All Things Legal - The Law for Non-Lawyers

[QuickStepper]

How transparent is this process going to be? To what extent are we going to know what is going on in the court room during the trial?

Right now, in terms of any grand jury proceedings, we will absolutely not know what is really going on, only what the witnesses later leak to the press (or what some of the lawyers either for the witnesses or the government improperly and illegally leak to the press). Grand jury proceedings are intended to be secret and witnesses are warned not to tell anyone about their testimony, but cannot be compelled by any process of law to keep their own testimony secret and they are free to disclose only what they have said or been asked about. But prosecutors and grand jury members are legally bound to keep the proceedings secret, including what the actual subject matter of the investigation is.

During the BALCO grand jury proceedings the only person who drew a seriously stiff prison sentence was one of the defense lawyers for a target of the grand jury investigation. He was indicted for improperly leaking testimony to two reporters for the SF Chronicle. He was disbarred and actually served prison time.


During a trial, the opposite is the case. A trial is constitutionally required to be open to the public and the press (with certain limitations such as no cameras in federal courts, or excluding prospective witnesses from being in the courtroom while other witnesses are testifying, or complying with a gag order if one is imposed).

Generally grand jury proceedings are secret, whereas trials are open and public.

Hope this helps.

 

[MacRoadie]

No, a corporation can only be incorporated in a single State where it is domiciled. A corporation, however can be qualified and registered to do business in many States, but it can only be incorporated under the laws of a single state, and in the case of Tailwinds Sports, it was incorporated in Delaware, with its principal place of business in Austin, TX, but it was registered and qualified to do (and was likely actually doing) business in California.

The original post was poorly written (by me). I meant two entities using the same name, were incorporated in those states, not the same entity incorporated in both states simultaneously.

Apologies for a poorly-worded sentence.

 

[CentralCaliBike]

I believe that distinction may be historically and practically correct in terms of state court jurisdiction, i.e., it is how grand juries in California State courts have traditionally been organized.

I do not believe that same distinction applies to Federal grand juries, since Federal Courts are unique courts of original jurisdiction only with respect to such matters as are granted to them in the U.S. Constitution.

Put more simply, assuming that a grand jury has actually been impaneled in Los Angeles and tasked with investigating doping in cylcing, the scope would have to relate to matters which would come within Federal criminal jurisdiction. I say that because some of the posts in this thread have seemed to confuse civil proceedings maintained for the benefit of private parties (e.g., "delayed discovery of fraud in the context of contractual representations, potential breach of contract or claims that, for example SCA might have been "defrauded") and none of such private matters would really provide any basis for any action by a grand jury, nor would federal prosecutors waste their time on that sort of thing. They are instead looking, it would seem to me, for violations of tax laws, money laundering, wire fraud, drug import and export violations, racketeering, and the like, and perhaps even perjury charges although I think that's a stretch because even assuming either Landis or Armstrong wilfully lied about a material fact in some prior proceeding, none of those proceedings involved any federal courts, bur rather private arbitration matters, e.g., in the case of Landis his arbitration before WADA and in the case of the SCA adv. Tailwinds matter, it was a privately maintained arbitration.

I do not disagree with most of what you posted, the three types of grand juries I mentioned are specific to California and all three are still currently in use. However, if memory serves, the Federal courts - other than the Supreme Court - are a construct of Congress (as allowed for in the Constitution).

I have supervised criminal cases (generally white collar fraud type cases) where delayed discovery was is a basis for tolling the statute of limitations, as a result I would not say delayed discovery is strictly used in the civil law and not criminal (although, again my experience is limited to state prosecutions). Still, it would seem that the Federal prosecutors would likely focus the perjury claims as opposed to the basic contract dispute in the SCA case.

As for the basis of the Federal Grand Jury, it sounds like you may be more familiar with laws involved, but if baseball is any indication, I understand that a Federal Grand Jury can investigate and later indict over the course of a limited amount of time.

Since it my understanding that the general Federal statute of limitations is six years for a felony (which could be in error - just going on a quick internet search), any claimed criminal activities prior to 2005 are not likely to draw an indictment since it is unlikely that the grand jury will reach any conclusions before the end of this year.

 

[QuickStepper]

sorry for the double post.

