The Eighth Edition of Federal Criminal Trials by NAFUSA Past President, and life member, Judge James Cissell has just been released by LexisNexis. This is the volume which we were initially introduced to as US Attorneys. It is a starting point for research and a fast in-trial resource. It covers constitutional protections, federal criminal procedure and the federal rules of evidence with straightforward language.
NAFUSA member Joe Whitley wrote the Foreword to the Eighth Edition and states that Federal Criminal Trials “takes the highly complex and indecipherable and makes it accessible and understandable to all who choose to enter into the trial of a criminal case.”
Lexis is offering a 20% discount to NAFUSA members. The discount is available at 800 833 9844 or go to Federal Criminal Trials with the promotion code NAFUSA20. List price is $230.00.
Don and “First Lady” Erica Stern at the DC conference
I would like to wish each of you a belated happy New Year. While we all have our hopes for this coming year (maybe less snow if you live in the South or more snow if you live in the West), my expectation for NAFUSA is really more of the same.
We continue to enjoy the warm collegiality and personal relationships that stem from our common professional history but which grow each year. We share a deep respect for the position and role of the United States Attorney and the Department of Justice. We support the laws and the Constitution of the United States, not just because we took an oath to do so, but because we know that the rule of law serves to advance and protect our rights and our nation. We share a common desire to not let our political differences interfere with our willingness to engage in rational discourse and debate. In short, we are a welcome oasis in this era of partisan gridlock and sound bites.
All of these qualities were on full display in our annual conference last Fall in Washington, D.C. Jay Stephens steady leadership culminated in what may have been our best ever conference. The programs were substantive and varied, with fantastic panelists. (How could we ever top a panel on the Supreme Court with Ted Olson and Carter Phillips, moderated by Pete Williams?)
The day of golf yielded the usual laughs and slices. The food and drinks from the scenic Jones Day rooftop was plentiful. Our “Day at Justice” with DOJ leadership was informative and inspiring. And, the boat ride benefited from great weather and my grandson taking his turn at the wheel.
Of course, the annual conference and the success of our organization were made possible because of the terrific work of our Executive Director Rich Rossman. We owe Rich (and Patty Rossman) our thanks for a job very well done.
We have begun planning for our next annual conference in Boston, October 9-11, 2014. It will be at the Fairmont Copley Plaza, a beautiful and old hotel in Back Bay which has undergone a major renovation. You will love its grandeur and location.
I am very much looking forward to welcoming you to Boston. Our city has gone through highs and lows over the past year. Indeed, the hotel is a block from the Marathon bombing sites and a mile or so from Fenway Park, the home of the World Champion Red Sox. In both instances, the strong spirit and grit of the people of Boston has helped us through this period. I know you will enjoy visiting this wonderful, walkable, and historic city. Indeed, since we are meeting over Columbus Day Weekend, you might consider planning a few extra days to see the Fall foliage in New England.
(Hear Stern interviewed on NPR about the AG’s decision to pursue the death penalty in the Boston bombing case.)
We will do our best to equal the professional and social offerings of last year’s DC conference. At the very least, you will have an opportunity to catch up with old friends and make new ones. Please check out our newsletter and website for current information about our members and about the conference. Sign up to attend when we open registration, pay your current dues and actively encourage others to join you. The Board meets in June to advance the planning of the conference, talk about ways to expand our membership and continue to keep us on a firm financial footing. Click to review a list of committee assignments for 2014 [pdf]. Please stay involved in this unique organization.
The law firm of Dowd Bennett LLP announced on January 24, 2014, that NAFUSA member James Martin will be joining the firm as a partner. Martin is a former U.S. Attorney for the Eastern District of Missouri and practices in the areas of white collar criminal defense, corporate governance and compliance and complex business litigation. He joins the firm from Armstrong Teasdale, where he has been lead defense counsel in numerous civil and white-collar criminal matters including a jury trial that resulted in a victory over the Securities and Exchange Commission in an enforcement action. Even before obtaining that result, Martin had previously been named by Missouri Lawyers Weekly as the “go- to lawyer for SEC investigations.” He also recently litigated a federal criminal fraud case in which his advocacy resulted in rulings from the court that led to the dismissal of the case by the government. As a federal prosecutor, he was successful in the prosecution of white collar crime, public corruption and tax fraud.
