All Things Legal - The Law for Non-Lawyers

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Aug 3, 2009
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QuickStepper said:
But yes, I agree with you absolutely that anyone who testifies before a GJ and who later is called as a witness in a criminal trial should think long and hard and carefully consider all of the ramifications of testifying falsely if such falsity can be later demonstrated to the satisfaction of a jury and judge in a criminal prosecution. Not only for their own interests but the interests of justice and the rights of anyone accused who is standing trial. Our system of justice depends on people testifying truthfully.

But enough speech-making....
I think his point was that a witness, while enjoying anonymity in the grand jury proceeding, may have to testify and respond to those same questions in open court. As the open court testimony potentially opens the witness up to civil litigation, that witness "has to carefully consider how they cooperate as it might require repeating in a criminal trial environment".

In other words, Witness A has to decide just how forthcoming he will be to the grand jury so he can be equally less than forthcoming in trial without risking a perjury charge.
 
Jul 23, 2010
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Um, ok. I hadn't looked at it from that point of view. Still, I don't think that changes the analysis: Dealing with truth-telling, if a witness is called to testify before the grand jury, other than in a situation where the witness is asserting a 5th amendment right to not testify based on self-incrimination (and assuming no offer of immunity is extended), any witness would be well-advised to cooperate in a truthful manner.

In other words, there won't really be much to think about in terms of how to cooperate IMHO. A witness will either cooperate by obeying a subpoena to appear and testify, and when he appears will either testify truthfully or refuse to do so by assertion of the right to avoid self-incrimination. Those really are the choices as I see it. Fail to cooperate by refusing to obey the subpoena (whether for testimony or documents) and run the risk of being cited for contempt and possibly incarcerated, or cooperate, appear and if you testify, it'd better be truthful testimony.
 
Jul 23, 2009
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QuickStepper said:
Um, ok. I hadn't looked at it from that point of view. Still, I don't think that changes the analysis: Dealing with truth-telling, if a witness is called to testify before the grand jury, other than in a situation where the witness is asserting a 5th amendment right to not testify based on self-incrimination (and assuming no offer of immunity is extended), any witness would be well-advised to cooperate in a truthful manner.

In other words, there won't really be much to think about in terms of how to cooperate IMHO. A witness will either cooperate by obeying a subpoena to appear and testify, and when he appears will either testify truthfully or refuse to do so by assertion of the right to avoid self-incrimination. Those really are the choices as I see it. Fail to cooperate by refusing to obey the subpoena (whether for testimony or documents) and run the risk of being cited for contempt and possibly incarcerated, or cooperate, appear and if you testify, it'd better be truthful testimony.
I noted that you seem to consider only two options for the witness, testify truthfully or be held in contempt. While I wish witnesses would not approach testimony thinking about how to manipulate, hide, mitigate, or outright lie, I do not see that very often in the cases that I prosecute when dealing with witnesses that have a personal bias in the matter. I believe that Scribe's point is well taken; witnesses who stand to lose money or employment are less likely to be completely open and honest in their grand jury testimony since they know it could become public knowledge if they have to repeat it at trial.
 
May 13, 2009
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CentralCaliBike said:
I noted that you seem to consider only two options for the witness, testify truthfully or be held in contempt. While I wish witnesses would not approach testimony thinking about how to manipulate, hide, mitigate, or outright lie, I do not see that very often in the cases that I prosecute when dealing with witnesses that have a personal bias in the matter. I believe that Scribe's point is well taken; witnesses who stand to lose money or employment are less likely to be completely open and honest in their grand jury testimony since they know it could become public knowledge if they have to repeat it at trial.
Since we're discussing options of witnesses, what about 'I do not recall'? Basically, you're not answering the question, but the chance to be on the hook for perjury must be minimal, since how do you know what someone remembers?
 
Jul 25, 2009
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If the 5th amendment or immunity from prosecution can only be granted in relation to criminal matters..... basically there is nothing that can protect a rider, who is obliged to testify in a trial, from facing doping violation sanctions as these are an essentially civil/contractual matter?

IOW "Rider A" could be in the unenviable position of having to choose whether to commit perjury to the grand jury or face sanctions, if required to testify in a subsequent trial?

Or can other immunities be granted outside the grand jury situation? I read the "homework" but this bit seemed to muddy the waters:

9-23.130....The Attorney General has designated the Assistant Attorneys General and Deputy Assistant Attorneys General of the Criminal, Antitrust, Civil, Civil Rights, Environmental and Natural Resources, and Tax Divisions to review (and approve or deny) requests for immunity (viz., authorization to seek compulsion orders) in matters assigned to their respective divisions (28 C.F.R. Sec. 0.175), although this approval is still subject to Criminal Division clearance....

Fascinating thread, cheers!
 
Jul 23, 2010
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CentralCaliBike said:
I noted that you seem to consider only two options for the witness, testify truthfully or be held in contempt. While I wish witnesses would not approach testimony thinking about how to manipulate, hide, mitigate, or outright lie, I do not see that very often in the cases that I prosecute when dealing with witnesses that have a personal bias in the matter. I believe that Scribe's point is well taken; witnesses who stand to lose money or employment are less likely to be completely open and honest in their grand jury testimony since they know it could become public knowledge if they have to repeat it at trial.
I was clearly over-simplifying. Yes, there will no doubt be external pressures brought to bear on some of the witnesses and some may be motivated to shape or couch their testimony based on such matters, including their own self-interests (e.g., commercial and monetary or other interests). I suppose it is a *choice* for a witness to decide to lie, and as one of the other posters also mentioned, to testify "I don't know" or "I don't recall". But those who choose to dissemble run the obvious risk that a lie will be discovered, which carries with it other obvious risks. My comments were prefaced with the caveat that a witness would be "well advised" to testify truthfully. I realize that people every day ignore good advice. I have a lot of clients who ignore my advice all the time, and that's why theyr'e still clients, i.e., because they do stupid things and thus require representation to try to solve the problems that they create for themselves or that others create for them. That's all.
 
