Category Archives: Fifth Amendment

Karen Spranger(Photo: The Detroit News)Buy Photo

The lawyer for Karen Spranger, embattled Macomb County clerk and register of deeds, said Friday he is moving to disqualify the entire Macomb County Circuit Court bench from hearing any proceedings against his client.

Frank Cusumano, who is representing Spranger in both civil and criminal investigations into whether she should continue as clerk, said the same judges who denied her choice for chief deputy would get to choose her successor if she was removed from office.

A hearing is scheduled Monday in circuit court on a request by other county officials to remove Spranger on the grounds that she committed perjury.

At issue is whether Spranger was being truthful when she filed an affidavit in April 2016 swearing under oath that she lived in a home on Hudson Avenue in Warren.

Thats her residence, Cusumano said Friday.

When asked by a reporter if Spranger actually lives in the house, Cusumano answered I dont know, but added the law doesnt address that.

I think that was her primary residence under the election law, said Cusumano. As a matter of law, (Spranger) is eligible to hold office.

According to Macomb County filings in the matter, city of Warren records have listed the Hudson Avenue home as uninhabitable since 2012 due to lack of utilities, which includes water. The property is deteriorating and the city of Warren has cited the home as a nuisance.

Spranger acquired the home through quit claim in 2013 from her mothers estate. In 2015, a court found Spranger did not qualify for a principal residence exemption since she did not live on the premises. The water at the home, according to the countys court filing, has been turned off since 2012.

In an affidavit filed Wednesday in Macomb County Circuit Court in preparation for Mondays hearing, Spranger argued: The Hudson Address was, to the best of my knowledge and belief, my residence as judicially interpreted and was on any filing deadline for the general election as required by (Michigan law) MCL 168.91.

Spranger continued in her written legal arguments: At no time to my knowledge, has the Secretary of State, Macomb County Clerk or the city of Warren challenged the factual accuracy of my registration as a qualified elector using the Hudson Address, my right to register and vote using the Hudson Address, or legal status as a registered and qualified voter using the Hudson address.

In a filing earlier this month, the county argued, Plaintiff did not reside at ... Hudson when she filed the affidavit of identity on April 6, 2016 and, therefore, she is not qualified to hold the office of Macomb County Clerk/Register of Deeds.

Mondays hearing is scheduled for 8:30 a.m. before Macomb County Circuit Court Judge Kathryn Viviano.

Spranger, said Cusumano, will invoke the Fifth Amendment in any proceedings against her.

She believes there is a witch-hunt and shes not allowing (investigators from the Macomb County Sheriffs Office) to put words in her mouth, said Cusumano.

Macomb County Sheriff Anthony Wickershams office is investigating a complaint filed with the department regarding Sprangers residency.

Elected in November, Spranger, a Republican, has faced a barrage of criticism and controversy since taking office and has frequently clashed with other county officials.

Her salary is $108,880 a year.

bwilliams@detroitnews.com

(313) 222-2027

Christine Ferretti contributed.

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Clerk's attorney: Don't let Macomb judges hear her case - The Detroit News

A group of City Council members wants to add some money for community service programs to Mayor Jean Stotherts proposed 2018 budget.

Theyve proposed four amendments to add money to such programs, plus a fifth amendment that would beef up the city clerks budget after the council approved some increases to the offices salary ranges.

The amendments would make less than $100,000 worth of changes to a $900 million city budget.

If the amendments are approved, the following programs budgets would increase:

The Metropolitan Area Planning Agency would receive an additional $10,000, for a total of $20,000.

MAPA executive director Greg Youell asked the council to increase its funding to $40,000.

Council President Ben Gray proposed the amendment.

The Police Athletics for Community Engagement would receive an additional $10,000, under an amendment proposed by Gray, Pete Festersen and Vinny Palermo.

Stothert had proposed funding of $25,000, up from $20,000 in 2017.

The ReConnect program, which provides job training and other services to young people transitioning from prison, would receive another $10,000 for a total of $55,000, under an amendment from Gray and Council Vice President Chris Jerram.

Gray and Jerram also want to add $20,000 for the Heartland Workforce Solutions job training program.

Council members had asked for about $1 million in funding; Stothert proposed $500,000, up from $440,000 in 2017.

All of the money would be moved from the mayors proposed allocation to citys reserve funds.

The council is scheduled to vote on the budget Aug. 22. Tuesday is the deadline for council members to submit amendments.

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Omaha City Council members look to boost funding for community service programs in Stothert's proposed budget - Omaha World-Herald

(Jenny Starrs/The Washington Post)

Five active-duty service members sued President Trump Wednesday over his intentions to ban transgender personnel from serving in the military.

