Sunday, July 26, 2009

Former state judge Thomas J. Spargo of Albany County is set for a federal criminal trial on Aug. 24 after a jurist upheld attempted bribery and extortion charges against him.

Judge upholds Spargo charges
Federal jurist refuses to dismiss attempted
bribery, extortion case; will two lawyers testify?

By BRENDAN J. LYONS, Senior writer, Times Union
First published: Sunday, July 26, 2009

ALBANY -- A judge has upheld the federal criminal charges against former state Supreme Court Justice Thomas J. Spargo, who was indicted in December on charges of attempted bribery and attempted extortion.

U.S. District Court Judge Gary L. Sharpe ruled from the bench in a pre-trial hearing last week that the indictment was sufficient and the case will move forward to trial.

The criminal case is built on allegations that Spargo, now in private practice, had in 2003 attempted to extort $10,000 for his legal defense fund from attorneys, including Bruce Blatchly, an Ulster County lawyer who had about 12 cases pending before Spargo. The fund was set up to defray Spargo's $140,000 legal bills from a years-long battle with the state Commission on Judicial Conduct.

Spargo, 65, an East Berne attorney, has pleaded not guilty. He is represented by Troy attorney E. Stewart Jones.

The state judicial conduct panel concluded three years ago Spargo attempted to extort money from Blatchly. The panel ruled Spargo be removed from the bench and the Court of Appeals later affirmed the decision.

During last week's pre-trial hearing attorneys for the government and defense addressed whether two attorneys close to Spargo, Sanford Rosenblum and Catherine Doyle, an Albany Surrogate's Court judge, will testify at Spargo's trial.

Rosenblum has invoked his Fifth Amendment right against self-incrimination and declined to cooperate with prosecutors. He did not testify before a grand jury. Spargo's attorneys want Rosenblum to receive immunity from prosecution so that he will testify at trial. He has information that could be ''exculpatory'' to Spargo in the case, they said.

Doyle obtained an attorney after being confronted by FBI agents during the investigation of Spargo and later testified in front of the grand jury that indicted him. She did not invoke a Fifth Amendment right.

Federal prosecutors said Doyle was not a target of their investigation but that they considered her a ''co-conspirator.'' Her role as a witness at a 2003 luncheon where several attorneys were allegedly solicited for Spargo's legal defense fund is at the heart of their interest in Doyle, said M. Kendall Day, a trial attorney with the Justice Department's Public Integrity Section in Washington, D.C.

''Both she and Mr. Rosenblum tell a version of events that is inconsistent with the other evidence,'' Day told the judge. ''What else is she doing at this lunch where they're coming to talk about raising money ...''

Prosecutors believe Doyle's involvement centered on the allegation an attorney solicited for a donation had a case pending before her, according to court records.

Spargo's trial is tentatively set to begin Aug. 24 in U.S. District Court in Albany.

Former New York State Supreme Court Justice Thomas J. Spargo Indicted for Attempted Extortion and Bribery
Dec 10th, 2008, Staff.

A former Supreme Court Justice of the Third Judicial Circuit of the State of New York was charged today with attempted extortion and federal program bribery, Acting Assistant Attorney General Matthew Friedrich of the Criminal Division announced. Thomas J. Spargo, 65 was charged in an indictment returned today by a federal grand jury in the Northern District of New York.

According to the indictment, while Spargo was a state Supreme Court Justice in 2003, he allegedly solicited $10,000 from an Ulster County, N.Y., attorney who had cases pending before the judge. The indictment further charges that Spargo solicited the money by causing the attorney to fear that Spargo would use his official acts and influence to harm the attorney if he was not paid and, conversely, to help the attorney if he was paid.

The case is being prosecuted by Senior Trial Attorney Richard C. Pilger and Trial Attorney M. Kendall Day of the Criminal Division’s Public Integrity Section, headed by William M. Welch II, Chief. The case was investigated by the FBI – Albany Division.

An indictment is merely a charge, and defendants are presumed innocent unless and until proven guilty beyond a reasonable doubt.

Posted in: Background Check.

Tuesday, July 14, 2009

Robert Freeman's 1993 Letter on Open Records For NY Court Administration and Public Administrator

Manhattan Surrogate Court Judge Renee R. Roth (Of Counsel to the lawfirm of McLaughlin and Stern) never had a court reporter or a tape recording of any of her court proceedings...except when I was in the courtroom. I always had a court reporter after I had heart failure in July, 2006, yet no one else ever seems concerned that the proceedings were never documented.

In 1993 an advisory opinion by Robert Freeman, Chair of the Committee on Open Government, was posted on the internet:


One Commerce Plaza May 18, 1993
99 Washington Ave.
Albany, New York 12231
(518) 474-2518
Fax (518) 474-1927

Mr. G. Allen Randolph
Ms. Jere Williamson
Columbia University in the City
of New York
Graduate School of Journalism
Journalism Building
New York, NY 10027

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, except as otherwise indicated.

Dear Mr. Randolph and Ms. Williamson:

As you are aware, I have received your letter of April 2.
In brief, according to your letter and the correspondence attached to it, you requested records from the Office of the New York County Public Administrator but received no response. Due to the failure to respond, you submitted an appeal to the Office of the New York City Corporation Counsel. However, you wrote that "some sectors believe the Public Administrator is a New York City agency", while others "believe it is under the auspices of the State of New York". You have asked where, in my view, an appeal should be filed, and you seek any additional input that I might provide.

In this regard, in an effort to assist you, I have engaged in telephone conversations involving New York City, New York State and Surrogate's Court officials. As you know, Public Administrators are appointed by the Surrogate in their respective counties, and their salaries are paid by New York City (see Surrogate's Court Procedure Act, §§1102, 1108). Further, §1110(1) of the Surrogate's Court Procedure Act states that:

"The City of New York shall be answerable for the faithful execution by the public
administrator of all the duties of his office and for the application by him of all moneys and property received by him and for all moneys and securities and the interest, earnings and dividends actually received by him or which he should have collected or received."

Nevertheless, a representative of the Office of Corporation Counsel expressed the opinion that the Office of Public Administrator is not a City agency, for the City government has no general authority to oversee the operations of the Public Administrator or compel the Public Administrator to carry out his or her duties.

Similarly, it was advised that Corporation Counsel has no jurisdiction over the Public Administrator concerning the implementation of the Freedom of Information Law. Having discussed the matter with an attorney for the Office of Court Administration, it was contended that the Office of Public Administrator is something of a hybrid, and that it is not an extension or an arm of that agency.

Based upon a review of the law and the discussions described earlier, in my opinion, the Office of Public Administrator is not clearly an agency of either New York City or New York State, but rather is sui generis, a unique entity unto itself. Moreover, I believe that it is an "agency" with an independent responsibility to give effect to the Freedom of Information Law.

The Freedom of Information Law applies to agency records, and §86(3) of that statute defines the term "agency" to include:

"any state or municipal department, board, bureau, division, commission, committee,
public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

In turn, §86(1) defines "judiciary" to mean:

"the courts of the state, including any municipal or district court, whether or not of record."

As such, the courts are not subject to the Freedom of Information Law. By means of analogy, however, I point out that it has been held that the Office of Court Administration is an "agency" required to comply with the Freedom of Information Law. The initial decision on the subject, which cited an advisory opinion prepared by this office, included the following discussion of the matter:

"The court must look to the intent of the legislature to determine whether the Office of Court Administration, in the exercise of a purely administrative and personnel function,is to be excluded from the applicable provisions of the Freedom of Information Law. Public Officers Law §84 states in part 'The people's right to know the process of governmental decisionmaking and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.'

"In view of the legislative purpose to promote open government, the court is inclined to construe narrowly any section that would tend to exclude offices of government from the law. Public Officers Law §86 specifically refer to courts when it defines 'Judiciary.' The legislature did not include the administrative arm of the court. The Office of Court Administration does not exercise a judicial function, conduct civil or criminal trials, or determine pre-trial motions. Respondent is not a 'court.'"

It is significant to note that respondent refers to several sections of the Judiciary
Law that regulate access to judicial records and allegedly perform a function similar to that of the Freedom of Information Law. None of the sections specified would address access to the information sought by petitioner pertaining to personnel and salaries exclusively.

