Federal Criminal Defense Attorneys

Federal Charges Filed Against Megaupload

Wed, 08 Feb 2012 10:21:29 -0500

The Department of Justice unsealed a 72-count indictment last week, charging Megaupload.com executives with numerous counts of copyright infringement, piracy, conspiracy, money laundering, and racketeering. The indictment alleges that Megaupload reaped 175 million dollars in profits at the expense of copyright holders and website subscription members.

Megaupload was a global file-sharing website, who charged members a monthly subscription fee for access to unlimited music, movies, and television downloads and streaming video. However, while members were paying Megaupload for this service, Megaupload did not pay anyone for their copyrights. The website's owners, several located in New Zealand, lived in the lap of luxury and drove Rolls Royce and Maserati cars with personalized license plates donning phrases like "Mafia Hacker" and "Guilty." DOJ estimates approximately 500 million dollars in damages resulted from Megaupload's scheme.

The franchise used web servers in Eastern Virginia, enabling the charges to be filed there in federal court.

Several commentaries have argued that recent court decisions making international securities violations that occur overseas inaccessible to U.S. prosecutors will shield Megaupload from criminal convictions. While good attorneys will make this argument, international money laundering is still a very serious crime and will be difficult to defeat.

DOJ shut down Megaupload's various websites upon releasing the indictment and issuing arrest warrants, sparking public debate with political hacktivist group "Anonymous." The group, garbed in their trademark Guy Fawkes masks, issued retaliatory statements against internet censorship and copyright laws, and promptly shut down several government and entertainment industry websites. The DOJ and Universal Music websites were down for what seemed like an entire day. Little does Anonymous know, each time one of their members buys a Guy Fawkes mask, Time Warner collects fees on their copyright license.

The evolution of this case and the political chatter surrounding it should be entertaining to say the least.

This blog post was written by law clerk Rosie Escobar Brown. Price Benowitz LLP was founded by federal criminal lawyer David Benowitz. In addition to criminal defense, the firm handles personal injury and immigration cases. For more information about the personal injury practice, please visit the firm's DC car accident lawyer website.

Computer Crimes Rising on List of White Collar Offenses

Mon, 30 Jan 2012 08:27:50 -0500

In 2010, Washington, D.C. ranked third on the list of cyber-crime hot spots out of 50 U.S. cities, outranked only by Boston and Seattle. White collar crime is quickly evolving from securities and mail fraud to computer and wire fraud. In this technologically charged era, most white collar offenses are facilitated through the use of interstate computers, and federal law carries particularly heavy penalties for these types of crimes.

The problem with these heavy penalties is that potential sentences coax defendants into entering plea bargains with the government, rather than taking a risk and exercising their constitutional right to a trial by jury. When facing 25 years in a federal penitentiary if unsuccessful at trial, defendants opt for the 3 to 5 year plea offer that is on the table instead. Federal prosecutors often "stack" charges, alleging numerous criminal violations in one indictment including computer and wire fraud, money laundering, conspiracy, or even stretch the gambit to press racketeering charges where it may not be warranted. This stacking technique results in exorbitantly high sentence possibilities and often leaves suspects with nothing but a Hobson's choice to determine their fate, forced to choose with no real options.

Some who are suspected of cyber-crime did not intend to commit a crime at all, but merely used their tech-savvy skills to access a particular network. All it takes is affecting 10 or more computers or more than $5,000 in system repairs for this act to become a felony, and ISP tracing methods make it easy for the feds to locate the person responsible.

Similarly, some executive white collar defendants are charged with crimes that they were unaware of. Most executives trust that their employees will discover and alert them of fiscal anomalies and avoid inappropriate transactions. While the employees may not uncover mix-ups, the federal authorities certainly will and computer networks make it easy to do so.

Mail fraud in the traditional sense rarely occurs anymore. Gone are the days of affixing a stamp to an envelope. Instead, people are using the internet to communicate and mail fraud is quickly being replaced with wire fraud. Where computers are involved in the commission of an offense, inflated federal penalties will accompany criminal charges.