 

[QuickStepper]

As for the basis of the grand jury, it would be an investigative grand jury - and if baseball is any indication, it could also return an indictment as well.

I agree. The real question that remains unanswered for now is what precisely is being investigated and who the primary targets might be. There is much that has been inferred by the media, and frankly, unless and until the feds make a definitive public announcement, it's really all just a lot of speculation.

 

[CentralCaliBike]

I agree. The real question that remains unanswered for now is what precisely is being investigated and who the primary targets might be. There is much that has been inferred by the media, and frankly, unless and until the feds make a definitive public announcement, it's really all just a lot of speculation.

I think I messed you up by re-editing and posting what I mentioned earlier.

 

[CentralCaliBike]

I agree. The real question that remains unanswered for now is what precisely is being investigated and who the primary targets might be. There is much that has been inferred by the media, and frankly, unless and until the feds make a definitive public announcement, it's really all just a lot of speculation.

I agree completely

 

[rata de sentina]

Could the experts lay their cards of the table before posts? I've just read so many posts by lounge-room Lawyers that I've become accustomed to skipping posts on Law. Would love to hear from those who know what they are talking about.

Good point although you have to be careful. I once took a couple of lawyers to task on a forum over a point of international law (and US Federal law) and after a couple of weeks of to and fro they eventually had to concede the point. Basically it wasn't exactly their area and they couldn'yt be bothered doing the research. All very civil of course, nothing like this forum Then they had the gall to suggest I'd make a good lawyer

 

[Barrus]

Could the experts lay their cards of the table before posts? I've just read so many posts by lounge-room Lawyers that I've become accustomed to skipping posts on Law. Would love to hear from those who know what they are talking about.

If any questions concerning extradition law, international law, or certain European legal matters come up, I would be happy to help and do the research to answer any questions to the best of my ability. None of these are my exact speciality, however with some research most basic questions need to be within my capability to answer. With US Law, outside of certain constitutional matters, human rights matters and internet law matters, I really have no true knowledge

Not yet completely finished my degrees, mainly concerned with some research now. Sepecialized in International Public and European Law and International Criminal Law, combined with Internet Law

 

[Marva32]

Also there are a number of experts in doping and exercise phys around LA and in the bay area, so if scientific facts are in dispute it may be logistical. Less costs to cover for expert witnesses is definitely a consideration in a complicated or long trial. Also, I don't know on this, but possibility that the jury will be interested in sport and have certain opinions? Someone local would know better than me. I knew someone whose qualification was psychology and whose job was profiling potential jurors and advising on pitching to them. She worked with big time prosecutors and on civil trials. Don't know how common that sort of thing is in these kinds of trials but could be a possibility Novitsky is playing that sort of game.

Quals: I finished law school but then decided I was more interested in being a scientist, which I'm very happy about. Most of my work and my degree is outside the US but I've spent time here and studied some US law. As my sparring partner Spartacus Rox said, a lot of issues are handled similarly in western jurisdictions. I would limit that to western jurisdictions with strong ties to the English legal system - Europe can be quite different.

Logistics and location of the prosecutor have no impact the location of the case. It has to do with where the alleged criminal acts occurred.

I was a practicing criminal defense attorney in Illinois, state and federal courts

 

[Realist]

Logistics and location of the prosecutor have no impact the location of the case. It has to do with where the alleged criminal acts occurred.

I was a practicing criminal defense attorney in Illinois, state and federal courts

But it is a federal case with international aspects? Presumably geographic limits are only going to dictate so much here. Sure, you can't try it outside the US, but there is some flexibility.

[EDIT]

I'm not saying I'm right on this one... like I said, I decided not to be a lawyer. So just this:

Can you explain how the (potential) charges relate to Los Angeles or California as opposed to anywhere else in the USA? How do you decide in which district to bring charges for federal matters that cross state and/or national boundaries? What is the relevant test for where it is appropriate to bring these matters?

 

[python]

based on what was reported/leaked so far, how likely are charges based on application of rico laws?

were media reports correct that rico allows both suspending the statute of limitations and expanding the prosecution’s opportunity to come up with an indictment ?

 

[CentralCaliBike]

Logistics and location of the prosecutor have no impact the location of the case. It has to do with where the alleged criminal acts occurred.

