The Reach of Federal Blackmail and Extortion Statutes (Part II)

Businessman giving bribe money in the envelope to partnerNote: This is the second part of an article that was first published in the ABA Criminal Justice magazine.

By Sara Kropf

In Part I of this article, we analyzed the difference between blackmail and extortion and examined the various federal statutes that govern those offenses. In this second part, we’ll look at the related Hobbs Act and Travel Act, as well as the sentencing guidelines for these federal statutes.

The Hobbs Act and the Travel Act

There are two other statutes that can be used to charge an individual with extortionate conduct, the Hobbs Act and the Travel Act.

The Hobbs Act, 18 U.S.C. § 1951, prohibits interference with commerce by threats or violence. It provides for a maximum sentence of twenty years in prison. The key section is the following:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

The Justice Manual (formerly the U.S. Attorney’s Manual) sets forth four questions that “must be answered affirmatively” to bring a Hobbs Act charge:

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Jeffrey Epstein is Dead. Now What?

Image result for jeffrey epsteinBy Dan Portnov

(photo from USAToday.com)

In perhaps the biggest news story of a slow August, Jeffrey Epstein apparently hung himself in his cell at the Metropolitan Correctional Center (MCC) in Manhattan early Saturday morning.[1] Epstein’s suicide launched multiple conspiracy theories (one was even re-tweeted by the President) as well as incredulity that prisons don’t have better suicide prevention policies in place. Less covered, however, is what will happen to the seemingly endless legal proceedings surrounding Epstein. The rosters of his defense teams and the government attorneys investigating him contained many impressive names.

Now that Jeffrey Epstein is dead, what are all the lawyers supposed to do?

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Posted in civil case, Congressional investigation, Criminal Investigation, Detention issues, DOJ policy and practice, OIG investigations | Leave a comment

The Reach of Federal Extortion and Blackmail Statutes (Part I)

Businessman giving bribe money in the envelope to partnerNote: This article was first published in the ABA’s Criminal Justice magazine in Summer 2019.

By Sara Kropf

In early February 2019, Amazon CEO Jeff Bezos published an explosive blog post accusing the National Enquirer’s owner, American Media Inc. (AMI), of blackmailing him. Bezos’ accusations could have serious consequences for AMI. In September 2018, AMI signed a non-prosecution agreement with the U.S. Attorney’s Office for the Southern District of New York.

As part of the non-prosecution agreement, AMI must cooperate with the government’s investigation of a hush-money payment made to Karen McDougal from President Donald Trump. The non-prosecution agreement also mandates that AMI “shall commit no crimes whatsoever” after its execution. If the government determines that AMI did blackmail or extort Bezos, then it may charge AMI “for any federal violation of which this Office has knowledge.” In other words, if this was a crime, then all bets are off and AMI no longer enjoys the protection of the non-prosecution agreement.

In addition to heading Amazon, Bezos owns The Washington Post, which has been critical of President Trump’s administration. AMI and its CEO, David Pecker, are closely linked to President Trump. After the National Enquirer published texts between Bezos and his girlfriend, Bezos hired private investigators to find out how the media group had obtained his texts.

In two emails quoted in Bezos’ post, AMI employees describe salacious photos of Bezos in its possession and offer not to publish additional intimate texts and these salacious photos in return for certain concessions by Bezos. The “proposed terms” of the agreement are outlined in an email from AMI’s deputy general counsel. Central to the proposal is that AMI will not publish other texts and photos in return for

A public, mutually-agreed upon acknowledgment from the Bezos Parties, released through a mutually-agreeable news outlet, affirming that they have no knowledge or basis for suggesting that AM’s coverage was politically motivated or influenced by political forces, and an agreement that they will cease referring to such a possibility.

It is worth noting that the AMI proposal also includes some legal terms that one would not normally expect in a blackmail threat, such as a “full and complete mutual release of all claims” between AMI and Bezos, and the use of JAMS mediation to resolve any disputes.

Following Bezos’ public accusation, there have been media reports that the New York federal prosecutors are considering whether AMI broke the law with respect to its demands to Bezos. AMI’s conduct may have been questionable, but it is far from clear that federal law makes it a crime.

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Sweet Release: Alternatives to Incarceration

iStock-73979757.jpgBy Dan Portnov

Last week convicted and newly accused sex offender Jeffrey Epstein was found injured in his cell in the Metropolitan Correctional Center (MCC), while awaiting his trial. This came shortly after his attorneys lost their bid to have him freed on bail or, in the alternative, kept under “house arrest” in his Manhattan mansion. Although we at Grand Jury Target do not have much sympathy for Epstein, there’s no question that incarceration, including pre-trial detention, is a difficult existence.

White collar defendants rarely get detained pre-trial or while awaiting sentencing, and when they do, it’s news (we wrote about this here and here).

What are the alternatives? Without going too far down the prison reform rabbit hole, this post examines the different forms of pre- and post-sentencing types of release. If anything, we hope it will educate the reader on the range of outcomes that face a criminal defendant, both in the federal and state criminal justice systems.

