Would You Buy A Subpoena Response From This Man?

Preparing for a FIRREA subpoena.

Preparing for a FIRREA subpoena.

Always pay attention when the Department of Justice becomes enthusiastic about a long-neglected statute.  (The federal False Claims Act was dormant for almost a century).  Here is a sound, short article by Professor Peter J. Henning of Wayne State University Law School on a “new toy” for the Government: U.S. Finds Fresh Use for Seldom-Used Statute in Subprime Cases.  In discussing the Financial Institutions Reform, Recovery, and Enforcement Act (or “FIRREA”), the federal law enacted in response to the savings-and-loan crisis, Professor Henning notes:

Firrea is not just a penalty provision, however, because it also authorizes the Justice Department to pursue civil investigations into potential violations. Rather than just using it as a backstop when evidence might be insufficient to support criminal charges, the subpoenas to G.M. Financial and Santander Consumer indicate that the government is using Firrea as a new means to police the financial markets.

Crimes are typically investigated by a grand jury, which can compel the production of evidence and testimony from witnesses. The civil investigatory power is nearly as broad, with the Justice Department authorized to issue subpoenas to “summon witnesses and require the production of any books” or other evidence from any place in the United States. Unlike a grand jury investigation, in which federal prosecutors generally do not call a subject to testify, a civil inquiry can include requiring someone involved in possible misconduct to appear for questioning. A witness can invoke the Fifth Amendment right against self-incrimination in response to questions, but that can be considered as evidence if a civil case is filed and goes to trial.

Just because the Justice Department issues subpoenas as part of a civil investigation does not necessarily preclude a parallel criminal investigation. Any evidence gathered pursuant to Firrea can be shared with criminal prosecutors, unlike the secrecy rule imposed on any material presented to a grand jury. There is a rule of thumb in white-collar cases that if there is any possibility a case could go criminal, defense counsel should assume that it will and protect the client accordingly. So a Firrea investigation can be fraught with danger.

Indeed.  At a minimum, the receipt of a FIRREA subpoena should be treated just as seriously as the receipt of a grand jury subpoena — and maybe more so.


The Martoma Trial and Character Evidence in White-Collar Trials

Former SAC manager Mathew Martoma

Former SAC manager Mathew Martoma

In the trial of former SAC hedge fund manager Mathew Martoma, the dispute over getting kicked out of Harvard Law School  is worth noting for what evidence we have juries consider at white-collar trials and what we don’t:

In 1999, Mr. Martoma was expelled from Harvard for creating a false transcript when he applied for a clerkship with a federal judge, court papers unsealed on Thursday showed. Mr. Martoma used a computer program to change several grades from B’s to A’s, including one in criminal law, and then sent the forged transcript to 23 judges as part of the application process.

Then, during a Harvard disciplinary hearing to determine whether he should be expelled, Mr. Martoma tried to cover his tracks by creating a fake paper trail that included fabricated emails and a counterfeit report from a computer forensics firm that Mr. Martoma had created to help conceal his activities.

After Harvard expelled him, Mr. Martoma, who at the time was known as Ajay Mathew Thomas, legally changed his name to Mathew Martoma.

The Government wishes to introduce this evidence, it says, not because it’s trying to paint Martoma as a bad guy but rather to prove that he has the computer-forensic capability to destroy real evidence, create bogus evidence and thus mislead the authorities:

The prosecution argues in court papers that Mr. Martoma’s deception is relevant to show that he has the technical knowledge to alter computer files. That could be relevant, prosecutors say, if Mr. Martoma’s lawyers seek to argue he never received a copy of a confidential report that discussed problems with a clinical trial for an experimental Alzheimer’s drug being developed by Elan and Wyeth.

Prosecutors charge that Mr. Martoma recommended that SAC sell its shares in Elan and Wyeth after receiving the report from a key cooperating witness in the case, Dr. Sidney Gilman, and then flying to Ann Arbor, Mich., to discuss the results of the trial with him.

Mr. Martoma’s lawyers at Goodwin Procter, in the run-up to the trial, have raised questions about the government’s failure to find any email evidence that Dr. Gilman sent Mr. Martoma a copy of the report. Dr. Gilman, 81, who received a nonprosecution agreement from the government, is expected to testify that he sent the report to Mr. Martoma and discussed the findings both on the phone and when the two men met a few days before SAC began selling the companies’ shares.

Prosecutors have conceded they have not found any email evidence to support Dr. Gilman’s contention that he sent a copy of the report to Mr. Martoma. But they said Mr. Martoma’s pattern of deception at Harvard is “evidence of the defendant’s capacity to destroy or fabricate electronic forensic evidence.”

In other words, the Government lacks evidence (other than the testimony of the cooperating email-sender) that the report was actually sent to or received by the defendant.

You hit "Send," you never know what happens.

You hit “Send,” you never know what happens.

Essentially, the Government wants jurors to conclude that the defendant could have received the report; could have destroyed it; and could have hidden the fact of destruction from investigators because of his (unsuccessful) attempts to do something similar in law school.

This is over-reaching.

First, such questions are usually handled at trial by each side offering computer-forensic experts.  The expert offers an opinion on which he or she can be cross-examined, then jurors decide whom to believe.  (Of course, if there is nothing an expert can opine on — if old servers are simply gone, for example — then experts are of little help.)

Second, this is “character evidence.”  Rule 404 provides:

(a) Character Evidence.

