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Archive for October 3rd, 2016

Supreme Court Opens the Term with Criminal Case Arguments

By Ross Parker
ticklethewire.com

US_Supreme_Court

The Supreme Court opens the 2016-2017 term on Monday with only 8 Justices because of the death last spring of Justice Scalia. The conventional wisdom is that the Court will do its best to avoid the confusion of 4-4 voting splits by postponing controversial cases another Justice is confirmed. Of course that is not always possible, particularly when the case had already been accepted while the Court was at full strength or when a case is unavoidable. An example of the latter would be a voting controversy after the Presidential election such as the 2000 case which confirmed George W. Bush’s election. God forbid the only thing that could make this election any crazier.

The Court has broad discretion in deciding what cases to accept for decision. Certiorari is granted in only about 80 of the 8,000 odd petitions that are filed. Oral arguments occur about 5 or 6 days a month from October to April. After the argument the Justices meet privately and take a preliminary vote. If the Chief Justice is in the majority, he will assign the author of the opinion. If he is in the minority, the senior Justice does so.

October’s case selections are somewhat unusual in that of the 8 cases scheduled for argument, 6 of them are criminal. Moreover, one of the two civil cases involves an issue of the liability of law enforcement agents who are sued for unconstitutional searches. Usually criminal cases comprise a third or less of the full opinion docket, about half that number of oral arguments in a month.

The first case scheduled for oral argument in the term, Bravo-Fernandez and Martinez-Maldonado v. US, involves a Puerto Rican Senator and businessman convicted of bribery in connection with gifts (Las Vegas boxing match tickets) provided to the Senator who then proceeded to vote in favor of legislation which benefitted the businessman. However, during the same prosecution, the jury also acquitted the two of other charges directly related to the issue of bribery. The verdict was irreconcilably inconsistent. On appeal the substantive bribery convictions were vacated due to erroneous instructions. The government seeks to re-try the vacated counts.

The issue before the Court is whether the factual conclusions underlying the acquittals should work to preclude the retrial under the Collateral Estoppel doctrine of the Double Jeopardy Clause. That is, should the jury’s acquittals prevent the government from retrying the defendants a second time on the charges of the vacated convictions?

As a general rule the government cannot re-litigate fact issues resolved against it in a previous prosecution. However, an exception to this rule is made in the case of inconsistent verdicts. The question is whether vacated convictions can be considered under double jeopardy to decide if the verdicts were inconsistent.

Four amicus briefs have been filed in support of the defendants’ arguments. The appeal is a prime example of why amicus briefs should be read to fully understand the issue and what is at stake in the case. One of them in particular filed on behalf of the Cato Institute is a good example of this practice ignored by most lawyers who follow Supreme Court cases. It was authored by Cato’s counsel on the appeal, David Debold, and it presents a thoughtful and erudite discussion on why the history of double jeopardy should preclude the re-trial on the vacated counts. Those of us who have worked beside Mr. Debold can only smile appreciatively at his use of an obscure theory of quantum physics to explain his point that a vacated conviction does not exist legally and so cannot be used to support the proposition that the verdicts are inconsistent.

However persuasive the theory of the defense argument, the fact remains that juries in the United States have always been able to render inconsistent verdicts based on irrational considerations, compromises, or desires to reduce the punishment involved. Or just to get the hell out of the jury room. If some part of a jury agrees to vote to return completely inconsistent verdicts out of a desire to end an interminable jury service, to effect a compromise with the other part of the jury, or because they believe they will be cutting the defendant a break, they have always had a historical right and power to do so. Nullification acquittals by juries to avoid a mandatory death penalty by the theft of a loaf of bread only a couple centuries ago are a related example of this time-honored principle.

Prediction: The defendants’ convictions will be affirmed. The defendants have to prove that the jury necessarily decided the factual bribery issue by their acquittals on some counts, but this is impossible when the verdicts are inconsistent. The general authority of prosecutors to retry a conviction after it has been set aside on appeal because of trial error is so entrenched in the criminal justice system that even a skillful argument on the protections of double jeopardy will not persuade the Court to abandon the practice.

