Delay was known as a hard-charging Republican advocate, whose nickname of “the Hammer” demonstrated his supposedly ruthless tactics. In 2002, Delay wanted to have the Texas Legislature turn solidly Republican, which it did. To accomplish, he asked for a series of corporate political contributions to a campaign committee. Afterwards, that solidly Republican legislature allegedly jiggered the voting districts so that the Texas federal delegation was far more likely to elect Republicans to the U.S. Congress. All well and good, hard nosed politics.

Things got overtly political when the Democratic District Attorney of Travis County brought a series of criminal cases arising out of the method used to try and get lots of Republicans elected to Texas state legislative positions in the 2002 elections. In an initial set of indictments, the State accused the defendants of “participating in a scheme to channel unlawful corporate political contributions to candidates for the Texas House of Representatives in 2002.” The Election Code-based conspiracy charges were thrown out, so the prosecutor re-indicted Delay on two counts, criminal conspiracy to commit money laundering of funds of $100,000 or more and money laundering of funds of $100,000 or more. The predicate offense for the State’s money laundering charge alleged the “offense of knowingly making a political contribution in violation of Subchapter D of Chapter 253 of the Election Code.”

On appeal, the appellate court laboriously plowed through both the Election Code and the evidence at trial. The court demonstrated that first, there simply was no violation of the Election Code. Instead, it seemed that the corporate contributors simply wanted political access, something that is apparently legal in Texas. Second, the Texas Court of Appeals showed that there cannot be illegal “money laundering” unless the money was the result of some criminal act. Because there was nothing illegal when the corporate contributors gave the money over, the subsequent movement of those funds could not be money laundering.

There are plenty of crimes out there, yet aggressive and ambitious prosecutors often fall into the temptation of going after a high profile Defendant who is involved in politics. To me, the real crime is that the kind of contributions involved in this case are apparently legal under Texas law, but we seem to permit that in our country.

The basic story goes like this. In the havoc following Hurricane Katrina, there were reports that police officers shot victims of that natural disaster. There was an internal investigation. Cops were interviewed, and were told that they had to answer questions, and that their answers could not be used against them in any subsequent case (we call this “immunized testimony”). State prosecutors thereafter got indictments and convictions. The state appellate courts overturned the convictions, because the immunized testimony WAS used against the cops.

Thereafter, federal prosecutors took over the case, and the Defendants were all convicted and given lengthy prison sentences. Shortly after the Defendants were sentenced, it came to light that a high-ranking federal prosecutor in that office had a habit of anonymously posting in the “comments” section of the New Orleans’ newspaper. These postings basically whipped up support for convicting the cops, before, during and after the trial. Eventually, it came out that the First Assistant Attorney (the Number Two person in the office) also had been posting in a similar manner. She then said she told her boss (the US Attorney) what she had done. Both of them resigned. The final straw happened when the Judge recently discovered that a Washington, DC based federal prosecutor had been doing the same thing concerning this case. The reason this was such a huge problem is that this DC lawyer was the “taint” person, the government lawyer who was supposed to protect the cops from having their immunized testimony leaking over to the trial prosecutors.

The Judge was (and still is) incensed. He reviewed the law, noting that due process requires fairness, whether or not the bad actions of the prosecutors’ had an impact on the actual trial. Here’s what he said: “In every criminal trial, a defendant is entitled to a fair trial before an impartial jury, at which time the government must prove his or her guilt, for each count charged, with admissible evidence, and beyond a reasonable doubt. This sacrosanct principle ensures that no defendant is deprived of his or her liberty as a result of an unfair, biased, or slanted proceeding skewed to achieve a conviction, as opposed to finding the truth with requisite certainty. In this instance, it is difficult to conceive, much less accept, that this time-honored constitutional procedure successfully withstood an attack of the ferocity seen here, a campaign extending back to the commencement of the DOJ’s active investigation of this case in 2008, and continuing through the acceptance of related plea agreements, the indictment, and the trial itself. To conclude that such misconduct was only a little unfair, but not enough to be harmful, turns the fundamental principle of due process on its head.“

The Judge reversed the convictions, and is granting all the Defendants a new trial. Stay tuned, we have not heard the last of this, I predict.

