Federal Wire Fraud Crimes – 18 U.S.C. § 1343

July 2, 2013

Title 18 of the United States Code Section 1343 (18 U.S.C. § 1343) (2013) states the following:

“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.”

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STATUTE OF LIMITATIONS FOR WIRE FRAUD (2013)

18 U.S.C. &Sect; 3282(a) states:

“(a) In General.— Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”

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U.S. ATTORNEY’S MANUAL 18 U.S.C. 1343 — ELEMENTS OF WIRE FRAUD

“The elements of wire fraud under Section 1343 directly parallel those of the mail fraud statute, but require the use of an interstate telephone call or electronic communication made in furtherance of the scheme. United States v. Briscoe, 65 F.3d 576, 583 (7th Cir. 1995) (citing United States v. Ames Sintering Co., 927 F.2d 232, 234 (6th Cir. 1990) (per curiam)); United States v. Frey, 42 F.3d 795, 797 (3d Cir. 1994) (wire fraud is identical to mail fraud statute except that it speaks of communications transmitted by wire); see also, e.g., United States v. Profit, 49 F.3d 404, 406 n. 1 (8th Cir.) (the four essential elements of the crime of wire fraud are: (1) that the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money; (2) that the defendant did so with the intent to defraud; (3) that it was reasonably foreseeable that interstate wire communications would be used; and (4) that interstate wire communications were in fact used) (citing Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit 6.18.1341 (West 1994)), cert. denied, 115 S.Ct. 2289 (1995); United States v. Hanson, 41 F.3d 580, 583 (10th Cir. 1994) (two elements comprise the crime of wire fraud: (1) a scheme or artifice to defraud; and (2) use of interstate wire communication to facilitate that scheme); United States v. Faulkner, 17 F.3d 745, 771 (5th Cir. 1994) (essential elements of wire fraud are: (1) a scheme to defraud and (2) the use of, or causing the use of, interstate wire communications to execute the scheme), cert. denied, 115 S.Ct. 193 (1995); United States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993) (to prove wire fraud government must show (1) scheme to defraud by means of false pretenses, (2) defendant’s knowing and willful participation in scheme with intent to defraud, and (3) use of interstate wire communications in furtherance of scheme); United States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir. 1990) (“Wire fraud requires proof of (1) a scheme to defraud; and (2) the use of an interstate wire communication to further the scheme.”).”

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CURRENT? CHECK THIS OUT:

18 U.S.C. § 1343

18 U.S.C. § 3282

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SIMILAR STATUTES:

18 U.S.C. § 1341 (Mail Fraud)

18 U.S.C. § 1344 (Bank Fraud)

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Debbie Clemens to back up husband on HGH shot

June 8, 2012

Associated Press on June 8, 2012 released the following:

“By FREDERIC J. FROMMER
Associated Press

WASHINGTON (AP) — “My heart’s pounding,” Debbie Clemens said just before she walked into a federal courtroom to take the stand in her husband’s perjury trial.

Lawyers on both sides of the Roger Clemens case are ready for key testimony from her about her husband’s alleged use of human growth hormone as the defense nears the end of its case.

Debbie Clemens, who spent only 15 minutes on the stand Thursday fielding background questions before court recessed for the day, was to get to the crux of her testimony Friday. She was expected to say that she received a shot of HGH from Clemens’ then-strength coach, Brian McNamee, about 12 years ago, and that her husband wasn’t present.

McNamee, the government’s key witness, testified last month that not only was the star baseball pitcher there, he had summoned McNamee to the couple’s master bathroom in Houston to give Debbie Clemens the drug.

McNamee said she looked at her husband and said, “I can’t believe you’re going to let him do this to me,” and Clemens responded, “He injects me. Why can’t he inject you?”

Clemens is charged with lying to Congress when he denied using performance-enhancing drugs. Among the false statement he’s alleged to have made are that he never used HGH and that McNamee injected his wife without Clemens’ prior knowledge or approval.

