The BLT: The Blog of Legal Times

House Investigators Charge Rangel With 13 Counts

Rep. Charles Rangel (D-N.Y.) violated congressional ethics rules and federal law in the handling of his personal finances and his fundraising for a university institute, a subcommittee of Rangel's colleagues charged today.

Two members of the House ethics subcommittee, for the first time, laid out their findings from a two-year investigation of Rangel, a 40-year veteran of the House of Representatives.

Reps. Gene Green (D-Texas) and Jo Bonner (R-Ala.) said their four-member subcommittee adopted 13 counts against Rangel, though not all the counts had unanimous support. Some of the 13 counts are general — for example, bringing discredit on the House — while others relate to more specific rules such as the use of official stationery.

The counts confirm months of media reports about what investigators were focusing on. The subcommittee alleges that Rangel failed to pay taxes on rental income from a property he owns in the Dominican Republic, that he improperly accepted a gift when he was allowed to pay reduced rent on New York City apartments, and that he improperly solicited charitable contributions from lobbyists and business executives for a City University of New York institute named for Rangel.

Bonner said the investigative subcommittee had intended to finish its work two years ago. But, he said, additional evidence kept coming to light, and the subcommittee faced delays in getting some documents. The congressional investigation began with a request from Rangel himself, who said in 2008, after several media investigations, that he wanted to clear his name.

Green said the subcommittee met more than 60 times, made 160 formal requests for documents, and reviewed 28,000 pages of documents and testimony. It deposed Rangel once, in December 2009, Green said.

Rangel was not required to attend today’s hearing at which his colleagues described the 13 charges, and he did not go. His legal team, led by Zuckerman Spaeder partner Leslie Kiernan, submitted a 32-page defense (PDF) against the charges. Kiernan also attended the hearing, sitting in the front row.

"The undisputed evidence in the record — assembled by the Investigative Subcommittee over its nearly two-year investigation — is that Congressman Rangel did not dispense any political favors, that he did not intentionally violate any law, rule or regulation, and that he did not misuse his public office for private gain," the defense reads.

The 13 charges will now be considered by a new, 10-member adjudicatory subcommittee. Rangel is expected to have two months to develop a defense. Then, the subcommittee is set to put him on trial, make findings of fact and recommend possible sanctions.

Rep. Michael McCaul (R-Texas), the top Republican on the new subcommittee, said it was time to move beyond a possible settlement with Rangel and to begin “the trial phase.” A former federal prosecutor, McCaul said the credibility of the House is at stake.

“These actions, if proven, would demonstrate that Mr. Rangel violated multiple provisions of the House rules and federal statutes,” McCaul said.

The chair of the new subcommittee, Rep. Zoe Lofgren (D-Calif.), pledged nonpartisanship. “Bound as we are by the precedents of the House, our obligation is to act fairly and without bias or partisanship,” she said.

Updated at 3:51 p.m. with Rangel's defense. Updated at 6:08 p.m. to note Kiernan's appearance.

Catholic University Names New Head of Communications Law Institute

Donna Coleman Gregg has been named director of the Institute for Communications Law Studies at Catholic University of America’s Columbus School of Law. Gregg, a former senior policy adviser at the White House Office of Science and Technology Policy and former chief of the Federal Communications Commission’s Media Bureau during the Bush administration, starts on Aug. 1.

“I’m very honored to be leading such a distinguished program here in Washington, one of the first of its kind,” said Gregg, 61.

As director, Gregg will oversee the curriculum of the 25-year-old institute, as well as research, scholarships, and externship opportunities for students. Before her appointment, she had been with the law school for two years as a scholar in residence and, most recently, as a visiting associate professor.

Gregg worked in the Office of Science and Technology Policy from 2007 to 2008. She served as FCC Media Bureau chief from 2005 to 2007. Prior to that, she was vice president of legal and regulatory affairs and general counsel of the Corporation of Public Broadcasting.

Gregg has also been a partner at what was then Wiley, Rein & Fielding in Washington. She earned her J.D. at Duke Law School.

