Tuesday, October 26, 2010

Omar Khadr, Guantanamo Bay Detainee, Pleads Guilty

According to reports from CNN, Guantanamo Bay's youngest detainee, Omar Khadr, pleaded guilty to the charges against him on Monday. The Sentencing Law and Policy Blog also has a post regarding the plea deal.

Guantanamo Bay detainee Omar Khadr pleaded guilty to charges against him Monday, the Pentagon said, in the first military commission trial there since Barack Obama became president.

Khadr, 24, was accused of throwing a grenade during a 2002 firefight in Afghanistan that resulted in the death of Army Sgt. 1st Class Christopher Speer, a Special Forces medic.

He also admitted that he "converted landmines to Improvised Explosive Devices and assisted in the planting of 10 IEDs with the intent of killing American forces" in the months before killing Speer, the Pentagon said.

Khadr, the youngest detainee at Guantanamo Bay, was 15 at the time. He faced a maximum sentence of life in prison.

He pleaded guilty to murder in violation of the laws of war, attempted murder in violation of the laws of war, conspiracy, two counts of providing material support for terrorism and spying in the United States, a Canadian diplomat said.

Canada -- where Khadr was born -- has been closely involved in negotiations with the United States over his plea.

A source close to the case told CNN on Monday that the deal includes an eight-year prison sentence -- one year in U.S. custody and seven to be served in Canada.

Bibas on Regulating Plea Bargaining

Stephanos Bibas (University of Pennsylvania) has a new article posted on SSRN. Download the article here.

Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining. For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way. Not until Padilla this past year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related civil and collateral consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’ common-law incrementalism, and the rise of the two realistic ex-prosecutors on the Court, Justices Alito and Sotomayor. To complete Padilla’s unfinished business, the Court and legislatures should look to consumer protection law, to regulate at least the process if not the substance of plea bargaining.

Tuesday, October 19, 2010

JetBlue Flight Attendant Pleads Guilty; Avoids Jail Time

The Wall Street Journal Law Blog is reporting that JetBlue Flight Attendant Steven Slater has pleaded guilty to two counts of attempted criminal mischief and will not serve any jail time. According to NBC News New York:

Former JetBlue flight attendant Steven Slater, who made an abrupt emergency chute exit from a plane at JFK - - and from his career -- has pleaded guilty to one count of felony attempted criminal mischief and one count of misdemeanor criminal mischief.

Slater will not go to prison. A one-to three-year sentence was delayed by Supreme Court Judge Marcia Hirsch. His deal requires that he enter a year-long mental health program and also receive substance and alcohol abuse counseling.

Slater also agreed to reimburse JetBlue $10,000 -- the cost for repairing the chute.

Slater's August 9 outburst became a global sensation as some considered him a hero of the working man after he initially said he had been hit in the head with luggage by a rude passenger. Nobody was hurt as Slater famously grabbed a couple beers and slid out the plane's emergency chute.

Thursday, September 23, 2010

Prosecutorial Misconduct

USA Today has an interesting article that is receiving attention around the blogosphere, including here and here. According to the article, USA Today has documented 201 criminal cases since 1997 in which federal prosecutors violated laws and ethical rules. According to sources interviewed for the article, this is just "the tip of the iceberg."

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

Judges have warned for decades that misconduct by prosecutors threatens the Constitution's promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses.

Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation's most elite and powerful law enforcement officials — themselves violated laws or ethics rules.

In case after case during that time, judges blasted prosecutors for "flagrant" or "outrageous" misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains...

Sniffing out misconduct can be a matter of serendipity — or luck, as Lyons' attorneys discovered.

The evidence that eventually set Lyons free came to light only because of one sentence buried in a 40-page draft of a probation officer's sentencing report. Those drafts are dense and at times ignored, but this one offered a tantalizing clue: an account by one of Lyons' accusers, a federal inmate, that differed from his testimony during the trial.

That stuck out to Robert Berry, one of Lyons' attorneys, who wondered what else he hadn't been told. His digging led to hundreds of pages of other evidence prosecutors had never disclosed.

"If it wasn't for that one sentence, he would be in prison right now, probably for the rest of his life," Berry said. "The scary part is it probably does happen every day and nobody ever figures it out."

One reason violations may go undetected is that only a small fraction of criminal cases ever get the scrutiny of a trial, the process most likely to identify misconduct. Trials play a "very important" role, said former deputy attorney general David Ogden, because they force judges and attorneys to review a case in far more exacting detail.

The number of people charged with crimes in federal district courts has almost doubled over the past 15 years. Yet the number whose cases actually go to trial has fallen almost 30%, to about 3,500 last year, USA TODAY found. Last year, just four defendants out of 100 went to trial; the rest struck plea bargains that resolved their cases quickly, with far less scrutiny from judges.

"We really should be more concerned about the cases we don't know about," said Levenson, the Loyola professor. "Many of the types of misconduct you identified could happen every day, and we'd never know about it if defendants plead out."

The complete USA Today article can be found here.

Tuesday, September 14, 2010

Abdulmutallab and Plea Bargaining

The Wall Street Journal Law Blog has an interesting article today entitled "Why Not Just Let Abdulmutallab Plead Guilty?"

On Monday, the accused Christmas Day bomber, Umar Faroukh Abdulmutallab, told Detroit federal judge Nancy G. Edmunds that he wanted to represent himself.

He also asked Judge Edmunds whom he should talk to if he wanted “to plead guilty to some counts.”

But Judge Edmunds didn’t just accept Abdulmutallab’s request. She peppered Abdulmutallab with questions about his understanding of U.S. law and criminal procedure. She told him it was unwise to move forward without a lawyer, though she said she’s ultimately let him do that. She also said she wouldn’t accept a guilty plea now.

So why not? Why would a judge put a defendant like Abdulmutallab through the wringer before granting what appear to be reasonable requests?

We did a little reporting in pursuit of this answer yesterday — click here for the sidebar that ran in the WSJ.

The federal court system makes it hard to chuck your lawyers and plead guilty for several reasons. For starters, judges want to make sure defendants are pleading guilty willingly and knowingly — partly to rule out that they made the decision under duress or threat of coercion. There’s a practical reason, too. A judge’s failure to press the defendant could lead to a plea unraveling down the line if the defendant changes his or her mind.

In recent months, a number of other terrorism suspects have pleaded guilty at least partly out of a seeming desire to protest U.S. foreign policy. Judges in these cases often ask exacting questions of the defendant in order to test the defendant’s knowledge of the plea. For instance, in June, New York federal judge Miriam Cedarbaum repeatedly interrupted Faisal Shazad, the mastermind of the attempted Times Square bombing, with questions about the plot during his plea hearing.

But isn’t there something wrong with this picture? Isn’t the legal system getting in the way of itself? Well, yes, said Wayne State law professor Peter Henning. “The legal system gets in the way of itself all the time, but that’s what it’s designed to do. If you let this guy plead guilty, he’ll likely spend the rest of his life in jail.”
Click here for the full article.

Podgor on Pleading Blindly

Ellen S. Podgor (Stetson Law) has posted an interesting article on SSRN entitled "Pleading Blindly."

In the criminal area, discovery violations are a continual concern. Recently, the Department of Justice (DOJ) was caught with discovery violations that reflected prosecutorial misconduct and improprieties. To its credit, the DOJ issued three Memos that sought to affirmatively promote office compliance with discovery obligations. The three Memos of former Deputy Attorney General David W. Ogden, however, fall short in an important area, discovery for defendants prior to entering into plea agreements.

This Essay places this discussion in the backdrop of existing legal scholarship and existing precedent, most importantly the Supreme Court opinion in United States v. Ruiz, that provides little support for mandating discovery to defendants prior to entering into a plea agreement. Protecting the importance of a voluntary and knowing plea cannot be overlooked in assuring an efficient system of justice. Unique concerns are also noted when the government is entering into a deferred prosecution agreement with a corporation or other entity. This Essay advocates for a more forceful response than merely having DOJ guidelines to remedy discovery violations that may influence the entering of a plea.
Click here to download the article.

NYT Article Regarding Innocent People Confessing to Crimes

The New York Times has an interesting article regarding innocent people confessing to crimes they did not commit.

Eddie Lowery lost 10 years of his life for a crime he did not commit. There was no physical evidence at his trial for rape, but one overwhelming factor put him away: he confessed.

