Stormy Daniels, USA Gymnastics and the Power of a Non-Disclosure Agreement

Shh!By Dan Portnov

With the recent revelation that then-candidate Donald Trump’s longtime attorney Michael Cohen used his “own personal funds to facilitate a payment of $130,000” to adult movie actress Stormy Daniels in 2016, we may be moving closer to finally getting confirmation of one of the President’s worst kept secrets: that Trump and Daniels had an affair in 2006.

Cohen’s revelation – acknowledging the payment but without further details such as his motivation or plan for reimbursement from his client – prompted Daniels’ manager to respond that the actress now believes Cohen has voided any non-disclosure agreement (NDA), and she is free to tell her side of the story. Neither Cohen nor President Trump have indicated whether the latter will preemptively seek enforcement of the agreement.

NDAs have always played a role in resolving civil lawsuits. But now they may play a role in more criminal cases.

Continue reading

Posted in Civil Litigation Strategy | Leave a comment

Winning the Hard Way

The hardest appeal to win is one based on insufficiency of the evidence. It argues that “the jury got it wrong.” Courts of appeal do not look kindly upon this argument, not only because it forces the court to dig deep into the record but because it asks the court to question the jury’s verdict.

It’s always easier to affirm what the jury did.

In a recent decision out of the Fifth Circuit, however, the court did not take the easy path. It reversed the Medicare fraud and conspiracy convictions of a doctor and home health agency owner because there just wasn’t enough evidence to convict them.

These kinds of decisions are extremely fact-intensive, so it may be hard to use this win in your own case. But, at a minimum, the opinion gives all of us hope that losing a trial is not the end and reminds us to keep fighting every step of the way.

Continue reading

Posted in Appeal, Conspiracy, Health care fraud, Reversal | Leave a comment

Lawyers as Filmmakers: The Sentencing Mitigation Film

644751722By Dan Portnov

Every CLE panel on sentencing includes a judge. And often the judge emphasizes the importance of presenting your client as a person and not just a defendant. That can be a challenge at a sentencing hearing unless the friends and family who show up in support are incredibly articulate and comfortable speaking in a courtroom.

There’s another way.

Last month, as most lawyers were anxiously preparing for their firm or bar association holiday parties, the New York Times and Above The Law simultaneously published short opinion pieces on the growing use of sentencing mitigation films. “Growing use” might be pushing it, as our informal polling of colleagues and judges (we may or may not have clerked for) has resulted in bemused, if not outright skeptical, responses.

Nevertheless, you should think about using a sentencing mitigation film, as championed by Doug Passon (seemingly of the law firm “D Major Films”). The technology is simple these days since we all have video cameras in our pockets. Having attempted our first such film with some success, here are a few practical and legal considerations:

Continue reading

Posted in Sentencing | Leave a comment

The Government Keeps Trying to Erase Its Wrongdoing

gridlockA few months ago, I wrote about the successful effort by a U.S. Attorney’s Office to convince the First Circuit to remove the name of a prosecutor involved in a case about Brady violations.

Now, in a case in Philadelphia, a USAO did not ask the district court judge to delete a police officer’s name but rather to change his determination that the officer was not credible.

On September 26, 2017, a federal district court judge in Philadelphia, Judge R. Barclay Surrick, granted the motion to suppress of a defendant named Pedro Payano. The judge took the time to draft a written order. The order described what the Pennsylvania state trooper had done when he engaged in the illegal search and noted that the defendant’s “ethnicity very likely figured into” the officer’s actions that day.

The government was not happy.

Continue reading

Posted in Brady violations, Dismissal of charges in indictment, Fourth Amendment, Policy issues | Leave a comment

David Ganek’s Valiant Effort to “Fight the Power” Fizzles—Where’s the Remedy When Law Enforcement Lies?

Fist pileI’ve written several times before about hedge fund owner David Ganek’s groundbreaking lawsuit against federal agents and prosecutors in New York. See my posts here and here.

As I described the case:

The plaintiff is David Ganek, the former head of now-defunct hedge fund Level Global. The government executed a search warrant for his office and personal devices. As a result of extensive publicity about the investigation and raid, Level Global went out of business. Even though Mr. Ganek was never charged with insider trading, he lost his business.

The government’s main defense was that the defendants—all federal employees—were protected by the doctrine of qualified immunity. Qualified immunity protects law enforcement officers from money damages imposed based on performance of their official duties. It’s a very high barrier to this type of civil lawsuit.

The district court rejected this argument in part, concluding that some of Mr. Ganek’s claims could proceed. Specifically, it allowed his Fourth Amendment claims to continue because Mr. Ganek had alleged that defendants made a deliberate or reckless misstatement of a material fact when they sought a warrant to search his property. It also refused to dismiss his Fifth Amendment claim based on the defendants’ alleged fabrication of evidence against him, as well as refused to dismiss some of the claims based on supervisory liability.

The defendants filed an interlocutory appeal. It took a few months, but the Second Circuit issued its opinion in October 2017. (I know, I know, I’m a little late to the party. But thanks to a busy late-year trial calendar, I’m a bit behind in my posts.)

