All Things Legal - The Law for Non-Lawyers

[CentralCaliBike]

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.

My fault - California law for grand juries apparently is different from Federal law - in California the transcripts are public record after the filing and arraignment (Defendant informed of the charges) on the indictment (the document stating the charges).

 

[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?

I know that I previously gave you a rather long-winded explanation of the differences between breach of contract and fraud.

To answer your specific quesiton about the relevant FEDERAL statutes applicable to criminal fraud, this is probably a very good place to start:

http://www.law.cornell.edu/uscode/18/usc_sup_01_18_10_I_20_47.html

Not to speculate too much, but assuming the investigation even involves fraud, one might look at Title 18, Section 1031 which deals with major fraud against the United States involving government contracts....although assuming USPS is the entity involved, there is a real question in my mind (without actually doing the research into Section 1031's applicability) whether this section would apply to an independent agency of the federal goverment as opposed to the governemnt itself. I suspect that there would be no distinction, but others have suggested this distinction elsewhere. I may take a look at this particular question if I find time.

With respect to RICO, you might also want to take a look at the actual RICO statutes. They can be found here: http://www.law.cornell.edu/uscode/s...e/html/uscode18/usc_sup_01_18_10_I_20_96.html

The statutes are releatively short, but have been applied very comprehensively and widely in the civil context, but not as frequently in the criminal context. Whether RICO would be applied to an investigation potentially involving doping is purely a matter for speculation at this point.

And again, on the subject of RICO, not surprisingly, the U.S. Attorney's Manual (at Section 9-110, et.seq.) has an entire section devoted to the guidelines for US Atty's about how, when, where and why and what approvals are needed before RICO can and will be employed in a criminal matter. See generally, http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/110mcrm.htm

 

[MacRoadie]

I know that I previously gave you a rather long-winded explanation of the differences between breach of contract and fraud.

To answer your specific quesiton about the relevant FEDERAL statutes applicable to criminal fraud, this is probably a very good place to start:

http://www.law.cornell.edu/uscode/18/usc_sup_01_18_10_I_20_47.html

QuickStepper, thanks for all the effort and contributions. Some of these responses obviously take some time to compose, and the links are great resources as well.

 

[Marva32]

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.

When I spoke about the location of the prosecutor not being the basis for jurisdiction, that meant that the trial location is not based on where the prosecutor is, but that the prosecutor would be chosen from one of the attorneys in the US Attorney's office for the District where the charges are being brought.

 

[Marva32]

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.

Sorry for not responding to your follow-up question, I wasn't actively following this thread. I guess I was not clear with my original answer. What I was trying to say is that the prosecutor is typically chosen from the office in the District where the case is being prosecuted. That is not always the case, as sometimes a prosecutor is brought in from elsewhere if they have a particular amount of expertise with a certain type of case. But, again, where the case is brought is not based on the location of the prosecutor. As for logistical reasons, the logistics that would be involved in determining the venue of the prosecution would be, as you pointed out, that it should be brought where the majority of the criminal conduct allegedly occurred. The logistical aspect is that is where most of the evidence and witnesses are most likely located.

 

[Marva32]

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.

Not sure if it was pointed out before, but the secrecy of the grand jury applies only until the Indictment is sworn out. One of the standard pieces of discovery given by the prosecutors to the defense is transcripts of the grand jury testimony.

 

[Kennf1]

QuickStepper, thanks for all the effort and contributions. Some of these responses obviously take some time to compose, and the links are great resources as well.

Indeed. I'd say this thread has, so far, been a model of how an informative discussion on the topic at hand should take place. Many thanks to our resident criminal law experts.

The question is, can I get CLE credit for reading through the posts and links?

 

[Marva32]

The question is, can I get CLE credit for reading through the posts and links?

Probably the best question in this thread so far. But, my guess is that you can't.

 

[CentralCaliBike]

Probably the best question in this thread so far. But, my guess is that you can't.

If you live in California you probably can

Double credits if you contribute

 

[scribe]

Not sure if it was pointed out before, but the secrecy of the grand jury applies only until the Indictment is sworn out. One of the standard pieces of discovery given by the prosecutors to the defense is transcripts of the grand jury testimony.

What did that just say? That the testimony in a GJ is always secret, or is until at which point it is not?

I think this is the heart of the matter. Because it could come out in GJ that there was widespread individual doping either knowingly/unknowingly by team/managers or full-on systematic doping, but no cause for criminal action on the basis of any number of reasons. OR, it could lead to riders being particularly uncooperative (even at the risk of fine/jail) on the basis that their testimony can lead to a variety of civil legal problems.

 

[CentralCaliBike]

What did that just say? That the testimony in a GJ is always secret, or is until at which point it is not?

