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June 7, 2012

Interesting plea deal calling for high-profile defendant's forfeiture of intellectual property rights

This Boston Globe story, headlined "Plea deal may force Catherine Greig to forfeit intellectual property rights," reports on the unique terms of a plea deal in a unique federal sentencing case. Here are the specifics:

Federal prosecutors are asking a judge to order Catherine Greig, the girlfriend of notorious gangster James “Whitey” Bulger, to waive the right to profit from her story, which she agreed to do in March when she pleaded guilty to helping Bulger evade capture for 16 years.

In a Wednesday filing seeking the forfeiture order on Greig’s intellectual property rights, prosecutors also noted that she agreed to waive any claim to property seized from the apartment she shared with Bulger in Santa Monica, Calif., where the couple was apprehended in June 2011....

Bulger, 82, is scheduled to face trial in federal court in Boston in November on a sweeping racketeering indictment charging him the murders of 19 people.

Greig, 61, is scheduled to be sentenced on Tuesday in the same courthouse and faces up to 15 years in prison, but family members of some of Bulger’s alleged victims have said prosecutors warned them she could face as little as 32 months under federal sentencing guidelines.

I cannot recall hearing of any other plea deals involving this kind of forfeiture, though I understand completely why the feds are eager to preclude the defendant here from ever profiting from her high-profile criminal behaviors.  That said, I wonder if others think there might be First Amendment issues implicated here or other reasons to be concerned about a plea deal with these kinds of distinctive terms.

June 7, 2012 at 06:37 PM | Permalink

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Comments

No - 1st Amendment issue - she can still tell her story or any one and have it distributed in any way. She just can't profit from it. Many states have laws in place to prevent criminals from profiting from their story. The $ goes to a victim fund.

Posted by: Paul | Jun 7, 2012 8:08:37 PM

I am inclined to agree with Paul that there isn't a 1A issue here as such; she can still tell her story. But perhaps there is a 5A issue of the government taking property without just compensation. I'm not really clear how the government can take away her property rights to property she doesn't even own yet and that are not the direct product of any criminal activity. But I freely admit I don't understand much about intellectual property law so maybe this isn't a genuine concern.

Posted by: Daniel | Jun 7, 2012 8:28:31 PM

One can always knowingly waive a constitutional right; indeed, the basics of any plea bargain entail waiving the constitutional right to a trial. Nor is there a problem with an anticipatory waiver of profits not yet in existence.

(As an analogy, the waiver of a sentencing appeal -- now approved by every circuit to have considered it -- gives up the defendant's opportunity to appeal a sentence not yet imposed. Such waivers are routine in EDVA and throughout the Fourth Circuit, and have never been successfully challenged there in over 20 years).

Posted by: Bill Otis | Jun 7, 2012 9:45:25 PM

Wendy's agreed not to seek to collect on over $20 million in restitution against Ana Ayala and her husband if they did not attempt to profit from her story of placing a human finger in a bowl of chili.

Posted by: David | Jun 7, 2012 10:10:28 PM

Although it was not a plea deal as the prosecution cannot bargain away victim restitution. At least I was unwilling to.

Posted by: David | Jun 7, 2012 10:14:20 PM

See NY Son of Sam law:

http://en.wikipedia.org/wiki/Son_of_Sam_law

Posted by: Supremacy Claus | Jun 7, 2012 11:36:07 PM

i agree. Which is why i find it so suprising that no hot short lawywer has not hammered the govt with it's own law!

the entire "STATE SECRETS" setup was and IS a FRAUD perpetrated by the govt on the public and the courts!

sorry under this same law.... since the "STATE SECRETS" Privilage is the fruit and profit of their fraud LEGALLY it's GONE!

Posted by: rodsmith | Jun 8, 2012 12:26:20 AM

Bill Otis seldom disappoints. If there's constitutional right at issue, no problem. Just twist the defendant's arm until she waives it. Case closed. You're a credit to current and former prosecutors everywhere, Bill.

The entire Bulger/Greig matter seems a little pathetic if you think about it. But for Bulger's girlfriend helping him, this 'notorious gangster' might have been nailed long, long ago. She must be punished severely for that...15 years in prison or, if we deign to be lenient, a supercilious, pretend-precision guidelines sentence of 32 months.

From my perspective (son of a celebrated homicide investigator) it smells like the aftermath of lazy, ineffectual, strong-arm police work. Basically it shouts, 'Hey, if girlfriends, spouses and relatives of gangsters don't rat out their loved ones, we're pretty much helpless.'

Funny, in the scores of crime-fighting stories Dad brought home from the job, I never once recall him cracking a case by extorting (with threats of lengthy prison terms) the wives, girlfriends or relatives of suspects. Instead he developed clues, interviewed witnesses, conducted stakeouts, followed leads, played out hunches. You know, actual police work.

Given existing LE/prosecution tools -- vague, sweeping laws that criminalize virtually any plausibly suspicious activity with accompanying draconian punishments -- Dad might never have had to leave the office. He could have coerced helpful testimony and confessions from the comfort of interrogation rooms in a fraction of the time required to actually work cases.