It seems there are three basic sets of crimes alleged in the indictment. First, there are two separate supposed frauds, followed by allegations that Representative Brooks violated the tax laws.

The first of the two fraud schemes supposedly involves a tax-exempt charity, Universal Humanities, Inc., that Brooks established in the early 1990s. The grand jury alleges that Brooks solicited contributions from corporate and individual donors purportedly to combat illiteracy in disadvantaged communities in Georgia and across the southeastern United States, eventually raising more than $780,000. The feds claim that Representative Brooks made specific false representations about the work that Universal Humanities was doing and how the donated funds would be used. Prosecutors also contend that in reality, Brooks did not use the donations to promote and address literacy in Georgia or elsewhere. Instead, the indictment alleges that Brooks used the money to pay personal expenses for himself and members of his family.

The second fraud scheme alleged involved the organization Georgia Association of Black Elected officials (GABEO). The indictment alleges that Brooks diverted charitable donations he solicited on behalf of GABEO and used much of the money to pay personal expenses for himself and his family.

The indictment alleges that Brooks solicited contributions to GABEO from corporations, organizations and individuals. The feds contend that Brooks secretly opened a second GABEO bank account, and set himself up as the sole signatory on this account, and had the account statements sent to his address rather than the address of the GABEO Treasurer. Brooks then deposited the donations he solicited on behalf of GABEO into this undisclosed account, and used much of these funds to pay personal expenses for himself and his relatives.

Finally, the indictment charges that Brooks underreported his income to the IRS for the years 2007 through 2011. Prosecutors contend that Representative Brooks misappropriated of hundreds of thousands of dollars through the two fraud schemes concerning Universal Humanities and GABEO, yet his tax returns for the years between 2008 through 2011 falsely reported income of only approximately $35,000 annually.

This indictment is like so many we have seen when we have represented public officials who face federal criminal charges. While often the defense team can show there was no fraud, or at least some confusion as to the fraud charges, it is exceedingly difficult to defend the tax charges when they come up with specific expenditures that clearly show the Defendant had income, yet that same income never shows up on the Defendant’s tax return. We have represented a number of public officials facing similar charges, and look forward to seeing how the defense responds to these allegations.

Mr. Nelson was the chairman of the board of Jaxport, the entity that basically oversaw the port authority in Jacksonville. The board members worked part-time, were not paid, and were prohibited from voting on any matter in which they had a financial interest.

Mr. Nelson lobbied on behalf of a company named SSI, received payments from SSI, and therefore did not vote on any SSI-related matters that came before the JaxPort board. He did urge staff members to help SSI on certain payment issues, but as noted by the dissent, “The evidence was that no economic harm befell JaxPort as the result of Nelson’s lobbying for SSI”. At one point he got an opinion from the City’s chief legal officer that he would have no problems in continuing his lobbying on behalf of SSI so long as he did not vote on anything that affected that company. His biggest problem was that he and SSI concealed the payments he received, the money was routed through a couple of other intermediary companies before it got to Nelson. The FBI got wind of the relationship between Nelson and SSI, they tapped their phones, and one morning agents showed up at Mr. Nelson’s house for a “talk.” He told them that once they arrived on his doorstep he then knew the payments were wrong, but did not say he previously was aware of the wrongfulness of his conduct.

Despite all this, the feds indicted Mr. Nelson for “honest services” mail fraud and federal services bribery. Many of us know the history of the honest services theory, a method of criminalizing what is basically the violation of a fiduciary duty. In the famous Skilling case, the U.S. Supreme Court restricted the honest services theory to “core” cases involving bribery and kickbacks, and seemed to hold that concealing one’s financial relationship is not the sort of conduct which can be prosecuted under these laws.

