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The National Attorneys General Training & Research Institute The National Attorneys General Training & Research Institute

CEPI Newsletter June 2019

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.

Corruption Cases

State

Mount Vernon Corporate Counsel Indicted in Corruption Case: The New York Attorney General's Office has charged Mount Vernon City Corporation Counsel Thomas DiNapoli with abusing his position as a public official. DiNapoli is alleged to have defrauded the city of $365,000 to pay the personal legal expenses of Mayor Richard Thomas and a public relations firm. Thomas was indicted over a year ago in a separate corruption case.

Three Charged in Alleged World Trade Center Pay-to-Play Scheme: The New York Attorney General's Office has also charged a former World Trade Center electric manager and two contractors for a "pay-to-play" bribery scheme. The charges allege that the contractors provided gifts to the former manager, who in turn gave them confidential information about future work and preferential treatment. James Luckie, the former manager, and Paul Angerame and Michael Garrison, the contractors, are facing charges including bribery and official misconduct.

Who's Who of Cuyahoga County Investigation (Updated): A media outlet in Cleveland, Ohio details the defendants, attorneys, and potential witnesses in a public corruption investigation into actions taken in the Cuyahoga County Jail that is being handled by the Ohio Attorney General's Office and other prosecutors.

Butler County Ex-Gymnastics Coach Makes Plea Deal in Allegheny County Child Sex Assault Case: Former gymnastics coach Keith R. Callen has entered a new guilty plea in Allegheny County, Pennsylvania, for aggravated indecent assault, sexual assault by a sports official, unlawful contact, and corruption of minors. He faces a sentence of two to four years in state prison, five years of probation, and a lifetime sex offender registration requirement. He was originally sentenced to 13-26 years, but that conviction was overturned because it followed a trial that included evidence about his abuse of young girls in a second county. Callen has charges pending about those allegations in that second county, which could result in additional penalties if he is convicted.

Federal

Sentencing Set for Last Officer in Baltimore Police Gun Trace Task Force Corruption Case: In Maryland, the final sentencing of an officer in a corrupt gun unit resulted in a sentence of 12 years in prison for former Detective Jemell Rayam. Rayam cooperated with the government, and admitted participating in eight years of robberies and drug sales, as well as an armed home invasion.

Federal Prison Guard Charged With Sexually Abusing Inmates, Trading Sex for Makeup and Food: Federal prosecutors in the Southern District of New York have charged a federal correction officer with sexually abusing multiple female inmates for a 6-year period. Colin Akparanta smuggled contraband to the inmates, including personal hygiene items, makeup, and food, and asked his victims for contact information so he could reach them after they were released from custody.

Two Contractors, 1 Puerto Rico Senate Employee Arrested for "Ghost Employee" Scheme: In a case that stemmed from a referral by the Puerto Rico Department of Justice, federal prosecutors have charged Chrystal Robles-Baez, Isoel Sanchez-Santiago, and Angel Figueroa-Cruz with wire fraud, money laundering, and other crimes. Figueroa-Cruz was the Executive Director of the Office of Governmental Affairs in the Puerto Rico Senate, and is alleged to have falsely certified as correct requests for payment from companies controlled by Robles-Baez and Sanchez-Santiago.

Ethics

DOJ Says Old Probe DQs Sidley Atty, Its Ex-No. 2, In Huawei: Federal prosecutors have filed a motion to disqualify former U.S. Deputy Attorney General James M. Cole, arguing that there was a substantial risk he could use confidential information he learned while at the Department of Justice to materially advance the defense strategy for his current client, Huawei Technologies Co., who is facing federal charges. The lengthy motion may be of use to prosecutors faced with the representation of defendants by former high-ranking members of their office who were involved in related matters, as it includes analyses both of Cole's ongoing duties to his former employer and of the inability for his current client to obtain a fair trial.

Craig Tried to Bar Skadden Attys' Testimony, Opinion Shows: In a decision that serves as an important reminder that conversations between attorneys who work for the same employer are not necessarily covered by attorney-client privilege, a federal judge in Washington, D.C., has denied a motion by Gregory Craig to bar his former law firm partners from testifying before the grand jury that indicted him. In the recently unsealed decision, the chief judge concluded that the attorneys at Craig's law firm did not represent him (other than during a discrete period of time) and "commended" the government for its "prudent" decision to seek guidance from the court rather than just not call the partners to testify.

Prosecutors Must Maintain Ethical Conduct During Misdemeanor Plea Deals, ABA Ethics Opinion Says: The ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 486, titled "Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses." That opinion requires, among other things, prosecutors to advise defendants of potential collateral consequences, including issues with immigration status (a notoriously complex area of the law), potential loss of public services (an administrative law issue with little overlap with criminal law), and that they may have a right to counsel (an issue that likely depends on state statutory and constitutional law). In a piece published days later, however, the ABA argues that a bill in Louisiana that would require public defenders to "clearly and unambiguously" provide notice to victims and their families that they represent the defendant and that the victim need not speak with them "would put public defenders in an ethical quandary," because such information may be "advice" to people the defenders do not represent. It is not clear how requiring prosecutors to advise defendants of their rights does not put them in the same "ethical quandary," particularly when prosecutors are being instructed to advise defendants about legal issues - in areas that are typically well outside their expertise - rather than simply identifying their role in the criminal justice system.