Jul 23, 2010
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Cobblestones said:
Since we're discussing options of witnesses, what about 'I do not recall'? Basically, you're not answering the question, but the chance to be on the hook for perjury must be minimal, since how do you know what someone remembers?
Precisely. At that point, it's the job of the person conducting the examination of the foregetful witness to refresh the recollection. Either the examiner does a good job of that, or doesn't. If on the other hand, it can be shown that "I don't recall" is demonstrably a false response and the witness is being intentionally evasive, it's not going to be very effective. It all depends on content and context.
 
Jul 23, 2010
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I Watch Cycling In July said:
. . . Or can other immunities be granted outside the grand jury situation? I read the "homework" but this bit seemed to muddy the waters:

9-23.130....The Attorney General has designated the Assistant Attorneys General and Deputy Assistant Attorneys General of the Criminal, Antitrust, Civil, Civil Rights, Environmental and Natural Resources, and Tax Divisions to review (and approve or deny) requests for immunity (viz., authorization to seek compulsion orders) in matters assigned to their respective divisions (28 C.F.R. Sec. 0.175), although this approval is still subject to Criminal Division clearance....

Fascinating thread, cheers!
The approvals from other divisions within the Justice Department pertain to criminal prosecutions or governemental administrative prosecutions for violations of federal laws which would fall under the aegis of some of these other departments. The AG's office wants to be certain, for example, that if someone is being given immunity to testify, that it won't interfere with another investigation or prosecution being conducted by another division within the Dept. of Justice.

Understand that the immunity which is granted is only "use" immunity, which means that the immunity is only from governmental prosecution which is based on the "use" of the testimony given to the grand jury by the immunized witness (as well as any "derivative" evidence obtained from that testimony). At the Federal level, the immunity is not "transactional" immunity, which would immunize the witness from prosecution for the transactions which are the subject of the testimony, i.e., a complete bar for all time from prosecution.

Let me explain: The type of immunity that is conferred (use and derivative) protects the witness from being charged with a crimed based on the testimony presented at the grand jury for which the witness has been given immunity. If the prosecutors have already collected other independent evidence upon which to build a case and charge the witness with a crime, even a grant of immunity will not protect the witness from prosecution. The prosecutor will bear a heavy burden to show that the evidence upon which any charge is based did not "derive" from nor is it based upon the witness' immunized testimony before the grand jury, but if the prosecution can demonstrate this, the witness can still be charged.

So, it's possible that one division of the Justice Department might be building a case against a witness based on one set of facts and circumstances that another division is unaware of. So that's the purpose of 9-23.130 as I read it.

But again, to answer your question about civil immunity, a grant of immunity by the Feds to compel a witness to provide testimony to a grand jury has no effect on the potential civil liability that a witness might have with regard to the subject matter of the grand jury testimony as between private citizens (and by use of the term "private citizens" I mean to include individuals, corporations, associations, and all forms of entity other than federal governmental prosecutors). As I mentioned earlier though, because the witness is the only one who can reveal his testimony publicly, if a witness believes he has potential civil liability exposure, he'd be silly or stupid to reveal the substance of his grand jury testimony.
 
Jul 23, 2009
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QuickStepper said:
My comments were prefaced with the caveat that a witness would be "well advised" to testify truthfully. I realize that people every day ignore good advice. I have a lot of clients who ignore my advice all the time, and that's why theyr'e still clients, i.e., because they do stupid things and thus require representation to try to solve the problems that they create for themselves or that others create for them. That's all.
Attempting to get the truth out of a witness is a battle worth fighting, even when unsuccessful.
 
Jul 25, 2009
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QuickStepper said:
Understand that the immunity which is granted is only "use" immunity, which means that the immunity is only from governmental prosecution which is based on the "use" of the testimony given to the grand jury by the immunized witness (as well as any "derivative" evidence obtained from that testimony). At the Federal level, the immunity is not "transactional" immunity, which would immunize the witness from prosecution for the transactions which are the subject of the testimony, i.e., a complete bar for all time from prosecution.
That all makes sense, but my question was whether the same immunity rules would apply to a 'public' trial, if there was a trial to hear charges that came out of the grand jury process.

Edit: Basically I just want to be a little more certain that I understand the implications of your answer to Macroadie's post #135.
 
Jul 23, 2010
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I Watch Cycling In July said:
That all makes sense, but my question was whether the same immunity rules would apply to a 'public' trial, if there was a trial to hear charges that came out of the grand jury process.
Re-reading what you asked, in light of your clarification, now I'm not sure what you're asking. Do the same immunity rules apply to a "public trial?"

Let's assume that Witness "A" is subpoenaed to testify before the grand jury. Witness A indicates he's not going to answer questions and will assert his 5th amendment right against self-incrimination. So the asst. U.S. atty offers and secures a grant of "use" immunity with respect to the subject matter of the questions to be asked. Now Witness A must testify or be held in contempt, and possibly suffer incarceration. Let's assume Witness A chooses to testify. Ok, so far so good.

Witness A says during testimony, "I saw X use drugs and I also used drugs, and I bought them and sold them."

X is later indicted for a variety of things by this grand jury, based in part on the testimony of Witness A.

