All Things Legal - The Law for Non-Lawyers

[scribe]

Let's say there are 3 prime witnesses that are being called by the Grand Jury. Of these 3, one is rising to the top of the heap as the most likely to be charged with crimes. But let's say the other 2 could contribute significant information that support those charges of crimes. But those other 2 can't testify, as they would be giving information that could be used against them in other/additional cases. In other words, they have to plead the 5th amendment. As highlighted above, the prosecutor needs that information and will grant them immunity in exchange for full cooperative disclosure.

Are those 2 additional witnesses afforded protection from civil proceedings that might possibly require them to return sponsorship money or pay damages?

 

[MacRoadie]

However PM'ing this request might give you what you want to know and not inflame the board.

Naw, we're good. He'll take it in the spirit it was given.

 

[Anonymous]

Objection, calls for speculation. Beyond the scope of designation. I'll advise the witness not to answer that question as he is only here to answer questions on points of law and the legal process.

Sorry TFF.

Hilarious!!! Okay, I will PM CentCal

 

[CentralCaliBike]

Hilarious!!! Okay, I will PM CentCal

Looks to me like QuickStepper knows a lot more about Federal grand jury procedure and practice than I do. I have some thoughts but mine at best beyond speculative.

 

[Anonymous]

Looks to me like QuickStepper knows a lot more about Federal grand jury procedure and practice than I do. I have some thoughts but mine at best beyond speculative.

Ignore my PM then...

 

[Housed]

This may be a little off topic, but I thought of something when reading a previous post about administering the 'oath' in re: to the SCA case. Say they administer the 'oath' (Will you tell the truth, whole truth, etc...) and your response is "No". What do they do with you?

 

[CentralCaliBike]

This may be a little off topic, but I thought of something when reading a previous post about administering the 'oath' in re: to the SCA case. Say they administer the 'oath' (Will you tell the truth, whole truth, etc...) and your response is "No". What do they do with you?

A judge will be brought in and you will be ordered to tell the truth - if you refuse it would be considered contempt of court resulting in fines and possible confinement.

 

[Merckx index]

Merckx - I think the point that Scribe is trying to get across (and that the mods have indicated) is that the apparent intent of this thread is to avoid predictions and speculations, and focus on applicable law with respect to the known facts.

Fine, but this portion of the discussion began when I asked what the legal status of the '99 samples would be--IOW, "applicable law with respect to the known facts." The portion of my post that provoked Scribe's response was that in which I elaborated on the facts regarding these and other samples (which had been injected into the discussion by another poster).

Of course we don't know at this time what tack Novitzky will take, but it's difficult to discuss which facts might be relevant without speculating, and I see this going on throughout this thread. For example, CentralCaliBike begins a response to a question with “if the fraud is the taking of PEDs that would negate a contract”, not only speculating on what the fraud is, but even that fraud is the focus. Then Scribe him/herself brings up perjury, with “Lance can continue to lie on the stand, and not be found guilty of perjury unless proven? Which will require physical evidence.” To which Central responds: “In order to prove perjury you have to have evidence of sworn testimony – then you you must have proof that the testimony was intentionally false.”

Since other posters are freely assuming that perjury is likely to be a focus of the investigation, and are asking/answering questions about it, why should there be any problem when I bring into the discussion actual evidence of perjury? I guess my mistake was pointing out that a defense lawyer predicted it would be a focus, rather than just assuming, like many posters here, that it would be.

 

[Anonymous]

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.

I think I read earlier, and want to check this point. During testimony in a grand jury, if a witness invokes their 5th Amendment rights, a prosecutor can grant immunity thereby forcing them to answer the question?

 

[Anonymous]

Fine, but this portion of the discussion began when I asked what the legal status of the '99 samples would be--IOW, "applicable law with respect to the known facts." The portion of my post that provoked Scribe's response was that in which I elaborated on the facts regarding these and other samples (which had been injected into the discussion by another poster).

Of course we don't know at this time what tack Novitzky will take, but it's difficult to discuss which facts might be relevant without speculating, and I see this going on throughout this thread. For example, CentralCaliBike begins a response to a question with “if the fraud is the taking of PEDs that would negate a contract”, not only speculating on what the fraud is, but even that fraud is the focus. Then Scribe him/herself brings up perjury, with “Lance can continue to lie on the stand, and not be found guilty of perjury unless proven? Which will require physical evidence.” To which Central responds: “In order to prove perjury you have to have evidence of sworn testimony – then you you must have proof that the testimony was intentionally false.”

