Flipboard Spotlight | White Collar | Nice Tie.

Flipboard

Flipboard

You may use Flipboard as a nifty way to organize news and media in which you have an interest.  (If you don’t use Flipboard, try it).

For mysterious reasons, Flipboard decided to do a “spotlight” on me as a “Magazine Maker.”  (“Magazines” are the way you organize stories in Flipboard).  Here is the story: Attorney and White Collar Wire Blogger Jack Sharman

Nice tie.

Nice tie.

My name is Jack Sharman. I’m a lawyer who blogs at White Collar Wire about white-collar criminal defense, crime fiction, cocktails and theology.

My love of narrative led me to all of those topics. Juror, reader, drinker, sinner: everyone needs a good story.

I use Flipboard “inbound” as a newsfeed and “outbound” as an aggregator of articles, blog posts and news items. I have six magazines. They range from the professional (White Collar) to the curious: Noir, for example, is an offshoot of Crime Fiction.

The first article I flipped was an article in The New York Times about the SEC (the market regulator, not the real SEC).

My favorite topic on Flipboard is white-collar crime and government investigations, but I also spend time with film noir and literature, nice resorts and lacrosse.

The best article I’ve read all week was about the jury in the Etan Patz murder trial. I know little of the record in the case, but the jurors in their post-trial interview demonstrated remarkable respect for the process and for each other.

A magazine I found on Flipboard that’s made my life better? I can’t say that any magazine has made my life “better,” but I reflect on the images in Abandoned But Not Forgotten (Gianni Mazzetti), a collection of photographs of abandoned houses, businesses, factories and other structures. It’s like Ecclesiastes for social media.

My media diet consists of Twitter lists, Tumblr, ESPN and work-pertinent blogs such as 500 Pearl Street (Walt Pavlo), White Collar Watch (Professor Peter J. Henning) and White Collar Crime Prof Blog (Professors Ellen S. Podgor and Lucian E. Dervan, and defense lawyers Lawrence S. Goldman and Solomon L. Wisenberg).

Other hits: Rap Sheet (J. Kingston Pierce) (crime fiction), Mockingbird (culture and the theology of grace), Gastronomista (Emily Arden Wells) (cocktails), About Last Night (Terry Teachout and the arts) and After Deadline (Philip B. Corbett) (writing style, usage and grammar from the New York Times). The Daily Office Lectionary, an app that tracks the Anglican cycle of prayer, is a useful tool for early morning meditation and prayer, as is the ESV Bible app. Music comes from Soundhound.

A unique productivity tip of mine is to drink no coffee and review no email before reflecting on what is actually important, rather than what the world tells me is important. (I’m not sure how “unique” that tip is, but it works better than the alternative.)

Here are the magazines I curate.  Follow any (or all).

View my Flipboard Magazine.

View my Flipboard Magazine.

View my Flipboard Magazine.

View my Flipboard Magazine.

View my Flipboard Magazine.

View my Flipboard Magazine.


Lessons From An Ex-Congressional Lawyer

Almost two decades ago, I learned several lessons as a Congressional lawyer, some more useful than others.  Here is a 59-second summary of the better lessons.

Let’s go over a few more lessons that might be useful, should you or your client be summoned to appear before a House or Senate Committee.

The Lessons of Congressional Peculiarities

A document request or interview demand from Congressional investigatory staff could be a one-time, narrowly-focused inquiry or part of a complex investigatory broadside – involving simultaneous civil, criminal and congressional investigations into a company (or its employees) or even an entire industry.  Examples in recent times include antitrust, food-and-drug, environmental, financial and corporate-governance investigations, as well as executive-branch oversight hearings such as Benghazi.  Counsel should be aware of their evidentiary impact.  In particular, he or she must move aggressively to limit the adverse impact of discovery produced in one forum on other proceedings.  Given the scope of Congressional investigatory power, however, this task can be difficult.[1]

Where the only two competing interests are simultaneous civil and criminal proceedings, of course, it is not uncommon for defendants to seek a stay of the civil proceedings – often with the express or implied agreement of the government – until resolution of the criminal action.

