Saturday, September 27, 2008

Case o' The Week: Defense 45 / Gov't 8 (but Lazarenko still gets nine . . .)

Years of litigation, millions of dollars of investigation, government "depositions" under sketchy circumstances in Russia, and the feds end up losing 45 out of 53 counts against Pavel Ivanovich Lazarenko, former Prime Minister of Ukraine? United States v. Lazarenko, __ F.3d __, 2008 WL 4368219 (9th Cir. Sept. 26, 2008), decision available here.

A remarkable effort by some of the best of California's defense bar.

Unfortunately for Mr. Lazarenko (left, leaving the SF federal building) even with an additional six counts knocked by the Ninth, the remaining eight counts of conviction make his nine year sentence a step closer.

Players: SF Giants Dennis Riordan, Doron Weinberg, and Donald Horgan for Mr. Lazarenko. Opinion by Judge McKeown, joined by Judges Tashima and Gould.

Facts: Lazaranko was the former prime minister of Ukraine. Id. at *1. His “involvement” in businesses was actually extortion, alleged the US government. Id. Because the money hit US accounts, Lazaranko was charged in SF with a 53-count indictment alleging conspiracy, money laundering, wire fraud, and interstate transportation of stolen property. Id. He was convicted after trial of fourteen counts, and appealed. Id.

Issue(s): (One among many): “Lazarenko also appeals the denial of his Rule 33 motion for a new trial. He argues that the government indicted him on [one specific set of] charges, knowing that the charges could not be proven, and then, after the directed verdict of acquittal, used the evidence from [this alleged] scheme against him in its closing argument, in violation of the doctrine of retroactive misjoinder. He asserts that he was denied the opportunity to respond in his own closing argument to the government's misleading statements.” Id. at 14 (footnote omitted).

Held: “[W]e reject the government’s contention that we have limited the doctrine of retroactive misjoinder only to cases where there is more than one defendant.” Id. at *15. “[T]he doctrine of prejudicial spillover or retroactive misjoinder may apply to a case where there is only one defendant.” Id.

“Invoking the three-factor test that the Second Circuit developed in Vebeliunas, the district court concluded that Lazarenko was not prejudiced by the now-dismissed charges. Under the Vebeliunas test, the court considers:

(1) whether the evidence was so inflammatory that it would tend to cause the jury to convict on the remaining counts;

(2) the degree of overlap and similarity between the dismissed and remaining counts; and

(3) a general assessment of the strength of the government's case on the remaining counts . . .

These factors reasonably address concerns about prejudicial spillover. We adopt these factors and add to them the factors we identified in
Cuozzo - whether the trial court diligently instructed the jury and whether there is evidence, such as the jury's rendering of selective verdicts, to indicate that the jury compartmentalized the evidence.” Id. at *16.

“The district court did not abuse its discretion in denying Lazarenko a new trial based on prejudicial misjoinder.” Id.

Of Note: What is “retroactive misjoinder?” “ ‘Retroactive misjoinder’ arises where joinder of multiple counts was proper initially, but later developments- such as a district court's dismissal of some counts for lack of evidence or an appellate court's reversal of less than all convictions-render the initial joinder improper. In this Circuit, ‘[t]o invoke retroactive misjoinder,’ a defendant ‘must show compelling prejudice.’ Prejudicial spillover from evidence used to obtain a conviction subsequently reversed on appeal may constitute compelling prejudice.” Id. at *14.

How to Use: Lazarenko provides new rules for retroactive misjoinder:

1. the principle can apply to single defendants, and

2. there is a new multi-factor test for prejudicial spillover. It will be the lead decision on the concept.

The opinion has many other important holdings as well, however. This decision discusses “constructive amendments” – and calls out the government’s “shift in theory.” Id. at *6. It finds too great a temporal break to uphold wire fraud allegations, when funds were wired years after the fraud. Id. at *8. And, unfortunately, it refuses to demand a particularity requirement for the specific foreign statutes violated, when those foreign crimes were the bases of money laundering, wire fraud, and transportation of stolen money counts. Id. at *6.