“We are delighted to have a lawyer with Jim’s tremendous experience as a new partner at Dowd Bennett,” said NAFUSA past president and life member Ed Dowd, Jr. “We worked with Jim at the United States Attorney’s office and during the Waco investigation and he gives us more depth in areas that are very important to our firm and our clients.”
In 1999 and 2000, Martin spent a year and a half working with former Senator John Danforth and Ed Dowd, Jr. in the Office of Special Counsel that investigated allegations surrounding the 1993 confrontation between law enforcement and the Branch Davidians in Waco, Texas. As Assistant Special Counsel, Martin served as Director of Investigative Operations, where he supervised 12 attorneys and 38 federal agents. Martin is now the fourth person from that Office of Special Counsel to join Dowd Bennett. On joining Dowd Bennett, Martin remarked “This is a tremendous opportunity for me to join the best group of trial attorneys in the State.”
Dowd Bennett, which specializes in complex commercial litigation, enforcement proceedings, and white-collar criminal defense, now has 20 lawyers. In addition to its other experienced federal and state court litigators, Dowd Bennett counts among its ranks multiple federal district court and circuit court of appeals clerks, state appellate court clerks, two United States Supreme Court clerks, two former United States Attorneys, four former assistant United States Attorneys, and a former Missouri state prosecutor.
For more information about Dowd Bennett LLP, please visit:www.dowdbennett.com
On Thursday, January 17, 2014, former NAFUSA president and lifetime NAFUSA member Margaret Person Currin was elected to serve as Chairman of the North Carolina Rules Review Commission by a vote of the members of the Commission. She was first appointed by the North Carolina Senate to membership on the Commission in 2011, was reappointed in 2013, and has served as its First Vice Chairman since her initial appointment.
The Rules Review Commission, an executive agency created by the North Carolina General Assembly in 1986, is the executive agency charged with reviewing and approving rules adopted by state agencies. The RRC consists of ten commissioners appointed by the North Carolina General Assembly, five on the recommendation of the President Pro Tempore, and five on the recommendation of the Speaker of the House.
Currin is on the faculty at Campbell University School of Law in Raleigh, North Carolina, where she has served in various administrative and faculty positions since 1981—taking time out for her service as U.S. Attorney for the Eastern District of North Carolina from 1988-1993.
NAFUSA member David Kelley, shown left, and his partner Joel Kurtzberg, are representing New York Times reporter James Risen in his effort to have the courts recognize a reporter’s privilege that would allow him to withhold testimony in a trial of a former CIA agent.
The CIA officer, Jeffrey Sterling, is charged with providing Risen with classified information. The U.S. Circuit Court of Appeals ordered Risen to testify at trial but approved Risen’s request that the proceedings be stayed during his appeal to the the United States Supreme Court. Kelley and Kurtzberg filed the petition for review to the Supreme Court, asking the court to take the case to resolve a split among the lower courts on the issue of a reporter’s privilege.
Kelley served as the United States Attorney for the Southern District of New York and is currently a partner at Cahill, Gordon & Reindel in New York. He clerked for the Hon. T.F. Gilroy Daly of the United States District Court for the District of Connecticut. He earned his J.D. from New York Law School. While attending law school, Kelley served as a police officer and fireman in his home township of East Hampton, New York. He has been an adjunct professor at New York Law School, and has taught trial advocacy clinics at Harvard and Hofstra Law Schools.
After SDNY U.S. District Judge Denise Cote found Apple guilty of colluding with five of the six largest publishers in the U..S. in an e-book price-fixing scheme, she appointed NAFUSA life member Michael Bromwich, shown above, to monitor Apple’s antitrust policies and procedures for two years.
Most companies are reluctant to open themselves to outside inspection. Yet Apple is even resisting someone who was appointed by a court to do exactly that, leading to an unusual public feud between the world’s biggest technology company and the Justice Department.