Where the third competing investigatory interest is Congress, however, the picture becomes less clear.  Although not without limits, legitimate Congressional investigatory authority reaches any matter on which Congress can legislate.  For separation-of-powers reasons, courts are reluctant to address claims of Congressional investigatory overreaching, at least absent a clear due process problem.  Thus, counsel will not be able to enjoin a Congressional subpoena, for example, or impose upon the committee a protective order for his or her documents.[2]   Counsel’s greater chance of success lies in persuading committee counsel or staff that the scope of document requests or subpoenas can be narrowed such that the client’s interest is protected while still allowing the committee to carry out its function.  Counsel should also seek alternative discovery mechanisms, such as allowing committee staff to review documents first, without actually taking possession of them.

 

Congress and Privileges

Although the Congress respects constitutional privileges (e.g., the Fifth Amendment privilege against self-incrimination), it does not officially recognize common-law protections such as the attorney-client privilege or the work-product doctrine.  Rather, many committees will often take the position that recognition of such privileges is discretionary with the committee.  As a practical matter, however, committee counsel and staff will often accept a well-grounded privilege claim.  See generally Note, The Attorney-Client Privilege in Congressional Investigations, 88 Col. L. Rev. 145 (1988).  Companies that are the target of major parallel investigations will often waive common-law privilege, either to show good faith and cooperation, or as part of a settlement with the government.

Very '90s.

Very ’90s.

Unlike a criminal defendant, a witness before a Congressional committee cannot refuse to testify altogether, but  must rather invoke the privilege in response to specific questions.

 

Alien Environment

For most civil or criminal litigators, a Congressional investigation is an alien environment.  Although there are House rulesHouse committee rules, Senate rules and Senate committee rules, there are no reassuring guideposts, no analogs to the Federal Rules of Evidence or of Criminal or Civil Procedure.  From a litigator’s perspective, rule number one is that there are few rules.  The issue is one of control: unlike the civil litigation context, the congressional forum is one in which you are likely to be buffeted by forces that are largely beyond your control.

Done before lunch.

Done before lunch.

The fact that there appear to be no rules in a congressional investigation underscores perhaps the primary fact that counsel should bear in mind: the committee’s investigation takes place in a political environment, not a litigation environment.  Although the investigatory process appears legalistic, it always unfolds in a political environment in which the actors have political goals that may or may not have anything to do with your client.

The political environment will demand several things of counsel, some of them inconsistent.

 

The Personal and the Political

Congressional investigations are not monolithic.  They are often highly personalized between Members; between the majority and minority parties; between staffs; and between committees with potentially overlapping jurisdictions.  Counsel should therefore remember that he or she is dealing with individual people rather than the institution of “Congress.”

Counsel may be proud of his or her “Rambo” litigation style, a style that unfortunately is often successful in a world of uniformly applied rules, broadly-construed discovery standards and tolerant judges.  In the Congressional forum, however, committee counsel and staff usually possess near-plenary authority that they exercise with considerable discretion.  Even when they do not make the rules, they apply them, and they will be rarely overruled by their Chairmen solely on the complaint of a private party.

Looking for the flamethrower?

Looking for the flamethrower?

Thus, counsel should be firm, and be aggressive where necessary, but be polite to committee counsel and staff, both majority and minority.  Brendan Sullivan’s virulent, scorched-earth defense of Oliver North during the televised Iran/Contra hearings is the exception that proves the rule: in addition to the fact that Colonel North as a client offered his lawyers advantages and disadvantages peculiar only to Colonel North, Sullivan made a considered tactical decision that high-profile aggression was the appropriate tack in that particular public theater.  You may reach the same conclusion, but do not do so reflexively.

 

Learn the Context of the Investigation

As soon as you or your client is contacted, attempt to gain as much information as possible about the investigation in general and your client in particular.  The first and most obvious source should be your client and your client’s documents.  In addition, unlike grand jury investigations, Congressional investigations do not remain secret for extended periods.  In additional to national media, Washington specialists such as National JournalRoll Call and The Hill can provide useful background on personal and political dynamics.