The majority in Nelson used a round-about way of deciding that he was guilty. Although he could lobby on behalf of SSI, and although he did abstain from voting on SSI business, the concealment of his payments from SSI meant that he had the intention to accept a bribe. Judge Hill’s dissent seems to be far more on point: “[C]oncealment alone is legally insufficient to prove Nelson had corrupt intent to be bribed. If Nelson had no duty to disclose his financial relationship with SSI, as Skilling says, and the payments were permitted, as he was told, then the jury was not permitted to infer a corrupt intent to be bribed by his concealment. The government’s theory was that – although concealment is not a crime – it was evidence of corrupt intent and this mens rea turned lawful lobbying into unlawful bribery. I disagree. Bribery requires a corrupt agreement to perform an unlawful official act – an actus reus. In this case, Nelson agreed to perform a lawful act. The lobbying was permitted. An agreement to perform a lawful act is called a contract, not bribery.”

The case also involved some serious problems with the jury instructions. Again, however, the trial lawyers failed to object, letting the appellate court use the “plain error” standard way of gutting the argument. As I have noted many times before, none of us is perfect, as trial lawyers we all make mistakes, but we also all need to remember to try and object as often as possible to any potential problem with jury instructions.

Don Siegelman was the Governor of Alabama. Richard Scrushy was the founder and Chief Executive Officer of HealthSouth. The case stemmed from allegations that Governor Siegelman placed Scrushy and others on a State Board in return for a $500,000 payment. The government charged them with a series of crimes relating to alleged public corruption. Specifically, Siegelman and Scrushy were alleged to have violated 18 U.S.C. §666(a)(1)(B), the law that prohibits bribery involving organizations that receive federal funds. The government also charged the defendants with “honest services” mail fraud, and conspiracy to commit same. Finally, Governor Siegelman was charged with obstruction of justice.

While the case was on appeal, the Supreme Court issued the well-known decision in US v. Skilling, a ruling that restricts the scope of the federal “honest services” branch of mail and wire fraud. Each defendant contended that Skilling changed the landscape, and that their convictions must be reversed. Likewise after the verdicts, the defendants uncovered what appeared to be troubling evidence of juror misconduct and exposure to extrajudicial materials.

A Panel of the Eleventh Circuit affirmed most of the fraud convictions and rejected the claims of juror misconduct. Along the way, the Panel made a few observations that are noteworthy for future cases.

For the charges alleging violations of §666, the Panel held that while there likely must be a quid pro quo between the bribery payor and the recipient, and that while there must be an explicit agreement that the recipient do something in exchange for the bribe, such an explicit agreement need not be express. In other words, the government does not need an email or a recorded conversation between the payor and recipient in order to get a §666 conviction.

The Panel affirmed some, but not all, of the post-Skilling “honest services” fraud convictions. Recall that Skilling restricted the honest services theory to traditional bribery/kickback schemes. Here, because the indictment alleged just such a scheme for many of the counts, the Panel affirmed the convictions on these charges. However, two charges alleged that Scrushy did not bribe anyone, but instead engaged in “self-dealing.” The Panel reversed these convictions based on insufficient evidence that either defendant committed these crimes.

Perhaps some of the most sensational aspects of this case have been the post-verdict revelations of possible juror misconduct. Defendants uncovered evidence that the jurors had been exposed to certain extrajudicial information. Furthermore, their legal teams received anonymous emails indicating that some of the jurors began deliberating before it was time to do so, had made up their minds long before the evidence was closed, and that some other jurors did not even participate in the deliberations.

The Panel rejected all the juror misconduct claims. First, the Eleventh Circuit held that the sort of extrajudicial information to which this jury was exposed was innocuous to the point where it did not affect the case. Second, the panel resorted to the rule that courts will rarely, if ever, intrude on a jury’s deliberations. Because of this reluctance, the Panel held that the anonymous emails were insufficient to result in a new trial.