I was a practicing criminal defense attorney in Illinois, state and federal courts

That may be with Federal prosecutors but I can tell you as a State prosecutor that I am not going to be able to prosecute a case outside of the county that I work in. From a practical standpoint, I would rather have a good prosecutor who is familiar with the local courts and judges prosecute a case than bringing in someone from outside.

 

[sars1981]

Right now, in terms of any grand jury proceedings, we will absolutely not know what is really going on, only what the witnesses later leak to the press (or what some of the lawyers either for the witnesses or the government improperly and illegally leak to the press). Grand jury proceedings are intended to be secret and witnesses are warned not to tell anyone about their testimony.

During the BALCO grand jury proceedings the only person who drew a seriously stiff prison sentence was one of the defense lawyers for a target of the grand jury investigation. He was indicted for improperly leaking testimony to two reporters for the SF Chronicle. He was disbarred and actually served prison time.


During a trial, the opposite is the case. A trial is constitutionally required to be open to the public and the press (with certain limitations such as no cameras in federal courts, or excluding prospective witnesses from being in the courtroom while other witnesses are testifying, or complying with a gag order if one is imposed).

Generally grand jury proceedings are secret, whereas trials are open and public.

Hope this helps.

Thank you. A question about after the process is over: Is there some kind of release statement made to the public regarding what went on? Or are we just meant to deduce what happened? (I think you possible answered this in your first posts so sorry if im being redundant. I'm just trying to wrap my head around the secrecy of all this. It seems to me in a supposedly free country strange that the government can possible send somebody to jail without giving the public a justification)

 

[grayrogers]

The Fifth Amendment means that someone is not forced to testify if it potentially could result in their prosecution for a criminal act.

Indeed, but if Armstrong takes the 5th, he's totally done. If he doesn't continue singing the same tune, his image would be shattered and no one would continue to stand by him He has stated with no uncertainty that he has never doped. Never. Not once. With an ego like his, I think he's dumb enough to lie under oath.

My thinking is just that it's probably a lot more difficult to go back to that old testimony to try and get him on perjury than it is to compile what looks to be much more evidence and try to put him under oath again. Marion Jones lied. Martha Stewart lied. I'm sure they had good lawyers too.

 

[CentralCaliBike]

Thank you. A question about after the process is over: Is there some kind of release statement made to the public regarding what went on? Or are we just meant to deduce what happened? (I think you possible answered this in your first posts so sorry if im being redundant. I'm just trying to wrap my head around the secrecy of all this. It seems to me in a supposedly free country strange that the government can possible send somebody to jail without giving the public a justification)

Grand Jury proceedings are completely secret (unless information is illegally leaked) until after indictment and the reading of the charges in open court. At that point the transcripts of the testimony become available.

 

[QuickStepper]

Thank you. A question about after the process is over: Is there some kind of release statement made to the public regarding what went on? Or are we just meant to deduce what happened? (I think you possible answered this in your first posts so sorry if im being redundant. I'm just trying to wrap my head around the secrecy of all this. It seems to me in a supposedly free country strange that the government can possible send somebody to jail without giving the public a justification)

What comes out of a federal grand jury is either an indictment (a bill of indictment) in which someone is charged with a crime, or no indictment (no-bill). Sometimes (but not always) when no indictment issues, the U.S. Attorney's office will also release a statement.

A grand jury (unlike a petit jury which is used in a trial court) is meant to be part of the U.S. system of "checks and balances". The purpose is to prevent a case from going to trial solely based on the decision of a prosecutor's bare allegations. A federal grand jury must consist of between 16 to 23 impartial ordinary citizens, and the U.S. Attorney must convince at least 12 of those members that there exists reasonable suspicion, probable cause, or a prima facie (legally sufficient) case that a crime has been committed. (See Federal Rules of Criminal Procedure, FRCP Rule 6)

The grand jury can compel witnesses to testify before them. Only the prosecutors are present along with the grand jurors. And as I noted earlier, unlike jury trial proceedings, a grand jury's proceedings are secret; the defendant and his or her counsel are generally not present for other witnesses' testimony. A judge is not present either.

Understand that a federal grand jury is a creation of the U.S. Constitution, specifically the 5th Amendment, which requires that charges involving "capital or infamous crimes" under federal jurisdiction must be presented to a grand jury.