Admittedly, uncountable crimes have occurred when computer hackers both intended to do harm and retrieved data for unscrupulous use. Most recently, the internet retail shoe giant Zappo's experienced a security breach, where a hacker accessed the database and retrieved private information about 24 million consumers. Even in this case, however, the authorities have not located the hacker. As a die-hard optimist, I imagine some brilliant college student testing out new skills and haphazardly accessing this information only to exit the network without saving or using any of the data. Unfortunately, in the eyes of federal law even this act would constitute a felony regardless of an absence of criminal intent, as Zappo's is spending huge amounts of money re-securing their system and addressing the backlash from consumers. In the eyes of the law, the intent to cause damage need not be present, only the intent to access information does.

Computers facilitate so many crimes that a majority of Americans have a legitimate fear of identity theft. In an effort to educate Americans on how to protect themselves, Google launched a nationwide campaign on how to keep internet activity and identity information secure on the web. With more than four billion computers connected to the web, it is no surprise that computer crimes of all shapes and sizes have arisen as a new white collar trend. Likewise, it is no surprise that the feds would institute weighty sentences and strict liability laws to deter such crimes from occurring.

This blog post was written by Rosie Escobar Brown, a law clerk at the law firm Price Benowitz LLP. Founded by DC criminal defense attorney David Benowitz, the firm handles criminal, personal injury, and immigration cases. For more information about the firm's personal injury practice, you can visit the Washington DC Personal Injury Attorneys website.

Prosecutorial Misconduct Slammed by the Supreme Court

Fri, 20 Jan 2012 12:22:33 -0500

Withholding information favorable to the defendant was seemingly a long-standing practice in one New Orleans prosecutor's office. The Supreme Court handed down a decision last week overturning a murder conviction because the prosecution never handed over prior statements of the government's one eyewitness.

Juan Smith was convicted of first-degree murder based on the eyewitness testimony of one single person. There was no other evidence at all connecting Smith to the crime. In an unethical attempt to secure the conviction, prosecutors held back prior statements made by this witness indicating that he could not see who committed the crime as he did not have a good view and there was poor lighting. This kind of information was very valuable to the defense for its potential to discredit the eyewitness, and the foundational case Brady v. Maryland requires that any favorable information be turned over by prosecutors.

Eyewitness testimony has been largely discredited in recent years amid studies showing that memories can be molded to believe just about anything. A once uncertain eyewitness can tentatively identify a suspect and, after affirmation by observing law enforcement that they "picked the right guy," can then become one-hundred percent certain. Another method of faulty identification can come from the tendency to choose the best option out of a certain selection. Even if the true suspect is not present, the witness will choose the one who most closely fits their memory's image.

This was not the first time the New Orleans prosecutors under former District Attorney Harry Connick Sr. had a decision overturned; a similar conviction was likewise overturned by the justices only a year prior.

Smith's case highlights many of the prevalent flaws with the American criminal justice system: (1) Prosecutorial misconduct DOES happen; (2) there is little to no disciplinary action or systematic checks available to remedy it; and (3) single eyewitness accounts, faulty and error-prone as they may be, are still being used to convict people of serious crimes when no other evidence exists. While the inaccuracy of the human memory is understood among legal professionals, prosecutors still persist in pressing charges and consuming state resources when not a single shred of other evidence ties a person to a crime. This is how innocent people end up in prison. Unfortunately, it occurs more often than we think.

For now, the Supreme-9 have slapped the hands of these prosecutors once again, and perhaps set the bar for other prosecutors around the nation. Their wise message: Prosecute in good faith, or we'll utter the phrase that prosecutors loathe..."REVERSED."

Rosana Escobar Brown wrote this blog post. She is a law clerk at Price Benowitz LLP and in her final year of law school. Price Benowitz LLP is a DC law firm with additional offices in Maryland, Virginia, and New York. Founded by criminal defense lawyer David Benowitz, the firm has a growing personal injury practice in addition to its criminal defense practice. For more information, please visit the firm's Washington DC Personal Injury Attorney website.