Since other posters are freely assuming that perjury is likely to be a focus of the investigation, and are asking/answering questions about it, why should there be any problem when I bring into the discussion actual evidence of perjury? I guess my mistake was pointing out that a defense lawyer predicted it would be a focus, rather than just assuming, like many posters here, that it would be.

I raised the question, and contrary to your suggestion, did not assume anything.

 

[QuickStepper]

I think I read earlier, and want to check this point. During testimony in a grand jury, if a witness invokes their 5th Amendment rights, a prosecutor can grant immunity thereby forcing them to answer the question?

Yes, that is generally the situation. If a witness invokes his right to avoid giving testimony which might incriminate him, the prosecution can grant immunity, in which case there is no potential jeopardy and no potential incrimination possible. If the witness still refuses to testify, they can be cited for contempt and if found in contempt, jailed.

Immunity is a very complex subject. Again, for purposes of reading about how the U.S. Attorney's office handles "Witness Immunity", I would suggest you read the U.S. Attorney's Manual, at Title 9-23. There's a whole section devoted to the policy, rules and applicable case authority for how the U.S. Attorney's office handles such situations.

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/23mcrm.htm

You might also want to look at these resources from the U.S. Attorneys' Manual:

9-11.151 Advice of "Rights" of Grand Jury Witnesses

9-11.154 Advance Assertions of an Intention to Claim the Fifth Amendment Privilege Against Compulsory Self-Incrimination

 

[QuickStepper]

Not really a legal question, but one based on your experience: Could one infer from fact that Greg Lemond and Tyler Hamilton have been subpoenaed and Mr Armstrong has not, that it is most likely that Mr Armstrong is a target of the investigation?

As a general proposition the subject of how and whether one determines whether one is or isn't a "target" of a federal grand jury investigation is also covered very well by the U.S. Attorney's Manual. No need to rely on one attorney's own personal experience, since that's variable depending on where and what type of case one is handling.

But as a general proposition, if you look at the U.S.A.M. (U.S. Attorneys' Manual) you will find the following sections which will likely answer your questions about how one knows when one is a "target" and what that means.

See this link generally and then look for the following:

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

9-11.150 Subpoenaing Targets of the Investigation

9-11.152 Requests by Subjects and Targets to Testify Before the Grand Jury

9-11.153 Notification of Targets

9-11.155 Notification to Targets when Target Status Ends

 

[Anonymous]

As a general proposition the subject of how and whether one determines whether one is or isn't a "target" of a federal grand jury investigation is also covered very well by the U.S. Attorney's Manual. No need to rely on one attorney's own personal experience, since that's variable depending on where and what type of case one is handling.

But as a general proposition, if you look at the U.S.A.M. (U.S. Attorneys' Manual) you will find the following sections which will likely answer your questions about how one knows when one is a "target" and what that means.

See this link generally and then look for the following:

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

9-11.150 Subpoenaing Targets of the Investigation

9-11.152 Requests by Subjects and Targets to Testify Before the Grand Jury

9-11.153 Notification of Targets

9-11.155 Notification to Targets when Target Status Ends

Fantastic! Thanks for the links. Some very interesting information, especially that if a target requests to testify, they have to wave their privilege against self incrimination.

 

[MacRoadie]

Fine, but this portion of the discussion began when I asked what the legal status of the '99 samples would be--IOW, "applicable law with respect to the known facts." The portion of my post that provoked Scribe's response was that in which I elaborated on the facts regarding these and other samples (which had been injected into the discussion by another poster).

Of course we don't know at this time what tack Novitzky will take, but it's difficult to discuss which facts might be relevant without speculating, and I see this going on throughout this thread. For example, CentralCaliBike begins a response to a question with “if the fraud is the taking of PEDs that would negate a contract”, not only speculating on what the fraud is, but even that fraud is the focus. Then Scribe him/herself brings up perjury, with “Lance can continue to lie on the stand, and not be found guilty of perjury unless proven? Which will require physical evidence.” To which Central responds: “In order to prove perjury you have to have evidence of sworn testimony – then you you must have proof that the testimony was intentionally false.”