Now at the trial of X, Witness A is again called and is asked "Did you see X use drugs." Witness A's answer had better be "yes" or there will be some potential consequences. In other words, A's testimony should be expected to be consistent with his prior testimony in front of the grand jury.

Let's further assume at this same trial that Witness A is also asked "Did you you drugs?" and "Did you buy and sell drugs?"

Witness A may not wish to answer that question in the same manner as he did while testifying before the grand jury. But he's already been given immunity from prosecution for those statements (or any evidence which can be derived from those statements). So, Witness A cannot assert now at this later criminal trial any 5th amendment claim of privilege against answering the questions. So Witness A is going to be compelled to answer because he cannot any longer be prosecuted for what he says on those subjects for which a grant of immunity has previously been given.

Is that clear? Immunity means immunity with respect to the subject matter of the testimony. So if Witness A is given immunity from prosecution at the grand jury level, testifies, and then is later asked to testify to the same things again, he is still immune from criminal prosecution based on that same testimony given elsewhere, including in a public trial in which Witness A's testimony is relevant.

Could that same testimony, if now repeated in open court at a public criminal trial get Witness A in hot water elsewhere, i.e., civilly or administratively outside the realm of federal prosecution? Perhaps. But as they say, that's life in the big city.

Could Witness A be prosecuted by the federal goverment at all for his drug purchasing and sales to which he admits in his testimony? Perhaps. If the prosecutors had already independently developed a case and had other evidence from other witnesses and were not basing a prosecution on Witness A's own statements, and the prosecutor is not relying on any evidence which is "derivative" or based on Witness A's own statements, then even with a grant of immunity, he could still be prosecuted. The US Attorneys Manual specifically describes these circumstances and advises that if there is a case already being built against Witness A, that the prosecutors must properly document it so that even if they do grant immunity, it doesn't taint the later prosecution of Witness A.

Hope this helps explain it further.
 
Jul 13, 2009
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Realist said:
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?
the forum was chosen most likely for it having been the jurisdiction which has in personam jurisdiction over the majority of the defendants, coupled with it being the location of the chief prosecutor.

the relevant test is where the majority of defendants are located, such that they are subject to a court's authority. federal courts for the most part have the same geographical jurisdictions (authority) as the state courts of the states in which they sit.

a court's authority over a defendant is achieved by his being physically present within that court's jurisdiction (even temporarily, so long as it is long enough for him to be served with process or arrested--even if just changing planes in an airport), or by maintaining sufficient contacts with, and ties to, the jurisdiction such that being subject to law suits within it is not deemed unjust, unreasonable, or unduly burdensome for him.

for criminal cases in which a defendant is outside of the court's jurisdiction, the defendant would either need to voluntarily surrender himself, or be extradited by the jurisdiction in which he is located. within the US, federal marshals have the authority to arrest and transport federal criminal defendants across state and international borders to stand trial. for defendants outside of the US, interpol and the various national police departments around the world have the same authority, depending on the relevant extradition treaties.

theoretically, federal courts could demand that all US citizens located anywhere in the world defend federal suits in any federal court within the the US, but this is not what was adopted, instead the federal courts abide by the state courts' geographical jurisdictional limitations (with some exceptions).

the subject matter jurisdiction for a federal prosecutor applying federal law, [NO SPECULATION - EDITED BY MOD] is not geographically limited. in other words, any federal district court is competent to hear the case (as long as it has in personam jurisdiction over the defendant).

it is unlikely that the potential charges in the armstrong case specifically relate to violations of any California state laws (and there is no "Los Angeles law," unless you mean its municipal ordinances, which are very, very unlikely to play any role in this case what so ever).

however, choice of law rules allow courts in one jurisdiction to apply another jurisdiction's laws. this happens all the time, all over the world. one case can involve the application of laws from several jurisdictions. so for instance, in this case, the court could apply applicable US federal statutes, US state laws from any of the 50 states, relevant foreign laws from any country in the world, and any relevant international laws that apply via treaty and convention. the test for whether they apply is whether the defendant made himself subject to them, and then violated them. normally, however, only civil laws will be applied this way. it would be unusual for one jurisdiction to apply another jurisdiction's criminal laws.

with racketeering cases it does happen, however, in order to establish that a criminal enterprise occurred. for instance, while a particular offense might not be illegal in the US, if it is illegal in the country in which the defendant perpetrated it, the foreign law might be used to establish that an international criminal conspiracy existed by showing that the foreign law was violated and that the conspiracy was established, at least in part, to specifically to violate it; along with the fact that the ill-gotten gains from violating it were enjoyed in this country. ultimately, it would still be up to the foreign country to prosecute the defendant itself for the violation of its law.

regarding the distinction between circumstantial and direct evidence, instead of thinking of the format of the evidence (testimonial or physical), the best rule is the real rule--whether it requires the trier of fact to infer the conclusion or whether the conclusion is self evident.

this is why most, but not all physical evidence is circumstantial--knives covered in victims' blood and defendants' fingerprints are highly persuasive, but circumstantial nonetheless because the trier of fact must still infer that the fingerprints and blood got on to the knife because the defendant used it to stab the victim.

on the other hand, testimony from a confessed liar, with a proven bias against the defendant, about seeing him stab the victim to death with a knife, is somewhat less persuasive but direct nonetheless, because the trier of fact does not have to infer anything. it just has to decide if the evidence is credible or not.

the combination of the two pieces of evidence, goes a long way toward mitigating witness credibility problems and establishing a reliable inference that the defendant killed the victim with the blood covered knife.

i hope this helps.

my bona fides: graduated from law school in 2003. am admitted to practice in NY, DC, and FL. worked from 2003-2008 in the fraud division of a boutique firm that worked exclusively for lehman brothers. spent 8 months from sept 2009 to april 2010 living and working in the Hague as contract counsel on a very large international commercial fraud case. ich sprech hein nederlands.:p
 
Jul 13, 2009
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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....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..
the physical location of the evidence is irrelevant for all practical purposes. the evidence can be requested to be produced from anywhere in the world.

if it is in the defendant's control, the defendant will be held in contempt if he refuses to comply.

if it is in a 3rd party's control, outside of the court's jurisdiction, it's true that the court won't be able to sanction the 3rd party's non-production, but it can arrange with the government, under whose jurisdiction the 3rd party is subject, to effectuate its request.