Continue reading

Posted in Appeal, civil case, DOJ policy and practice, Search warrant | Leave a comment

What Happens If Your Client Dies While the Appeal Is Pending? (Hint: Appeals Matter)

Alone on a jettyDavid Brooks apparently lived a rather lavish lifestyle. As the head of a successful body armor company, he was rumored to have thrown a $10 million bat mitzvah party for his daughter that included performances by 50 Cent and Aerosmith.

In 2007, the fun came to an end. Mr. Brooks was named in a superseding indictment on charges stemming from his participation in several alleged schemes to the fraud shareholders and obstructing an SEC investigation. He was also charged with tax fraud.

After his guilty plea (on some counts) and conviction (on other counts), he was sentenced to substantial prison time. While in prison, he passed away. In an appeal before the Second Circuit, his family and estate challenge the status of his criminal convictions as well as the very large restitution order against him.

So, what does happen if your client dies during a criminal case? We hope we never have to reach this issue, but the Brooks opinion gives some helpful guidance.

Continue reading

Posted in Appeal, Criminal Forfeiture, Restitution | Leave a comment

Government Wins Finders Keepers: Criminal Forfeiture Cannot Be Used to Repay a Las Vegas Debt

business concept. money with handWhat happens if a defendant’s cash is subject to forfeiture but he also owes someone else money? Who gets the forfeited cash?

In a recent case out of the First Circuit, the court applied the forfeiture statutes to deny a general creditor payment of the defendant’s debt.

This holding (an issue of first impression for the court) has implications whether you represent someone who is owed money by a defendant or the defendant himself.

Continue reading

Posted in Appeal, Criminal Forfeiture | Leave a comment

Should a Court Erase a Prosecutor’s Name from an Opinion about Brady Violations?

I was perusing recent opinions from the courts of appeal for possible blog post ideas when I came across an odd-looking errata sheet. Here’s an excerpt:

Spencer errata

That’s odd, I thought. I took a look at the original opinion in the case.

The First Circuit wrote an opinion published August 23, 2017. In it, the court of appeals affirmed the district court’s finding that there had not been a Brady violation when the prosecutor failed to disclose that he had talked with the chemist who analyzed the drugs and corrected a key date on her report.

The USAO then asked the First Circuit to remove the AUSA’s name because it might

suggest to the public that the Court found that the government in fact committed prosecutorial misconduct and that its actions were so egregious as to require rebuke.

Apparently, the Court agreed and it deleted the prosecutor’s name from the opinion.

Given the facts of the case, this is an unnecessary effort to protect a prosecutor who was found to have “willfully” withheld evidence favorable to the defense. It’s certainly not a courtesy extended to defendants who are ultimately found not guilty.

What gives?

Continue reading

Posted in Appeal, Brady violations, Discovery/Brady, Prosecutorial misconduct | 1 Comment

Hell Hath No Fury Like a Misled Judge: The Aaron Schock Case

danger thin iceElected officials under government investigation try to avoid indictment like any other white-collar client. They know that if charged with a crime, it will be nearly impossible to win re-election.

Once indicted, though, they fight back, and fight back hard. There’s nothing to lose at that point.

An elected official loves his reputation as someone who will “fight for you in Washington.” And the Department of Justice loves to take down a public official.

The criminal case against former Representative Aaron Schock is no exception to this narrative.

He was charged in November 2016 with wire and mail fraud for misusing public funds, along with false statements. The indictment includes such *really troubling* allegations like false mileage reimbursement and using official money for personal uses such as buying camera equipment, sports tickets (Da Bears), cars and so forth. He also apparently spent too much money remodeling his office.

It’s a ticky-tack public corruption case for DOJ. If I were reading the tea leaves, I’d guess that this bus was driven by the USAO alone. Main Justice appears nowhere on the pleadings.

The docket makes clear that this has been a pitched battle on both sides. Most recently, the court entered an order explaining that the government has

admitted that a previous claim made by Assistant United States Attorney Timothy Bass was misleading, if not simply false.

The court ordered the government

to review all claims and statements made in its current filings to ensure that there are no more false or misleading claims.

How did we get here?

Continue reading

Posted in Grand jury, Prosecutorial misconduct, Public Corruption | Tagged | Leave a comment

Is DOJ Changing Its Practice on Press Releases after Dismissal or Acquittal?

Metal Wheel ConceptI’ve written about vented several times (see here and here) about DOJ’s practice of leaving press releases announcing indictments on its website even after the defendant has been acquitted of the charges or after the charges have been dismissed. DOJ’s website ranks high in search results. So, if you search a defendant’s name, it’s very likely that DOJ’s press release will be the first hit.

This practice is unfair to defendants who have had the charges against them dismissed or were acquitted at trial.

Has this practice changed? Maybe.

Continue reading

Posted in Dismissal of charges in indictment, DOJ policy and practice, SEC policy and practice | 1 Comment