 

Be Proactive at the Outset

Be proactive with committee counsel and staff.  Although you may determine later for strategic reasons that it is wiser to lay low (or be recalcitrant), a sound initial approach is to act promptly and to attempt to understand the individuals and issues involved.  Ask lots of questions.  What is the subject of the investigation?  How long has it been going on?  How long might it last?  Are any other committees or subcommittees looking at the same issue?  Is the Executive Branch (the Department of Justice or the regulatory agencies) looking at the same issue?  Is the committee headed towards hearings?  Has a date been set?  Is the investigation a bipartisan inquiry?  Minority only?  Majority and minority, but working separately?

Delete.

Delete.

Such information is valuable in determining if you are facing a full-blown, formal committee investigation or a preliminary (and perhaps unsanctioned) probe by a curious, bored or ideologically-driven staffer.  If the latter, you have an opportunity to slow down or stop the inquiry before it gathers steam.  You may be able to accomplish this goal by direct persuasion, simply convincing the staffer that there is “no there there.”  The political opposition on the committee may have an interest in stopping the investigation, or bending it to their own ends, and it will usually be in your client’s interest to consult with staff or counsel for the other party.  Thus, make every effort to find out the names of the committee lawyers or staffers in charge of the investigation (both majority and minority).  For the same reason, if the executive branch appears to be involved, identify the relevant lawyers from the Department of Justice or the regulatory agencies.

 

Why My Client?

You must then attempt to determine your client’s role in the investigation — or, more precisely, the committee’s perception of your client’s role.  Why is your client involved?  How did his or her name come up?  If the request is for an interview or deposition, ascertain the subject areas to the extent staff is willing to describe them.  What are the ground rules, if any?  Is there a House or Senate resolution concerning the investigation?  You should request a copy of such a resolution, if any, as well as a copy of the committee’s rules.  A committee cannot exercise authority it does not have.  Although committee authority is often broad, resolutions and rules define authority and offer counsel opportunities to exploit.  A careful examination of these materials will yield a better understanding of the procedural and substantive protections available to your client, and thus will help you make strategic decisions (for example, whether you should participate voluntarily or only by subpoena; whether the staff deposition to which your client is being asked to submit is formally authorized; whether or not the committee intends to grant witnesses immunity).[3]

 

Hearings

And the Congressional livin' is easy.

And the Congressional livin’ is easy.

We are in the summer months.  We have written before about  summer hearings:

As a former oversight-and-investigations lawyer for a House committee, I can testify: summer is the high season for O&I hearings.  Nothing is going on legislatively, O&I hearings don’t require lobbyists or constituents, it is hot as hell but most House and Senate hearing rooms have good air-conditioning these days and, if you get some hearings under your belt in June and July, you’ll have plenty as a Member to talk about in your district or state.

Because most people are familiar with Congressional investigations only through television, they assume that if they are caught up in an investigation they will be summoned to testify before a committee like John Dean or Oliver North, with cameras clicking amid vigorous partisan drama.  Although your client may indeed be called to testify in a public hearing — and you should prepare as though your client will be called — it is more likely that constraints of time, the demands of the media, and political pressure and compromise having little to do with your client will result in your client never being called.  If your client testifies, remember that in many instances the committee members’ “questions” are not actually designed to elicit information from the witness.  Rather, questioning is often more like speech-making designed to maximize camera time on the questioner or to score political points against the opposition.

This practice is particularly prevalent in the House, where Members must usually follow the “five-minute” rule, which limits an individual Member’s questioning to that period of time.  Your client should expect frequent interruptions; indeed, it is a somewhat rare occasion under the five-minute rule when a witness is actually able to complete an answer.  There is no judge present to whom the witness can appeal, nor should you expect the chairman to step in.  In the face of such grandstanding, a witness’s only remedies are his or her opening statement, and potential softball questions from friendly Members.

Whether or not your client’s interests are best served by testifying, you should consider what steps you need to take (1) if he is called and (2) if he is not called.  For example, many committees require several hundred copies of a witness’s prepared or opening statement, and they must be delivered usually 24 hours in advance of the witness’s appearance.  What do you want to put into the opening statement?  What are other witnesses saying in their opening statements?  If your client is not called, is the opening statement something you can provide to the press as a release?  Do you have a media package ready, whether or not your client testifies?  Have you confirmed with staff where you can sit during the hearing?[4]   These are all questions you should consider carefully well in advance of the hearing day.