This has been a sensational case, with law and politics colliding. I have a feeling it’s not over yet.

Background

For many years, federal prosecutors successfully argued that the mail fraud and wire fraud laws covered schemes to defraud the people of the “intangible right” to have affairs conducted honestly. Now referred to as “pre-McNally caselaw” this body of law was not uniform; the circuits disagreed on exactly what conduct constituted the illegal conduct at the boundaries of the law. In McNally v. U.S. in 1987, the Supreme Court held:

Rather than construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good government for local and state officials, we read [the mail fraud statute] as limited in scope to the protection of property rights. If Congress desires to go further, it must speak more clearly than it has.

Congress reacted by passing 18 U.S.C. § 1346, which states: “For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” Everyone agrees that Congress intended to overrule McNally and most seem to agree that the statute covers bribery and kickbacks, but because Congress failed to speak clearly, many issues at the borders of the law remain unresolved.

Since 1987, prosecutors have attempted to extend “honest services fraud” to many situations that would be less-than-obvious to readers of the statute. In Black, Conrad Black was convicted of honest services fraud in a private setting for use of a scheme to increase his own compensation that caused no harm to the corporation. In Skilling, Jeffrey Skilling was convicted in a private setting (Enron) in which the scheme involved no personal gain. In Weyhrauch, an Alaska legislator was convicted for failure to disclose a conflict of interest, even though Alaska law imposes no duty to disclose. When the Supreme Court denied certiorari in Sorich v. U.S. this year, Justice Scalia dissented, saying that it seemed irresponsible “to let the current chaos prevail” in this area of law. The Court will finally take on the responsibility with Black, Weyhrauch, and Skilling.

Oral Arguments in Black and Weyhrauch

At the oral argument in Black last week, the Court seemed eager to determine whether the constitutionality of § 1346 was properly before them in these two cases. Many of the Justices asked about a constitutional argument. Black’s lawyer asserted that he was presenting the constitutional question of vagueness (both notice and prosecutorial discretion) as a predicate for the logical disposition of the question presented. The government’s lawyer asserted that the constitutional question had not been posed in Black, but that Skilling, which had not yet been briefed, may present the issue. Chief Justice Roberts responded by asking, “you agree it would be very unusual if in June we announced the opinion in your case agreeing with you and then the next case announced that the statute is unconstitutional?”

The Court asked the government’s lawyer about the ins and outs of what is covered by honest services fraud, particularly what the lawyer called “undisclosed conflicts of interest by an agent or fiduciary who takes action to further that interest.” Justice Breyer worried that “perhaps there are 150 million workers in the United States. I think possibly 140 of them would flunk [the government’s] test.” The government’s explanation was that materiality and intent to defraud would exclude such employees, but Justice Scalia wasn’t satisfied with the government’s circular reasoning, asking, “I’m still waiting to hear what materiality consists. Is it just – de minimus doesn’t count?” and later remarking that nothing in the government’s brief or argument had “eliminate[d] these de minimus kind of … misrepresentations to the employer.”

The Court spent the next hour on oral arguments in Weyhrauch. Weyhrauch’s counsel argued primarily about the duties enforced by the honest serviced statute. When the government lawyer returned, however, the Justices turned back to the constitutional issues. The Court contemplated the ability of the average citizen to understand the law, with Justice Scalia asking at one point, “What is the citizen supposed to do? He is supposed to go back and read all those pre-McNally cases?” The government lawyer eventually assured the Court that vagueness is a legitimate concern that the government would not shy away from once raised in Skilling.

The Court has not asked the parties to brief the constitutional vagueness issue in Black or Weyhrauch, but the Skilling brief addresses it directly. Because oral arguments in Skilling have been pushed forward since that brief was filed, the Court will likely tackle the constitutional issue before announcing opinions in Black or Weyhrauch.

