Category Archives: Appeal

“Restitution for a Reckless Bank? A Dubious Remedy Indeed” – Judge Posner’s Bank of America Smackdown

Judge Richard Posner of the Seventh Circuit—love him or hate him—just wrote a(nother) scathing opinion. He remanded a criminal restitution order, concluding that Bank of America was not entitled to any restitution for fraudulent mortgage loans because of the bank’s … Continue reading

Posted in Appeal, Restitution, Sentencing | Leave a comment

Update on the Hedge Fund Founder David Ganek’s Lawsuit Against Preet Bharara

A few weeks ago, I wrote about the lawsuit filed by Level Global founder David Ganek. Mr. Ganek sued Preet Bharara, the former U.S. Attorney for the Southern District of New York, as well as other prosecutors and agents, claiming … Continue reading

Posted in Appeal, civil case, DOJ policy and practice, Fourth Amendment | Leave a comment

Tax Fraud Cases May Be Easier to Defend But Don’t Count Your Chickens

For most crimes, the government must prove that the defendant acted intentionally. This seems like it should be a fairly high bar particularly in white-collar criminal cases but it’s not. For most crimes, the government need only prove that the … Continue reading

Posted in Appeal, Tax fraud | Leave a comment

Prosecutorial Misconduct in the Grand Jury But No Dismissal of Charges, Says Ninth Circuit

Prosecutors who engage in misconduct are rarely subjected to ethics charges. In a recent case out of the Ninth Circuit, the prosecutor engaged in wrongdoing, the court suggests that he should be referred to the bar, yet there is no … Continue reading

Posted in Appeal, Money Laundering, Prosecutorial misconduct, Uncategorized | 6 Comments

The SEC’s Right to a Jury Trial

We usually think about the right to a jury as one for a defendant facing charges. But it’s worth remembering that agencies are people too. Well, at least when it comes to the right to a jury trial in a … Continue reading

Posted in Appeal, Securities fraud | Leave a comment

An Open Letter Thanking the McDonnell Team (Or, Why We Can’t Give Up)

Dear Governor McDonnell’s Legal Team: As you probably know, the government decided not to retry Governor Bob McDonnell yesterday. This is big news. It follows his victory in the Supreme Court. He won. You won. Was this the best paragraph … Continue reading

Posted in Appeal, Public Corruption | Leave a comment

Ninth Circuit Stands Strong on Computer Fraud and Abuse Act (Sort Of)

The Computer Fraud and Abuse Act has been used by prosecutors to charge individuals who “exceed authorized access” (or act “without authorization”) on a computer–sometimes their employers’ computers, sometimes a stranger’s computer that they are hacking. The problem is that … Continue reading

Posted in Appeal, Computer fraud | Leave a comment

The Best Sentence in the McDonnell Decision

Like most defense attorneys, I welcomed the Supreme Court’s decision in the McDonnell case.   The Court vacated former Governor McDonnell’s convictions for Hobbs Act extortion and honest services fraud and remanded the case to the Fourth Circuit for further findings. … Continue reading

Posted in Appeal, Public Corruption, Reversal | 1 Comment

Fifth Circuit Slaps Down District Court’s Loss Calculation in Contracting Fraud Case

The government knows—and exploits the fact—that loss amount is the driver of white collar sentences. In criminal contracting fraud cases, the government has taken the position that the relevant loss is the entire amount of the contract that was wrongfully … Continue reading

Posted in Appeal, Government contracting fraud, Sentencing | 1 Comment

Commercial Negotiation Tactics Are Not Fraud: Seventh Circuit Limits Scope of the Wire Fraud Statute

The federal wire fraud statute is incredibly broad. In this era of non-stop email and texts, it’s hard to imagine a white collar case that doesn’t implicate it. For the most part, courts have been reluctant to limit its reach. … Continue reading

Posted in Appeal, Reversal, Wire Fraud | Leave a comment