All Things Legal - The Law for Non-Lawyers

Page 10 - Get up to date with the latest news, scores & standings from the Cycling News Community.
Dec 7, 2010
5,507
0
0
2010 year-end False Claims Act update: Part 1

False Claims Act litigation and enforcement exploded in 2010 with unprecedented intensity. Indeed, the government secured more than $3 billion in civil settlements and judgments for its fiscal year ending Sept. 30, 2010 — a 25 percent increase over the previous year, and the second-largest yearly recovery amount ever. The Justice Department's total recoveries in False Claims Act cases from January 2009 through January 2011 have exceeded $6.8 billion, which is far greater than any other previous two-year period. With these new numbers on the books, the total amount recovered under the False Claims Act since Congress amended the statute in 1986 has climbed to the staggering amount of more than $27 billion.
 
Oct 22, 2009
66
0
0
pedaling squares said:
From the NYVelocity thread:

This is not the first time that I've seen someone state that the SCA testimony is inapplicable to perjury. Can someone explain what it is about the relevant US/State law that makes this so? I checked the difference in definitions of perjury between the US Code and the Canadian Code with which I am more familiar. Was the SCA hearing held under some state law that is outside the scope of the US Code? The US Code states any case in which a law of the United States authorizes an oath to be administered; do civil cases not apply? I'm interested in learning more about this.
The status of the case as a civil, rather than criminal, case is irrelevant to the perjury question.

The real point is that it was a case before a state, not Federal, court. Thus, the oath LA took was not authorized by "a law of the United States," which in this context means a Federal law. So, the Feds would have no jurisdiction to prosecute a statement in the SCA deposition for perjury. That would strictly be up to a Texas state attorney, who has pretty broad discretion to pursue it or not. So, some state attorney in Austin with no connection to the Federal investigation (and, probably, an overwhelming caseload already) would have to make an independent decision to go after LA for perjury. Not impossible, but probably not going to happen.
 
Oct 8, 2010
451
0
0
Marva32 said:
The testimony of a grand jury proceeding is secret only until a certain point.
Grand jury testimony is not secret. Witnesses are free to tell any newspaper or even the defendant himself whatever they testified to in the grand jury.

It's called the First Amendment. Ever hear of it?

Speedzero said:
The status of the case as a civil, rather than criminal, case is irrelevant to the perjury question.

The real point is that it was a case before a state, not Federal, court. Thus, the oath LA took was not authorized by "a law of the United States," which in this context means a Federal law. So, the Feds would have no jurisdiction to prosecute a statement in the SCA deposition for perjury. That would strictly be up to a Texas state attorney, who has pretty broad discretion to pursue it or not. So, some state attorney in Austin with no connection to the Federal investigation (and, probably, an overwhelming caseload already) would have to make an independent decision to go after LA for perjury. Not impossible, but probably not going to happen.
The lies Lance told in the SCA case can be used against him in federal court to show conspiratorial conduct to keep his doping program going. So while the lying per se might not in and of itself be an indictable offense (i.e. perjury), it can absolutely be used as incriminating evidence against him in federal court to prove other criminal conduct.

runninboy said:
My father & grandfather both prominent lawyers with over 100 years of experience. The one thing they drummed in to me at a young age

"Anyone can bring a lawsuit for any reason whatsoever, it is up to a judge as to whether it has any merit"

They used to regale me with stories of preposterous lawsuits that were not only allowed to go to trial but succeeded. Sometimes judge's decisions went contrary to the law on the face of it but the judge would find some rationalization in order for the trial to go forward.

Also i have heard & seen of blatant miscarriages of justice. One of the worst involved an "open & shut" case. A woman ran a stop sign, and totalled my Mothers car, breaking her leg. The woman admitted fault and her sole defense was something along the lines of "the sun was in my eyes". she was at fault, caused extensive damage broken several laws and admitted liability. The trial had barely started when the judge took all parties into chambers, he turned to my mother and said"isn't your husband that big shot lawyer who wins all his cases?" my mother said yes and he said he was going to even things out a little by dismissing the lawsuit.
and he did.
When my mothers lawyer asked why the judge said "i dont have to give you a reason," and invited him to take it up with the bar.
I couldnt believe it, my father was livid when he heard, but that was that.
He explained to me that this happens everday, people bait your pride and if you take the bait they will ruin you financially. It is one huge chess game that most people should avoid.
Some judges make their own law. That is a fact and every decent lawyer in this country(US) knows it.
sad but true
so to reiterate
anyone can bring an action against anyone else for any reason whatsoever.
Sounds to me like the judge is corrupt and so is the bar in whatever state you practice. And how come your mom didn't appeal and bring all this up on appeal?