At trial, the jury heard details that prosecutors insisted only the rapist could have known, including the fact that the rapist hit the 75-year-old victim in the head with the handle of a silver table knife he found in the house. DNA evidence would later show that another man committed the crime. But that vindication would come only years after Mr. Lowery had served his sentence and was paroled in 1991.

“I beat myself up a lot” about having confessed, Mr. Lowery said in a recent interview. “I thought I was the only dummy who did that.”

But more than 40 others have given confessions since 1976 that DNA evidence later showed were false, according to records compiled by Brandon L. Garrett, a professor at the University of Virginia School of Law. Experts have long known that some kinds of people — including the mentally impaired, the mentally ill, the young and the easily led — are the likeliest to be induced to confess. There are also people like Mr. Lowery, who says he was just pressed beyond endurance by persistent interrogators.
New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.
The full article can be found here.

Sunday, August 29, 2010

Somali Man Pleads Guilty in U.S. Piracy Prosecution

CNN is reporting that Jama Idle Ibrahim has pleaded guilty in federal court in Norfolk, Virginia to acts related to piracy on the high-seas. During the proceedings, Ibrahim admitted he had intended to seize a U.S. merchant vessel on April 10 and hold it for ransom. According to the United States Attorney in the district, this is the first conviction for piracy in Norfolk for 150 years. Sentencing is scheduled for November 29, 2010, and the prosecution and defense have agreed to a recommended sentence of 30 years in prison.

The attack occurred in the Gulf of Aden between the Horn of Africa and the Arabian Peninsula.

Ibrahim is one of 11 Somalis sent to Norfolk for prosecution in two attacks. Five others are charged in connection with an April 1 attack on the Norfolk-based frigate Nicholas.

Ibrahim pleaded guilty to charges of attacking to plunder a vessel, engaging in a violent act aboard a vessel and using a firearm during a crime of violence. The charge of committing piracy on the high seas, which carried a mandatory life sentence, was thrown out 10 days ago by the judge.

Until this year, there had not been a piracy-related conviction in the United States since 1861, during the Civil War, officials said.

In May, Abduwali Abdukhadir Muse, who was accused of leading the attack on the Maersk Alabama in April 2009, pleaded guilty to felony counts of hijacking maritime vessels, kidnapping and hostage taking.
Click here for the full story.

Thursday, August 26, 2010

New Article Regarding Plea Bargaining and the Brady Safety-Valve

I have just posted my new article on SSRN, which is entitled "Bargained Justice: Plea Bargaining's Innocence Problem and the Brady Safety-Valve."

ABSTRACT

If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are so coercive as to overbear defendants’ abilities to act freely. Further, as a means to discern whether the safety-valve fails in the future and prosecutors are offering unconstitutional incentives, the Brady Court created a litmus test regarding innocent defendants. The Court stated that should the plea bargaining system begin to operate in a manner resulting in a significant number of innocent defendants pleading guilty the Court would be forced to reexamine the constitutionality of bargained justice. That plea bargaining today has a significant innocence problem indicates that the Brady safety-valve has failed and, as a result, the constitutionality of modern day plea bargaining is in great doubt.

Click here to download the article.

Tuesday, July 13, 2010

Barefoot Bandit Pleads Guilty

CNN is reporting that the Barefoot Bandit, nineteen year old Colton Harris-Moore, has pleaded guilty in a Bahamian court to a charge of illegally landing a plane. He was sentenced to three months in jail or a $300 fine. A deportation order was also entered in the case.

According to CNN:

Harris-Moore, 19, appeared before Chief Magistrate Roger Gomez for arraignment Tuesday.

He was taken into custody on Harbour Island in the Bahamas early Sunday. He is sought in a string of home and airport break-ins in various U.S. locations along with thefts of vehicles. He faces charges in Washington state in the theft of an aircraft, and police have said they believe he stole a plane in Indiana and flew it to the Bahamas, where it was found off Abaco Island.

The teen has been on the run since he escaped from a juvenile halfway house in Renton, Washington, in 2008. The FBI had offered a $10,000 reward for information leading to his arrest.

"At this point, we're not aware of any requests from the U.S. government or any government for extradition of the young man," Quincy Parker, spokesman for the Bahamas Embassy in Washington, said earlier Tuesday.

Harris-Moore is called the "barefoot bandit" because he was without shoes when he allegedly broke into houses. He also was barefoot when caught in the Bahamas at the Romora Bay Resort and Marina by police responding to a reported sighting Sunday.

Friday, July 9, 2010

More on the Russian Sleeper Agents' Plea Deals

The New York Times has continued coverage of the prisoner swap between the United States and Russia. Included in the article are further details of the plea deal that lead to the exchange.

The sensational case — complete with invisible ink, buried cash and a red-haired beauty whose romantic exploits have been excavated in the tabloids — came to a dramatic denouement in court.

The 10 defendants sat in the jury box, while their lawyers and prosecutors filled the well of the packed courtroom. Some of the Russian agents wore jail garb over orange T-shirts, while others wore civilian clothes. Natalia Pereverzeva, for example, known as Patricia Mills, sat in jeans with a dark sweater.

Few of the defendants conversed with one another. Some looked grim. One, Vicky Peláez, appeared to be weeping as she gestured to her sons at the close of the hearing.

At one point, Judge Kimba M. Wood asked the 10 to disclose their true names.

The first to rise was the man known as Richard Murphy, who lived with his wife and two children in Montclair, N.J. He said his name was Vladimir Guryev.

Then his wife rose. “My true name is Lydia Guryev,” she said.

All but three — Anna Chapman, Mikhail Semenko and Ms. Peláez — had assumed false names in the United States.

The 10 each pleaded guilty to a single count of conspiracy to act as an agent of a foreign government without properly registering; the government said it would drop the more serious count of conspiracy to launder money, which eight of the defendants also faced. They had not been charged with espionage, apparently because they did not obtain classified information.

All of them agreed never to return to the United States without permission from the attorney general. They also agreed to turn over any money made from publication of their stories as agents, according to their plea agreements with the United States attorney’s office in Manhattan. Several also agreed to forfeit assets, including real estate, in the United States.

The defendants included several married couples with children. American officials said after the court hearing that the children would be free to leave the United States with their parents.

Former Congressman Pleads Guilty to Obstructing Justice, Acting as Unregistered Foreign Agent

The United States Attorney's Office for the Western District of Missouri has issued a press release stating that a former congressman and U.S. ambassador to the United Nations has pleaded guilty to obstruction of justice and to acting as an unregistered foreign agent related to his work for an Islamic charity with ties to international terrorism.

According to the press release:

Mark Deli Siljander, 59, of Great Falls, Va., pleaded guilty before U.S. District Judge Nanette K. Laughrey to one charge contained in an Oct. 21, 2008, federal indictment, and an additional charge filed today, involving his work for the Islamic American Relief Agency (IARA) of Columbia, Mo. Siljander was a member of the U.S. House of Representatives from Michigan and was a U.S. Ambassador to the United Nations General Assembly.

Co-defendant Abdel Azim El-Siddig, of Chicago, Ill., a former IARA fundraiser, also pleaded guilty today to conspiring with Siljander and others to hire Siljander to lobby for IARA’s removal from a Senate Finance Committee list of charities suspected of having terrorist ties, while concealing this advocacy and not registering with the proper authorities.

“A former congressman engaged in illegal lobbying for a charity suspected of funding international terrorism. He then used his own charities to hide the payments for his criminal activities,” U.S. Attorney Phillips said. “Siljander repeatedly lied to FBI agents and prosecutors investigating serious crimes related to national security. With today’s guilty pleas, all of the defendants in this case have admitted their guilt and will be held accountable for their actions.”

Siljander operated a Washington, D.C., consulting business called Global Strategies, Inc. IARA was an Islamic charity in Columbia, Mo., that served as the U.S. office of an international organization headquartered in Khartoum, Sudan. IARA was closed in October 2004, after being identified by the U.S. Treasury Department as a specially designated global terrorist organization, for the support its international offices provided to Osama bin Laden, al Qaeda, and the Taliban. The executive director of IARA, co-defendant Mubarak Hamed, 53, of Columbia, a naturalized U.S. citizen originally from Sudan, has pleaded guilty in connection with this case.

