DOCSLIB.ORG

1:16-Cr-00361 Document #: 113 Filed: 04/25/18 Page 1 of 21 Pageid

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
1:16-Cr-00361 Document #: 113 Filed: 04/25/18 Page 1 of 21 Pageid Case: 1:16-cr-00361 Document #: 113 Filed: 04/25/18 Page 1 of 21 PageID #:<pageID> IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) No. 16 CR 361 V. ) ) Hon. Virginia M. Kendall WILLIAM MIKAITIS, ) ) Defendant. ) MEMORANDUM OPINION AND ORDER On June 2, 2016, a grand jury indicted Defendant William Mikaitis with one count of conspiracy to distribute a controlled substance outside of the usual course of professional practice and without a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1) (Count One), seven counts of distributing a controlled substance outside of the usual course of professional practice and without a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts Two through Eight), and seven counts of dispensing prescription drugs without a valid prescription in violation of 21 U.S.C. §§ 353(b)(1), 331(k) and 333(a)(2) and 18 U.S.C. § 2 (Counts Nine through Fifteen). (Dkt. No. 1). On November 17, 2016, the grand jury returned a superseding indictment adding charges against Mikaitis for conspiracy to conduct financial transactions with drug proceeds to promote unlawful activity in violation of 18 U.S.C. § 1956(h) (Count Sixteen) and engaging in a monetary transaction involving criminally derived property having a value greater than $10,000 in violation of 18 U.S.C. § 1957 (Count Seventeen). (Dkt. No. 38). The case proceeded to a jury trial, and after five days, on September 5, 2017, the jury found Mikaitis guilty of all seventeen counts. (Dkt. No. 85). On October 17, 2017, Mikaitis filed a Motion for Judgment of Acquittal pursuant to 1 Case: 1:16-cr-00361 Document #: 113 Filed: 04/25/18 Page 2 of 21 PageID #:<pageID> Rule 29 or for a New Trial pursuant to Rule 33. (Dkt. No. 95). For the following reasons, Defendant Mikaitis’ Motion [95] is denied. BACKGROUND Defendant William Mikaitis was a physician licensed to practice medicine in the State of Illinois and worked for 33 years as a general practitioner, primarily in the field of family medicine. (Mikaitis Tr. at 8:11-9:1). In October 2012, a drug representative, Angelo Sperando, introduced Mikaitis to co-defendant Michael Jennings. (Mikaitis Tr. at 9:23-10:14). Jennings ran Results Weight Loss Clinic and needed a physician to keep the clinic open because the physician previously working with him had lost his license. (Sperando Tr. at 5:10-18; Mikaitis Tr. at 10:15-17). At that time, Mikaitis was working full-time for Advocate Hospital at a clinic in Lockport, Illinois. (Mikaitis Tr. at 8:15-20). Jennings offered to pay Mikaitis cash to obtain a DEA registration number for the clinic to use and review patient charts, and Mikaitis agreed. (Id. 11:6-12:15). Mikaitis obtained a new DEA registration number specifically for the clinic to use and authorized Jennings to use the DEA registration number and his credit card to place bulk orders of the diet medication phentermine, a controlled substance, for distribution to clinic patients. (Id. at 23:23-24:5, 35:14-36:2). Jennings then reimbursed Mikaitis for the cost of the medication. (Id. at 65:11-21). In two years, Jennings ordered more than 530,000 pills, or 17,000 monthly prescription bottles, of weight loss medication costing more than $84,000 using Mikaitis’ card and registration number. (Id. at 58:18-59:4, 65:11-21). Jennings dispensed the medication to patients at the clinic and sent medication via mail to patients who placed orders over the phone. (Id. at 26:5-15, 61:7- 14). Jennings who had no medical license met with and spoke to patients before 2 Case: 1:16-cr-00361 Document #: 113 Filed: 04/25/18 Page 3 of 21 PageID #:<pageID> dispensing the medication. (Id. at 46:15-25). No licensed professional met with any patient before the medication was provided. Mikaitis visited the clinic once a week to pick up his weekly cash payment of $1,750 and reviewed between four to eight patient charts each week but never saw any patients in person, prepared medical charts for patients, or reviewed charts of other patients receiving medication from the clinic. (Id. at 13:7-20, 24:17-18, 47:17-19). Mikaitis deposited the cash payments into a joint account he shared with a woman with whom he was having an affair, Vesta Valuckaite, and the two used the funds for travel, a down payment on a car, and other expenses. (Id. at 33:15-25, 81:11-82:22, 