Skilling Brief

Filed on Friday, Skilling’s brief focuses on two issues: the constitutionality of honest services fraud, particularly where no private gain was intended, and whether the Government may rebut the presumption of jury prejudice. Regarding honest services fraud, Skilling set forth the following arguments.

A. To identify any meaning in § 1346, one must consult two decades of conflicting and confusing cases, so it is unconstitutionally vague.

The brief identifies five basic questions that the pre-McNally cases disagreed upon, making it “hopelessly unclear and conflicting” so as not to provide fair notice of what is criminalized by § 1346. These disagreements included: what source of law identifies the illegal conduct; whether contemplated economic harm to the employer was a necessary element; whether public and private sector standards were identical; whether duties extended beyond “official action,” and whether use of the fiduciary position was a necessary element. The brief quotes a dissenting judge from the Second Circuit as saying, “Ordinary people cannot be expected to undertake such an analysis [of the meaning of pre-McNally cases]; rare is the lawyer who could do it…”

The brief also details numerous conflicting meanings assigned to the statute by the government in the history of its prosecutions. The government has used this statute as a deus ex machina (a disgraceful literary device defined here) to proffer any meaning necessary to prosecute whichever defendant happens to be in its sights. By facilitating arbitrary prosecutions, this statute implicates “the other principle element of the vagueness doctrine.” In oral argument in Black, Justice Breyer brought up this point, joking about a criminal statute reading, “‘It is a crime to do wrong.’ sometimes adding, ‘in the opinion of the Attorney General.'” He then asked, “Now do you see the problem?”

Because of the vagueness issues and the Justices’ questions and remarks during oral argument, we are hopeful that the Court will decide that § 1346 is unconstitutional, now that the issue has been presented directly. The Court may, however, simply limit its application. Skilling argues that doing so would require creation of federal common law, which is not a part of the Court’s duty. Justice Scalia addressed this point numerous times during oral argument, saying, “[Y]ou speak as though it is up to us to write the statute… but that’s not our job.”

B. If the Court decides to uphold the statute, it should limit it to covering bribes and kickbacks, the only category of conduct unambiguously prohibited in pre-McNally caselaw.

Skilling argues that, if the Court upholds the constitutionality of § 1346, it should limit its application to the bribery and kickbacks that were paradigmatic of pre-McNally caselaw, rather than including the “self-dealing” types of cases that have garnered much of the confusion regarding this law. The bribery and kickbacks cases are what an average citizen would likely find when attempting to determine the meaning of the statute and the government has stated that Congress meant to codify the paradigm cases in enacting § 1346. The rule of lenity requires such a limitation. In addition, the pre-McNally self-dealing cases were effectively money or property fraud cases that did not need to be addressed by a new statute, so this is already-covered territory and extending honest services fraud to it would be redundant.

C. If the Court reads self-dealing into the statute, it should require private gain as an element of the offense, and disqualify normal compensation incentives established by the employer as “private gains.”

Finally, Skilling argued that even if self-dealing is covered by the statute, it should only apply in cases in which the defendant gained privately. Every circuit that addressed a private gain requirement in the pre-McNally cases enforced a requirement that the government prove that the defendant personally gained some economic benefit. Even during oral argument in Weyhrauch, the government lawyer stated that the government was after “personal conflicting financial interests.” When the Chief Justice twice repeated the word “financial,” the government lawyer responded each time with “That’s right.” If the majority of the Court follows through with these comments by the Chief Justice, then it appears that private gains will be a necessary element in an honest services fraud prosecution.

Skilling then argued that normal compensation incentives for doing a good job for the employer is not a private benefit for the purpose of § 1346. No pre-McNally cases held that normal compensation incentives qualified as private gains. In addition, since people are presumed to act in their financial self-interest and employers count on that behavior in incentivizing performance, “every salaried employee can be said to work for her own interest while purporting to act in the interests of the employer,” according to Judge Jacobs of the Second Circuit, in his dissent in U.S. v. Rybicki.

