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p. 90. Add note 8. Sentencing of responsible corporate officer; United States v. DeCoster,
828 F.3d 626 (8th Cir. 2016).
p. 144. Add note 3. Edited cases: Ocasio v. United States, 136 S. Ct. 1423 (2016) and McDonnell v. United States, 579 U.S. ___ (2016).
p. 147. Add note 5. Breach of contract as fraud. United States ex rel. O'Donnell v. Countrywide Home Loans, Inc., 822 F.3d 650 (2d Cir. 2016).
p. 202. Add note 6. United States v. Weimert, 819 F.3d 351 (7th Cir. 2016). See also United States v. Takhalov, 827 F.3 1307 (11th Cir. 2016)
Additionally, see Peter J. Henning, N.Y. Times, When Lies Allowed in a Business Deal.
p. 244. Before "D" add a new "5".
Private Securities Litigation Reform Act (PSLRA) and RICO.
A recent Second Circuit decision concluded that section 107 of the
PSLRA bars civil RICO claims alleging predicate acts of securities
fraud, including mail and wire fraud, even where a plaintiff cannot
itself pursue a securities fraud action against the defendants.
MLSMK Investment Co. v. JP Morgan Chase Bank, 651 F.3d 268 (2d
Cir. 2011); 2011 WL 2640579, July 7, 2011. Accord, AFFCO Invs.
2001 v. Proskauer Rose, 625 F.3d 185 (5th Cir. 2010); Bixler
v. Foster 596 F.3d 751 (10th Cir. 2010); Howard v. AOL,
208 F.3d 741 (9th Cir.), cert. denied, 531 U.S. 828 (2000); Bald
Eagle School District v. Keystone Finance, 189 F.3d 321 (3rd
Cir. 1999). The Second Circuit also noted that the Supreme Court
decision in Central Bank of Denver v. First Interstate Bank of
Denver, 511 U.S. 164, 177 (1994) held that section 10(b) of
the SEC Act of 1934 does not impose private civil liability on
aiders and abettors of securities fraud.
p. 404. Add new note. United States v. Greenfield, 831 F.3d 106 (2d Cir. 2016).
The foregone conclusion exception to the Fifth Amendment right against self-incrimination did not apply to compel production of offshore bank statements, offshore trust fund documents, and the offshore account information of a business's subssidiaries.
p. 526. Replace US v. Ganias, 755 F.3d 125 (2d Cir. 2014), with United States v. Ganias, 824 F.3d 199 (2d Cir. 2016).
p. 637. Before
"3. Qui Tam Actions", insert:
In the case of In re Grand Jury Subpoenas 627 F.3d 1143
(9th Cir. 2010), a federal grand jury subpoenaed law firms seeking
non-privileged material obtained by the firms as a result of civil
discovery in an antitrust law suit. The documents at issue, that
originated outside the U.S., were produced to the antitrust
plaintiffs in the U.S. by the civil defendants. The Court of Appeals
held that a grand jury subpoena takes precedence over a civil
protective order.
p. 640. Garner v. Wolfinbarger, add note re Supreme Court opinion in United States v. Jicarilla Apache Nation, 131 S.Ct. 2313 (2011).
p. 689. Remove Note Case and add: United States v. Fokker Services B.V.
p. 707. Add note 2. In re Grand Jury Subpoena, John Kitzhaber (JK-15-029), 828 F.3d 1083 (9th Cir. 2016).
p. 725. Add. Applying crime-fraud exception to attorney-client privilege. In re Grand Jury Subpoena, 642 Fed. Appx. 223 (4th Cir. 2016) (unpublished).
p. 740. Above "E", add: United States v. Graf, 610 F.3d 1148,
1160-61 (9th Cir. 2010).
Company employee cannot claim entitlement to
a jointly held attorney-client privilege with the company’s
attorney; nor did he have a personal attorney-client privilege over
any and all of his communications with the named attorney. Adopts
the Bevill test.
p. 747. Add (d): Law Enforcement Privilege; In re City of New York,
607 F.3d 923 (2d Cir. 2010).
p. 779. Add note 4: Law Enforcement Privilege; Peter Lattman, N.Y. Times, Goldman Stuck With a Defense Tab, and Awaiting a Payback
Sentencing
p. 855. Before Part E, add: United States v. Negroni and Hall 638 F.3d 434, 446 (3d. Cir. 2011):
It may be that the mitigating factors the District Court identified, such as Negroni’s alleged personality disorder and his accompanying susceptibility to Walzer’s influence, could justify a variance. We confess our doubts, however, and emphasize the Sentencing Commission’s express concern with the once-common practice of sentencing "to probation an inappropriately high percentage of offenders guilty of certain economic crimes such as theft, tax evasion, antitrust offenses, insider trading, fraud, and embezzlement, that in the Commission’s view are ‘serious’". U.S.S.G. § 1A1.4(d)(2010). Thus, if a district court seeks to vary from the Guidelines recommendation of incarceration for persons who have committed serious white-collar crimes, it must provide a thorough and persuasive explanation for why the congressionally-approved poling of putting white-collar criminals in jail does not apply.Also see United States v. Ovid, __F.Supp. 2d__ (E.D.N.Y. 2010), 2010 WL3940724, where Judge Gleeson stated:
But the fact that two fraud defendants have similar or even identical Guidelines ranges does not necessarily mean they committed similar offenses . . . . .Slip Op. p.7.
So whereas the government asked me to sentence Ovid to a prison term 12 and one-half years below his advisory range, it requested that Hall’s sentence be "close to the advisory Guidelines range."
[I]f our system really is producing unwarranted disparities in fraud sentences, as opposed to disparities based on legitimate individualized sentencing concerns or on the reasonable exercise of judgment by different judges, we already have a remedy. A judge must explain the reasons for each sentence, and those reasons, and the sentences they support, are subject to appellate review.Slip Op. p.8.
[T]he Commission’s data show that the government almost never appeals sentences on the ground that the §3553(a) factors were incorrectly applied.Slip Op. p.9.
I don’t know why the Department has chosen to complain about fraud sentences to the Commission but not to the circuit courts of appeals.Slip Op. p.10.