Since other posters are freely assuming that perjury is likely to be a focus of the investigation, and are asking/answering questions about it, why should there be any problem when I bring into the discussion actual evidence of perjury? I guess my mistake was pointing out that a defense lawyer predicted it would be a focus, rather than just assuming, like many posters here, that it would be.

You are certainly welcome to formulate your own opinions and assumptions based on what is known as well as what has been speculated on. In fact, I think it should be encouraged. The hope in this thread, HOWEVER, is that posters keep those theories or asumptions to themselves (only in the context of this thread) and merely use this forum to ask questions relevant to their assumptions and opinions.

The assumptions themselves can be discussed or debated, more appropriately elsewhere in the forum.

I guess a road map would be:

1. Develop a hypothesis baed on your understanding or interpretation of what is known or speculated.
2. Ask any relevant legal questions you may have pertaining to your hypothesis in this thread, but don't ask the lawyers to opine on your hypothesis
3. Present your hypothesis in one of the other discussion threads (or create a new thread if you feel your hypothsis merits it's own discussion.

The idea is definitely not to stifle dialog or discourage lively debate from ANYONE'S point of view, but simply to refrain from digressing from the intent of the thread.

There is already so much useful information here. Let's not lose this valuable resource.

 

[Colm.Murphy]

Could one of the legal eagles currently contributing insight give a summary of the law regarding criminal fraud?

Specifically, if an entity engages/contracts with the US Federal govt, and withholds information and/or conduct that would be considered a material breech of that contract, would that behavior be considered fraud?

I am interested in learning the relevant statutory guidelines for proving the fraud existed and how other parties could be named as co-conspirators in committing the fraud.

Further, if the fraud can be proven, can RICO be applied, specifically in meeting the basic criteria for bringing such a charge?

 

[scribe]

Let's say there are 3 prime witnesses that are being called by the Grand Jury. Of these 3, one is rising to the top of the heap as the most likely to be charged with crimes. But let's say the other 2 could contribute significant information that support those charges of crimes. But those other 2 can't testify, as they would be giving information that could be used against them in other/additional cases. In other words, they have to plead the 5th amendment. As highlighted above, the prosecutor needs that information and will grant them immunity in exchange for full cooperative disclosure.

Are those 2 additional witnesses afforded protection from civil proceedings that might possibly require them to return sponsorship money or pay damages?

Bumping this ahead. I know there were some manual links posted, but a quick answer would be better. For some reason, I'd rather not dig too deeply into legal manuals.

 

[CentralCaliBike]

Bumping this ahead. I know there were some manual links posted, but a quick answer would be better. For some reason, I'd rather not dig too deeply into legal manuals.

I do not know the answer to your question since it is outside of my expertise. However, I doubt there is any protection from civil litigation that comes with immunity.

 

[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

Ok I asked a clarifying question about this but it was not answered, now I have done a little more research myself and I think the record needs to be corrected

1. Marva32 is correct if the crime unambiguously occurred in a district.

2. If the crime did not unambiguously occur in a given district there are a range of tests which are/can be applied none of which are unequivocal/decisive.

3. Hence it is not true to say that logistics and location of the prosecutor have no impact on the venue in all circumstances.

If it eventuates that the majority of conduct in question occurred in California, then we can conclude that the venue was chosen for that reason. If not - eg, if much of it was international, it was distributed across states/court districts, etc - it may be that the court was chosen from a range of possible locations to try the case in part for logistical reasons. Hence it is impossible to know at this point why Los Angeles was chosen. It is naive to think that if a substantial part of the conduct occurred in Texas and a similar amount in California, that the prosecutor would not rather try the case away from the home state of many of the accused. It is also incorrect to say, a priori, that the prosecutor does not under any circumstances have some discretion as to venue.



The following is from a congressional report summarizing federal law on jurisdiction in federal criminal cases:

(Summary and download at http://opencrs.com/document/RL33223/)

"A crime is committed in any district in which any of its “conduct” elements are committed. Some offenses are committed entirely within a single district; there they must be tried. Others begin in one district and are completed in another. They may be tried where they occur unless Congress has limited the choice of venue for the particular offense. Conspiracy may be tried in any district in which an overt act in its furtherance is committed, at least when the commission of an overt act is an element of the conspiracy statute at issue. Crimes committed beyond the territorial confines of the United States are usually tried in the district into which the accused is first brought."