Vote for the ABA Journal's Best Blawg of 2011

Mon, 12 Dec 2011 16:59:27 -0500

We are proud to announce that one of our attorneys and two friends of the firm have had their blogs nominated by the ABA Journal for Criminal Justice Blawg of the year: Mirriam Seddiq, who is of counsel with our firm and who writes the blog not Guilty No Way, Matt Kaiser, who blogs about federal appeals cases, and Jamison Koehler, author of the Koehler Law Blog.

This is the fifth year that the ABA Journal has sponsored a contest to find the best blawgs out there. This year it received over 1300 nominations and has narrowed the field to 100 blawgs covering the following categories: News, Trial Practice, LPM, Niche, For Fun, Opinion, IP Law, Labor and Employment, Criminal Justice, Business Law, Torts, and Legal Technology. We are very excited for our three attorney friends whose blawgs have made it this far in the process!

Mirriam Seddiq is of counsel with Price Benowitz LLP and the writer of the blog Not Guilty No Way. In 2010 her blog was voted the Criminal Justice Blawg of the year by the ABA Journal, and she has been nominated for the award again this year. Not only does she offer great legal representation to her clients, but she calls it like she sees it and holds nothing back. The result is a blog that is funny, irreverent, and uncensored. We are thrilled that she is part of our team.

Matt Kaiser is an experienced federal defense attorney in Washington, DC and has a blog dedicated to federal appeals cases, especially those where the criminal defendant wins. A former federal public defender, Matt's blog brings a very particular and practiced knowledge to an underserved area of law. He represents people accused of serious federal crimes and who are appealing federal convictions or sentences. His ample experience on the subject of federal appeals shines through his writing, rendering his blog both smart and informative.

Jamison Koehler is a well-respected practitioner in Washington, DC and author of the Koehler Law Blog. His blog offers more than great writing; it has become the go-to destination for readers seeking news and information about the DC criminal justice system. Koehler's blog covers a wide variety of topics related to criminal defense that appeal to lawyers, people charged with a crime, and laymen who have no connection to the law but who can appreciate a blog that is well-written and insightful.

These three attorneys and bloggers have truly raised the bar for law bloggers everywhere, and we are thrilled to hold them as the examples to which our white color blog can aspire. Please visit the ABA Journal's 2011 Blawg Contest and vote for our friends Mirriam Seddiq, Matt Kaiser, and Jamison Koehler.

No More Cell Phones in Court

Thu, 10 Nov 2011 17:11:02 -0500

Waiting for a court hearing can be about as entertaining as watching paint dry. Take it from me, a law clerk who has spent many hours of downtime in the courtroom. But now we can't play a game of "Angry Birds" anymore to pass the time. As of Wednesday, November 9th, the D.C. Superior Court has adopted a new regulation prohibiting the use of cell phones, laptops, tablets, and other electronic devices in the courtroom.

Administrative Order 11-17 comes from concerns that advancing technologies enable video or audio recording and photography on small, undetectable devices. Cameras and video equipment were already forbidden from the courtroom for some time.

The rule exempts certain people including members of the D.C. Bar, law enforcement, and other officers in court on official business; people who are representing themselves in court and members of the media may apply for exemption with the presiding judge. If you are not exempt from this rule, you will be made to turn off your device and store it someplace where it is not visible before you can enter the courtroom.

Put Up or Shut Up

Wed, 09 Nov 2011 09:44:14 -0500

Yesterday, the Supreme Court took the New Orleans prosecutor's office to task during an oral argument in Smith v. Cain for what one justice said was a long history of accusations that the office has blatantly ignored the right of defendants to be provided with exculpatory evidence before trial pursuant to the landmark ruling in Brady v. Maryland, which has been on the books since 1963.