The second case, Shaw v. US, also to be argued on Tuesday, involves the question of whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner argues. That seems like it should be a simpler issue than the former case, but it is one which has bedeviled the Courts of Appeals for years.

A minority of the Circuits, 3 of them, hold with the government’s argument that the statute requires only proof of an intent to deceive the bank in connection with something of value, even if the bank suffers no harm, no loss of a monetary value. The defendant counters with the Circuit majority that there must be proof of an intent to improperly obtain property owned by the bank, not just the property of one of its customers. But how should “property rights” be interpreted, narrowly as the bank’s own assets, or more broadly, as assets owned or possessed by the bank, as it holds deposits by its customers?

Both sides argue that the plain meaning of the statute supports their interpretation, but if there is one thing I have learned practicing law, nothing is ever plain when lawyers are arguing.

Shaw openly admitted in his trial that his intention was to cheat one of the bank’s customers out of the $300,000 he stole through a fraudulent Pay Pal scheme and that the government would have gotten a conviction if it had charged under the correct statute. Only the customer and Pay Pal lost money, not the bank. But should the statute require that we parse a thief’s state of mind as to the technical issues of bank law which surround reimbursement by a bank of lost depositor assets?

Prediction: The Court will affirm the defendant’s conviction. But don’t bet the mortgage money on this prediction. Safe money would go the other way as 9 Courts of Appeal have chosen to go. But I have always thought that, once I deposit my meager government pension check, those dollars now belong to the bank subject to its obligation to return part of it at the ATM machine (“hit the buttons” as my friend Jim King is wont to say).

The next column will discuss two of the remaining October oral arguments. Both involve aspects of one of the current important issues of the day—whether African American and Latino defendants can get a fair shake in the American criminal justice system. Were the Justices motivated to decide these cases early in the term, perhaps to weigh in on the controversy?

Who says Justices don’t watch the evening news? The question is, is it Fox or MSNBC?

 

Parker: Supreme Court Opens the Term with Criminal Case Arguments

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

By Ross Parker
ticklethewire.com

US_Supreme_Court

The Supreme Court opens the 2016-2017 term on Monday with only 8 Justices because of the death last spring of Justice Scalia. The conventional wisdom is that the Court will do its best to avoid the confusion of 4-4 voting splits by postponing controversial cases another Justice is confirmed. Of course that is not always possible, particularly when the case had already been accepted while the Court was at full strength or when a case is unavoidable. An example of the latter would be a voting controversy after the Presidential election such as the 2000 case which confirmed George W. Bush’s election. God forbid the only thing that could make this election any crazier.

The Court has broad discretion in deciding what cases to accept for decision. Certiorari is granted in only about 80 of the 8,000 odd petitions that are filed. Oral arguments occur about 5 or 6 days a month from October to April. After the argument the Justices meet privately and take a preliminary vote. If the Chief Justice is in the majority, he will assign the author of the opinion. If he is in the minority, the senior Justice does so.

October’s case selections are somewhat unusual in that of the 8 cases scheduled for argument, 6 of them are criminal. Moreover, one of the two civil cases involves an issue of the liability of law enforcement agents who are sued for unconstitutional searches. Usually criminal cases comprise a third or less of the full opinion docket, about half that number of oral arguments in a month.

The first case scheduled for oral argument in the term, Bravo-Fernandez and Martinez-Maldonado v. US, involves a Puerto Rican Senator and businessman convicted of bribery in connection with gifts (Las Vegas boxing match tickets) provided to the Senator who then proceeded to vote in favor of legislation which benefitted the businessman. However, during the same prosecution, the jury also acquitted the two of other charges directly related to the issue of bribery. The verdict was irreconcilably inconsistent. On appeal the substantive bribery convictions were vacated due to erroneous instructions. The government seeks to re-try the vacated counts.

The issue before the Court is whether the factual conclusions underlying the acquittals should work to preclude the retrial under the Collateral Estoppel doctrine of the Double Jeopardy Clause. That is, should the jury’s acquittals prevent the government from retrying the defendants a second time on the charges of the vacated convictions?