Apple is attempting to resist efforts by Bromwich to interview Apple board members and senior executives. They also complain about his hourly rate of $1,100. But at a hearing on Monday, January 13, Judge Cote told Apple and its lawyers “to stop wasting time and start cooperating with the monitor. Apple intends to appeal to the Second Circuit.
“Apple is no position to define the scope of the monitor’s duties,” said Judge Cote, who said she would soon issue a written decision that would amplify on her ruling at the hearing. “I want the monitorship to be a success for Apple.”
As to the issue of Bromwich’s fee,
But Judge Cote observed on Monday that “lawyers get paid a lot of money.”
She also pointed to a recent article in The National Law Journal that said it was not uncommon for top lawyers at a large law firm to bill clients at a rate of $1,000 an hour. Judge Cote noted that one lawyer at Gibson Dunn, one of the firms representing Apple, billed at a rate of $1,800 an hour.
[Note: on February 10, 2014, the Second Circuit Court of Appeals declined Apple’s motion to stay pending appeal and held Bromwich may continue while Apple purses its broader appeal to remove him. The Court did, however, hold their were some limits on what actions he might pursue as monitor.]
On Sunday, December 29, 2013, New York Mayor-elect Bill de Blasio named NAFUSA board member Zachary Carter as corporation counsel for the City of New York. Carter, shown above left, with Mayor-elect de Blasio at Sunday’s press conference.
Carter is a partner at the law firm of Dorsey & Whitney LLP in New York City, and co-chair’s the firm’s white collar crime and civil fraud practice. He served as the United States Attorney for the Eastern District of New York from 1993 to 1999. He is also a former magistrate judge of the United States District Court for the ED of New York and a former judge of the Criminal Court for the City of New York.
In an editorial in today’s New York Times, the paper said:
In selecting Zachary Carter, the former judge and United States attorney, as corporation counsel, the mayor-elect tapped someone with a long history at the top levels of the justice system. Mr. Carter has served as a criminal court judge and as a federal magistrate. But he is best known for his record during the 1990s as the United States attorney for the Eastern District of New York. He successfully prosecuted many high-profile cases, including the one against Jordan Belfort, the stock trader known as the Wolf of Wall Street, and the case against the New York City police officers who brutally assaulted Abner Louima.
The new movie “American Hustle”, the Martin Scorsese comedy loosely based on the 1970s Abscam scandal, evoked memories in NAFUSA member Hickman Ewing, shown above with his wife, Mary, at the NAFUSA conference in Washington. Ewing served on the Attorney General’s leak investigation team in the 1970s, along with NAFUSA Executive Director Rich Rossman. Ewing writes:
Starting in the 1970’s some U.S. Attorney’s Offices made efforts to begin using the federal statutes to combat corruption in state, federal, and local government. WD Tennessee was in the forefront of this.
The FBI came along, but in the beginning wanted to concentrate more on “stats” (statistics based on volume of cases) rather than invest lots of time and manpower into undercover investigations which might not result in prosecutions in the end.
By Mike Cody’s time as U.S. Attorney, they were getting the hang of it. In about 1978, 3 districts (FBI, USAO) were recognized as doing the most in corruption – ED PA (Philadelphia), ND IL (Chicago), and WD TN (Memphis).
The ABSCAM investigation did not touch Tennessee per se. It was run out of Washington DC, NY, NJ. At the same time there were two other major federal undercover investigations. One was code named BRILAB (Bribery-Labor), and the other PENDORF (involving Nevada, organized crime, and elected officials).
Early in 1980 the ABSCAM investigation got leaked to the media. The Department of Justice and FBI responded quickly to try and find the leakers. They wanted to take the position before the courts where the congressmen were going to be prosecuted that this was not an intentional orchestrated leak which would require dismissal.
Because it was so widespread, the normal OPR (Office of Professional Responsibility) of both the DOJ and the FBI were not staffed adequately to handle it.