89:7-12; Valuckaite Tr. at 23:14-17, 33:14-35:12) On January 21, 2015, two DEA agents visited the Results clinic and questioned Jennings and Mikaitis. (Kasza Tr. at 4:11-16; Mikaitis Tr. at 84:1-13). The next day, the DEA agents visited the clinic in Lockport where Mikaitis worked full-time and questioned Mikaitis again. (Kasza Tr. at 19:13-21, 20:23-21:16, 22:5-23:5; Mikaitis Tr. at 87:6-14). Jennings and Mikaitis were indicted in June 2016 and the Court held a jury trial from August 28, 2017 to September 5, 2017. The jury heard from clinic patients, a DEA agent, Valuckaite, Sperando, an expert in bariatric medicine, and Mikaitis himself regarding Jennings’ and Mikaitis’ distribution of phentermine through the Results Weight Loss Clinic. The jury judged the credibility of the witnesses, weighed the evidence and found Mikaitis guilty on all seventeen counts. Mikaitis claims that the jury was wrong and the Government did not meet its burden of proof on any of the charges against him. Mikaitis also challenges one jury instruction and claims the Court erroneously curtailed defense counsel’s closing argument. 3 Case: 1:16-cr-00361 Document #: 113 Filed: 04/25/18 Page 4 of 21 PageID #:<pageID> DISCUSSION Mikaitis argues that the Court should enter a judgment of acquittal pursuant to Rule 29 for each count because the Government failed to meet its burden of proving him guilty beyond a reasonable doubt. Mikaitis moves in the alternative for a new trial pursuant to Rule 33 on two grounds: (1) that the “ostrich” instruction was given to the jury in error and (2) that the Court erroneously limited Mikaitis’ closing argument. (Dkt. No. 95). Mikaitis is not entitled to any of the relief sought. I. Ample Evidence in the Record Supports the Jury’s Verdict A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction against a defendant. See Fed. R. Crim. P. 29. Mikaitis faces “a nearly insurmountable hurdle” in contending that the jury had insufficient evidence to convict him. See United States v. Miller, 782 F.3d 793, 797 (7th Cir. 2015) (citing United States v. Torres-Chavez, 744 F.3d 988, 993 (7th Cir. 2014)). Once convicted, the Court reviews the evidence presented to the jury in the light most favorable to the Government and makes all reasonable inferences in the Government’s favor. See United States v. Cejas, 761 F.3d 717, 726 (7th Cir. 2014) (citing United States v. Larkins, 83 F.3d 162, 165 (7th Cir. 1996)). The Court may overturn the jury’s guilty verdict “only if the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt.” United States v. Jones, 713 F.3d 336, 340 (7th Cir. 2013) (quoting United States v. Stevenson, 680 F.3d 854, 855-56 (7th Cir. 2012)). “If there is a reasonable basis in the record for the verdict, it must stand.” United States v. Moshiri, 858 F.3d 1077, 1082 (7th Cir. 2017) (citing United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000)). The jury must weigh the evidence and assess the witnesses’ credibility, 4 Case: 1:16-cr-00361 Document #: 113 Filed: 04/25/18 Page 5 of 21 PageID #:<pageID> and courts do not “second-guess the jury’s assessment of the evidence.” See United States v. Rollins, 544 F.3d 820, 835 (7th Cir. 2008). Mikaitis argues he is entitled to a judgment of acquittal because the Government failed to prove beyond a reasonable doubt that he had any knowledge that any medication would be distributed to any patient without a legitimate medical purpose and that each count for which he was indicted required that the Government prove such knowledge. Under the theory that each count required the same proof of knowledge, Mikaitis focuses its argument on only the conviction for violating 21 U.S.C. § 841(a)(1) in Count One.1 Title 21 U.S.C. § 841(a)(1) provides that it is “unlawful for any person knowingly or intentionally . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” To convict a physician under Section 841(a)(1), the Government must show “that he prescribed controlled substances (1) ‘outside the course of professional practice’ and (2) without a ‘legitimate medical purpose.’” United States v. Pellmann, 668 F.3d 918, 923 (7th Cir. 2012) (quoting United States v. Bek, 493 F.3d 790, 798 (7th Cir. 20007)); see also United States v. Chube II, 538 F.3d 693, 697 (7th Cir. 2008) (“In order to support a violation of [21 U.S.C. § 841(a)(1)], the jury had to find that the Doctors knowingly and intentionally acted outside the course of professional practice and without a legitimate medical purpose.”) (internal quotation omitted).