Ross Parker

Ross Parker

As a general rule the government cannot re-litigate fact issues resolved against it in a previous prosecution. However, an exception to this rule is made in the case of inconsistent verdicts. The question is whether vacated convictions can be considered under double jeopardy to decide if the verdicts were inconsistent.

Four amicus briefs have been filed in support of the defendants’ arguments. The appeal is a prime example of why amicus briefs should be read to fully understand the issue and what is at stake in the case. One of them in particular filed on behalf of the Cato Institute is a good example of this practice ignored by most lawyers who follow Supreme Court cases. It was authored by Cato’s counsel on the appeal, David Debold, and it presents a thoughtful and erudite discussion on why the history of double jeopardy should preclude the re-trial on the vacated counts. Those of us who have worked beside Mr. Debold can only smile appreciatively at his use of an obscure theory of quantum physics to explain his point that a vacated conviction does not exist legally and so cannot be used to support the proposition that the verdicts are inconsistent.

Read more »

Robin Hood in Reverse — A $1.1 Million Scam

2000px-robin_hood_logo-svg

By Greg Stejskal
ticklethewire.com

In 2005 Female Jones (not her real name), an indigent woman living in public housing in Ann Arbor, Mich., discovered she wasn’t eligible for federal housing assistance. The reason she wasn’t eligible was because it appeared she was already receiving “Section 8” voucher payments. Jones wasn’t aware of receiving any assistance. So it was assumed that there was a bureaucratic snafu, but an investigation revealed something far more nefarious.

Section 8 vouchers are so-called because they are authorized under Section 8 of the Federal Housing Act of 1937, part of the New Deal legislation designed to help people suffering the effects of the Great Depression. In 1974 the Housing Act was amended to create the Section 8 voucher program. Low income people would be eligible for vouchers that would pay a percentage of their rent in approved housing facilities. The money for the program would be provided by U.S. Department of Housing and Urban Development (HUD), but the program would be administered by the state and local public housing agencies.

There was only a limited amount of funding available. So not all eligible people would receive vouchers. In Michigan a waiting list existed and waits of 3-6 years were not uncommon.

Greg Stejskal

Greg Stejskal

The voucher payments were made directly to the indigent tenants’ landlords to minimize the opportunity for fraud. Housing voucher agents working for the state prepared the application forms for the indigent applicants. These agents obtained background information and determined whether the applicants met the eligibility requirements.

Female Jones’ caseworker determined that she was enrolled in the Section 8 program, and voucher payments were being sent to Washtenaw Payee Services, a company that appeared to receive Section 8 payments on behalf of several landlords in Washtenaw County. Because the woman was unaware of the payments, and they were not being received by her landlord, the caseworker reported the problem to the Michigan State Housing Development Authority (MSHDA).

MSHDA’s initial investigation indicated there might be some fraudulent activity. As the Section 8 program is federally funded, they reported their concerns to the FBI, and a joint FBI/MSHDA investigation was begun.

Although Washtenaw Payment Services (WPS) appeared to have an office with a street address, it turned out to be a private mailbox service which is often a red flag in a fraud investigation.

The bank records for WPS were obtained via subpoena. Those records showed that WPS was formed in 1990 when LaToya Cotton filed business papers with Washtenaw County and opened a bank account. Since 1994, about 11 years, WPS had been receiving Section 8 voucher payments ostensibly for landlords of low-income tenants enrolled in the program.

The striking thing was the founder of WPS, LaToya Cotton, was a Michigan housing agent responsible for enrolling prospective low-income applicants for Section 8 vouchers. But even more troubling, it didn’t appear that any money had been paid from the WPS account to any landlords on behalf of the Section 8 enrollees.

LaToya Cotton became a Michigan housing agent for MSHDA in 1994. Very soon thereafter she concocted her scheme.

Prior to becoming a housing agent Cotton had setup the WPS account for a legitimate purpose. But after becoming an agent and enrolling applicants for the Section 8 program, she designated WPS as the recipient for some of the applicants’ landlord payments. When the WPS applicants were approved for Section 8 payments, Cotton didn’t tell them they had been approved. Rather, she told them they were not approved, or that they were on the waitlist. None of those enrollees were ever aware that they had been approved for Section 8 payments.