Or is the appeal court in your state corrupt too?

uspostal said:
If the cyclists talking to the feds now and still ride, say they doped, could the UCI then come in and suspend then. Just wondering if that is a possability or could cause then to be less than forward, or only answer what is directly asked and no more.

Chuck
So long as whatever doping they admitted to was within the 8 year statute of limitation of the WADA Code, yes.

QuickStepper said:
I'm not going to address admissibility or relevance. But the answer to your question is, assuming Lance or someone within the territorial limits of the United States has possession, custody and control of physical evidence, the Grand Jury (or either the prosecution or defense in a subsequent criminal proceeding brought following the issuance of an indictment) can cause the physical evidence to be produced by way of service of a subpoena requiring its production.

Whether the physical evidence could then later be re-tested by someone is probably not going to happen, at least I know of no authority that a prosecutor would have to compel that to be done. Both the physical evidence and the reports of any tests previously conducted by a testing agency could be subpoenaed. The real question again would be whether any of what is subpoenaed is either relevant to anything or whether it would be admissible at all (for a variety of reasons involving matters having to do with the admissibility of scientific evidence that are far beyond the scope of this question).

Simple answer: Yes, physical evidence can be subpoenaed as long as it's within the jurisdictional limits of the United States of America. The power to compel either the production of witnesses or evidence though does not extend beyond the borders of the U.S..

Not sure I really answered your question, but I think I did.
You are incorrect. There is nothing stopping a federal law enforcement official from obtaining Lance's urine samples from Europe (or anywhere else) and testing them. All they need is the sample.

The testing of evidence is not something any judge would be inclined to limit. Have you ever heard of a judge telling the FBI they couldn't dust a gun for fingerprints or run a DNA test on blood they have?

Why would running an EPO test be any different than a DNA test?

Why do you think the feds are in the process of getting Lance's urine samples from the '99 Tour that tested positive for EPO at the LNDD lab?

Colm.Murphy said:
This next item I'd like to see discussed regards evidence. Specifically, the obatainability of Armstrong's samples for further re-testing, values of his Bio Passport since he returned, and an assembly of his data from the past into the framework of the current Bio Passport.

Evidence has been covered previously, thanks for that, so if this is TOO much speculation built into this item, please simply ignore/delete this post.

Specific questions:

1. Would a US Federal court have the authority to force Lance or USADA to obtain or provide Armstrong's remaining physical samples, test result data over his history of testing?

2. If a US Federal court does not have the authority, who would?
USADA would cooperate with the feds to the extent that the WADA Code would allow. No need to get a court order from a federal judge. That's why Miller and Novitzky were in Europe..to try to negotiate with the LNDD to get Lance's '99 Tour samples, which tested positive for EPO.

Lance and his attorneys should have any problem with this because Lance has stated many times he wants to cooperate and that since he never took EPO, he would have no reason to object to further testing.

In fact, Lance has gone on record as saying he favors preserving his samples for future testing.

QuickStepper said:
[Edited on 7/30/2010 to add: I see that this thread was heavily edited by the mods. I was answering a particular question, which evidently was deleted. Not sure what I was answering, so this post really exists in a vaccum in terms of the comment "precisely". Oh well....I suppose the information is what was most useful. Still, I think it odd that this thread had to be that heavily edited....I was obviously responding though to some back-and-forth on the impact of someone asserting their 5th amendment right to avoid self-incriminating testimony and what inferences, if any, could be legally drawn by the exercise of that privilege]


Precisely.

Any target or witness called before a grand jury can refuse to testify if to answer a question might tend to incriminate the witness, unless the witness is granted immunity from prosecution. This is one of the fundamental protections of the U.S. Constitution's 5th amendment (the others are the right to be indicted by an impartial grand jury, the right to avoid double jeopardy--being tried twice for the same offense-- and the right to due process of law, i.e., the prohibition against being deprived of life, liberty or property without due process).
This is incorrect. You can still assert 5th Amendment right to remain silent even if granted immunity from federal prosecutors based on your 5th Amendment right against state charges from which a federal prosecutor's promise of immunity would not apply. Unless the state also signs on to immunity, you can maintain a 5th Amendment right in federal court to protect oneself against incrimination at the state level.

If this is a new way of looking at it, it's because most lawyers (and judges) aren't all that bright. So I don't care if this has ever been done before or not.

A federal judge would have to consider whether a witness has a right to assert their 5th Amendment right that is still left exposed to incriminating oneself in state court. You failed to take that into consideration and, as such, your answer is typical lawyer gloss.
 