The directive to reinstate a ban on open service by transgender people violates both the Equal Protection component of the Fifth Amendment and the Due Process Clause of the Fifth Amendment to the United States Constitution, states the suit filed in U.S. District Court in Washington by five anonymous Jane Does.

They are represented by the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD).

Trump announced in a series of tweets on July 26 that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.

[Trump announces ban on transgender service members ]

(Jenny Starrs/The Washington Post)

The military has not issued a policy on how that directive would be carried out. The suit states that upon information and belief, the White House turned [Trumps] decision into official guidance, approved by the White House counsels office, to be communicated to the Department of Defense.

Since the Obama administration lifted the ban on transgender troops in June 2016, hundreds of service members have come out and are serving openly. A Rand Corp. study commissioned by the Pentagon last year estimates that there are about 11,000 transgender troops in the reserves and active-duty military.

All five of the plaintiffs said they relied on the 2016 policy change when they notified commanding officers they were transgender. Besides the constitutional challenges, they ask the court to find Trumps intentions would be a violation of the promises government has made to members of the military.

Because they identified themselves as transgender in reliance on defendants earlier promise, plaintiffs have lost the stability and certainty they had in their careers and benefits, including post-military and retirement benefits that depend on the length of their service, the suit states.

The suit is expected to be the first of several filed once the ban is officially issued.

The plaintiffs are a Coast Guard member who has written a prospective letter of resignation; an Air Force active-duty service member of nearly 20 years who served twice in Iraq; and three Army soldiers.

In a news release, one plaintiff says: My experience has been positive and I am prouder than ever to continue to serve. I am married and have three children, and the military has been my life. But now, Im worried about my familys future.

Continued here:
Active-duty military members sue Trump over transgender ban - Washington Post

A Labette County judge ordered a Chetopa man to stand trial for child abuse this week.

Christopher N. Gibbs, born in 1984, Chetopa, was ordered to stand trial in Labette County District Court for abuse of a child, a felony, criminal deprivation of property and domestic battery, both misdemeanors.

The charges relate to incidents Nov. 16 to 18, 2016, in Chetopa.

At a preliminary hearing on Monday, Gibbs estranged girlfriend testified about living with Gibbs in Chetopa from October to November 2016

Shed been with Gibbs from August to November that year and was trying to leave the relationship in mid-November.

On Nov. 16, 2016, Gibbs allegedly spanked the womans daughter, who was 16 months old at the time, so hard that he left his palm and finger prints on her buttocks and the bruising lasted for a couple of weeks. He spanked the girl for soiling her diaper instead of using the toilet. The mother had been potty training her daughter, who is not Gibbs biological daughter.

The woman testified that she called Chetopa police on Nov. 16, 2016, but didnt say anything when they arrived because Gibbs said he wasnt scared of shooting it out with police. Her daughter was still in the house as well.

On Nov. 18, 2016, she called Chetopa police again because Gibbs had taken her car.

While investigating the car theft, Chetopa Police Officer Tim Gilliland said the woman also discussed the alleged abuse of her daughter. He had the child removed from the home and placed in protective custody because the woman feared that Gibbs would return. The woman testified that she got her daughter back in five days.

After testimony, Judge Jeffry Jack ordered Gibbs to stand trial on the child abuse charge and the misdemeanors. Gibbs pleaded not guilty.

A jury trial is scheduled Jan. 16-17, 2018, and a hearing on pretrial motions is set for Dec. 6.

In other cases:

Sasha L. Bruner, 29, 21013 Ness Road, Parsons, pleaded not guilty to aggravated indecent liberties with a child and sexual exploitation of a child in Labette County District Court. Both charges are off-grid felonies that require long prison terms upon conviction. Her attorney also argued a motion to have a subpoena for Bruner to testify at criminal proceedings of co-defendant Jered Bybee, who faces more than 30 counts of similar charges and sexual exploitation of a child. Judge Jack denied the motion to quash the subpoena because Bruner could invoke her Fifth Amendment right against self-incrimination from the witness stand. A jury trial is expected to start in Bruners case on Dec. 12. A preliminary hearing in Bybees case is set for Sept. 18.

Michael D. Ford, 43, of Parsons pleaded guilty to two counts of criminal threat, both level nine person felonies. The charges relate to incidents June 9, 2015, and Nov. 26, 2015. Sentencing will be Nov. 27.

Rex A. Rhoten, 26, of Chetopa waived his right to a preliminary hearing this week for aggravated criminal sodomy and aggravated indecent liberties with a child. Arraignment is set for Aug. 28.

