All Things Legal - The Law for Non-Lawyers

[QuickStepper]

Sheesh.

You do understand that if the feds are investigating and presenting evidence to a grand jury, that they are dealing with matters over which the feds have jurisdiction, i.e., violations of federal laws, such as (e.g., in an FDA criminal investigation) drug enforcement and import and export laws, wire fraud, mail fraud, tax fraud and evasion, etc. If the matters involved merely state law violations, it would be a state investigation. So from a jurisdiction point of view, there's not so much to discuss. The question was why is this being investigated or evidence presented to a grand jury in Los Angeles (as opposed to, for example, in Texas, or New York, or Georgia, or elsewhere), and the simple answer is because the people investigating believe that the evidence suggests the possible commission of a violation of federal law may have likely occurred within the Central District of California. Please don't insult me or the rest of the readers here by suggesting anyone mentioned the Los Angeles Municipal Code or state law. No one did except you.

And in the context of discussing the differences between fraud and contract, that was in connection with a discussion of potential civil liability, i.e., whether and to what extent someone who might testify under a grant of immunity from criminal prosecution might yet still be exposed to potential civil liability and the different measures of damages. No one, certainly not me, was talking about criminal fraud, although materially, there's not much distinction except for the requirement of scienter and the higher standard of proof, i.e. beyond a reasonable doubt vs. preponderance of evidence.

As for RICO, I already said I did not disagree with your substantive comments about what RICO may be generally used for, but you use examples of civil RICO and criminal prosecution under RICO interchageably and they are not. And as for the assertion that federal prosecutors use RICO "all the time", that's just not borne out by the statistics from the U.S. Justice Federal Statistics Database (http://fjsrc.urban.org/). You'll probably be interested to learn that in 2008, the lastest year for which the BJS has published available statistical data, there were a total of only 166 RICO cases brought by way of indictment or information nationwide at the federal level out of 38,074 cases brought for all violations under Title 18 USC during that same year, i.e., 2008. That's a far cry from "all the time." In fact that's less than 0.000043 % of all cases, a number that many would define as statistically insignificant. And consider that many of those cases involved RICO prosecutions brought against street gangs or for securities violations, and the number is even less significant in the context of what the media has reported about the current investigation.

Again, I'm certainly not suggesting that the grand jury in this instance might not return an indictment which also includes one or more RICO violations, but from a statistical as well as Justice Department policy point of view, it's more likely that this won't occur.

There are a lot of reasons why RICO is not applied "all the time" in a criminal context at the federal level, too many to go into in the context of this thread. But Superlicht got it right....it's a very high threshold to apply it in the federal criminal context, and federal prosecutors are discouraged from using RICO for what are otherwise non-RICO prosecutions. And keep in mind that no one here was talking about civil RICO. The USAM does indeed set forth the policy followed by the Justice Department's Criminal Division. I agree it's not the law, but I never said it was.

And with respect to the rest of the points, I'm with my sock puppet...and my other sock puppet. Nothing further to add. I have one request: Please leave the ad hominem attacks or commentary out of this thread. Disagree with me all you want, but please let's not let this thread devolve into slinging insults.

 

[Bala Verde]

if moderator feels necessary to edit it i am sure that he or she will not hesitate.

Done. Please observe the following rules, which are to be observed by all participating in this thread:

- Please refrain from making ad hominem charges when discussing the law.

- Let's not get bogged down in a war over the correct spelling of words.

- Please refrain from setting up straw men.

- No speculation in THIS thread. Please feel free to open another one to support any theory you might have based on your understanding of the law and the latest developments.

 

[QuickStepper]

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.

The statement that jurisdiction is subservient to venue is certainly a correct one as a general proposition. But understand that the FRCrP do not apply to a federal investigation by an agency of the U.S., such as the FDA, IRS, FBI, etc, and the FRCrP does do not apply to a grand jury proceeding, any more than the Federal Rules of Evidence apply to a grand jury proceeding. Those rules certainly do apply once an indictment is returned or an information filed agaisnt a defendant who is held for trial in a federal prosecution. So "venue" is not the same when discussing a grand jury proceeding.

And as far as nationwide jurisdiction, I was speaking not about a defendant's minimum contacts or whether or not a defendant can be legally arrested and detained in a particular state for a violation of state law (or "minimum contacts" for purposes of federal civil procedure) but rather whether there has been a violation of federal criminal law. Federal courts are courts of limited jurisdiction by nature, and the Constitution created a federal government with only limited delegated powers; federal authority was originally confined to matters, such as foreign relations, that were otherwise not reserved to the states. Beginning during the post-Civil War period and extending through Prohibition, the federal criminal jurisdiction expanded to respond to interstate crimes. In 1933, the Senate authorized a special committee to investigate racketeering, kidnapping, and other forms of crime; the committee noted that the "the prevalence, atrocity and magnitude of the crimes then being committed and the apparent inability of the then existing agencies to cope with them" required federal legislation to deal with them under the government's power to regulate interstate and foreign commerce and to exercise its police powers, the power to tax and the postal power. Congress has therefore employed a variety of these powers to expand federal criminal jurisdiction dramatically.