"Accordingly, the court rejects respondent's contention that it is in all respects exempt from the provisions of the Freedom of Information Law." [Babigian v. Evans, 427 NYS 2d 688, 689 (1980) aff'd 97 Ad 2d 992 (1983); Quirk v. Evans, 455 NYS 2d 918, 97 Ad 2d 992 (1983)].

Like the Office of Court Administration, which administers the court system and is an agency subject to the Freedom of Information Law, the Office of Public Administrator, as its title suggests, performs administrative functions relative to Surrogates' Courts in New York City. Further, the information sought would not constitute court records or pertain to judicial proceedings; on the contrary, it pertains to records involving administrative functions.

Assuming that the Office of Public Administrator is an agency subject to the Freedom of Information Law, it would be required to carry out its duties in accordance with certain procedural rules and regulations. By way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1) of the Law requires each agency to promulgate rules and regulations consistent with the Law and the Committee's regulations. The initial responsibility to deal with requests is borne by an agency's records access officer, and the Committee's regulations provide direction concerning the designation and duties of a records access officer. Specifically, §1401.2 of the regulations provides in relevant part that:

"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so."

Section 1401.2(b) of the regulations describes the duties of a records access officer, including the duty to coordinate the agency's response to requests.
In addition, §1401.7 of the Committee's regulations provide in part that:

"(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall hear appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.
(b) Denial of access shall be in writing stating the reason therefore and advising the person denied access of his or her right to appeal to the person or body established to hear appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer."

I point out, too, that the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests and appeals. Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:

"any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business
days of the receipt of such appeal fully explain in writing to the person requesting
the record the reasons for further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

In sum, as the head of an agency subject to the Freedom of Information Law, the Public Administrator is in my opinion required to promulgate rules for the procedural implementation of that statute, which would include the designation of a records access officer, as well as an appeals officer. The appeals officer would be the Public Administrator or a person designated to determine appeals by the Public Administrator.

With respect to rights of access, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in section 87(2)(a) through (i) of the Law. The records that you requested involved those reflective of the "identity of any consultant or consultants and vendor or vendors who provided computer consultation services or equipment to the Office of the Public Administrator, County of New York in the years 1989 through 1993." In my opinion, insofar as the records sought are maintained by the Office of Public Administrator and can be found, they would be available. In short, none of the grounds for denial could properly be asserted to withhold the kinds of records that fall within the scope of your request, such as contracts, bills, vouchers, purchase orders and the like.

Moreover, although you may be students or non-residents, those factors are irrelevant to your rights under the Freedom of Information Law as members of the public. When records are available under the Freedom of Information Law, it has been held that they must be made equally available to any person, without regard to status or interest [see M. Farbman & Sons v. New York City Health & Hosps. Corp., 62 NY 2d 75 (1984); Burke v. Yudelson, 51 AD 2d 673 (1976)].

Finally, it is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:

"To be sure, the balance is presumptively struck in favor of disclosure, but in eight
specific, narrowly constructed instances where the governmental agency convincingly
demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and,if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571(1979)]."

In another decision rendered by the Court of Appeals, it was held that:
"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

In the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).

In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to the Public Administrator, as well as others. I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.


Robert J. Freeman
Executive Director

cc: Ethel J. Griffin, Public Adminstrator
Hon. Renee R. Roth, Surrogate
Steven Gulden, Assistant Corporation Counsel
Clarence Orsland, Assistant Corporation Counsel

Nora Anderson (pictured above) was elected to the position vacated by Renee Roth on December 31, 2008 due to age. Ms. Anderson was suspended WITH PAY by the First Department while she is investigated for fraud.

Wednesday, July 8, 2009

Appellate Division, First Dept. Judge Gonzalez is Asked to Shut Down the DDC

Sunday, July 5, 2009
Presiding Justice Gonzalez Asked to Shut Down Manhattan's Corrupt "ethics" Committee
The Presiding Justice of the New York State Supreme Court, Appellate Division, First Department, the Honorable Luis A. Gonzalez, has been asked to shut down the corrupt "ethics" committee in Manhattan...... Here's the letter which will be delivered to the court before noon on Monday, July 6, 2009 (U.S. Express Mail #EW253855700US):

Integrity in the Courts
“Injustice anywhere is a threat to justice everywhere.” (Dr. Martin Luther King, Jr.)

July 4, 2009

The Honorable Luis A. Gonzalez
Presiding Justice, Appellate Division, 1st Dept.
27 Madison Avenue
New York, New York 10010

RE: Call for Immediate Action to Address Systemic Corruption at the Manhattan
Attorney ‘Ethics’ Committee, the Departmental Disciplinary Committee (the “DDC”)

Dear Judge Gonzalez:

Your appointment as Presiding Justice of the Appellate Division, 1st Department, has renewed the promise of hope to the great people of New York and, indeed, the many beyond our borders. Scores of people- attorneys, judges, litigants and just regular people- seek the restoration of a broken faith in their judicial branch of government. You, it is respectfully submitted, Judge Gonzalez, have the sole authority to immediately address the long-practiced and improper actions of the DDC.

We request that you immediately suspend all DDC activity until such time that you have appointed a special panel to fully investigate, and report to you, recommendations for the correction of the gross failings at the DDC, and for new leadership with integrity so the DDC may return to its stated mission.

To be specific, it is requested that you direct the immediate closure of the DDC offices on the 2nd floor at 61 Broadway in Manhattan, and that you direct that the locks be changed-- just like the Presiding Justice of the Appellate Division, 1st Department, did in January of 1989 amid a list of corrupt practices in and about the DDC. (Please see the attached, The Murphy Report, dated January 31, 1989)

Barely one month ago in Albany, on June 8, 2009, New York State Senator John L. Sampson held the first of numerous planned public hearings on the corruption that exists in and about the four statewide Appellate Division attorney ethics oversight committees. The videotaped testimony reveals a startling series of allegations specifically involving the DDC: (a) the existence of dozens of complaints that have been “white-washed”; (b) horrifying acts of retaliation by DDC superiors to chill certain individuals, including respected attorneys; (c) an 80-year-old Holocaust Survivor who had to wait over ten years to see any action on her DDC complaint; (d) a woman who has been ignored and procedurally defrauded by the DDC after her lawyer, who was recorded on tape wanting sex in return for a favorable outcome in court, was found to be one of the “protected” Manhattan attorneys, and who even boasted of his juice with sitting Associate Justices of the 1st Department; (e) the violation of Judiciary Law where non-court personnel- policy committee members- are provided with confidential case material; (f) the mathematical impossibility that attorneys from large law firms are never held accountable by the DDC; and (g) the outrageous presumption by the current DDC leadership that if a complaintant, or complaining family member, is incarcerated or a member of a minority, then any complaint to the DDC is automatically void of sufficient grounds for any legitimate disciplinary inquiry.

We invite you to review Senator Sampson’s June 8th hearing. In a Google search, enter “Corrupt Courts” – click:; and view Part 1 and Part 2 in the upper right corner.

The evidence is clear: the DDC is corrupt. The growing outcry, volume of lawsuits and complaints from every corner of this state represents the serious condition of wholesale corruption and lawlessness by those charged with “ethics oversight.” The time for action is now, and the most capable person is you. We respectfully request that you take immediate, and public, action.

Our two-year-long research has revealed a troubling state court “ethics” oversight structure that is itself corrupt. We have documented dozens of examples where the law, attorneys, litigants, state employees and, in fact, judges have been targeted for annihilation simply because of a political whim or the vengeful, misguided desires of a few. Conversely, we have evidence of many outrageous and criminal acts by certain individuals within and about the state court system that have been substantively ignored for no other reason than their favored position or political affiliation.

We also ask that you publicly support the New York State Senate hearings as started on June 8th.

True “ethics oversight” must be restored, and the current system of destruction and cover-up must end. We are confident that future generations will echo our gratitude of your restoration of our faith in our government and in our system of law.

Very truly yours,

Frank N. Brady
Integrity in the Courts
347-632-9775 (tel)
Posted by Corrupt Courts Administrator at 11:16 PM
retired ad1 CO said...
To be sure, Judge Gonzalez inherited a mess. Only recently has he been made aware of how dirty the DDC has become. I bet he does something- he's a good guy, I hear. And that Murphy Report- wow. I never knew the DDC had a history of chaos and dirty dealing.