Wearing a cream-colored suit, Debbie Clemens told U.S. District Judge Reggie Walton that she was being represented by her husband’s lawyer, Rusty Hardin. Walton gave her a few minutes to talk to Hardin about her right not to incriminate herself, after which she came back and said she was ready to testify.

Hardin earlier had told Walton that the HGH injection happened so long ago that the statute of limitations would bar charges against her now.

Debbie Clemens testified briefly Thursday about the couple’s time in Boston, where her husband pitched for the Red Sox from 1984 to 1996. She recalled that son Koby, born in 1986, was dubbed “most valuable baby” because his father was MVP that year.

For the benefit of the jury, Walton asked her what MVP meant.

“Most valuable baby,” she said, prompting laughter in the courtroom – including a rare laugh from her husband across the room. She quickly corrected her answer to most valuable player.

She also said that while she liked Boston, “the media could be very miserable. It was hard living a hero and a villain every other day, what they were creating.”

After the court recessed, Roger Clemens came up behind his wife in the hallway and put his arm around her.

Earlier Thursday, McNamee’s wife, Eileen, testified, but there was no embrace waiting for her, as the couple is going through a contentious divorce. She said she was furious with both her husband and Clemens when the former pitcher’s lawyers allowed details of the McNamees’ oldest son’s diabetes to be revealed during a 2008 nationally televised news conference.

The news conference was part of a media blitz during which Clemens denied the doping allegations McNamee made about the pitcher in the then-just-released Mitchell Report on drugs in baseball. Hardin and Clemens played a taped phone call in which McNamee told Clemens, “My son is dying.”

That wasn’t true, Eileen McNamee said, although she had left her husband a message around that time about blood test results that weren’t what they were supposed to be.

“Brian didn’t bother to call me back. He called Roger and told him his son was dying,” she testified.

Then her 10-year-old son heard the news conference, and “now my son thinks he’s dying.”

Prosecutor Courtney Saleski said Clemens could have kept the information about her son out of the news conference, but instead, “he played it for the world.”

“Yes, he did,” Eileen McNamee said. She acknowledged that she called her husband and told him to go after Clemens.

The next day, around 3 a.m., Brian McNamee retrieved the evidence that he said had been kept in and around a beer can inside a FedEx box for more than six years, the remnants of an alleged steroids injection of Clemens in 2001, which is the key physical evidence against Clemens.

“I asked him where he was going, and he said he was heading to his lawyers, and he was out the door,” she recalled.

Brian McNamee had testified that he decided to turn over the evidence to federal authorities against Clemens “because of what he did to my son.””

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Taking Aim at the Foreign Corrupt Practices Act

May 1, 2012

The New York Times on April 30, 2012 released the following:

“BY PETER J. HENNING

The Foreign Corrupt Practices Act has been at the center of a tug of war between business interests and federal authorities.

The United States Chamber of Commerce has led efforts to change the law, in response to ramped up prosecutions by the Justice Department and the Securities and Exchange Commission in the last few years. While the proposed changes are described as a means to “improve” the law, they would also make it more difficult to pursue cases.

But the revelations in The New York Times that Wal-Mart Stores squelched an investigation into bribery at its Mexican subsidiary may impel prosecutors to be even more forceful in applying the law and put legislative efforts to change it on the back burner.

Business leaders have long contended that the law is overly broad and too aggressively enforced, while federal authorities view it as a powerful means to police the overseas conduct of American companies.

The Foreign Corrupt Practices Act was adopted in 1977 in the wake of revelations of bribery of foreign officials by more than 400 United States companies. This was a time when misconduct by the Central Intelligence Agency and the Watergate scandal were still fresh in the public consciousness, so efforts to clean up business and government were paramount.

The law contains two parts: it prohibits bribing a foreign official for the purpose of “obtaining or retaining business,” and it requires that public companies file proper financial statements and maintain a system of internal controls.

The books and records provision is enforced regularly, most recently in the conspiracy prosecution of a former managing director of Morgan Stanley for hiding deals with a Chinese official. The Justice Department and the S.E.C. share authority over enforcement, which means companies have to deal with two sets of investigators whenever a potential violation comes to light.