We look forward to reading the government’s reply brief, which is due January 25, 2010. We hope the Court will eventually hold that this statute is unconstitutionally vague, but, as Timothy O’Toole pointed out at the White Collar Crime Prof Blog, the Court denied certiorari in another honest services fraud case on December 7th. The case is U.S. v. Kincaid-Chauncey and the Ninth Circuit opinion is available at 556 F.3d 923. Because this case dealt with more straightforward bribery charges against a public official, the denial of cert. leads us to believe the Court may consider leaving the bribery and kickback aspects of the statute intact.

Transcripts from the oral arguments are available here

(Black) and here (Weyhrauch).

Skilling’s brief is available here.

Additional reading is available at the following locations:

ScotusBlog White Collar Crime Prof Blog NPR’s All Things Considered

The honest services fraud statute, 18 U.S.C. § 1346, expands the definition of a scheme or artifice to defraud under the mail and wire fraud statutes to encompass schemes that “deprive another of the intangible right of honest services.” This federal criminal case will address whether the statute requires the government to prove that the defendant’s conduct was intended to achieve “private gain” rather than to advance the employer’s interests, and, if not, whether the statute is unconstitutionally vague. A second issue in the case involves when a presumption of jury prejudice arises.

We have previously discussed two other honest services fraud cases, Black v. United States and Weyhrauch v. United States, that the Court will also hear this term. Our discussion of Black is here and of Weyhrauch is here. The differences between the three cases are: Black: A corporate executive’s use of a fraudulent scheme to increase his own compensation that caused no harm to the corporation. Skilling: A corporate executive’s use of a fraudulent scheme with no personal gain or benefit to the corporation. Weyhrauch: A state legislator’s failure to disclose conflict of interest where state law does not require such disclosure. Although these three cases have not been consolidated, we hope that the Court takes a comprehensive approach and straightens out the myriad issues plaguing interpretation of this law.

In its amicus brief in support of Skilling’s petition for a writ of certiorari, the National Association of Criminal Defense Lawyers (NACDL) encouraged the Court to resolve three principal issues: whether courts have the power to engraft limiting principles on the vague language of § 1346; if courts do not have that power, whether § 1346 is void for vagueness; and if they do, the content of those limiting principles. In addition to addressing these three issues, we hope that the Court takes the opportunity to create some meaningful and clear distinctions between public sector and private sector honest services fraud.

For an interesting analysis of the potential outcomes from these cases, see this post at the SCOTUSblog.

For more detail on the chaos plaguing interpretation of this statute, see this New York Times article. (A favorite tidbit of ours quotes Justice Scalia carrying it to its logical extreme, saying, “it would seemingly cover a salaried employee’s phoning in sick to go to a ballgame.”)

The briefs filed in Skilling are available at the SCOTUSblog.

The mail fraud and wire fraud laws are the bread and butter for federal prosecutors bringing white collar cases. Each of these laws requires a scheme to defraud another person out of “money or property.” For many years, federal prosecutors successfully argued that the word “property” included the right to “honest services” from public employees (such as elected officials). In 1988, the Supreme Court ruled that the word “property” does not include “honest services,” but several months later Congress amended these statutes so as to include the concept of “honest services” within the universe of cases that can be prosecuted under the federal mail and wire fraud statutes. Specifically, Section 1346 of the Federal Criminal Code expands the definition of a “scheme or artifice to defraud” under the mail and wire fraud statutes to encompass schemes that “deprive another of the intangible right of honest services.”

Despite the background of this type of fraud, the concept of “honest services” has now been extended by federal prosecutors beyond situations where a public official may have engaged in fraud. Recently, federal prosecutors are bringing more and more cases against people who work for private companies, arguing that the employee breached his or her duty of rendering “honest services” to the employer.

