Will SCOTUS strike down another fraud conviction?

It sure looks like that after argument yesterday in Kousisis, which presented the following question: "Whether a scheme to induce a transaction in property through deception, but which contemplates no harm to any property interest, constitutes a scheme to defraud under the federal wire fraud statute, 18 U.S.C. § 1343."  These fraud cases keep getting reversed by SCOTUS.  It's time that some of our district judges grant motions to dismiss and appellate judges reverse cases with no harm, instead of letting the Supremes do it over and over again.  

The WaPo summarized the oral argument here:

The Supreme Court on Monday appeared divided over whether to uphold the conviction of a government contractor found guilty of defrauding a state transportation program intended to promote diversity, with several conservative justices again expressing concern over how federal prosecutors combat white-collar fraud.

Chief Justice John G. Roberts Jr. suggested that such crimes were better handled by state prosecutors. Justice Neil M. Gorsuch worried that the federal government’s approach was so broad it could allow, hypothetically, for the prosecution of a babysitter for misleading an employer about how she planned to spend her wages. The court’s eventual ruling in the contracting case could affect how federal prosecutors pursue other fraud cases.

The justices were reviewing the case of Alpha Painting & Construction and a project manager, Stamatios Kousisis, who was convicted of fraud in 2018 and sentenced to 70 months in prison for obtaining a multimillion-dollar contract under false pretenses. The company won a contract with the Pennsylvania Department of Transportation to make repairs in Philadelphia to a Schuylkill River bridge and to the 30th Street Train Station that was contingent on the company teaming up with a disadvantaged business for a small percentage of the work to increase diversity in contracting.

Interestingly, it was the liberal wing of the Court trying to defend the crazy broad application of the fraud statute:

“The government wanted a particular person to provide the service,” Sotomayor said.

Justice Ketanji Brown Jackson asked, “Why isn’t this a classic scheme to obtain property under false pretenses?”

Attorney Jeffrey Fisher told the justices that “if there’s no harm that occurs in those transactions, there is no fraud.” ...

The Supreme Court has repeatedly expressed skepticism of federal prosecutions for too broadly applying criminal statutes to combat public corruption and other white-collar crimes.

Last year, the court unanimously overturned the fraud conviction of business executive Louis Ciminelli and others who relied on inside information to win a $750 million development contract as part of former New York governor Andrew M. Cuomo (D)’s Buffalo Billion revitalization project.

In 2020, a unanimous court overturned the convictions of two allies of former New Jersey governor Chris Christie (R) who plotted to cause traffic snarls in a town leading to the George Washington Bridge to punish one of the governor’s rivals.

The conservatives said to leave these types of fraud prosecutions to the states and got into with the government over whether they could charge a babysitter:

Justice Samuel A. Alito Jr. suggested Monday that those rulings had sent a signal that “the court really doesn’t like the federalization of white-collar prosecutions and wants that to be done in state court and is really hostile to this whole enterprise.”

Roberts echoed those concerns when he said “a lot of these things could be dealt with under state law, and you don’t have to federalize every jot and tittle in a large contract? And that it’s a matter of concern that we’ve expressed in many precedents.” ...

During the discussion of the babysitter hypothetical on Monday, Gorsuch and Justice Brett M. Kavanaugh got the government’s lawyer to concede that under its theory, a babysitter could be prosecuted for fraud if she knew she got the job after telling the family she would use the money for college tuition, but instead blew it all on a trip to Cancún.

While Feigin acknowledged the hypothetical babysitter could be charged, he added, “I think the sentencing guidelines would be pretty low.”

“That’s comforting,” Gorsuch quipped.

In response, Sotomayor tried to help the government’s lawyer distinguish between the case of the babysitter and the misrepresentation at issue on Monday as part of a multimillion-dollar contract that specified a particular type of business would perform some of the work.

Sotomayor stressed, “This is not the case of the babysitter.”

Yeah but can they figure out a lunch spot?

 

Here's the full order.