July 6, 2009 8:37 AM
I'll be PRAYING said...
Wow..I'm speechless after reading that letter to Judge Luis A. Gonzalez..I sure hope he does the right thing and shuts the DDC down..He'll be my HERO for life!!!

July 6, 2009 9:06 AM
Anonymous said...
Does anyone have the telephone number for Judge Gonzalez?
I want to call and let them know that I support his closure of unethical so-called ethics committee that is run by a bunch of dirty people.

July 6, 2009 9:09 AM
Anonymous said...
I hope we're going to be dancing in the streets real soon. Wow, would I love to see each and every one of these bums walking out of 61 Broadway with handcuffs on..Smile for the Camera's!!!

July 6, 2009 9:10 AM
Waiting Patiently said...
I can't wait to see the response I get from Judge Gonzales, regarding my letter I sent to him last week. I wonder what's going to happen next!!!

July 6, 2009 9:17 AM
Anonymous said...
Should we hold our breaths for this to happen?

July 6, 2009 9:17 AM
i'm praying also said...
Please remember that not everyone who works at the DDC is corrupt. There are some good, honest people that work there. Unfortunately, the good people are under the rule of Cohen and Friedberg-- two of the most dishonest attorneys in New York State. My daughter works at the DDC, and she's not a lawyer. She prays everyday that someone of authority would ask her what is really going on in their office. Maybe that person is Judge Gonzalez. I hope so.
So please, please remember that not every employee at the DDC is a bad person.

July 6, 2009 9:21 AM
Randy from Manhattan said...
If PJ Murphy had the balls to shut down a corrupt DDC ethics oversight committee 20 years ago, Gonzalez should do the same because there is a lot more at stake these days. Aren't the lawyers and their ethics behind the financial disaster we're all
now living?

July 6, 2009 9:25 AM
Abe Lincoln said...
"America will never be destroyed from the outside.
If we falter and lose our freedoms, it will be because we destroyed ourselves."
-- Abraham Lincoln
(1809-1865) 16th US President

July 6, 2009 9:33 AM
Anonymous said...
I just called to speak to Judge Gonzalez, to voice my support of closing the DDC cesspool.
THE PHONE NUMBER IS 212-340-0400
(Whatever you do, don't talk to the clerk John McConnell-- he's one of the whitewashing hacks)
Just ask to be switched to Judge Gonzalez's chambers. They're nice people there.

July 6, 2009 9:36 AM
Anonymous said...
I am stunned. I just watched the first video of Senator Sampson's hearing on June 8. The actions discussed are criminal !
Now that Judge Gonzalez has been made formally aware of CRIMINAL activity at the DDC, he MUST take immediate action. I agree: CHANGE THE LOCKS.

July 6, 2009 9:46 AM
Eliot Bernstein Iviewit Patentgate said...
Hey, what about Iviewit and stolen patents and fraud on the US Patent Office and related to Anderson and Trillion Dollar federal case and Steven C. Krane caught violating public office and Judith Kaye's husband involved with the firm Proskauer who has stolen their client Eliot Bernstein's technologies and who Anderson points to in her Original Complaint, etc? Oh yeah, Gonzalez has been sued in the Iviewit case and I wonder if he has conflicts?
Speaking of conflicts and somebody doing something to clean scum of NY out of Courts and Public Offices, let's also have Gonzalez deal with the growing systemic buddy buddy of the NYAG with the First Dept and Proskauer's control over both agencies that got everyone in these federal messes and lawsuits with massive Trillion + Dollar liabilities to the State of New York. For a sampling of how the First Dept crimes go unregulated by the NYAG Public Integrity try this linkage of letter to Steven Michael Cohen, Counselor and Chief of Staff for Andrew Cuomo @ New York Office of the Attorney General

July 6, 2009 10:19 AM
Anonymous said...
Wasn't Judge Gonzalez appointed by the troublemakers? Let us all see if he is a baby listening only to the other kids in his classroom or if his an adult paying caution to the public.

July 6, 2009 10:20 AM
Mad Inventor said...
A small suggestion to the oversight of the blog. While attempting to expose bad things to public officials, many webs now use form letters to officials that can be e'd to them and copied to the sender for follow up. A great sample for copying would be
Letters can be modified to fit each story by the sender and the blog can also use it's data to keep pressure on the handling of the letters and complaints.
Best ~ The guy who changed the Internet from text based to rich media.

July 6, 2009 10:25 AM
Mad Inventor said...
ok the blog cannot handle the linkage in one shot (work on that webdude) so i broke in2

July 6, 2009 10:28 AM
Anonymous said...
Judge Gonzalez needs to interview each and every employee at the DDC. After he picks himself up off the floor from the shock of what's going on there, he'll change the locks.
And in fairness, the poor people that have had to put up with the corrupt DDC bosses should be given a break- they deserve to get the summer off with full pay. Cohen and Friedberg should just be put behind bars, for safe keeping. Maybe in the same cell.
Yes, folks, what Cohen and Friedberg are doing is criminal. No other way to describe it.

July 6, 2009 11:24 AM
Anonymous said...
Shouldn't the federal government be involved in this? You look a Madoff's and Drier's lawyers and you really have to wonder if there has ever been any oversight of meaning over lawyers.

July 6, 2009 12:12 PM
Anonymous said...
Where is Saint Andrew, Patron Saint of crooked lawyers and judges. Think of his agony: who should he help the people or the crooked lawyers?

July 6, 2009 1:17 PM
Anonymous said...
Cuomo has already chosen...he represents the corrupt NY state judicial system and their rogue and abusive attys in affiliation. He and his AG'S office are well aware that OCA and said attys's are lying and doing so under oath....but they apparently view their job and the law that they must uphold this manner...if you learn your client is a criminal and lying under oath ...go with it and gather their lies while pretending you are overwhelmed with work from their state mandated understaffing...and then just delusionally accept that you are busily unaware.

I know...I am dealing with this situation at the moment and there is no way this AG is not in any way clueless.... as he has heard OCA employees describe horror stories about upstate courthouses. Still Cuomo's office does not force even one settlement talk, but continues to pursue the stale and empty lies OCA brought about 4 1/2 yrs ago... as they pretend the truth will evade the public even with documents now in evidence!

Never going to happen OCA and matter what FEDERAL COURT determines...the facts are with me and they will be printed with proof, as your case will be revealed as the setup it always was.

Foget Cuomo and any state agency coming to rescue the NY judicial system...they are connected in blood and money and salvation is not their goal...cover-ups and continuations are the standard....and the only processes in motion.

July 6, 2009 3:04 PM
P. Stephen Lamont, CEO - Iviewit Technologies, Inc. said...
The situation in New York will never right itself absent Federal intervention.

July 6, 2009 4:34 PM
Galison said...
To "I'm Praying also",

I agree that there are some "good people" at the DDC, but that characterization must be qualified.

Really good people would be collecting evidence: scanning papers and wiring themselves for recording- constructing the most lock tight case in history against the DDC and their clients.

Anything less than that is only "good" in the same sense as the "good" functionaries that work for mafia bosses or dictators.

If you know some of these good people, advise them to collect evidence. It may take some years off their sentences down the line.

July 6, 2009 10:49 PM
galison said...
Don't put Friedberg and Cohen in the same cell. They might breed.

July 6, 2009 10:50 PM
OH NO!!!!! said...
Hey, wait a minute..I just got done reading the Murphy Report..Michael Gentile, Esq. was the Chief Counsel of the DDC when it was shut down back in 1989. Oh No, that's the same Michael Gentile of Gentile & Godosky..Richard Godosky's the guy who's representing Allen H. Isaac, Esq. regarding my grievance complaint at the DDC. (2005.3074). Someone once told me that Godosky is a force never to be reckoned with!!!!!!