For the first 30 years or so after its enactment, the antibribery portion of law was used sporadically. Only a handful of cases were brought each year against companies, almost always ending in settlements involving a modest fine, and even fewer involved individuals.

Prosecutors have now made enforcement of the law a priority, and more industries have been caught up in investigations. The Justice Department has filed cases against pharmaceutical manufacturers, like Pfizer, for dealings with state-run health care programs, and is reported to be pursuing an investigation into the dealings of American movie studios in China.

The push for changes in the statute coincided with its expanded enforcement as companies now have to deal with the vagaries of the law once viewed as a mild nuisance at best.

At a hearing before a House subcommittee last year, a former attorney general, Michael B. Mukasey, represented the United States Chamber of Commerce in supporting changes to restrain use of the law because “more expansive interpretations of the statute may ultimately punish corporations whose connection to improper acts is attenuated or, in some cases, nonexistent.”

The revelations about Wal-Mart’s conduct, however, shows the law’s importance as an anticorruption tool for policing large businesses.

Tinkering with the law could send the wrong signal to other countries about the importance of curbing bribery. Support among Congressional leaders for revisions that would make it harder to prosecute companies may dissolve if they could easily be portrayed as being soft on bribery — something that would become fodder for an opponent in an election campaign.

The Justice Department’s increased enforcement of the Foreign Corrupt Practices Act has also included more charges against individuals rather than just companies. But that shift has also led to problems. In one of its most prominent cases, prosecutors dismissed charges against 22 defendants from the “Africa Sting” case in which the government used an undercover informant to entice suppliers into agreeing to pay bribes to receive contracts with an African government, all of which was fictitious.

The charges foundered over issues regarding the conduct of the informant that raised questions about whether individuals were unfairly enticed into the deals. Federal juries could not reach a verdict after two trials of a group of the defendants, and the Justice Department decided to forgo further prosecutions.

As James B. Stewart wrote in a New York Times column last week, there has been a noticeable absence of corporate employees charged with violations even when it appears that the company condoned foreign bribery.

But while companies have been much more amenable to settling investigations rather than challenging charges in court, prosecuting individuals faces a number of hurdles. Corrupt payments are often made by foreign intermediaries acting on behalf of the company, many of whom have no ties to the United States. It does little good to charge someone when there is not a realistic prospect that the person can be brought to the United States.

Pursuing a case against senior executives for turning a blind eye to questionable payments can be quite difficult. The notion that management “had to be aware of what was going on” may well be true in some instances, but that perception alone is not enough to prove any individual corruptly and willfully violated the Foreign Corrupt Practices Act, which is the required legal intent standard for a conviction.

Foreign bribery can takes years to come to the government’s attention, so the five-year statute of limitations can preclude prosecuting those involved in the payments. As I discussed in an earlier piece, the Wal-Mart payments to Mexican officials from 2003 to 2005 probably cannot be pursued against individuals at the company unless something more recent occurred.

Interestingly, in the Dodd-Frank Act, Congress extended the statute of limitations for securities fraud crimes to six years, apparently leaving out violations of the Foreign Corrupt Practices Act. Even that small increase in the time available to pursue a case can help prosecutors in putting together charges. Congress can alter the limitations period for any offense, and the Justice Department may point to Wal-Mart to ask Congress to extend the time frame in which foreign bribery charges can be filed.

The investigation of Wal-Mart has brought the Foreign Corrupt Practices Act to the attention of the public in a way not seen since the 1970s scandals that led to its adoption. Congress may find it politically impossible to adopt changes to the statute that would arguably make it more difficult to pursue cases as long as the allegations of foreign bribery by a leading American company remain in the headlines.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Federal Mail Fraud Crimes – 18 U.S.C. § 1341

April 25, 2012

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FEDERAL CRIMINAL STATUTE FOR MAIL FRAUD – 18 U.S.C. § 1341

Title 18 of the United States Code Section 1341 (18 U.S.C. § 1341) (2012) states the following:

“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.”