Load more

Recommended publications
  • A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems
    Pace University DigitalCommons@Pace Pace Law Faculty Publications School of Law 1-1-1998 Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems Thomas Michael McDonnell Elisabeth Haub School of Law at Pace University Follow this and additional works at: https://digitalcommons.pace.edu/lawfaculty Part of the Legal Education Commons, and the Legal Writing and Research Commons Recommended Citation Thomas Michael McDonnell, Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems, 67 UMKC L. Rev. 285 (1998), http://digitalcommons.pace.edu/lawfaculty/283/. This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems Thomas Michael McDonnell TABLE OF CONTENTS Introduction .................................................. 286 I. The Significance of Audience and of Unpublished and Often Unwritten Law ................................... 290 A. Why Researching the Main Characters in the Lawsuit Matters . 290 i... Researching the Relevant Audiences .................. 296 11. The Audience's Needs or Interests ................... 299 B. Why Discovering Unpublished Rules and Practices Matters .... 301 11. Methods of Researching the Audience and Unpublished Rules and Practices ............................. 303 III. Rhetoric, Problem Solving, and Application to LawTeaching ............................................ 306 A. Creatively Developing Arguments and Strategies ............ 306 B. A Linear Model for Researching the Complete Case .......... 3 1 1 C.
    [Show full text]
  • Pattern Criminal Federal Jury Instructions for the Seventh Circuit
    Pattern Criminal Federal Jury Instructions for the Seventh Circuit The Committee on Federal Criminal Jury Instructions for the Seventh Circuit drafted these proposed pattern jury instructions. The Seventh Circuit Judicial Council, on November 30, 1998, approved these instructions in principle and authorized their publication for use in the Seventh Circuit. The Judicial Council wishes to express its gratitude to the judges and lawyers who have worked so long and hard to make a contribution to our system of criminal justice. TABLE OF CONTENTS INTRODUCTORY INSTRUCTIONS ............................................1 1.01 THE FUNCTIONS OF THE COURT AND THE JURY ........................2 1.02 THE EVIDENCE ..................................................3 1.03 TESTIMONY OF WITNESSES (DECIDING WHAT TO BELIEVE) ......4 1.04 WEIGHING THE EVIDENCE-INFERENCES .........................5 1.05 DEFINITION OF “DIRECT” AND “CIRCUMSTANTIAL” EVIDENCE ...6 1.06 WHAT IS NOT EVIDENCE .........................................7 1.07 ATTORNEY INTERVIEWING WITNESS ............................8 1.08 PARTY OTHER THAN AN INDIVIDUAL ............................9 1.09 NUMBER OF WITNESSES ........................................10 1.10 REMINDER OF VOIR DIRE OBLIGATIONS ........................11 2.01 THE CHARGE - THE INDICTMENT .....................................12 2.02 LESSER INCLUDED OFFENSE ....................................13 2.03 PRESUMPTION OF INNOCENCE - BURDEN OF PROOF .............15 2.04 DEFINITION OF REASONABLE DOUBT ...........................16 2.05
    [Show full text]
  • CRIMINAL NO. 03-852 (MLC) V. : : ATLANTIC ST