Aug 10, 2010
6,286
0
0
TERMINATOR said:
This is incorrect. You can still assert 5th Amendment right to remain silent even if granted immunity from federal prosecutors based on your 5th Amendment right against state charges from which a federal prosecutor's promise of immunity would not apply. Unless the state also signs on to immunity, you can maintain a 5th Amendment right in federal court to protect oneself against incrimination at the state level.

If this is a new way of looking at it, it's because most lawyers (and judges) aren't all that bright. So I don't care if this has ever been done before or not.

A federal judge would have to consider whether a witness has a right to assert their 5th Amendment right that is still left exposed to incriminating oneself in state court. You failed to take that into consideration and, as such, your answer is typical lawyer gloss.
Terminator's statement is nonsense. Murphy v. Waterfront Comm'n, 378 US 52; Kastigar v. US, 406 US 441. The discussion in In re Grand Jury Proceedings, 662 F.2d 532 (9th Cir 1981) demolishes his silly frivolous argument.
 
Jul 23, 2010
270
0
0
Terminator contends that the analysis I provided last year regarding compelled production of evidence located in a foreign jurisidiction was incorrect. I remain unpersuaded. I was not suggesting that if the FBI or some other agency already had physical custody of evidence here in the U.S. that they would be precluded from testing it. The question under discussion was whether the Feds would have power to compel a foreign entity (e.g., a testing lab), or foreign government that currently had possession of samples, to produce the material here in the U.S.. And absent consensual agreements (e.g., in the form of treaties) the compelled production of evidence in a U.S. court from a foreign national located abroad is beyond the power of prosecutors to compel. In other words, assuming the physical evidence remains overseas, a U.S. prosecutor does not power to compel any re-testing. Perhaps cooperative agreements, yes, but not by way of compelled production of the evidence.

Second, I think MarkvW responded quite simply and elegantly.

Beyond that, the condescending tone of Terminator's replies is, in my view, not warranted. If we want to have a discussion about the law, fine. But there is no place in a legitimate discussion for ad hominem attacks that are intended to belittle or denigrate those who have taken the time to simply share information. If that's "typical lawyer gloss" so be it.
 
Aug 10, 2010
6,286
0
0
QuickStepper said:
Terminator contends that the analysis I provided last year regarding compelled production of evidence located in a foreign jurisidiction was incorrect. I remain unpersuaded. I was not suggesting that if the FBI or some other agency already had physical custody of evidence here in the U.S. that they would be precluded from testing it. The question under discussion was whether the Feds would have power to compel a foreign entity (e.g., a testing lab), or foreign government that currently had possession of samples, to produce the material here in the U.S.. And absent consensual agreements (e.g., in the form of treaties) or the application of military force, the compelled production of evidence in a U.S. court from a foreign national located abroad is beyond the power of prosecutors to compel. In other words, assuming the physical evidence remains overseas, a U.S. prosecutor does not power to compel any re-testing. Perhaps cooperative agreements, yes, but not by way of compelled production of the evidence.

Second, I think MarkvW responded quite simply and elegantly.

Beyond that, the condescending tone of Terminator's replies is, in my view, not warranted. If we want to have a discussion about the law, fine. But there is no place in a legitimate discussion for ad hominem attacks that are intended to belittle or denigrate those who have taken the time to simply share information. If that's "typical lawyer gloss" so be it.
Added a bit of a bludgeon to your post. Don't think it detracts from your points.
 
Jul 24, 2009
29
0
0
MarkvW said:
Terminator's statement is nonsense. Murphy v. Waterfront Comm'n, 378 US 52; Kastigar v. US, 406 US 441. The discussion in In re Grand Jury Proceedings, 662 F.2d 532 (9th Cir 1981) demolishes his silly frivolous argument.
+1!!!!!!!!!!
 
Mar 11, 2009
3,274
0
0
Bit off-topic but: If Hoogerland isn't able to finish the race, would he be able to sue the guy in the French TV car who went carmageddon on him in any way?
 
Mar 19, 2009
2,811
0
0
ak-zaaf said:
Bit off-topic but: If Hoogerland isn't able to finish the race, would he be able to sue the guy in the French TV car who went carmageddon on him in any way?
I'm pretty convinced Johnny and VS be most understanding rather than sue, to stay in positive light with ASO, and prevent any other nasties to come out. For now, they're just really happy with the huge publicity.
But yeah, sure they could make a case. Then, it's Europe. Best you'll get is your bike parts and bandage costs reimbursed.
 