If a person violates the federal wire fraud law for example, (i.e., a violation of 18 U.S.C. § 1343, which involves any scheme or artifice to defraud, for the purpose of obtaining money or property by means of false or fraudlent pretenses involving any use of phone, mail, wire, radio, or television communication in interstate or foreign commerce) he can be prosecuted in any federal district court where the crime was perpetrated; the real issue is subject matter jurisdiction and venue (where does the defendant reside, where are the witnesses and evidence located, etc). A person who violates the wire fraud laws of the U.S. by using interstate commerce can be arrested anywhere he can be found within the U.S, and as you note, can also be brought to answer charges in the U.S. if found outside the territorial limits if there is a treaty with the foreign country and if the foreign jurisdiction chooses to cooperate (see, e.g., Roman Polanski).

But in terms of "in personam" jurisdiction, there's not much question about it in a federal criminal prosecution unless the feds are also prosecuting a concurrent violation of state law (which they can, and often do). For example, the state will typically prosecute a small bank robbery because the feds will decline to use their resources; but if the feds are prosecuting a major fraud that also commits bank robberies and employs RICO in addition to other federal criminal law, and a murder which occurred in Califoria is also being prosecuted as part of the same case against the same defendant(s), subject matter jurisdiction over the murder charge would require that the case be prosecuted in California where it is alleged to have occurred; applying principles of venue, the case might be transferred elsewhere after it is brought based on the factors applicable to determining venue in a criminal matter that you cite, so in that sense I don't think we disagree that in the context of a criminal prosecution, venue is subservient to jurisdiction.

I appreciate you were speaking to a prosecution; I was referring to grand jury and investigative proceedings because that was the context that had been reach at the particular point in the conversation. Sorry for any confusion or cross-talk.

BTW why are you so dead set on establishing that this is not going to be a rico case?

I'm not. I do not know whether the feds will or won't charge anyone with a violation of the RICO Act. I simply said I doubt they will given the added complexity of applying RICO in a criminal context and the stated policy of the Justice Department to use the RICO Act sparingly and only in appropriate cases. Whether this turns out to be such an appropriate case, no one can say at the moment.

 

[QuickStepper]

One more effort to try to explain to the lawyers and non-lawyers alike the differences between subject matter and in personam jurisdiction as they pertain to federal criminal matters.

In an excellent article published by three first-rate criminal practitioners at K&L Gates, a prominent multi-national law firm (the article was written in the context of prosecuting criminal internet gambiling, but the principles are the same) the authors observed:

Subject Matter Jurisdiction

International law recognizes five traditional principles under which a court may assert subject matter jurisdiction over a criminal action – territorial; nationality; universality; passive personality; and protective. These principles were developed by Harvard University researchers in 1935. Many U.S. federal courts, to some extent, have embraced them and use them in determining whether they have subject matter jurisdiction over criminal actions with international features. The law, however, is still developing in this area, particularly with regard to cases in which the alleged criminal activity is legal in the jurisdiction where the defendant resides. And U.S. federal courts do not always address jurisdiction in their opinions, even when international features are present.

Under the territorial principle, a federal court has subject matter jurisdiction if the crime was committed in the U.S. Under the nationality principle, a federal court has subject matter jurisdiction if the person accused of committing the crime is a U.S. citizen. Under the universality principle, a federal court has subject matter jurisdiction if the U.S. has physical custody of the person accused of committing the crime and the crime is considered particularly heinous and harmful to humanity. Under the passive personality principle, a federal court has subject matter jurisdiction if the victim of the crime is a U.S. citizen. Under the protective principle, a federal court has subject matter jurisdiction if the crime threatens the security of the U.S. as a nation or the operation of its governmental functions, and the conduct constituting the crime is generally recognized as criminal under the law of countries that have reasonably developed legal systems.

In addition to the above five principles, many U.S. federal courts have adopted a sixth principle – the objective territorial principle. Under this principle, a federal court has subject matter jurisdiction over a criminal action if the criminal conduct in question occurred outside the U.S. but was intended to produce, and did produce, "detrimental effects" within the U.S.

The objective territorial, territorial, and nationality principles are those that have most commonly been used by U.S. federal courts as bases for asserting subject matter jurisdiction.

Federal courts, in considering whether they have subject matter jurisdiction, should first take into account the U.S. Supreme Court's decision in United States v. Bowman, 260 U.S. 94 (1922). In Bowman, the Court determined that although the U.S. Congress has power to proscribe criminal conduct committed overseas, a federal court should not conclude that Congress has done so unless the statute that was allegedly violated reflects an intent to do so: "If punishment…is to be extended to include those [acts] committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard." Id. at 98. In other words, if a U.S. crime is committed outside the U.S., a federal court does not have subject matter jurisdiction over any affiliated criminal action unless the relevant criminal statute was intended by Congress to reach activity that occurs outside the U.S.

The authors distinguished subject matter jurisdiction from personal jurisdiction, observing that the key question for personal jurisdiction when dealing with a prosecution for violation of a federal criminal statute is whether the defendant is or can be found within the U.S. or can be extradited. If here, and the defendant is arrested, then there is no issue with in personam jurisdiction. The authors observed:

Personal Jurisdiction

A U.S. federal court has personal jurisdiction over an accused criminal who is a resident of a foreign nation only if the accused is present in the court's territorial jurisdiction. If the accused is not present, the court can seek to secure his presence by requesting formal extradition pursuant to a treaty.