Leanna C. Vincent, 37, of Parsons waived her right to a preliminary hearing this week on a charge of distribution of methamphetamine within 1,000 feet of a school. Arraignment will be Aug. 28.

Zane A. Craft, born in 1998, Edna, is charged with criminal discharge of a firearm at an occupied home, aggravated assault, both felonies, and three misdemeanors. Craft allegedly fired a .380-caliber handgun at 2827 North Blvd. on July 27 and threatened someone who lives there. He will return to court on Aug. 28.

Thomas M. Teal, born in 1977, 2218 Stevens, is charged with felony theft for taking a 1998 Ford Explorer on Aug. 6. He made a first court appearance this week and will return to court on Sept. 11.

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Chetopan ordered tried for child abuse - Parsons Sun

If someone asked me to rap for them, I would always be ready to drop a quick verse. I would never respond that I was too shy; I was prepared to spit a verse on command, explains Nicky Ds, one of Fifth Amendment and Blood Money Entertainments newest artists.

Fifth Amendment Entertainment manages rap icon The Game, as well as other notable artists such as Ray J and DJ Kay Slay. A native of Moreno Valley, California, Nicky Ds is an Irish kid who started rapping at the age of 8. He attributes Cash Wack100 Jones (Fifth Amendments CEO) and Stanley Stat Quo Benton as the pieces that were always missing for him: I was tired of people making me feel like what I was already doing wasnt enough. With Wack, I felt like I never had to sell myself, and he was always bringing me opportunities.

Nicky Ds got his start in the music business by working with his mentor Marcus Black. By working along side Black he was able to see how the process of putting out albums worked. In 2013, he launched his project an album titled The Grey Area from which he received some moderate success as well as a notable mention from XXL. After that, he began collaborating with legendary rapper The Game, whom he would eventually go on tour with, in both the USA and 12 other countries, including his homeland (Dublin, Ireland). I even got an opportunity to shoot a video in Dublin and click up with some of the local people that had a say, so salute to my guy Karl Mac, says Nicky Ds.

In 2015, after driving two-plus hours each way to Los Angeles to get to the studio during the week, Nicky Ds decided to make a permanent move to LA. At the time, he was still an independent artist, which meant he wasn't receiving a financial cushion from a label or management as he worked on developing as an artist. I was working a 9 - 5 at a Sprint store, and I still found ways to push my music out there. When I recognized customers whether they were an actor or producer I was ready with my elevator pitch, explains Nicky Ds.

Moving to LA was when I really found myself. I was putting in the kind of hours I never had before, and I was getting in the room with the people I needed to be around. Work smarter, not harder, and you never want an opportunity to walk out the door. If youre going to be around all the time, you have to be you. Its not a science; its art. I dont believe in luck, and I just felt like I was there for a reason. Theres a right place, right time, Nicky Ds says.

2017 has been a very busy but productive year for Nicky Ds. Teaming up with Stat Quo who Wack100 appointed as his A&R put new challenges in front of him. Where my rapping skills got me in the door, dealing with Stat Quo, who comes from Eminem & Dr. Dre's camp, placed me right back at the starting line. Whatever I initially did wasn't deep enough, and Stat gave me the guidance to find my inner thoughts that were trapped within, explains Nicky Ds.

Nicky Ds goes on to say that just this year alone hes worked with Scott Storch, Bongo By The Way, Foreign Teck from the Mekanics, Young Thug, and Lil Yachty, along with the legendary EVERLAST from The House of Pain.

Indeed, the bar is set high for Nicky D's, but he doesn't plan on letting that stop him: I've dropped a mixtape on Dat Piff called "The Fighting Irish" in May 2017, and currently have a hit single out titled "New Day," produced by Foreign Teck and featuring Young Thug and Lil Yachty. My EP titled "CLOVERS" is due to drop September 2017.

Nicky Ds is scheduled to open for Lil Yachty's Teenage Emotions Tour, which starts August 11th. Much appreciation to the Quality Control team, Yachty, and Coach K & "P. Being tied to Wack100, you never know what door he will open next. I just make sure I stay ready. He will call me at 2 a.m. with one task, then turn around and tell me I have to be at LAX at 2:30 a.m. and hang up the phone, giving me no time to argue about the task, says Nicky Ds.