 

Clean Up and Post-Mortem

Whether or not your client is involved in high drama, do not forget the details at the end.  Your client should review and correct testimony where permissible.  If you have reached any sort of confidentiality agreements with counsel and staff (e.g., redacting personal information out of documents or deposition transcripts prior to their publication), you should confirm your understandings in writing.  You must also look ahead.  Will there be additional investigations, perhaps by other committees or in the other legislative chamber?  Has this investigation had an effect on any civil or criminal proceedings against your client?  Have you been made aware of new sources of documentary or testimonial discovery that can help or hurt your client?  Careful planning and professional flexibility at the end of the congressional investigatory process are just as important as they are at the beginning, and will serve your client well.

 



[1]Congressional investigatory power is “as penetrating and far-reaching as the potential to enact and appropriate under the Constitution.”  Barenblatt v. United States, 360 U.S. 109, 11 (1959).  Congress can enforce its investigatory will through, among other means, the contempt power.  The congressional contempt provision, 2 U.S.C. Section § 192, provides that

 

[e]very person who having been summoned as a witness by the authority of either House of Congress . . . to produce papers upon any matter under inquiry before either House . . . willfully makes default . . . shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 and imprisonment in a common jail for not less than one month nor more than twelve months.

 

Under this provision, “willfulness” refers to intentional conduct, United States v. Bryan, 339 U.S. 323 (1950), not bad faith or moral turpitude.  Braden v. United States, 365 U.S. 431, 437 (1961).  Neither mistake of law nor advice of counsel excuses a violation of the statute.  See Sinclair v. United States, 279 U.S. 263, 299 (1929) (advice of counsel); Watkins v. United States, 354 U.S. 178, 208 (1957) (mistake of law).

For an exhaustive bibliography of Congressional investigations, look here.

    [2]A witness who believes that a subpoena is defective (for example, that it was issued beyond the committee’s authority, or that it violates the witness’s constitutional rights) has limited avenues of recourse.  Essentially, the witness must refuse to comply; be cited for contempt; and raise the objection as a defense in the contempt proceeding.  See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503-07 (1975) (the Speech or Debate Clause raises “an absolute bar to judicial interference” with a Congressional subpoena).

    [3]In the Whitewater investigation during the 104th Congress, for example, the Senate Special Committee to Investigate Whitewater and Related Matters operated pursuant to a relatively comprehensive Senate resolution that authorized funding for the investigation, including staff; set out the subject matter of the inquiry; and described discovery authorities and procedures.  The House Banking Committee operated pursuant to no special resolution but rather relied on its delegated oversight authority.

    [4]Many committees do not allow lawyers to sit at the witness table or even to speak during the hearing, except to counsel the witness as to his or her constitutional rights.  See, e.g., 108th Congress, Rules of the House of Representatives (January 7, 2002), Rule XI 2(k)(3) (“Witnesses at hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights.”)  This protocol places a high premium on thorough witness preparation prior to the hearing.


FIFA Indictments and the Notion of Global Compliance

Well played?

Well played?

In an article by Joel Schectman for the Wall Street Journal and its “Morning Risk Report,” Jack Sharman is interviewed about the idea of a global compliance regime in light of the recent indictments of FIFA officials:

Jackson Sharman, a white collar specialist at Lightfoot, Franklin & White LLC, says that the case shows that the notion of a swelling, global compliance culture may be exaggerated. Attorneys and compliance professionals often make the mistake of believing their concerns about bribery are representative of the organizations where they work, he said. “It’s dangerous to assume that a legal regime is being internalized by everybody, because clearly it’s not,” Mr. Sharman said. “Assuming that others think the same way as you think can be fatal.”

Read the full article here: The Morning Risk Report: FIFA Allegations Shows Old School Bribery Lives On

Compliance drill.

Compliance drill.

There will doubtless be much fodder for discussion in the FIFA cases — bribery, FCPA, jurisdiction, cooperation and many more issues — but here here is a good place to start.


Barry Bonds, Ramblin’ Man

The federal appeals court in San Francisco recently reversed baseball player Barry Bonds’s conviction for obstruction of justice.