An extradition treaty is an instrument that facilitates the surrender of accused criminals from one nation to another. Generally, a nation will only extradite an accused criminal residing within its borders to another nation if the other nation would likewise, under similar circumstances, surrender an accused criminal to the first. A U.S. federal court that requests extradition can obtain personal jurisdiction over the accused criminal only after he is arrested in the nation where he resides and removed to the territorial jurisdiction of the court. Traditionally, the signatory nations to an extradition treaty are only required to surrender individuals who are accused of committing the crimes enumerated in the treaty.2 A federal statutory provision, 18 U.S.C. §3184, sets forth the process that a court is to use to effectuate the extradition of an accused foreign criminal:

Whenever there is a treaty or convention for extradition between the United States and any foreign government…any justice or judge of the United States, or any magistrate judge authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention…issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate judge, to the end that the evidence of criminality may be heard and considered.
If the extradition process is implicated, the relevant extradition treaty and laws of the jurisdiction from which extradition is sought will be of great importance and should be carefully reviewed.

Of course, as the arrest of the CEO of BetonSports shows [a foreign national who operated an online gambling website who was accused of violating U.S. wire fraud statutes pertaining to offshore internet gaming], personal jurisdiction can be obtained over non-U.S. citizens who travel to or through the U.S. by virtue of their voluntary physical presence in the U.S. All individuals arriving in the U.S. via airplane from a foreign country must have a passport. The airlines record those passport numbers. If a federal arrest warrant has been issued for a non-U.S. citizen, an airport is a likely place for the individual to be detained and then arrested. In such a situation, personal jurisdiction might be obtained as a result of the individual's travel choice.

Hopefully these distinctions are clear and concise and explain the differences between the two concepts that we've been discussing. Again though, the question of where and why a grand jury is or may be receiving evidence within a particular U.S. District Court district (e.g., the Central District of California) largely has to do with where the investigation is based, and where the prosecutors believe the majority of the criminal activity or the offense occurred. The question at the federal level for a grand jury of venue is important; jurisdiction over the potential target of the investigation is largely a secondary concern so long as the offenses in question are of a type where federal exercise of subject matter jurisdiction is otherwise proper.

 

[spectacle]

The statement that jurisdiction is subservient to venue is certainly a correct one as a general proposition.

it is not a general proposition. it is the case in ALL circumstances, civil or criminal, when dealing with a federal case.

But understand that the FRCrP do not apply to a federal investigation by an agency of the U.S., such as the FDA, IRS, FBI, etc, and the FRCrP does do not apply to a grand jury proceeding, any more than the Federal Rules of Evidence apply to a grand jury proceeding. Those rules certainly do apply once an indictment is returned or an information filed agaisnt a defendant who is held for trial in a federal prosecution. So "venue" is not the same when discussing a grand jury proceeding.

bringing up the fact that the federal rules of criminal procedure are not applicable to the FDA, IRS, FBI etc. is a red herring.

each of those entities is an administrative agency. administrative cases are heard and adjudicated in administrative courts (except that appeals may be heard in federal appellate courts).

but federal grand juries are not called for administrative proceedings. the fact that one has been called shows that this is not a case that will be adjudicated by an administrative court.

the venue is the same. it is not premised upon the federal rules of criminal or civil procedure, but on the due process clause 5th amendment of the US constitution.

the federal government (as you note below) has limited jurisdiction, unlike the states. federal jurisdiction and venue rules derive from, and seek to effectuate, the due process clause--this is why jurisdiction in all federal cases, civil and criminal, and at all phases, from invesitgation to appeal, is crucial to get right. if you don't, your case gets dismissed. if the federal venue is in a federal jurisdiction to which the defendant is not subject--it has no constitutional authority to indict him.

one more time: a grand jury must have jurisdiction over the defendant in order to bind him. if a grand jury venue is chosen in an improper jurisdiction, it's indictment has no legal effect and cannot bind the defendant.

the grand jury is simply conducting the probable cause hearing; it is analogous to the magistrate or judge who is consulted to determine if probable cause exists for issuance of a warrant

with everyday, discrete state crimes, like murder and robbery, jurisdiction over a defendant is acquired by the defendant conducting a crime within the jurisdiction, or having the result of his crime be felt there (in other words, the criminal subjects himself to the jurisdiction of any given state by his actions, or by the result of his actions; this is analogous to how a civil defendant subjects himself to jurisdiction through maintaining sufficient contacts with a jurisdiction).

there is no constitutional issue, as long as the state has a genuine relationship to the crime, because the states have general, not limited jurisdiction, much like any traditional sovereign. moreover, when a crime is discrete, it is easy to determine where it occurred or was felt.

however, federal jurisdiction is limited, both civilly and criminally. thus, the court (used here, in the custom ofthe legal profession of this country, to refer to all aspects of the tribunal system, including the grand jury, as well as to the actual trial court), must affirmatively establish that it has jurisdiction in each case.

think of it this way, just as a new york grand jury cannot indict a defendant, who allegedly committed his crime in texas and whose alleged victim was found in texas, becuase it lacks jurisdiction; likewise, a federal grand jury in california cannot indict a defendant unless and until it has established it has jurisdiction (by a combination of several factors, including the location of the crime, location of the victim, and the federal statute authorizing the prosecution). it is quite possible that a federal court within california may not have jurisdiction over a defendant who committed a crime there, even though the california state court certainly would and another federal court within california might.