I'm currently contracted to eOne Entertainment, which I'm very comfortable with. Alan Grunblatt (President) and Gabby Peluso (VP) listened to my music and believed in the vision that Wack100 put in front of them. Along with the rest of the team, including Dontay, Shadow, and Kathy, who oversee the radio department; Brendan Laezza, Marlisse Martinez, and Jamal Jimoh, who oversee the marketing department; and Kimberly She Boss Jones (President of Fifth Amendment) who makes sure all my business is in order I feel I'm off to a great start, explains Nicky Ds.

Nicky Ds leaves us with this advice for up-and-coming artists: Remember to develop genuine relationships with people and be a human, even if your number one priority is to promote your own agenda. The vibe you bring into the room is very important. Artists need that vibe to create, and that vibe cant be disrupted.

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Be Ready to Push Play on Yourself: Advice from Hip Hop's Newest Mega Star - HuffPost

Topeka lawyer Margo E. Burson faced a formal complaint based on the losses of more than $183,000 by two Topeka women.

The family of one woman said she violated their trust. A nursing home had asked her repeatedly to fill out required paperwork for the other woman.

But when Burson appeared at a disciplinary hearing before the Kansas Supreme Court and was asked what authority she had to remove money from a clients account without a judges approval, she paused.

At this time, I decline to answer, Burson said.

Im sorry. What? Justice Dan Biles asked.

I decline to answer, Burson said.

Are you taking the Fifth Amendment? Biles asked.

Yes, Burson said.

With that, questioning about the status of the money ended. That hearing was June 15.

The Fifth Amendment protects a defendant from testifying to something that might be self-incriminating. A witness may sometimes plead the Fifth in district court cases.

But disciplinary administrator Stan Hazlett said he couldnt recall the protection being used in an attorney disciplinary hearing.

In a letter dated July 18, Burson voluntarily surrendered her Kansas law license, and the Kansas Supreme Court disbarred her a day later.

Burson was facing two complaints filed by the Office of the Disciplinary Administrator, which polices the conduct of Kansas lawyers, based on the losses of more than $183,000 by two Topeka women.

The estate of Dorothy May Harvey, an 89-year-old woman who died in September 2011, and a 96-year-old woman living in a senior care facility reported the losses. The name of the older woman hasnt been disclosed in public documents.

Betrayed

Family members were grateful for Bursons help during Harveys final illness, and Burson got initial accounting to family within days of Harveys death.

We trusted her implicitly, said Don Peters, a brother-in-law of Harvey who is married to her sister, June Peters.

Peters, who lives outside of Kansas, said Harveys obituary even reflected respect for the attorney.

The family expresses their deep appreciation to Margo Burson, who lovingly managed her health care affairs, the obituary said.

But the closing of the estate is still ongoing, Peters said. The Peterses became a little suspicious about a year after Harveys death, and by September 2016, they registered a complaint with the disciplinary administrators office.

In essence, she violated our trust, very seriously, Peters said. We feel betrayed, not so much for the money lost but for the time (lost).

Ten internet transfers totaling $66,000 were made from the Harvey estate account, then were deposited into Bursons operating account, according to disciplinary administrators records.

The transfers started on Aug. 19, 2016, and ended on Jan. 30, 2017, and ranged from $1,000 to $19,000 for each transfer, the records show.

We did trust her for years, unfortunately, until we learned she didnt merit our trust, Peters said. She is now our ex-lawyer.

In the other complaint against Burson, more than $117,249 wasnt paid to the account of a 96-year-old woman living at Brewster Place, officials said.

The disciplinary administrator received a complaint from an individual reviewing accounts on behalf of Brewster Place, where Burson had power of attorney for a resident beginning in 2005.

Records show Brewster Place sent letters and emails to Burson on numerous occasions asking her to fill out and file a Medicaid application, a request that began in March 2014.

By February 2017, the residents balance due to Brewster Place was more than $99,000, and on May 24, the balance was $117,249.

When the complaint was filed in June, Burson hadnt completed the Medicaid application process, and the resident remained at the facility.

Brewster Place does not wish to evict the woman, the complaint said.

Worn out

In an interview last week, Burson said she couldnt talk at length about the disciplinary case.

I am not in a position to discuss it at this time, Burson said.

The disciplinary action coincides with Bursons planned retirement, she said. Burson said she had planned to retire at the end of the fiscal year, which was June 30.

The timing on the other matter happened to coincide with her retirement, she said.

It was a surrender of the license, Burson said, rather than a knock down, drag out (disciplinary hearing). Some of us are worn out and ready to do something else.

A full evidentiary hearing was scheduled for Aug. 17 before a three-member panel of lawyers, but that was canceled after Burson surrendered her license.