According to today’s plea agreements, between March and May 2004, Hamed and El-Siddig hired Siljander to lobby for IARA’s removal from a U.S. Senate Finance Committee list of charities suspected of funding international terrorism, and its reinstatement as an approved government contractor. IARA lost its status as an approved government contractor in 1999, when the U.S. Agency for International Development (USAID) terminated grants for two relief projects in Mali, Africa. USAID informed the organization that the grants were not in the national security interest of the United States.

Siljander, El-Siddig, and Hamed each knew that IARA was part of a large international organization controlled by its headquarters in Khartoum, Sudan, and agreed with each other to conceal Siljander’s efforts on IARA’s behalf. In order to do so, Siljander instructed El-Siddig and Hamed to transfer $75,000 of IARA’s funds to him by funnelling them through non-profit entities. El-Siddig carried at least three checks issued to Siljander’s charities from Chicago to Washington, D.C., and gave them to Siljander.

In exchange for the payments, during the Summer of 2004, Siljander acted as an agent for IARA by contacting persons at the U.S. Senate Finance Committee, USAID, the Department of Justice and the Department of the Army, in an effort to have IARA removed from the USAID list of debarred entities, and to remove IARA from the Senate Finance Committee’s list of charities suspected of funding terrorism. Federal law requires anyone who serves as an agent of a foreign entity, including an organization, to register with the U.S. Attorney General.

In pleading guilty, Siljander admitted that in two separate interviews he repeatedly lied to FBI agents and prosecutors acting on behalf of a federal grand jury. Siljander obstructed justice by falsely denying that he was hired to advocate for IARA, and by falsely claiming that the payments from IARA were charitable donations intended to assist him in writing a book about bridging the gap between Islam and Christianity.

Under federal statutes, Siljander is subject to a sentence of up to 15 years in federal prison without parole, plus a fine of up to $500,000. El-Siddig is subject to a sentence of up to five years in federal prison without parole, plus a fine of up to $250,000. Sentencing hearings will be scheduled after the completion of presentence investigations by the U.S. Probation Office.

Thursday, July 8, 2010

Breaking News! Ten Russian Spies Plead Guilty in New York Federal Court

According to various news sources, the ten individuals arrested in late June and accused of spying for the Russians have pleaded guilty in New York federal court. The guilty pleas are thought to be the first step in a prisoner swap between the United States and Russia.

According to Fox News:

Ten people accused of spying for Russia pleaded guilty inside a Manhattan courtroom Thursday as the largest Russia-U.S. spy swap since the Cold War appeared to get under way.

The Russians will trade four people for the ten accused Russian spies in U.S. custody, a source confirmed to Fox News.

The defendants all affirmed U.S. District Judge Kimba Wood's question of whether they would plead guilty in a Manhattan courtroom.

The defendants were expected to be deported to Russia within hours, apparently in exchange for the release of convicted Russian spies. A Russian arms control analyst convicted of spying for the United States was reportedly plucked from a Moscow prison and flown to Vienna earlier Thursday.
Click here for the New York Times article regarding the proposed prisoner swap.

Tuesday, July 6, 2010

Plea Bargaining an Issue in Second Circuit Death Penalty Decision

The New York Times reported last week on the case of Ronell Wilson, whose death sentence for killing two New York City undercover police detectives in 2003 has been overturned by the United States Court of Appeals for the Second Circuit. The decision is noteworthy because federal juries in New York State are historically reluctant to sentence defendants to death. According to the New York Times, federal prosecutors in New York have asked for the death sentence in 19 cases from 1988-2008, but in only one case - that of Ronell Wilson - has the jury returned a verdict of death.

The case also involves plea bargaining. As reported by the New York Times:

The Court of Appeals’ ruling centered on two arguments that prosecutors made to the jury about Mr. Wilson’s remorse and acceptance of responsibility for the killings during the penalty phase of his trial. The judges noted that prosecutors used Mr. Wilson’s demand for a trial and his failure to plead guilty as evidence that he lacked remorse and refused to accept responsibility. The judges said prosecutors had argued to the jury that Mr. Wilson’s statement of remorse should be discredited because he failed to testify.

“He has an absolute right to go to trial, put the government to its burden of proof, to prove he committed these crimes, but he can’t have it both ways,” one of the prosecutors, Jack Smith, is quoted as telling the jury in the judges’ ruling (Mr. Smith now leads the public integrity section for the Justice Department). “He can’t do that, then say I accept responsibility.”

The defense made an objection at that point that was overruled, and the prosecutor continued, “And [say] ‘I’m sorry, only after you prove I did it.’ That’s not acceptance of responsibility.”

The judges wrote that they agreed with Mr. Wilson’s lawyers that the comments “unconstitutionally burdened his Sixth Amendment right to a jury trial.” In addition, the prosecutor’s highlighting of Mr. Wilson’s refusal to testify violated his Fifth Amendment right against incriminating himself, according to the ruling.
Unless the decision is later overturned, the Second Circuit ruling means that a new penalty phase will occur in the case before a new jury. Another alternative is for the government to withdraw its notice to seek the death penalty, which would result in an automatic sentence of life in prison.

Tuesday, June 29, 2010

More on the Faisal Shahzad Plea Hearing and the War on Terrorism

The New York Times has an interesting article discussing the Faisal Shahzad plea hearing and his statements to the court about his conduct and his decision to plead guilty. According to the New York Times, Shahzad stated that he was "a Muslim soldier" and he was "avenging" the war in Afghanistan and American interventions in Pakistan, Iraq, Yemen and Somalia. The article asks two important questions based on Shahzad's behavior: (1) Has the war on terrorism become the fuel for terrorist recruitment, and (2) where does the was in Afghanistan fit into the overall campaign against terror.

It's an interesting read. Click here to read the entire story.

Tuesday, June 22, 2010

Times Square Bomber Pleads Guilty

The New York Times is reporting that the failed Times Square bomber, Faisal Shahzad, has pleaded guilty to ten criminal charges related to his attempted terrorist attack earlier this year. During the hearing, Shahzad admitted to receiving terrorist training from the Taliban. In making his admission of guilt, he stated that he was "part of the answer to the U.S. terrorizing the Muslim nations and the Muslim people." "I want to plead guilty," he continued, "and I'm going to plead guilty 100 time over because until the hour the U.S. pulls its forces from Iraq and Afghanistan, and stops the drone strikes in Somalia and Yemen and in Pakistan, and stops the occupation of Muslim lands, and stops killing the Muslims, and stops reporting the Muslims to its government, we will be attacking U.S., and I plead guilty to that."

Shahzad faces up to life in prison for his acts. Sentencing is scheduled for October 5, 2010.

Tuesday, June 15, 2010

Plea Bargaining at the ICTY and ICC

I recently returned from a trip to The Hague, where I met with officials from the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC). As you might expect, plea bargaining was one of the significant topics of my discussions. In fact, I even had the opportunity to present some of my research research regarding plea bargaining to members of the ICTY.

Based on my discussions, it appears that the ICTY has fully embraced the concept of plea bargaining, even though the concept is prohibited by many of the jurisdictions from which its judges, prosecutors, and defense counsel originate. Why is this the case? For much the same reason it has dominated the American criminal justice system for decades - it saves resources and allows prosecutors the flexibility to reward those who would cooperate against higher level defendants.

In comparison, those at the ICC seemed less convinced that plea bargaining would be an often utilized tool in their arsenal. The reason for this reluctance, however, had less to do with an objection to the system itself and more to do with the unique mission of the Court. While the ICTY has indicted over 160 defendants during its existence, the ICC is still in its infancy. Further, the ICC seeks only to indict a handful of defendants in each case it investigates. According to those at the Court, because so few defendants are indicted with regard to each case, it seems unlikely any would be offered leniency in return for a plea of guilty. Should the ICC begin to indict more defendants in each case, however, the pressure to maximize resources and use lower level defendants to testify against higher level defendants might lead it down the same path as the ICTY.

It is interesting to see that despite a general discomfort with plea bargaining in many countries around the world, the international criminal law community has embraced the advantages of the system and has begun to make it a standard tool for utilization in international criminal tribunals.

Thursday, May 27, 2010

Southern Illinois University School of Law Hosts U.S. Deputy Attorney General Gary G. Grindler

Southern Illinois University School of Law was honored to host Acting United States Deputy Attorney General Gary G. Grindler earlier this month as its 2010 commencement speaker. SIU School of Law has created a web page regarding the event, which includes a podcast of the Deputy Attorney General's remarks. From the website:

“The Deputy Attorney General is the second highest official in the U.S. Department of Justice,” said Assistant Professor of Law Lucian E. Dervan, “and his responsibilities include not only advising and assisting the Attorney General in formulating and implementing Departmental policies and programs, but providing overall supervision and direction to all organizational units of the Department.”