The relevant language from the 5th Amendment is:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces

Generally, a "capital" or "infamous" crime is deemed to be a felony. This has been interpreted over time by the courts to allow the grand jury to be bypassed for simple misdemeanor offenses, which can instead be charged by prosecutor's information.

I rarely would suggest anyone that they rely on Wikipedia for any serious research or understanding of complex legal proceedings (my brother-in-law has a saying which I love: "If you can't find what you're looking for on the internet, you can put it there"). But if one is looking for a simple and fundamental overview and understanding of how a federal grand jury works, Wikipedia actually has some decent information. I would suggest you have a look at this: http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution


The U.S. Attorneys' Manual (http://www.justice.gov/usao/eousa/foia_reading_room/usam/) generally governs how the prosecutors are to conduct themselves with respect to a grand jury. Take a look at the section on "Criminal" (at Title 9).

Essentially, the U.S. Attorneys' Manual requires that prosecutors "must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges."

Really, all of your procedural questions about how a federal grand jury and the prosecutors function can be answered by looking at Title 9 of the US. Attorney's Manual, at Section 9.11 et.seq., where you will find detailed information about such topics as venue limitations, notification of targets of an investigation, powers of the grand jury and limitations by function, etc.

See: http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/11mcrm.htm

 

[QuickStepper]

. . .
Can you explain how the (potential) charges relate to Los Angeles or California as opposed to anywhere else in the USA? How do you decide in which district to bring charges for federal matters that cross state and/or national boundaries? What is the relevant test for where it is appropriate to bring these matters?

Essentially, a federal grand jury really can only be employed if the prosecutors believe that a crime or crimes being investigated actually occurred within the venue of the particular U.S. District Court where the grand jury is empaneled.

Here the media has reported that there is a federal grand jury empaneled in Los Angeles investigating (what precisely it is investigating we don't yet know), which is where the U.S. District Court for the Central District of California is located. The U.S. attorney in that district is responsible for prosecuting crimes committed within the district.

There are essentially four federal districts in California: Northern (which is SF and the Bay Area); Eastern (which is Sacramento and the San Joaquin Valley); Central (which is essentially LA/Ventura/Santa Barbara/San Luis Obispo/Riverside/Orangeand San Bernardino counties) and Southern (San Diego). There is a separate U.S. Attorney's office located in each of these districts, and it is their job to prosecute criminal conduct that occurs within their particular venue.

Often conduct is not limited to a particular venue, but occurs in several or many different districts, or internationally. The real test is usually where the majority of the conduct occurred.

Without knowing precisely what is being investigated, it's hard to know why the U.S. Attorneys' office in L.A. is involved, as opposed to say the U.S. Attorneys' office located in SF or San Diego. We can all speculate, but unless and until we actually learn something more concrete, it's all just a guessing game. What can be said is that it seems clear that some U.S. Attorney (and this is likely not Douglas Miller, the Asst. US Atty reported in the papers as being the lead prosecutor, but rather some senior member of the staff or an Asst. AG) has made a decision that he or she believes some sort of felony occurred in the Central District. What that crime or crimes is/are, no one yet knows. And that really is all that anyone can actually say at this point....the rest is just pure speculation.

 

[scribe]

Indeed, but if Armstrong takes the 5th, he's totally done. If he doesn't continue singing the same tune, his image would be shattered and no one would continue to stand by him He has stated with no uncertainty that he has never doped. Never. Not once. With an ego like his, I think he's dumb enough to lie under oath.

My thinking is just that it's probably a lot more difficult to go back to that old testimony to try and get him on perjury than it is to compile what looks to be much more evidence and try to put him under oath again. Marion Jones lied. Martha Stewart lied. I'm sure they had good lawyers too.

More CSI Fantasy Island drama.

 

[QuickStepper]

[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).

What we call "taking the 5th" is an exercise of the right to avoid testimony which would tend to incriminate the person testifying. Contrary to the popularly expressed view here in the Clinic by many non-lawyers, in a criminal proceeding, no adverse inference can be drawn from exercising one's right to avoid self-incrimination.