Grand jury slugfest.

Grand jury slugfest.

The criminal charge and conviction arose out of testimony that Bonds gave to a grand jury investigating the illegal provision and use of steroids in major league baseball.  As the Ninth Circuit Court of Appeals summarized it:

During a grand jury proceeding, defendant gave a rambling, nonresponsive answer to a simple question.  Because there is insufficient evidence that Statement C was material, defendant’s conviction for obstruction of justice in violation of 18 U.S.C. 1503 is not supported by the record. Whatever section 1503’s scope may be in other circumstances, defendant’s conviction here must be reversed.

Why is this decision relevant to corporations, their employees and their lawyers?

Interview

In interviews by government agents, in grand jury testimony led by prosecutors or in testimony at trial, a witness gets a lot of bad questions and gives a lot of bad answers. “Bad” answers are not necessarily untruthful. They may be vague; or not responsive to the question; or simply an observation made into the air in order to fill the silence.

Even well-prepared witnesses fall victim to this syndrome. Invariably, they fail to (a) listen to the question; (b) answer the question; and (c) stop. If it’s incomprehensible question, they fail to ask for a new question.  If it’s a question they don’t like, they answer some other, unasked question.

This problem is particularly acute with business people. In general, business people are compensated for having answers to questions and solutions to problems. To respond “I just don’t know” or “I don’t get your question” is not well received in commerce. Business people are trying to do a deal and “get to yes.”  ”Yes” is not the place that agents, prosecutors and regulators seek. (At least, not that kind of “yes.”)

Sharp haircuts, dull questions.

Sharp haircuts, dull questions.

We have discussed here and here  and here the do’s and don’t's of interactions with government agents.  In particular, do not fall prey to the Efrem Zimbalist, Jr. syndrome.

That lesson is worth repeating:

“Government Agents,” a Lightfoot140 by Jack Sharman. from LFW on Vimeo.


The Old College Try, and The New College Tribunal

Or you'll get a preponderance-of-the-evidence disciplinary hearing.

Or you’ll get a preponderance-of-the-evidence disciplinary hearing.

In disciplinary proceedings involving claims of sexual assault, universities continue to find themselves in an intolerable situation, caught in a lawyer-triangle of the Department of Education’s Office of Civil Rights, student-complainants and the student-defendants.

In part, at least, as a result of OCR’s “Dear Colleague” letter to colleges and universities about Title IX and disciplinary proceedings, there has been an upsurge in reported instances of sexual assault on campus.

At the same time, there has been a sharp increase in lawsuits brought by student-respondents (that is, the male students who are accused), as this Wall Street Journal article details:  In Campus Rape Tribunals, Some Men See Injustice.

The scenario set out in the Journal article has become common, and one troubling from a due-process standpoint:

Last spring, Duke University expelled Lewis McLeod, a senior, for allegedly sexually assaulting a freshman woman in his room after meeting at a bar.

The woman had told Durham police Mr. McLeod had sex with her when she hadn’t wanted to. He said it was consensual. Police investigated but didn’t charge him.

A Duke University disciplinary panel didn’t find he gave her alcohol or used force. But the panel concluded it was “more likely than not” the woman didn’t agree to sex and was too intoxicated to consent. Regarding a degree, Duke lawyers later said: “Mr. McLeod is not entitled to that honor.”

Two weeks before he was to graduate, he became the first student Duke expelled for sexual misconduct under a new university policy.

Mr. McLeod, 24 years old, is suing Duke for his diploma, arguing the university unjustly made him an example to show a get-tough approach. “I believe that I’m wrongfully accused,” he says. “I believe that it was an unfair process and I believe I had something I earned taken away from me.”

His case is part of a broad and rapid change in how U.S. colleges and universities deal with sexual-assault allegations. Campuses have rewritten policies to lower the burden of proof for finding a student culpable of assault, increasing penalties—sometimes recommending expulsion. In the process, schools find themselves in legal minefields as they try to balance the rights of accuser and accused.

We have written about this issue before: Title IX, University Discipline, Sexual Assault and Parallel Proceedings.

Prelude to a parallel proceeding.

Prelude to a parallel proceeding.