During her June 15 appearance before the Kansas Supreme Court, Burson asked for time to complete documents for several other clients. She cited her health as a reason for retiring, saying she developed arthritis in the mid-1980s.

Lawyers facing serious allegations in disciplinary cases appear before the supreme court justices, and hearings are recorded on video. Serious cases include alleged acts of dishonesty, misappropriation of money and extreme misconduct.

The day Burson appeared before justices, they temporarily suspended her law license.

Hazlett, the disciplinary administrator, said she was disbarred a month later as a result of the allegations against her and her decision to surrender her license.

Hazlett said he would turn over the investigative materials to a law enforcement agency, and they can decide on how to proceed.

Contact reporter Steve Fry at (785) 295-1206 or @TCJCourtsNCrime on Twitter.

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Topeka lawyer for elderly women takes Fifth, disbarred amid ethics questions - Topeka Capital Journal

Special counsel Robert Mueller (L) arrives at the U.S. Capitol for closed meeting with members of the Senate Judiciary Committee June 21, 2017 in Washington, DC. Alex Wong Getty Images

Washington is all abuzz that Special Counsel Robert Mueller has empaneled a grand jury in furtherance of his investigation into whether or not Donald Trump's campaign colluded with Russia. In spite of the inevitable speculation this creates, its worth remembering that a grand jury is a powerful investigative tool, but not a criminal charge. So what is the significance of a grand jury convening?

A grand jury has the power to subpoena both witnesses and documents, such as bank records and phone records. Refusal to comply with a subpoena, which has the force of a court order, without a legal basis creates the risk of the subpoena recipient being held in contempt of court and subject to criminal or civil penalties.

Legal privileges, such as the Fifth Amendment privilege against self-incrimination, are a basis for a witness to refuse to testify. The only way to get around a legally applicable privilege would be to seek an order of immunity, which would protect the witness from criminal exposure and therefore render the Fifth Amendment inapplicable. Perhaps the most famous immunized witness in past independent counsel investigations is Monica Lewinsky; its easy to forget that former national security advisor Michael Flynns lawyer offered his testimony to the Senate Intelligence Committee if he received immunity, where anything said could not be used against him in a criminal proceeding. The Committee, perhaps anticipating a prosecutors eventual interest in Flynn, declined.

Moreover, certain evidence, such asyes, Mr. Presidenttax returns, are considered more private than others, and cannot be obtained via subpoena. Rather, Mueller would need to seek an order from a judge to obtain Trumps tax returns, a wiretap, or a pen register, for instance.

Unlike Congressional hearings, in which sworn testimony is public, grand jury investigations are secret by law. This secrecy rule is demonstrated by the fact that Muellers grand jury has apparently been working for several weeks, but was only reported in the media yesterday. Prosecutors, law enforcement, and grand jury members themselves are barred from discussing grand jury proceedings. The reasons for this are twofold: First, publicity can cripple an ongoing covert investigation; second, grand jury investigations are secret to protect subjects of an investigation who may or may not ultimately be charged.

Grand jury witnesses, however, are not subject to the secrecy rules. So any legal reports from the grand jury room will come from the witnesses.

Grand juries, like Congress, can issue subpoenas. Unlike Congress, they can vote to criminally indict the subjects of their investigations. The purpose of empaneling a grand jury is to gather and assess the weight of the evidence. It does not mean that there exists enough evidence to amount to proof beyond a reasonable doubt, which is the standard for a conviction, or probable cause, which is the standard the grand jury must find in order to vote to indict. Given the grand jury secrecy rules described above, there is no way for the public to know with certainty how much evidence Mueller has amassed, or its value in a criminal case. So the smart money wont bet on criminal charges by the mere fact of empanelment alone.

In summary, empaneling a grand jury is consistent with Muellers reputation as a lawyer and investigator: a meticulous and thorough officer of the court who is committed to accuracy and the rule of law. But the grand jurys existence doesnt amount to a criminal charge, and it definitely doesnt equate a criminal conviction. As were whipsawed by Washington, its worth taking a page from Muellers book, and following the evidence where it leads.

Juliet S. Sorensen is a clinical associate professor of law at Northwestern Pritzker School of Law. She is the co-author of Public Corruption and the Law: Cases and Materials (West Academic 2017).

Continued here:
Why Robert Mueller's Grand Jury Isn't Really a Big Deal - Fortune

What are the basic underpinnings of a federal grand jury? In the excerpt from the National Constitution Centers Interactive Constitution, Paul Cassell and Kate Stith lookat their origin as related to the Fifth Amendment.

