The BLT: The Blog of Legal Times

Judge Sentences Longtime D.C. Defense Lawyer to 63 Months in Prison

Updated 5:58 p.m.

Calling a defense lawyer's crime "truly unconscionable," a federal judge in Washington today sentenced a longtime Washington attorney to more than five years in prison for his role in a scheme to manufacture evidence to dupe jurors in a drug trial.

The defense lawyer, Charles Daum, who had practiced law in the District of Columbia for three decades, will serve 63 months behind bars for a plot that included staged photographs and perjured testimony.

Daum was convicted at a bench trial last year that featured a series of jail recordings and testimony from cooperators—including Daum's client, whom the defense lawyer blamed for creating and executing the plot. Daum was indicted in 2011.

U.S. District Judge Gladys Kessler today called Daum's scheme "shocking" and said it threatened public confidence in the integrity of the judicial system. Kessler said her sentencing decision should serve as a deterrent for any lawyer "who may think of cutting a corner, not telling quite the truth to a judge."

Convicted Lobbyist Asks Full D.C. Circuit to Review Prosecution

Earlier this year, in upholding the conviction of prominent former lobbyist Kevin Ring, a federal appeals court in Washington called the distinction between legal lobbying and criminal conduct "subtle." The court went on to say that the line "spells the difference between honest politics and criminal corruption."

The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that heard Ring's case was unanimous in its late January ruling in the high-profile prosecution, which flowed from the Jack Abramoff lobbying scandal in Washington. Still, the judges said "this case is nothing if not close."

Ring's lawyers at Miller & Chevalier on Monday asked the full D.C. Circuit to review the panel decision, arguing that the ruling conflicts with U.S. Supreme Court precedent and decisions in other federal appellate courts. Ring's petition is here.

Miller white-collar defense partners Timothy O'Toole and Andrew Wise said the panel opinion incorrectly resolved two issues of "exceptional importance"—the role of campaign contributions in an honest services case and whether such a prosecution requires proof of a bribery agreement.

The Morning Wrap

More Jobs: The legal industry picked up 200 positions in February, The Am Law Daily reports. In January, the sector lost 2,400 jobs.

Lawyering Up: Ridesharing companies are lawyering up as they are facing scrutiny from cab companies, regulators and traditional drivers, The Recorder reports. Uber Technologies Inc., SideCar and Zimride Inc. in San Francisco have hired general counsel, taking that step much earlier than most companies at a similar size and stage.

Drones: John Yoo, the George W. Bush administration lawyer who authored legal memos for the war on terror, is backing President Barack Obama's use of armed drones, even against U.S. citizens, USA Today reports. "If an American joins an enemy with which we are at war, he is or she is a valid target as an enemy combatant," Yoo said. "That's been the rule throughout our history."

The Morning Wrap

In custody: A son-in-law of Osama bin Laden is in federal custody and expected to make his first appearance today in Manhattan federal district court on charges he conspired to kill Americans. The capture has renewed debate over whether terror defendants should be tried in federal civilian courts or in military tribunals.

Tossed: From The National Law Journal today: Years after a lawyer handles a client's securities filing, he learns that a third-party left out a key provision. In the interim, the attorney has jumped firms. Is the attorney's new law firm liable? Not according to U.S. District Judge Mariana Pfaelzer, who dismissed with prejudice a lawsuit filed by Impac Secured Assets Corp. against SNR Denton."

Quitting time: "U.S. Bankruptcy Judge Martin Glenn will no longer be holding his usual hearings after hours in his Manhattan courtroom because of the billions of dollars in congressionally mandated federal spending cuts that took effect this month," Bloomberg reports. “As long as sequestration lasts, 5 p.m. will be the stop time,” Glenn recently told lawyers.

Judge Refuses to Stay Long-Running Suit That Claims Government Misconduct

Over the objection of the U.S. Justice Department, a federal trial judge in Washington has refused to put on hold a long-running dispute in which a businessman claims the government prosecuted him in retaliation for public remarks about the U.S. Postal Service.

The businessman, William Moore, filed suit in 1991 following the government's unsuccessful prosecution of him on charges he participated in a fraud conspiracy regarding Postal Service contracts for mail-scanning equipment. Moore's civil complaint alleges, among other things, a First Amendment retaliatory prosecution claim.

Moore's case has dragged on for years in part over a spat about whether a group of Postal Service inspectors are entitled to qualified immunity. The U.S. Court of Appeals for the D.C. Circuit recently said—again—that the defendants have no such shield. The court ruled 2-1 in favor of Moore in January.

Last month, DOJ lawyers asked U.S. District Judge Amy Berman Jackson to stay proceedings in the case to give time for the Solicitor General's office to consider appellate options. At a hearing Monday in Washington, Jackson rejected the government's request. The case had been on hold since June 2012.

DOJ Takes Swipes at D.C. Circuit's Recess Appointment Ruling

The U.S. Justice Department this week offered its first extended, public analysis of the controversial court ruling in Washington that invalidated President Barack Obama's recess appointments to a federal labor board.

Top DOJ officials have until March 8 to decide whether to ask the U.S. Court of Appeals to reconsider its conclusion that Obama overstepped his authority last year when he used his recess appointment power to install three members on the National Labor Relations Board.