Posted by: John K | Jun 8, 2012 10:01:40 AM

John K --

"Bill Otis seldom disappoints. If there's constitutional right at issue, no problem. Just twist the defendant's arm until she waives it. Case closed. You're a credit to current and former prosecutors everywhere, Bill."

Thanks. I am proud of my career, every minute of it, under Republican and Democratic administrations. Just you'll have your facts straight, however, I never once asked, much less pressured, a defendant into making a plea agreement. As far as I was (and am) concerned, they can go stand on their constitutional right to trial, and let the evidence dribble out day after day before an increasingly outraged judge.

P.S. There is no constitutional right to appeal. Look it up.

Posted by: Bill Otis | Jun 9, 2012 4:35:45 AM

No right to appeal? I don't dispute that. I thought the question to be addressed was whether a First Amendment right is an issue in the intellectual-property aspect of Greig's sentence.

BTW, why would judges be outraged by defendants exercising their trial rights? Your premise appears to be that judges pre-judge cases laid out by cops/prosecutors to be indisputably air-tight. And you might be right, given that the system is indeed crafted and lorded over by mostly current prosecutors and former prosecutors (judges) and heavily fortified with prosecutor-friendly statutes crafted largely by still other former prosecutors (legislators).

Still, isn't it a useful fiction to at least give lip service to the notion trials exist to give citizens accused of crimes a fair chance to challenge their accusers...hopefully under the watchful eye of judges who aren't outraged by the effrontery, annoyance and inconvenience of the process?

Posted by: John K | Jun 9, 2012 10:57:02 AM

John K --

"BTW, why would judges be outraged by defendants exercising their trial rights?"

What outrages them is not the exercise of those rights per se, but what they hear once the evidence starts. And what they hear is, for example, the 12 year-old girl break down in sobs on the stand while describing what the defendant did to her (not to mention the three other girls at the sleep-over).

Most defendants make the prudent choice to avoid a show like that and have their behavior described in the relatively antisceptic PSR. That's one of the main reasons they plead guilty.

John K, you show that you have never handled a real, live felony case. The great majority of defendants and defense lawyers get huffy, not when the prosecutor says that he wants X, Y and Z in the plea bargain, but when he says to the defendant, "Mr. Nicey, for one solid hour I've been listening to you lie to my face. That's it. I can't reach a deal with someone who behaves that way. You have a constitutional right to a trial, and that's what you're getting. See you in court."

Posted by: Bill Otis | Jun 9, 2012 2:51:50 PM

As someone who was actually accused of a crime (12 counts) and went through a 3 week Federal trial, the opposite of the judge being enraged by the evidence actually happened to me. The evidence that "dribbled out" showed exactly how ridiculous it was to have accused me and dragged me through the proceeding. As John K states, prosecutors have at their disposal: "vague, sweeping laws that criminalize virtually any plausibly suspicious activity with accompanying draconian punishments". In my case, the prosecutor tried to turn my purchase of a boat and lending my sister money into crimes that could have led to 10 years in prison PER COUNT. Forfeiture figured into my case too (nothing like money as a motivator!)--if I'd pled guilty, would automatically have lost my life savings (which the Government is STILL managing to keep tied up nearly four years after they seized it) Acquittal and due process apparently mean very little to the court or the Government, at least so far. Forfeiture of EVERYTHING feeds more and more into prosecutorial decisions. See Forfeiture.gov
for hundreds of pages of property seized from citizens that our Government plans to keep.

Posted by: folly | Jun 11, 2012 7:26:44 AM

your nicer than i am folly! by this time i'd be going after anyone connected with the feds in my case and everytime i got one alone i'd be using a baseball bat on their ass! to the toon of

"you got my money. Now you can release it! Or effective immediatley everytime i get a shot at one of you crooks i'm gonna take it out of your ass at $25 per WHACK of this baseball bat or it's equivilant!

YOUR CHOICE!

Posted by: rodsmith | Jun 12, 2012 12:32:55 AM

i will give you this one bill!

"but when he says to the defendant, "Mr. Nicey, for one solid hour I've been listening to you lie to my face. That's it. I can't reach a deal with someone who behaves that way. You have a constitutional right to a trial, and that's what you're getting. See you in court"

but you forgot part!

should also have at the end!

"but i am not only going to take your ass to trial on the current charges but PERJURY as well"

Posted by: rodsmith | Jun 12, 2012 12:34:25 AM

I am inclined to agree with Paul that there isn't a 1A issue here as such; she can still tell her story. But perhaps there is a 5A issue of the government taking property without just compensation. I'm not really clear how the government can take away her property rights to property she doesn't even own yet and that are not the direct product of any criminal activity. But I freely admit I don't understand much about intellectual property law so maybe this isn't a genuine concern.

I agree with paul but at the sametime I think america is greedy in there own little ways trying to stick you anyway posible

Posted by: dildo | Aug 3, 2012 7:30:52 PM

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