The problem is that the Court is not willing to do anything beyond scold. Just last term, in Connick v. Thompson, the Court reversed a $14 million civil rights judgment against the same office for doing the same thing in a different case. The justices don't seem to get that at this point there are no true consequences for failure to turn over exculpatory evidence.

Here's how the system currently works. Someone is charged with a crime. The government withholds evidence that shows that the person didn't do it.

Unrestricted Power

Tue, 04 Oct 2011 16:08:51 -0500

Over the weekend, an Alabama law went into effect that requires law enforcement to try to verify the immigration status of anyone involved in a routine traffic stop or arrest if a "reasonable suspicion" exists that the person is in the country illegally. The law criminalizes the "willful failure" of a person in the country illegally to carry federal immigration papers. It requires public schools to ask about the legal status of children born in foreign countries and that of their parents. Contracts knowingly entered into with illegal immigrants will be considered invalid, and illegal immigrants will not be allowed to enter into "business transactions" with the state, including applying for driver's or business licenses.

The reasonable suspicion "standard" gives police unlimited power to investigate anyone's immigration status because there is no penalty to a police officer who gets it wrong. In a normal traffic stop, if a police officer searches a car or a person in it without reasonable suspicion, the fruits of that search will be suppressed.

Safe Surrender Days in DC for Outstanding Warrants

Wed, 10 Aug 2011 15:13:35 -0500

On three Saturdays this month, the DC Superior Court will be holding "Safe Surrender" days. This means that if you have outstanding warrants in DC, by going to the Moultrie Courthouse this August 13th, 20th, or 27th before 4:30 p.m. you can turn yourself in, have a hearing, and possibly go home that day.

Typically, turning yourself in for an outstanding warrant involves having to be at the courthouse before 10:00 a.m. and spending hours in handcuffs or shackles until a judge finds time for your arraignment. Instead, if you use the program you can resolve your warrant in a quiet and civilized way, without the risk of being hunted down by law enforcement at your home or job, or arrested during a traffic stop and having your car impounded as a result. The 2007 program let about 500 people turn themselves in and resolve their outstanding warrants safely and quietly, and all but 10 of those people went home that same day.

Keep in mind though, that not all warrants are eligible for the program. If you have bench warrants in pending cases or warrants in DC for criminal charges, parole or probation violations, or for having failed to appear in court, Safe Surrender may work for you. But, it is limited to cases involving non-violent felonies and misdemeanors or traffic violations. If you have warrants based on a crime of violence, domestic violence, juvenile matters, child neglect, or child support, then you are not eligible for the program. Remember, this program only applies to District of Columbia warrants and will not shield you from answering warrants in another jurisdiction or state, or in any other court than DC Superior.

To see if you are eligible for Safe Surrender, go to www.dcsafesurrender.org and click "Bench Warrants" in the left-side panel for a complete listing.

The goal of the "Safe Surrender" program is to offer people an opportunity to answer their warrants safely, without law enforcement storming into their homes or jobs with their families, friends, or co-workers as witnesses. It gives you the rare chance to gain some peace of mind and stop wondering "when will they catch me?" Lastly, if you are eligible and turn yourself in on one of these days not only will you likely go home without spending a night in jail, but an experienced defense attorney could use your surrender to negotiate a favorable outcome in your case.

While you could go to Safe Surrender without legal representation, you should consult with an experienced DC defense attorney first. Being represented by qualified counsel before turning yourself in would benefit you in having a consistent advocate by your side throughout your case who understands the criminal justice system.
If you would like to turn yourself in during this program simply go to:

DC Superior Court
Moultrie Courthouse
500 Indiana Avenue, NW
Washington, DC 20001

On one of three Saturdays offering the program:
August 13th, August 20th, or August 27th between the hours of 9:30 a.m. and 4:30 p.m.

This blog post was written by Rosie Escobar. Rosie is a law clerk at Price Benowitz LLP and goes to Fordham University School of Law.

Dominique Strauss-Kahn: A Victim of Rush to Judgement?

