Congress Seeks To Limit White Collar Prosecutions

From the story U.S. Prosecutors Say New Limits May Help Future Enrons Go Free:

Oct. 1 (Bloomberg) -- U.S. businesses, with the help of civil libertarians, are on the verge of outmaneuvering federal prosecutors and persuading Congress to limit the government's power to pursue corporate fraud.

Lawmakers are considering a measure that would, among other things, bar the government from demanding that companies reveal confidential talks with their lawyers in order to win leniency in plea deals. It would also prohibit federal agencies, including the Securities and Exchange Commission, from demanding that companies fire or cut off legal support for employees under investigation.

Such tools were crucial in helping prosecutors pry loose valuable information in hard-to-prove cases against WorldCom Inc. and Enron Corp. Curtailing them may mean fewer such investigations in the future, putting investors more at risk.

``Pre-Enron, U.S. attorneys never brought these cases, and after this bill is passed, they will quit bringing them again,'' says Lynn Turner, a former SEC accounting chief. ``This is a very clear message from Congress: Don't touch white-collar criminals.''

The Justice Department's guidelines for corporate cases were crafted as it and the SEC sought to cope with the explosion of financial scandals early this decade by offering companies leniency in exchange for cooperation.

That typically means a company reports potential illegality, conducts its own internal probe and waives the attorney-client privilege. Prosecutors say they need such confidential information to ensure against cover-ups and, if necessary, help them freeze assets that might otherwise be hidden or squandered.

No Secret

``It's no secret that cooperation from defendants of all types is a very effective tool we need to use in getting the bad guys,'' says Karin Immergut, U.S. attorney in Oregon and head of a Justice Department white-collar crime committee.

Immergut says the waiving of attorney-client privilege played a vital role in the prosecution of former Chief Executive Officer Bernard Ebbers for the $11 billion WorldCom fraud --he's now serving a 25-year prison term -- and helped the government locate and seize $80 million in cash from financier Martin Armstrong, who pleaded guilty in an investor fraud.

Company documents aided accounting probes at Enron and Adelphia Communications Corp., and helped convict 11 former executives in connection with a $67 million fraud at online real-estate seller Homestore Inc., the Justice Department says.

...

Mobilizing

In the absence of an all-out defense by the department, prosecutors on the front lines are mobilizing to fight the legislation. ``This bill would certainly make it harder for prosecutors to protect victims and the investing public,'' says Immergut. Pointing out that drug defendants are routinely asked to waive their rights if they want leniency, she asks why executives deserve special treatment.

``I frankly find it kind of baffling that people are proposing legislation that protects corporations and corporate officers like CEOs more than other individuals,'' she says.

I think this just shows you who our elected officials really work for. Do you ever get the feeling that it is their own self-interest they are voting on?

Prisoner's Debt

You all have heard of Debtor's Prison, but how many of you were aware of the fact that many convicts come out of prison with more financial debt than they can repay (and rarely is it dischargeable in bankruptcy).

The New York Times today brings light to this rarely discussed topic in an editorial today.

The scope of the ex-offender debt problem is outlined in a new study commissioned by the Justice Department’s Bureau of Justice Assistance and produced by the Council of State Governments’ Justice Center. The study, “Repaying Debts,” describes cases of newly released inmates who have been greeted with as much as $25,000 in debt the moment they step outside the prison gate. That’s a lot to owe for most people, but it can be insurmountable for ex-offenders who often have no assets and whose poor educations and criminal records prevent them from landing well-paying jobs.

...

A former inmate living at or even below the poverty level can be dunned by four or five departments at once — and can be required to surrender 100 percent of his or her earnings. People caught in this impossible predicament are less likely to seek regular employment, making them even more susceptible to criminal relapse.

Here are the proposed solutions as reported by the Times:

The Justice Center report recommends several important reforms. First, the states should make one agency responsible for collecting all debts from ex-offenders. That agency can then set payment priorities. The report also recommends that payments to the state for fines and fees be capped at 20 percent of income, except when the former inmate has sufficient assets to pay more. And in cases where the custodial parent agrees, the report urges states to consider modifying child support orders while the noncustodial parent is in prison. Once that parent is released, child support should be paid first.

The states should also develop incentives, including certificates of good conduct and waivers of fines, for ex-offenders who make good-faith efforts to make their payments. Where appropriate, they should be permitted to work off some of the debt through community service. Beyond that, elected officials who worry about recidivism need to understand that bleeding ex-offenders financially is a sure recipe for landing them back in jail.

Here is what bothers me about this aspect of the penal system: the people who need to pay hefty fines -- those that commit white collar crimes, for instance (for example: insider stock trading), rarely have to pay fines and restitution equal to the amount they stole, swindled or conned from their victims and many times they are quite capable of paying it (even though it may mean that trusts that they created to be exempt from creditors have to be "pierced").

This is another reform that needs to be addressed, in my opinion.

The Sordid O.J. Simpson Saga

I don't normally like to make comments about celebrity tabloid news, but one news item I heard on the radio this morning caught my attention. The interview that Thomas Riccio gave to the LA Times doesn't help O.J. Simpson's case:

He told the Los Angeles Times he arranged the meeting after receiving a phone call about a month ago from a person who claimed to have personal items -- including footballs, awards and photos -- that had belonged to Simpson and wanted to sell them.

"Simpson was supposed to show up, identify the items and tell the men to either give the stuff back or he would call the police," Riccio told the newspaper. (emphasis mine)

Let me see if I get this straight: Simpson allegedly was going to threaten someone with criminal prosecution if they "didn't give him his stuff back."

Someone needs to explain to O.J. Simpson the legal definition of extortion:

Extortion

The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

And this:

Elements of Offense

Virtually all extortion statutes require that a threat must be made to the person or property of the victim. Threats to harm the victim's friends or relatives may also be included. It is not necessary for a threat to involve physical injury. It may be sufficient to threaten to accuse another person of a crime or to expose a secret that would result in public embarrassment or ridicule. The threat does not have to relate to an unlawful act.

So, if Thomas Riccio was telling the truth to the LA Times about what Simpson's intent was prior to the actual incident, Simpson might have gotten into legal trouble anyway.

This is an example of why you don't engage in vigilante justice.

Having said that, I think I know the real reason why Simpson didn't just call the police: had he done so, news undoubtedly would have gotten out as to the whereabouts of his personal assets -- which then would have alerted the Goldmans and would probably would have been seized to pay the civil judgment against Mr. Simpson.

This is pure speculation on my part, but it makes sense to me. In his attempt to keep assets from the Goldmans, he apparently had to do business with some shady people. I don't doubt that some of them took advantage of his precarious situation; but it was somewhat a dilemma of his own making.

Now the Goldmans know where the assets are and will undoubtedly start legal action to recover these assets and Mr. Simpson is finding himself in a lot of legal hot water to boot.