CEPI Newsletter November 2017

This monthly compendium of news reports about corruption and ethics issues is brought to you by the Center for Ethics and Public Integrity (CEPI). Neither the National Association of Attorneys General nor the National Attorneys General Training & Research Institute express a view as to the accuracy of news accounts or affirm any position taken by the authors of the hyperlinked articles.

Cases

Jefferson County District Attorney Guilty of Perjury, Jury Finds: Suspended Jefferson County, Alabama, District Attorney Charles Todd Henderson has been found guilty of first-degree perjury. The case, which was brought by the Alabama Attorney General’s Office, centered around Henderson’s representation as guardian ad litem of a minor child of a woman with whom he was having an affair. Henderson, who was subsequently removed as the child’s guardian ad litem, lied under oath about spending the night with the woman when he testified at the woman’s later divorce trial.

Ex-Kingman Employee Sentenced for Swindling More than $1M from City: A former Kingman, Arizona, city employee has been sentenced to over nine years in prison for stealing more than $1 million from the city where she worked. Diane Maxine Richards was also ordered to pay $1,113,589 in restitution to the City of Kingman and forfeit her state retirement benefits. The Arizona Attorney General’s Office prosecuted the case.

Boston Officer Indicted on Charges of Trying to Launder Stolen Money at Casino: The Massachusetts Attorney General’s Office has charged Joseph Nee, who was assigned to the Boston Police Department’s evidence management unit, with stealing about $2,000 from a closed bank robbery case file. Nee is alleged to have taken the money—which had traces of red dye from an antitheft dye pack that discharged during the original robbery—to a casino, where he attempted to launder it (via placement-layering-integration, not soap-and-water—a clarification that, given the unique facts of this case, is appropriate to make).

Brooklyn DA: Private Detective Tried to Blackmail Sexual Abuse Accuser's Relative With Prostitute: A Brooklyn, New York, private investigator who once had a TV show called “Parco P.I.” has been charged with unlawful surveillance, promoting prostitution, dissemination of an unlawful surveillance image, tampering with a witness, and second-degree criminal contempt. Vincent Parco orchestrated a plot to pressure a victim into recanting her testimony in a case in which Parco’s client had been indicted for sexually abusing the victim when she was 12 years old. Parco set up a scheme to lure one of the victim’s family members to a hotel room, where the man was met with a prostitute. The assignation was recorded and Parco’s associates showed the video to several of the victim’s family members in an effort to shape the victim’s testimony. The family instead reported the extortion attempt to the authorities. During a search of his office, Parco told authorities he had “done this many times before.” In remarks to reporters, Parco’s criminal defense attorney cited Parco’s intimidation attempt as evidence that Parco “goes above and beyond for his clients.”

Irate Judge Gives Ex-Philly DA Seth Williams 5-Year Sentence In Bribery, Corruption Case: Former Philadelphia District Attorney Seth Williams was sentenced to the maximum five years in prison permitted by the count to which he entered a mid-trial guilty plea. The federal judge who sentenced him—who spent part of his career in the office that Williams besmirched—spared few invectives in describing Williams’s course of using the power of his office to help those who’d given him money, cars, and international vacations; stealing from funds intended to support his mother in a nursing home; and taking funds from his campaign to fuel his lifestyle. “Almost from the time you took office, you sold yourself to the parasites you surrounded yourself with,” the judge said. “You humiliated the men and women of the district attorney’s office.”

Suffolk Prosecutor Charged With Obstructing Police Assault Investigation: Suffolk County District Attorney Thomas J. Spota has been charged in federal court with witness tampering and obstructing an investigation into an attack on an inmate who angered his county’s then-chief of police, James Burke, by teasing him about personal items the inmate saw when he stole Burke’s duffle bag. Burke was sentenced to 46 months in prison after being found guilty of beating the inmate while he was shackled to the floor in the precinct. Spota, who is not running for reelection, and Christopher McPartland—Spota’s chief of investigations—are alleged to have held a series of meetings and calls with Burke and other police officers in an effort to conceal Burke’s role in the assault. Spota, who resigned a day after the charges were announced, was profiled in 2006 for his “prolific record in ferreting out corruption.”

McDonnell

To Gauge McDonnell’s Impact, Menendez—Not Skelos or Silver—Is the Case to Watch: The Global Anticorruption Blog observes that the federal trial of New Jersey Senator Robert Menendez may provide a better gauge of the impact of McDonnell on federal criminal corruption cases than the decisions reversing the convictions of New York state politicians Sheldon Silver and Dean Skelos. This is because the Menendez jury will be instructed using post-McDonnell “official acts” definition and courts will have an opportunity to determine whether the pressure exerted by Menendez on decisionmakers (at least some of whom he had no direct control over) suffice under the Supreme Court’s analysis.