I think this is the heart of the matter. Because it could come out in GJ that there was widespread individual doping either knowingly/unknowingly by team/managers or full-on systematic doping, but no cause for criminal action on the basis of any number of reasons. OR, it could lead to riders being particularly uncooperative (even at the risk of fine/jail) on the basis that their testimony can lead to a variety of civil legal problems.

It appears that QuickStepper know far more about Federal grand juries than I do - the transcript of a California State grand jury is available when the Indictment is unsealed if a criminal case is filed. There may be different rules for the Feds.

 

[QuickStepper]

Not sure if it was pointed out before, but the secrecy of the grand jury applies only until the Indictment is sworn out. One of the standard pieces of discovery given by the prosecutors to the defense is transcripts of the grand jury testimony.

Marva: That is not correct under Federal law. Please go back a few pages in this thread where I address this question. Let me summarize for you.

At one time, the defendant in a criminal trial was never given access to the grand jury testimony that resulted in the indictment. By the 1980s, in most jurisdictions (including California), if a witness who testified before the grand jury was called to testify at the eventual trial, the defendant was given a copy of that witness's grand jury testimony to use for possible impeachment.

Some jurisdictions (e.g., California) also give the defendant a list of everyone who testified before the grand jury, and several (e.g. California) give the defendant a full transcript of all relevant grand jury testimony.

In the federal system, no such list is provided, and the grand jury transcripts of only those persons who testify on behalf of the prosecutor at trial are given to the defendant.

The grand jury transcripts in a federal investigation are never unsealed for the general public. In fact there are specific requirements for disclosure that must be met and demonstrated in a motion addressed to a federal judge before anyone other than the defendant charged with a crime in an indictment can receive any transcript. That includes other US Atty's who want to use the transcripts in other proceedings, other grand juries who may also want to use testimony of a witness in another unrelated investigation, State AG's or DA's who would like to use the testimony for either civil enforcement or state criminal prosecution. Essentially all of these other uses must meet very stringent requirements in order to obtain release of a transcript and there's nothing automatic about it.

Your answer might be correct under State law applicable to a State grand jury, but that is definitely not the case with respect to Federal grand juries.

 

[Marva32]

What did that just say? That the testimony in a GJ is always secret, or is until at which point it is not?

I think this is the heart of the matter. Because it could come out in GJ that there was widespread individual doping either knowingly/unknowingly by team/managers or full-on systematic doping, but no cause for criminal action on the basis of any number of reasons. OR, it could lead to riders being particularly uncooperative (even at the risk of fine/jail) on the basis that their testimony can lead to a variety of civil legal problems.

The testimony of a grand jury proceeding is secret only until a certain point.

 

[QuickStepper]

The testimony of a grand jury proceeding is secret only until a certain point.

Not to argue this, but that's a pretty gross over-simplification. A witness' own testimony is secret, but the witness can disclose what he said or what was asked of him at any time.

Otherwise, in a federal grand jury proceeding the testimony of witnesses cannot be disclosed EVER by either the grand jurors or the prosecutors except in very circumscribed situations.

In a FEDERAL grand jury proceeding, even after the indictment issues, the fundamental rule is that the proceedings remain secret and will not be disclosed EXCEPT in the situations described in the prior posts on this subject.

Please read: this message: http://forum.cyclingnews.com/showpost.php?p=300744&postcount=107

and this message: http://forum.cyclingnews.com/showpost.php?p=300811&postcount=109

 

[Marva32]

Not to argue this, but that's a pretty gross over-simplification. A witness' own testimony is secret, but the witness can disclose what he said or what was asked of him at any time.

Otherwise, in a federal grand jury proceeding the testimony of witnesses cannot be disclosed EVER by either the grand jurors or the prosecutors except in very circumscribed situations.

In a FEDERAL grand jury proceeding, even after the indictment issues, the fundamental rule is that the proceedings remain secret and will not be disclosed EXCEPT in the situations described in the prior posts on this subject.

Please read: this message: http://forum.cyclingnews.com/showpost.php?p=300744&postcount=107

and this message: http://forumcyclingnews.com/showpost.php?p=300811&postcount=109

I don't disagree with you at all.

 

[Realist]

I don't disagree with you at all.

Why I am not a lawyer.

Scientist: sorry, I was wrong about that.

 

[Colm.Murphy]

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

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

Specific questions:

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

2. If a US Federal court does not have the authority, who would?

 

[QuickStepper]

...
Specific questions:

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

2. If a US Federal court does not have the authority, who would?

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

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

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

Not sure I really answered your question, but I think I did.

 

[Colm.Murphy]

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

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

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

Not sure I really answered your question, but I think I did.

Yes, you answered it.

Let me add a twist.

If the samples are outside the USA but USADA has the authority to request the samples, could they be compelled to do so under court order?

 

[QuickStepper]

Yes, you answered it.

Let me add a twist.