Here is a slightly longer piece: Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education.  Last year, we pointed out that:

Not surprisingly, most universities have proven themselves more adept at dealing with “academic” infractions then with “conduct” issues.  With the advent of coeducation and then a more culturally diverse (and potentially more fractious) student, faculty and staff composition, the proficiency gap between academic-related discipline and conduct-related discipline, in many instances, grew more pronounced.

Back in 2011, the federal Department of Education’s Office of Civil Rights issued a “Dear Colleague” letter on the subject of campus sexual assault and how, under Title IX, OCR expects colleges and universities to handle claims of sexual assault. More recently, a White House summit on campus sexual assault; a number of high-profile lawsuits and OCR investigations; and new congressional legislative interest have all conspired to mean that colleges and universities ignore the “Dear Colleague” situation to their peril.

Given the infamous “rape” case against Duke lacrosse players, one would think that Duke would take a more thoughtful approach to these matters, but things seem otherwise.  If one has any doubts about the university’s conduct in that matter, watch the 60 Minutes piece about Mike Pressler, the Duke lacrosse coach whom the university forced to resign.


White-Collar Felon Registries, Hester Prynne and The Drive-By Truckers

No white-collar recidivism here.

No white-collar recidivism here.

Although one must admire the historicist sensibilities of a state legislature that just reinstated the firing squad  as a methodology for execution, the Utah legislature’s passage of a bill to create a white-collar crime registry modeled on sex offender registries is unwise where it is not silly.

As a New York Times article notes:

With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society.

Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than an M.B.A. or a law degree.

Their faces will soon appear online courtesy of the Utah Legislature, which on Wednesday approved a measure to build the nation’s first white-collar offender registry, appending a scarlet letter of sorts on the state’s financial felons. The registry — quirky even by the standards of a legislature that this week reinstated firing squads as a method of execution — will be replete with a “a recent photograph” of Utah’s white-collar offenders and, in case they try to run or hide, their “date of birth, height, weight, and eye and hair color.”

What are the issues here?
Lillian Gish (1893 - 1993) as Hester Prynne, white-collar felon.

Lillian Gish (1893 – 1993) as Hester Prynne, white-collar felon.

First, a white-collar registry would be “scarlet-lettering” without an offsetting benefit.  Politically satisfying, perhaps, but it is a “pitchfork” approach that upends proportionality and other counterweights that prevent a criminal justice system from turning into an inquisitorial system.  (We have written about pitchfork mentalities before: Stalking Horses, Pitchfork Crowds, Narrow Neckties, Mr. Rogers’s Slippers and Indicted Employees: 6 Steps To Dodge Being Deweyed and  Why Innocent People Plead Guilty: Judge Rakoff, Eddie Coyle, Albert Camus and Sweet Dreams of Oppression).

On the subject of The Scarlet Letter, consider Hawthorne and the core meaning of the story, which is about confession and redemption rather than legalism’s unforgetting (and unforgiving) recollection of sin.
With regard to “unforgetting,” a registry is  the inverse of the “right to be forgotten” movement, as represented by a recent Eurpean Union case.  Consider this from a Mockingbird article, Divine Memory and The Right to Be Forgotten:
In Hawthorne’s Scarlet Letter, protagonist adulterer Hester Prynne is saddled with a big red letter “A” to be worn on her chest at all times. The letter acts as a shaming reminder to the greater community to keep their sexuality in line. While Hawthorne goes on to make Hester a dignified example of the power of confession, top hits of Google searches aren’t unlike a big letter “a” for many whose mistakes just won’t go away. Identity is at the core of both stories . . . .  Should a foreclosure 16 years ago be part of the plaintiff’s identity? Who gets to control the ever-important first impression- the politician on his rebound or the Google search?
I've got my eye on you.

I’ve got my eye on you.

 

Second, a registry is most justified when there is a substantial body of evidence that offenders are very likely to recidivate; where the victim-population is peculiarly and legally unable to protect itself; and where the harm is not meaningfully compensable.  Sexual depredation of children satisfies these criteria, and thus we see widespread legal and cultural acceptance of sex-offender registries.