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).
why do you feel that the prosecutor might not be able to have the evidence retested in federal crime lab or by any respected, neutral party? i would assume that he would insist on it so long as it did not destroy the evidence. the defense could also demand the evidence be retested (if the defense did not insist on it, i would seriously question the adequacy of representation).

also, why do you question the relevancy? the test for relevance is whether or not a particular piece of evidence makes a material issue more or less probable; if it does, it is relevant. it seems likely that the 1999 samples would be relevant toward establishing several possible issues: fraud, use of a controlled substance, impeachment...

as long as a proper foundation is laid and the chain of custody can be established, i don't see any grounds for excluding them, at least based on what is known about them at this time (unless the science itself is challenged).
 
Jul 13, 2009
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scribe said:
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 don't know if you got the answer to your question regarding the application of criminal immunity to potential civil suits--the answer is no.

a civil suit is a form of property owned by the potential plaintiff. for the government to essentially seize one's property (by granting blanket immunity to all future legal consequences), without compensation would be a violation of the takings clause of the 5th amendment of the constitution. immunity only protects one from criminal prosecution.

ps: depending on the circumstances, the immunity conferred may not even prevent future state prosecution.
 
Jul 13, 2009
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QuickStepper said:
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.
a co-conspirator is culpable (i.e. guilty) of any acts arising from or in the furtherance of the conspiracy, whether he committed them or another conspirator committed them, even if he changes his mind before the consipracy occurs (unless he renounces in enough time to stop the conspiracy and warns the authroities in enough time to stop it). this includes acts which were not intended but resulted any way.

QuickStepper said:
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.
rico is a very flexible and adaptable statute, primarily because it includes wire and mail fraud--it needn't be asserted by a prosecutor, it can be asserted in civil suits as well by ordinary plaintiffs. a recent case raised it in a civil suit against purdue chickens for purdue's use of and reliance on illegal aliens in its chicken processing workforce to get around federal job safety and minimum wage laws.

here is a good overview of rico: http://www.ricoact.com/ricoact/nutshell.asp

basically, to have a rico claim:

1. there must be criminal activity.

2. the criminal activity must be re-occuring and long term.

3. there must be an association in fact, but "Such a group need not have a hierarchical structure or a chain of command; decisions may be made on an ad hoc basis and by any number of methods-by majority vote, consensus, a show of strength, etc. Members of the group need not have fixed roles; different members may perform different roles at different times. The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence. Nor is the statute limited to groups whose crimes are sophisticated, diverse, complex, or unique; for example, a group that does nothing but engage in extortion through old-fashioned, unsophisticated, and brutal means may fall squarely within the statute's reach."(129 S.Ct. 2245-46).

4. the criminal activity must impact interstate commerce, however, any violation of a federal criminal law meets this requirement, as does the use of the mail in furtherance enterprise (i.e. mail fraud: "The mail and wire fraud statutes essentially make it criminal for any one to use the mails or wires to advance a scheme to defraud.")

5. the defendant must participate directly or indirectly in the criminal enterprise

6. the criminal activity must "have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics." (492 U.S. 240)

7. With regard to the state crimes, the underlying violation can be predicated upon "any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance . . . which is chargeable under State law and punishable by imprisonment for more than one year (i.e. a felony)."

8. "RICO claims can also be predicated upon the violation of many, many federal criminal statutes. The federal crimes relate to a number of areas, including: counterfeiting, extortion, gambling, illegal immigration, obscenity, obstruction of justice, prostitution, murder for hire, interstate transportation of stolen property, and criminal infringement of intellectual property rights."

rule of thumb: (from http://www.ricoact.com/ricoact/nutshell.asp#intro)
Introduction to RICO: The Mafia as a Helpful Context

Although the RICO Act can be used in many contexts, the statute is most easily understood in its intended context: the Mafia. In the context of the Maifa, the defendant person (i.e., the target of the RICO Act) is the Godfather. The "racketeering activity" is the criminal activities in which the Mafia engages, e.g., extortion, bribery, loan sharking, murder, illegal drug sales, prostitution, etc. Because the Mafia family has engaged in these criminal actions for generations, the criminal actions constitute a pattern of racketeering activity. The government can criminally prosecute the Godfather under RICO and send him to jail even if the Godfather has never personally killed, extorted, bribed or engaged in any criminal behavior. The Godfather can be imprisoned because he operated and managed a criminal enterprise that engaged in such acts. Moreover, under section 1964(c) of the RICO Act, the victims of the Mafia family (i.e., the extorted businessman, the employers whose employees were bribed, debtors of the loan shark, the family of a murder victim) can sue the Godfather civilly and recover the economic losses they sustained by reason of the Mafia family's pattern of racketeering.