In a press release concerning the appointment, Veryl Miles, dean of the law school, described Gregg as an “exceptional educator” and one of the “crown jewels” of the school. “I am confident that she will lead our communications law studies program to new heights and help to train the next generation of leaders in this vitally important area of the law,” said Miles.

Durbin's Judiciary Counsel Headed for DOJ

A longtime lawyer for Sen. Dick Durbin (D-Ill.) is taking a job vetting judicial nominees at the U.S. Department of Justice.

Michael Zubrensky has been on Durbin's staff for seven and a half years, serving most recently as the senator's senior counsel for issues before the Senate Judiciary Committee. Zubrensky’s responsibilities extended to judicial nominations, including four successful nominees for the Supreme Court and hundreds of others for lower courts, Durbin said today. At a committee meeting during which Durbin announced the jump, committee lawyers gave Zubrensky an ovation.

Zubrensky previously worked at the Justice Department, starting through the DOJ honors program and rising to become counsel to the assistant attorney general for civil rights. He has a bachelor’s degree from Harvard and a law degree from Stanford.

His new job will be deputy assistant attorney general in the Office of Legal Policy, which, among other things, reviews candidates for judicial vacancies. He’ll succeed Jonathan Meyer as the department’s top, full-time official for judicial nominees. Meyer is staying in the office, moving into a policy role.

Durbin did not announce a successor for Zubrensky on his staff.

Abner Mikva, former White House counsel and former chief judge on the U.S. Court of Appeals for the D.C. Circuit, officiated at Zubrensky’s wedding in 2004, according to an announcement at the time in The New York Times.

The Latest Supreme Court Insider

The latest edition of our new newsletter Supreme Court Insider has been emailed to those who have signed up to receive it. (You can register for free here.) Some of the features in this issue include:

-- A look at the practice of filing friend-of-the-court briefs at the petition stage before the Supreme Court.

-- Appellate lawyer of the week Conal Doyle, a small-firm lawyer from Beverly Hills who argued in one of the more poignant cases of last term.

-- Brief of the week, a petition for rehearing that might have a chance of success, written by D.C. practitioner Alan Untereiner on behalf of a British tobacco firm.

-- A Courtside item on this summer's Supreme Court-related legal thriller.

-- Comentaries on Supreme Court nominations by Miami lawyer Carlos Gonzalez and Roanoke College political scientist Todd Peppers.

Obama Nominates Raffinan to D.C. Superior Court

Maria Elizabeth “Maribeth” Raffinan has become President Barack Obama’s latest nomination to a seat on the D.C. Superior Court. Raffinan is currently a supervising attorney in the D.C. Public Defender Service’s Trial Division.

Raffinan joined PDS in 1999. In 2007, she co-chaired the Deborah T. Creek Criminal Practice Institute, an annual training program for criminal defense practitioners in D.C. She earned her law degree from Catholic University of America’s Columbus School of Law and has served as an adjunct professor at that school.

In a statement Wednesday evening, Obama said, “Throughout her career Maribeth Raffinan has shown a commitment to justice and public service.”

Nominations to D.C. Superior Court tend not to draw much attention outside of Washington. But some of Obama’s recent nominees have found themselves caught up in the ebb and flow of Washington politics. Former Magistrate Judge Marisa Demeo, who opposed the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit at the beginning of George W. Bush's presidency, drew fire for her past advocacy on behalf of Hispanic Americans, although she was confirmed as an associate judge in April.

And last month, three nominees were confirmed to be judges on the court only after Senate Democrats were able to break deadlocks that had ensnared a number of Obama’s appointments.

If she is confirmed by the Senate, Raffinan will serve a 15-year term.

The Morning Wrap

Ruling Against Arizona May be Warning to Other States: The New York Times reports that a federal judge's decision to block central provisions of the states immigration law from taking effect while she finishes hearing the case, vindicated the Obama administration’s high-stakes move to challenge the law. Judge Susan Bolton's decision may be a preview of her thoughts on the case and an indication that the government may prevail in its challenge to the law.