(1)Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2)Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3)Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Rule 608 is also pertinent:

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

The fact that the defendant points out the prosecution’s lack of evidence — that is,there’s apparently no evidence that Martoma received the email to which the report was attached — does not magically turn that same lack of evidence into admissible 404(b) evidence of “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”  

"From the Old Fields Must Spring the New Corn."

“From the Old Fields Must Spring the New Corn.”

Plus, the prejudicial effect of the evidence — here’s a guy who went to Harvard Law School, a fancy institution, where he cheated and tried to cover it up, then ended up at SAC, another fancy organization, and is nowaccused of cheating — would grossly outweigh any probative value.


From our friends at the White Collar Crime Prof Blog

Quick collection of white-collar news from the   White Collar Crime Prof Blog:

Mark Hamblett & Sara Randazzo, The AmLaw Daily, Ex-Kirkland Partner Sentenced to One Year For Tax  Fraud

George J. Terwilliger III, National Law Journal, Walking a Tightrope in White-Collar Investigations

AP, Las Vegas Sun, Ex-Akamai exec barred for 5 years in SEC case; Bob Van Voris, Bloomberg, Ex-Akamai Executive Settles SEC Suit Over Rajaratnam Tips

Nate Raymond, Reuters, Baltimore Sun, U.S. prosecutor cautions against white-collar sentencing revamp

Jennifer Koons, Main Justice, Former Enron Prosecutor Tapped to Head Criminal Division

Zachery Fagenson, Reuters, Ex-Bolivian anti-corruption official denied bail in Miami extortion case



New DOJ Cases From the Financial Crisis? Look For This Criminal/Civil Hybrid

A good summary by Peter Henning, here —   DOJ Financial Crisis Cases?  — about possible future cases arising from the financial crisis and the Government’s use of a FIRREA provision.  In part:

But pursuing criminal cases from the financial crisis gets increasingly difficult, especially against individuals, because unlike a good bottle of wine, evidence does not age well. Memories dim and the chance of finding the “smoking gun” e-mail or recording that can help implicate a defendant in a fraudulent scheme becomes less likely with the passage of time.

Mr. Holder will more likely pursue charges under a civil statute that has become the Justice Department’s favorite tool of late against banks: 12 U.S.C. 1833a. The statute provides for civil penalties for violations “affecting a financial institution” of up to $5.5 million or the amount the defendant gained from the misconduct.

Congress enacted this provision in 1989 during the savings and loan crisis as part of the Financial Institutions Reform, Recovery and Enforcement Act to give prosecutors another tool to pursue cases involving fraud and other misconduct at banks.

The law is a hybrid: it requires prosecutors to establish that criminal conduct occurred while using the lower civil burden of proof to establish the violation. That makes it easier for the Justice Department to make its case and can even allow a court to make a favorable ruling based solely on written evidence without a trial.

Section 1833a contains other favorable measures for the government. The law extended the statute of limitations for a host of banking crimes to 10 years from the usual 5-year period, so the Justice Department faces little time pressure in pursuing cases involving the mortgage market during the lead up to the financial crisis.

The statute only requires that the violation affect a financial institution, a term that has been broadly construed in recent district court decisions. Last week, Judge Jed S. Rakoff of Federal District Court in Manhattan rejected a challenge by Bank of America to a lawsuit involving the sale of faulty mortgages by its Countrywide Financial subsidiary. He found that the financial institution affected by the fraud could be Bank of America itself, so that even a self-inflicted wound could be the basis for pursuing a civil penalty action.

 



Complimentary One-Day Financial Services CLE SuperCourse in NYC

If you are in the New York area, this is an excellent source of free CLE: Network of Trial Law Firms Financial Services CLE Supercourse

When?  Friday, September 20, when experienced financial services practitioners from across the U.S. and Canada convene in New York City.  Breakfast and lunch at the City Bar Building (44th St. near Sixth Ave.) are included.  Presentations are short (20 minutes each).

Sign-up?  on-line.

Why? I admit it —  I’m speaking (actually, I’m leading a breakout session on “White-Collar Crime.”).

Topics:

  • Litigating against FINRA and the SEC
  • 18 USC 1519: The Changing Face of Obstruction
  • Traditional and Alternative Products: Suitability and Supervisory Issues
  • FINRA Arbitration – Panel Selection
  • Whether Non-Member Registered Investment Advisors (“RIAs”) Should Voluntary Agree to FINRA Arbitration
  • Regulatory Trends for RIAs
  • Federal Preemption of State Securities Law Claims
  • Impact of Canadian Class Actions on the US Capital Market
  • Discovery in FINRA Arbitration
  • Panel: Chief Compliance Officers Under Siege
  • Regulatory and Enforcement Actions Arising from Fiduciary Relationships
  • Continued Erosion of Rule 10b-5
  • Data Breach and Cyber Liability
  • Erosion of Over-Broad Class Actions

 

Breakout Discussion Sections (with coursebook materials) on:

  • Developments in Securities Liability of Attorneys, CPA’s and Other Professionals
  • FINRA Arbitrations
  • White Collar Crime
  • Litigating Customer Disputes

 

Hope to see you there.

 

 




A Prosecutorial Campaign In The Media

Mr. Bharara’s comments are measured, but a prosecutorial campaign in the media is always disquieting (as a defendant’s media campaign can be troubling): Prosecutor Hits The Media Trail.  And, although it’s true that “sometimes it’s the case that conduct is so pervasive and there’s so much that shouldn’t be going on that is going on, that the only way that justice can be done is by indicting the entire institution,” very few American businesses — even those with some very bad apples —are actually run as criminal enterprises.  Rather, the threat of a company indictment is often simply a tool to achieve other prosecutorial ends.