An important read for white-collar defense.

For Further Reading: Павло Івáнович Лазарéнко, Pavlo Ivanovych Lazarenko, has lead a colorful life that has sparked a great deal of litigation. See wikipedia entry here. In the present case, he was sentenced to nine years, with a $10 million fine. See New York Times article here.

Long before this appeal of the convictions hit the Ninth, a different panel (including Justice O’Connor) issued a pretty controversial ruling on the criminal forfeiture aspects of the case. See blog on United States, Liquidators v. Lazarenko here.


Photo of Mr. Lazarenko leaving the San Francisco federal building from http://blog.kievukraine.info/4129.jpg


Steven Kalar, Senior Litigator, N.D. Cal. FPD. Website at www.ndcalfpd.org


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3 Comments:

Anonymous Anonymous said...

A FUTURE US JUDICIAL TASK FORCE DESIGNED TO HELP BRING THE NEEDED CHANGE TO AMERICA'S BROKEN JUDICIAL SYSTEM,WOULD FARE VERY WELL UNDER MRS. CLINTON'S DIRECTION !!

SENATOR OBAMA,ANOTHER POSSIBLE innocent poorer black american ALSO NEEDS YOUR SUPPORT FOR JUSTICE And reason ??? DOES GOD NEED TO LOBBY OUR US CONGRESSIONAL LEADERS OF THE FREE WORLD ON BEHALF OF OUR poorer american's SENATOR OBAMA,OR ARE YOU WATCHING OUT FOR THEM ??

SURELY OUR US CONGRESS & US SUPREME COURT BOTH KNOW THE DIFFERENCE BETWEEN A STATE MURDER OF troy davis IN GEORGIA, OR A POSSIBLE EXECUTION OF troy davis IN GEORGIA ???

OUR US CONGRESSIONAL LEADERS OF THE FREE WORLD CONTINUE TO DENY MIDDLE CLASS AND WORKING POOR AMERICANS PROPER LEGAL REPRESENTATION EVEN THOUGH WRONGFUL EXECUTIONS & FALSE INCARCERATIONS CONTINUE ALL ACROSS AMERICA ???

*** 700 BILLION $$$ AVAILABLE FOR US BAILOUT, & NO $$$ FOR ALL POORER AMERICANS PROPER LEGAL REPRESENTATION ???????

WHERE ARE AMERICA ‘S RELIGIOUS LEADERS ??
SENATOR OBAMA, THIS JUDICIAL INJUSTICE HAS BECOME AN AMERICAN ART FORM, AND NO LONGER CAN BE KEPT HIDDEN OR SECRET FROM THE AMERICAN PEOPLE EVEN IF CERTAIN (501c3) U$ RELIGIOU$ LEADER$ HAVE BEEN $ILENCED ??

LETS ALL HOPE OUR MEDIA FRIENDS CONTINUE TO SHOW AN INTEREST IN REPORTING ON THIS AMERICAN HORROR FACING THESE (TENS OF THOUSANDS) FORGOTTEN AND TRAPPED POORER AMERICANS, AND HOW THIS PRESIDENTIAL CONTENDER HANDLES THIS VERY SERIOUS ISSUE FACING AMERICA’S LATINO AND BLACK AMERICAN COMMUNITIES ????

WITH 80% OF THE BLACK AMERICAN VOTERS SAYING THEY SUPPORT SENATOR OBAMA IN THIS PRESIDENTIAL ELECTION, IT IS ONLY FAIR FOR EVERYONE TO KNOW PRIOR BEING ELECTED OUR NEXT PRESIDENT OF THE UNITED STATES HOW THIS DEMOCRATIC SENATOR TRULY FEELS ABOUT THIS AMERICAN JUDICIAL INJUSTICE CONTINUING TO INFLICT GRAVE HARM ON THE BLACK & LATINO AMERICAN FAMILIES AND THEIR COMMUNITIES NATIONWIDE ??????