Oxford Lawyer Suspended for Three Years: A lawyer in Mississippi has been suspended from the practice of law for three years for failing to disclose an incident that occurred in 2016, after she graduated from law school but before she was admitted to practice. During that incident, Merry Caitlin Johnson created what appeared to be a forged text order from a federal magistrate judge and provided it to the lawyer for whom she worked; that lawyer then forwarded it to opposing counsel, who informed the judge of the forged order. During the order to show cause hearing that followed, Johnson admitted her forgery and apologized to the lawyer for whom she worked and the court. The judge advised all of the attorneys to thoroughly review their obligations to report the misconduct to the bar, stated that the court would do the same, and later entered an order imposing sanctions against the firm that employed Johnson. In its order suspending Johnson, the Mississippi Supreme Court noted that Johnson did not self-disclose her conduct; instead, opposing counsel from the forgery incident advised the bar after she had been sworn in. The Court also concluded that the sanction imposed by a lower tribunal of a private reprimand was insufficient to reflect the seriousness of Johnson's misconduct.

NY Prosecutor Misconduct Panel on Hold Pending DA Suit: A state panel intended to police New York district attorneys is on hold until at least late in the year, as a result of a lawsuit filed against the governor and others by the District Attorneys Association of the State of New York that challenges the constitutionality of the panel.

Big Risks in Discovery Reform; N.Y.'S New Law Tips the Balance Way Too Far in Favor of Defendants: A piece in the New York Daily News expresses concerns about New York's new discovery law, which - among other things-requires prosecutors to turn over to the defense within 15 days of arraignment evidence including a list of all of the witnesses the prosecution expects to call. All five New York City area district attorneys have spoken out about the change, with one noting it "undoubtedly will dissuade witnesses who live in all neighborhoods from reporting crime."

OBA Files Complaint Against Attorney After Fecal Matter Found on Check: In one of the stranger ethics allegations covered by this newsletter, an attorney in Oklahoma is facing an ethics investigation after he brought a refund check for a previous client to the Oklahoma Bar Association (OBA). When Mark Bailey delivered his check, he insisted it be provided directly to a specific OBA staff member; when the check was delivered it had - according to the ethics complaint - a "pinched indentation and... a brown, damp smear across its front." The check was provided to forensic scientists, who concluded that the "smear" was, indeed, fecal matter.

Ex-Penn State GC To Face High Court Disciplinary Hearing: The Pennsylvania Supreme Court will hear oral arguments about whether Penn State University's former general counsel should be disciplined because she failed to warn three school administrators that she potentially faced conflicts of interest when she appeared with them on behalf of the university during their grand jury testimony in the Jerry Sandusky investigation. The state's disciplinary board recommended censure of Cynthia Baldwin, noting that a state appeals court dismissed several charges against the three administrators because of Baldwin's conflict, a factor the board considered in imposing its sanction.

Texas Judge Who Let Friends Out of Traffic Tickets Rebuked: A Texas justice of the peace has been reprimanded by the State Commission on Judicial Conduct for asking assistant district attorneys to dismiss traffic citations against his friends, family, and constituents. Mike Trejo is required to complete 20 hours of instruction about Class C traffic citations and warrants, but appears to be keeping his position.

Resources

FinCEN Updates: FinCEN Reissues Real Estate Geographic Targeting Orders for 12 Metropolitan Areas: The Financial Crimes Enforcement Network (FinCEN) announced the renewal of Geographic Targeting Orders (GTOs) for the following major metropolitan areas: Boston; Chicago; Dallas-Fort Worth; Honolulu; Las Vegas; Los Angeles; Miami; New York City; San Antonio; San Diego; San Francisco; and Seattle. The GTOs require title insurance companies to identify the natural persons beyond shell companies used in all-cash purchases of residential real estate transactions over $300,000. This information may be of use for prosecutors.

International

Coalition Anti-Corruption Model a 'Sham': Ex-Judge: In Australia, the new Commonwealth Integrity Commission is being criticized for being constructed to hold secret hearings, and to release information to the public only if criminal charges are filed. A former judge argues that this ignores the fact that "corruption is emphatically not limited to crime," and contends that hearings should be public.

Mexico Charges Former Oil Official With Bribery in Anticorruption Drive: Mexico has filed bribery and tax fraud charges against Emilio Lozoya Austin, the former head of the state-run oil company Petroleos Mexicanos, or Pemex. Lozoya is accused of receiving bribes associated with Pemex's purchase of a fertilizer plant. The case stems from Brazil's probe into Odebrecht.

Swiss Attorney General Investigated Over Handling FIFA Case: Switzerland's Attorney General is being investigated by a federal office that oversees him for potential violations of his duties in the FIFA case because he did not disclose one of three meetings he had with FIFA president Gianni Infantino. While Infantino is not accused of wrongdoing in connection with the FIFA probe, the four-year investigation has resulted in charges and convictions against other members of FIFA's leadership in Switzerland and the United States.

GDPR Enforcement Report: The FCPA Blog collects enforcement actions for violations of the General Data Protection Regulation (GDPR), including substantial fines against Google; a smaller fine against a hospital in Portugal for providing nearly 1,000 doctors - including some who were no longer employed by that hospital - with access to all patient records; a still-smaller fine against a German social media company who stored users' passwords in an unencrypted format; and a quite small fine against a company in Austria that installed a CCTV camera on a public street. In other GDPR news, the Global Anticorruption Blog analyzes how it may pose challenges to those charged with ensuring anti-bribery compliance and completing due diligence.


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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