Sunday, July 5, 2009

U.S. Supreme Court Will Set Precedence With a Review of "Honest Services"

Supreme Court To Review 'Honest Services'
By Audrey Strauss, NY Law Journal, july 02, 2009

After a highly-publicized, four-month trial in federal court in Chicago, Conrad Black and his codefendants were acquitted of almost all charges that they had looted Hollinger International Inc. (of which Black had been CEO). However, they were convicted of three counts of mail fraud related to payments they had received under non-compete agreements (and Black alone was convicted of one count of obstruction of justice) (see also wikipedia "obstruction of justice"- Editor) .1 The three mail fraud counts on which Black stands convicted were based on 18 U.S.C. §§1341 and 1346. The latter section supplemented the mail fraud statute in 1988 by defining a scheme to defraud to include depriving another of "the intangible right of honest services." Although Black's conviction on these three counts was affirmed by the Seventh Circuit in a decision written by Judge Richard Posner, (pictured at left) on May 18, the Supreme Court granted the petition for certiorari by Black and two of his co-defendants to review the application of the "honest services" statute in their case.2

The Supreme Court's decision next term in the Black case will be one of the most significant white-collar crime rulings in recent memory. The lower federal courts have struggled with the meaning of "the intangible right of honest services" since §1346 was enacted in 1988. Given the elasticity of the words and the lack of any previously established legal definition for the terms, the government has used this opening to expand federal prosecutions for mail and wire fraud to breaches of fiduciary duty committed by corporate officers and employees. The Seventh Circuit upheld Black's conviction where the jury was allowed to convict for a failure to disclose to company directors that corporate payments had been structured to achieve a personal tax benefit—even though the benefit imposed no cost or injury on the company.

This article will briefly review the background of the enactment of the "honest services" provision; the Black prosecution; the split in the Circuits on the definition of the "honest services" provision; and the outlook for the Supreme Court's review of the issue.

A Response to the 'McNally' Decision

Well before the enactment of §1346, the mail and wire fraud statutes had offered federal prosecutors an oversized net within which to snag a wide range of criminal conduct.3 By the 1980's, the mail fraud statute was being used, among many other things, to prosecute corrupt state and local officials.4 This line of mail fraud prosecutions required an adjustment of the concept of "money and property" under the statute's language. Typically, a corrupt state judge who has taken bribes from a litigant would not have caused any provable "money and property" loss to the taxpayer. In the face of the language of the mail fraud statute­—which, by its terms, protects against schemes for obtaining "money and property" by false promises or representations—prosecutors nonetheless won judicial approval for the theory taxpayers had an intangible right, protected by the mail fraud statute, to have the judge perform his official duties honestly.5

In 1987, in McNally v. United States, 483 U.S. 350, the Supreme Court tried to call a halt to this expansion of the mail fraud statute by holding, 7-2, that the statute was limited to frauds directed at "property rights" and could not be stretched to cover intangible rights such as the public's right to honest government. In McNally, the conspirators had agreed to cause the Kentucky state government to purchase its insurance coverage through a particular agency in return for kickbacks paid out of the commissions that agency received from the insurers. The jury was instructed that it could convict without proof that the scheme had led the state to pay more for insurance coverage. The Court reversed the convictions as outside the scope of the mail fraud statute, saying "If Congress desires to go further, it must speak more clearly than it has." Id. at 360.

Soon thereafter, Congress responded to the challenge by enacting §1346.6 This provision was a late insertion in a larger piece of omnibus legislation and the legislative history is very scanty.7 While the legislative history demonstrated that Congress was responding to McNally, it was unclear whether Congress was seeking only to overturn McNally or attempting to broaden the statute even further.

Prosecutors, on the other hand, saw an opportunity and seized it, rapidly expanding prosecutions under the "honest services" provision beyond public-corruption cases, such as McNally, to the private business context. The McNally majority opinion contained no discussion of the application of the honest-services doctrine to private-sector activity, although Justice Stevens' dissent cited some cases from lower courts in which the doctrine had been so applied. Nor did the sparse legislative history of §1346 contain any indication that Congress had considered how the statute should apply to the private sector.8

The Black Prosecution

The central figure in the case now before the Supreme Court is Conrad Black, famous long before the Hollinger matter made headlines. Among other things, he was an old-style press baron who built a worldwide media empire that included the Chicago Sun-Times and the (London) Daily Telegraph; a member of the U.K. House of Lords; and a biographer of Franklin Roosevelt and Richard Nixon. While serving as CEO of Hollinger, a public company, Black also owned a majority stake in a private company which effectively held the controlling interest in Hollinger through various intermediate holding companies. In 2003, Hollinger's independent directors formed a special committee that hired former SEC Chairman Richard Breeden to conduct an investigation, resulting in a 500-plus-page report concluding that Black had presided over a "kleptocracy" and had with various associates wrongfully diverted approximately $400 million in corporate assets for personal benefit. Black was ultimately ousted from control after a trial in the Delaware Chancery Court which resulted in a 70-page opinion from Vice Chancellor Strine finding him to have breached his fiduciary duties.9

In 2005, Black and several other former Hollinger officers were indicted in the Northern District of Illinois. As noted above, however, the defendants were acquitted at trial of all significant charges that they had looted Hollinger. The mail fraud counts on which they were convicted were primarily based on non-compete agreements. For example, one of the agreements at issue involved a payment of $5.5 million to Black and others to refrain from competing with a company that at the time operated a single small weekly paper. The government's theory was that the amount paid was so disproportionate to the value of excluding competition from the relevant market that the agreement was a sham. The defense contended that the money was owed to Black and the others as legitimate management fees but that the payments had been recharacterized as having been made under a non-compete agreement as a lawful way to give the individuals favorable treatment under Canadian tax law.

The jury was charged that they could convict either on a traditional fraud theory (namely, that the defendants had obtained these payments by fraud via a sham transaction) or on an honest services theory (namely, that even if the company would otherwise have paid the defendants the same money as management fees, the defendants deprived the company of its "intangible right" to their "honest services" by failing to disclose that they would reap a personal tax benefit by recharacterizing the transaction).10 In affirming the convictions, Judge Posner's opinion focused largely on the sufficiency of evidence to sustain a conviction on the traditional fraud theory. The key claim before the Supreme Court, however, is that there can be no certainty that the jury in fact convicted on that theory and that the instructions on the alternative honest services theory were fatally flawed.11

A Circuit Split

New York white collar practitioners will recall the Second Circuit's en banc decision in United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003), which grappled extensively with the "honest services" provision of §1346. The majority of the en banc Court (which included Judge Sotomayor) rejected a claim that the statute was unconstitutionally void for vagueness.12 Not finding a sufficiently precise meaning of the words "the intangible right of honest services" by consulting dictionaries and similar resources, the majority concluded that Congress had intended to revive the pre-McNally cases in various circuits, and that the content of those precedents could give the provision a sufficiently definite content to avoid constitutional infirmity. After surveying pre-McNally law in detail and trying to harmonize the precedents to determine a consensus position, the majority concluded (id. at 147) that, in the private sector context, §1346 criminalized use of the mails or wires "to enable an officer or employee of a private entity…purporting to act for and in the interests of his or her employer…secretly to act in his or her…own interests instead, accompanied by a material misrepresentation made or omission of information disclosed to the employer…." The majority additionally noted that "in self-dealing cases, unlike bribery or kickback cases, there may also be a requirement of proof that the conflict caused, or at least was capable of causing, some detriment" to the employer.

By contrast, the Second Circuit dissenters (in an opinion written by Judge Jacobs and joined by Judges Walker, Cabranes and Parker) refuted the majority's effort to find a sufficiently precise meaning for the statutory language in the pre-McNally case law, noting that the majority's resulting formulation was only applicable to one of several different recurrent categories of cases. Accordingly, the dissenters concluded that the statutory language was unconstitutionally vague because it had "no settled meaning" that was "capable of providing constitutionally adequate notice" of exactly what conduct was proscribed. Since the dissenters found it impossible to read principled limitations into the "honest services" provision, they concluded that the statute was unconstitutional on its face. Judge Jacobs also highlighted concerns about the statute's vague language providing no constraints on prosecutorial discretion and permitting federal prosecution in areas traditionally governed by state law. The dissent pointed out that numerous courts had grappled with the issues presented by the statute but failed to converge on a single answer to the key issues the statute presented, such as what mens rea was required; whether tangible harm needed to be proven; what duty had to be breached; the source of the duty; and what body of law applied. The dissent concluded that it was inappropriate for the judiciary to attempt to salvage the statute by reading additional requirements into it to cure its vagueness, because that would draw the judiciary into the long-condemned process of creating common-law federal crimes.