the following is from Minnesota grand jury handbook, but the principal applies to all federal grand juries:http://www.mnd.uscourts.gov/JuryInfo/grand_jury_handbook.shtml#3

It should be borne in mind that a federal grand jury can take action only upon federal crimes that have been committed within the district in which it has been impaneled.....Its concern must be devoted solely to ascertaining whether there is probable cause to believe that a federal crime has been committed and to report accordingly to the court.

the district requirement referred to in the quote (bolded) derives from the constitutional requirement for proper jurisdiction ,which derives from the due process clause

in my explanation to realist, who asked a question about how the forum was/would be determined, i used a lot of civil jurisdiction terms. i did this because, with complex federal corporate criminal and conspiracy cases, it is easier, most of the time, to apply an international shoe type of standard to evaluate and determine jurisdiction and venue, than to apply the traditonal "where the crime occurred" standard.

with complex corporate crimes and conspiracies, it is often very hard to determine where the crime took place or was felt, and often the courts fall back an in personam type of jurisprudence that is almost identical in analysis to that they use in federal civil procedure analysis.

unlike conspiracy and rico, federal jurisdiction is the most difficult area of amercian law. i have left more out than i have included, but otherwise i would need 20 pages just to cover everything in even a cursory fashion--this was why, in answer to the question, i suggested that the most likely reason for the choice of the forum (which means the same thing as venue), was that it was where the majority of defendants could be found (it is harder to challenge jurisdiction when the location or effect of crime is indeterminate, if the jurisdiction selected is where a defendant resides). that may turn out to not be the case, but it is at least legally sound, and it can be applied no matter what facts come to light.

And as far as nationwide jurisdiction, I was speaking not about a defendant's minimum contacts or whether or not a defendant can be legally arrested and detained in a particular state for a violation of state law (or "minimum contacts" for purposes of federal civil procedure) but rather whether there has been a violation of federal criminal law. Federal courts are ...required federal legislation to deal with them under the government's power to regulate interstate and foreign commerce and to exercise its police powers, the power to tax and the postal power. Congress has therefore employed a variety of these powers to expand federal criminal jurisdiction dramatically....But in terms of "in personam" jurisdiction, there's not much question about it in a federal criminal prosecution unless the feds are also prosecuting a concurrent violation of state law (which they can, and often do)....

it is simply not true that "unless the feds are also prosecuting a concurrent violation of state law" that there is not "much question" about jurisdiction. in federal cases jurisdiction is always an issue. period. the article you quote is correct but incomplete and besides the point.

of course jurisdiction is not always addressed in an opinion, only issues of controversy are addressed. it often is established in the pleadings and is not even litigated, because competent lawyers do not bring cases which will be challenged on jurisdictional grounds. we have that drilled into us as 1l's.

 

[spectacle]

Sheesh.

You do understand that if the feds are investigating and presenting evidence to a grand jury, that they are dealing with matters over which the feds have jurisdiction, i.e., violations of federal laws, such as (e.g., in an FDA criminal investigation) drug enforcement and import and export laws, wire fraud, mail fraud, tax fraud and evasion, etc.

that is a complete mistatement of the law. yes, federal prosecutors are charged with upholding and enforcing federal laws, but that does not give them jurisdiction over a defendant. that is a complete misunderstanding and misuse of the word "jurisdiction."

Please don't insult me or the rest of the readers here by suggesting anyone mentioned the Los Angeles Municipal Code or state law. No one did except you.

i was answering realist's question about the case's potential relation to los angeles, by saying it was extremely unlikely. that was clear from my post and from the fact i quoted his question. in response, you said you disagreed with me.

And in the context of discussing the differences between fraud and contract, that was in connection with a discussion of potential civil liability, i.e., whether and to what extent someone who might testify under a grant of immunity from criminal prosecution might yet still be exposed to potential civil liability and the different measures of damages. No one, certainly not me, was talking about criminal fraud, although materially, there's not much distinction except for the requirement of scienter and the higher standard of proof, i.e. beyond a reasonable doubt vs. preponderance of evidence.

another complete misstatement. the question was not asked and the context was not limited to civil liability. in fact, the question you answered by saying that fraud is only a tort was specifically about criminal fraud:

Originally Posted by 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?

As for RICO, I already said I did not disagree with your substantive comments about what RICO may be generally used for, but you use examples of civil RICO and criminal prosecution under RICO interchageably and they are not. And as for the assertion that federal prosecutors use RICO "all the time", that's just not borne out by the statistics from the U.S. Justice Federal Statistics Database (http://fjsrc.urban.org/). You'll probably be interested to learn that in 2008, the lastest year for which the BJS has published available statistical data, there were a total of only 166 RICO cases brought by way of indictment or information nationwide at the federal level out of 38,074 cases brought for all violations under Title 18 USC during that same year, i.e., 2008. That's a far cry from "all the time." In fact that's less than 0.000043 % of all cases, a number that many would define as statistically insignificant. And consider that many of those cases involved RICO prosecutions brought against street gangs or for securities violations, and the number is even less significant in the context of what the media has reported about the current investigation.

only 166 RICO cases? you are kidding right? 166 cases in one year for cases a complex and time consuming as a rico prosecution, is a HUGE amount, its over 13 a month. that amounts to all the time for me--more than one a month every month, pretty much is all the time.

and no, you did not say what you disagreed with, regarding my rico analysis only that you "quibbled with it."