As a practical matter, the closer a plaintiff's case is to the Mafia scenario described above, the better chance the plaintiff has in succeeding under the RICO Act. Given the diverse factual scenarios that may confront attorneys and parties under RICO, it is always helpful to analogize non-Mafia factual scenarios to the prototypical RICO claim against the Mafia. It is always helpful to ask: who stands in the position of the Godfather, i.e., the defendant person? What is the equivalent of the Mafia family, i.e., the enterprise? This will give you a good start in evaluating the merits of any RICO claim you confront. If the facts are well-suited to the Mafia analogy, you likely have a stronger claim.
QuickStepper said:
What I can say is this: "Breach of contract" is not fraud...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.
fraud is also a crime

wiki has a nice list of examples of criminal fraud:http://en.wikipedia.org/wiki/Fraud
Types of criminal fraud include:
bait and switch
bankruptcy fraud
benefit fraud, committing fraud to get government benefits
counterfeiting of currency, documents or valuable goods
charlatanism
confidence tricks such as the 419 fraud and Spanish Prisoner
creation of false companies or "long firms"
embezzlement, taking money which one has been entrusted with on behalf of another party
false advertising
false billing
false insurance claims
forgery of documents or signatures,
fraud upon the court
health fraud, for example selling of products known not to be effective, such as quack medicines,
identity theft
investment frauds, such as Ponzi schemes and Pyramid schemes
Moving scam
religious fraud
marriage fraud to obtain immigration rights without entitlement
rigged gambling games such as the shell game
securities frauds such as pump and dump
tax fraud, not reporting revenue or illegally avoiding taxes. In some countries, tax fraud is also prosecuted under false billing or tax forgery[1]
 
Jul 23, 2010
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spectacle said:
i don't know if you got the answer to your question .....
I don't disagree with much of what you have written in your last three posts, but I think you'd be well-served to read the entire thread, because much of what you've covered has already been addressed, at least a few times within the body of the thread. We've already extensively covered the topics of circumstantial vs. direct evidence, venue and jurisdiction, subpoena power and the limits of jurisdiction (at the grand jury level...which of course has nothing to do with extradition), and immunity.

I could quibble with some of your broad statements as they pertain to a Federal Grand Jury proceeding, and would suggest that you really should take a look at the U.S. Attorney's Manual, but the real issue is that no one outside of the FDA Criminal Investigations division (which is Jeff Novitzky's current employer) and the U.S. Attorney's office actually involved in the investigation, actually know what the scope of the investigation is.

I do disagree with your analysis of RICO. You really ought to take a look at the U.S. Attorney's manual, and in particular how the feds decide to pursue a RICO claim. Objectively, there's absolutely no indication that anything being investigated to this point would involve a subsequent indictment being issued alleging a RICO violation. I'm not suggesting that it won't happen, because I suppose all things are possible, but at this point, there's no objective evidence from which such a conclusion can be reached. A couple of people in the media have speculated about this, but at this point it's purely speculation.

All we really know for sure at this point is the following:

1. Several newspapers purported to quote Greg Lemond who said he received an subpoena. No one outside of the Grand Jury and the U.S. Attorney's office and perhaps Lemond and his lawyers at Wilson, Sonsini, have seen the subpoena, and that includes any media. Initial media reports said it was a subpoena asking Lemond to testify, and based on those reports Lemond also said he was considering coming to Los Angeles to "testify". Later media reports clarified that the subpoena was only an SDT (supoena duces tecum) and that it called only for the production of documents to be produced for the grand jury. If the media accounts were accurate, those documents were to have been produced for the grand jury yesterday, Friday July 30, at a session of the grand jury meeting at the federal courthouse in Los Angeles.

2. According to Zia Modaber, who says he is representing George Hincapie, federal investigators (presumably Novitzky and his team) have asked to speak with Hincapie. There's been no confirmed report yet if, whether or when that will occur.

3. There have also been media reports purporting to quote Tyler Hamilton's attorney to the effect that federal investigators have also expressed interest in meeting with Tyler Hamilton. Hamilton's attorney has said only that Hamilton "will cooperate"....whatever that is supposed to mean.

Other than that, there is absolutely zero confirmed and verifiable information about the nature of the current probe, its scope or the nature of any charges that might actually be included in any indictment, assuming one were to issue from a federal grand jury.

And I do not agree with your speculation that if, for example, Lance Armstrong's blood samples were in the possession of some third party entity located beyond the territorial limits of the United States that those samples could be compelled to be produced here in the U.S., or that they could be re-tested here in the U.S. If you disagree, please cite some authority for that proposition, please.
 
Aug 9, 2009
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spectacle said:
...the subject matter jurisdiction for a federal prosecutor applying federal law[EDITED BY MOD - NO SPECULATION]-is not geographically limited. in other words, any federal district court is competent to hear the case (as long as it has in personam jurisdiction over the defendant)....
Spectacle - thanks for adding to the thread - I've relearned a little bit more.

I have quoted part of your post, and regarding the bolded part, I believe this thread's guidelines exclude guesses and "seems to be" type statements (unless I've missed a news release and RICO charges have been filed).

Again, thanks for your input counselour.
 
Jul 13, 2009
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cal_joe said:
spectacle - thanks for adding to the thread - i've relearned a little bit more.

I have quoted part of your post, and regarding the bolded part, i believe this thread's guidelines exclude guesses and "seems to be" type statements (unless i've missed a news release and rico charges have been filed).