    Case 3:03-cr-00852-MLC Document 721 Filed 08/02/07 Page 1 of 271 PageID: <pageID> UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA : : CRIMINAL NO. 03-852 (MLC) v . : : ATLANTIC STATES CAST IRON : MEMORANDUM OPINION PIPE CO., JOHN PRISQUE, : SCOTT FAUBERT, JEFFREY MAURY, : and CRAIG DAVIDSON, : : Defendants. : : Case 3:03-cr-00852-MLC Document 721 Filed 08/02/07 Page 2 of 271 PageID: <pageID> Outline of Opinion PRELIMINARY STATEMENT 1 DISCUSSION I. DEFENDANTS’ POINT I: “THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY REGARDING CRIMINAL NEGLIGENCE AND RECKLESSNESS.” 4 A. Legal standards for jury instructions B. The jury instructions identifying the elements of each charged felony offense 7 C. The jury instructions defining the mens rea requirements of each charged felony offense 13 D. The jury instructions identifying the elements and defining the lesser-included Clean Water Act negligence offense 21 E. The government’s objection to the last identified element of the Clean Water Act and Clean Air Act felony offenses 24 F. Defendants’ objection to refusal of their proposed instructions on recklessness 30 G. Legal analysis for the last identified element of the Clean Water Act and Clean Air Act felony offenses 38 H. Legal analysis for refusal of defendants’ proposed instructions on recklessness 75 II. DEFENDANTS’ POINT II: “PROSECUTORIAL MISCONDUCT.” 89 III. DEFENDANTS’ POINT III: “THE COURT COMMITTED ERRORS WHICH REQUIRE A NEW TRIAL.” 108 i Case 3:03-cr-00852-MLC Document 721 Filed 08/02/07 Page 3 of 271 PageID: <pageID> IV. DEFENDANTS’ POINT IV: “JUDGMENTS OF ACQUITTAL ON COUNT I MUST BE GRANTED BECAUSE OBSTRUCTION OF OSHA IS NOT A VALID OBJECTIVE OF THE CONSPIRACY.” 112 V.
    [Show full text]
  • 1:18-Cr-00036 Document #: 91 Filed: 03/24/19 Page 1 of 12 Pageid #:925
    Case: 1:18-cr-00036 Document #: 91 Filed: 03/24/19 Page 1 of 12 PageID #:925 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA, Case No. 18-CR-36 v. Judge Robert W. Gettleman JITESH THAKKAR, Defendant. JITESH THAKKAR’S EMERGENCY MOTION TO EXCLUDE THE GOVERNMENT’S UNTIMELY PROPOSED OSTRICH INSTRUCTION Jitesh Thakkar moves this Court to bar the government from offering the “ostrich” jury instruction at trial because offering this instruction would deny Jitesh the right to a fair trial. In support thereof, Jitesh states as follow: INTRODUCTION On the eve of trial and months after jury instructions were due, the government proposed giving an ostrich instruction at trial in an effort to circumvent its obligation to prove Jitesh’s knowledge beyond a reasonable doubt. This untimely proposal was not the result of any newly- discovered evidence. Instead, the government changed its entire theory of the case and notified the defense of its intent to seek this instruction on Friday at 8:05 p.m.—just six days before jury selection was set to begin—based on the government’s apparent realization that they don’t have sufficient evidence to prove Jitesh’s knowledge beyond a reasonable doubt. Allowing the government to present this new theory of the case and instruction would deprive Jitesh his fundamental right to a fair trial. During his nearly two hours of secretly recorded interviews with the FBI in 2017, Jitesh consistently explained to the government that he did not know how Sarao would use the computer Case: 1:18-cr-00036 Document #: 91 Filed: 03/24/19 Page 2 of 12 PageID #:926 program Edge Financial created and that traders do not reveal their trading strategies to programmers because those strategies are secret.
