Category Archives: Evidence

Mail Fraud — The Mail Must Actually Be Used to Further the Scheme to Defraud

By Rodger A. Heaton on January 7th, 2013 Posted in Evidence

The U.S. Court of Appeals for the Ninth Circuit recently re-emphasized that a defendant charged with mail fraud must actually be proven to have used the mails for the purpose of executing, or attempting to execute, the scheme. United States v. Phillips, No. 11-30195, (9th Cir. Dec. 26, 2012). Phillips was a CEO of a… Continue Reading

Federal Program Bribery: Proving the Value of Intangibles

By Rodger A. Heaton on October 11th, 2012 Posted in Evidence, U.S. Attorney's Office

Federal prosecutors are making increasing use of a federal program bribery statute, 18 U.S.C. § 666. But their propensity for using it in instances where a bribe is paid to obtain an intangible benefit is leading to problems. Appellate courts are loathe to overturn jury verdicts based on arguments of insufficiency of the evidence. But… Continue Reading

Aiding and Abetting Liability Under the Securities Laws Expands . . . Again

By Maranda Fritz on September 24th, 2012 Posted in Evidence, Securities Fraud

First Congress and now the U.S. Court of Appeals for the Second Circuit have eased the requirements for assertion of aiding and abetting liability under the federal securities laws. That claim of aiding and abetting a securities fraud, under Section 20(e), 15 U.S.C. §78t(e), has previously required adequate allegations of: (1) the existence of a… Continue Reading

Wiretap Use on the Rise in Illinois

By Sergio E. Acosta on August 14th, 2012 Posted in Constitutional Rights, Evidence

As most defense counsel have experienced, the toughest evidence to overcome in a criminal case can be an incriminating recorded conversation. Eyewitnesses can often be impeached and although documents may “speak for themselves,” as we lawyers like to say, the fact remains that documents can often be interpreted in different ways. On the other hand,… Continue Reading

The Sacrosanct Right to a Unanimous Jury Verdict—History Trumps Logic

By Rodger A. Heaton on July 24th, 2012 Posted in Constitutional Rights, Evidence

The U.S. Court of Appeals for the Sixth Circuit recently reaffirmed its position that a defendant in a federal criminal case cannot waive his right to have jurors unanimously decide his guilt. See United States v. Cunningham, 679 F.3d 355, 386 (6th Cir. 2012). The opinion does nothing to explain this view other than to… Continue Reading

The Sixth Amendment Applies to Criminal Fines Too

By Rodger A. Heaton on June 22nd, 2012 Posted in Evidence, Sentencing

The Supreme Court ruled yesterday that a court may not fine a company based on facts that were not found by a jury. Several years ago, the Court had held that the Sixth Amendment guarantees a jury trial on any fact (other than a prior conviction) that increases the maximum punishment authorized for a crime…. Continue Reading

A Project for the Not Quite Innocent

By L. Lee Smith on May 25th, 2012 Posted in Evidence, Sentencing

It has been widely reported in the news media in the last few days that the National Registry of Exonerations, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, (LINK) has compiled a list of over 2,000 people who have been exonerated… Continue Reading

Interesting New Decision on Electronic Seizures AKA Tooting My Own Horn

By Maranda Fritz on May 22nd, 2012 Posted in Discovery, Evidence, Securities Fraud

Over the past year I encountered an issue regarding electronic seizures that was, in my mind, remarkable but which is perhaps fairly common. For most of the last year, I felt that I was tilting at windmills, arguing that the government’s conduct was plainly impermissible while eyes rolled all over the courtroom. This week, the… Continue Reading

Gupta Insider Trading Prosecution May Hang On Court Ruling

By Sergio E. Acosta on May 14th, 2012 Posted in Evidence, Securities Fraud

The high-profile prosecution of Rajat K. Gupta in the Southern District of New York on conspiracy and securities fraud charges could be derailed if the Judge Jed S. Rakoff denies the prosecutors’ motion seeking to admit the hearsay statements of convicted co-defendant Raj Rajaratnam. The government itself has indicated that, “the importance of this evidence… Continue Reading

Our Trial Was Right Here a Decade or Two Ago

By L. Lee Smith on April 28th, 2012 Posted in Evidence, Sentencing

Americans love trials. Criminal trials, in particular, have been a favorite subject for both television (Law & Order, Perry Mason) and movies (To Kill a Mockingbird, The Verdict). But judges, lawyers, and litigants? Not so much. It has been widely reported here and here that the number of trials of all varieties (criminal, civil, bench,… Continue Reading