In September 2005, the FBI obtained a search warrant for Cotton’s office. The records seized revealed that during the 11 years that Cotton was a housing agent, she enrolled 100s of Section 8 applicants. Of those applicants she designated WPS as the recipient of landlord payments for about 40 of the enrollees. Cotton would periodically change the WPS enrollees, removing some and adding others. At the time her office was searched, she had eight enrollees whose voucher payments were going to WPS.

All of the money paid into the WPS account was used by Cotton for personal expenses. Over the 11-year period of the fraud, the total amount paid into the account was $1,051,701. She purchased cars, went on vacations. In April 2004, Cotton purchased a 5,237 square foot home for $830,000.  MSHDA figured that the amount embezzled by Cotton could have subsidized housing for 50 families for more than four years.

In January 2006, in front of US District Court Judge Patrick Duggan (The father of current Detroit Mayor Mike Duggan – ironically the mayor has been trying to turn Detroit around after it has been racked by years of public corruption.), Cotton pleaded guilty to a federal indictment charging her with theft from a federally funded program.

Judge Duggan in May 2006 sentenced Cotton to three and a half years incarceration, three years supervised release and ordered her to pay $1.1 million in restitution.  (Cotton’s house was forfeited and sold with the proceeds used to pay a portion of the restitution.)

At the time I was quoted as saying, “She (Cotton) was living in a mansion and there were low-income people on the Section 8 waiting list. It was Robin Hood in reverse.”

 

Stejskal: Robin Hood in Reverse – A $1.1 Million SCAM

2000px-robin_hood_logo-svg

Greg Stejskal served as an FBI agent for 31 years and retired as resident agent in charge of the Ann Arbor office.

By Greg Stejskal
ticklethewire.com

In 2005 Female Jones (not her real name), an indigent woman living in public housing in Ann Arbor, Mich., discovered she wasn’t eligible for federal housing assistance. The reason she wasn’t eligible was because it appeared she was already receiving “Section 8” voucher payments. Jones wasn’t aware of receiving any assistance. So it was assumed that there was a bureaucratic snafu, but an investigation revealed something far more nefarious.

Section 8 vouchers are so-called because they are authorized under Section 8 of the Federal Housing Act of 1937, part of the New Deal legislation designed to help people suffering the effects of the Great Depression. In 1974 the Housing Act was amended to create the Section 8 voucher program. Low income people would be eligible for vouchers that would pay a percentage of their rent in approved housing facilities. The money for the program would be provided by U.S. Department of Housing and Urban Development (HUD), but the program would be administered by the state and local public housing agencies.

There was only a limited amount of funding available. So not all eligible people would receive vouchers. In Michigan a waiting list existed and waits of 3-6 years were not uncommon.

Greg Stejskal

Greg Stejskal

The voucher payments were made directly to the indigent tenants’ landlords to minimize the opportunity for fraud. Housing voucher agents working for the state prepared the application forms for the indigent applicants. These agents obtained background information and determined whether the applicants met the eligibility requirements.

Female Jones’ caseworker determined that she was enrolled in the Section 8 program, and voucher payments were being sent to Washtenaw Payee Services, a company that appeared to receive Section 8 payments on behalf of several landlords in Washtenaw County. Because the woman was unaware of the payments, and they were not being received by her landlord, the caseworker reported the problem to the Michigan State Housing Development Authority (MSHDA).

MSHDA’s initial investigation indicated there might be some fraudulent activity. As the Section 8 program is federally funded, they reported their concerns to the FBI, and a joint FBI/MSHDA investigation was begun.

Although Washtenaw Payment Services (WPS) appeared to have an office with a street address, it turned out to be a private mailbox service which is often a red flag in a fraud investigation.

The bank records for WPS were obtained via subpoena. Those records showed that WPS was formed in 1990 when LaToya Cotton filed business papers with Washtenaw County and opened a bank account. Since 1994, about 11 years, WPS had been receiving Section 8 voucher payments ostensibly for landlords of low-income tenants enrolled in the program.

The striking thing was the founder of WPS, LaToya Cotton, was a Michigan housing agent responsible for enrolling prospective low-income applicants for Section 8 vouchers. But even more troubling, it didn’t appear that any money had been paid from the WPS account to any landlords on behalf of the Section 8 enrollees.