 

[MacRoadie]

This thread has rapidly become a prime example of why they have a judge in the courtroom.

While I certainly appreciate the desire to insure that the non-lawyers amongst us are given accurate responses to their questions, the thread has digressed into a legal d!ck-measuring contest. Maybe you guys can iron things out via PM?

It seems we left answering questions awhile ago and I'm guessing that's the reason we haven't seen many new queries. Can we possibly agree to disagree and get back to a more productive dialog?

Where you can't agree, you can both present a response and allow the reader to decide for themselves (a la a trier of fact).

Sound fair?

 

[I Watch Cycling In July]

What percentage of federal grand jury investigations result in an indictment?

 

[QuickStepper]

It seems we left answering questions awhile ago and I'm guessing that's the reason we haven't seen many new queries. Can we possibly agree to disagree and get back to a more productive dialog?

Where you can't agree, you can both present a response and allow the reader to decide for themselves (a la a trier of fact).

Sound fair?

Sounds good to me.

But I do have a couple of replies to some of the things Spectacle said (see the quotes below), and then I am done responding to his posts, because as MacRoadie correctly observes, I suspect no one else really cares much about following our debate. That said, Spectacle wrote:

if the federal venue is in a federal jurisdiction to which the defendant is not subject--it has no constitutional authority to indict him.

one more time: a grand jury must have jurisdiction over the defendant in order to bind him. if a grand jury venue is chosen in an improper jurisdiction, it's indictment has no legal effect and cannot bind the defendant.

This is an absolute non-sequitor. A grand jury issues an indictment. It does not adjudicate anything, and it does not need jurisdiction over the person it is indicting. An indictment is a complaint. The test of whether in personam jurisdiction has been properly obtained over the defendant (i.e., has he been arrested or extradited to the particular venue where the trial will be held) comes afterthe indictment is issued. If the person named in that indictment is a U.S. citizen who happens to be residing in France during the time the same grand jury considers the evidence and testimony presented by the prosecutors, and the person named never appears in front of the grand jury, but is nevertheless named as a defendant in an indictment, the grand jury's indictment is still perfectly valid if the subject matter of the indictment, i.e., the crimes charged are crimes over which a U.S. federal district court would have jurisdiction.

Let me put it more simply: In personam jurisdiction only becomes a question once the person is ultimately charged and is called upon to answer a charge of a crime. Then the question becomes (a) does the district court have subject matter jurisdiction, and (b) does the court have in personam jurisidiction to try the defendant. The latter is really very easily satisfied: Either the defendant can be arrested and compelled to appear because he is within the U.S. borders, or if he is outside the U.S., he can be arrested and extradited to the U.S. Once he's here, the requirement of in personam is satisfied.

I suspect that the confusion seems to be the inference in Spectacle's responses that a federal grand jury is somehow exercising some sort of "jurisdictional" function or performing an adjudicatory role in which it is assumed that the target of a federal investigation, the potential future defendant, has some sort of guaranteed right to defend against potential charges at that stage of the investigation, and that's just not so. The grand jury is not performing a juridicial or adjudicatory function during its evidence-gathering phase. Rather, it merely serves to insure that a prosecutor doesn't bring a charge of a "capital or infamous" crime unless 16 to 23 disinterested citizens also agree. And the target of the investigation has no right to offer witnesses nor to present any evidence to the grand jury, particularly not in a federal grand jury. So 'in personam" never enters the equation at the grand jury stage of proceedings.

Once an indictment is brought, then I absolutely agree with Spectacle that unless both subject matter and in personam jurisdiction attach, such that without the court also acquiring in personam jurisdiction, the case cannot proceed further. If there is no subject matter jurisdiction (which is the more frequently litigated issue in federal criminal prosecutions) then the case is done; likewise, if the defendant cannot be brought before the court, either by way of arrest or extradition, then the trial cannot proceed either. I think we agree on that much.


Spectacle, quoting me above, also wrote:

Quote:
Originally Posted by QuickStepper
Sheesh.

You do understand that if the feds are investigating and presenting evidence to a grand jury, that they are dealing with matters over which the feds have jurisdiction, i.e., violations of federal laws, such as (e.g., in an FDA criminal investigation) drug enforcement and import and export laws, wire fraud, mail fraud, tax fraud and evasion, etc.

that is a complete mistatement of the law. yes, federal prosecutors are charged with upholding and enforcing federal laws, but that does not give them jurisdiction over a defendant. that is a complete misunderstanding and misuse of the word "jurisdiction."

I have one reply to this: I never mentioned personal jurisdiction over a defendant. In a grand jury proceeding there is no "defendant"...not until after the grand jury returns and indictment. I was talking about subject matter jurisdiction, because at the investigation stage that's the critical issue: Is the subject matter a federal offense or not?


Spectacle also took issue with my comments by saying that 166 RICO indictments in a given year was "Huge":

only 166 RICO cases? you are kidding right? 166 cases in one year for cases a complex and time consuming as a rico prosecution, is a HUGE amount, its over 13 a month. that amounts to all the time for me--more than one a month every month, pretty much is all the time.

