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September 2008

Lawyer Falls for Nigerian Lottery Scam

A few months ago, a Hong Kong company e-mailed me, saying they wanted to hire me to collect a judgment against a U.S. company.  I thought, "Scam." Why me?  Really, why me? 

Unfortunately, an Atlanta lawyer fell for the scamHere is how it works:

An overseas company contacts a U.S. lawyer by e-mail and retains that attorney as a settlement agent to collect a debt from a U.S. company. The U.S. company sends a settlement check to the lawyer, who deposits it into his trust account and then wires the settlement amount, minus his fee, to the "client." But the settlement check is counterfeit, and the lawyer loses the money he wired abroad.

I'll look for the e-mail I received.  It was worded skillfully, and might have looked legit to someone who was easily flattered and who doesn't understand that there is no such thing as easy money. 

That said, why didn't the lawyer wait long enough for the checks to clear?  Easy money is never easy. 

I feel bad for the lawyer... sort of.  Then again, a lawyer gets paid not just for legal acumen, but for judgment.  Any monkey can crunch cases.  Knowing how to answer someone who asks, "What should I do?" is a real skill.

Imagine someone walks into your office: "Hey, I got an e-mail from a company I have never heard of offering to pay me money to collect a judgment.  It'll probably figure to be $10,000 for a couple of hours of work."  How would you answer?

UPDATE: Here's a copy of the e-mail:

From: HongKong Yejian Technology <[email protected]>

Subject: Legal Counsel

The purpose of this email is to evidence that we have visited your web page and found your profile very interesting. We would like to enter into a one year Attorney-Client Retainer agreement with you as our accredited Attorney for the collection of debt mainly from our America debtors.

IN GENERAL, you shall have all of the responsibilities, duties, powers and authorities which are consistent with your position as our accredited Attorney solely for debt collection.

It is our opinion that your ability to consolidate payments will eradicate delays due to inter-continental monetary transaction between Asia and America.

More so, we understand that a proper retainer agreement will provide the necessary service and we are most inclined to commence talks with you on this matter as soon as possible.

Your consideration of our request is highly anticipated as we look forward to your prompt response.

For further information, please call +852 - 301 - 59103 during office hours or send a fax anytime to:  +852 -301 -72504 or email: [email protected]

Most Sincerely,
Ms. Ai Wa
Sales Manager,   
Hongkong Yejian Technology Co., Ltd.   
7/F, Sino Centre, 582-592 Nathan Road,
Mongkok KL. Hong Kong.
Tel No: +852 - 301 - 59103.
Fax No: +852 -301 -72504.


A legal blogger notes on the front page of his blog: 

Terms of Use

You must read and consent to these terms prior to using, reading, or accessing this site for any reason whatsoever. Terms & Conditions of Use and Legal Information.

No, I am not kidding.

I copied-and-pasted the "Terms of Use" that you must read into a Word Document - 13 pages and 5,572 words.  So far as I know, that guy is the only blogger self-important enough to have a "Terms of Use" section.

His "Terms of Use" must be compensating for his small... readership?

Ninth Circuit Compelled-Use-Immunity Decision

Aside from plea bargaining, one of the prosecutor's greatest procedural advantage is the ability to immunize witnesses.  If a prosecutor needs to make a case against a defendant, the prosecutor can make a deal with someone who has relevant information: Testify, and we won't use anything you say against you in a court of law.  Defense lawyers do not have this power.  Rarely (all too rarely), a judge will compel a prosecutor to grant immunity to a defense witness. This can have perverse results. 

Let's say that you are charged with murder.  You know who really did it.  But you cannot make the person go onto the witness stand to admit it.  He would assert his privilege against self-incrimination.

If you had a prosecutor's power, you would grant him use immunity (i.e., agree that nothing he says on the witness stand will be used against him in a later legal proceeding).  A witness who has use immunity can be forced to testify.  A judge would throw the real murderer into jail for contempt if he refused to testify.

Giving prosecutors the sole power to grant immunity is bad policy. Prosecutors, even those who seek justice, are not immune from cognitive biases.  Even people who act in good faith make serious thinking errors.  Prosecutors almost always deny a defense request to grant use immunity.  Judges almost always rubber stamp this decision.