Where has the Oil Gone? Fourteen days after the oil well in the Gulf of Mexico was closed, scientists are left wondering where a substantial portion of the oil has gone. The Washington Post reports that up to 4 million barrels (167 million gallons) remains unaccounted for in government statistics. Some of it has, most likely, been cleaned up by nature. Other amounts may be gone from the water, but they might have become contaminants in the air, or in landfills around the Gulf Coast.

Insurers May Be Cheating Fallen Soldiers' Families: Bloomberg reports that when an American soldier dies in combat, his family benefits from a $400,000 life insurance policy. That is, unless the insurer handling the policy is Prudential Financial, Metlife. Those companies offer bereaved families a “checkbook” for a secure account. What the companies reportedly don’t say is that there’s no special account for each family: the money is held in a general corporate account that is not guaranteed by the FDIC. It earns a tiny amount of interest, sometimes 0.5 percent, compared to what a real bank account would earn.

Pornographers, Keep Those Records Handy: A federal judge in Philadelphia has refused to strike down portions of the federal Child Protection and Obscenity Enforcement Act that require photographers and filmmakers to maintain records that verify the age and identity of anyone depicted in a sexually explicit film or photograph. The Legal Intelligencer reports that Judge Michael Baylson rejected the plaintiffs' claim that the record-keeping requirements are overbroad because they apply to "all expression containing sexual imagery -- no matter how fleeting, no matter how artistic or valuable as political commentary or journalistic documentary, no matter how clear it is that the persons depicted are middle-aged adults."

What's in a Name? A False Statements Charge

When Marlin Moore signed for a package, he didn't use his real name. For that moment, he was a guy named "Kevin Jones."

The authorities had earlier intercepted the package—drugs, of course—and set up a controlled delivery to find out who wanted a shipment of more than 500 grams of powder cocaine. The letter carrier was actually a Postal Service inspector. The cocaine had been replaced with flour. And investigators had slipped a tracking device in the package.

Moore showed up at the house in Northwest Washington as the package was being delivered.

In addition to various drug crimes, Moore was charged with making a false statement for signing a fake name. At trial, he admitted using a made-up name. He was convicted on three charges and sentenced to 10 years in prison—a term that included a five-year stint for the false statement. On appeal, he challenged the false-statements charge.

The U.S. Court of Appeals for the D.C. Circuit July 27 unanimously upheld the false-statements conviction, holding that the fake name was, indeed, “materially false” and could have affected the ability of the government to track packages.

In April, an assistant federal public defender, Sandra Roland, argued for Moore that his use of a false name had no power to influence the Postal Service. The investigator who delivered the package did not ask Moore for his name or for identification. The package was addressed to a “Karen White.”

Roland did not find a single case where the government charged a person with making a false statement for using a fake name to accept a package from the postal service.

"The law books are replete, however, with cases in which people used fake names to sign for packages during controlled deliveries but were not charged" with making a false statement, Roland said in court papers in March.

The D.C. Circuit panel—Judges Douglas Ginsburg, David Tatel and Brett Kavanaugh—said the fake name was material because it could have impeded the government’s trafficking investigation.

Moore was arrested at the residence where the package was delivered, the court noted. “Had Moore not returned, his having given a false name could have prevented the Postal Service from identifying and locating him in pursuit of its investigation,” Ginsburg wrote.

Assistant U.S. Attorney Sarah Chasson argued for the government in the D.C. Circuit.

Congress Passes Bill to Cut Crack Sentences

Lawmakers today gave final approval to a bill that would reduce the long-standing disparity between federal sentences for crack and powder cocaine distribution.

The vote in the U.S. House of Representatives follows a debate that has raged since the 1980s. Critics have blasted the distinction between crack and cocaine sentencing — 5 grams of crack triggers a mandatory sentence of five years while it takes 500 grams of cocaine to trigger the same sentence. The disparity has had a disproportionate impact on African-American men, the critics say.

The 100-to-1 ratio would be reduced to 18-to-1 under the legislation, which raises the threshold to 28 grams of crack for a mandatory five-year sentence.