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STATUTE OF LIMITATIONS FOR MAIL FRAUD (2012)

18 U.S.C. § 3282(a) states:

“(a) In General.— Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”

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FEDERAL JURY INSTRUCTIONS (2012)

First Circuit Criminal Jury Instructions for Mail Fraud

Third Circuit Criminal Jury Instructions for Mail Fraud

Fifth Circuit Criminal Jury Instructions for Mail Fraud

Sixth Circuit Criminal Jury Instructions for Mail Fraud

Seventh Circuit Criminal Jury Instructions for Mail Fraud

Eighth Circuit Criminal Jury Instructions for Mail Fraud

Ninth Circuit Criminal Jury Instructions for Mail Fraud

Tenth Circuit Criminal Jury Instructions for Mail Fraud

Eleventh Circuit Criminal Jury Instructions for Mail Fraud

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MAIL FRAUD WHITE PAPER

Mail Fraud White Paper

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CURRENT? CHECK THESE OUT:

18 U.S.C. § 1341

18 U.S.C. § 3282

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SIMILAR STATUTES:

18 U.S.C. § 1343 (Wire Fraud)

18 U.S.C. § 1344 (Bank Fraud)

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

Federal Crimes – Appeal

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Weighing the Legal Ramifications of the Wal-Mart Bribery Case

April 24, 2012

The New York Times on April 23, 2012 released the following:

“BY PETER J. HENNING

The United States government puts a premium on corporate cooperation in foreign bribery cases, relying on companies to conduct thorough internal investigations and voluntarily disclose any wrongdoing.

Indications that Wal-Mart Stores may have taken steps to keep an internal investigation from digging deeper into $24 million in questionable payments — and later promoting an executive who may have been implicated in them — may affect how the government decides to proceed against the giant retailer.

Wal-Mart first disclosed in December that it had started “a voluntary internal review of its policies, procedures and internal controls pertaining to its global anticorruption compliance program.” That review was the result of reporting by The New York Times about bribery by Wal-Mart de México to secure permits and approvals to build new stores.

The company’s disclosures did not give any information about where the foreign bribery issues had arisen, only that the focus was on whether “permitting, licensing and inspections were in compliance with the U.S. Foreign Corrupt Practices Act.” Wal-Mart said it had informed the Justice Department and the Securities and Exchange Commission about the internal investigation, and the company issued a statement in response to the Times article that its outside advisers “have and will continue to meet with the D.O.J. and S.E.C. to report on the progress of the investigation.”

Companies caught up in investigations of foreign bribery often seek to exert a measure of control over the flow of information by meeting early and often with government investigators in an effort to establish credibility regarding the scope and integrity of the investigation, usually sharing the results as quickly as possible. If corporate counsel can demonstrate its reliability, then the Justice Department and the S.E.C. are more likely to accept the findings of the internal investigation without conducting an independent review.

Cooperation is also important because it is a significant factor for prosecutors in deciding how to resolve a case. The Justice Department has allowed companies to pay reduced fines and avoid a guilty plea to criminal charges by entering into deferred or nonprosecution agreements because they came forward voluntarily and readily provided information.

While Wal-Mart may be angling for the same type of resolution, it is questionable whether being prodded by The Times’s reporting to start an internal investigation shows that it took affirmative steps to address a problem. The company had dropped its earlier investigation, and likely would have let that sleeping dog lie if not for potential media scrutiny.

The Times article also raises two significant red flags for investigators that may cause them to take a more aggressive approach in the case. First, the Mexican bribery involved senior management at the subsidiary, not just low-level employees operating on their own. One factor cited in the Justice Department guidelines for deciding whether to charge a business organization is the “pervasiveness of wrongdoing within the corporation,” and the most important consideration “is the role and conduct of management.”

Second, Wal-Mart’s own investigators raised questions about $16 million in “contributions” and “donations” to local governments, but there was no further review of those payments. Simply ignoring these types of transfers is sure to raise questions for the government about whether the company can claim it had an effective compliance program back in 2005 when these issue first came to light, another important consideration in determining whether to file charges.