Making Sure Corrupt Politicians Do Time For Their Crimes: Proposed federal legislation, the “Close Official Acts Loophole (COAL) Act” (H.B. 3843), drafted to respond to McDonnell, would expand the statutory definition of official act under federal law. The COAL Act would broaden 18 U.S.C. § 201(a)(3)’s “official acts” definition to cover the “approval, disapproval, recommendation, rendering of advice on, or investigation of any question, matter, cause, suit, proceeding or controversy.” Press coverage of the proposed Act has been positive.

Ethics

Running Unopposed, Vance Is Suddenly on the Defensive: Campaign contributions by defense attorneys with cases before him have cast Manhattan District Attorney Cy Vance into the spotlight. Vance’s decisions not to prosecute high-profile targets in 2012 and 2015 have been the subject of unflattering media coverage that pointed out that defense attorneys in the case—who, at least in one instance, met directly with Vance without the line prosecutor handling the case—made tens of thousands of dollars in campaign contributions around the time Vance decided not to go forward with the case. An editorial in the New York Post suggests a broader legislative reform limiting criminal defense attorneys’ abilities to contribute to district attorney campaigns, and an editorial in the New York Timessuggests that district attorneys themselves agree not to take contributions from other lawyers.

2 Ex-Kirkland Attys DQ'd From Hibu Employment Suit: In a decision that applies the state’s Rules of Professional Conduct 1.9 and 1.10, a federal district court has disqualified two lawyers who, after representing the plaintiff company in a related case, attempted to represent a defendant sued by their former client. While at Kirkland & Ellis, the lawyers represented a company named Hibu in its lawsuit against a former employee; they later filed a notice of appearance in a second case to represent a second former employee who was also being sued by Hibu. After Hibu objected to the representation, Kirkland consented to leaving the case, and the lawyers formally filed notices of withdrawal for the individual defendant. Within a few weeks, however, the two lawyers left Kirkland, joined Latham & Watkins, and filed a motion to appear in the case, again representing the former employee defendant. In a written decision, the court concluded, inter alia, that the matter in which the lawyers previously represented Hibu was “substantially related” to the lawsuit in which they represented the former employee being sued by Hibu.

Judge to Bring in FBI and US Attorney After Plaintiffs Lawyer Suggests Witness Tampering in Hip Implant Trial: A federal judge in Texas has asked the Federal Bureau of Investigation and the local U.S. Attorney’s Office to interview witnesses in a multi-district case in which the plaintiffs have alleged the defendants tampered with witnesses. The case—which involves allegedly faulty hip implants produced by a Johnson & Johnson subsidiary—has had several recent legal issues, including the filing of a mandamus before the Fifth Circuit by the defense, which argued—successfully—that the district court incorrectly concluded that the defendants agreed to have every one of over 9,000 separate cases tried before the district court.

Justices Won't Hear California Judge's Disciplinary Appeal: The Supreme Court has denied a request for a writ of certiorari in an appeal of the California Commission on Judicial Performance decision admonishing Superior Court Judge Edmund W. Clarke, Jr., for mistreating several jurors during voir dire for a lengthy gang-related murder trial. The Commission’s 34-page admonishment describes how one of the jurors, who Clarke implied had lied about her weak command of English, sobbed as she explained—with the help of an interpreter—the shame she felt about her language difficulty. The California Supreme Court previously denied Clarke’s petition for review.

City Council Amends Code of Ethics, Sets Limit on Gifts: The Reading, Pennsylvania, City Counsel has amended its Code of Ethics to set a $50 limit on gifts given to public officials or employees from anyone who does—or is seeking to do—business with the city. The ordinance amendment is acknowledged to be an outgrowth of federal investigations into pay-to-play schemes that have ensnared the mayor of Allentown and the former mayor of Reading. Relatedly, an editorial earlier this year suggested three steps that Pennsylvania voters could take to “slow the tide of corruption”: campaign finance reform; redistricting reform; and methods to make it easier for people to vote and thus press legislators to enact the first two reforms.