An adverse inference is an inference of guilt in a criminal case or liability in a civil case. A trier of fact in a criminal case, be it a judge or jury, cannot draw an adverse inference against a defendant who declines to testify. In practice, juries hearing criminal cases are routinely instructed that they cannot even consider a defendant’s decision not to testify. This instruction correctly reflects the premise that an adverse inference against a non-testifying criminal defendant would tend to ‘‘discount a defendant’s constitutional rights.’

As for speculation about what Armstrong might or might not do if called before a grand jury, who knows. Speculate all you want, but chances are that if he does exercise his 5th Amendment right to avoid self-incrimination, at least at the grand jury stage, we won't ever know about it because of the way such grand jury proceedings are conducted, and if there is later a public trial, exercising the 5th earlier can't even be introduced or commented upon during a trial, because of the prohibition that no adverse inference can be drawn by exercising that right.

 

[scribe]

What is the typical timetable for a Grand Jury once it gathers?

 

[QuickStepper]

What is the typical timetable for a Grand Jury once it gathers?

The timetable for a grand jury depends on the kind of grand jury being used. In the federal system, "regular" grand juries (those that are regularly constituted for prosecutors to present evidence of ordinary captial offenses and felonies occurring in the District) sit for a basic term of 18 months but a court can extend this term for another 6 months, bringing the total possible term to 24 months. A "special" federal grand jury (those that are empaneld specifically to investigate organized crime) sit for a basic term of 18 months but a court can extend their term for up to another 18 months, bringing their total possible term to 36 months.

If you'd like to read about how Federal Grand Juries operate, try this handbook:

Handbook for Federal Grand Jury Forepersons
http://www.ilnd.uscourts.gov/JURY/Grndjury.htm

There's also a really good website developed by a professor at the University of Dayton which has a lot of excellent information which can be found at http://campus.udayton.edu/~grandjur/faq/faq4.htm

 

[Factual Corrections Service]

I'm surprised (or not) that this is a sticky. The main Floyd sticky thread is already largely selected highlighted leaks to promote the prosecution. Can we really expect a neutral legal thread (started by a known anti Armstrong troll) that is just about the 'facts'?

Why can't you just let it play out.

 

[CentralCaliBike]

I'm surprised (or not) that this is a sticky. The main Floyd sticky thread is already largely selected highlighted leaks to promote the prosecution. Can we really expect a neutral legal thread (started by a known anti Armstrong troll) that is just about the 'facts'?

Why can't you just let it play out.

The majority of the posts seem to indicate an interest in the legal aspects of a criminal grand jury so far. As a state prosecutor I have noticed several interesting posts about the Federal system. I am fairly certain that those with no legal training, or from outside the US, may find the legal explanations helpful to understand what is being printed in the media (and even more so, what is not and why that might be).

This thread can be of interest no matter where you stand on Lance Armstrong.

 

[QuickStepper]

I'm surprised (or not) that this is a sticky. The main Floyd sticky thread is already largely selected highlighted leaks to promote the prosecution. Can we really expect a neutral legal thread (started by a known anti Armstrong troll) that is just about the 'facts'?

Why can't you just let it play out.

I have responded in a civil manner to questions about substantive and procedural issues involving the grand jury because that is what was requested in the initial post on this thread. Several other attorneys have also responded. I can't speak for the others, but my only purpose in responding is to avoid the spread of mis-information about the process and what the public can and should expect to know.

Unfortunately (or fortunately depending on one's point of view) the only thing we all can do is "let it play out" because that's what's going to happen anyway. It's just that while it's all "playing out" we won't really have much concrete information about the actual proceedings other than what some witnesses might choose to disclose about their own testimony (which could give a wildly skewed view of the actual proceedings) or how the press chooses to characterize those permitted disclosures. But because of the prohibitions against disclosure by the U.S. Attorney or the members of the grand jury themselves, we won't really know what's going on unless or until an actual indictment issues or the grand jury's term expires without an indictment.

I happen to believe though that if some of the folks who frequent this forum become more familiar with the actual workings of the process, and the framework within which the process operates, what we can actually know and what is in the realm of pure speculation, that this may reduce the sometimes stunning displays of ignorance or ridiculous posts that occur with such seeming frequency in this particular area of CN.

Indeed, let it play out because that's what's going to happen anyway, but in the meantime, perhaps people will learn to temper some of their remarks about what's being investigated, who the real targets of the investigation are and what we can realistically really know while the process plays out.