Grindler, who grew up in St. Louis, MO, rejoined the Department of Justice in 2009 as deputy assistant attorney general in the criminal division before his appointment earlier this year by Attorney General Eric Holder to his current position.

Grindler received both his law and undergraduate degrees from Northwestern University, and is a former assistant U.S. attorney for the Southern District of New York and the Northern District of Georgia. Included in his numerous roles within the U.S. Department of Justice, Grindler also was principal associate deputy attorney general and counselor to the attorney general, and assistant attorney general in the civil division. He also represented then-President Bill Clinton in his official capacity during depositions in two independent counsel prosecutions arising out of the Whitewater investigation.

Prior to his latest return to the U.S. Department of Justice, Grindler was a partner at King & Spalding, LLP, focusing on issues including white-collar criminal defense, internal corporate investigations, money laundering and search warrant compliance, and the Foreign Corrupt Practices Act.

“I had the pleasure of working with Mr. Grindler when we were both members of the King & Spalding Special Matters and Government Investigations team,” said Assistant Professor of Law Lucian E. Dervan.

Dervan added, “Mr. Grindler has demonstrated a continual commitment to public service throughout his career, and it is fitting that a law school dedicated to serving the public interest would turn to an exemplary public servant to deliver its commencement address.”

Click here for the SIU School of Law web page and podcast.

Click here for an article on the event in The Southern.

Friday, April 23, 2010

NY Subway Terror Plot Suspect Pleads Guilty

CNN is reporting that Zarein Ahmedzay pleaded guilty today to terrorism charges stemming from his role in the al-Qaeda plot to conduct suicide bombings on the New York subway system in September 2009. The charges to which Ahmedzay pleaded guilty included conspiracy to use a weapon of mass destruction in the U.S., conspiracy to commit murder in a foreign country, and providing material support to a terrorist organization. According to federal prosecutors, Ahmedzay and another individual conspired with Najibullah Zazi, who earlier pleaded guilty to terrorism charges.

Ahmedzay listened intently in court and swiveled from side to side in his chair as the judge made sure he understood what entering a guilty plea meant. He responded that everything was clear to him and then stood up to make a statement detailing his role in the terror plot.

Ahmedzay started his statement with a quote from the Quran and ended with a message to Americans.

"I strongly urge the American people to stop supporting the war against Islam," Ahmedzay said. He added "I am thankful for myself that I did not do anything to harm anyone but fear someone else will do the same thing."

During Ahmedzay's hearing, prosecutors for the first time revealed the name of the two al Qaeda leaders who ordered the plot - Saleh al-Somali, head of international operations for al Qaeda, and Rashid Rauf, a key operative.

Guilty Plea in UNC Student Body President Killing - Defendant Avoids Death Penalty

The AP is reporting that Demario Atwater, one of the individuals accused of killing UNC Student Body President Eve Carson, pleaded guilty to federal charges on Monday, including carjacking resulting in death and kidnapping. The plea deal means Atwater will avoid the death penalty.

Eve Carson, 22, of Athens, Ga., was found shot to death in the middle of a Chapel Hill street in March 2008. She had been shot five times, including once in the head with a 12-gauge shotgun.

"While we deplore the evil and negligence that led to Eve's death, we agree with the U.S. Attorney's decision to accept the plea agreement," Carson's parents said in a statement Monday released by prosecutors. "We are very grateful for the dedication and hard work that have gone into the investigation and prosecution of this crime."

Atwater is scheduled to be sentenced on Sept. 23, and he still faces charges in state court along with Laurence Lovette, who was only 17 at the time of the killing and is ineligible for the death penalty.

Authorities believe Atwater and Lovette kidnapped Carson from outside her Chapel Hill home just before 4 a.m., stole her sport utility vehicle and took her to several ATMs, eventually withdrawing $1,400.

Carson's killing shocked the university community in Chapel Hill, outraged state lawmakers and highlighted problems within North Carolina's probation and parole system.

A state investigation found that Atwater was never placed under intensive probation — which can include mandatory curfews, weekly contact and warrantless searches — despite two court orders to do so, the first dating to a February 2005 conviction on a pair of felony charges. When Atwater later told officials he was living in Durham, Wake County probation officers didn't transfer his case there for more than two years.

Lovette pleaded guilty to misdemeanor larceny and breaking and entering just two months before Carson's death and received a two-year suspended sentence. He was then assigned to a Durham probation officer who said she was handling more than 120 cases even through she had yet to complete a basic training course. In the six weeks that followed, authorities in Durham arrested Lovette several times and charged him with nine crimes, including burglary, car theft, breaking and entering, and resisting arrest.

He was released after each arrest.

U.S. attorney Anna Mills Wagoner said Monday that the plea avoids the uncertainty and pain of a drawn-out trial and endless appeals.

"A life sentence in the federal criminal justice system means just that: life without the possibility of parole or early release," Wagoner said in a statement.

Wednesday, March 31, 2010

Supreme Court Rules that a Client Must be Informed of the Possibility of Deportation Before Pleading Guilty

The Supreme Court ruled today in the case of Padilla v. Kentucky (March 31, 2010) that an attorney with a client who is an alien charged with a crime has a constitutional obligation to inform the client that a guilty plea carries a risk that the client will be deported. The Court, however, did not decide whether the individual in this case had been prejudiced by the lawyer's failure to give that advice.

The opinion was written by Justice Stevens, with Justice Alito writing a concurring opinion, joined by the Chief Justice, and Justice Scalia dissenting, joined by Justice Thomas.

Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drug distribution charges in Kentucky. In postconviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla postconviction relief on the ground that the Sixth Amendment’s effective assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a "collateral" consequence of a conviction.

Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here.

Monday, March 22, 2010

A Plea Deal in China for Three Rio Tinto Employees?

The New York Times reports that three employees of Rio Tinto (the British-Australian mining giant) agreed to plead guilty in China Monday to taking bribes while working for the company. This case has received much attention as the arrests of the employees came just after Rio Tinto rejected a $19.5 billion investment deal from Chinalco, one of the biggest state-owned Chinese mining groups. The timing lead many to claim the arrests were orchestrated to punish the company.

Three employees of Rio Tinto, the British-Australian mining giant, agreed to plead guilty Monday to taking bribes while working for the company in China, making stunning confessions on the opening day of their three-day trial here.

The employees, including Stern Hu, a senior executive and Australian citizen, admitted to having received several million dollars in bribes, according to their lawyers. A fourth employee is also expected to plead guilty.

The proceedings were largely closed to the public, but the Australian consul general in Shanghai said that Mr. Hu — the focus of the case — had admitted in court Monday to receiving some of the $1 million in bribes prosecutors accused him of having taken while at Rio Tinto.

Mr. Hu and the three Chinese employees were detained last July in a high-profile corruption case that at the time rocked the global steel industry and strained diplomatic relations between China and Australia.

After nine months in detention, Mr. Hu and his three colleagues are on trial this week at the Shanghai No. 1 Intermediate Court, accused of having accepted about $12 million in bribes and also of having stolen commercial secrets from Chinese state-owned companies.

Each of the defendants could face up to 10 years in jail if they plead guilty to accepting bribes, one of their lawyers said.

In a statement after the opening day of the trial Monday, the Australian consul general in Shanghai, Tom Connor, said Mr. Hu had made “some admissions” and had acknowledged taking some of the money.

Zhang Peihong, a lawyer for another Rio Tinto employee standing trial, Wang Yong, said his client had agreed to plead guilty to accepting about $1 million in bribes — much less than the $10 million he is accused of taking...

The four employees were initially accused of espionage, which would have fallen under a tough Chinese state secrets law, and of causing China “enormous economic losses.” But in August, the four employees were formally charged with lesser offenses: bribery and stealing commercial secrets.

The trial focused only on the bribery issue Monday. On Tuesday or Wednesday, the court is expected to shift its focus to the commercial secrets charges.

Many Western executives doing business in China have said that they worried that the Rio Tinto employees — Mr. Hu, Mr. Wang, Ge Minqiang and Liu Caikui — might have been unfairly detained because of business disputes with government-owned companies and that other foreign executives could be targeted.