The Ninth Circuit Court of Appeals recently handed down an important decision clarifying when prosecutors must grant testimonial immunity to a defense witness:

Dwayne Edward Straub challenges his conviction and sentence for narcotics crimes and the attempted robbery and shooting of Robert Garrett in Portland, Oregon. Straub claims that the district court’s refusal to compel the prosecution to grant use immunity to defense witness Mike Baumann violated his due process rights under the Fifth Amendment. This case requires us to clarify the standard by which we determine when a district court must compel the prosecution to grant use immunity, as most recently stated in Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004).

We must address the question left open by Williams, whether a defendant requesting compelled use immunity on the ground that his witness has relevant testimony that directly contradicts that of an immunized prosecution witness must prove that the prosecution’s purpose in denying use immunity to the defense witness was to distort the fact-finding process, or merely that the prosecution’s selective denial of use immunity had the effect of distorting the fact-finding process. See id. at 600-01.

United States v. Straub, No. 07-30182 (9th Cir. Aug. 25, 2008) (opinion).  The Ninth Circuit held that use immunity should have been granted: 

[I]n exceptional cases, the factfinding process may be so distorted through the prosecution’s decisions to grant immunity to its own witness while denying immunity to a witness with directly contradictory testimony that the defendant’s due process right to a fair trial is violated. At Straub’s trial, eleven prosecution witnesses, many of them serious drug offenders, were granted substantial incentives or immunity to testify against him. The testimony of one such witness was crucial to the prosecution’s case for armed robbery. The defense proffered one witness who could directly contradict a statement made by the prosecution’s key witness, and if believed, would allow the jury to find that the prosecution’s witness was a perjurer and possibly the actual perpetrator of the shooting for which the defendant was charged. That one witness was denied immunity, despite the prosecution’s insistence that he was not worth prosecuting. Even absent evidence of prosecutorial intent to do so, this course of events denied Straub a fair trial.

It's obvious that the prosecution had its sights on one man.  Eleven witnesses were given immunity to convict one man?  And the prosecution would not grant the witness immunity even though the prosecutor had no intention of prosecution the witness?  What good reason did the prosecutor have for not granting immunity?  None.

Straub could be an important decision.  It will take us a couple of years to see how lower courts apply it. 

Tax Shelters

The Associated Press has this charming story about accountant Charles Ulrich, a man who persuaded a Court of Claims judge to accept his novel interpretation of a federal tax issue.  (Ruling.)  Years before the court's ruling, Ulrich promoted this tax theory via his website.  He also helped people file refund requests.  The IRS's reaction?

But the IRS wasn't pleased with Ulrich, accusing him of promoting abusive tax shelters and demanding the names of his clients, which he said he refused to provide.

While Ulrich's theory might not be right on the merits (I do not have an opinion), at least one federal judge has accepted it. 

So the next time your local paper talks about an "abuse tax shelter," remember Charles Ulrich's experience.  And remember that, so far as the IRS is concerned, anything that prevents them from reaching all the way to the bottom of your pockets is a "tax shelter."

Rap Ballad (Graphic Language)

I realize that rap isn't the music-of-choice for most of you.  But Immortal Technique's "Dance With the Devil" is a compelling example of story-telling.  There are many things to take away from the song.  First, he uses concrete examples to show what can happen to someone who wants to become a thug.  This is the same approach Homer used: "Oral traditions predominantly consist of sequences of concrete actions.  For example, Havelock (1978) stresses that rather than employing abstract principles, only concrete examples by active agents are included.  Thus Homer has only concrete examples of heroism, wisdom, and justice, not abstract statements."  Memory in Oral Traditions at 11.

Second, the story towards the end of the song is "sticky" -- It's hard to forget, for better or worse.  If you were a story teller, would his approach not be effective?  If your stories are forgotten, what good are they?

The entire song is worthy of study.  It gets especially powerful near the 3:36 mark.  It's graphic and disturbing.  That is what makes it memorable.   

Miranda, In Custody, At Home

I just pulled up this opinion, which I'm now reading.  Seems exciting: 

The home occupies a special place in the pantheon of constitutional rights. Under the First Amendment, the “State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.” Stanley v. Georgia, 394 U.S. 557, 565 (1969). The Second Amendment prohibits a federal “ban on handgun possession in the home.” District of Columbia v. Heller, 554 U.S. ___, ___ (2008), slip op. 64. The Third Amendment forbids quartering soldiers “in any house” in time of peace “without the consent of the Owner.” U.S. CONST. amend. III. The Fourth Amendment protects us against unreasonable searches or seizures in our “persons, houses, papers, and effects.” Id. amend. IV.