The first part of the Fifth Amendment reads as follows: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger

Cassell, a University of Utah law professor, and Stith, from the Yale Law School, explained the presence of Grand Juries in the Constitution, in a common interpretation of the Fifth Amendment:

The first of the criminal procedure clauses requires that felony offenses infederal courtbe charged by grand jury indictment. (A grand jury is a panel of citizens that hears evidence that the prosecutor has against the accused, and decides if an indictment, or formal criminal charges, should be filed against them.)

This is one of only a few provisions of the Bill of Rights that the Supreme Court has not held to apply to the states through the Due Process Clause of the Fourteenth Amendment (the others being the Third Amendments protection against quartering of soldiers, the Sixth Amendments requirement of trial in the district where the crime was committed, the Seventh Amendments requirement of jury trial in certain civil cases, and possibly the Eighth Amendments prohibition of excessive fines).

That the Court has been reluctant to apply the grand jury requirement to the states is unsurprising. While the origins of the grand jury are ancientan ancestor of the modern grand jury was included in the Magna Cartatoday, the United States is the only country in the world that uses grand juries. In addition to the federal government, about half the states provide for grand juriesthough in many of these there exist other ways of filing formal charges, such as a prosecutorial information followed by an adversarial but a relatively informal preliminary hearing before a judge (to make sure there is at least probable cause for the charge, the same standard of proof that a grand jury is told to apply). As early as 1884, the Supreme Court held that the grand jury is not a fundamental requirement of due process, and Justice Holmes lone dissent from that judgment has been joined by only one Justice (Douglas) in the intervening years.

Recent scholarship has upset the previous understanding that the grand jury was from its inception venerated because it was not only a sword (accusing individuals of crimes) but also a shield (against oppressive or arbitrary authority). In its early incarnation in England, the grand jury was fundamentally an instrument of the crown, obliging unpaid citizens to help enforce the Kings law. Over the centuries, the idea of a citizen check on royal prerogative became more valued. By the time of the framing of our Constitution, both the grand jury (from the French for large, in sizetoday grand juries are often composed of 24 citizens), and the petit jury (from the French for smalltoday criminal trial juries may be composed of as few as six citizens) were understood, in both Britain and the colonies, to be important bulwarks of freedom from tyranny.

Few in the modern era would espouse such a view. The former Chief Judge of the New York Court of Appeals (that states highest court) famously remarked in recent years that because prosecutors agents of the executive branchcontrol what information a grand jury hears, any grand jury today would, if requested, indict a ham sandwich. While this is a useful exaggerationthe Supreme Court has held that federal grand juries need not adhere to trial rules of evidence, or be told of evidence exculpating the defendantfew prosecutors, fortunately, are interested in indicting ham sandwiches! Rather, the greatest advantage grand juries now provide (at least in federal courts, which are not as overburdened as state courts) is allowing the prosecutor to use the grand jury as a pre-trial focus group, learning which evidence or witnesses are especially convincing, or unconvincing.

At least in federal court, grand juries are here to stay. The institution is written into the Fifth Amendment too clearly to be interpreted away. Moreover, neither pro-law enforcement forces (for obvious reasons) nor allies of those accused (because occasionally grand juries do refuse to indictin the legal parlance, returning a no true bill) have reason to urge their abolition through amendment of the Constitution.

You can read more from Cassell and Stith on the Fifth Amendment, and matters of debate from different perspectives, at our Interactive Constitution at: goo.gl/dsDFKb

Filed Under: Fifth Amendment

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Interactive Constitution: Grand Juries and the Fifth Amendment - Constitution Daily (blog)

This case, from the U.S. Federal Appeals Court, considers the applicability of the Fifth Amendments privilege against self-incrimination in relation to testimony compelled by a foreign government, on the present facts the UKs Financial Conduct Authority. It will therefore no doubt influence how the DOJ operates and interacts with UK investigatory authorities in the future.

The U.S. Court of Appeals for the Second Circuit, in a decision published on 19 July1, reversed the convictions of Anthony Allen and Anthony Conti. Allen and Conti (the Defendants) had previously been tried and convicted before the District Court (Southern District of New York) for wire fraud and related conspiracy offences, concerning the alleged manipulation of LIBOR. The appeal focused on the defendants claim that their privilege against self-incrimination under the Fifth Amendment had been violated. It was argued that the testimony of Paul Robson, a key witness in the case, had been tainted by statements the Defendants had made in compelled interviews with the UKs Financial Conduct Authority (FCA). The FCA had disclosed the transcripts of the Defendants interviews to Robson, pursuant to the regulatory proceedings against him. Robson had reviewed the transcripts prior to cooperating with the DOJ.