The Attorney General (Benjamin Civiletti) called on the then U.S. Attorney from Connecticut Dick Blumenthal (now a senator from that state) to come to Washington and head up the leak investigation. Dick had been a Washington Post reporter before his legal career. He was given an office at DOJ. He worked closely with John Otto, who was the head of the FBI OPR.
Two First Assistant United States Attorneys (AUSA’s) were brought in to assist him with the ABSCAM leak investigation: Rich Rossman from Detroit and Jerry O’Neill from Vermont. An extra FBI supervisor and 10 experienced agents rounded out that leak investigation team.
** Now how it touched us – Shortly after the ABSCAM investigation leaked, the BRILAB investigation leaked – it covered many more cities than ABSCAM. Dick Blumenthal called his colleague Mike Cody. On a break from court, Mike told me [Ewing was Cody’s first assistant at the time] that Dick had asked if I would be interested in being the AUSA to help on the BRILAB leak investigation. I was told that it would take 4-6 weeks. I went to Washington DC at the end of Feb 1980. Dick asked me to look at the materials and recommend to him how much manpower we would need. I recommended that we have another First AUSA, and FBI supervisor, and 10 field agents. Bill Skretny, the First AUSA from Buffalo NY became my investigating partner.
It took us about seven months to complete our part – as we travelled to Los Angeles, San Diego, Houston, Dallas, San Antonia, Oklahoma City, New Orleans (Carlos Marcello was involved), Mobile, and Washington DC. We interviewed in excess of 1,000 people, including FBI, AUSA’s, judges, etc. Among those I remember, all of whom were without fault, were: the U.S. Attorney in Los Angeles Andrea Ordin, and then AUSA Ron Woods in Houston. We did not interview or try to talk with any of the reporters in question. I remember who they were.
[Richard Stephens, First AUSA in Dallas came in later to head the PENDORF leak investigation]
Though we did not investigate the ABSCAM matter per se, there were lots of common “subjects” of the leak investigations, especially at the DOJ/FBI Washington DC level. We asked a number of government employees – FBI, DOJ, USAO, etc – to take polygraphs. We pretty well figured it all out and made reports to the Attorney General. He and the Director of the FBI determined the discipline.
Rossman became U.S. Attorney in Michigan at some point, served in the DOJ during the Clinton administration, and is now the director of the National Association of Former U.S. Attorneys (Mike and I just saw him in Washington at the end of Sept. 2013). Bill Skretney became a U.S. District Judge in Buffalo.
You know the rest of our stories.
On Friday, December 20, 2013, the United States Senate voted 54-41 to confirm NAFUSA member Alejandro Mayorkas as the Deputy Secretary of the Department of Homeland Security, the second-ranking official at DHS. Mayorkas had served as the Director of United States Citizenship and Immigration Services (USCIS) since 2009 until his confirmation as deputy secretary. He was a participant on the NAFUSA panel on immigration at the Atlanta conference in 2012.
He served as the United States Attorney for the Central District of California 1999-2001. At the time of his appointment by President Clinton, Mayorkas became the youngest U.S. Attorney to serve the nation at that time.
Prior to becomming the director of USCIS, Mayorkas was a partner in the law firm of O’Melveny & Myers LLP. He served as a member of firm’s worldwide governing Policy Committee. In 2008, the National Law Journal recognized Mayorkas as one of the “50 Most Influential Minority Lawyers in America.” He was born in Havana, Cuba and is a graduate of Loyola Law School.
In the lead editorial in The New York Times on December 26, 2013, Homeland Security’s New Chief, The Times urges the the newly confirmed DHS Director Jeh Johnson to bring immigration enforcement into balance and gives favorable mention to the Mayorkas appointment:
Mr. Johnson has little experience with immigration. But the homeland security deputy secretary confirmed on Friday, Alejandro Mayorkas, does. Mr. Mayorkas is the director of Citizenship and Immigration Services, the agency within homeland security that handles legal immigration. Under Mr. Mayorkas’s capable leadership, it has done a good job in managing the deferred-action program. Mr. Mayorkas, an immigrant himself, looks to be an excellent partner for Mr. Johnson in beginning the formidable job of bringing the department’s immigration policies and practices into line with its mission.
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