Martha Stewart: The Return and Revival of A Media Mogul

[Photo from wikipedia]

Have you heard the news this week?  She's back!  Yes, according to various news reports, multi-media mogul Martha Stewart is back on the board of her own company, Martha Stewart Living Omnimedia.  According to reports, Ms. Stewart has now completed a five-year ban from participating as an executive or board member of a public company. 

The five-year ban had reportedly been part of a settlement with the Securities and Exchange Commission, based upon, or related to, her alleged complicity in insider trading of ImClone stock.  You will recall that Ms. Stewart was never actually convicted of insider trading.  She was only convicted, in 2004, of essentially lying to investigators about the facts related to the ImClone stock transaction.  She served 5 months in prison.

I still maintain, as a former federal prosecutor, (and currently, as an Augusta, Georgia criminal defense lawyer), that, if I had been her criminal defense attorney back in 2004, I could have possibly helped her avoid a criminal conviction.  In short, as I have written here previously, I believe that, in some grand jury investigations, targets could avoid prosecution if they would avoid making false statements to government agents.

But now, she is back -- on the board of her own company!  Don't you agree that she has paid her debt to society?  Doesn't she deserve a chance, once again, to rule her multi-media empire?  What do you think?

A New White Collar Crime in Georgia Series: "You Be The Prosecutor!"

                                            [Photo from Suite101.com]

Okay, today, we are going to start a new (occasional) series in this blog about white collar crime!  It is called: "You Be The Prosecutor!"  As many of you know, before I became an Augusta, Georgia criminal defense attorney, I was a state and federal prosecutor for much of my legal career.  As a former federal prosecutor, for over 20 years, I was required to make many decisions, based upon many different fact patterns, about who should or should not be charged with a crime.  In white collar crime cases, such decisions can be especially difficult to make.  

But now, it is your turn!  YOU be the prosecutor for a day!  Let's see what you would do, and who you would investigate, or charge, if anyone, in the following (totally) fictitious fact pattern!  Here are the "facts:"

A serious fire has occurred one night at a local textile mill.  Tragically, fourteen employees were unable to get out of the mill when aging mill machinery caught on fire and panic ensued among scores of mill workers.  Several fire extinguishers and the water sprinkling system had not been properly maintained and did not work.  The fire marshal's report also indicates that several employees located near fire exits were unable to get out the nearby exits because the exits had been padlocked by the mill manager months earlier.  The mill manager indicated that he had been forced to padlock all fire exits in order to address a problem with thefts by unidentified mill employees. 

The mill is owned by an investment company composed of three individuals who live out of state.  Several email messages indicate that the mill owners were ill-informed about the aging mill's conditions, but had expressed a desire that any new safety measures or inspections would have to yield to the bottom line.

Okay, You Be The Prosecutor!  What would you do?  Who, if anyone, would you make a target of a grand jury investigation (and why)?

 

Barry Bonds, Perry Mason, and Cross-Examination

As most of you are probably aware, the perjury trial of baseball home run king Barry Bonds is presently underway in Los Angeles.  Simply put, the focus of the criminal trial is whether or not Bonds committed perjury before a federal grand jury in 2003 concerning his alleged use of steroids.  Presently, according to news reports, Bonds' criminal defense attorney is cross-examining a key prosecution witness against the baseball star.

Reading about the Bonds case reminded me of the old Perry Mason t.v. program, which starred Raymond Burr.  In Perry Mason, cross-examination always appeared easy!  Ole' Perry always seemed to get the state's star witness to admit that they were the real murderer, just after the last t.v. commercial!

However, trust me, in a real courtroom, cross-examination isn't so easy.  As a former prosecutor and, currently, as an Augusta, Georgia criminal defense attorney, I am generally content if I can lay down a bunt single or two, during cross-examination, let alone hit a homerun, like Bonds.  It will be interesting to see if Bonds' criminal lawyer can swing for the fences in this case!

Special Challenges In White Collar Crime Prosecutions

As a former federal prosecutor who primarily handled major white collar crime prosecutions, I enjoyed the challenge of putting together a "mega case."  However, trust me, being a federal prosecutor isn't all fun and games!  In this blog, I have periodically described some of the special challenges faced by federal prosecutors in high profile cases.  Today, I want to focus on just one of those challenges:  the day-to-day stress and psychological challenges faced by Assistant U.S. Attorneys in long-term criminal investigations.

I realize that was a mouthful!  Let me try to explain this challenge more simply like this!  In a long-term federal criminal investigation, which can last for months, or even years, a federal prosecutor must deal with a host of issues.  For example, an A.U.S.A. may face, on a daily basis, among other issues, inter-agency squabbles, agent egos, a nosy news media, or supervisory pressures, and all without any end to the ordeal being in sight!  When you begin a mega case, you have no idea how long it may take.  It will end, perhaps months, or even years later, only when you, the lead prosecutor, decide you have enough evidence to seek an indictment. 

In contrast, most state prosecutions are of short duration.  In other words, as a state prosecutor, you quickly get your cases over and done with, and then go on to the next criminal case.  Put another way, as a state prosecutor, you fry your small fish and, win, lose, or draw, at least you get closure.  However, a lengthy federal prosecution, which may involve a federal grand jury investigation, can sometimes seem like a long, never-ending nightmare with no closure in sight! 