Guest Post -- Bill Barr’s DOJ Predictions

Bill Barr’s DOJ Predictions, by an Attendee of a conference called Government Investigations and Civil Litigation Institute who asked to remain anonymous

Matt Gaetz is out for AG… but Kash Patel is in for the FBI.  What a whirlwind the past month has been.  One thing is for certain – DOJ is in for an interesting ride over the next four years.  William Barr, former AG under Presidents George H.W. Bush and Donald Trump, certainly has a lot of insights about what DOJ may soon endure.  He was the keynote “fireside” speaker at the Government Investigations & Civil Litigation Institute’s recent 10th annual meeting.  Despite current and former prosecutors comprising most of the audience, former AG Barr began his remarks by acknowledging that the “Deep State is real,” and that the DOJ has been “weaponized” by those who profess to “protect democracy” but are doing the opposite.  When did DOJ become infiltrated with the Deep State?  Sometime during his first and second stints as AG (late 1990’s to 2016-ish), when he personally saw a swing in the “politicization” within the rank-and-file. Citing the “bogus” and “fake” prosecutions of Michael Cohen and Gen. Flynn, former AG Barr was clear that “some offices,” such as the SDNY, have more “Deep State” employees than others, who needed to be weeded out to “restore the Department”.  Ironically, former AG Barr did not mention the political investigations and prosecutions of DOJ during decades prior; for example, the 1960s, when covert FBI operations and programs were aimed at discrediting and targeting prominent civil rights activists.  Nor did he mention Trump’s proposed pardoning of hundreds of January 6th rioters, which would seemingly contradict restoring justice and removing politics from the Department.  Towards the end of his remarks, former AG Barr offered some predictions, which did not seem to assuage the crowd: (1) greater controls and supervision over line AUSAs and more adherence to supervision/hierarchy; (2) elimination of DOJ programs that encourage “reverse discrimination”; (3) prohibiting DOJ’s Civil Rights Division from “allowing educators to indoctrinate kids in public schools with views diametrically opposed to popular views” and not allowing the FBI to “police our PTAs”; (4) getting aggressive on the cartels and at the US-Mexican border; and (5) strengthening joint task forces to reduce violence in America.  Former AG Barr also had choice remarks for “Big Law”: strip out the “wokeness”.  He made it clear that he formed his own law firm after Kirkland walked away from Second Amendment cases and “pushed” Clement out… a move, he viewed, dictated by “left woke” associates.

Biden was right to pardon his son and he should do a lot more before it’s too late.

 That's the title of my latest piece in The Hill.  I put together some of my prior thoughts from blog posts and tweets into a short opinion piece.  Let me know your thoughts. Here how it starts off:

A member of the President’s family was convicted of tax crimes and making false statements.  Many believe the prosecution was unjust.  And then came the pardon.  And the criticism.

No, not Hunter Biden.  In 2020, President Trump pardoned Charles Kushner, Jared Kushner’s father (Jared is married to Trump’s daughter, Ivanka).  It was not just Kushner.  Trump pardoned Steve Bannon, Paul Manafort, Roger Stone, and other allies.   Before that, Jimmy Carter pardoned his brother Billy.  Bill Clinton pardoned his half-brother Roger.  Even Abraham Lincoln pardoned a family member.

Now enter President Biden.  He pardoned his son Hunter yesterday for tax crimes and making false statements.  The criticism from both sides of the aisle was fast and furious.  

But Biden was right to pardon his son.  For starters, any parent would do the same thing.  There can be lots of debate about whether Biden should have made promises about pardons (he should not have) or whether Hunter would have been prosecuted if his last name was not Biden (he would not have).  And so on. But there should be no debate that a father should forgive his kid, whether he’s President or not. 

Kash Patel to head the FBI

 Kash Patel, the former Miami AFPD, will be nominated to lead the FBI under President Trump.  Here's the CNN article:

President-elect Donald Trump plans to nominate firebrand loyalist Kash Patel to serve as FBI director, an extraordinary move that would put a self-described enemy of the so-called “deep state” as the head of the nation’s top law enforcement agency — a role that would give Patel power to carry out Trump’s threats to go after his political opponents.

Trump’s interest in Patel speaks to his urge to fill top law enforcement and intelligence positions with supporters who may be open to carrying out his demands for specific investigations as well as inoculating the president against possible future probes.