Again, thanks for your input counselour.
[EDITED BY MOD - no speculation in this thread please]
 
Jul 23, 2010
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spectacle said:
the forum was chosen most likely for it having been the jurisdiction which has in personam jurisdiction over the majority of the defendants, coupled with it being the location of the chief prosecutor.....
No offense intended, but much of the material that follows in your post really has not much to do with what is occurring at this stage. First, understand that evidently whatever investigation is being conducted began (or at least morphed into) an FDA Investigation which reportedly involves Jeff Novitzky and his team who are working with a U.S. Attorney (Miller) in Los Angeles, and who have reportedly brought material to a grand jury which is empaneled in the United States District Court for the Central District of California located in Los Angeles. What that simply means is that the prosecutors and investigators are looking at and examining evidence of potentially criminal conduct which occurred within the district.

Where witnesses might be located, where a defendant might reside, where "in personam jurisdiction" might attach (and such jurisdiction in federal court extends nationwide), has not really anything to do with how and why a particular venue for an investigation is selected. Really, I don't doubt your bona fides as you've listed them, but I am admitted in California and in the U.S. District Court for the Central District, have practiced here for 30 years, and can tell you that the test for venue for an investigation and the empanelment and presentment of evidence to a grand jury, really doesn't have much if anything to do with "in personam jurisdiction" in any subsequent criminal case. Again, you might want to look at Title 9-11.121, of the U.S. Attorneys' manual:

9-11.121 Venue Limitations
A case should not be presented to a grand jury in a district unless venue for the offense lies in that district.
The question is venue for the offense, i.e., where was the alleged offense committed and where did it occur.

And when it comes to RICO, there is an extensive review and approval process that is followed, and it's actually the policy of the Justice Department to NOT use RICO loosely or indiscriminately. I suggest you review USAM Chapter 9-110.000, at this link: http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/110mcrm.htm. There you will find the following:

Despite the broad statutory language of RICO and the legislative intent that the statute ". . . shall be liberally construed to effectuate its remedial purpose," it is the policy of the Criminal Division that RICO be selectively and uniformly used. It is the purpose of these guidelines to make it clear that not every proposed RICO charge that meets the technical requirements of a RICO violation will be approved. Further, the Criminal Division will not approve "imaginative" prosecutions under RICO which are far afield from the congressional purpose of the RICO statute. A RICO count which merely duplicates the elements of proof of traditional Hobbs Act, Travel Act, mail fraud, wire fraud, gambling , will not be approved unless it serves some special RICO purpose. Only in exceptional circumstances will approval be granted when RICO is sought merely to serve some evidentiary purpose.
 
Aug 9, 2009
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spectacle said:
i made that educated guess in another clinic thread on july 10, 2010, and was referencing my own post from the 10th: http://forum.cyclingnews.com/showthread.php?p=267340#post267340
I understand where you are coming from, but this thread seems to be, and apparently the mods want it to be, significantly different from most threads on this forum.

For example, see posts #'s 2, 38, 73, 78, 81, and 83 in this thread.

The point has been made in this thread that certain hypotheticals regarding what could happen, educated guesses, or pretty much any other topic except applicable law with regard to known facts, etc. could derail the thread.

Don't mean to be harsh, but please look at the referenced posts and try to discern the purpose/demeanor of this thread.
 
Jul 13, 2009
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QuickStepper said:
I don't disagree with much of what you have written in your last three posts, but I think you'd be well-served to read the entire thread, because much of what you've covered has already been addressed, at least a few times within the body of the thread.
i have read most of the thread.

no one who discussed direct vs. circumstantial evidence gave the real definition. the definition clears up the confusion very nicely, and gives those who want it, a way to easily evaluate whether evidence is direct or circumstantial. direct=no inferences necessary; circumstantial=inferences required. it is very simple actually.

QuickStepper said:
I could quibble with some of your broad statements as they pertain to a Federal Grand Jury proceeding,
that's curious, considering i did not discuss the grand jury at all.

QuickStepper said:
and would suggest that you really should take a look at the U.S. Attorney's Manual, but the real issue is that no one outside of the FDA Criminal Investigations division (which is Jeff Novitzky's current employer) and the U.S. Attorney's office actually involved in the investigation, actually know what the scope of the investigation is.
i don't believe anywhere i claimed to know what the scope of the investigation is, however, if you think there is a chance that a federal investigator is pursuing violations of Los Angeles county municipal ordinances, then you'll have to hang on that limb on your own, and i will stick by my assertion that it is extremely unlikely.

QuickStepper said:
I do disagree with your analysis of RICO. You really ought to take a look at the U.S. Attorney's manual, and in particular how the feds decide to pursue a RICO claim. Objectively, there's absolutely no indication that anything being investigated to this point would involve a subsequent indictment being issued alleging a RICO violation. I'm not suggesting that it won't happen, because I suppose all things are possible, but at this point, there's no objective evidence from which such a conclusion can be reached. A couple of people in the media have speculated about this, but at this point it's purely speculation.
what points exactly do you disagree with regarding my rico analysis? do you disagree with the supreme court rulings i quoted from and gave the citations to?

the U.S. attorney's manual does not have the force of law. the elements and application of a rico violation are found in the US code and in federal case law.

in your response to another poster, which i quoted, you made two dismissive claims which were inaccurate: the first about conspiracies and the second about rico. these indicated to me that you did not know the answer and were puffing. you were also mistaken about fraud only being a tort.

conspiracy is very easy to explain--there was no need to say that it couldn't be explained other than by multi-volume treatise.

rico is more complex, ganted, but it is possible to provide a basic overview of the law and how to determine if it applies or not.