*** WHEN GOD’S FACE BECAME VERY RED ***
THE US SUPREME COURT GAVE ENEMY COMBATANTS FEDERAL APPEAL HC RIGHTS LAWYERS AND PROPER ACCESS TO US FEDERAL COURTS,AND POORER AMERICANS (MANY EVEN ON DEATH ROW) ARE DENIED PROPER FEDERAL APPEAL LEGAL REPRESENTATION TO OUR US FEDERAL COURTS OF APPEAL, AND ROTTING IN AMERICAN PRISONS NATIONWIDE ?????????

**** INNOCENT AMERICANS ARE DENIED REAL HC RIGHTS WITH THEIR FEDERAL APPEALS !
THE AMERICAN PEOPLE ARE $LOWLY FINDING OUT HOW EA$Y IT I$ FOR MIDDLE CLA$$ AND WORKING POOR AMERICAN$ TO FALL VICTIM TO OUR U$ MONETARY JUDICIAL $Y$TEM.

****WHEN THE US INNOCENT WERE ABANDONED BY THE GUILTY ****
The prison experts have reported that there are 100,000 innocent Americans currently being falsely imprisoned along with the 2,300,000 total US prison population nationwide.

Since our US Congress has never afforded poor prison inmates federal appeal legal counsel for their federal retrials,they have effectively closed the doors on these tens of thousands of innocent citizens ever being capable of possibly exonerating themselves to regain their freedom through being granted new retrials.

This same exact unjust situation was happening in our Southern States when poor and mostly uneducated Black Americans were being falsely imprisoned for endless decades without the needed educational skills to properly submit their own written federal trial appeals.

This devious and deceptive judicial process of making our poor and innocent prison inmates formulate and write their own federal appeal legal cases for possible retrials on their state criminal cases,is still in effect today even though everyone in our US judicial system knows that without proper legal representation, these tens of thousands of innocent prison inmates will be denied their rightful opportunities of ever being granted new trials from our federal appeal judges!!

Sadly, the true US *legal* Federal Appeal situation that occurs when any of our uneducated American prison inmates are forced to attempt to submit their own written Federal Appeals (from our prisons nationwide) without the assistance of proper legal counsel, is that they all are in reality being denied their legitimate rights for Habeas Corpus with our US FEDERAL COURTS and will win any future Supreme Court Case concerning this injustice!

For our judicial system and our US Congressional Leaders Of The Free World to continue to pretend that this is a real and fair opportunity for our American Middle Class and Working Poor Citizens, only delays the very needed future change of Federal Financing of all these Federal appeals becoming a normal formula of Our American judicial system.

It was not so very long ago that Public Defenders became a Reality in this country.Prior that legal reality taking place, their were also some who thought giving anyone charged with a crime a free lawyer was a waste of taxpayers $$.

This FACADE and HORROR of our Federal Appeal proce$$ is not worthy of the Greatest Country In The World! ***GREAT SOCIETIES THAT DO NOT PROTECT EVEN THEIR INNOCENT, BECOME THE GUILTY!

A MUST READ ABOUT AMERICAN INJUSTICE:
1) YAHOO 2) GOOGLE
MANNY GONZALES THE KID THAT EVERYONE FORGOT IN THE CA PRISON SYSTEM.
** A JUDICIAL RIDE OF ONES LIFE !

lawyersforpooramericans@yahoo.com
(424-247-2013)

Saturday, October 11, 2008 8:27:00 PM  
Anonymous Anonymous said...

WHAT IF OUR US CONGRESS COULD REALLY CARE LESS TO OFFER JUSTICE TO POORER AMERICANS ???


