August 18, 2009
Another notable reversal of a high-profile, white-collar conviction
Though only a little bit of a sentencing story, all white-collar crime folks should be interested in this news out of the Ninth Circuit (via this piece in The Recorder):
The 9th U.S. Circuit Court of Appeals has thrown out Gregory Reyes' conviction for stock option backdating while he was CEO at Brocade Communications Inc. The court ruled that Assistant U.S. Attorney Adam Reeves committed prosecutorial misconduct by saying during closing argument that the entire Brocade finance department was ignorant of the fraud. "In representing the United States, a federal prosecutor has a special duty not to impede the truth," wrote Judge Mary Schroeder. Judges Stephen Reinhardt and Louis Pollak, sitting by designation, concurred.
The court also upheld the conviction of Brocade HR director Stephanie Jensen, but remanded for resentencing, saying U.S. District Judge Charles Breyer should not have increased her sentence due to obstruction of justice by her attorney.
The full panel opinion in US v. Reyes is available at this link, though the make-up of the panel makes me wonder whether this case might get en banc review.
UPDATE: Ellen Podgor comments on the Reyes ruling in this post at the White Collar CrimProf Blog.
August 18, 2009 at 03:45 PM | Permalink
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No en banc here. Case is well-reasoned. Clear example of prosecutorial misconduct. Second time in a few months. See U.S. v. Price 566 F.3d 900 (9th Cir. 2009)(failure to disclose Brady material).
Posted by: Michael R. Levine | Aug 18, 2009 6:54:47 PM
I find it odd of late in white collar cases where appellate panels are reviewing members of their own social class reversal rates seem dramatically higher and the application of harmless error doctrine so much more lax.
Posted by: anon | Aug 18, 2009 9:12:03 PM
It's hard to see what the en bancable issue would be. The legal principle that prosecutors may not argue what they know not to be true is pretty established and uncontroversial. Whether the prosecutor did so here is a pure issue of fact, not law--not typically the stuff of en banc review.
Posted by: Def. Atty. | Aug 20, 2009 4:36:49 PM