For example, I once led a task force of federal and state agents while investigating a high profile white collar crime target.  This one case was basically my full-time job for a couple of years.  But for much of the first year, I had almost daily arguments with one of the agents assigned to the case.  It was very stressful!  In my opinion, the agent was lazy and refused to follow directions.  And until my other agents took up the slack, and got the job done, I was forced to deal with this stress of dealing with that lazy agent on a daily basis. 

But please don't get me wrong!  In spite of all the stressors inherent in leading the charge as a federal prosecutor, I loved the job!  There are no other jobs in the world with the same unique challenges and in which you can sometimes make a real difference!

Lengthy Federal Criminal Investigations: Just Like Waterboarding

I want to get on the soapbox today! As many of you know, I am a former federal prosecutor. I've seen the good, the bad, and the ugly about federal investigations. Today, I have a beef about some federal prosecutors who needlessly drag out some federal criminal investigations! A lot has been written about waterboarding of terrorists recently. But that is not the point of this post. Instead, the point here is that, sometimes, lengthy federal grand jury investigations must feel like waterboarding to the business people and other targets of such investigations.

Federal prosecutors are entrusted with an awesome power and virtually unlimited resources to investigate and prosecute. But occasionally, that prosecutorial power is abused. And in some federal criminal investigations, it occasionally appears as though the federal prosecutors have no tangible goal other than the harassment of their targets. The grand jury investigations drag on and on, and the water just keeps on dripping.

The length and complexity of some federal criminal investigations are primary distinctions from most state criminal investigations. For example, a typical state murder investigation may take only a few days or weeks to wrap up, but some complex federal grand jury investigations may literally drag on for years.

In my opinion, as a former federal prosecutor, as long as there legitimately are targets and evidence which you are pursuing, then the prosecutor may be justified in continuing the investigation. But at some point, if the evidence does not materialize, then the federal agents and prosecutors are obliged to "pull the plug" and leave the poor targets alone! As Kenny Rogers would say, "You've got to know when to fold 'em...." But a few prosecutors never seem to know.

This post isn't about a liberal view or a conservative view--it's about fundamental fairness!

In addition, in my opinion, after pulling the plug, the federal prosecutor should also then send a letter to the former target's lawyer which informs them that the investigation has ended and no charges will be brought. Unfortunately, such "closure letters" are not often sent in the real world! In the real world, the former targets generally never get any real closure after they have been stepped on by the government.

All you get, as a former target, after tangling with the government, is huge legal fees, a loss of time, and, in some cases, a loss of reputation. I can imagine that many former targets feel like former Defense Secretary Casper Weinberger, who declared after jousting with, and beating, the government, "where do I go now to get my reputation back?"

But it doesn't have to be this way. Federal prosecutors must always consider the impact of the awesome power they wield and they should try harder to make their investigations fair. In short, more federal prosecutors should be willing to stop the water torture and pull the plug sooner on dead end investigations.

There, I feel better now, and I'll get off the soapbox...at least for now! What do you think?

Federal Grand Jury Target Letters

In the last blog article, we discussed what you should do if you are served with a federal grand jury subpoena. But what should you do if, instead of a receiving a subpoena, you receive a "target letter?" In federal grand jury practice, a target letter typically informs the recipient that he or she is a target of a grand jury investigation and that a federal prosecutor has decided you are a potential defendant. In addition, the federal prosecutor has decided to "invite" you to appear before a federal grand jury and see if you will incriminate yourself! So, what should you do?

The answer is: RUN to your (criminal defense) lawyer! In other words, receiving a target letter, which informs you that you may be indicted on federal criminal charges, is a very serious matter! Your criminal defense attorney should be an attorney who is experienced in federal court and in dealing with federal prosecutors. An experienced criminal defense attorney will contact the federal prosecutor, find out what is going on, and attempt either to obtain some concessions from the government, or perhaps "decline" the "gracious" invitation to appear before the grand jury.

In any event, if you have received a grand jury target letter, it is absolutely imperative that you seek legal help as soon as possible! You have a target on your back and need an attorney!

Grand Jury Subpoenas -- "Come On Down...!"

Here's a scary hypothetical for you to consider: Let's assume you are an executive who works for a home health care agency. For some time, you have suspected that your supervisor may be submitting some questionable billings to Medicare, but you have no proof. And then, one evening, you are visited at home by two F.B.I. agents who hand you a federal grand jury subpoena! What should you do?

In my opinion, you should call an experienced federal criminal defense attorney. And preferably, you will call a white collar crime defense lawyer who has extensive federal grand jury experience. In another blog article, we will discuss how the feds use the grand jury as a tool to investigate criminal cases. But the important point here is that, if you have been served with a federal grand jury subpoena, you should treat it as a very serious matter and get experienced legal help as soon as possible! One thing an experienced lawyer will do is to contact, on your behalf, the federal prosecutor, and/or the F.B.I. agents, in order to clarify your status as a grand jury witness, subject, or target. If your attorney learns that you are a target of the federal grand jury investigation, then he or she may attempt to obtain some concessions from the government in exchange for your cooperation. Many other possible scenarios may exist, but it is important, at this juncture, for your lawyer to learn as much as possible about your status BEFORE you go before the grand jury to testify. Hopefully, your lawyer will learn that you are not a target and that you are viewed by the government only as a witness. Even so, perhaps your lawyer can still confirm your status in writing.

So, the bottom line is: Federal grand jury subpoenas are serious matters which require the attention of an experienced federal criminal defense attorney. Call your lawyer promptly before you "come on down" as the "next contestant!"