I still beg to differ with Spectacle's definition of "huge". There are 94 separate United States Districts in which Federal District Courts are located. A total of 166 indictments returned in a year (and not all of those actually resulted in trials according to the BJS) would mean that less than 2 such prosecutions per year were brought in some districts; I don't have time nor the inclination to research this further, but I'm fairly certain that most of those prosecutions occurred in the larger more urban Federal Districts, and that in the majority of districts, there were few if any such cases brought. The actual occurrence of a federal RICO prosecution for anything other than a real organized crime prosecution (or more recently street gang prosecutions), is exceedingly rare, so rare when compared to other Title 18 prosecutions that it really is almost statistically insignificant by comparison.


Finally, I see that Spectacle has started an entire thread devoted to informing the entire CN forum (well, at least those who read the Clinic) that he thinks I'm either not a lawyer, don't know the law (at least not as well as he does) or worse...that I'm just a good "Googler" to use Spectacle's phrase. I will not respond to any of that. I don't derive my professional or personal validation from what someone says about me or to me on an internet forum. As I said earlier in the thread, I am a practicing California attorney with 30 years experience. I am admitted in California State courts and in federal courts including the U.S. District Court for the Central Districts of California, U.S. Tax Court and the Supreme Court. I am a graduate of the University of California undergrad and law school. I won't engage in similar ad hominem attacks because that's not the purpose of this thread, no matter how much I disagree with Spectacle's views about the law. I won't respond further to Spectacle. We clearly have different views about what occurs in connection with a federal grand jury investigation.

Sorry for the interruption.

 

[Publicus]

This thread has rapidly become a prime example of why they have a judge in the courtroom.

While I certainly appreciate the desire to insure that the non-lawyers amongst us are given accurate responses to their questions, the thread has digressed into a legal ****-measuring contest. Maybe you guys can iron things out via PM?

It seems we left answering questions awhile ago and I'm guessing that's the reason we haven't seen many new queries. Can we possibly agree to disagree and get back to a more productive dialog?

Where you can't agree, you can both present a response and allow the reader to decide for themselves (a la a trier of fact).

Sound fair?

Now I know how my clients feel when me and opposing counsel get caught up in law school level debate. I'll remember this next time I see things are headed that way and take it offline.

 

[QuickStepper]

What percentage of federal grand jury investigations result in an indictment?

That's a great question. I will do some quick research to see if I can find an answer.

Edit: I didn't find any current statistics (still looking) but from a 1999 article published in Legal Times (now called "American Lawyer" magazine), I found the following based on some Freedom of Information requests that were issued as part of a push by former Rep. William Delahunt of Mass., to reform the federal grand jury system with some legislation he was then proposing:

"From fiscal years 1994 through 1998, federal prosecutors secured 122,879 indictments, according to DOJ records. During the same period, prosecutors failed to get indictments in only 83 cases. Grand juries hand up "no true bills" when the majority of a 23-member grand jury finds that the government failed to show probable cause to charge a crime.

"The grand jury, as we now know it, is a foolish anachronism," says Arnold Burns, who was deputy attorney general in the Reagan administration and currently serves on a National Association of Criminal Defense Lawyers task force to change the grand jury system. "It is 100 percent in the control of the prosecutor."

I suspect that the figures are fairly consistent now with what they were during the 1990's, and perhaps even higher in a post-911 world.

I will continue to look for more definitive, more current data, but that should give you a good idea about how frequently someone gets indicted once a Grand Jury gets to the stage where evidence is being presented and considered.

 

[Oldman]

Now I know how my clients feel when me and opposing counsel get caught up in law school level debate. I'll remember this next time I see things are headed that way and take it offline.

They get frustrated because they're paying two attorneys to measure their d*cks and don't want to know whose is bigger. I've been reading this thread and wondering why QS doesn't want to get the obvious, but I'm just a stupid cyclist. Who doesn't end up in court.

 

[straydog]

This thread has rapidly become a prime example of why they have a judge in the courtroom.

While I certainly appreciate the desire to insure that the non-lawyers amongst us are given accurate responses to their questions, the thread has digressed into a legal d!ck-measuring contest. Maybe you guys can iron things out via PM?

It seems we left answering questions awhile ago and I'm guessing that's the reason we haven't seen many new queries. Can we possibly agree to disagree and get back to a more productive dialog?

Where you can't agree, you can both present a response and allow the reader to decide for themselves (a la a trier of fact).

Sound fair?

I think this is a first...but I agree with MacR....if anyone wanted to know which lawyer had the more impressive credentials I would suggest they are at the wrong website and should instead visit here....(please don't open this link if you are at work)

Responses to specific enquiries from us Judge Judy fans, from both parties, if they feel inclined, is of far more interest and relevance to this thread.

 

[straydog]

apologies for the above...but if you do manage to open that link...(hint: I hadn't actually foreseen that the letters t, w, a, t in that order in any word will be ****)....but if you do....Man that Novitsky is buff!

 

[Alpe d'Huez]

This thread seems to outlived it's usefulness, at least as a sticky.

With this thread turning into insults and porn links I will remove it from being a sticky unless someone gives me a good reason why not to.

