Senate Democrats on Thursday will try to force a vote on the nomination of Goodwin Liu to the 9th U.S. Circuit Court of Appeals.
Approval of a cloture motion — which limits debate to 30 hours and allows the Senate to proceed to a final vote on a nomination or bill — requires the support of 60 senators. Liu, whom President Barack Obama nominated three times for a seat on the San Francisco-based court, has faced strong opposition from Republicans.
Republicans have held up his nomination over worries that he would move the San Francisco-based court, widely considered as the most liberal of the federal circuits, further to the left.
They also expressed concern about highly critical remarks Liu made about Samuel Alito during Alito’s Supreme Court nomination hearing in 2006. Liu later apologized for the comments. He said in a hearing this month that his remarks were “unduly harsh.”
Senate Majority Leader Harry Reid (D-Nev.) said in remarks prepared for a Senate floor speech Tuesday that Liu is a “well-qualified public servant and impressive legal scholar.”
“Goodwin Liu has dedicated his life to justice and fairness,” Reid said. “As we consider his nomination, we owe someone of his caliber those same considerations.”
Sometimes you can tell the importance of an event by the crowd it draws.
That certainly was the case Tuesday as a courtroom packed with white collar defense attorneys, reporters, FBI agents and DOJ lawyers watched opening arguments in a foreign corruption trial for four defendants charged with attempting to pay bribes to government officials in Africa to win lucrative supply contracts.
The left side of the room was the de facto government bleachers, and seated there were DOJ bigwigs Fraud Section Chief Denis McInerney, Deputy Assistant Attorney General Greg Andres, Chuck Duross, the head of the Foreign Corrupt Practices Act team, and other top brass. Also in attendance was Steven Durham, chief of corruption unit of the D.C. U.S. Attorney’s Office.
The DOJ leadership had turned up to watch a case that many view as a test of the department’s increasingly aggressive enforcement of the FCPA. They listened as Assistant U.S. Attorney Jonathan Haray told the jury, “This was a corrupt deal, plain and simple, and they all knew it.”
Paul Pelletier, the former chief deputy in the fraud section, showed up just before Haray began. His former colleagues joked with him that he should sit on the right side of the room now that he’s in private practice. Pelletier recently jumped to the Washington office of Boston-based Mintz Levin Cohn Ferris Glovsky and Popeo P.C. after nine years in the section.
Haray told jurors that the defendants knowingly agreed to pay bribes to government officials in Africa to win lucrative supply contracts, and were caught as the result of an undercover sting designed to “root out corruption in the international arms industry.”
But defense attorneys claimed that the FBI’s investigation was corrupted because the agents ceded control of the operation to its chief cooperator, a man they called a “highly incentivized criminal informant” and a “scoundrel.”
“Mr. Haray wants you to believe this case is about a few snippets of tape,” defense attorney Eric Bruce said. “It’s not. This case is about law enforcement not following the rules first, and rushing to make arrests second.”
After more than 16 months of pre-trial proceedings, the much-anticipated foreign bribery case began Tuesday. Twenty-two defendants were charged in 16 sealed indictments filed in December 2009 with violating and conspiring to violate the FCPA, which prohibits bribes to foreign officials to obtain or retain business, as well as conspiracy to launder money.
The indictments were unsealed in January 2010 after the arrests of all but one of the defendants in a dramatic roundup at a gun show in Las Vegas. The defendants have since been broken into four separate trial groups, and defendants Pankesh Patel, Andrew Bigelow, John Benson Weir and Lee Allen Tolleson make up the first group.
The case is the culmination of a complicated sting operation in which FBI agents, in coordination with industry executive-turned-cooperator Richard Bistrong, posed as representatives of the West African country of Gabon, soliciting bribes for a fictitious $15 million deal to supply the Ministry of Defense. The investigation was the first large scale use of wiretaps, undercover agents and other clandestine investigative techniques in an FCPA case.
Haray said that the defendants had no concerns that the commissions they were paying would line the pockets of corrupt ministers and would not directly benefit the impoverished African country itself. He repeatedly pointed at each of the defendants during his opening, describing them as willing participants in the corrupt scheme.