Wal-Mart also pointed out twice in its statement that the payments in Mexico took place more than six years ago. That may be an effort to explain why it may be unable to conduct a complete investigation. Whether the excuse will fly with the Justice Department and the S.E.C. remains to be seen.

The time lag may present a problem if the Justice Department wants to prosecute any individuals for bribery of Mexican officials. The statute of limitations for a violation of the Foreign Corrupt Practices Act is five years. The limitations period can be extended if the government was seeking evidence from a foreign country, but that does not appear to be the case because Wal-Mart only disclosed the issue in late 2011. So charges related to conduct before 2007 may be lost due to the passage of time.

One way the government can try to avoid the statute of limitations is to charge a conspiracy, which only requires that one act in furtherance of the criminal agreement take place within the last five years. If active steps by Wal-Mart executives to cover up payments to foreign officials occurred in 2007 or later, then prosecutors might be able to pursue that charge.

The statute of limitations will not work as much in Wal-Mart’s favor, however, because the company is required to annually file financial statements covering the previous five years. It is likely that questionable payments were not properly reflected on the company’s books and records. So even if no charges can be brought for any foreign bribery, at a minimum it could be charged with violating the accounting provisions of federal securities law for not properly disclosing the payments made by Wal-Mart de México.

Another potential avenue that prosecutors are likely to investigate is obstruction of justice under 18 U.S.C. § 1519, which was added by the Sarbanes-Oxley Act. If there is evidence that anyone at the company covered up or destroyed records “with the intent to impede, obstruct, or influence” a future investigation, that could be grounds for a criminal charge.

One factor working against Wal-Mart is that the Justice Department may be looking for a prominent case to demonstrate the need for vigorous enforcement of the Foreign Corrupt Practices Act as a response to recent criticisms of the law. The Chamber of Commerce, which hired a former attorney general, Michael B. Mukasey, to lobby for changes to the statute, has argued that aggressive application of the law has caused companies to shy away from overseas investments for fear of being scrutinized.

The Times article makes it clear that Wal-Mart appeared to be more concerned with protecting its fast-growing Mexican operation than with thoroughly investigating allegations that corruption helped fuel its success. Prosecutors can make an example of Wal-Mart to show that the Justice Department will not tolerate foreign bribery, even by a leading American company. That would bolster the argument that revising the statute would send the wrong message to the rest of the world.

The payments at issue are comparatively paltry, perhaps totaling less than $50 million, although that number could increase as the internal investigation moves forward. The ultimate cost to Wal-Mart for the legal and accounting fees for the investigation, along with any monetary penalties the Justice Department and the S.E.C. may seek, will probably far exceed the bribes.”

18 U.S.C. § 1519

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Feds Eye Retired CIA Officer Steve Stormoen in Prisoner Death

July 13, 2011

The Associated Press (AP) on July 13, 2011 released the following:

“By MATT APUZZO and ADAM GOLDMAN
Associated Press

WASHINGTON (AP) — A CIA officer who oversaw the agency’s interrogation program at the Abu Ghraib prison in Iraq and pushed for approval to use increasingly harsh tactics has come under scrutiny in a federal war crimes investigation involving the death of a prisoner, witnesses told The Associated Press.

Steve Stormoen, who is now retired from the CIA, supervised an unofficial program in which the CIA imprisoned and interrogated men without entering their names in the Army’s books.

The so-called “ghosting” program was unsanctioned by CIA headquarters. In fact, in early 2003, CIA lawyers expressly prohibited the agency from running its own interrogations, current and former intelligence officials said. The lawyers said agency officers could be present during military interrogations and add their expertise but, under the laws of war, the military must always have the lead.

Yet, in November 2003, CIA officers brought a prisoner, Manadel al-Jamadi, to Abu Ghraib and, instead of turning him over to the Army, took him to a shower stall. They put a sandbag over his head, handcuffed him behind his back and chained his arms to a barred window. When he leaned forward, his arms stretched painfully behind and above his back.

The CIA interrogated al-Jamadi alone. Within an hour, he was dead.