The Senate passed the legislation in March, so it now goes to President Barack Obama, who is expected to sign it.

Sens. Patrick Leahy (D-Vt.) and Jeff Sessions (R-Ala.), supporters of the legislation and the top senators on the Senate Judiciary Committee, praised the vote. “These disproportionate punishments have had a disparate impact on minority communities. This is unjust and runs contrary to our fundamental principles of equal justice under law,” Leahy said in a statement.

In a separate statement, Sessions said the bill strikes a balance: “It was crucial that we achieve greater parity in sentencing while not impeding law enforcement’s ability to protect communities from the devastating violence associated with the sale and distribution of crack cocaine.”

Support was not unanimous, though. Rep. Lamar Smith (R-Texas), the top Republican on the House Judiciary Committee, said in a statement that the legislation “could expose our neighborhoods to the same violence and addiction that caused Congress to act in the first place.” Crack cocaine, he added, “is associated with a greater degree of violence than most other drugs.”

The legislation makes other sentencing changes as well. It eliminates the five-year mandatory minimum sentence for simple possession of crack, raises the fines for major drug trafficking, and increases sentences for those who use violence while trafficking drugs.

Judge Blocks Arizona Immigration Law for Now

Updated 4 p.m.

A federal judge today halted key provisions of Arizona's controversial new immigration law, holding that enforcement of the law would likely burden legal resident aliens and interfere with federal policy.

Judge Susan Bolton of the U.S. District Court for the District of Arizona issued a preliminary injunction blocking enforcement of the provisions, which would have taken effect on Thursday.

Bolton enjoined one provision that required police to make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested. Other portions of the law that are subject to the preliminary injunction include those making it a crime for an alien to fail to apply for or carry alien registration papers and making it a crime for an unauthorized alien to solicit, apply for, or perform work.

“The Court by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime including the trafficking of humans, drugs, guns, and money,” Bolton said in the 36-page ruling (.pdf). “Even though Arizona’s interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws.”

The Justice Department on July 6 filed the suit against Arizona seeking to block the enforcement of the immigration law on the ground that federal law pre-empts the state’s action. Click here for a background story.

A Justice spokeswoman, Hannah August, today issued a statement that said: "While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement and would ultimately be counterproductive. States can and do play a role in cooperating with the federal government in its enforcement of the immigration laws, but they must do so within our constitutional framework."

Chief counsel of The Washington Legal Foundation, Richard Samp, said in a statement that Bolton's ruling "cries out for appeal." The WLF participated in the litigation in defense of the state law.

Bolton, according to Samp, had no reasonable basis to determine the Arizona law would interfere with federal law. "It is extraordinary for a federal judge to enjoin enforcement of a state law even before the law is allowed to go into effect," Samp said.

FTC Breaks Up Yet Another Consummated Deal

The Federal Trade Commission continues its streak of breaking up consummated mergers, announcing today that Australian chemical company Nufarm Limited will sell assets related to its 2008 acquisition of rival A.H. Marks Holding Limited.

The FTC charged that the deal hurt competition in the U.S. market for three herbicides that are relied upon by farmers, landscapers, and consumers.


Under a proposed FTC settlement, Nufarm will sell rights and assets associated with two of the herbicides to competitors and will modify agreements with two other companies to allow them to fully compete in the market for the other herbicide.

Nufarm was represented by Steven Kowal of K & L Gates. FTC lawyers who worked on the matter include Jonathan Platt and Nancy Turnblacer.

The settlement marks the third time in two weeks that the FTC has gone after a consummated merger. As reported in The National Law Journal this week, the FTC since the start of fiscal year 2009 has challenged eight consummated mergers. By comparison, during the previous five years, the FTC averaged just one complaint per year.

The uptick in enforcement coincides with a decline in merger filings under the Hart-Scott-Rodino Act, which requires companies to notify the FTC or Department of Justice about large mergers -- the current threshold is $63.4 million -- prior to closing.

In 2009 fiscal year, a mere 713 such merger reviews were filed, a 30-year low