Haray mentioned Bistrong only briefly during his opening, instead focusing on the defendants’ interactions with the undercover agents they thought to be representatives of Gabon. During a hearing on Monday, it was divulged that the government is unlikely to call Bistrong as a witness.
Bistrong, a former vice president of international sales at Armor Holdings Inc., pleaded guilty to conspiracy in September. He was nabbed in an investigation of corrupt sales to United Nations peacekeeping units in the mid 2000s.
Bruce forcefully drew attention to Bistrong’s absence from the government’s statements during his opening. He repeatedly called Bistrong a “scoundrel,” painting him as a master manipulator who had the FBI wrapped around his finger.
“Let’s see if the government even has the nerve to call Mr. Bistrong. I’m betting they don’t do it,” Bruce said. “You could scour this country of ours and not find a less reliable, less trustworthy, less honest person.”
Judge Richard Leon, who is presiding over the case, has previously indicated that he will allow the defendants to call Bistrong.
Attorney Todd Foster, who is representing Weir, said the Bistrong was the “architect” of the case and that the FBI agents ceded control of the investigation to him, against agency rules, out of a desire to make headline-grabbing arrests. Foster outlined how each stage of the investigation was allegedly designed by Bistrong, whose only goal was to stay out of jail.
The defense attorneys also sought to rebut Haray’s claims that their clients are shady international arms dealers, instead describing them as middling businessmen dealing in law enforcement products like laser sights, tear gas and uniforms.
Lawyers for Tolleson painted him as a “small town kid,” who was home-schooled, had no college education, and only became caught up in the FBI sting when his employer, Arkansas-based ALS Technologies, hired Bistrong.
At one point Tolleson’s lawyer, Joseph Passanise, asked Tolleson’s wife, who was seated in the spectator’s seats, to stand for the jury. Tolleson, who has a boyish face and anxiously bounced his leg throughout the hearing, smiled quickly at her as she stood.
Each of the opening statements lasted roughly twenty minutes and attorneys for Andrew Bigelow opted not to give one. The trial now turns to government’s case-in-chief, in which it must lay out its evidence against the defendants.
Corrected 5/19/11: This article incorrectly said Steven Durham is the Fraud and Public Corruption Chief in the D.C. U.S. Attorney’s Office. Durham is the chief of the office’s corruption unit.
Attorney General Eric Holder on Wednesday named a New York lawyer as the head of the September 11th Victim Compensation Fund.
Sheila Birnbaum (Skadden)
Sheila Birnbaum, a partner at the law firm of Skadden, Arps, Slate, Meagher & Flom LLP in New York, will serve as Special Master of the fund, which provides compensation for individuals killed or injured by the Sept. 11 attacks or debris removal. The fund, which ran from 2001 to 2003, was reactivated through the James Zadroga 9/11 Health and Compensation Act signed into law in January. It is slated to become fully operational on Oct. 1.
Holder praised Birnbaum for her experience with Sept. 11 victims. In 2006, she was appointed to work on a $500 million settlement for almost 100 families of victims of the terrorist attack on the World Trade Center.
“Sheila Birnbaum brings extensive experience, credibility and unique insight to this important role,” Holder said in a statement. “She has worked closely with, and won the trust of, the families of 9/11 victims with whom she worked. I know that under her direction, the fund will be administered in a manner that is sensitive and fair to those who have suffered so much from the September 11th attacks.”
Speaking at the 57th anniversary commemoration of the 1954 Supreme Court Brown v. Board of Education decision, Attorney General Eric Holder on Tuesday called the case the greatest one ever decided by the court and said the struggle for civil rights is not over.
Holder spoke at the commemoration in Topeka, Kan., the home of the 1954 ruling that stated that separate public schools for black and white students are unconstitutional. He was introduced by his wife, Dr. Sharon Malone, whose sister was one of the first black students to attend the University of Alabama. Malone’s sister became the first black graduate of the school.
In prepared remarks, Holder said, “The work of upholding civil rights in – and beyond – our schools is far from over. And so long as discrimination and division continue to keep Americans apart and create obstacles to prosperity, we must continue to stand vigilant – and to speak out – against injustice in all its forms.”