Now, nearly eight years after a photo of an Army officer grinning over al-Jamadi’s body became an indelible image in the Abu Ghraib prison abuse scandal, federal prosecutors are investigating whether al-Jamadi’s death amounted to a war crime.

The instructions from CIA lawyers could become an important element of that inquiry. Though it’s not required for prosecutors to show that someone knew such interrogations were against the rules, it’s still valuable evidence, said David Crane, a Syracuse law professor and former war crimes prosecutor. The instructions also undercut the argument that the CIA officers were simply following rules laid out by their superiors.

“The government can say, `He was told not to, and he went ahead and did it anyways,'” Crane said.

Two witnesses who testified before a grand jury in Virginia said they were asked about Stormoen’s role at the prison and his whereabouts when al-Jamadi died. The witnesses and officials agreed to discuss the case only on condition of anonymity because they were told not to speak with reporters.

Stormoen, who ran what was known in the CIA as the detainee exploitation cell, processed al-Jamadi into the prison but was not in the shower room when al-Jamadi died.

Stormoen, 56, was part of the CIA’s paramilitary arm, the Special Activities Division, after leaving the Army. He retired after al-Jamadi’s death and received a letter of reprimand for his role in Abu Ghraib. He has since rejoined the intelligence community as a contractor working for a company called SpecTal, which was bought last year by BAE Systems, a leading defense contractor.

Stormoen, whose identity is no longer classified, did not return numerous messages seeking comment. His lawyer also declined to comment.

CIA spokesman George Little had no comment on the inquiry.

Much of the public attention in the al-Jamadi case has been on interrogator Mark Swanner, who was in the shower room when al-Jamadi died. Another CIA officer, who goes by the nickname “Chili,” also came up at the grand jury, one witness said. Chili continues to work with the agency and his name is classified. The witness, who was at the prison, told prosecutors that Chili was at Abu Ghraib the day al-Jamadi died.

Though President George W. Bush’s administration allowed the CIA to interrogate terrorism suspects in secret overseas prisons, that authorization did not apply in Iraq. CIA lawyers determined that, as a traditional war zone, Iraq fell under the Geneva Convention rules of war. That meant prisoners had to be documented and treated without cruelty, with access to medical attention.

Tactics such as waterboarding and sleep deprivation, which the CIA used in other overseas prisons, were prohibited at Abu Ghraib without prior approval. In videoconferences with headquarters, Stormoen and other officers in Iraq repeatedly asked for permission to use harsher techniques, but that permission was never granted, one former senior intelligence official recalled.

Current and former officials say the CIA officers at Abu Ghraib saw ambiguity in the rules, believing they could interrogate detainees before they were formally processed into the military prison. That gray area could last several days or longer.

Military investigators said the informal nature of the CIA’s ghosting program contributed to a sense that the rules didn’t apply at the prison.

At the time, the CIA’s station in Baghdad, which was in charge of overseeing agency operations at the prison, was in such disarray that its top two officers were pulled out for mismanagement. An internal CIA inquiry did not single out any officer as responsible for al-Jamadi’s death and no one has been charged.

A military autopsy labeled the death a homicide. Doctors said al-Jamadi died from a combination of factors: injuries he received while being captured by Navy SEALs and breathing difficulties caused by a lung injury and made worse by having a sandbag over his head.

Shortly after al-Jamadi’s death, senior CIA officials once again circulated the rules. In January 2004, the agency sent a blunt memo flatly ordering agency officials to stop all interrogations, officials said.

Al-Jamadi’s death has twice been reviewed by the Justice Department and prosecutors have declined to bring charges. Attorney General Eric Holder has appointed a new prosecutor, John Durham, to investigate CIA interrogation tactics. Durham is now re-investigating the al-Jamadi death, and Holder said the investigation has uncovered new information, though he did not say what it was.

Prosecutions for torture and war crimes are rare in the United States. The most high-profile recent case was the successful torture prosecution of the son of former Liberian President Charles Taylor in Florida in 2008.

There is no statute of limitations on war crimes if a death is involved.”

To find additional federal criminal news, please read The Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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