If the samples are outside the USA but USADA has the authority to request the samples, could they be compelled to do so under court order?

Wow....let me put it this way. If a witness has in their "possession, custody or control" something which has been subpoenaed, and there is no legitimate basis to either quash or limit the subpoena, then it has to be produced.

What your question really goes to is whether "authority to request" the samples from whoever holds them outside the U.S. jurisdiction amounts to "possession, custody or control".

I would say that if the entity or person subpoenaed has the "control" over the item, then that answers the question. If on the other hand, the entity or person subpoenaed really doesn't control the third party and cannot compel the third party to comply, then it's beyond the jurisdiction and it can't be compelled if the third party fails or refuses to comply with the subpoenaed person's or entity's request that it be produced here in the U.S..

The answer really lies in the relationship between the person or entity subpoenaed and the entity or person having actual physical custody of the item sought.

How's that for an answer?

 

[QuickStepper]

Let's follow up on that; Using your hypothetical, let's say the grand jury subpoenas some samples from USADA. But USADA doesn't have the samples; they are overseas with some other entity. So USADA asks the other entity to voluntarily send the samples here to the U.S. If the other foreign entity complied and the samples were then brought here to the US, and in the possession of USADA, they could be subpoenaed. If they remain in Europe, no they can't be compelled to be produced, at least not by any conventional means of exercising the subpoena power given either to a federal Grand Jury or to a U.S. District Court.

It is possible, and I do not know the answer to this, that there are some international treaties in effect which might apply to require a subpoena to be issued in the foreign jurisdiction's courts which would conceivably compel production of the item sought in a U.S. Court, but I am not aware of any specific authority for that proposition. Foreign treaties cover a wide variety of areas dealing with international law and that frankly is beyond the scope of my knowledge. Perhaps someone else will be able to weigh in on this.

 

[Marva32]

Why I am not a lawyer.

I rethought what I said before

 

[scribe]

So to simplify the discussion of testimony in the GJ:

What happens in a GJ, stays in the GJ. At least in terms of access to third parties. The sole purpose of the GJ is to make a determination as to what crimes might have been committed, which might necessitate an indictment, if any at all.

However, the prosecutor might compel a witness to testify in a criminal trial to the effect of what came to light in the GJ. In other words, Rider A might be called to the stand and submitted to a number of questions relating to the reasoning of the indictment. So, Rider A has to carefully consider how they cooperate as it might require repeating in a criminal trial environment.....so as to avoid perjury of NOT repeating what was said behind closed doors. Because as highlighted previously in this thread, what happens in a Federal trial is a matter of public record.

 

[QuickStepper]

So to simplify the discussion of testimony in the GJ:

What happens in a GJ, stays in the GJ. . . . . In other words, Rider A might be called to the stand and submitted to a number of questions relating to the reasoning of the indictment. . . ."

Um, not exactly. Be careful how you phrase this. Rider A might be called as a witness in a criminal trial following an indictment. If Rider A also previously testified before the Grand Jury, and was asked a question and gave an answer, and if he were then asked the same question at trial and a different answer was given, providing the testimony was on a material issue in the case, Rider A could potentially be charged with perjury.

But no one in any criminal trial is asked questions about "the reasoning of the indictment." No one gives opinion testimony about whether they agree or disagree with an indictment. That's just inadmissible opinion.

. . . So, Rider A has to carefully consider how they cooperate as it might require repeating in a criminal trial environment.....so as to avoid perjury of NOT repeating what was said behind closed doors. Because as highlighted previously in this thread, what happens in a Federal trial is a matter of public record.

Um, ok. Yes, anyone who previously testified at a Grand Jury and who is later called as a witness to testify at a criminal trial based on an indicment issued by that very same Grand Jury before whom the witness earlier gave testimony, should be very careful that whatever his current testimony it is not materially different from the testimony given previouisly, unless there's a REALLY, REALLY good reason for any change.

Witnesses sometimes do change their testimony. Sometimes when they are first asked a question they have no present recollection because they haven't reviewed documents or otherwise had their recollection refreshed. So they answer "I don't recall" or "I don't know." Or they (contrary to every admonition given to a witness) speculate or guess at the answer and they get it wrong. Then later when they know they are going to testify at trial, they've had a chance to review documents, review physical evidence or otherwise correct a prior faulty recollection or gain new insight into the matter. So they answer differently than their prior testimony. That may not amount to perjury. In fact in most cases it does not, and simply allows one side or the other to try to discredit the witness, impeaching the witness' credibility or calling it into question based on the prior inconsistent statements.

Nothing is ever as black-and-white as we'd like it to be, and whatever it is that this Grand Jury that is meeting in Los Angeles is investigating, it surely isn't all nice and neat and wrapped up in a little package.

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....

 

[Colm.Murphy]

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....

No, no, go on. I think I am experiencing my first man-crush...