In reversing the District Courts decision, the Appeals Court held that the Government had failed to prove (as required under the Kastigar doctrine2) that Robsons evidence had been derived from a source wholly independent of the compelled testimony. In addition, the Appeals Court addressed a more fundamental issue which the District Court had previously declined to consider: whether the Fifth Amendment is even engaged by testimony compelled by a foreign government. Given the increasing prevalence of cross-border investigations this question was evidently important to resolve. The Appeals Court concluded that the protection offered by the Fifth Amendment applied to the use of all compelled testimony, irrespective of whether it had been obtained by a foreign Government. This blog piece summarises both elements of the Appeal Courts decision.

Application of the Fifth Amendment to foreign compelled testimony

In a previous blog post we analysed the competing arguments raised on behalf of the Government and the Defendants, before the District Court, on whether the Fifth Amendment applied to foreign compelled testimony. We concluded that it was difficult to reconcile the Governments position with Federal Appellate authority. The Appeals Court decision is not therefore overly surprising.

The decision emphasizes that the Self-Incrimination Clausewhich enshrines a right not to testify against oneselfprovides a personal trial right to an accused in any US criminal case. A violation of the Clause therefore occurs only when the statement is used at trial, not at the point of its compulsion. In short, compelled testimony cannot be used to secure a conviction in an American Court.3

The Appeals Court rejected a policy argument raised by the Government in support of adopting a restrictive scope of the Fifth Amendments application. The Government suggested that foreign authorities could frustrate US prosecutions by publicizing compelled testimony, thereby submitting the US Government to the burden raised by Kastigar. The Appeals Court dismissed these concerns. Negligent publication, the Court held, seemed increasingly unlikely given the trend towards closer and earlier coordination between U.S. and foreign agencies. The tide of international criminal enforcement, the Court reasoned, bolstered the argument for having the Fifth Amendment apply to foreign compelled testimony:

If as a consequence of joint investigations with foreign nations we are to hale foreign men and women in to the courts of the United States to fend for their liberty we should not do so while denying them the full protection of a trial right we regard as fundamental and absolute.4

The Appeal Courts decision appears to resolve this issue unequivocally and will presumably inhibit recent attempts made by the DOJ to rely on foreign compelled testimony. In June, the DOJ requested the District Court for Northern California grant a subpoena for the production of a transcript of testimony compelled by the UKs Financial Reporting Council (FRC).5 Following the Allen and Conti decision it is hard to see how the FRC evidence could be deemed admissible, and therefore satisfy the preconditions for being the object of a subpoena.

Application of the Kastigar doctrine

Under Kastigar, where an individual is compelled to testify he is protected by use and derivative use immunity: neither his testimony, nor any evidence derived (directly or indirectly) from it, can be used as evidence against him in criminal proceedings. The prohibition on use is total. The testimony cannot, for example, be used as a basis to commence an investigatory enquiry. Kastigar also espouses a test by which the protection is enforced: the Government bears the burden of proving that all the evidence it proposes to rely upon was derived from legitimate sources, wholly independent from the compelled testimony. The burden is significant and must be proved by a preponderance of the evidence (in UK terms on the balance of probability).

In the present case, the Appeal Court reversed the District Courts conclusion that the Government had met its Kastigar burden. It emphasized that the presence of evidence which corroborated Robsons account was insufficient to meet the applicable standard.6 Instead the Government was required to prove that Robsons exposure to the compelled testimony had not shaped, altered or affected the information he had provided and which the Government had used. Such an analysis could be conducted effectively where a witness testimony is memorialized (or canned) prior to their exposure to any compelled statements.7

Here, Robson had himself provided testimony to the FCA prior to exposure. Far from assisting the Government, a comparative analysis of Robsons accounts (his compelled statement to the FCA and his trial testimony) revealed marked discrepancies. Furthermore, the level of material exposure appeared substantial, the Government accepted that many of the topics discussed by Robson in his testimony also featured in the Defendants compelled statements. Notwithstanding this Robson had not claimed, at any stage during his testimony, that he could segregate the effects of his exposure.8 These findings, and other aspects of Robsons evidence, undermined any suggestion that Robsons exposure to the Defendants compelled statements had not shaped, altered or affected his own testimony. The Appeal Court held that generalized and self-serving denials of any taint was an inadequate basis on which the Government could satisfy its burden under Kastigar.9

It remains to be seen how often foreign compelled testimony will give rise to a Kastigar motion in US criminal proceedings. This decision of the Appeals Court makes it more incumbent on US Federal agencies to interact closely with foreign governments and to coordinate cross-border investigations at their outset. Where a Kastigar claim can be foreseen the US prosecuting authority will need to consider how it can protect against potential witnesses being exposed to the compelled testimony of a suspect / defendant. Where a risk of exposure still exists, for example through the imminent publication of compelled testimony, the authority will need to move quickly in order to memorialize a witness account.