    [Show full text]
  • Cumulative Update to Sections 201-213 of the Revised Criminal Code
    Second Draft of Report #35: Cumulative Update to Sections 201-213 of the Revised Criminal Code SUBMITTED FOR ADVISORY GROUP REVIEW May 18, 2019 DISTRICT OF COLUMBIA CRIMINAL CODE REFORM COMMISSION 441 FOURTH STREET, NW, SUITE 1C001 SOUTH WASHINGTON, DC 20001 PHONE: (202) 442-8715 www.ccrc.dc.gov This Draft Report contains recommended reforms to District of Columbia criminal statutes for review by the D.C. Criminal Code Reform Commission’s statutorily designated Advisory Group. A copy of this document and a list of the current Advisory Group members may be viewed on the website of the D.C. Criminal Code Reform Commission at www.ccrc.dc.gov. This Draft Report consists of two parts: (1) draft statutory text for an enacted Title 22 of the D.C. Code; and (2) commentary on the draft statutory text. The commentary explains the meaning of each provision and considers whether existing District law would be changed by the provision. Any Advisory Group member may submit written comments on any aspect of this Draft Report to the D.C. Criminal Code Reform Commission. The Commission will consider all written comments that are timely received from Advisory Group members. Additional versions of this Draft Report may be issued for Advisory Group review, depending on the nature and extent of the Advisory Group’s written comments. The D.C. Criminal Code Reform Commission’s final recommendations to the Council and Mayor for comprehensive criminal code reform will be based on the Advisory Group’s timely written comments and approved by a majority of the Advisory Group’s voting members.
    [Show full text]
  • Section 4: Criminal Law Institute of Bill of Rights Law at the William & Mary Law School
    College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2009 Section 4: Criminal Law Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 4: Criminal Law" (2009). Supreme Court Preview. 203. https://scholarship.law.wm.edu/preview/203 Copyright c 2009 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview V. CRIMINAL In This Section: New Case: 08-876 Black v. United States Synopsis and Questions Presented p. 178 "Conrad Black's Anti-Fraud Case Will Go to Supreme Court" p. 184 David G. Savage "Convictions of Black, 3 Other Execs Upheld" p. 185 Mary Wisniewski "Judges Appear Cool to Black Appeal" p. 186 Susan Chandler "Media Tycoon Begins Term in Federal Prison" p. 187 Stephen Hudak "Unbowed Black Gets 6 1/2 Years" p. 189 David Savage "Dark Day for Lord Black" p. 192 Ameet Sachdev, David Greising and Susan Chandler "Lord Black Is Indicted by U.S." p. 195 Geraldine Fabrikant "DOJ May Rein in Use of 'Honest Services' Statute" p. 198 Lynne Marek New Case: 08-1196 Weyhrauch v. United States Synopsis and Questions Presented p. 201 "Supreme Court Takes Weyhrauch Mail-Fraud Question" p. 207 Erika Bolstad "Court OKs Weyhrauch Evidence" p. 208 Lisa Demer and Richard Mauer "Corruption Trials Divided; Kott's Hearing Continues, but Weyhrauch's Stalls on Federal Appeal" p. 210 Richard Mauer and Lisa Demer 176 "Indictment: Weyhrauch Sought Work with VECO" p.
    [Show full text]
  • Human Trafficking November 2017 in This Issue Volume 65 Number 6
    Human Trafficking November 2017 In This Issue Volume 65 Number 6 Introduction .............................................................................................................. 1 United States Department of Justice By Rod Rosenstein, Deputy Attorney General of the United States Executive Office for United States Attorneys Washington, DC 20530 Human Trafficking: The Fundamentals ................................................................. 3 By Hilary Axam and Jennifer Toritto Leonardo Monty Wilkinson Director The Civil Rights Division’s Human Trafficking Prosecution Unit Contributors’ opinions and statements (HTPU) and the Criminal Division’s Child Exploitation and Obscenity should not be considered an endorsement by EOUSA for any Section (CEOS): An Overview ............................................................................... 