SENATOR OBAMA PLEASE LET THIS COUNTRIES VOTERS KNOW YOUR FEELINGS AND THOUGHTS ABOUT A NEEDED FUTURE REPAIR AND RENOVATION OF OUR BROKEN JUDICIAL SYSTEM THAT CONTINUES TO ALLOW THE EXECUTION'S OF EVEN POSSIBLE INNOCENT AMERICAN’S LIKE TROY DAVIS OF GEORGIA ?????

BEING THE WEALTHIEST COUNTRY IN THE WORLD SENATOR OBAMA, DON'T WE NEED AS THE LEADERS OF THE FREE WORLD TO BEGIN ONCE AGAIN TO RE-INVEST THE PROPER MONIE$ IN OUR OWN US JUDICIAL SYSTEM, ASSURING ALL OF OUR CITIZENS THEIR RIGHTS TO FAIR TRIALS WITH PROPER LEGAL REPRESENTATION ???

DOES GOD NEED TO LOBBY OUR US CONGRESSIONAL LEADERS OF THE FREE WORLD ON BEHALF OF OUR poorer american’s SENATOR OBAMA,OR ARE YOU WATCHING OUT FOR THEM ?? ***OUR US CONGRESS CONTINUES TO DENY MIDDLE CLASS AND WORKING POOR AMERICANS PROPER LEGAL REPRESENTATION EVEN THOUGH WRONGFUL EXECUTIONS & FALSE INCARCERATIONS CONTINUE ALL ACROSS AMERICA ???

*** 700 BILLION $$$ AVAILABLE FOR US BAILOUT, & NO $$$ FOR ALL POORER AMERICANS PROPER LEGAL REPRESENTATION ?
SENATOR OBAMA, THIS JUDICIAL INJUSTICE HAS BECOME AN AMERICAN ART FORM, AND NO LONGER CAN BE KEPT HIDDEN OR SECRET FROM THE AMERICAN PEOPLE EVEN IF CERTAIN (501c3) U$ RELIGIOU$ LEADER$ HAVE BEEN $ILENCED ??

LETS ALL HOPE OUR MEDIA FRIENDS CONTINUE TO SHOW AN INTEREST IN REPORTING ON THIS AMERICAN HORROR FACING THESE (TENS OF THOUSANDS) FORGOTTEN AND TRAPPED POORER AMERICANS, AND HOW THIS PRESIDENTIAL CONTENDER HANDLES THIS VERY SERIOUS ISSUE FACING AMERICA’S LATINO AND BLACK AMERICAN COMMUNITIES ????

WITH 80% OF THE BLACK AMERICAN VOTERS SAYING THEY SUPPORT SENATOR OBAMA IN THIS PRESIDENTIAL ELECTION, IT IS ONLY FAIR FOR EVERYONE TO KNOW PRIOR BEING ELECTED OUR NEXT PRESIDENT OF THE UNITED STATES HOW THIS DEMOCRATIC SENATOR TRULY FEELS ABOUT THIS AMERICAN JUDICIAL INJUSTICE CONTINUING TO INFLICT GRAVE HARM ON THE BLACK & LATINO AMERICAN FAMILIES AND THEIR COMMUNITIES NATIONWIDE ??????

*** WHEN GOD’S FACE BECAME VERY RED *** THE US SUPREME COURT GAVE ENEMY COMBATANTS FEDERAL APPEAL HC RIGHTS LAWYERS AND PROPER ACCESS TO US FEDERAL COURTS,AND POORER AMERICANS (MANY EVEN ON DEATH ROW) ARE DENIED PROPER FEDERAL APPEAL LEGAL REPRESENTATION TO OUR US FEDERAL COURTS OF APPEAL, AND ROTTING IN AMERICAN PRISONS NATIONWIDE ?????????