The question presented in this case is one of first impression in our court: under what circumstances under the Fifth Amendment does an interrogation by law enforcement officers in the suspect’s own home turn the home into such a police-dominated atmosphere that the interrogation becomes custodial in nature and requires Miranda warnings?

United States v. Craighead (opinion).  UPDATE: This is a very thoughtful opinion: 

Applying this standard to an interrogation conducted within the home presents some analytical challenges, however, and presents an issue on which our court thus far has said little. The usual inquiry into whether the suspect reasonably believed he could “leave” the interrogation does not quite capture the uniqueness of an interrogation conducted within the suspect’s home. “Home,” said Robert Frost, “is the place where, when you go there, they have to take you in.” Robert Frost, The Death of the Hired Man, in THE POETRY OF ROBERT FROST 38 (Edward C. Latham ed., 1967).

If a reasonable person is interrogated inside his own home and is told he is “free to leave,” where will he go? The library? The police station? He is already in the most constitutionally protected place on earth. To be “free” to leave is a hollow right if the one place the suspect cannot go is his own home. Cf. Crawford, 372 F.3d at 1060 (holding that an interrogation at an FBI office was not custodial because, inter alia, the defendant was told he was free to leave and “was, in fact, returned home at the end of the interview”).

Similarly, a reasonable person interrogated inside his own home may have a different understanding of whether he is truly free “to terminate the interrogation” if his home is crawling with law enforcement agents conducting a warrant-approved search. He may not feel that he can successfully terminate the interrogation if he knows that he cannot empty his home of his interrogators until they have completed their search. We must, therefore, consider how to apply the traditional Miranda inquiry to an in-home interrogation.

Super Law Trivia

On what day in U.S. history did Ninth Circuit judge Jay S. Bybee either write or join two published,  pro-criminal-defense opinions?  That would be today, August 21, 2008.  United States v. Craighead (holding that a person can be in custody for purposes of Miranda even when interviewed in his own home) (Bybee, J.); McMurtrey v. Ryan (holding that the "trial court’s failure to conduct a competency hearing at that time violated [the petitioner's] due process rights. The retrospective competency hearing held thirteen years after trial was insufficient to cure this due process violation.")(Pregerson, J.).

Worst Nightmare

We almost got killed on a deadline.  Everyone - including me - always says, "Before you do anything with the case file, check the relevant deadlines."  Somehow no one - including me - did that.  Luckily I decided to review the file once more before bed.  "Oh, sheet, no one checked the deadline."

Scary stuff, since this was a jurisdictional deadline.

It really is impossible to nag on someone to always check the deadlines.  It seems basic, because it is basic.  Often, it's the basic stuff that kills you.

How is this Legal?

Shouldn't these practices be felonious

[F]inancial institutions collected more than $17.5 billion in overdraft fees last year, reports the Center for Responsible Lending, a nonprofit policy group.

Contrary to popular belief, using a debit card won't prevent you from overdrawing your account. Debit card use triggers 46% of all overdrafts, according to the Center for Responsible Lending. "They allow the debits to go through, instead of rejecting them," says Ed Mierzwinski, consumer program director for the U.S. Public Interest Research Group. "It's disgraceful."

Freedom of contract, right?  Even though everyone's definition of debit cards means "same thing as cash."  Even though you can show survey after survey showing that people believe that if there isn't any money in his or her debit account, then a charge will not go through.

Somewhere some bank hid a sentence in some 100,000 word contract.  So the bank is just acting pursuant to its contract.  Give me a break.

Anyone who reads C&F consents to having spyware installed on her computer.  You consented to it, simply by visiting here.  What, you mean you didn't knowingly consent to that?  You read no such thing?  You didn't actually realize that you were consenting to that?  You mean it would seem unreasonable to consent to such terms?  Too bad.  I hid this agreement somewhere on the Internet.  Some Russians needed your credit card information.  Who am I to deny them?

That banks are allowed to steal billions from customers each year just proves what a farce modern politicians are.  They claim to care about the working and middle class.  Well, guess what: It ain't people in the upper economic classes who get hit with overdraft fees.  It's the working class and middle class.

Yet no one will do anything about this.  What a scam.  How anyone can "believe in" either Obama or McCain is just amazing.  They are both total scamsters bought and paid for by big banking.  If banking owns shares of both of them, who else is a shareholder? Really.  Think about that for a minute.

Whenever people talk about Obama or McCain being useful men, I agree.  When people talk about them being good men, I just roll my eyes.  It really does amaze that adults still hold on to such silly superstitions.