The timing of the case seemed ominous. Shortly before the July detentions, the Chinese steel industry association had complained about the skyrocketing price of iron ore and had criticized Rio Tinto and other foreign suppliers for a breakdown in contract talks on iron ore prices.

The detentions also came after Rio Tinto had scrapped plans to accept a $19.5 billion investment from Chinalco, one of the biggest state-owned Chinese mining groups.

Beijing has said that this was a criminal case and has pressed Australian officials and others to avoid “politicizing” the case. Yet because Australia is one of the leading suppliers of iron ore to China — iron ore worth billions of dollars and intended for the Chinese booming steel industry — the case has become a concern for the top leaders of both countries.

Legal experts said the July detentions and initial allegations that the four Rio Tinto employees were stealing state secrets had also suggested the government might have been using the case to punish Rio Tinto.

Western executives said they were alarmed because in the days after the detentions were announced last July, a spokesman for the Chinese Foreign Ministry had described the accused as spies, and the Chinese state-owned media published articles saying it was the Rio Tinto employees who were bribing government officials to get access to sensitive documents.

Yet in the nine months since the four were detained, the Chinese authorities have announced no other arrests of steel industry officials for bribing Rio Tinto employees or trading in government secrets.

Prosecutors reduced the charges to bribery and stealing commercial trade secrets after Australian and even American officials said they were concerned about the case and what it would mean for foreign executives working here.

Jerome Cohen, a professor at New York University and an expert on China’s legal system, says he is troubled by the closed nature of the proceedings Monday, and the government’s attempt to turn this into a bribery case.

“The first thing they did to quell foreign protests was to reduce it to trade secrets,” Mr. Cohen said in a telephone interview. “The second was to discredit the defendants in the eyes of their employers. It was a brilliant move. But there are a lot of unanswered questions. A bribe for what? What did they do for it? Was it with Rio Tinto’s knowledge?”...

The Right to Counsel And Plea Bargaining

The New York Times had an excellent article over the weekend regarding the right to counsel in a case where the defendant was encouraged to plead guilty to a felony that turned out not to be a felony at all. Below are some portions of the article, but the entire piece (which is well worth reading) can be found here.

... Everybody around Fort Edward knew Pat Barber, a fixture at the courthouse and a stepfather of two whose family owned a local tavern. He had been here all his life except for college in western New York and law school at Syracuse.

So there was not much in the way of vetting when he put in a cost-conscious bid to become Washington County’s chief public defender, a part-time position he added to his private practice of trial work, debt collections, wills and divorces. It was quickly settled. Beginning in 2006, he would get $50,000 a year and some rent for the office he had shared with a law partner who had recently died. “We have to have a good reason not to take the low bid,” said John A. Rymph, the chairman of the County Board of Supervisors.

There were plenty of good reasons, according to court records released last month. Mr. Barber, 49 at the time, had been reprimanded twice — in 2002 and 2005 — by the Committee on Professional Standards, the state group that disciplines lawyers, for neglecting cases. He had been struggling with depression for years. “On some occasions he had to leave the courtroom because of panic attacks,” a report from his psychiatrist said. “He had daily drinks to cope.” But the people reviewing the bids in Washington County knew none of that. The reprimands were confidential, though officials at the professional standards committee say they could have been released to a potential employer if Mr. Barber had signed a waiver. If, that is, anyone in Washington County had known to ask him to sign one.

Told recently about Mr. Barber’s history, Roger Wickes, the county attorney, said, “I would have assumed the board would have been concerned had they known about it.”

By the time Ms. Hurell-Harring made her trip across the state, Mr. Barber’s troubles were piling up. He had put $304,895.46 in checks for an auto-accident settlement into the file and never mailed them to his client, court records say. He kept telling another client he was finishing up some work related to her divorce. “I misled her as far as the progress of what was going on,” he testified later.

In a third private-practice case, a man appealed his rape conviction, claiming that Mr. Barber had failed to do basic things at the trial like question some important witnesses. In time, a divided appeals court ruled that “no legitimate trial strategy existed.” The week in October that he went to court for Ms. Hurell-Harring, Mr. Barber was being pursued on yet another file full of trouble. At the request of county officials, John R. Winn, a local lawyer, had been asking questions about two estates Mr. Barber was supposed to be handling that had been so neglected that two properties had been sold for unpaid taxes.

Mr. Winn started calling Mr. Barber, and eventually he turned over a carton with all his records on the two estates — dividend checks, tax bills and bank statements, all in their original envelopes. “I looked, and I said, ‘He’s never opened anything,’ ” Mr. Winn said. One of the women had died six years earlier.

In a long interview this month, Mr. Barber blamed his depression. “You just develop this nausea fear of a file and you would do anything to stay away from it,” he said. He argued that his problems had not affected his public work. But his psychiatrist, Dr. Koock E. Jung, said in another disciplinary case against him, in 2009, that his symptoms included “breaking out sweating, dizziness and shortness of breath, which affected his law practice seriously, especially his public defender’s job.”...

... At the county jail, Ms. Hurell-Harring was growing frantic as she waited nearly a month for her sentencing. She called Mr. Barber’s office every few days. Usually thesecretary said he was busy. When they did talk, she said, Mr. Barber told her she had no options.

On Nov. 8, 2007, the civil liberties union filed its class-action suit in Albany, mentioning Ms. Hurell-Harring’s contraband charge. A lawyer read it at the New York State Defenders Association, an organization that provides training and expertise to defense lawyers.

The lawyer, Alfred A. O’Connor, had been working for years on the very issue in her case: whether that small amount of marijuana should be defined as dangerous prison contraband, which could make her smuggling effort a felony, or whether it was ordinary contraband, a misdemeanor that might mean no jail time at all and none of the consequences that come with felony convictions.

Mr. O’Connor started calling Mr. Barber, too. “Good news,” he recalls saying when they spoke on Nov. 15, the day before Ms. Hurell-Harring’s sentencing. He told Mr. Barber that the state’s highest court was considering the contraband question. Defense lawyers had already laid out the very argument that could mean freedom for his client.

But Mr. Barber did not ask for a copy of the briefs. “There wasn’t any enthusiasm,” Mr. O’Connor said. Asked about this in the recent interview, Mr. Barber said had not wanted to bring up anything that could make prosecutors ask for a longer sentence.
The next day in court, Judge Kelly S. McKeighan noted that Ms. Hurell-Harring had admitted to the felony charge: promoting prison contraband in the first degree. Mr. Barber agreed, never mentioning that it might not be a felony at all.

“I just want to go home to my kids and my mother,” Ms. Hurell-Harring told the judge. Instead, she went back to jail, serving four months before she was released for good behavior. She left Washington County on Jan. 28, 2008, a convicted felon facing five years of probation.

Wednesday, March 17, 2010

Chicago Man to Plead Guilty in Mumbai Terror Attacks

According to Fox News, David Coleman Headley of Chicago is scheduled to plead guilty tomorrow in U.S. District Court with regard to his having scouted targets in Mumbai prior to the 2008 terrorist attacks that killed 166 and his having plotted to attack a Danish newspaper.

Headley pleaded not guilty in January to 12 counts, including six that charge a conspiracy to murder and maim people in India and provide material support to a foreign terrorist organization. The maximum sentence is the death penalty.

Headley's attorney, John Theis, said he and his client "have been in discussions with the government" and Thursday's action would reflect the results. He declined to comment further.

Randall Samborn, a spokesman for the U.S. attorney's office, also declined to comment.

Headley, 49, is accused of going to Mumbai to lay groundwork for the November 2008 rampage that the government blames on the Pakistan-based terrorist group Lashkar-e-Taiba. The group is antagonistic toward India because of a dispute over the territory of Kashmir.

FBI agents arrested Headley at O'Hare International Airport on Oct. 3 as he was about to board a plane for Philadelphia. The government says he was believed to be headed to Pakistan afterward to confer with collaborators.

Headley is accused of scheming to launch a terrorist attack on a Danish newspaper, Jyllands Posten, which in 2005 published a dozen cartoons depicting the Prophet Muhammad that were highly offensive to Muslims. That attack never happened. Three other men are charged along with Headley.

Chicago businessman Tahawwur Hussain Rana, 49, has pleaded not guilty to charges in connection with both the Danish cartoons case and the Mumbai attacks. He could be sentenced to life in prison if convicted of the most serious charges.

