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.