Fri, 01 Jul 2011 09:00:00 -0500

This morning, the New York Times reported that the case against Dominique Strauss-Kahn is collapsing as investigators have uncovered evidence that his accuser, a 32-year old housekeeper at the Sofitel Hotel, has huge credibility problems. It appears that within a day of making the accusation, she had a recorded jail conversation with someone charged with possessing 400 pounds of marijuana about the benefits of pursuing the charges against Strauss-Kahn. That person, along with others, has deposited about $100,000 into her bank account over the past two years. She also has five cell phone accounts. As well, she claimed that she'd been previously raped and that she'd disclosed that in an asylum application; this was not supported by the application.

Prosecutors had originally sought to hold Mr. Strauss-Kahn without bail, relying in part upon the credibility of the accuser, saying that her story was "compelling and unwavering." The only reason he was released was because he was able to put up an extraordinary amount of bail and had the means to pay $250,000 per month for a security staff to guard him on house arrest. Mr. Strauss-Kahn was forced to resign from his post as the head of the IMF as a result of his arrest.

According to the Times, although defense attorneys had been making noise about the housekeeper's credibility from the start, Manhattan DA investigators discovered much of this damning evidence.

The problem is that the DA's office indicted Mr. Strauss-Kahn quickly, before investigating the credibility of their only witness to the alleged event. It's cost him his reputation, his freedom, and a ton of money. Were he not such a high profile figure, he'd most likely be locked up at Rikers Island, and the DA's office would certainly not be devoting the resources to fully investigate their only witness. He would've been screwed. Patience and discretion could have prevented this fiasco.

David Benowitz is a Washington DC defense attorney and founding partner of Price Benowitz LLP. He received an LLM in Trial Advocacy from Temple University and graduated from The George Washington University School of Law. David is a member of the National College for DUI Defense and is a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy. Price Benowitz LLP is a DC based law firm with additional offices in Maryland, Virginia, and New York. For more information about David or the firm, please visit the DC DUI website.

John Edwards- A Hypocrite But Not a Felon

Wed, 15 Jun 2011 11:14:53 -0500

This post was written by founding partner of Price Benowitz LLP, Washington DC criminal defense attorney, David Benowitz. He received an L.L.M. in Trial Advocacy from Temple University and earned his J.D.from The George Washington University School of Law. David is a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, and as a Washington DC DUI lawyer, he is a member of the National College of DUI Defense.

John Edwards was recently indicted on six counts of campaign fraud. The government alleges that Edwards' friends provided money, not declared as campaign contributions, that was used cover up the existence of the child he fathered with his mistress while his wife was dying of cancer. According to the government, these were "campaign contributions" that aided his run for president by heading off negative publicity that would've detracted from his family values theme.

In fact the indictment states:

A centerpiece of EDWARDS' candidacy was his public image as a devoted family man. The communication strategy developed by EDWARDS' campaign stressed the importance of publicizing, among other things, "that [EDWARDS'] family comes first.

Here's the problem, or problems, with the government's case. There is no doubt that Edwards' conduct is morally indefensible. But you already have Scott Thomas, former head of the Federal Election Commission (FEC) with thirty years of experience at the agency. Mr. Thomas presumably knows what he's talking about; he says that Edwards' actions shouldn't even result in civil liability, much less criminal. Now, he's been retained as an expert witness by Edwards, but he's also putting his reputation on the line in an extremely public way.

Let's assume for the sake of argument that the government's allegations are true - Edwards' wealthy patrons provided him with money never declared as campaign funds. But suppose Edwards used them to obtain non-FDA approved cancer treatment for his ailing wife. Arguably, this would promote the family values campaign platform. Would this be unlawful?

Seems like the calculus used to decide whether to prosecute is skewed. You can't prosecute someone for being a hypocritical scumbag.