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Posted in Bail, Pre-Trial Motions Practice, Sentencing | 1 Comment

Rule 17(c) Subpoenas – The Unfair Limits on a Defendant’s Ability to Prepare a Defense (Part 2)

Scales of justice.By Sara Kropf

In the first post on this topic, I described the basics of Rule 17(c) subpoenas. This post will offer some practical tips to convince a court to issue a subpoena to a third party to obtain documents for your defense.

As we described in our earlier post, most courts impose three requirements to issue a Rule 17(c) subpoena: (1) admissibility of the documents requested, (2) relevance of those documents, and (3) a specific request for documents.

You can expect that the government will oppose a motion requesting the issuance of subpoenas, so it’s important to make the motion a strong one.

Avoiding a Fishing Expedition

The most challenging part of the standard is that the request be made with specificity, rather than a “fishing expedition.” Defense counsel must therefore make the request as specific as possible. That usually means not requesting documents for a long period of time and not requesting broad categories of documents.

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Investigating the Investigators: Highlights from Recent DOJ OIG Investigations

iStock-1045528778.jpg

By Dan Portnov

Office of Inspector General investigations don’t always make the news. After all, no one ends up in jail or paying back billions of dollars in ill-gotten gains as a result (usually). However, one federal agency’s OIG seems to garner an outsized amount of attention: the Department of Justice.

Are DOJ OIG investigations really that much more interesting, or is it a dose of Schadenfreude for the public – watching those in law enforcement get in trouble?

Perhaps both.

Let’s take a look at some of the recent matters in which the DOJ OIG was involved, and how the OIG might have been tipped off.

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Posted in DOJ policy and practice, OIG investigations | 1 Comment

Rule 17(c) Subpoenas – The Unfair Limits on a Defendant’s Ability to Prepare a Defense (Part I)

Scales of justice.During a criminal investigation, the government has nearly unlimited powers to gather evidence against a defendant. It can use grand jury subpoenas—usually with no court oversight unless the recipient objects—for documents or to compel testimony of any witness.

It can use its agents to interview witnesses voluntarily, knowing that most people will feel obligated to talk to a federal agent who asks to speak to them.

The government issues extremely broad grand jury subpoenas. It doesn’t expect that everything that will be produced in response will be admissible, or even necessarily used in the case. The purpose is to investigate what happened.

You would think that a defendant would have the same power to gather evidence and investigate defenses to criminal charges after an indictment.

You’d be dead wrong.

In theory, Federal Criminal Rule 17(c) permits a defendant to issue a subpoena to any third party for documents. In practice, though, the courts have drastically limited defendants’ use of 17(c) subpoenas by imposing a strict standard for what can be requested.

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What Is A Joint Defense Agreement in Criminal Defense?

iStock-1008108168.jpgBy Dan Portnov

Sometime this summer, perhaps as soon as mid-August, former National Security Advisor Michael Flynn will be sentenced by U.S. District Court Judge Emmet Sullivan. Flynn’s sentencing piques both pro-Trump and anti-Trump interest because he was one of the first of the president’s inner circle to fall.[1]

As Flynn switched lawyers earlier this month, perhaps signaling a shift in his strategy for sentencing, Judge Sullivan also made news by ordering the release of a November 2017 voicemail from former Trump lawyer John Dowd to Flynn’s old lawyer. The topic? Flynn’s cooperation with Special Counsel Robert Mueller and withdrawal from a joint defense agreement with the President of the United States.

So just what is a joint defense agreement in the criminal context and why does it matter?

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Should DOJ Indict President Trump But Seal the Indictment?

Shh!Given the position of the Office of Legal Counsel that a sitting president cannot be prosecuted, there has been some talk (including by me) about the possibility of indicting President Trump now but keeping the indictment under seal until he is no longer in office.

I’ve read the portion of the Mueller Report about obstruction. Under the same set of facts, and the same evidence, my view is that anyone other than the President would have been charged with obstruction already. There’s not a question in my mind.

The question, then, is whether DOJ could (or should) indict President Trump now but keep it under seal. That way, it doesn’t improperly affect the upcoming election and to comport with OLC’s legal opinion.

Is that the best option? Maybe.

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Posted in DOJ policy and practice, Indictment, Speedy Trial Act, Statute of Limitations | Tagged | Leave a comment

SEC Investigations 101: The Endgame

This post is the eighth in a series of posts for non-lawyers, or non-securities lawyers, who might suddenly find themselves on the wrong end of a Securities and Exchange Commission document request, subpoena or call from Enforcement division staff.

SEC HQ front.jpgBy Dan Portnov

We’ve often had clients ask us how they can speed up the resolution to an SEC investigation. In some cases, they have even asked us if they can cut a check and be done with it (this was not advised). The real answer is that the SEC will reach its conclusion when… it decides to reach its conclusion. And there are several ways in which an SEC investigation can conclude.

This post will discuss possible conclusions for SEC investigations, from the benign to the most problematic.

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Posted in SEC Investigation, SEC policy and practice, SEC Settlement | Leave a comment