While constitutional challenges have not succeeded in any other circuits, those courts have taken a number of different positions on what the statute means. Some have taken the view that although "honest services" may be an "intangible right," its deprivation must involve, or at least threaten, tangible harm in order to constitute a federal crime. For example, the D.C. Circuit has held that "[a]bsent reasonably foreseeable economic harm, proof that the employer simply suffered only the loss of the loyalty and fidelity of the [defendant employee] is insufficient to convict."13 The First Circuit has required evidence that the defendant knew or contemplated that the conduct "pose[d] an independent business risk" or "reasonably foreseeable economic harm" to the employer.14 At least four other circuits (Fourth, Sixth, Eighth, and Eleventh) have taken a similar approach.

By contrast, the Fifth Circuit has held that while there must be evidence of "some detriment" to a private employer, the non-disclosure to the employer of material information the employee had a duty to disclose is itself a sufficient "detriment," without any need to link the non-disclosure to a risk of tangible harm.15

The Seventh Circuit in the Black case focused on the "personal gain" to the employee from the failure to disclose, without any consideration of whether that gain came at the employer's expense or otherwise caused tangible harm to the employer.

Outlook in the Supreme Court

To put the granting of Black's petition in context, it is helpful to know that a few months prior to the grant of certiorari, the Supreme Court denied certiorari in another Seventh Circuit case, Sorich v. United States, over a vigorous dissent from Justice Scalia, who called for the Court to "squarely confront both the meaning and the constitutionality of §1346."16 Justice Scalia noted that the statute has been "invoked to impose criminal penalties upon a staggeringly broad swath of behavior" and could, if construed broadly, criminalize as wire fraud the dishonesty incident to "a salaried employee's phoning in sick to go to a ball game." Absent a "coherent limiting principle," he went on, the "expansive" language of the statute "invites abuse by headline-grabbing prosecutors," but the search for such a principle has required judicial craftsmanship, and courts have not agreed as to how to proceed. Significantly, Justice Scalia quoted from Judge Jacobs' en banc dissent in Rybicki that would have held the statute unconstitutional on its face, and suggested that it "is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail."

One development to watch for will be to what extent Justice Scalia attempts to use the Black case to consider whether the "honest services" statute is unconstitutionally vague. Although the Black cert petition was narrowly drafted to attack the jury charge on "honest services," Justice Scalia's interest in the constitutional issue may create an opportunity for a broader challenge to the statute.

At the very least, the Black case will finally tell us after 20 years what the Court thinks of the congressional response to the challenge set out in McNally to "speak more clearly."17 The Court will need to consider whether there is a definition of "the intangible right of honest services" that proves workable as a criminal statute without simply creating a common law crime. Does the term "honest services" have a logical stopping point? Does the statute provide due process notice of what conduct is illegal? Is "honest services" the same as state law fiduciary duties—that vary from state to state? Could Congress possibly have intended the statute to incorporate state law fiduciary duties? We await the answers to these questions and perhaps to the question of whether the statute has been unconstitutionally vague for 20 years.

Audrey Strauss is a member of Fried, Frank, Harris, Shriver & Jacobson. Her colleagues John W. Brewer and Nowles Heinrich assisted in the preparation of this article.


1. The case is now pending as No. 08-876 in the U.S. Supreme Court, where certiorari was granted on May 18, 2009. The validity of Black's conviction on the obstruction count is not before the Supreme Court as such. However, the cert. petition argued that if the fraud convictions were to be reversed the obstruction conviction should be vacated due to prejudicial spillover and other issues. Three codefendants also were convicted of mail fraud on counts relating to the same underlying transactions (one of whom was subsequently acquitted of one of those counts following post-verdict motions). Two of the three co-defendants joined in the cert petition, and their convictions are also now before the Supreme Court. This article will sometimes focus on Black as an individual for ease of exposition.

2. Certiorari was also granted on the separate issue of whether the defendants' objection to particular instructions was waived by their failure to agree to a special form of verdict proposed by the government. The resolution of this issue may be significant for federal criminal practice generally, but will not be discussed in the present article.

3. In a classic article, now-Judge Jed Rakoff analogized the mail fraud statute in the hands of a federal prosecutor investigating a white-collar offense to a "Stradivarius…Colt 45…Louisville Slugger…[and/or] Cuisinart." "The Federal Mail Fraud Statute (Part 1)," 18 Duquesne L. Rev. 771 (1980).

4. United States v. Holzer, 816 F.2d 304 (7th Cir. 1987); United States v. Brown, 540 F.2d 364 (8th Cir. 1976); United States v. Bush, 522 F.2d 641 (7th Cir. 1975).

5. See Holzer, 816 F.2d at 308.

6. The section reads in its entirety: "For the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."

7. The legislative history is discussed at length in the dissenting en banc opinion in United States v. Brumley, 116 F.3d 728, 742-749 (5th Cir. 1997).

8. Significantly, however, on June 29, the Supreme Court agreed to review another "honest services" case in which the defendant was a state legislator rather than private businessman. Weyhrauch v. United States, No. 08-1196. The question on which certiorari was granted is "Whether, to convict a state official for depriving the public of its right to the defendant's honest services through the non-disclosure of material information…the government must prove that the defendant violated a disclosure duty imposed by state law."

Whether in the public-sector or private-sector context, the pre-McNally case law was in any event not a unified and coherent whole with a single consistent definition of "honest services" that Congress might have meant to codify in section 1346. Brumley, 116 F.3d at 733. Thus, to the extent the statute was simply intended to revive the earlier precedents the lower courts rejected in McNally, it provided no direct guidance as to how to resolve conflicts among those precedents.

9. Hollinger Int'l Inc. v. Black, 844 A.2d 1022 (Del. Ch. 2004), aff'd, 872 A.2d 559 (Del. 2005).

10. Even on the traditional fraud theory, however, it is worth noting that the amounts in question were only a tiny fraction of the hundreds of millions of dollars in misappropriation claimed by the Breeden report.

11. The Seventh Circuit also held that the defendants had waived their challenge to the instruction on the alternative "honest services" theory. As noted above, the validity of that waiver holding, although not discussed in this article, is also before the Supreme Court.

12. The constitutional challenge in Rybicki was limited to a "plain error" review because it had not been raised before the district court. The constitutional issues were presented at length to the Second Circuit in an amicus brief filed by the New York Council of Defense Lawyers. One of the authors of that brief, Richard Greenberg, now represents one of Black's co-defendants before the Supreme Court.

13. United States v. Sun-Diamond Growers, 138 F.3d 961, 973 (D.C. Cir. 1998) (internal quotation and citation omitted).

14. United States v. Martin, 228 F.3d 1, 17-18 (1st Cir. 2000) (internal quotations omitted).

15. United States v. Brown, 459 F.3d 509, 519 (5th Cir. 2006).

16. Sorich v. United States, 129 S. Ct. 1308 (2009) (Scalia, J., dissenting from denial of certiorari).

17. Congress is also currently considering a proposed "Public Corruption Prosecution Improvements Act," S. 49, co-sponsored by Senator Leahy (Chair of the Judiciary Committee), which would among other things further expand the reach of the mail fraud statute.

DOJ may rein in use of 'honest services' statute
Lynne Marek, NYJL, June 15, 2009

A key weapon in the arsenal of U.S. Attorney Patrick Fitzgerald (pictured at left) and his prosecutors in Chicago has been a section of the federal anti-fraud statute that makes it a crime to deprive citizens or corporate shareholders of "honest services."

It's been used to convict dozens of state and local government officials, as well as newspaper magnate Conrad Black and former Gov. George Ryan of Illinois (pictured at left). Fitzgerald cited the honest services in the April indictment of another ex-Illinois governor, Rod Blagojevich.