17 policy, program, or service. By Hilary Axam and Steven J. Grocki The United States Attorneys’ Bulletin is published pursuant to Proactive Case Identification Strategies and the Challenges of Initiating 28 C.F.R. § 0.22(b). Labor Trafficking Cases ........................................................................................ 25 The United States Attorneys’ Bulletin By Nirav K. Desai and Sean Tepfer is published by the Executive Office for United States Attorneys, Domestic Child Sex Trafficking and Children Missing from Care .................... 33 Office of Legal Education, 1620 Pendleton Street, By Staca Shehan and Angela Aufmuth Columbia, South Carolina 29201 The Survivor-Centered,
    [Show full text]
  • Criminal Law
    CRIMINAL LAW CRIMINAL LAW: CONCEPTS AND PRACTICE FOURTH EDITION By Ellen S. Podgor Gary R. Trombley Family White-Collar Crime Research Professor Professor of Law Stetson University College of Law Peter J. Henning Professor of Law Wayne State University Law School Alfredo Garcia Professor of Law St. Thomas University School of Law Cynthia E. Jones Professor of Law American University Washington College of Law Carolina Academic Press Durham, North Carolina Copyright © 2018 Carolina Academic Press, LLC All Rights Reserved ISBN: 978-1-5310-0767-6 eISBN: 978-1-53100-768-3 LCCN: 2017957749 Carolina Academic Press, LLC 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America Dedicated To: Cheryl L. Segal Alexandra, Grace, and Molly To Cindy, Christina, James, and Catherine In memory of my mother, Ernestine, who continues to inspire me everyday And of course to all of our students. Special Dedication From All of Us To: The late Andrew E. Taslitz PREFACE Crime, and the law related to the prosecution of offenders, is one of the most widely covered and discussed topics in society today. Media coverage is pervasive of both crimes and the prosecutions that result from them, ranging from the innumerable fictional programs devoted to every conceivable aspect of the criminal justice system to YouTube videos showing actual criminal trials. Daily newspapers and local news shows devote substantial coverage to local crimes, while the seemingly endless parade of celebrity run-ins with the law, some as trivial as a traffic ticket while others involving charges of murder, are fodder for breathless coverage in tabloids and weekly magazines.
    [Show full text]
  • 0 UNITED STATES COURT of APPEALS for the FIFTH CIRCUIT UNITED STATES of AMERICA, Plaintiff-Appellee, V. JEFFREY K. SKILLING
    06-20885 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JEFFREY K. SKILLING, Defendant-Appellant. REPLY BRIEF OF DEFENDANT-APPELLANT JEFFREY K. SKILLING On Appeal From The United States District Court For The Southern District Of Texas, Houston Division Crim. No. H-04-25 (Lake, J.) O’MELVENY & MYERS LLP O’MELVENY & MYERS LLP WALTER DELLINGER DANIEL M. PETROCELLI JONATHAN D. HACKER M. RANDALL OPPENHEIMER MEAGHAN MCLAINE MATTHEW T. KLINE 1625 Eye Street, N.W. DAVID J. MARROSO Washington, D.C. 20006 1999 Avenue of the Stars, 7th Floor Los Angeles, California 90067 RONALD G. WOODS Telephone: (310) 553-6700 5300 Memorial, Suite 1000 Facsimile: (310) 246-6779 Houston, Texas 77007 ATTORNEYS FOR DEFENDANT-APPELLANT JEFFREY K. SKILLING 0 Our opening brief detailed how grave errors infected every critical part of the case against Jeffrey Skilling, from the theory of prosecution, to the selection of the venue and jury, to the instructions on the law, and to the evidence presented— and the evidence suppressed. Those errors were born of necessity, for they were the only way the Enron Task Force could secure convictions for what, at worst, were business judgments that, in hindsight, can be seen as mistakes, overly optimistic, or too fraught with risk. No matter how strenuously the Task Force urges, and no matter how defiantly it misstates the record and the law, those errors cannot be masked, justified, or explained away. There is only one just course. Those errors—all of them—must be acknowledged, and the 19 convictions they produced must be reversed.