“I am proud to announce that Kashyap ‘Kash’ Patel will serve as the next Director of the Federal Bureau of Investigation. Kash is a brilliant lawyer, investigator, and ‘America First’ fighter who has spent his career exposing corruption, defending Justice, and protecting the American People,” Trump posted on Truth Social on Saturday evening.

Even among Trump loyalists, Patel is widely viewed as a controversial figure and relentless self-promoter whose value to the president-elect largely derives from a shared disdain for established power in Washington. Putting him in charge of the FBI would require forcing out current director Christopher Wray, who was appointed by Trump, before his term expires – prompting bipartisan criticism.

Former Trump national security adviser John Bolton compared Patel to Soviet leader Joseph Stalin’s leader of secret police, the NKVD, telling CNN: “The Senate should reject this nomination 100-0.”

White House national security adviser Jake Sullivan cautioned Sunday that the FBI director should not be subject to the “whims” of politics, but declined to weigh in directly on Patel.

“What makes the FBI director different from most other nominees is they’re not just appointed for one term of a president, they’re appointed for enough time to last past two terms of a president, because they’re supposed to be insulated from politics,” Sullivan told CNN’s Kasie Hunt on “State of the Union.”

Incoming Senate Judiciary Chairman Chuck Grassley heavily criticized Wray, the current FBI director, saying in a social media post that he “failed” during his tenure. But Grassley added that Kash Patel “must prove to Congress” that he will do better than Wray.The Patel pick almost certainly sets up another potentially explosive confirmation battle in the Senate, where members are already bracing for how they’ll navigate a slew of unorthodox Trump picks. One of those picks, fellow Trump loyalist and Justice Department critic Matt Gaetz, dropped out of the fight to become attorney general as it became clear the former Florida congressman would not have the GOP support necessary for confirmation.

It’s unclear whether Patel could face a similar uphill battle through the confirmation process.

RIP Luis the interpreter and updated information for Troy Walker

Luis, SDFLA's first official Spanish translator, has passed away.  He was a total character.  Would tell witnesses and defendants when they were BS'ing.  Would tell lawyers when they were doing well and when they were messing up.  Was a jury consultant to the lawyers and judge when he was in court.  A character.  RIP Luis.

For those interested in attending services for Troy Walker, here is the information, I received: A memorial service for retired CRD Troy Walker will be held on Saturday, December 7th at 11:00 a.m. 

 Michael Williams Funeral Services 

 4529 Hollywood Blvd Hollywood, FL. 33021 

 954-362-4330 www.mwfuneralservices.com

Jack Smith moves to dismiss Trump document appeal in the 11th Circuit...

 ... but ONLY against Trump, and not co-defendants Walt Nauta and Carlos De Oliveira.

It's unclear who will handle the appeal for the United States after Jack Smith and his team are no longer involved.

And it's not altogether clear why Smith isn't moving to dismiss the entire case.

Certainly Trump's DOJ will not pursue this matter once they are in office.

It will be interesting to see how the defendants' lawyers handle it over the next few months and what the 11th Circuit will order.

 

A debate that matters

 Rumpole has a pretty moving post about the Lady Jaguars here, about a group of girls sent from juvenile court to play basketball together.  

Here's another emotional story about a debate between D.C. jail inmates and JMU students about whether life without parole should be abolished:

Harold Cunningham was locked up more than three decades ago and told he would never see the outside of a prison after committing a string of armed robberies and murders.

On Friday, he stood in a courtroom again. But this wasn’t for a trial, or a sentencing, or a motion, or any of the countless reasons he had previously appeared in court.

Cunningham and a dozen other D.C. jail inmates had gathered to do something unusual: debate in a federal courtroom against four students from James Madison University.

Cunningham, who had returned to the correctional facility to await a posttrial motion, stood in a blue polo shirt and khaki pants and argued for the abolishment of life sentences without parole.

“You are looking at the representation of everything that this debate is about,” Cunningham said as people in the overflowing courtroom cried. “All Americans should stand for rehabilitation, not retribution.”

Read the whole article to see who won!