[AD HOMINEM]

QuickStepper said:
All we really know for sure at this point is the following:

1. Several newspapers purported to quote Greg Lemond who said he received an subpoena. No one outside of the Grand Jury and the U.S. Attorney's office and perhaps Lemond and his lawyers at Wilson, Sonsini, have seen the subpoena, and that includes any media. Initial media reports said it was a subpoena asking Lemond to testify, and based on those reports Lemond also said he was considering coming to Los Angeles to "testify". Later media reports clarified that the subpoena was only an SDT (supoena duces tecum) and that it called only for the production of documents to be produced for the grand jury. If the media accounts were accurate, those documents were to have been produced for the grand jury yesterday, Friday July 30, at a session of the grand jury meeting at the federal courthouse in Los Angeles.

2. According to Zia Modaber, who says he is representing George Hincapie, federal investigators (presumably Novitzky and his team) have asked to speak with Hincapie. There's been no confirmed report yet if, whether or when that will occur.

3. There have also been media reports purporting to quote Tyler Hamilton's attorney to the effect that federal investigators have also expressed interest in meeting with Tyler Hamilton. Hamilton's attorney has said only that Hamilton "will cooperate"....whatever that is supposed to mean.

Other than that, there is absolutely zero confirmed and verifiable information about the nature of the current probe, its scope or the nature of any charges that might actually be included in any indictment, assuming one were to issue from a federal grand jury.
that is a very curious reiteration of the facts, given that in plain english, there is no ambiguity in the phrases "will cooperate with," "federal investigators have asked to speak with," and "lemond stated he had received a subpoena;" yet you went out of your way to cast all three statements in an ambiguous light. furthermore, you state that the newpaper "purported" to quote greg lemond--do you believe the newspaper was lying when it said it quoted greg? has greg come forward and denied being subpoenaed?

TBH i am not even sure why you are summarizing this for me. in none of my posts did i discuss the facts of the case. all of my posts were explanations of the law, in response to direct questions about the law.

QuickStepper said:
And I do not agree with your speculation that if, for example, Lance Armstrong's blood samples were in the possession of some third party entity located beyond the territorial limits of the United States that those samples could be compelled to be produced here in the U.S., or that they could be re-tested here in the U.S. If you disagree, please cite some authority for that proposition, please.
i did not speculate, nor did i say that the US court could compel. i said, and it is absolutely true, that the US court can request that the assistance of the government which has jurisdiction over the party in possession of the evidence, in order to get that party to produce it. this international cooperation is achieved by treaties, most of which are bilateral and have been in effect for decades.

here is an excellent history and overview of international evidence sharing, particularly between european nations and the US: http://www.cfr.org/publication/7393/cops_across_borders.html :
Prior to 1977, the U.S. had negotiated several thousand treaties with foreign countries on a myriad of topics affecting legal relationships, including extradition treaties with most other countries, without ever undertaking a negotiation for mutual judicial assistance. The first such treaty, a 1977 MLAT with Switzerland, was followed by dozens of similar instruments negotiated with essentially every European state, as well as most other governments with functional law enforcement capacities and democratic governments. At the same time, the U.S. began to sign onto mutual judicial obligations in a number of multilateral settings, including various conventions issued by the Organization of American States (OAS), and the UN. However, it used such multilateral instruments only in extremis, when a bilateral agreement did not exist,
regarding the retesting of the evidence, i suggest you review the federal rules of evidence and the accompanying case law. out of curiosity, which evidentiary or procedural rule is that you believe would prevent this?

i do not have any problem with your taking issue with my recitation of the law. but i do take issue with your summarily dismissing it without explaining what points you "quibble" with and the legal foundation you are basing your dissension upon. [AD HOMINEM]. considering your curious presentation of the "facts" and the basic errors of law you have made, i admit that i question your veracity and [AD HOMINEM]
 
Jul 13, 2009
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Cal_Joe said:
I understand where you are coming from, but this thread seems to be, and apparently the mods want it to be, significantly different from most threads on this forum.

For example, see posts #'s 2, 38, 73, 78, 81, and 83 in this thread.

The point has been made in this thread that certain hypotheticals regarding what could happen, educated guesses, or pretty much any other topic except applicable law with regard to known facts, etc. could derail the thread.

Don't mean to be harsh, but please look at the referenced posts and try to discern the purpose/demeanor of this thread.
please feel free to report my post, and if moderator feels necessary to edit it i am sure that he or she will not hesitate.
 
Aug 9, 2009
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spectacle said:
please feel free to report my post, and if moderator feels necessary to edit it i am sure that he or she will not hesitate.
I will not report your post - I am merely asking you to try to understand this thread. Mods may (or may not) take a different viewpoint.

By the way, a response of "report me" without an actual response to the issues and referenced posts I raised in my post is disappointing - as I attempted to point out before, this is truly a different kind of thread here. I would be unhappy if this turned into a flame war.
 
Jul 13, 2009
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[WHAT DID I SAY ABOUT PETTY BICKERING?]

QuickStepper said:
Where witnesses might be located, where a defendant might reside, where "in personam jurisdiction" might attach (and such jurisdiction in federal court extends nationwide), has not really anything to do with how and why a particular venue for an investigation is selected. Really, I don't doubt your bona fides as you've listed them, but I am admitted in California and in the U.S. District Court for the Central District, have practiced here for 30 years, and can tell you that the test for venue for an investigation and the empanelment and presentment of evidence to a grand jury, really doesn't have much if anything to do with "in personam jurisdiction" in any subsequent criminal case.