 

[MacRoadie]

This thread seems to outlived it's usefulness, at least as a sticky.

With this thread turning into insults and porn links I will remove it from being a sticky unless someone gives me a good reason why not to.

Can we maybe give it a colonic and see if it gets back on track? We're at a slow point right now, but I'm sure the usefulness will return and possibly increase.

 

[sars1981]

The expectations were originally a little high, perhaps?? If Lawyers were always going to agree with each other we wouldn't need them in the first place. This thread has produced much better information than we would otherwise have got. Thanks to all the attorneys for contributing.

 

[Cal_Joe]

This thread seems to outlived it's usefulness, at least as a sticky.

With this thread turning into insults and porn links I will remove it from being a sticky unless someone gives me a good reason why not to.

I would be surprised if there are any official releases regarding the GJ for a while, so maybe a good idea to unsticky the thread for now, but leave open the option to resticky when anything happens.

And a big thanks to the mods and MacRoadie and Scribe for trying to keep this thing on track.

 

[CentralCaliBike]

From what I have seen most initial questions were answered as to the process. It seems likely that there will be more questions that may come up, when and if the grand jury comes back with an indictment. I would leave a sticky up for those who did not catch this information the first time around.

As for the back and forth between those of us who have some legal knowledge, it just shows why you can always find two sides in a courtroom. And it demonstrates a little of what I have always told people, lawyers are like doctors in that you do not want to go to a brain surgeon for a foot problem. I know criminal law fairly well in a state setting. I also am comfortable with constitutional law as it relates to a criminal setting, but it is clear that the rules for the Federal Grand Jury are not the same as in the state system. All this means is that I can see the confusion with non legal types when even those of us with legal backgrounds are mistaken about procedure.

 

[python]

question about annonimous sources

question:

how does the us federal law treat anonymous evidence ?

must the source be uncovered and made public if it is found that the information it provided is relevant and substantive for the successful prosecution of a case?

i’m shooting this question off the top of my head thinking about various hot lines set up by multiple agencies (usada, fda whatever). they may get a call (or be sent an important lead) from a well placed source that promises groundbreaking information under the condition he/she will stay anonymous.

 

[CentralCaliBike]

question:

how does the us federal law treat anonymous evidence ?

must the source be uncovered and made public if it is found that the information it provided is relevant and substantive for the successful prosecution of a case?

i’m shooting this question off the top of my head thinking about various hot lines set up by multiple agencies (usada, fda whatever). they may get a call (or be sent an important lead) from a well placed source that promises groundbreaking information under the condition he/she will stay anonymous.

The best answer is that it depends. If some unknown person is screaming in the street that they just saw a green truck run over a cyclist, that statement can be admitted into evidence as a spontaneous statement - the person making the statement would never testify (just the people who heard him/her).

If an anonymous individual makes a report to authorities about criminal behavior, say on a hotline, that information may be used to follow up with investigation but will not be brought to the jury, unless the anonymous person later becomes known and testifies.

If the individual is known to law enforcement but makes a statement on the condition they remain anonymous, law enforcement will use the statement generally to target follow up investigation. If the witness provides information that could be exculpatory as to certain defendants who are later charged then, in state court, the witness name must be given to the defense or the case has to be dismissed. If, prior to filing, the prosecution concludes that they cannot obtain a conviction without the testimony of the anonymous witness, they will often tell law enforcement that the witness is not going to be anonymous or the case is not going to be prosecuted.

 

[QuickStepper]

The best answer is that it depends.

CentralCalBike's answer is also correct under Federal law, i.e., it all depends.

question:

. . . must the source be uncovered and made public if it is found that the information it provided is relevant and substantive for the successful prosecution of a case?

It all depends on what stage of the proceedings you're asking about (e.g. probable cause for issuance of a search warrant) and to what use the information is being put by the investigators/government/police. The key issues are whether the information provided is (a) relevant and (b) can be otherwise corroborated by independent witnesses or other physical evidence which may or may not be dependent upon the original tip and (c) has been provided to a private organization (such as UCI, USADA or WADA) or to a governmental agency (e.g., FDA, IRS, FBI, etc.) and how that information is used by the government (i.e., the police).

At the investigative stage, the anonymous source does not need to be disclosed. For the issuance of a search warrant the question is whether there is sufficient "probable cause" established to satisfy due process requirements. As long as the information is otherwise demonstrated to be reliable and can be corroborated by other independent facts or other eyewitness testimony of non-anonymous sources, the identity of the informant need not be disclosed by the governemnt. For example, a search warrant can issue based on anonymous tipster evidence so long as the magistrate or judge issuing it is presented with facts in the affidavit showing how the information is otherwise reliable (e.g., other corroborating facts, other eyewitness testimony, or prior evidence of reliability of the anonymous tipster).

But again it does depend upon at what stage of the proceedings this issue arises. If it is at a suppression hearing (a motion by a defendant to suppress or exclude evidence secured by a search warrant issued pursuant to information provided by an anonymous tipster), the federal government does not have to disclose the identity of the informant. The Supreme Court has held that “although the Due Process Clause has been held to require the Government to disclose the identity of an informant at trial, provided the identity is shown to be relevant and helpful to the defense (citation omitted) it has never been held to require the disclosure of an informant's identity at a suppression hearing.” (United States v. Raddatz (1980), 447 U.S. 667, 679).