Edited, thought references would be helpful.

 

[QuickStepper]

Bumping this ahead. I know there were some manual links posted, but a quick answer would be better. For some reason, I'd rather not dig too deeply into legal manuals.

Here's a quick answer: No. "Prosecutorial Immunity" granted by the government as a means to overcome the exercise of the 5th Amendment right against self-incrimination by a witness before a grand jury, confers no other "immunity" from civil liability in a lawsuit subsequently filed between private parties based on matters pertaining to private contractual agreements.

The bigger question though is that since testimony presented before a grand jury, even if compelled through a grant of immunity, is itself still secret, the transcripts are not made public. The only person who can reveal the testimony is the witness himself, so if there's a possibility of potential civil liability exposure, one would have to ask why the witness would choose to make the substance of the testimony public? The answer is that unless he's a fool or an idiot, he wouldn't.

 

[Realist]

Here's a quick answer: No. "Prosecutorial Immunity" granted by the government as a means to overcome the exercise of the 5th Amendment right against self-incrimination by a witness before a grand jury, confers no other "immunity" from civil liability in a lawsuit subsequently filed between private parties based on matters pertaining to private contractual agreements.

The bigger question though is that since testimony presented before a grand jury, even if compelled through a grant of immunity, is itself still secret, the transcripts are not made public. The only person who can reveal the testimony is the witness himself, so if there's a possibility of potential civil liability exposure, one would have to ask why the witness would choose to make the substance of the testimony public? The answer is that unless he's a fool or an idiot, he wouldn't.

Could the same move then occur in a criminal trial? Eg, if immunity can be granted to a witness and they can thus be coerced to testify, can that happen in an open trial, forcing them to open up to civil liability?

 

[QuickStepper]

Could one of the legal eagles currently contributing insight give a summary of the law regarding criminal fraud?

Specifically, if an entity engages/contracts with the US Federal govt, and withholds information and/or conduct that would be considered a material breech of that contract, would that behavior be considered fraud?

I am interested in learning the relevant statutory guidelines for proving the fraud existed and how other parties could be named as co-conspirators in committing the fraud.

Further, if the fraud can be proven, can RICO be applied, specifically in meeting the basic criteria for bringing such a charge?

There is no real way to answer your question in a vaccum without resort to specific facts and circumstances because the range of potential contracts that private individuals and entities can enter into with the federal government cover such a broad spectrum that it's impossible to generalize. There are defense contracts, procurement agreements, service agreements, etc., and depending upon the branch of governement, there are so many different rules, regulations and government contracting rules and statutory frameworks, that it is just not possible to meaningfully answer your question.

You're interested in knowing about fraud and liability of a co-conspirator? People have devoted their entire lives to learning about these subjects, written treatises, studied hundreds of years of case law. It's just not possible to give you a quick, one or two line, or even a one or two-paragraph response that will be meaningful.

RICO is a specialized statute which has both civil and criminal application. Again, the question you ask is far too broad and not specific enough to be meaningfully answered, at least not by me. Perhaps one of the other lawyers here can help you out, or point you to some useful links where you can do some reading on the subject.


What I can say is this: "Breach of contract" is not fraud. A breach of contract is a simple failure to perform a contractual obligation, which entitles the other party either to damages (to place the party in the position of receiving the "benefit of the bargain" that would have been received had the contract been performed) or recisssion (if that remedy is applicable).

Fraud on the other hand is a tort. At common law, fraud is generally defined as the intentional misrepresentation of a material fact, (or the concealment of a material fact), from another party, where either the misrepresentation or concealment is not fully made known to the other side, and where the other side justifiably relies on either on the representation as true (or is prevented from discoverig its falsity) or where discovery of the concealment is not made known and known only to the party perpetrating the concealment.

The differences between contract and tort can be significant: A breach of contract carries with it no moral imperative, and anyone can in a free market either choose to perform or elect to not perform and pay damages. That is among the most fundamental rights enjoyed with "freedom of contract". In other words, a breach is permitted so long as a party understands that he will have to pay damages for failing to perform. A tort on the other hand, is the breach of a duty imposed by society on all of us to behave in certain ways. Tort liability, at least for intentional torts, often carries with it additional damage elements not found in simple contract matters.