But the U.S. Supreme Court's May decision to review Black's 2007 conviction may put the brakes on the honest services provision. The U.S. Department of Justice is likely to rein in use of the provision, 18 U.S.C. 1346, until the high court rules on Black's appeal next term, former federal prosecutors say. "Anytime that there's a high-profile review of a conviction, the department tends to just stop in its tracks, and this is a very high-profile review," said Matt Orwig, a partner and criminal defense attorney in the Dallas office of Sonnenschein Nath & Rosenthal and former U.S. attorney for the Eastern District of Texas. "There's going to have to be some very careful analysis of how they've approached these cases in the past."

Using the honest services section of the fraud statute allows prosecutors to charge defendants with robbing a general group of people, such as shareholders of a public company or residents of a state or city, of the honest fiduciary duties or government services they are due. It's typically used to shore up other fraud counts, but increasingly has been used as a primary count as well.

Orwig, who didn't recall using the charge when he was a U.S. attorney, said he thinks the section has been "over-used." It was the lead charge lodged by U.S. attorney offices against 79 suspects in fiscal year 2007, up from 63 in 2005 and 28 in 2000. (The Justice Department doesn't consistently track it as a secondary charge.)


Fitzgerald, the special counsel who won a conviction against vice presidential aide I. Lewis Libby Jr., so far is bucking the usual turnover for U.S. attorneys and is extending his eight-year stint in Chicago from the Republican Bush administration into the Democratic Obama administration.

Former federal prosecutors-turned-criminal defense lawyers in the Northern District of Illinois said they believe Fitzger­ald's office has been among the most aggressive in using the honest services charge. Although statistics show that his office used the law only twice in fiscal year 2007 as a lead charge, the office has often used the statute as a secondary allegation in cases targeting Illinois and Chicago officials for political corruption.

"The Northern District has argued for an aggressive interpretation of this statute on many occasions," said Robert Kent, a partner in the Chicago office of Baker & McKenzie who was formerly chief of the complex fraud section in the U.S. attorney's office there.

The office has met with success, posting an overall conviction rate for fiscal year 2008 of 96%, compared to the national rate of 92%. Randall Samborn, a spokesman for the office, declined to comment on use of the charge or the Black case.

The criminal defense lawyers said the Supreme Court is likely to focus on the second question presented by the Black petitioners: whether the law "applies to the conduct of a private individual whose alleged 'scheme to defraud' did not contemplate economic or other property harm to the private party to whom honest services were owed."

Black's Supreme Court counsel, Miguel Estrada of the Washington office of Gibson, Dunn & Crutcher, didn't return calls seeking comment, but argued in the petition that the "vagueness" of Section 1346 and differing appellate courts' interpretation of the law call out for Supreme Court clarification.

Solicitor General Elena Kagan contends in response that the law is clear: The government need not show that a defendant intended to deprive a victim of property or money, and the appellate courts differ only slightly in determining whether a given honest services fraud is "material."

The court's decision to grant certiorari in the Black case led to a release from prison of one of Black's three co-defendants, John Boultbee, and Black may resubmit a request for release in the Northern District of Illinois after Justice John Paul Stevens denied his request for release on bail on June 11.

The defendants argue that the Supreme Court may very well overturn their three mail fraud convictions. Black's counsel contends that he would then have to be retried on the only other outstanding charge against him, an obstruction of justice charge, because of the "highly inflammatory evidence" presented in support of the fraud counts.

In the case, prosecutors charged Black and his fellow executives from Hollinger International Inc., publisher of the Chicago Sun-Times and other newspapers, with fraud for pocketing money from bogus noncompete agreements drawn up when the company was selling off its smaller newspapers in the 1990s. Prosecutors argued that millions of dollars should have gone to shareholders of the company. Black was convicted by a jury on four of the 13 counts against him.

U.S. attorney's offices will pursue "honest services" infractions much more carefully while Black's case is pending before the high court to avoid having cases overturned in the future, the criminal defense lawyers said. Prosecutors are more likely to use it to shore up other charges or avoid it altogether, they said. "It's likely to mean that prosecutors will only use it in the circumstances that every court agrees it would work — that way they'll have some level of confidence no matter what happens," Kent said. "At this point, it would be risky to do anything else."

Still, in cases such as the one against Blagojevich, which includes a host of other criminal charges, anticipation of the Supreme Court's decision on Black is unlikely to make a difference, the lawyers said.

Justice Antonin Scalia in February dissented when the Supreme Court declined to grant certiorari in another honest services conviction case against a top aide to Chicago Mayor Richard Daley, also prosecuted by Fitzgerald's office. In his dissent, he said that not taking the case allowed "the current chaos" in application of the statute to prevail. Now it seems Scalia has managed to win over three additional justices on the honest services issue with respect to the Black case.

"They need some sharper definition," said Mark Rotert, a Chicago criminal defense attorney at Stetler & Duffy and a former federal prosecutor who was once chief of the major crimes division in Chicago's U.S. attorney's office. "There are some real questions about...the appropriate reach of the criminal statute."

Scalia in his dissent regarding the case of Daley aide Robert Sorich said that the circuits are clearly divided on how to interpret the honest services section. The U.S. Court of Appeals for the 5th Circuit has held that the statute criminalizes only the unlawful deprivation of services, though other courts have disagreed with that, he stated. The 7th Circuit has read the statute to prohibit the abuse of a post for private gain, while some circuits don't see such a gain as part of the crime, he said.

"Without some coherent limiting principle to define what the 'intangible right of honest services' is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct," Scalia wrote.

At the core of the issue is the notion that would-be defendants have a right of due process that provides clarity in the laws that they are expected to obey, said criminal defense attorneys.

This isn't the first time that the Court has wrestled with the statute. In its 1987 ruling in McNally v. U.S. , the Supreme Court dismissed prosecutors' and courts' widely held view that the mail fraud statute could be used to fight public corruption and misconduct on the basis that citizens had an 'intangible right' to good government. Congress the following year enacted the honest services section to revive the practice of prosecuting under that right.

"The confusion arises in part from the fact that the law appears to apply differently to public officials and private individuals," said John Cline, a partner in Jones Day's San Francisco office who represented Sorich in his appeal. "It will be interesting to see if the Supreme Court tries to develop a unified standard for the two types of cases."

Some attorneys expect the high court to rule narrowly on the application of the law to private individuals, such as corporate chieftains like Black and avoid weighing in on circumstances related to public officials, at least for now.

Lynne Marek can be contacted at

William Galison on New York State's Corrupt Judiciary

and his outrage that WNYC will not do a story on this...


Dear Mr. Lehrer,

My name is William Galison, I am a musician whose family has lived in Manhattan for four generations. I have been a performing guest on Lenny Lopate’s show and a guest on Leanne Hansen’s Weekend Edition and a member of WNYC for decades. Nobody loves and cares about WNYC more than I do.

Six years ago, a major law firm attempted to steal my copyrights to my own CD and I sued to protect my rights. Although I ultimately prevailed, I was shocked to discover that the New York State judiciary is unimaginably corrupt; from attorneys who break ethical rules to judges who break judicial law to the Chief Judge of New York State, Jonathan Lippman, who was illegally shoehorned into power by the corrupt New York State Senate, all with utter impunity and no media coverage.

WNYC does terrific journalism and entertainment in many areas, but by their own admission, they will not touch the issue of judicial corruption (see below). Apparently, they are improperly beholden to their primary benefactors, which include many of the “White Shoe” law firms. As shown below, the interests of these firms are in conflict with the interests of the Public and of honest journalism, and have lead WNYC to self-censor reporting on matters crucial to their listeners.

Brian Lehrer is a star among stars: brilliant, informed, witty, human and conscientious. I can only pray that the reason he has neglected to respond to my concerns is that he has been sequestered from my correspondence. This letter is an effort to assure that he knows what is being said done in his name.

New York State’s Utter Lack of Judicial Oversight

Attorney and Judicial rules and laws are enforced by the so-called "judicial oversight committees" specifically the divisional "Grievance Committees" and the "Commission on Judicial Conduct" (CJC).

The corruption in both of these bodies is absolute and flagrant. Complaints against lawyers with "connections" are brazenly whitewashed. Lawyers who act against the connected ones are often sanctioned or disbarred Likewise, the CJC dismisses complaints against judges without any investigation or explanation. Judges who dare to challenge the system are punished. To compound the problem, no attorney will touch cases of alleged corruption against crooked attorneys or judges. They know this means professional suicide.