Last Monday the United States Supreme Court granted certiorari in Black v. United States. The Court will decide whether this Section applies in a purely private setting where the defendant’s conduct did not risk any foreseeable harm to the putative victims.

The case involves media mogul Conrad Black, who built an international newspaper empire from a single Canadian newspaper, eventually owning hundreds of community newspapers, as well as several large newspapers, such as the Chicago Sun-Times and London’s Daily Telegraph. In the late 1990s, Black predicted the affect the internet would have on newspapers and suggested that the company sell most of its smaller newspapers. As a part of those deals, purchasers paid Black for covenants not to compete, which the government construed as a scheme to defraud the company’s shareholders, although the money from those deals would have been paid to a different company controlled by Black and his co-defendant, anyway. The trial court’s instructions permitted the jury to convict even if they found that the shareholders didn’t lose any money. Black was convicted. The Seventh Circuit upheld the conviction, even though the law in at least five other circuits would have required reversal.

In 1999, the Eleventh Circuit here in Atlanta decided United States v. DeVegter, requiring the government to prove that economic harm was at least reasonably foreseeable in a private “honest services” case such as this one. Without this rule, Black argued in his petition to the Supreme Court, “[t]he only obstacle to converting every violation of corporate governance or company rules into federal crimes would seem to be the moment-to-moment whims of federal prosecutors.” We hope that the Supreme Court, when it decides this case, agrees with the Eleventh Circuit.

The Court’s docket for this case is available here.

The Seventh Circuit’s opinion below is available here.

Mr. Black’s petition for certiorari is available here.

The government’s brief in opposition is available here.

Mr. Black’s reply brief is available here.

The federal statute that was the basis for those charges protects witnesses and victims from retaliation in criminal cases. The indictment in this federal criminal case accuses Blitch of attempting to influence officials in two Georgia towns not to hire an applicant for the police chief position in both cities. That applicant was a former agent for the Georgia Bureau of Investigation who helped prosecute and convict Blitch’s son in a 1996 arson case.

The District Court ruled that the prosecutors misinterpreted the language of the statute when using it to charge Blitch. His ruling stated that “The statute is intended to protect from retaliation the private citizen who comes forward to provide law enforcement with information about a federal crime.” However, the law does not “protect the law enforcement officer who receives the information.”

Berrien Sutton, Blitch’s former law partner and a former State Court judge who was appointed by Blitch, has been indicted in this case, as well.

The Department of Justice is the mother ship for all of the various lawyers who work for the federal government. When it comes to prosecuting federal criminal cases, the 94 U.S. Attorneys offices around the country have front-line responsibility. The U.S. Attorney him or herself is a person appointed by the President to head up one of these 94 offices. However, the day-to-day operations usually are handled by prosecutors who have generally made a career of or have spent a long time as an Assistant U.S. Attorney (AUSA). The statistics in this new report show that there can be great variations between the 94 offices when it comes to how AUSA’s handle white collar federal criminal cases.

Some of the statistics in this report are set out in Appendix XIV. This Appendix details how federal prosecutors have handled white collar criminal investigations over the past 5 years. The Appendix goes through each of the 94 U.S. Attorneys offices, and details how many such cases were referred to the prosecutors, provides numbers on how many were actually prosecuted, gives figures on how many were refused for prosecution, and sets out how many are still just hanging around with no decision.

Again, remember that statistics can often mislead. Nevertheless, this report shows that in some U.S. Attorneys’ offices, the majority of white collar cases lead to formal criminal charges. In others, a relatively small percentage ever result in a criminal case. In many districts, the majority of white collar cases languish for many years before anyone makes a decision.

We represent many people who are investigated for federal white collar offenses such as mail or wire fraud, public corruption, money laundering and the like. The toll of such an investigation can weigh heavily on our clients and their families. These statistics show clearly that for some of our clients, they may have to wait many years before the case is either refused for prosecution or simply dies on the vine.