Barrus

BANNED
Apr 28, 2010
3,480
0
0
Cloxxki said:
I'm pretty convinced Johnny and VS be most understanding rather than sue, to stay in positive light with ASO, and prevent any other nasties to come out. For now, they're just really happy with the huge publicity.
But yeah, sure they could make a case. Then, it's Europe. Best you'll get is your bike parts and bandage costs reimbursed.
Plus any medical costs, loss of income and those types of damages, just no punative damages and those types of damages.
 
Aug 10, 2010
6,286
0
0
Enforcement of Swiss Libel Judgments in the EC

I just read an article that said that any libel judgment McQuaid might get against Kimmage wouldn't be enforceable in the EC because Switzerland isn't a UC member.

This makes no sense to me. Switzerland would be economically isolated from Europe if its judgments weren't respected abroad. Then there is the Brussels Regime that Switzerland is a party to.

Anybody care to explain enforceability of Swiss libel judgments in the EC?
 
May 26, 2010
28,144
2
0
MarkvW said:
I just read an article that said that any libel judgment McQuaid might get against Kimmage wouldn't be enforceable in the EC because Switzerland isn't a UC member.

This makes no sense to me. Switzerland would be economically isolated from Europe if its judgments weren't respected abroad. Then there is the Brussels Regime that Switzerland is a party to.

Anybody care to explain enforceability of Swiss libel judgments in the EC?
It is PR by McQuaid nothing more.
 
Aug 10, 2010
6,286
0
0
USADA Hearing Question

Assume that Lance only fights the pre-2004 doping allegations and gets them kicked out on statute of limitations grounds.

He's still going to have to deal with sanctions for the uncontested violations.

In the course of dealing with those admitted sanctions, is there any way USADA can get evidence of the pre-2004 doping behavior before the hearing officer?
 
MarkvW said:
Assume that Lance only fights the pre-2004 doping allegations and gets them kicked out on statute of limitations grounds.

He's still going to have to deal with sanctions for the uncontested violations.

In the course of dealing with those admitted sanctions, is there any way USADA can get evidence of the pre-2004 doping behavior before the hearing officer?
One likely way is through the blood parameters. In the recent letter, USADA claims that LA’s blood values in 2009-2010 are consistent with manipulation. It would surely be relevant to that possibility that LA had been seen pre-2004 using EPO and transfusing. That would include the Saugy affair in 2001. Though it appears that Saugy himself is not going to say anything that would incriminate LA, LA apparently told teammates that he had a positive that was being dismissed. As Ashenden pointed out the other day, this alone is dynamite, regardless of whether the test was truly positive.

In fact, I suspect this is the main reason, or at least one main reason, why USADA wants to bring these 09/10 values in. Even if they don’t indicate blood doping strongly enough to trigger a sanction on their own, they do serve as a rationale for importing earlier evidence of blood doping. Where it gets really interesting is that UCI was in charge of analyzing those data in 09-10, and reported no anomalies. So by suggesting that there is evidence of blood doping, USADA is also calling into question the integrity of UCI. Add Saugy to that mix, and one almost wonders why UCI wasn’t listed in that letter as one of the co-conspirators. I also wonder if UCI is not going to find itself compelled to support LA on this issue to defend itself. If USADA insists that those values indicate manipulation, UCI will have to justify why it didn’t act on them.

In the discussion of the Contador case, some in this forum argued that WADA could not claim transfusion without arguing that the passport was ineffective, since Contador’s blood values apparently were not suspicious. But USADA now has two ways to avoid this problem. First, they can argue that the passport was effective, but UCI didn’t act on it. In fact, at the Contador hearing, Ashenden, testifying for WADA, claimed that his values were suspicious. So the first point is that the passport can detect a lot of potential dopers, even if the values don’t reach the strict criterion that is necessary to avoid false positives.

Testimony of other riders helps confirm the suspicion. But also—and this is the second way to address the problem of the passport’s ineffectiveness--the pre-2004 testimony will indicate that riders were acutely aware of the need to dope in a way that avoided triggering suspicion. Back then, there was no passport, but there was an off-score, the precursor of the passport. Riders knew how to take EPO and how to transfuse in a way that minimized the rise in hematocrit and the fall in reticulocytes, which is basically what beating a passport test is all about.

Note that this line of argument has another benefit besides making pre-2004 testimony relevant to post-2004 data. It responds effectively to the never tested positive argument. People invariably ask, if there was doping on such a massive scale, how could he get away with it for so long? This testimony can be justified by USADA as necessary to provide the details of how the tests are consistently beaten.
 

ASK THE COMMUNITY