    [Show full text]
  • Crime Talk, Rights Talk, and Double-Talk: Thoughts on Reading Encyclopedia of Crime and Justice*
    Essay Crime Talk, Rights Talk, and Double-Talk: Thoughts on Reading Encyclopedia of Crime and Justice* Michael E. Tigar** Under the leadership of Professor Sanford H. Kadish, scholars from several disciplines have contributed articles on virtually every aspect of American criminal justice to an impressive four-volume work, the Ency- clopedia of Crime and Justice.' As Justice Shirley S. Abrahamson de- scribed in her review, Professor Kadish has performed a difficult and needed service.2 The Encylopedia should be on the bookshelf of every lawyer interested in the criminal law. I began by thinking to review these books in summary fashion. It is almost impossible to review an encylopedia, even one devoted to a single, multifaceted field such as criminal justice, in any systematic way. As I read through these volumes, however, I became convinced that Professor George Fletcher was right in saying that the Encylopedia is a "window to orthodox thinking" on issues of "criminal law, criminal procedure, and related fields"; 3 hence, one can organize a review around this unifying theme. Fletcher also suggests, and I agree, that it would not be fair to criticize the Encyclopedia's essays for lack of originality, for this is an attempt at synthesis, not innovation.4 I also had thought to note at some length how different this encyclo- pedia is from Diderot's controversial eighteenth-century Encyclop6die. * ENCYCLOPEDIA OF CRIME AND JUSTICE. 4 volumes. Edited by Sanford H. Kadish. New York: The Free Press (Macmillan, Inc.), 1983. Pp. xxxvi, 1790. $300. ** Thomas Watt Gregory Professor of Law, University of Texas School of Law, Austin.
    [Show full text]
  • Chapter 5: Mental States
    Chapter 5: Mental States General Introduction to Mental State Instructions 5.01 Proof of Required Mental State 5.02 Knowingly 5.03 Intentionally 5.04 Motive Explained 5.05 Willfully 5.06 Willful Blindness 5.07 Good Faith Defense 5.08 Recklessly 5.09 Negligently 5.10 Failure to Act (Omissions) 1 General Introduction to Mental State Instructions Federal crimes commonly include the mental states intentionally, knowingly, or willfully, and less commonly recklessly or negligently. Some federal crimes are also strict or absolute liability offenses, without any mental state requirement. These state of mind elements (“mens rea”) have been defined in various ways by Congress and the federal courts. Because of the variety of definitions, other Circuits do not provide model instructions on some or all mental states. This section includes instructions based on the most frequently used definitions of the mental state elements in federal criminal provisions. It also includes instructions on related mental state principles. The purpose is to provide instructions that can be used when the statute defining the crime charged does not state and has not been interpreted as having a different definition of the mental state requirement. When a different meaning has been established by statute or case law, we have included that definition in the instructions for the specific federal crime. See Chapter 6 (Elements of Offenses). No Need To Instruct on Mental States that Do Not Meet the Requirements of the Statute. In United States v. Maury, 695 F. 3d 227 (3d Cir. 2012), the Third Circuit rejected the defendants’ argument that “the trial court's instructions, in defining ‘knowing’ conduct and stating that negligence was not sufficient to convict under the felony [Clean Water Act] counts, ‘failed to define the intermediate mental states between simple negligence and willful or knowing conduct,’ and therefore forced ‘the jury .
    [Show full text]
  • Report on the Investigation of the Diocese of Manchester
    REPORT ON THE INVESTIGATION OF THE DIOCESE OF MANCHESTER March 3, 2003 Peter W. Heed Attorney General N. William Delker Senior Assistant Attorney General James D. Rosenberg Assistant Attorney General Office of the Attorney General 33 Capitol Street Concord, N.H. 03301-6397 (603) 271-3671 OVERVIEW OF INVESTIGATION I. INTRODUCTION This report is the final product of an intense investigation conducted by the New Hampshire Attorney General’s Office (“AGO”) into the manner in which the Roman Catholic Diocese of Manchester (the “Diocese”) handled allegations that priests committed sexual assaults against minors – an investigation that established that the Diocese endangered the welfare of children. The State’s investigation began in February 2002, when the Attorney General’s Office (“AGO”) contacted representatives from the Diocese of Manchester to inquire about the Diocese’s policy and practice regarding allegations of sexual misconduct by clergy. That inquiry was prompted by news reports from Massachusetts regarding the Archdiocese’s practice of reassigning priests after allegations of sexual abuse became known to the Archdiocese. Following the initial inquiry to the Diocese, the investigation into the actions of the Diocese began by gathering records from the Diocese through grand jury subpoenas. The Diocese initially provided redacted records to the AGO, asserting various grounds for withholding or redacting information. The State filed a motion to compel production of complete, unredacted records. In June 2002, the Diocese complied with the grand jury subpoena, following an order by the Hillsborough County Superior Court (Barry, J.) granting the State’s motion to compel and denying the Diocese’s motion to reconsider.
    [Show full text]