**** INNOCENT AMERICANS ARE DENIED REAL HC RIGHTS WITH THEIR FEDERAL APPEALS ! THE AMERICAN PEOPLE ARE $LOWLY FINDING OUT HOW EA$Y IT I$ FOR MIDDLE CLA$$ AND WORKING POOR AMERICAN$ TO FALL VICTIM TO OUR U$ MONETARY JUDICIAL $Y$TEM.

****WHEN THE US INNOCENT WERE ABANDONED BY THE GUILTY **** The prison experts have reported that there are 100,000 innocent Americans currently being falsely imprisoned along with the 2,300,000 total US prison population nationwide.

***WHERE ARE AMERICA'S RELIGIOUS LEADERS ???????
Since our US Congress has never afforded poor prison inmates federal appeal legal counsel for their federal retrials,they have effectively closed the doors on these tens of thousands of innocent citizens ever being capable of possibly exonerating themselves to regain their freedom through being granted new retrials.

This same exact unjust situation was happening in our Southern States when poor and mostly uneducated Black Americans were being falsely imprisoned for endless decades without the needed educational skills to properly submit their own written federal trial appeals.

This devious and deceptive judicial process of making our poor and innocent prison inmates formulate and write their own federal appeal legal cases for possible retrials on their state criminal cases,is still in effect today even though everyone in our US judicial system knows that without proper legal representation, these tens of thousands of innocent prison inmates will be denied their rightful opportunities of ever being granted new trials from our federal appeal judges!!

Sadly, the true US *legal* Federal Appeal situation that occurs when any of our uneducated American prison inmates are forced to attempt to submit their own written Federal Appeals (from our prisons nationwide) without the assistance of proper legal counsel, is that they all are in reality being denied their legitimate rights for Habeas Corpus with our US FEDERAL COURTS and will win any future Supreme Court Case concerning this injustice!

For our judicial system and our US Congressional Leaders Of The Free World to continue to pretend that this is a real and fair opportunity for our American Middle Class and Working Poor Citizens, only delays the very needed future change of Federal Financing of all these Federal appeals becoming a normal formula of Our American judicial system.

It was not so very long ago that Public Defenders became a Reality in this country.Prior that legal reality taking place, their were also some who thought giving anyone charged with a crime a free lawyer was a waste of taxpayers $$.

This FACADE and HORROR of our Federal Appeal proce$$ is not worthy of the Greatest Country In The World! ***GREAT SOCIETIES THAT DO NOT PROTECT EVEN THEIR INNOCENT, BECOME THE GUILTY !

A MUST READ ABOUT AMERICAN INJUSTICE:
1) YAHOO 2) GOOGLE
MANNY GONZALES THE KID THAT EVERYONE FORGOT IN THE CA PRISON SYSTEM. ** A JUDICIAL RIDE OF ONES LIFE !

***Someone please tell our US Congress that the GED degree that Manny Gonzales acquired in prison is not a LAW DEGREE !!!!!!

lawyersforpooramericans@yahoo.com (424-247-2013)

Tuesday, October 21, 2008 1:50:00 PM  
Anonymous DOUGLASFIELD said...

PRESIDENT OBAMA DID NOT CREATE THID JUDICIAL MESS,BUT LETS ALL SEND A PRAYER FOR HIS SUCCESS !!


ISN'T IT A LITTLE ODD THAT WE AS AMERICANS CAN DEMAND JUSTICE AND FAIR TRIALS WITH THE INTERNATIONAL COMMUNITY, AND AT THE SAME TIME WHEN IT COMES FOR US AS THE LEADERS OF THE FREE WORLD TO OFFER NEW AND FAIR TRIALS FOR OUR OWN POSSIBLE INNOCENT AMERICAN CITIZENS IN GEORGIA & PENNSYLVANIA , WE CAN SOMEHOW ACCEPT THE EASIER ROUTE OF ALLOWING TWO POSSIBLE INNOCENT AMERICAN CITIZENS TO BE FALSELY EXECUTED ?