DC Criminal Defense Attorney's Thoughts on Weekend Arrests of Protesters by US Park Police

Tue, 31 May 2011 14:21:41 -0500

This post was written by David Benowitz. He is a founding partner of Price Benowitz LLP and a Washington DC criminal defense attorney. He received an LL.M in Trial Advocacy from Temple University, is a member of the National College for DUI Defense, and is a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy. Price Benowtiz LLP is a Washington, DC based law firm with offices in the District, Maryland, Virginia, and New York. For more information, please visit the firm's Maryland Personal Injury Lawyer website.

I just read an article in The Washington Post titled "Park Police probes conduct of officers in arrests of dancing protesters at Jefferson Memorial." USPP officers are being investigated for using excessive force (here's a YouTube video) in arresting people for dancing at the Jefferson Memorial in protest of a recent appeals court decision banning dancing, even without music, inside a memorial. According to the article, which appears to be supported by the video, one officer grabbed a protester by the throat. Perhaps the protester was dance fighting. A bigger question is why would a federal appeals court uphold a ban on dancing at a memorial?

I've had several experiences with Park Police officers, both professional and personal. I represented an eighteen-year-old young man who had the misfortune of supposedly cutting off a USPP cruiser on his ten-speed. An officer drew his assault rifle in response.

I was running with a group of friends in Rock Creek Park on a Saturday morning, at about 10:30 am. Three officers on horseback rode through. One ordered another person who had his dog , a smallish poodle, off of a leash, to leash his dog. The exchange went something like this:

Officer: You better get a leash on that dog.
Citizen: Sorry officer, I'll go get it. It's just up the trail a bit.
Officer: You are sorry. You will get that leash.
Citizen: Yes sir, I'll get the leash.
Officer: You will get that leash.
Citizen: I will.
Officer: You will.

Now, the dog should have been on a leash. But did this require the attention of three mounted police officers, who were all riding together? On second thought, based upon the above exchange, perhaps all three officers need to stick together for problem-solving purposes.

I did a little research on the USPP; it was founded in 1791 by George Washington, and has been protecting our parks for over 200 years. Hopefully officers haven't been spending all that time focused on the enforcement of dancing bans, and leash laws.

In all of these incidents, it's clear that the USPP has an utter lack of perspective and lack of focus on priorities, i.e. protecting all of us from violence. Luckily there is video of this incident, otherwise there is no way that anyone would further investigate the memorial incident. What's scary is that I've seen hundreds of cases like this during my years as a criminal defense attorney, only without the video to upload to YouTube. This is one of the reasons I do what I do.

What Does Alberto Gonzales Teach?

Thu, 26 May 2011 17:04:00 -0500

David Benowitz is a criminal defense lawyer in Washington DC and founding partner of Price Benowtiz LLP. He is a member of the National College for DUI Defense and is recognized by the National Board of Trial Advocacy as a Board Certified Criminal Trial Advocate. Over the course of the last twelve months, the local media has turned to David in his role as a DUI attorney in Washington DC for commentary about the ongoing breathalyzer scandal

On May 24, 2011, BLT: The Blog of Legal Times reported that former Attorney General Alberto Gonzales has said for the first time that "I am disappointed that I didn't do things differently" to stop the politicization of the system of hiring career Justice Department attorneys during his time in office. Gonzales admitted this while being deposed in a lawsuit filed by applicants denied positions because of the distorted hiring process. This is the kicker, Gonzales is now teaching in the Political Science Department at Texas Tech University. His school bio says that "Judge Gonzales teaches courses on issues for homeland security and immigration for public administrators."

The press release issued when Judge G. was hired is scary. In part:

He will help Texas Tech and ASU prepare our students for success and to be future leaders in the State of Texas and beyond." Lawrence Schovanec, interim dean of Texas Tech's College of Arts and Sciences, said, "Judge Gonzales brings a unique experience to our classroom. His career in law, government and public service will provide our political science students a rich perspective of the executive branch and issues and challenges facing our nation. "

Interesting. My guess is that he is either unable to get a law school teaching position or that he realizes the unending scrutiny he'd face from (gasp) liberal students with a spine.