DOJ Makes First Arrest Arising Out of BP Oil Spill Disaster

By Daniel Purdom on April 25th, 2012 Posted in Evidence

On April 24, 2012, the Department of Justice arrested a former engineer for BP on charges of intentionally destroying evidence requested by federal criminal authorities investigating the April 20, 2010 Deepwater Horizon disaster. Kurt Mix, a former engineer for BP, of Katy, Texas was charged with two counts of obstruction of justice in a criminal complaint… Continue Reading

Computer Fraud & Abuse Act Reaches Unlawful Access, Not Unlawful Use

By Rodger A. Heaton on April 11th, 2012 Posted in Constitutional Rights, Evidence

Yesterday, the Ninth Circuit, sitting en banc, issued an important opinion interpreting the Computer Fraud and Abuse Act (CFAA). Disagreeing with decisions in other circuits, Judge Alex Kozinski authored an opinion holding that the phrase “exceeds authorized access” in the CFAA is unclear, and that the rule of lenity does not permit interpreting the statute… Continue Reading

A Breath of Fresh Air: The Fairness in Disclosure of Evidence Act of 2012

By Maranda Fritz on March 23rd, 2012 Posted in Discovery, Evidence

Just like the freakishly warm weather that descended on the east coast recently, an unexpected breath of fresh air has blown in from, of all places, Washington. Apparently timed to coincide with the release of the report regarding the 2008 Stevens trial, Senator Lisa Murkowski on March 15th introduced the Fairness in Disclosure of Evidence… Continue Reading

Legislation Proposed to Require Prompt Disclosure of Favorable Evidence

By Brian Zeeck on March 19th, 2012 Posted in Discovery, Evidence

The recent case involving Senator Ted Stevens, the extensive government corruption that was involved in the failed prosecution of the Senator, and the subsequent Schuelke-Shields Report outlining and documenting that misconduct have brought to light and called into question the application of Brady v. Maryland, 373 U.S. 83 (1963), and the restrictions (or lack thereof)… Continue Reading

Why Winning at All Costs Compromises Justice

By Sergio E. Acosta on March 14th, 2012 Posted in Discovery, Evidence

There’s an old “joke” among prosecutors that anyone can convict the guilty, but it takes a really exceptional prosecutor to convict the innocent. Not very funny, is it? The recent U.S. Supreme Court decision in Smith v. Cain, 132 S.Ct. 627 (2012), demonstrates that there are still criminal prosecutors out there who either don’t understand… Continue Reading

Imprisoned But Not In Custody For Miranda Purposes

By James Lydon on March 9th, 2012 Posted in Evidence

In a slip opinion delivered by Justice Alito on February 21, 2012, the United States Supreme Court reversed the Sixth Circuit and held that a Michigan state prisoner (“Fields”), who was removed from his cell and questioned by sheriff’s deputies about criminal activity that he allegedly engaged in before imprisonment, was not taken into custody… Continue Reading

Decryption and the Fifth Amendment: Can the Government Force Disclosure of Your Secrets?

By Rodger A. Heaton on March 1st, 2012 Posted in Discovery, Evidence

The stage is being set for the Supreme Court to evaluate technology’s effect on the scope of the Fifth Amendment right not to incriminate oneself. The government is seizing computers routinely now in investigations. But, the files on those computers are increasingly obscured from the plain view of government investigators (or anyone else who recovers… Continue Reading

Restitution Calculation By Comparing New Services Improper . . . Perhaps Unnecessary

By Brian Zeeck on February 13th, 2012 Posted in Bank Fraud, Evidence, Forfeiture, Sentencing

Defendant was convicted by a jury in the Northern District of Illinois for defrauding LaSalle Bank and sentenced to 96 months in prison, ordered to forfeit $16,241,202 in money that he obtained from the fraud, and ordered to pay restitution in the same amount. On appeal, the defendant only challenged the order of restitution. The… Continue Reading

Hungary? Why Wait?

By Brian Zeeck on February 5th, 2012 Posted in Evidence

Defendant was sentenced by the Western District of New York to 240 months imprisonment following her conviction for mail fraud, money laundering and conspiracy. Prior to indictment, the government petitioned the court to toll the statute of limitations under Section 18 USC 3292 in order to obtain additional evidence regarding bank accounts held by the… Continue Reading