1www.pbwt.com/content/uploads/2017/07/USA-v-Allen.pdf 2Kastigar v. United States, 406 U.S. 441 (1972) 3 See pages 35-38 of the decision. 4 See pages 54-5 of the decision. 5 See Global Investigations Review, 19 June 2017- DOJ pursues ex-Autonomy directors compelled testimony. 6 See pages 60-1 of the decision. 7 See pages 61-2 of the decision. 8 This formulation was taken from the case of Poindexter, 951 F.2d at 376. 9 See page 63 and 70 of the decision.

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Case Note: Allen and Conti - JD Supra (press release)

Legal experts warn not to read too much into a report that special counsel Robert Mueller has impaneled a grand jury as part of his probe into Russian interference in the 2016 election.

The decision was likely made for practical reasons, such as making it easier to call witnesses to testify, and does not necessarily indicate that the former FBI chief is ready to issue indictments, experts say.

When conducting an investigation, prosecutors commonly work with a grand jury, said Melinda Haag, former U.S. Attorney in San Francisco. Because of its significant legal power and investigative reach, Haag says, impaneling of a grand journey can happen at almost any point during an investigationnot just near the end.

The use of grand juries, which serve as forums for testimony and evidence gathering before a potential trial, is not uncommon in federal cases. Its a unique environment with special rules: because there are no defendants, legal counsel is not present, and the prosecutor has significant control over the proceedings. The process can lead to indictments if criminal evidence comes to light.

In part because it echoes the events of Watergate, Muellers decision to specially impanel a grand jury has been seen as revealing. That means that Mueller opted not to use a sitting grand jury to handle the case, or continue using the grand jury in Alexandria, Va., that had been used by federal prosecutors to investigate former national security advisor Michael Flynn.

But while the special formation of the jury is a highly visible and certainly important move in the ongoing investigation, it may be less dramatic than it initially appears.

Given the nature of the things that Mueller is investigating, it would be odd for him not to use a grand jury in the District of Columbia, said David Sklansky, a co-director at Stanford's Criminal Justice Center, adding that it would be weird for Mueller to rely on a standing jury for the investigation.

There are a number of reasons for that. Under law, grand juries are held to a certain term length and sometimes called to multiple cases, so for a complicated and potentially lengthy investigation it makes sense for a prosecutor to convene a new jury that can devote its entire term and attention to a single case.

And a sitting jury would not have been screened for participation in a high-profile and high intensity case like this one. A dedicated grand jury will be an administrative convenience, in a case that could involve numerous documents and participants, said Robert Weisberg, a criminal justice expert at Stanford Law School.

At an extreme, the formation of the jury could mean that Mueller believes he hasor could soon haveenough evidence to issue an indictment that could lead to a criminal case, says Hadar Aviram, a law professor at UC Hastings. But it could also simply mean the Mueller is hoping to utilize the powerful evidence-gathering machinery that a grand jury provides.

Aviram calls the grand jury process a powerful mechanism that has the capability of generating more evidence through its powers of subpoena, meaning the prosecutor can compel testimony and the handing over of documents. The latter is particularly potent, because, unlike with testimony, its nearly impossible for documents to be protected under the Fifth Amendment. And Weisberg points out that because those who testify are under oath and could end up as defendants in a later trial, and prosecutors can grant immunity in exchange for testimony, the grand jury tends to be a productive environment for revealing testimony and naming of further witnesses.

But Haag emphasizes that the impaneling may simply mean that Mueller plans to start subpoenaing documentsand, even if they are at a stage where they want to take testimony from one or more people, that, too doesnt mean theyre reaching the end of the investigation.

Regardless of the strategy behind the formation of the grand jury, many aspects of it will be mysteries for some time. The proceedings could be lengthy and are legally protected under strict rules of secrecythough witnesses are free to talk about their participation. If witnesses do choose to disclose their involvement, or any details of the subpoenas are leaked, it could provide clues into the shape of the investigation.

But for now, were mostly in the dark.

Everything is just a kind of tea leaf reading at this point, Wesiberg saidadding that any conclusions should be drawn with caution.

Excerpt from:
Why Robert Mueller's Grand Jury Isn't a Big DealYet - TIME