Op-Ed By District Attorney Tony Rackauckas Debunking Recent Harvard Study On Prosecutorial Misconduct: The District Attorney in Orange County, California, has written an editorial carefully analyzing the allegations made about his office by a Harvard Law School-affiliated group. That group, the “Fair Punishment Project,” reported that its review of court decisions from 2010-2015 revealed the reversal of seven Orange County convictions for prosecutorial misconduct. According to the District Attorney, however, five of those cases did not include any findings of prosecutorial misconduct and the two that did cited relatively minor misstatements and mistakes. He opined that “[b]lindly repeating claims of misconduct is reckless at best, and promotes an unwarranted and dangerous distrust within our community, even when those claims are proven false.” (As a result of complaints about the accuracy of its conclusions, the “study” was updated.)

U.S. Appeals Court Rejects Hedge Fund Founder's FBI Misconduct Case: The Second Circuit has reversed a district court decision that left open the possibility that prosecutors and agents could be found liable for damages based on the execution of a search warrant in an investigation that did not result in charges. In its decision in Ganek v. Leibowitz, et al., the Court found that, contrary to the trial judge’s conclusions, excising a certain false statement from the search warrant (as required by Franks) yielded a warrant that still set out probable cause for a search; as a result, it found that the defendants were entitled to qualified immunity and dismissed the case. The decision also includes helpful analysis about the probable cause standard more generally, particularly in white collar cases where the investigation is searching for evidence of mens rea.

U.S. Supreme Court to Decide Major Microsoft Email Privacy Fight: The Supreme Court has agreed to hear the U.S. Department of Justice’s appeal from a decision by the Second Circuit that agreed with Microsoft that requiring U.S. companies to provide data, in response to a search warrant, that the companies chose to store overseas violated principles of extraterritoriality. The Government’s request for a writ of certiorari was joined by a bipartisan coalition of nearly three dozen state attorneys general.

Tools

Resource Alert: USDA-Developed Mobile App Answers Ethics Questions On the Go: The U.S. Secretary of Agriculture has released a free ethics mobile application that is designed to provide answers to questions about government ethics issues. The U.S. Department of Agriculture (USDA) Ethics App is available on the App Store.

Transparency International’s Anti-Corruption Pledge Tracker Is Badly Flawed. It Needs To Be Redone from Scratch.: Over at the Global Anticorruption Blog, Harvard Law Prof. Matthew Stephenson thoughtfully assesses Transparency International’s “Anti-Corruption Pledge Tracker” and identifies serious flaws in its methodology (and the execution of that methodology) by looking closely at its conclusions about the United States. Stephenson points out that sources that TI cites for its conclusions about the paucity of U.S. Federal Corruption Practices Act—as one example—instead suggest that the U.S. is continuing to enforce the FCPA.

Investigative Journalism

Corruption of Government Officials Ranked Americans' Top Fear of 2017: According to a survey of over 1200 adults by Chapman University, Americans’ top fear is the corruption of government officials. Nearly 75 percent of people surveyed said that corruption makes them either “afraid” or “very afraid.”

The Drug Industry’s Triumph Over the DEA: The Washington Post and 60 Minutes teamed up for a lengthy article that explores the arguably ”revolving door” between some high-level Drug Enforcement Administration officials and the pharmaceutical industry that they regulate. The piece suggests that this phenomenon, along with campaign donations, led to recent legislation that weakened tools that the DEA used to combat and distributors that shipped excessive amounts of painkillers to areas hardest hit by the opioid epidemic. Fallout has been quick, and resulted in the withdrawal of the nomination of a House of Representatives member who co-sponsored the legislation and received substantial campaign contributions from pharmaceutical companies to lead the Office of National Drug Control Policy.

International

Former Portuguese PM Jose Sócrates Charged with Corruption: Jose Sócrates, the Prime Minister of Portugal from 2005-2011, has been charged with receiving bribes, money laundering, falsifying documents, and tax fraud. Prosecutors allege that Sócrates conspired with nearly 20 individuals and 9 companies in the wide-ranging corruption case—the largest since Portugal became a democracy forty years ago. The Panama Papers are said to have played a significant role in the investigations.

Son of Equatorial Guinea's President is Convicted of Corruption in France: Teodorin Obiang, the son of Equatorial Guinea’s president, has been convicted in abstention of money laundering, corruption, and abuse of trust in a French court. While many of its people lived in poverty, Obiang looted his home country to buy a fleet of luxury cars and high-priced real estate in France, including two Bugatti Veyrons (each worth 1 million euros) and a 100 million euro mansion with gold-plated faucets and a Rodin sculpture. Obiang has been sentenced to three years in prison and a fine of 30 million euros—a sentence that has been suspended on the condition that he commit no more crimes in the next five years.


Amie Ely is the Director of the Center for Ethics & Public Integrity and the Editor of the CEPI Newsletter and may be reached at 202-326-6041. The CEPI Newsletter is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail aely@naag.org.

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