IF OUR CIVILIZED COUNTRY ALLOWS THESE CRIMES AGAINST HUMANITY STATE MURDERS TO TAKE PLACE IN THE NEAR FUTURE, OUR FAIR AND JUST SOCIETY HERE IN AMERICA NOT ONLY LOSES TWO POSSIBLE INNOCENT BLACK AMERICANS, BUT WE ALSO LOSE OUR INNOCENCE AS A PEOPLE WHO ALL KNOW BETTER !!!

OUR IVORY TOWER U.S. CONGRESSIONAL LEADERS OF THE FREE WORLD HAVE HAD PLENTY OF TIME TO CHANGE OUR UNDERFUNDED U.S. JUDICIAL SYSTEM FROM CONTINUING TO BE UNDERFINANCED ! THE DECADES OF NEGLECT AND ABUSE THAT OUR U.S. JUDICIAL SYSTEM CONTINUES TO INFLICT ON POORER AMERICANS ALL ACROSS AMERICA IS NOT ONLY VERY OBVIOUS TO MOST EVERYONE OUTSIDE OF OUR COUNTRY BY NOW ,BUT ALSO TO MILLIONS AND MILLIONS OF SILENT AND HORRIFIED FELLOW AMERICAN CITIZENS WHO FEEL HELPLESS LIVING IN THIS THE WEALTHIEST COUNTRY IN THE WORLD !

FOR OUR CURRENT LEADERS IN OUR U.S. GOVERNMENT TO CONTINUE PRETENDING THAT WE AS AMERICANS ARE A CIVILIZED LOT WHO KNOW AND RESPECT FREEDOM AND JUSTICE FOR ALL AMERICANS, ONLY BRINGS HOME THE SAD REALITY OF WHY WERE WHERE WE ARE IN ALLOWING THESE BARBARIC FUTURE EXECUTIONS OF MR. TROY DAVIS OF GEORGIA AND MUMIA ABU - JAMAL OF PENNSYLVANIA TO EVER TAKE PLACE WITHOUT NEW AND FAIR TRIALS.!

PROPER LEGAL REPRESENTATION FOR ALL MIDDLE CLASS AND WORKING POOR AMERICANS IN OUR U.S. CIVIL,CRIMINAL AND FAMILY COURTS OF LAW IS NOT JUST A POSSIBLE DISTANT FUTURE GOAL FOR OUR COUNTRY TO CONTEMPLATE !

OUR CURRENT AND FUTURE REPUTATION AS AMERICA BEING THE LAND OF GRACE AND EQUALITY IS VERY MUCH AT STAKE SINCE THE INTERNATIONAL WORLD CAN NOW BE INSTANTLY ENLIGHTENED TO THESE SAD TRUTHS IN OUR SOCIETY !

YES OUR COUNTRY CAN AFFORD HEALTH CARE FOR ALL AMERICANS,AND YES OUR COUNTRY CAN EASILY AFFORD PROPER LEGAL REPRESENTATION FOR ALL OUR POORER AMERICANS ! ** THE ONLY THING THAT WE AS AMERICANS CAN NOT AFFORD IS TO KEEP PRETENDING THAT WE ARE SOMETHING THAT THE REST OF THE CIVILIZED WORLD KNOWS WERE NOT **

LAWYERS FOR POOR AMERICANS IS A VOLUNTEER WWW LOBBY THAT FIGHTS FOR EVERY AMERICANS RIGHT TO HAVE PROPER LEGAL REPRESENTATION AFFORDED THEM IN ALL OUR U.S. COURTS OF LAW ! lawyersforpooramericans@yahoo.com 424-247-2013

LAWYERS FOR POOR AMERICANS CAN BE ENTERED INTO ANY WWW SEARCH ENGINE BY OUR NAME OR TELEPHONE NUMBER TO FIND OTHER WRITTEN ARTICLES THAT INTEREST YOU.

Wednesday, May 20, 2009 7:55:00 PM  

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