The government (and the anonymous tipster) generally possess a qualified privilege of anonymity and the government can refuse to disclose the identity of a confidential informant from whom it received evidence of alleged criminal activity. This privilege may be overcome upon a proper showing of need on the part of the defendant, but it has to be more than mere speculation as to the likely usefulness of disclosure in order to outweigh the government's interest in anonymity (and that interest is simply promoting citizen participation in the prevention and reporting of crimes).

As a general proposition though, when an informant is not an active participant or an eyewitness, but rather a mere tipster, who then leads investigators to other more reliable and concrete evidence (which later evidence is presented at trial as the direct or circumstantial evidence of the commission of a crime) courts have generally held that the informant's identity need not be disclosed. CentralCaliBike's example of the person who is overheard is a very good example of this sort of thing. The same issue frequently arises in child abuse cases, or warnings made by anonymous tips of "incipient danger" situations, such as people armed with guns, bombs, terrorist threats, etc. In such situations, the governement encourages anonymous tipsters and the courts have protected anonymity because they recognize that without it, citizens would be fearful of participating in the prevention and reporting of crimes.

Just as at the state level, the same rule applies at the federal level as well, i.e., if the tipster provides information that could be exculpatory to a defendant, the witness' name must be given to the defense or the case has to be dismissed.

Of course, in the situation you describe, i.e., an anonymous telephone hotline, where the entity to whom the information is provided actually has no way of truly identifying the informant, that "information" itself, unless corroborated sufficiently, will never find it's way into a courtroom at all and would be inadmissible hearsay if sought to be introduced directly.

In other words, let's just say that a tipster calls the FDA and says "I saw X selling and distributing steroids to pro cyclists on multiple occasions." So the FDA and its investigators testify before a grand jury and say, "well, we got a calll from an anonymous tipster who said he saw X selling and distributing steroids multiple times to pro cyclists." Let's assume further that the grand jury indicts X based solely on this information. That charge isn't likely to be going very far. Without additional corroborating evidence, the testimony of the federal agent at trial is pure hearsay, would lack a proper foundation and couldn't be used to convict X.

Same facts though: Caller gives information. FDA investigators then go and talk to multiple witnesses. If these other witnesses corroborate or provide yet other additional information, which is then shown to be reliable, and GJ indicts, and the witnesses developed from the original tip are presented at trial to give direct testimony about what they saw, heard, touched, smelled (i.e., what they perceived and have personal knowledge of), then it's a whole different story. In that circumstance, the anonymous tipster likely never comes into play and his or her identity is irrelevant, particularly if there are no search and seizure issues (no search warrants involved based on the anonymous tip).

Again though it all depends on context as to how anonymity is treated and at what stage of either an investigation or trial you're looking at. If the anonymous source's identity is critical to the maintenance of the criminal prosecution itself, i.e., if the trial can't proceed at all unless the witness' identity is disclosed, then it's treated the same way that CentralCaliBike stated.

 

[I Watch Cycling In July]

Number 10 of this article caught my attention.

What level of interaction are witnesses or/and targets allowed to have in general? Are they allowed to "reminisce about old times" together, before giving testimony? Could a wealthy witness provide a little help for an impoverished witness by covering their good friend's legal bills? What about the target of an investigation musing about sweet business deals that might happen in future, if everyone kept their noses clean? Basically, where is the line between frowned upon, and frowned-upon-with-handcuffs?

 

[QuickStepper]

Number 10 of this article caught my attention.

What level of interaction are witnesses or/and targets allowed to have in general? Are they allowed to "reminisce about old times" together, before giving testimony?

There's nothing that would prevent that, but it might be foolish or ill-advised for a target to do that, since there is always the potential that it could be misconstrued or misinterpreted as attempting to obstruct an investigation or improperly influence the witnees. On the other hand, there's certainly no prohibition and one has every right to associate with whomever one chooses.

Could a wealthy witness provide a little help for an impoverished witness by covering their good friend's legal bills?

Not unless the wealthy witness wants to expose himself to a charge of bribing a witness, suborning perjury or something similar. Generally a bad idea as a litigation tactic. But this is what Lemond has been rumored to be doing with Landis, i.e., "loaning" his Wilson, Sonsini lawyers to Landis. I thought that was an ill-advised move when I first read about it, and I still think it's a terrible idea.

What about the target of an investigation musing about sweet business deals that might happen in future, if everyone kept their noses clean? Basically, where is the line between frowned upon, and frowned-upon-with-handcuffs?

That last example would clearly be frowned upon and could be construed as an attempt to bribe a witness in exchange for favorable testimony. Shouldn't be something that anyone who is advised they are a target should be doing. No one is going to get arrested immediately unless the target is being truly set up (as in the people he's talking to who are witnesses are wearing wires and federal agents are in the next room just waiting to bust up the party), but it's a really, really bad idea for a target to be saying stuff like this to GJ witnesses or potential witnesses. Just my opinion. And this sort of conduct is the kind of thing that I advise my clients to never engage in. Note the last sentence of Wisenberg's article: "And it should go without saying that your attorney and his staff should conduct and arrange all interviews—not you." That means, stay away from witnesses for the time being, at least until the GJ investigation is over.

 

[uspostal]

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

Chuck