LaToya Cotton became a Michigan housing agent for MSHDA in 1994. Very soon thereafter she concocted her scheme.

Read more »

Orange County Register: Why FBI Should Disclose How iPhone Was Hacked

Apple-iphoneBy Editorial Board
Orange County Register

After the San Bernardino attack in December that killed 14 people and wounded 22 others, the FBI hired a private hacker to unlock the iPhone of one of the two dead terrorists. Perhaps the FBI learned some of Syed Rizwan Farook’s evil secrets. But it also created unsettling secrets of its own.

The mysteries left over from the episode start with these: Who is the unnamed private party the FBI paid to break the smartphone’s security device? How much taxpayer money did the agency pay?

News organizations that have been stiff-armed by the FBI in their Freedom of Information Act request now are suing the bureau for answers.

We hope they succeed. The public should be able to know more about how the FBI cracked the privacy safeguards on the terrorist’s Apple phone. This is about more than one investigation and one wrongdoer’s phone – it’s about the threat that the government’s ability to break into electronic devices could pose to anybody’s online privacy and safety, especially if the tools fell into the wrong hands.

As stated in the lawsuit – filed last week by the Associated Press, the Gannett media company and the Vice Media digital and broadcasting company – “Understanding the amount that the FBI deemed appropriate to spend on the tool, as well as the identity and reputation of the vendor it did businesses with, is essential for the public to provide effective oversight of government functions and help guard against potential improprieties.”

To read more click here. 

FBI: Did NYPD Lt. Shoot Himself to Avoid Testifying Against Former Boss?

nypd badgeBy Steve Neavling
ticklethewire.com

Authorities are questioning whether an NYPD lieutenant shot himself twice in the stomach to avoid testifying against his friend and former boss.

The New York Post reports that Lt. Peter Salzone shot himself after he was interviewed by the FBI as part of a corruption investigation into the NYPD.

Salzone had been asked to testify against his former boss, NYPD Deputy Inspector James Grant.

The Post wrote:

The NYPD’s Force Investigation Division is looking at the possibility that Salzone never intended to kill himself and merely wanted to appear emotionally unstable to sabotage his credibility as a witness, according to sources.

Salzone was stripped of his gun and badge Saturday. He could not be reached for comment.

He is the second police officer to shoot himself after getting called into the federal inquiry, which has seen dozens of cops get grilled.

Homeland Security: Hackers Targeted Election Systems in 20+ States

ballot box flintBy Steve Neavling
ticklethewire.com

The voter registration systems of more than 20 states have been targeted by hackers in recent months, a Homeland Security official said.

The discovery comes as election officials are worried about foreign hackers compromising the elections. But federal officials said hackers likely would not be able to alter the outcome of an election because the systems are generally not connected to the Internet, the Associated Press reports. 

It’s still not clear where the hackers are from and what their motives are.

The FBI has warned state officials about election security in the wake of the suspected hacking attempts.

FBI Director James Comey said last week that the bureau is investigating whether Russian hackers are trying to disrupt the election.

Homeland Security Secretary Jeh Johnson encouraged state election officials to secure their election systems by implementing existing technical recommendations.

Authorities Say Black Box Wasn’t Working During N.J. Train Crash in Hoboken

New Jersey Transit train, via Wikipedia.

New Jersey Transit train, via Wikipedia.

By Steve Neavling
ticklethewire.com

Authorities hoping to determine what caused a New Jersey Transit train to crash in Hoboken received bad news Sunday.

The black box that was recovered was not working at the time of the accident, the New York Daily News reports. 

The black box, which was recovered from the rear of the train, recorded no information. It was built in 1995.

The engineer of the train told the National Transportation Safety Board that he doesn’t remember the fatal crash, but said the train was traveling 10 mph as it entered the station.

Another recorder was located at the front end of the train, but it has not been found.

“Right now it is very dangerous to get in there,” NTSB vice chair Bella Dinh-Zarr said. “We’re hopeful that that will have information, that it will be functioning.”

The Thursday morning crash killed one person and injured more than 100 people.

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