Two other men, retired Pakistani military officer Rehman Abdur Hashim Syed and accused terrorist leader Ilyas Kashmiri, also are charged in connection with the planned attack on the newspaper. Their whereabouts are unknown, although the indictment said Kashmiri has been in Pakistan's tribal areas, home to various terrorist groups.

Tuesday, March 9, 2010

Defendant in Letterman Extortion Case Pleads Guilty

The New York Times is reporting that Robert Haldermann, a CBS producer who was accused of attempting to extort $2 million from talk show host David Letterman, pleaded guilty today in State Supreme Court in Manhattan to second-degree attempted grand larceny. The plea agreement requires Haldermann to serve six months in jail, serve four and a half years on probation, and perform 1,000 hours of community service.

Mr. Halderman, an Emmy award-winning television producer, was accused of trying to extort $2 million from Mr. Letterman by threatening that he would make information about Mr. Letterman’s affairs public.

Mr. Halderman’s lawyer, Gerald L. Shargel, had argued that his client intended only to write a book or a screenplay about Mr. Letterman’s affairs, but that before going forward with the project, Mr. Halderman simply was offering to sell Mr. Letterman the rights to the story for $2 million.

Mr. Halderman is scheduled to be sentenced and go to jail on May 4. With good behavior, he could be released after as early as about four months.

“We raised some novel legal issues, novel defenses,” Mr. Shargel said by telephone after the court proceeding. “I couldn’t be at all certain that they would prevail. Weighing the risks against the rewards, I thought this was an opportunity to make the best of a bad mess.”

Outside the courthouse, one of Mr. Letterman’s lawyer read a statement from the CBS talk show host that thanked the Manhattan district attorney’s office.

“When they became involved with this case, I had complete faith that a just and appropriate result was inevitable,” the statement said. “On behalf of my family, I am extremely grateful for their tireless efforts.”

Daniel J. Horwitz, one of Mr. Letterman’s lawyers, added, “This is a serious sentence that properly reflects the crime he now admits he committed, and it brings this case to a fitting end.”

Friday, March 5, 2010

Imam Pleads Guilty in Zazi Terror Plot

Ahmad Afzali, an Imam linked to Najibullah Zazi, has pleaded guilty to lying to the FBI. According to the terms of the plea agreement, Afzali avoided a lengthy prison sentence, but he will have to leave the country.

The Miami Herald has a full report:

A tearful Ahmad Afzali told a judge in federal court in Brooklyn that he had wanted to help authorities in the investigation of the threat, but lied under grilling by the FBI about his phone conversations with admitted al-Qaida associate Najibullah Zazi.

"In doing so, I failed to live up to my obligation to this country, my community, my family and my religion," he said. "I am truly sorry."

Under the plea deal, Afzali faces up to six months behind bars at sentencing on April 8. It also requires the Afghanistan-born defendant to leave the country within 90 days after completing the sentence or face deportation.

Afterward, he told reporters, "I just signed my death sentence."

Afzali, 39, was arrested in September as federal authorities scrambled to thwart a plot by Zazi, a Colorado airport van driver who pleaded guilty last week to terror charges. Zazi admitted that he tested bomb-making materials in a Denver suburb before traveling by car to New York intending to attack the subway system to avenge U.S. military involvement in Afghanistan.

After the New York Police Department was alerted to the possible threat, detectives reached out to Afzali to gather information about Zazi and two other men the imam knew from a Queens mosque, Adis Medunjanin and Zarein Ahmedzay. Authorities say the former high school classmates traveled together in 2008 to Pakistan, where Zazi received explosives training.

"I had known them when they were boys, and did not think they were capable of serious crime," Afzali said in court. "I thought perhaps they had fallen in with the wrong crowd."

The imam said he told Zazi "that law enforcement authorities had been to see me about him. ... I told Zazi, 'Don't get involved in Afghanistan garbage and Iraq garbage. That's my advice to you.'"

At the time of the conversation, Zazi had already disposed of the bomb-making materials after a police stop on the way into the city. After the call from Afzali, he flew back to Colorado.

A few days later, under questioning by the FBI, Afzali said he panicked.

"I believed that the FBI was angry at me for calling Zazi," he said. "When I was asked whether I had told Zazi about law enforcement being interested in him, I lied and said I did not."

Tuesday, March 2, 2010

Cleric Plans to Plead Guilty in Zazi Matter

According to CNN, Ahmad Wais Afzali, a Muslim cleric and funeral director for the New York borough of Queens, will plead guilty today to making false statements to federal authorities regarding the investigation into Najibullah Zazi's plot to detonate bombs in the New York City subway system. For information regarding the Zazi plea agreement, see here, here, and here.

Ahmad Wais Afzali, Muslim cleric and funeral director from the New York borough of Queens, was among the first people charged in the alleged plot.

He is expected to plead guilty in federal court in Brooklyn, New York, on Tuesday afternoon, the source said. Afzali's defense attorney did not immediately respond to a call from CNN.

Robert Nardoza, a spokesman for the U.S. attorney in Brooklyn, declined to comment.

Afzali is charged in a four-count indictment. He's accused of lying about whether he tipped off Najibullah Zazi that the FBI had been asking questions. Zazi subsequently pleaded guilty to conspiring to detonate explosives in the United States.

Afzali faces a possible prison sentence of up to five years on each count and possible deportation.

Afzali's attorney, Ron Kuby, denied his client tipped off Zazi. He said Afzali knew he was being monitored and that he was trying to help investigators as they asked for information about Zazi.

News Outlets Seek Terror Plea Agreement

According to the New York Times, the AP and Newsday have asked a judge to make public a sealed plea agreement between the DOJ and Najibullah Zazi, the man who pleaded guilty last week to plotting to blow up New York City subways following the September 11 anniversary.

A federal judge sealed prosecutors' agreement with Najibullah Zazi, a 25-year-old former Colorado airport shuttle driver who pleaded guilty to terrorism charges this week. Zazi admitted hatching a plot to make homemade bombs and use them to launch a rush-hour attack.

Both Zazi's attorneys and prosecutors asked for the agreement to be sealed, said Robert Nardoza, spokesman for the U.S. attorney's office in Brooklyn. That request was also sealed.

Nardoza declined further comment Wednesday. Zazi's attorney, William Stampur, did not immediately return a message left Wednesday by The Associated Press.

In a letter to U.S. District Judge Raymond J. Dearie on Tuesday, Newsday reporter John Riley said a report that Zazi's relatives had been threatened with prosecution to persuade Zazi to cooperate with investigators was among the reasons the plea agreement should be made public.

He said the documents may contain information on any pressure applied to
Zazi.

''The court should not make itself complicit in keeping secret information that would allow the public to assess for itself the appropriateness of the tactics used and concessions made,'' Riley's letter said.

The AP joined Newsday's request Wednesday and said in a letter that the documents have to be made public ''absent findings that sealing is essential to protect some overriding interest, and even then any sealing order must be narrowly tailored in scope and time.''

Karen Kaiser, assistant general counsel for the AP, said, ''The public is entitled to see the plea agreement and the motion to seal in this case, which involves a U.S. citizen who admits to having been recruited by al-Qaida to commit violent crimes in his own country.''

Defense Company BAE Systems Pleads Guilty

The New York Times reports that defense company BAE Systems PLC pleaded guilty to conspiracy charges this week and was fined $400 million. The fine represents one of the largest in the DOJ's efforts to combat overseas corruption.

The defense contractor knowingly failed to ensure compliance with legal prohibitions on foreign bribery. The company's conduct impeded U.S. efforts to be certain international trade is free of corruption, said acting Deputy Attorney General Gary Grindler.

The gain to BAES was more than $200 million from false statements and failures to disclose information to the U.S. government, according to court papers in the case.
From 2000 to 2002, the company told the Defense and Justice departments that it would carry out compliance measures in accordance with anti-bribery provisions of the Foreign Corrupt Practices Act and with similar foreign laws.

According to papers filed in the case, BAES took steps to conceal from the U.S. government undisclosed payments to marketing advisers who assisted in securing sales of defense items, and the company failed to scrutinize its relationships with some of the advisers.

BAES paid some marketing advisers through offshore shell companies and encouraged advisers to establish their own offshore shell companies to receive payments from BAES, the papers added.