He added that the nation continues to struggle with civil rights issues. “There are still too many children whose opportunities in life are limited by the circumstances of their births,” he said. “There are too many neighborhoods that continue to be menaced by gun-, gang-, and drug-fueled violence – and too many communities where young people are more likely to go to prison than to college.”
Holder has been criticized by some conservatives for his handling of civil rights issues. The DOJ’s handling of a case against members of the New Black Panther Party has drawn backlash from conservatives. The members of the anti-white fringe group allegedly intimidated voters by wearing military-style clothing outside a polling place in a black Philadelphia neighborhood during the November 2008 election. One of the men held a nightstick.
Rep. John Culberson (R-Texas) in March pushed Holder about the case at a House hearing, claiming that the Attorney General allows reverse racism to flourish in the DOJ Civil Rights Division. A testy Holder vehemently disputed the accusation.
A former Justice Department Antitrust Division official will spearhead the Federal Communications Commission review of the proposed AT&T and T-Mobile merger, the FCC announced Tuesday.
Renata Hesse (Wilson Sonsini Goodrich & Rosati)
Renata Hesse, who led the DOJ Antitrust Division Networks and Technology Enforcement Section, will be the FCC’s senior counsel to the chairman for transactions, looking over the proposed $39 billion merger of the telecommunications companies as part of her responsibilities. The FCC will determine whether the proposed deal is good for the public, while the Justice Department will examine it for antitrust pitfalls.
Hesse is currently a partner at the law firm of Wilson Sonsini Goodrich & Rosati in D.C.
“Renata’s wealth of legal expertise and experience is a welcome addition to the review team and I am thrilled that she will soon be joining us,” FCC Chairman Julius Genachowski said in a statement. “Her leadership will help ensure that our review of this important transaction is fair, thorough and efficient.”
At the DOJ, Hesse handled high-profile matters, including an unsuccessful effort by the Department to block Oracle Corp.’s acquisition of PeopleSoft Inc. in 2004 and the agreement in 2003 that allowed First Data Corp., a payments processing company, to acquire Concord EFS Inc., another payments processor.
Juan Osuna (photo by Channing Turner / Main Justice)
Attorney General Eric Holder on Tuesday appointed acting Director Juan Osuna of the Executive Office for Immigration Review as the Justice Department component’s permanent chief.
Osuna in December became acting Director of the Falls Church, Va.-based office established in 1983 to handle immigration cases and oversee immigration courts. He previously served as an Associate Deputy Attorney General and Civil Division Deputy Assistant Attorney General, working on immigration matters.
Attorney General Janet Reno in 2000 tapped Osuna for the Board of Immigration Appeals, an EOIR unit that is the highest body for applying and interpreting immigration law. Attorney General Michael Mukasey named him board chairman in September 2008.
“Having served with the department for over a decade, Juan has developed an extensive knowledge of immigration litigation and issues, and demonstrated himself to be a diligent and thoughtful advocate and manager,” Holder said in a statement. “I am confident he will lead this office with the highest standards of professionalism, integrity and dedication.”
A federal grand jury in New York indicted an FBI agent for making false statements about his use of a confidential source with whom he was having an affair, U.S. Attorney Preet Bharara of the Southern District of New York said Tuesday.
Adrian Busby of El Paso, Texas, was set to appear in court after surrendering to authorities Tuesday.
Starting in 2007, he was the case agent in a mortgage fraud probe conducted by the FBI in New York. Busby was allowed to use a confidential source in January 2008 and had an intimate relationship with the woman, according to the U.S. Attorney’s office. The office did not disclose the woman’s name.
The woman was arrested for identity theft in February 2008. The FBI agent allegedly assisted her lawyer with her defense and gave the lawyer confidential documents about her case, breaking FBI rules.
Busby “made numerous false statements” about the woman and how he allegedly helped her in her trial, according to the U.S. Attorney’s office. The confidential source was convicted in December 2009.
The FBI agent could serve up to 10 years in prison if convicted.
Sen. Patrick Leahy (D-Vt.) on Tuesday introduced legislation that would update a key digital privacy law from 1986 in an effort to address changes in e-mail and mobile technology.
