4, 2010

New York Political Party Dance

Now that New York's Republican state convention has ended, the recognized parties (under New York State Election law) for the race for governor: have either designated candidates as official endorsees, or allowed more than one candidate to appear on its primary ballot.

At this point there is definitely a primary in the Conservative Party (Lazio v. Lorigo) and Carl Paladino has vowed to petition his way onto the Republican ballot.   It also looks as if the Working Families Party needs to get exonerated by an ongoing federal criminal investigation into campaign finance issues (PS: That is not happening.).  The Independence Party has endorsed Cuomo.

Why is this critical?   Under New York Election Law, a political party is "recognized" and gets automatic ballot lines only if its gubernatorial candidate gets 50,000 votes in the prior gubernatorial election.

This is why the future of at least one of the minor parties is in doubt.

There are also several groups -- both connected to candidates and those that are looking for one -- considering an independent petition drive in order to create another party.

Eric Dixon is a New York election lawyer who also does political consulting and strategic analysis.   He is not affiliated with any candidate or party and thus has no undisclosed conflict of interest.   He can be reached at 917-696-2442.

Thursday, June 3, 2010

Throwing Your Assistants Under the Bus

One of the demerits of the Clinton Administration was earned by its propensity for throwing its own loyal members "under the bus," as the saying goes.   The Administration employed honorable men -- Bernard Nussbaum comes to particular mind -- and then blamed, smeared and jettisoned them when it became politically expedient.

One wonders if the same thing is occurring in New Jersey with still-new Governor Chris Christie openly criticizing his own education commissioner, Bret Schundler, for Schundler's negotiations with the teachers' union.  See this Thursday Star-Ledger report.  Schundler and the union reached an agreement on some reforms and policies in connection with a federal education program, only to have Christie then claim he learned about the deal "in the papers" and repudiate the agreement.

In other situations, cabinet members and other appointees have resigned over less overt repudiations.  But it is the job of some investigative lawyers (such as I) to try to ascertain the truth through the fog, the deceptions and the noise purposely thrown out to distract and confuse. 

Here, a nationally-known education reformer (Schundler) is being taken to task by a man (Christie) whom Schundler may consider to be inferior, both culturally and intellectually if not also morally, and who may well be a far less capable governor than Schundler (himself a Republican candidate for governor in 2001).  On the other hand, these facts may make Schundler a Christie appointee who doesn't exactly "know his place," meaning he may not be showing the proper amount of obedience -- or respect -- to the man who appointed him and who is his boss.  It is possible that Christie has appointed a "know-it-all" education commissioner with an attitude that he (meaning Schundler) knows better than anyone else.  If this latter theory is correct (and I just say it is a possible theory), then what may be Schundler's intellectual snobbery may be rubbing a nouveau-riche, blue-collar-at-heart Christie the wrong way.

Think of this as the conflict between the Grey Poupon and deli-brand-yellow mustards.

Tuesday, June 1, 2010

Criminal Investigation of BP

The Obama Administration announced today that the Justice Department is investigating whether any federal laws were broken by events leading up to the BP oil spill disaster.

This is where statements for public relations purposes cause major legal and justice problems.

The announcement of a criminal investigation after weeks of unabated oil flow raises the question as to why this decision was only reached now. The timing leads one to question whether the investigation is a reaction to the negligence suspected as a cause of the accident, or the embarassment the administration is feeling. If it is the former, why the delay? The delay suggests that mere negligence was not enough to trigger the investigation; it took the PR fiasco of live real-time footage of the escaping oil to trigger it.

Remember, the infamous Abu Ghirab abuses were investigated only after photos got out on the internet.

It logically follows that there are some cases where the true bad act is not considered criminal or sanctionable; rather, what is really criminal - as a practical matter - is doing something (no matter how lawful) which embarasses or hurts the career ambition and prospects of someone in power. Exposing bad acts, incompetence or fraud may fit the bill.

Levy Needs Fifty

Republican state convention this week (New York). Four known gubernatorial contenders: former congressman Rick Lazio, Suffolk County executive Steve Levy, western New York businessman Carl Paladino, and Myers Mermel.

Levy is still a registered Democrat. He has put in the change of enrollment form, but the enrollment change from Democratic to Republican Party does not take effect until after the fall primary. Hence, Levy is still a Democrat for election law purposes.

What does that mean? It means he needs the support of at least half the weighted delegate votes, plus one, just to get on the ballot! Without it he cannot run as a Republican -- no matter how many signatures he gets through the petition process. Period!

Other candidates, as registered Republicans, can gain a ticket to the primary ballot with just 25 percent of the delegate vote.

Bottom line: If Lazio gets 50 percent, he can keep Levy off.

In such a scenario (Levy failing to get 50 percent), I can see both Levy and Paladino running independent petition drives, theoretically dividing up right of center voters three ways. This could create a situation where the Republican candidate might run a risk of not coming in either first or second.

By the way, on other issues: It seems the convention is more concerned about Senate candidates to go up against short term incumbent Kristi Gillibrand.

Of course, there are dark rumblings about a removal of still-new state chairman Ed Cox. The party threatens to implode on itself.

Final note: Access to convention very restricted. There is no public access; this is by invite only. Not a good way to shed the country-club, Grey Poupon elitist image some detractors claim the state GOP has.

Sent from my Verizon Wireless BlackBerry

The Right to Remain Silent

The classic right to remain silent under the Fifth Amendment has been part of our culture -- in addition to our jurisprudence -- for decades thanks to Miranda v. Arizona.

News reports -- This morning the Supreme Court narrowed Miranda. See its decision in Berghuis v. Thompson.  Now, you cannot invoke your right to remain silent by remaining silent. You must speak it. In other words, you must declare your assertion of the right.

I see all sorts of problems. Your declaration of the right is dependent, after all, on the fidelity of the people who have you in custody to follow the rules. This equates to: trust us, we'll report that you invoked your right.

Just like the age-old question -- if a tree falls in the forest and no one hears it, did a tree really fall? -- this decision is ripe for abuse by police and others, who will be free to negate your Miranda rights by simply failing to report, acknowledge or admit that you've voiced your assertion of the right. 

I think about the person who screams as loudly as he can, while being blithely ignored.

Now that your Miranda right may now be only as good as your captor's willigness to acknowledge your right, you now have the functional equivalent of no right, since a right by definition should not depend on the actions or benevolence of anyone else. This ruling today changes the equation, for the worse.

Mortgage Deadbeat Alert

The New York Times is the newest news outlet to finally recognize that mortgagors -- not homeowners since they own nothing and owe more than the present value of the house, marked to market -- are gaming the system; read its Tuesday, June 1, 2010 article here.

These mortgagors routinely run up the bills for other discretionary spending like plasma TVs, "gold package" cable subscriptions, pet grooming, private schools and day camps, and other niceties which are fine when paid for on your dime... but these same mortgagors then default on their mortgages leading to taxpayers -- you and me -- bailing out Freddie Mac, Fannie Mae, the banks and whatever new government mortgage-modification program they come up with next.

Our economy and society are on the cusp of a serious decline, precipitated by nothing less than a deficit in popular responsibility.   We are talking about wanton, deliberate avoidance of responsibility whenever the opportunity exists to pass the burden to someone else. 

The result now is that responsible, hardworking and frugal neighbors suffer the indignity of having to subsidize their spendthrift, layabout neighbors -- before paying full freight for their own, rising costs.   The first moral hazard has occurred; the true risk is the second moral hazard, which may consist of previously-upstanding citizens willfully disregarding the law out of the lost recognition of the moral authority of the government to uphold justice and equality.

Eric Dixon is a New York lawyer.