BAES admitted that it established one company in the British Virgin Islands to conceal marketing adviser relationships and to assist advisers in avoiding tax liability
for payments from BAES.

Under an agreement with the government to settle the case, BAE Systems will retain an independent compliance monitor in support of BAE Systems' stated commitment to substantial benefits to a foreign public official of operate in a transparent, honest and responsible manner.

Friday, February 26, 2010

Sixth Circuit Rejects Victims' Plea to Reject Corporate Plea Agreement

The Sentencing Law and Policy Blog has an interesting post regarding a recent 6th Circuit opinion that denied the victims' request that a corporate plea agreement be rejected. Below is a portion of the decision.

This petition for a writ of mandamus and a related appeal arise from the proceedings in United States v. Arctic Glacier Int’l Inc., No. 1:09-cr-00149 (S.D. Ohio). In that case, Arctic Glacier International was charged in a criminal information with violating 15 U.S.C. § 1 by participating in “a conspiracy to suppress and eliminate competition by allocating packaged-ice customers in southeastern Michigan and the Detroit, Michigan metropolitan area.” The petitioners describe themselves as “nine consumers and one business that paid too much for packaged ice as a result of Arctic Glacier’s offense” based on purchases both within and outside of the geographic area of the offense. Their civil action for damages is pending in the Eastern District of Michigan. In re Packaged Ice Antitrust Litig., No. 08-md- 1952 (E.D. Mich.). In these criminal proceedings, the petitioners claim to be victims of the crime under the Crime Victims’ Rights Act, 18 U.S.C. § 3771....

Whether these petitioners as indirect purchasers were “directly and proximately harmed” by the actions of Arctic Glacier is an issue that is largely beside the point, because we conclude that the district court afforded them the status of crime victims. That is, the petitioners were allowed a full opportunity for participation. That included their appearance through counsel at the arraignment, at the plea hearing, and at sentencing. The district court delayed a decision on whether to accept the guilty plea to allow counsel for the petitioners an opportunity to confer with government counsel. Counsel for the petitioners admitted at the sentencing hearing that upon their entry into the case, the district court had afforded them every opportunity for participation. Notwithstanding that active participation, the petitioners assert a right to an earlier notice prior to filing of the charges and direct involvement with the government’s negotiation of a plea agreement. The petitioners’ right to such notice is uncertain, and based on the record in this case, we do not find this to be grounds for relief in mandamus.

The petitioners disagree with the district court’s final decision, made after hearing from them on multiple occasions, to accept the plea agreement and impose sentence pursuant to that agreement. They object that the plea agreement makes no provision for restitution in deference to the pending civil causes of action. They seek through this petition to vacate the plea agreement, to direct the district court to reopen the proceedings, and to participate as a party to the renegotiation of a plea agreement that will include provisions for restitution in their favor. Although the Act reaffirms the right of crime victims “to full and timely restitution as provided in law,” it does not compel such a result in this case. Upon review, we cannot conclude that the district court abused its discretion in accepting the agreement. The record reflects a consideration of all appropriate factors. The district court reasonably concluded that the difficulty of determining the losses claimed would so prolong and complicate the proceedings that any need for restitution would be outweighed by the burden on the sentencing process.

Nadel Pleads Guilty in Ponzi Scheme

Arthur Nadel, founder of the Scoop Management hedge fund in Sarasota, Florida, has pleaded guilty to fifteen counts relating to his having run a Ponzi scheme. According to reports, Nadel disappeared for two weeks last year after authorities began investigating allegations that he had stolen money from his investors. Further investigation revealed that Nadel had raised over $350 million from 370 investors. While he informed the investors the fund's investments were returning double digit gains, the fund was actually losing money. Although investors were told the fund had over $360 million, it contained less than $125,000 at the time of its collapse.

According to an article from Bloomberg:

Florida money manager Arthur Nadel pleaded guilty to fraud 13 months after he disappeared for two weeks in January 2009 as state authorities began investigating investor complaints about missing money.

U.S. District Judge John Koeltl in New York accepted the guilty plea today. Nadel, 77, founder of Scoop Management Inc. in Sarasota, Florida, has been in custody since he surrendered in Tampa more than a year ago following his disappearance.

In April, prosecutors unsealed a 15-count indictment in New York alleging securities fraud, wire fraud and mail fraud. Nadel previously pleaded not guilty.

“I fabricated inflated rates of return for my trading activities,” Nadel told Koeltl in pleading guilty to all 15 counts. “I am profoundly sorry for what I have done.”
Nadel said he invented net asset values for the hedge funds he once ran and illegally
transferred money from them.

Each of the counts carries a maximum prison term of 20 years. Guidelines in the plea agreement call for a sentence of 12 years and 7 months to 24 years and 5 months, Koeltl said. The judge set a sentencing date of June 11. Nadel will remain in custody.

Nadel also agreed to forfeit $162 million, the amount his investors lost, according to
prosecutors.

“It was obvious that Mr. Nadel was very remorseful for what he did,” Mark B. Gombiner, his lawyer with the Federal Defenders of New York Inc., said after the hearing. “He accepted responsibility for what he did.”

Nadel allegedly raised more than $397 million from almost 250 investors during a 10-year period starting in 1999 in a classic Ponzi scheme. Withdrawals were covered by new money coming in, according to a lawsuit against investors brought by the funds’ receiver.

Nadel falsely told existing and potential investors that the funds were yielding from 11 percent to 55 percent a year, when in fact the returns were usually negative, according to court documents.

Investors were told the funds’ accounts had more than $360 million while less than $125,000 was actually available when the scheme collapsed, according to prosecutors. Nadel took in $63.9 million in fees and trading profits, including $45 million from 2005 to 2007, they said.

The money supported Nadel’s lavish lifestyle and allowed him to invest in businesses, including a real-estate project in North Carolina and his wife’s flower shop, prosecutors said.


Click here for the Wall Street Journal Law Blog article and here for the Bloomberg story. You can also read the plea agreement here.

Monday, February 22, 2010

Breaking News - Zazi Pleads Guilty in Plot to Blow Up Subways

The New York Times is reporting that Najibullah Zazi has pleaded guilty to terrorism charges after admitting to his involvement in a plot to blow up NY City subways.

He admitted that he came to New York around the anniversary of the Sept. 11 attacks to kill himself and others on the subway, to draw attention to the killing of Afghan civilians by the United States military.

Mr. Zazi appeared before Judge Raymond J. Dearie at Federal District Court in Brooklyn. He pleaded guilty to conspiracy to use weapons of mass destruction, conspiracy to commit murder overseas, and providing material support for a terrorist organization. He faces a sentence of life in prison...

Throughout the 45-minute proceeding on Monday, Mr. Zazi seemed unaffected by his circumstances, even smiling on several occasions. And when he spoke, he did so in an unapologetic, matter-of-fact manner.

“I would sacrifice myself to bring attention to what the United States military was doing to civilians in Afghanistan,” he said to the judge.

Mr. Zazi, who was born in Afghanistan and was raised in Pakistan and later Flushing, Queens, where he attended high school, was working as an airport shuttle driver in Denver when he was arrested in September 2009.

The federal authorities said he had received weapons and explosives training at a Qaeda camp in Pakistan, bought beauty products that contained the raw materials to build a bomb and traveled to Queens with bomb-making instructions in his laptop on the eve of the anniversary of the Sept. 11 attacks.

Breaking News - Zazi to Plead Guilty to Terror Charges

Numerous sources are reporting today that Najibullah Zazi, an Afghan immigrant labeled one of the most serious threats to the United States since the 9/11 attacks, has agreed to plead guilty to terrorism charges later today.

According to the New York Times, Zazi will appear before Judge Raymond J. Dearie at the Federal Courthouse in Brooklyn at 2:30pm to enter his plea to charges of conspiracy to detonate bombs in the Unites States.

Mr. Zazi, who was born in Afghanistan and was raised in Pakistan and later Flushing, Queens, where he attended high school, was working as an airport shuttle driver in Denver when he was arrested in September 2009.

The federal authorities said he had received weapons and explosives training at a Qaeda camp in Pakistan, bought beauty products that contained the raw materials to build a bomb and traveled to Queens with bomb-making instructions in his laptop on the eve of the anniversary of the Sept. 11 attacks.

Two people with knowledge of the case said that in recent weeks, Mr. Zazi had begun providing information to prosecutors as part of the initial stages of an agreement that led up to his expected guilty plea Monday.

