Monday, July 26, 2010

United States v. Thomas: Obstruction of Justice and Perjury

The court of appeals affirmed a judgment that Tammy Thomas, a former professional cyclist, could be prosecuted for obstruction of justice where she allegedly gave intentionally evasive and false testimony before a federal grand jury though she was under a grant of immunity.

Thomas testified before the grand jury in regards to distribution of anabolic steroids to professional athletes and money laundering connected to BALCO Laboratories and her knowledge of information regarding Patrick Arnold, an alleged distributor of the steroids. During her testimony Thomas denied receiving any "products" from Arnold, "taking anything Arnold gave her," and "taking anabolic steroids." As a result of these statements under oath, Thomas was charged with alleged material false declarations and obstruction of justice and was convicted at trial on four of the six counts she was charged with.

The court of appeals heard Thomas's case and her "literal truth" defense. The court affirmed that there was ample evidence that Thomas understood the questions presented by the government. Thomas also argued that her statements were not material because they lacked a jurisdictional connection to the Northern District of California, where her grand jury testimony took place. The court rejected that assertion and held that there was sufficient evidence for a rational jury to find the element of materiality. With regards to her obstruction of justice conviction, Thomas argued that her immunity grant effectively excluded her testimony from use against her by the government in any prosecution beyond perjury, making false declarations, or refusing to testify. The language of 18 U.S.C. §6002 indicated that her testimony could not be used against her in any criminal case, except for a prosecution for perjury, false declaration, or otherwise failing to comply with the order. Thomas failed to comply with the order and was therefore convicted for obstruction of justice under U.S.C. §1503.

This case is United States v. Thomas, 9th Cir.; July 22, 2010; 08-10450.

Monday, July 19, 2010

Plea-Bargaining Tips, Tricks & Techniques for Criminal Lawyers (ExecSense Webinars)

Plea-Bargaining Tips, Tricks & Techniques for Criminal Lawyers (ExecSense Webinars)

Extent of Miranda Rights Tested by People v. Tate

The California Supreme Court affirmed a ruling on July 8th that statements made by Oakland Police Department Officers during the interrogation of a suspect did not invalidate his Miranda rights.

Gregory Tate was placed in custody by the Oakland Police Department (OPD) after he was observed driving the vehicle of a woman who was murdered and robbed the day before. Tate was taken to the homicide division of the OPD, where officers initially told him that they were investigating the car he had in his possession because the vehicle had been stolen and the woman who owned it was "hurt."

The Court found that this statement was not enough to invalidate Tate's two separate occasions upon which he waived his Miranda rights. The Court also acknowledged that by telling Tate that the victim was "hurt," he was aware that he was being investigated for more than car theft. He also understood that he was in the homicide division of the Police Department after asking an officer at the beginning of his second interview.

This decision established that individuals do not have to be informed of all the information they may find "useful" when making a decision to waive Miranda rights.

This case is: People v. Tate, Cal.Sup.Ct.; July 8, 2010; SO31641.

Wednesday, July 14, 2010

United States v. Graf: Standard established for attorney-client privilege between corporate employee and counsel


On Wednesday, July 7th, the Ninth Circuit Court of Appeals affirmed a ruling that James Graf, a consultant who worked as a functional employee, held no joint attorney-client privilege with the company's attorneys. The Court also held that Graf held no personal attorney-client privilege over his communications with the corporate attorneys where he failed to show that he sought personal legal advice and meet the other requirements necessary to establish that privilege.

James Graf was the founder of Employers Mutual LLC, a corporation that purported to sell health care benefits coverage to over 20,000 buyers but in reality defrauded individuals and small businesses who purchased the company's health plans. As a result of previous violations of California State insurance laws and his subsequent ban from insurance work, Graf was not listed as an employee of Employers Mutual.

The Nevada District Court selected an independent fiduciary, Thomas Dillon, to run Employers Mutual after Graf was removed by the U.S. Department of Labor. Dillon also waived the Employers Mutual's attorney-client privilege as to all communications between the company and its legal counsel to which Graf responded with a motion to exclude the testimony based on attorney-client privilege.

The Court denied this motion, reasoning that Graf did not have a personal attorney-client relationship with the attorneys because he had not sought legal advice from them. Additionally, the Court concluded that Graf's belief that Employers Mutual's attorneys represented him personally was insufficient to create a personal privilege because the belief was either unreasonable or was not expressed to those attorneys.

The court cited Upjohn Co. v. United States, 449 U.S. 383 (1981), In re Bieter Co., 16 F.3d 929 (8th Cir. 1994), and In re Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120 (3d Cir. 1986).

The case is: United States v. Graf, 9th Cir.; July 7th, 2010; 07-50100.