The Public Resistance

There exists an affiliation of victims of judicial corruption, and consequently of the Grievance Committees and/or the CJC. Our complaints against these agencies are not about unfavorable decisions, but about the flagrant lack of due process. We have at least seven cases now pending in federal court, specifically against the grievance committees and the CJC with more being prepared. Members of this affiliation have been fighting this corruption by compiling evidence proving flagrant abuses by judges and lawyers and the pattern of blatant corruption in the oversight committees. These include:

- Christine Anderson Esq: a six year veteran investigating attorney at the First Departmental Disciplinary Committee,: who was fired by Jonathan Lippman for whistle-bowing against systemic corruption at the DDC.

- The Honorable Duane Hart: an exemplary sitting Supreme Court Judge, who has suffered a campaign of harassment and retaliation by the CJC for standing by his principals. His Honor has stated on the record that the only lawyer he has known who is “sleazier” than the Chairman of the CJC is the Chief Counsel of the DDC.

- Gizella Weishauss: A survivor of Auschwitz, and the first complainant in the Holocaust restitution case against the Swiss banks. Removed from the case by her lawyer after she exposed graft and corruption by her lawyers, she was deprived of the restitution she sought for all victims. The New York DDC whitewashed her complaints against her lawyer even as he was disbarred in its counterpart in New Jersey.

-Louisa Esposito, a car accident victim who videotaped her lawyer Allen Isaac demanding oral sex in return for a “favorable outcome” based on his connections with the judges of the First Appellate Division Court.

-Numerous attorneys who have been disbarred, sanctioned and harassed for obeying their obligations to their clients and the rules of professional responsibility.

The June 8th Senate Judiciary Committee Hearing:

On June 8th 2009, after years of pressure from concerned citizens, the Senate Judiciary Committee held a hearing in Albany about the alleged abuses by the oversight committees. Most of the above victims testified at the hearing, which can be viewed in its entirety on Youtube:
The illegal confirmation of Chief Judge Jonathan Lippman.

Jonathan Lippman is one of the worst perpetrators of judicial corruption in New York, and his ascension to the highest judgeship in New York State is a disaster for justice. There are at least seven federal corruption cases pending against Lippman in the Southern District and dozens more before the SJC and CJC.

On January 29th, 2009 Hearings were held to discuss the process for the section of nominees for Chief Judge. WNYC refused to announce this public hearing despite written requests well in advance.

The February 11th, 2009, Confirmation hearings were the only opportunity for the public to voice concerns about Judge Lippman. WNYC refused to announce this hearing and refused to cover the hearing, As a result, only I and two other New Yorkers in opposition attended the hearing, after learning of the hearing from a leak. In contrast, over one hundred friends and family of Lippman were personally invited to celebrate his confirmation. It was only after I alerted WNYC that Wayne Barrett had a front page story in the Village Voice about Lippman’s corruption, did Brian interview Barrett- briefly, after the fact., with no questions of substance,

On June 8th 2009, hearings were held before the Senate Judiciary Committee regarding abuses by the judicial oversight committees. 200 citizens attended. But WNYC refused to announce or cover this historic hearing.

By its own admission, WNYC “will not cover” the matter of judicial corruption in New York State.

Over the past three years I have repeatedly requested that WNYC dedicate one single segment to the hugely important issue of judicial corruption in New York State, and specifically about the corrupt oversight committees. Over the past five years at least, there has not been a single segment on this subject.

I was told by newsroom that there was “no time to cover every story that listeners request”. As I was speaking to the newsroom rep, Brian Lehrer was hosting a thirty-minute segment on handbag fashions. No time?

When I persisted in requesting coverage of the judiciary, I was sent a threatening letter by WNYC’s counsel Ivan Zimmerman, who warned me to desist in my requests (letter available on request). I was told by Beth Fertig that she had been told not to speak to me because I was “harassing the station”, but Ms. Fertig refused to tell me who told her that, or what that allegation was based upon.

Most ominously, in a recorded conversation on June 15th 2009, “Sarah” at WNYC’s Listener Services stated that WNYC “will not cover” the topic of judicial corruption, before hanging up on me. (Mp3 recording available on request)

WNYC has censored its website to conceal listener concern about Judicial Corruption.

The minutes of the Community Advisory Board meeting of January 20, 2009, on the WNYC website report: “CAB board member Ken Stewart said that Mr. Galison had recently convinced him of his case, and asked Mr. Galison what WNYC could do.”

However, the minutes of the prior CAB meeting at which I presented my “case” were censored to expunge any mention of my original suggestion that WNYC address judicial corruption, a suggestion Mr. Stewart initially questioned.

WNYC has reportedly threatened to have me arrested for criticizing their negligence of Judicial corruption.

An anonymous threat on the website states: “my friend [at WNYC] tells me they have a picture of [Galison] hanging up near the entrance and direction to call the police if he shows up there again."

I interpret this as a threat made to intimidate me into shutting up.

If WNYC has me arrested for speaking the truth they will be in violation of NY Penal Code 240.

Why does WNYC neglect this crucial topic?

The connections between WNYC’s board of directors and the “White Shoe” law firms are vast and will be the subject of a report to be published on the internet in the near future. These law firms are the clear beneficiaries of the corruption that pervades the Judiciary and they are deeply invested in preserving the status quo.

For more information on New York State Judicial Corruption, see:

I can be reached at

Obama Admin. Intervenes in Sept.11 Families' Lawsuit Against Saudi Royal Family

Obama administration seeks to quash suit by 9/11 families
by Barry Grey, Global Research

The Obama administration has intervened to quash a civil suit filed against Saudi Arabia by survivors and family members of victims of the September 11, 2001 terrorist attacks. The suit seeks to hold the Saudi royal family liable, charging that it provided financial and other support to Al Qaeda and was thereby complicit in the hijack bombings that killed nearly 3,000 people in New York and Washington DC.

According to an article by Eric Lichtblau in the June 24 New York Times, (see below)documents assembled by lawyers for the 9/11 families “provide new evidence of extensive financial support for Al Qaeda and other extremist groups by members of the Saudi royal family.” However, the article states, the documents may never find their way into court because of legal challenges by Saudi Arabia, which are being supported by the US Justice Department.

The administration is taking extraordinary measures to kill the suit and suppress the evidence of Saudi support for Al Qaeda and complicity in the 9/11 attacks. Last month, the Justice Department sided in court with the Saudi monarchy in seeking to halt further legal action. Moreover, it had copies of American intelligence documents on Saudi finances that had been leaked to lawyers for the families destroyed, and is now seeking to prevent a judge from even looking at the material.

Two federal judges and the Second Circuit Court of Appeals have already ruled against the 7,630 people represented in the lawsuit, rejecting the suit on the grounds that the plaintiffs cannot sue in the US against a sovereign nation and its leaders. The Supreme Court is expected to rule this month on whether to hear an appeal, but the families’ prospects have been weakened by the intervention of the Obama administration, which has called on the court not to hear the plaintiffs’ appeal.

The Times reports that it obtained the new documents from the families’ lawyers, adding that they are among “several hundred thousand pages of investigative material” assembled by the 9/11 families in their long-running suit against the Saudi royal family.

Lichtblau writes that the documents “provide no smoking gun connecting the royal family to the events of September 11, 2001.” However, there is a wealth of evidence in the public record strongly pointing to such a connection. And there is the 28-page, classified section of the 2003 joint congressional inquiry into 9/11 that deals with the Saudi role in the attacks. Lichtblau writes that “the secret section is believed to discuss intelligence on Saudi financial links to two hijackers.”

Then-President George W. Bush ordered that section of the congressional report to be classified, and its contents were blacked out in the findings released to the public by Congress. The Obama administration is continuing this policy of shielding the Saudi monarchy.

Lichtblau reports that the material obtained by the Times from the families’ lawyers includes “thousands of pages of previously undisclosed documents” that provide “an unusually detailed look at some of the evidence.” He cites as one example “internal Treasury Department documents” that show that the International Islamic Relief Organization, a “Saudi charity,” heavily supported by members of the Saudi royal family, “provided ‘support for terrorist organizations’ at least through 2006.”