On Thursday night, DOJ, in a pending labor dispute in a federal appeals court in Philadelphia, offered a glimpse of legal arguments the government could make in asking the full D.C. Circuit to overturn the three-judge panel decision in Noel Canning v. NLRB.

"The Noel Canning decision conflicts with nearly two centuries of Executive Branch practice and the decisions of three other Courts of Appeals, two of them sitting en banc," Beth Brinkmann, a top DOJ Civil Division appellate lawyer, said in the brief in the U.S. Court of Appeals for the Third Circuit. The ruling's constitutional conclusions, Brinkmann continued, "threaten a serious disruption of the separation of powers."

The Morning Wrap

Filed: The U.S. Justice Department has asked the Supreme Court to strike down California's ban on gay marriage, saying the Constitution projects the right for gays and lesbians to marry. The Los Angeles Times has this report. More coverage here and here.

Arrived: Congress and the White House haven't yet reached a deal to avoid across-the-board automatic cuts. From The Washington Post: "One day before automatic spending cuts were due to hit the Pentagon and other federal agencies, Congress on Thursday abandoned efforts to avert the reductions and left town for the weekend. The sequester is here, and policymakers have no plans to end it."

Merged: From Corporate Counsel today, this story: Most Big M&A Deals Faced Legal Challenges in 2012. "It was a rare merger or acquisition deal in 2012 that escaped legal challenges from shareholders, according to a study released Thursday by Cornerstone Research, which specializes in analyzing financial issues in commercial litigation and regulatory proceedings," the report said.

Dear Congress: Patricia Wald, a former chief judge of the U.S. Court of Appeals for the D.C. Circuit, is urging Congress to fill vacant slots on the Washington-based appeals court. Wald has this op-ed in The Washington Post.

DOJ: Dismiss Suit Over Supreme Court Visitor's 'Occupy Everywhere' Jacket

Fitzgerald Scott was viewing exhibits inside the U.S. Supreme Court last year when a police officer confronted him and demanded he remove his jacket.

Painted on the jacket were these words: "Occupy Everywhere." The deputy chief of the Supreme Court Police, Timothy Dolan, told Scott to take off the jacket or leave the building. Scott, according to Dolan, was violating the law that restricts expression inside the high court: no signs and no demonstrations.

Dolan, according to prosecutors, warned Scott he'd be arrested if he didn't comply. Scott was charged, under District of Columbia law, with unlawful entry. (He wasn't booked on the federal law that prohibits certain expressive activity inside the Supreme Court building.) Prosecutors, however, later abandoned the case. Scott filed suit in Washington federal district court.

This afternoon, the U.S. Attorney's Office for the District of Columbia asked a federal judge in Washington to dismiss Scott's case, which claims the authorities had no basis to make an arrest. The complaint also said the jacket's "pure speech" was protected under the First Amendment.

D.C. Circuit Appears Skeptical of FCC in Tennis Channel Case

A federal appeals court in Washington today appeared poised to strike down a Federal Communications Commission decision that found the country's largest cable television provider discriminated against the Tennis Channel by restricting its distribution to a sports package.

A lawyer for the commission, Peter Karanjia, faced tough questions from a panel of the U.S. Court of Appeals for the D.C. Circuit, where Comcast Cable Communications LLC is fighting the FCC order. The agency ruling was the first-ever in two decades under a provision of federal communications law that Congress enacted to promote competition and diversity in cable television programming.

Judges on the D.C. Circuit panel expressed concern about whether the Tennis Channel's complaint is time-barred and whether the agency order could expand the power of the government to regulate the speech of other entities. One judge, Brett Kavanaugh, said the FCC "has a serious problem with the First Amendment here."

The appeals court didn't immediately rule in the closely watched case. Bloomberg L.P. filed papers in support of the FCC. On the other side, the National Cable & Telecommunications Association wants the FCC order vacated. A team from Gibson, Dunn & Crutcher represents Comcast.

DOJ Intervenes in Whistleblower Suit Against Lance Armstrong

For a couple of years, the federal government has remained on the sidelines of a lawsuit in Washington that alleges Lance Armstrong and others made false claims to the U.S. Postal Service in connection with the agency's sponsorship of a professional cycling team.

The U.S. Justice Department announced today, ending months of speculation, that the government is jumping into the suit to back the plaintiff, Floyd Landis, who rode with Armstrong on the professional team the USPS-sponsored between 2002 and 2004. The government alleges Armstrong's use of performance-enhancing substances was a violation of the USPS sponsorship agreement. This amended complaint was filed today.

"Lance Armstrong and his cycling team took more than $30 million from the U.S. Postal Service based on their contractual promise to play fair and abide by the rules—including the rules against doping,” Ronald Machen Jr., the U.S. Attorney for the District of Columbia, said in a statement. “The Postal Service has now seen its sponsorship unfairly associated with what has been described as ‘the most sophisticated, professionalized, and successful doping program that sport has ever seen.’"

Lawyers who represent whistleblower said the case will be closely watched for what will likely be the battlefield of the dispute: Was the USPS harmed?