The bill is designed to protect types of electronic communication that did not exist when the Electronic Communications Privacy Act became law 25 years ago. The legislation also is intended to provide clarity on how the government can obtain individuals’ electronic communications and gives the government more tools designed to help stop cyber attacks and protect national security.
“Since the Electronic Communications Privacy Act was first enacted in 1986, ECPA has been one of our nation’s premiere privacy laws,” Leahy, who authored the 1986 bill, said in a statement. “But, today, this law is significantly outdated and out-paced by rapid changes in technology and the changing mission of our law enforcement agencies after September 11. Updating this law to reflect the realities of our time is essential to ensuring that our federal privacy laws keep pace with new technologies and the new threats to our security.”
The bill would forbid service providers from voluntarily divulging users’ e-mails and other electronic communications with the government. Current law allows service providers to voluntarily disclose the communications. But there are stipulations under current law that must be satisfied, including a government need to investigate criminal activity.
The legislation would abolish a rule that uses the e-mail’s age to determine how the government must obtain it. The bill would require the government to get a search warrant to obtain any electronic communications from a service provider. The government also would need an administrative or grand jury subpoena to get electronic communications records, including user address, name and session data.
The bill would give the government, with court approval, at least 90 days before it must notify individuals that it has access to their electronic communications. The government would be able delay notice if there are national security concerns.
The legislation would ensure location information service providers are covered by ECPA provisions. The government would be required to get a search warrant or court order under the Foreign Intelligence Surveillance Act to obtain location information from mobile devices. But the warrant or court order wouldn’t be needed if there was a call for help or user consent.
The bill would allow a service provider to voluntarily provide the government access to electronic communications if the government needs the information to address a cyber attack. The Justice Department would have to report to Congress on the use of this provision.
The legislation would clarify the type of information the FBI can get from a service provider for counterintelligence purposes. The information would be non-content data, including user address, name and session-related numbers.
The DOJ has yet to offer a position on Leahy’s proposal. But Associate Deputy Attorney General James Baker said at a Brookings Institution panel discussion Tuesday that any changes to ECPA must be considered cautiously. He said individuals working on legislation should thoroughly consider the implications of changing the language of ECPA and how it will affect national security, law enforcement and privacy.
“It is very difficult to try to work through some of these questions,” Baker said. “And it’s very important we do it carefully and thoughtfully.”
A conservative public interest group wants Justice Department records about the decision to not defend the Defense of Marriage Act.
In its suit filed on April 29 and announced Tuesday, Judicial Watch insists the DOJ turn over any documents it may have containing internal communications about the decision announced in February not to defend the 1996 statute, which defines marriage as a union between a man and a woman. The organization also is demanding the DOJ give it documents containing communications between the DOJ and the White House, Congress and special interest groups about the DOMA decision.
Judicial Watch said the DOJ acknowledged, but failed to respond to two FOIA requests for the DOMA decision information the group sent between Feb. 24 and March 1. The FOIA law requires a response in 20 business days.
The group also filed an amicus curiae brief with the California supreme court on May 2 backing efforts of Californians to defend a state constitutional amendment defining marriage as a union between a man and a woman when state officials do not defend it.
“Judicial Watch took these strong actions in court not only to help defend traditional marriage but to uphold the rule of law that is under assault in California from the Governor’s Mansion and Washington DC from the White House,” Judicial Watch President Tom Fitton said in a statement.
A DOJ spokeswoman declined to comment to Main Justice.
The decision not to defend DOMA has received significant backlash from Republicans. The Republican-controlled House has hired former Solicitor General Paul Clement to defend DOMA.
Attorney General Eric Holder has said defense of DOMA was not longer appropriate because of a changed legal landscape regarding homosexuality.
“The institution of marriage is under vicious attack not only by President Obama and the Holder Justice Department, but also by liberal politicians and activist courts at the state level,” Fitton said in his statement.
Judicial Watch has been a thorn in the side of the Justice Department. In March, the group filed suit against the DOJ seeking records concerning the department’s probe of the New Black Panther Party.
