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Complications in loss analysis lead sentencing judge to abandon restitution altogether and to eschew victim loss in favor of lesser defendant gain in calculating the Sentencing Guidelines

Fox Rothschild LLP
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USA
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December 20 2012

In bank fraud cases, sentencing courts are obliged under the advisory Sentencing Guidelines to fix the "loss" at the greater of actual or intended loss to the victim, and to resort to the (usually more defendant-friendly) lesser gain from the offense only if that loss "reasonably cannot be determined."

Civil complaint does not by itself prove the occurrence of prior bad acts and so may not be admitted under FRE 404(b) even to prove notice

Fox Rothschild LLP
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USA
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December 14 2012

Under Fed. Evid. 404(b), the government often seeks to introduce evidence of prior conduct by a defendant, ostensibly because such conduct is probative of one of the Rule's permitted purposes for introducing extraneous evidence, such as showing that the presently-charged conduct was committed intentionally and not by accident or mistake

Trials as take-home exercises: deliberating jurors allowed to bring indictment home to study

Fox Rothschild LLP
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USA
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August 14 2012

Normally, trial judges are vigilant in ensuring that every step in a jury's deliberative process takes place within the confines of a single location: the jury deliberation room

Jury unanimity on commission of particular overt act not needed for conspiracy conviction

Fox Rothschild LLP
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USA
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June 21 2012

In United States v. Kozeny, 667 F.3d 122 (2nd Cir. 2011), a Foreign Corrupt Practices Act prosecution, the defendants were charged with having bribed Azerbaijani officials in order to acquire a state-owned oil company

Prosecutor's summary chart may include acts and events outside the indictment, without running afoul of Rule 404(b)

Fox Rothschild LLP
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USA
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June 4 2012

By charging a conspiracy or other broad scheme, such as mail or wire fraud, the government secures for itself an important evidentiary advantage: it can offer in evidence a string of acts or events not mentioned anywhere in the Indictment’s paragraphs or overt acts, limited as a practical matter only by the court’s impatience at the length of the government’s case

Madoff and charities: a further analysis on the vestiges of the Hadassah nightmare

Fox Rothschild LLP
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USA
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January 13 2012

Installments 66 and 65 in this blog series were earlier postings of aspects of the effects and aftermath, three years after disclosure, of Hadassah’s unfortunate decades-long involvement with Bernard Madoff (“Madoff”

Federal-program bribery statute applies even where object of the bribe is securing an intangible, non-commercial benefit

Fox Rothschild LLP
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USA
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December 20 2011

Federal prosecutors rely on 18 U.S.C. 666 to prosecute cases involving the bribery of local officials, where for example local officials take bribes to award contracts or grant approvals

Despite new expansive DOJ disclosure policies, multiple proffers taken of cooperating witness held not producible to defense without specific showing that they contain traditional Giglio material

Fox Rothschild LLP
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USA
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December 19 2011

The Department of Justice has, in response to a spate of cases involving its prosecutors behaving badly, recently routinized a set of procedures for handling discovery, in particular for identifying and disclosing Brady and Giglio material

MadoffPicardJudge RakoffWilpons: Picard gains a modest and uncertain Thanksgiving Eve victory in federal district court - Installment 64

Fox Rothschild LLP
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USA
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December 2 2011

This Installment addresses last week’s Memorandum Order on Thanksgiving Eve (the “Order”) by Judge Rakoff in the Wilpon Case that has been discussed in a number of recent blog entries in this blog series

Unsafe harbor -- attorneys paid fees from criminal proceeds may be charged with money laundering

Fox Rothschild LLP
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USA
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November 17 2011

Ever since the Supreme Court’s decision in Caplin & Drysdale v. United States, 491 U.S. 617 (1989), defense counsel have been on notice that the government may forfeit monies paid to counsel as attorney’s fees if derived from tainted funds, because the Sixth Amendment was held to offer no shield to statutory forfeiture of all criminal proceeds

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