Such an arrangement suggests that prosecutors believe Mr. Zazi can provide valuable information, including evidence about the plot, the involvement of others, including those who may be overseas, and other intelligence on Al Qaeda. A number of other people have been arrested in the case, including his father, his uncle and two of his classmates at Flushing High School. Those actions, including the filing of more serious charges against his father earlier this month, may have in some way influenced the decision to plead guilty, another lawyer suggested.

“I am aware that he is under intense pressure because of what’s happening,” the lawyer said.


Other sources reporting on the matter include Fox News and CNN.

The Zazi plea deal comes shortly after I blogged about my new article, Plea Bargaining in the Shadow of Terror. As described in that post, my article discusses the motivations behind terrorists who plead guilty. The Zazi case is reminiscent of the Richard Reid (aka The Shoe Bomber) case. Reid pleaded guilty in return for no leniency from the government. Rather than leniency, Reid was motivated by a desire to avoid the emotional and financial costs of a lengthy terrorism trial on his family. It appears Zazi may be motivated by similar forces. We will have to see, however, whether Zazi receives any sentencing benefits for him cooperation and agreement to plead guilty or whether he is simply attempting to avoid the costs of trial on himself and his family.

Monday, February 15, 2010

Professor Berman on a Comic Book Plea Deal

Over at the Sentencing Law and Policy blog, Professor Doug Berman has added some interesting comments about plea bargaining and sentencing differentials to the end of a blog regarding a man who pleaded guilty to violation of the 2003 Protect Act and was sentenced to six months in prison for importing and possessing Japanese manga books depicting illustrations of child sex and bestiality.

With regard to the decision of the individual to plead guilty, Professor Berman stated:
Because I am not a First Amendment guru, I have no strong sense of whether Christopher Handley's prosecution and conviction for importing the wrong kind of comic books from Japan should be considered constitutionally problematic. But, as a sentencing guru, I do have a strong sense that the threat of a much longer (guideline recommended?) sentence after any trial likely prompted Handley to plead guilty and to apparently forego whatever constitutional defenses he might have had available.

The Case Against Plea Bargaining

This is the title of an interesting article I found from the Cato Institute back in 2003. In the piece, Timothy Lynch argues that plea bargaining is unconstitutional. A link to the article is here, and a brief portion of the argument is available below.

Plea bargaining has come to dominate the administration of justice in America. According to one legal scholar, “Every two seconds during a typical workday, a criminal case is disposed of in an American courtroom by way of a guilty plea or nolo contendere plea.” Even though plea bargaining pervades the justice system, I argue that the practice should be abolished because it is unconstitutional...

Thomas Jefferson famously observed that “the natural progress of things is for liberty to yield and government to gain ground.” The American experience with plea bargaining is yet another confirmation of that truth. The Supreme Court unleashed a runaway train when it sanctioned plea bargaining in Bordenkircher v. Hayes. Despite a steady media diet of titillating criminal trials in recent years, there is an increasing recognition that jury trials are now a rarity in America — and that something, somewhere, is seriously amiss. That “something” is plea bargaining.

As with so many other areas of constitutional law, the Court must stop tinkering around the edges of the issue and return to first principles. It is true that plea bargaining speeds caseload disposition, but it does so in an unconstitutional manner. The Framers of the Constitution were aware of less time-consuming trial procedures when they wrote the Bill of Rights, but chose not to adopt them. The Framers believed the Bill of Rights, and the freedom it secured, was well worth any costs that resulted. If that vision is to endure, the Supreme Court must come to its defense.

Monday, February 8, 2010

New Article Regarding Plea Bargaining in Terrorism Cases

I have just posted my new article entitled Plea Bargaining in the Shadow of Terror: Plea Bargaining During the War on Terrorism and the Dual Chambers of the Plea Bargaining Machine on SSRN (link here). An abstract of the article is contained below.

ABSTRACT

While obtaining the exact number of defendants who have pleaded guilty to terrorism or terrorism related charges since September 11, 2001 is impossible due to the federal government’s refusal to release such information, it is estimated that there have been several hundred convictions of which over 80% resulted from a plea of guilty. While this plea rate for terrorism cases is certainly lower than the plea rate for other federal offenses, which on average has remained above 95% for almost every year since 1999, a plea rate in excess of 80% is remarkably high given the psyche of those who would engage in the acts being prosecuted. This article seeks to understand why a terrorist would plead guilty and, by the same token, why the United States government would offer leniency to an admitted enemy in the war on terrorism in return for such a plea. Through this analysis, a quarter century of plea bargaining theory will be reevaluated and the existing conflict between two competing theories of plea bargaining will be harmonized into a more encompassing theory that better explains the operation of the entire plea bargaining process.

This article is particularly timely as recently released information from the government indicates that the Christmas Day Bomber, Umar Farouk Abdulmutallab, is cooperating with the FBI and may be preparing to enter into a plea agreement. If this is true, this will serve as yet another example of the significance of plea bargaining in the American criminal justice system and the importance of further examination of its operation. Though this article focuses on terrorism prosecutions as a vehicle for exploring plea bargaining, the article’s proposed theory regarding the operation of the plea bargaining machine applies to all manner of criminal prosecution.

Friday, January 29, 2010

Rothstein Pleads Guilty in South Florida Ponzi Scheme

According to the Miami Herald, Scott Rothstein, a previously successful attorney, pleaded guilty Wednesday to running South Florida's largest ever ponzi scheme - estimated to total $1.2 billion. According to the Miami Herald:

Dressed in a tan prison jumpsuit and shackled at his ankles and wrists, the disbarred 47-year-old displayed no emotion as he acknowledged guilt for operating a massive Ponzi scheme that destroyed his law firm, damaged charities and drained the bank accounts of his investors and clients.

Rothstein, looking pale and gray, did not address the court, other than to answer yes or no to questions from the judge and say that he was taking medication for his cholesterol, blood pressure and anxiety. Rothstein's notorious misdeeds have been compared to those of the world's biggest Ponzi schemer, Bernard Madoff, convicted last year of running a $65 billion scam and sentenced to 150 years.

Prosecutors indicated more arrests were likely as they continue their investigation...

Rothstein, charged in December with five counts of racketeering, fraud and money laundering, faces up to 100 years in prison at his sentencing on May 6. But his ultimate sentence may later be reduced to the 30-year range for a few key reasons: He returned from a flight to Morocco in November just after the scandal broke, detailed his crime for federal authorities and named others who aided him or benefited from the illegal profits.

After his return, he pinpointed for authorities hundreds of homes, cars, jewelry, watches, businesses, bank accounts and other personal assets purchased with the tainted proceeds of the Ponzi scheme over the past four years. Authorities have seized about $60 million in Rothstein assets.

U.S. District Judge James Cohn told prosecutors seeking forfeiture of Rothstein's assets that his ``concern'' was returning as much money as possible to the ``innocent victims'' of Rothstein's scam.

Outside the courthouse, U.S. Attorney Jeffrey Sloman made it loud and clear there are other suspects who could be arrested in the coming weeks and months.

``This is the first step in bringing closure to a $1.2 billion Ponzi scheme,'' Sloman said. ``Rest assured that we are not done, and rest assured that we intend to follow every lead and bring to justice those who helped perpetrate this $1.2 billion Ponzi scheme.''...

According to a ``statement of facts'' filed with Rothstein's plea agreement, the former attorney used his law firm as a front to perpetuate his scheme of selling phony legal settlements to investors to sustain himself and the firm.

One critical section reads: ``Defendant Rothstein and other co-conspirators utilized funds obtained through the `Ponzi' scheme to supplement and support the operation and activities of RRA, to expand RRA by the hiring of additional attorneys and support staff, to fund salaries and bonuses, and to acquire larger and more elaborate office space and equipment in order to promote the ongoing scheme and to enrich the personal wealth of persons employed by and associated with RRA.''

Rothstein co-founded Rothstein Rosenfeldt Adler in 2002 and transformed it into a 70-attorney operation. He was disbarred in November after the scandal became public over Halloween weekend.


The Wall Street Journal Law Blog also has a piece on the matter.

The use of money from a ponzi scheme to build and run an apparently successful law firm is reminiscent of the events surrounding the fall of Marc Dreier. For previously articles from the Plea Bargaining Blog about Dreier, see here and here.