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Campus Disciplinary Hearing Procedures for Sex Assault Cases Jeopardize the Rights of the Accused

Posted on: Thursday, July 17th, 2014

By Criminal Defense Lawyers Terry Eaton and David Benowitz

A recent sexual assault case, which received wide media coverage at Catholic University,exposes the weaknesses in the internal disciplinary proceedings in place at most college and university campuses.  While there are a lot of areas where improvements are needed to protect the rights of the victims, we are particularly disturbed by the way campuses also jeopardize the rights of the accused in these investigations and proceedings.

Harvard Should Rethink Its Use of the “Preponderance of the Evidence” Standard in Campus Rape Cases

Posted on: Wednesday, July 16th, 2014

By Criminal Defense Lawyers Terry Eaton and David Benowitz

Harvard University recently announced it would adopt the Obama Administration’s recommendation that universities and colleges use a “preponderance of the evidence” standard of proof rather than the higher “clear and convincing standard” in deciding campus rape and sexual assault cases.  We believe this change is ill advised.

Supporters of the lower standard of evidence in campus rape cases believe it is justified because of the administrative nature of such proceedings and the fact that the “preponderance of the evidence” standard is used in other civil rights cases.  However, although thes...

Are Federal Sentencing Guidelines for White Collar Crimes Too Harsh?

Posted on: Tuesday, July 15th, 2014

Federal Judge Sentences Former New Orleans Mayor Ray Nagin to 10 Years, Declines to Impose Overly Harsh Federal Sentencing Guidelines

By White Collar Defense Attorney Terry Eaton

On July 9, 2014, United States District Court Judge Helen Berrigan sentenced former New Orleans Mayor C. Ray Nagin to 10 years in prison after a jury convicted him last February of fraud, bribery, money laundering, and other public corruption related crimes.  Nagin, a 58-year-old Democrat, faced a possible sentence of 12 to 30 years under the Federal Voluntary Sentencing Guidelines.  Judge Berrigan declined to sentence Nagin within the recommended guidelines and instead ruled that Nagin’s sentence warranted a departure.  In making her ruling, Judge Berrigan said she planned to give...

Cleaning House in Virginia?

Posted on: Wednesday, July 9th, 2014

Feds Launch Probe Into Former State Senator’s Resignation and Job Offer at the Tobacco Fund Commission

By Terry Eaton, White Collar Defense Attorney

Just as you were preparing to close your jaw after the U.S. Attorney’s Office in Alexandria unsealed a 43-page, 14-count indictment against Former Virginia Gov. Robert McDonnell and his wife Maureen McDonnell, news of a new storm brewing in Virginia has broken.  This is not the kind of storm that comes with gale force winds off the Atlantic Ocean.  Rather, it is a sordid and alleged tale involving political back room deals, a choice job offer, and the alleged agreement of a sitting Virginia State Senator to resign his seat in an effort to change the b...

Phony Medical Research Earns Iowa State University Scientist Criminal Charges

Posted on: Friday, June 27th, 2014

By Terry Eaton, White Collar Defense Attorney

Sometimes ground breaking medical research results are too good to be true. In this case, it was because the
scientist responsible for the research allegedly committed health care fraud by falsifying his research results.
Federal prosecutors have charged Dr. Dong Pyou Han, a 57 year old medical researcher at Iowa State
University, with four counts of making false statements to the National Institutes of Health (NIH) in order to
support grant applications that led to millions of dollars in HIV/AIDS vaccine related funding. Prior to the
government uncovering this alleged fraudulent scheme, Dr. Han’s research findings were considered ground
breaking ...

Supreme Court Considers Police Ability to Search Cell Phones without Warrants

Posted on: Wednesday, April 30th, 2014

By Julia Cole, Price Benowitz Junior Editor

The Supreme Court of the United States (SCOTUS) heard two cases this week related to whether or not police officers should be able to search an arrested individual’s cell phone without a warrant. Justices weighed in on the fine line between what constitutes a violation of a person’s Fourth Amendment rights versus the importance of gaining evidence in the pursuit of a criminal conviction.

On Tuesday, SCOTUS heard two cases surrounding the matter of police having unlimited access to the information stored on someone’s smartphone without first obtaining a search warrant. Given that the initial rights granted to American citizens protecting them against unlawful search and seizure had no way of predicting that someday individua...

The Sixth Circuit’s “Functional Approach” Regarding Distinctness

Posted on: Tuesday, April 15th, 2014

The Sixth Circuit breaks with the Second Circuit and others and employs a “functional approach” to find a corporate defendant distinct from an enterprise consisting of the corporation and wholly owned and controlled subsidiaries when each played distinct roles that helped the fraudulent scheme.

In Classic Star Mare Lease Litig., the Sixth Circuit affirmed the grant of a summary judgment to plaintiff investors finding the “non-identity” or “distinctness” requirement satisfied. It is established law that “[u]nder RICO, a corporation cannot be both the ‘enterprise’ and the ‘person’ conducting or participating in the affairs of that enterprise.” In Begala v. PNC Bank, Ohio, N.A., 214 F.3d 776, 781 (6th Cir. 2000), the court explained that ...

Second Circuit Affirms RICO Dismissal

Posted on: Tuesday, April 15th, 2014

Jan. 21, 2014

Cruz v. FX DirectDealer, LLC, 720 F.3d 115 (2d Cir. 2013)

Issue:  Is a corporate RICO defendant distinct from a RICO enterprise consisting of itself, its parent, and corporate officers who acted within their scope of employment, in perpetuating a fraud?

Answer: The Second Circuit reaffirms the principles of Riverwoods and Discon in finding that a corporate defendant is not distinct from an enterprise consisting of itself, its officers, or its parent. As a result, there was not a valid claim under RICO sections 1962(c) or (d), and t...

Court Rules on Auction House’s Civil RICO Claim

Posted on: Thursday, April 3rd, 2014

In 4K & D Corp. v. Concierge Auctions, LLC, the court granted in part and denied in part the civil RICO allegations by Concierge Auctions, an auction house. The plaintiffs had alleged that the defendants fraudulently induced sellers of luxury real estate to enter into auction contracts with Concierge by making false promises and various misrepresentations about Concierge’s auction results, sales statistics, and track records, and that the defendants engaged in other fraudulent conduct such as using shill bidders, allowing bids from unregistered bidders, and adding a reserve at the last minute. As a result, Grand Estates was allegedly harmed because sellers chose Concierge instead of Grand Estates or other auction houses due to the defendants&...

Sixth Circuit Overrules Prior Precedent Re: Injury to “Business or Property” Under RICO

Posted on: Thursday, April 3rd, 2014

In Jackson V. Sedgwick, the Sixth Circuit, en banc, addressed the issue of whether plaintiffs who filed a class action claiming violations of civil RICO based on diminution of workers’ compensation benefits because of a fraudulent scheme were “injured in [their] business or property,” as was required to state a claim for civil RICO damages action.

The court first discussed that although RICO is to given an expansive reach, its breadth is not boundless as the text of the statute imposes genuine limitations. The court stated, “Congress must have intended to exclude some class of injuries by the phrase ‘business or property’ ...