 

Although the data is mixed, white-collar felons, like nonviolent offenders in general, have a relatively low rate of recidivism.  Further, white-collar offenders commit money-crimes, and money-remedies are available if the offender is solvent (admittedly, sometimes a big “if”).

He's made his list, he's checked it twice and now it's on the internet.

He’s made his list, he’s checked it twice and now it’s on the internet.

Third, are citizens of Utah, like minors, peculiarly unable to be clothed with legal rights and responsibilities?  Paternalism may have its place, but here? The legislative assumption seems to be that Utahans in general and Mormons in particular are so naive or insular that they need to be protected from themselves.  Or, in the words of a Guardian (UK) article: Utah creates white-collar crime registry to protect ‘trusting’ Mormon population.

What next? Hasidic Jews? Southern Baptists? Episcopalians?  (The last denomination is unfair. I have no data on the subject, but anecdotal evidence suggests that many of the most temporarily successful white-collar offenders are, in fact, Episcopalians).
Fourth, the Utah Attorney General claims that white-collar crime is “epidemic” in Utah.  Again, from the Times:
“White-collar crime is an epidemic in Utah,” said Sean Reyes, the state’s attorney general who formulated the idea for the registry when he was a defense lawyer, “representing some of these bad guys.” A former mixed martial arts fighter who has a metal plate lodged in his eye socket from a basketball injury, Mr. Reyes noted that while violent crimes were devastating, many “physical wounds heal,” whereas white-collar crimes “can forever deplete your life savings.”
A handful of large dollar loss offenses do not an “epidemic” make.  According to the United States Sentencing Commission, fraud offenses account for only 5.2% of federal inmates — less than firearms offenses (18%) or pornography and prostitution (5.7%), and a figure dwarfed by drug offenses (51%).  The Bernie Madoffs of the world grab eye-popping dollar headlines, but the median loss in fraud offenses committed by offenders in the federal prison population is $696,295 — not a small sum, but a figure which is likely driven misleadingly high by Madoff-like numbers.  Even if it there were an epidemic, the solution is carefully crafted, clear laws that criminalize wrongful activities in a manner consistent with commonly accepted norms in Anglo American criminal law history.

A challenge getting to the keyboard.

A challenge getting to the keyboard.

Fifth, there is no reason to expect that the registry will provide any particular deterrence.  If the prospect of prison, financial ruin, loss of reputation, bankruptcy, dissolution of family, loss of law or CPA licenses, and debarment from federal contracting does not dissuade a bad actor, being put on a website will have little effect.

 

 

 

 

Law should be just, or it is not law, but on occasion it should be tempered with mercy, as the Drive-By Truckers point out in Mercy Buckets:

 


The Drinking Reader, Our Cocktails Magazine, Tom Jones and Other Weekend Matters

Cocktails on Flipboard.

Cocktails on Flipboard.

White Collar Wire supports cocktails.

As part of that effort, I have a magazine on Flipboard called (helpfully) “Cocktails.”  Follow here, read on and use good ice.

Two items we focus on — books and cocktails — come together in How to Build a Solid Drinking Library, by New York Times writer (and bartender) Rosie Schaap:

Are there places I like as much as great bars? Yes: great bookshops. And if I had to pick a favorite in the latter category, it’s Dog Ears Book Barn in the little town of Hoosick, N.Y. Conveniently, it’s just a little ways down Route 7 from the Man of Kent, one of America’s best bars. A couple of hours spent digging through Dog Ears for treasure, then bringing those books to the Man of Kent and perusing them over a few pints for a few more hours? That’s what I call a perfect day.

Read the entire piece here.

All you need (courtesy of Gear Patrol).

All you need (courtesy of Gear Patrol).

On the subject of cocktails, absinthe has made a comeback, as shown in Gear Patrol‘s piece on How to Drink Absinthe Like a Gentleman.

Absinthe’s history mirrors the way it’s meant to be prepared: a mix of the misunderstood and the legitimately unusual. For most of its existence, the spirit has been slandered, ostracized and, in rarer cases, revered. It’s been dragged across borders, masqueraded as other liquors, aspersed with hallucination claims and — since its ban was lifted in America in 2007 — the spirit has been secretly embracing it all.