Again, you might want to look at Title 9-11.121, of the U.S. Attorneys' manual: 9-11.121 Venue Limitations
A case should not be presented to a grand jury in a district unless venue for the offense lies in that district.
the us attorney's manual IS NOT LAW. please stop referring to it as if it was.

federal in personam/territorial jurisdiction does not apply nation wide. and without it, the federal court lacks subject matter jurisdiction to hear the case and must dismiss.

venue is subservient to jurisdiction--first you must have jurisdiction, and only then can you determine venue. venue for crimes like conspiracy is complicated because it can be difficult to determine where the conspiracy actually occurred, especially in the age of the email, thus the rule of thumb is to be safe and bring the case where the majority of defendants reside. venue is very unlikely to be successfully challenged if it posses no hardship on the defendants.

getting venue wrong is not critical; getting jurisdiction wrong can end your case.

finally, venue for the grand jury is the same as venue for the subsequent trial, if there is one. there is not a special grand jury/investigation venue and a different trial venue, they are one in the same unless the defendant challenges the venue.

[Ad Hominem]

but don't take my word for it:
Subject matter jurisdiction, which includes territorial jurisdiction, is a court's power to try cases based on a state's sovereign power to make laws for acts that occur in or have an effect in its territory. Lack of venue in one situs can result in the transfer of a prosecution to another county or district, while lack of jurisdiction terminates the prosecution by other courts of the same sovereign. Although venue can be waived or conferred by consent, jurisdiction cannot.

Read more: Venue - Cases - Venue, District, Crime, Test, Which, States, Criminal, and Prosecution http://law.jrank.org/pages/2247/Venue.html#ixzz0vJqTYKY8
The U.S. Constitution guarantees trial by jury and venue ". . . in the State where the said Crimes shall have been committed; but when not committed in any State, the Trial shall be at such Place or Places as the Congress may by Law have directed"

Read more: Venue - Cases - Venue, District, Crime, Test, Which, States, Criminal, and Prosecution http://law.jrank.org/pages/2247/Venu...#ixzz0vJqTYKY8
The Federal Rules of Criminal Procedure adhere to the basic rule that the prosecution shall be had in a district in which the offense was committed, but allow the courts to consider such factors as the convenience of defendants and witnesses and the prompt administration of justice in setting venue and considering motions for the change of venue....

There is no single defined policy or mechanical test to determine constitutional venue. In determining proper venue federal courts have created a number of tests. These tests may be complementary, overlapping, or contradictory in their effects, thus creating confusion in properly laying venue. Where the crime is unambiguously committed in one district, the venue lies there....

Congress has provided that "any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." As a general rule, then, venue in "continuing crimes" may be laid in any district in which the crime occurred. Venue in conspiracy cases, for example, is proper in any district where the agreement was formed or where an overt act in furtherance of the conspiracy was performed....

Under the Federal Rules of Criminal Procedure a defendant can move for a change of venue because of prejudice in the district depriving the defendant of a fair trial, for the convenience of parties and witnesses, and in the interest of justice. A motion for change of venue is addressed to the sound discretion of the trial judge. The Supreme Court noted nine factors to be considered in making a change of venue determination for the convenience of the parties: (1) location of the defendant; (2) location of witnesses; (3) location of events likely to be in issue; (4) location of documents and records; (5) disruption of the defendant's business; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; and (9) docket conditions in each district (Platt v. Minnesota Mining & Mfg. Co.). A district court can transfer the prosecution to any district, including a district in which no part of the offense was committed.

Read more: Venue - Cases - Venue, District, Crime, Test, Which, States, Criminal, and Prosecution http://law.jrank.org/pages/2247/Venue.html#ixzz0vJqTYKY8
QuickStepper said:
And when it comes to RICO, there is an extensive review and approval process that is followed, and it's actually the policy of the Justice Department to NOT use RICO loosely or indiscriminately. I suggest you review USAM Chapter 9-110.000, at this link: http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/110mcrm.htm. There you will find the following: Despite the broad statutory language of RICO and the legislative intent that the statute ". . . shall be liberally construed to effectuate its remedial purpose," it is the policy of the Criminal Division that RICO be selectively and uniformly used. It is the purpose of these guidelines to make it clear that not every proposed RICO charge that meets the technical requirements of a RICO violation will be approved. Further, the Criminal Division will not approve "imaginative" prosecutions under RICO which are far afield from the congressional purpose of the RICO statute. A RICO count which merely duplicates the elements of proof of traditional Hobbs Act, Travel Act, mail fraud, wire fraud, gambling , will not be approved unless it serves some special RICO purpose. Only in exceptional circumstances will approval be granted when RICO is sought merely to serve some evidentiary purpose.
one more time, the usam is not law. yes, the us attorneys are encouraged not to bring rico cases frivolously, but they nonetheless bring them ALL THE TIME. instead of reading the usam, maybe you should give the rico statute a gander: http://codes.lp.findlaw.com/uscode/18/I/96/1961 and then read some cases applying and interpreting it, which you will have to use your own westlaw account to access.

BTW why are you so dead set on establishing that this is not going to be a rico case? you are speculating as much as anyone else, only you are doing in a very sneaky, obfuscatory fashion, in which you present yourself as a good hearted lawyer, who just doesn't happen to know that fraud is a crime and that venue for grand juries is the same as for any subsequent trial resulting therefrom, but who is nonetheless adamant that the rico statute doesn't apply because he read it in what amounts to the justice department's employment manual.

[edited by mod - off topic]
 
Jul 17, 2010
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the us attorney's manual IS NOT LAW. please stop referring to it as if it was.
He never did. But it is a handy guide to the Fed. Rules of Procedure, and a US attorney would ignore it at their peril.

BTW why are you so dead set on establishing that this is not going to be a rico case?
He hasn't been, although you keep insinuating otherwise. Quickstepper merely made the point that there is a high bar set with respect to bringing a RICO case.
 

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