In the context of federal governmental contracting, or contracting with an agency or instrumentality of the federal government, engaging in conduct with amounts to a simple breach of contract, is proabably not a grounds for criminal prosecution at all. It could be though depending on the nature of the conduct, and thus it's really not possible to answer this in a vaccuum.

 

[scribe]

Here's a quick answer: No. "Prosecutorial Immunity" granted by the government as a means to overcome the exercise of the 5th Amendment right against self-incrimination by a witness before a grand jury, confers no other "immunity" from civil liability in a lawsuit subsequently filed between private parties based on matters pertaining to private contractual agreements.

The bigger question though is that since testimony presented before a grand jury, even if compelled through a grant of immunity, is itself still secret, the transcripts are not made public. The only person who can reveal the testimony is the witness himself, so if there's a possibility of potential civil liability exposure, one would have to ask why the witness would choose to make the substance of the testimony public? The answer is that unless he's a fool or an idiot, he wouldn't.

I am sorry. I thought it was previously revealed, in this thread, that evidence gathered in a GJ becomes available in a criminal trial, which becomes public record. Sorry if I misread, or maybe misinterpreted.

 

[QuickStepper]

No, you did not misread, and this is the danger of someone not really wanting to read the links or the material. Short answers can be dangerous because they can't possibly cover all of the ground that needs to be covered.

I did not mean to imply that the Grand Jury transcripts never are disclosed to anyone. There are rules which govern how and when grand jury transcripts of witness testimony are disclosed to a criminal defendant as part of disclosures made during the course of pre-trial preparation and discovery.

Here's a link to some good information about how and when disclosures are made. See, http://www.justice.gov/atr/public/guidelines/206584.htm#IIF

That should answer your questions.

 

[scribe]

No, you did not misread, and this is the danger of someone not really wanting to read the links or the material. Short answers can be dangerous because they can't possibly cover all of the ground that needs to be covered.

I did not mean to imply that the Grand Jury transcripts never are disclosed to anyone. There are rules which govern how and when grand jury transcripts of witness testimony are disclosed to a criminal defendant as part of disclosures made during the course of pre-trial preparation and discovery.

Here's a link to some good information about how and when disclosures are made. See, http://www.justice.gov/atr/public/guidelines/206584.htm#IIF

That should answer your questions.

Is there a cliff-notes version? It all looks like it is written in Chinese to me.

 

[QuickStepper]

Is there a cliff-notes version? It all looks like it is written in Chinese to me.

Clif Notes version:

Grand Jury testimony is never released to the general public.

Grand Jury testimony may be released to a criminal defendant following an indictment. There are four bases for possible disclosure:

1. Disclosure to the defendant of his own testimony-- this is obvious and allows the defendant to have photocopies made of poritons of the transcript of his own testimony regarding statements that are directly relevant to the charge contained in the indictment.

2. Disclosure of Grand Jury testimony of government witnesses-- The defendant is entitled to see transcripts of grand jury testimony containing the prior statements of the prosecution witnesses on relevant matters after such witnesses have testified on direct examination at the criminal trial. This is in order to be able to impeach these witnesses and to cross-examine them.

3. Disclosure of grand jury transcripts upon a showing of grand jury abuse-- this can be permitted if the defendant is can show that the grand jury abused its authority as part of a motion to dismiss the indictment. This is a very tough one, and requires a clear showing that there was actual abuse by the grand jury, not just generalized statements or claims.

4. Disclosure of material that would be exculpatory or favorable to the defendant (this is called "Brady material" after the 1963 U.S. Supreme Court decision in Brady vs. Maryland)-- if there is testimony that was presented to the grand jury that is favorable to the defendant, it must be disclosed otherwise it's a violation of the defendant's rights of due process under the 4th and 14th amendments.

That covers disclosure to the defendant who is the subject of the indictment.

As the link above also noted, there are several other instances where grand jury testimony can be disclosed to A. other governemental agencies, B. other grand juries, C. State attorney's general or other state prosecutors either for civil enforcement purposes (i.e., enforcement of state drug or securities or anti-trust laws) or state criminal prosecution, or D. in preparation for a another judicial proceeding. These other disclosures that I just listed all carry pretty heavy burdens on the part of the entity seeking disclosure and they all require motions to be made so that judicial review and authorization of such disclosures is required.

That about covers it. Of course, you really ought to read the material at the link I provided, because it's really quite a technical topic. Very, very interesting, but also technical.