“There’s a tradition. There’s a lure to the preparation of absinthe”, says Will Elliot, a bartender at Brooklyn’s Maison Premiere, an oyster and cocktail den with the allure of a New Orleans haunt. Absinthe, at 68 percent alcohol, is a compacted spirit. Once diluted with water, the essential oils and flavors loosen to reveal the drink’s nuances. Preparing an absinthe drink involves combining botanicals, flavors and aromatic elements, Elliot says. “It’s not the sort of spirit that you just toss back.” As for lighting it on fire, which often is brought up in discussions on how absinthe’s served, “You wouldn’t…that’s really damaging the alcohol”, Elliot says. He got behind the bar to debunk some myths and walk us through two traditional absinthe drinks — a drip and a frappe — and a new twist on an old cocktail.

The Martinez (via The Cabinet Rooms)

The Martinez (via The Cabinet Rooms)

From the The Cabinet Rooms blog, a recipe for the Martinez, a precursor to the modern martini:

Continuing our exploration into the world of gin, we’ve been perusing classic gin-based cocktails this week. One dating back to the 1880’s is the Martinez; a smooth and refreshing drink, packed full of herbal aromatics. Usually made by mixing gin, vermouth and bitters with either maraschino liqueur or orange curaçao, this drink is a great alternative to the Martini. We love the combination of the gin’s botanicals with the fruitier notes of the vermouth and sweetness of the maraschino. Here we’ve used Burleigh’s London Dry and garnished with a black cherry, soaked in a rich Kirsch syrup, for a touch of added luxury.

A frosty one.

A frosty one.

From the Garden & Gun blog, a video recipe  for a modern mint julep.

From The Telegraph, a review of fancy bitters:

“You’re writing about bitters – great beers!” my husband said. But no, with respect to him and Britain’s brewers, I’m going to talk about something far more chic and high fashion. And bitters – those little, apothecary-like bottles of intensely aromatic botanical tinctures – are about as on-trend as you can get right now.

This follows on from the premium gin craze, as what could be better than bitters to dash in your G&T? Angostura, the brand that most of us know, is good stuff, but do branch out and try other, distinctive smaller-batch bitters, such as the extraordinary range made by The Bitter Truth.

Finally, a clip of Tom Jones singing “She’s A Lady,” just because we can:


White-Collar Crime, DPAs and Repeat Business

Trying to keep your balance in a DPA.

Trying to keep your balance in a DPA.

The phenomenon of extending corporate deferred-prosecution agreements (or “DPAs”) continues, as here with medical device maker Biomet, and controversy inevitably ensues:

Life was supposed to return to normal for Biomet, the giant medical devices manufacturer accused of foreign bribery, when its federal probation expired next week. But on Tuesday, Biomet disclosed that prosecutors would extend its probation another year as they investigate new evidence of wrongdoing at the company, the Justice Department’s latest attempt to stem a widening pattern of corporate recidivism.

The Department of Justice, however, has been clear recently:

“Make no mistake: The criminal division will not hesitate to tear up a D.P.A. or N.P.A. and file criminal charges where such action is appropriate and proportional to the breach,” Leslie R. Caldwell, head of the Justice Department’s criminal division, said in a speech on Monday. “Just like an individual on probation faces a range of potential consequences for a violation, so, too, does a bank that is subject to a D.P.A.”

In the speech, Ms. Caldwell outlined her policy on repeat offenders in significant new detail. Noting that “we have a range of tools at our disposal,” she said the Justice Department could extend the term of a deferred-prosecution agreement while prosecutors investigate “allegations of new criminal conduct.” And when a breach has occurred, she said, “we can impose an additional monetary penalty” and “most significantly, we can pursue charges based on the conduct covered by the agreement itself — the very conduct that the bank had tried to resolve.”

We have written about DPAs and non-prosecution agreements (“NPAs”) here.

Builds wrist strength.

Builds wrist strength.

Note the reference to “a widening pattern of corporate recidivism.”  There may be such a pattern, and there are startling cases from  time to time, but hard data is scarce.  Anecdotally, we see few repeat white-collar customers on a significant scale, and for not unexpected reasons — cost, reputation and damage to stock price being the most common.