He gives other examples of evidence of Saudi support for Islamist terrorists in Bosnia in the 1990s and witness statements and intelligence reports of money being given by Saudi princes to the Taliban and to “militants’ activities” in Pakistan and Bosnia during the same decade.

What are the motives behind the Obama administration’s efforts to cover up the connections between the Saudi monarchy and Al Qaeda?

The Justice Department, according to the Times, cites “potentially significant foreign relations consequences” should the 9/11 families’ suit be allowed to go to trial. This is undoubtedly a factor. The US has an immense political and economic interest in protecting the Saudi dictatorship, which is a major American ally in the Middle East, a supporter of Washington’s wars in Iraq and Afghanistan, and the world’s biggest producer of oil.

But there is a more immediate and compelling reason for suppressing any exposure of the Saudi connection to Al Qaeda and 9/11. The revelations would undoubtedly shatter the official explanations of the September 11 attacks and point to complicity on the part of US intelligence and security agencies.

Given its longstanding and intimate ties to the Saudi royal family and Saudi intelligence, it is not possible to believe that the CIA would have been unaware of Saudi support for Al Qaeda and at least some of the 19 hijackers, 15 of whom were Saudi nationals, as they were preparing to carry out the attacks on New York and Washington.

The ties between the Saudi and US intelligence establishments were strengthened during the US-backed war against the pro-Soviet regime in Afghanistan, beginning in 1979 and continuing through the 1980s. The US poured billions of dollars in arms and financing into this war, most of it funneled through the ISI, the Pakistani intelligence agency.

The Saudi regime also helped fund the anti-Soviet guerrillas, many of whom were brought to Afghanistan by Islamist forces in the Middle East. Osama bin Laden served as the Saudi regime’s personal emissary in this cause, helping to organize, train and equip Arab volunteers for the Afghan war. The movement now known as Al Qaeda was spawned through the interaction of these three intelligence agencies—the CIA, the ISI and the Saudis.

The bipartisan 9/11 commission, in its July 2004 report, echoed the Bush administration’s whitewash of Saudi ties to the terrorist attacks, declaring that it found “no evidence that the Saudi government as an institution or senior Saudi officials individually funded” Al Qaeda.

However, in a book published later that year, Intelligence Matters, then-Florida Senator Bob Graham charged the Bush administration with orchestrating a cover-up of Saudi involvement in the September 11 attacks. Graham was at the time the ranking Democrat on the Senate Intelligence Committee, which had carried out, along with its House counterpart, the joint congressional investigation into 9/11.

He wrote that “evidence of official Saudi support for at least some of the hijackers was incontrovertible.” Graham’s charges focused on the extraordinary cases of Nawaf al-Hazmi and Khalid al-Mihdhar, who were identified as hijackers of American Airlines Flight 77, which crashed into the Pentagon.

The two men, both Saudi nationals, are undoubtedly the “two hijackers” to whom Times reporter Lichtblau refers in connection with the secret section of the joint congressional report on 9/11.

Both were known to US intelligence as Al Qaeda operatives at least since 1999. Malaysian agents, acting in concert with the CIA, photographed and videotaped them and others during a 2000 meeting of Islamist terrorist groups in Kuala Lumpur, Malaysia.

Nevertheless, after the meeting, al-Hazmi and al-Mihdhar were allowed to fly to the US using their own passports and visas issued by US consular authorities in Saudi Arabia. While the CIA knew of their presence in the US, it did not inform the Federal Bureau of Investigation, according to the FBI. (The CIA disputes this claim, insisting that it did alert the FBI). Nor did the CIA inform immigration authorities.

After landing in Los Angeles in January of 2000, al-Hazmi and al-Mihdhar were met by Omar al-Bayoumi, an employee of the Saudi civil aviation authority. US investigators have concluded that al-Bayoumi was a Saudi intelligence agent.

Al-Bayoumi invited the pair to move to San Diego, where he found them an apartment, provided them with money and helped enroll them in flight school.

It has been reported that al-Bayoumi served as a conduit for thousands of dollars in funding for the future hijackers sent by Princess Haifa, the wife of Prince Bandar, the Saudi ambassador to the US and a close confidante of the Bush family.

Al-Hazmi and al-Mihdhar lived openly in the US, one of them even having his name listed in the telephone directory.

Within months, al-Hazmi moved into the home of Abdussattar Shaikh, a retired professor at San Diego State University. Shaikh was on the FBI payroll, charged with monitoring the activities of Islamist groups in the San Diego region.

In his book, Graham wrote that the FBI concealed from the joint congressional committee the fact that its paid informant, Abdussattar Shaikh, had established a close personal relationship with the two hijackers.

When the committee staff discovered Shaikh’s role and the committee issued a subpoena to question him under oath, the FBI and then-Attorney General John Ashcroft refused to serve the subpoena. Graham said that a senior FBI official wrote to him and the Republican co-chair of the joint committee declaring that the administration would neither allow the FBI to serve a subpoena on Shaikh nor allow the committee staff to interview him.

Graham wrote that this was the only time he had ever heard of the FBI refusing to serve a congressional subpoena. He commented, “We were seeing in writing what we had suspected for some time: the White House was directing a cover-up.”

Bush’s extraordinary intervention to block questioning of FBI informant Shaikh was consistent with his administration’s actions in the immediate aftermath of the September 11 attacks, when it allowed chartered planes to ferry some 140 prominent Saudis—including at least a dozen of Osama bin Laden’s relatives—to Boston for evacuation to Saudi Arabia. The pick-up flights were organized at a time when all non-military and non-emergency aviation had been grounded by government order. Bin Laden’s relatives were allowed to leave the country with little or no questioning by the FBI.

In his book, Graham himself posed the question of why the congressional committee was denied access to the San Diego FBI informant. After offering several possible answers, he suggested in deliberately obscure language a “far more damning possibility”—“perhaps the informant did know something about the plot that would be even more damaging were it revealed, and that this is what the FBI is trying to conceal.”

Graham did not spell out what “damning” information about the 9/11 conspiracy the informant might have revealed. But the role of the CIA, the FBI and the Bush administration in the case of al-Hazmi and al-Mihdhar suggests that it went beyond involvement by the Saudi government. It strongly suggests he was blocked from being questioned out of concern that he would reveal that elements within the US state apparatus knew of plans for an impending hijacking and allowed them to go forward.

Eight years after the attacks, no one has been held accountable for what on its face is the greatest failure of national security in US history. The question is: Was it a failure, or was a decision taken to permit a terrorist attack on US soil in order to provide the pretext for implementing plans for wars abroad and repressive policies at home that had been drawn up well in advance of September 11, 2001?

That a new administration is continuing the policy of shielding the Saudi monarchy and suppressing evidence of its complicity in 9/11 points strongly to the latter explanation.

Barry Grey is a frequent contributor to Global Research. Global Research Articles by Barry Grey

June 30, 2009
Supreme Court Refuses Case by Sept. 11 Victims’ Families

WASHINGTON — The Supreme Court on Monday refused to hear an appeal brought by families and insurers of victims of the Sept. 11, 2001, attacks, in an effort to link the Saudi royal family to the financing of Al Qaeda and terrorism.

The decision lets stand a lower court ruling that found Saudi Arabia and members of the royal family could not be sued in American court because of a 1976 law granting sovereign immunity to foreign countries.

The Obama administration angered some victims’ families last month by supporting the Saudis’ claim to immunity, citing among other factors the significant diplomatic implications raised by the case.

Lawyers for the victims’ families had wanted the Supreme Court to resolve a split among appeals courts on the question of immunity and allow the suit to move forward based on an exception to the law for countries that sponsor terrorism. Some survivors accused the Obama administration of coddling the Saudis.

But the Supreme Court, without comment, refused to intervene in the case.

The families will still be allowed to continue with their claims in federal court against a number of Saudi financial institutions, charities and other groups that are not directly tied to the Saudi government or the royal family. Those defendants were not affected by the court’s decision not to hear the case.

“We intend to vigorously press those claims and are confident that the presentation of our evidence against those remaining defendants will lead directly back to government offices and royal palaces in Riyadh,” said Sean Carter, a lawyer with the Philadelphia law firm Cozen O’Connor, which is representing a number of insurance companies that paid billions in claims arising from the Sept. 11 attacks.