I can imagine a Socratic exchange with a first-year law student on the first day of class:

A.G.: What's the holding in Pennoyer v. Neff?
Student: Please defend your position on torture in light of the Geneva Convention.
A.G.: .......

What does he teach his students? What's his "rich perspective?" A how-to on firing nine U.S. Attorneys? How to dumb down the Department of Justice by hiring political hacks? The fact that it took a deposition for Gonzales to exhibit disappointment in himself is astounding.

Thanks for the memories.

"I Didn't Think it was Possible, but you're worse as a litigant than you are as the Redskins' Owner" - A DC Trial Lawyer's Perspective on Dan Snyder's Lawsuit

Fri, 06 May 2011 17:43:40 -0500

This post was written by David Benowitz, a Washington DC DUI attorney and founding partner of Price Benowitz LLP. David received an LL.M in Trial Advocacy from Temple University, is a member of the National College for DUI Defense, and is a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, for his work as a Washington DC criminal defense attorney.

In the interest of full disclosure, I have been a New York Giants fan since I was about three years old. I've lived in Washington, DC for almost twenty years, and the Redskins' off the field decision making and on the field play have provided me with unending pleasure. I laughed hysterically when the Albert Haynesworth deal was announced, since it was clear to everyone except owner Dan Snyder that there was no way he was worth $40,000,000 guaranteed. The Redskins are run in completely the opposite way that the Giants are operated. Here's a little secret, big free agent signings, poor drafts, and constant coaching and system changes will kill your team. By the way, thanks for Antonio Pierce, who signed with the Giants for a reasonable amount of money and led the defense to a 2007 Superbowl victory because someone in your office forgot to call his agent back to respond to his counteroffer.

To top it off, as a response to an article in the Washington City Paper chronicling the ridiculous number of ways in which Snyder has run the team into the ground, Mr. Snyder decided to sue the paper and author Dave McKenna personally for defamation and libel in a local DC court. Basically, what that means is that Mr. Snyder is claiming that the City Paper deliberately published false information that injured his reputation. Since Mr. Snyder is a public figure, he has to demonstrate that the City Paper made the statements at issue with "actual malice," which means that either the City Paper and McKenna knew the statements were false or acted with reckless disregard for their truth or falsity. When I heard about the lawsuit, I decided to take a look at the complaint and see if it had any merit.

In the complaint, Mr. Snyder chooses to label the cover photo of the article as "anti-Semitic," presumably as a way to attribute some animus on the part of the author. I'm a Jew who grew up subjected to an inordinate amount of anti-Semitism; I'm pretty sensitive to that type of attack. I think I'm qualified to say that the cover does not appear to me to be in any way intended to slur Mr. Snyder religiously or ethnically. It is also ridiculous that Mr. Snyder makes this complaint as the owner of a team whose very name is in fact an ethnic slur decried by the Native American community. What's most interesting is that the complaint alleges that the "cover art...depicted the Jewish Mr. Snyder in a blatantly anti-Semitic way, complete with horns, bushy eyebrows, and dollar signs. Complaint, p. 4. Now if there were dollar signs in the art, Mr. Snyder's argument might have a little more merit as it might arguably be playing into a longstanding stereotype about Jews, but I don't see them. I'm not sure if this is wishful thinking on the part of Mr. Snyder or his attorney, but there are no dollar signs in the art depicted on the City Paper's website or in the exhibit attached to Mr. Snyder's complaint. At any rate, as a Jew that is sensitive to these types of slurs, my impression of the cover art was that it was clearly intended to depict Mr. Snyder as Satan, which he represents to many fans of the team.

Mr. Snyder claims that the allegation in the article that "Dan Snyder...got caught forging names as a telemarketer with Snyder Communications is a completely baseless allegation." Complaint, p. 7.

I did some basic research and came up with a press release issued by Florida Attorney General Bob Butterworth in 2001.

Mr. Snyder never admitted that he personally did anything improper and he was never charged with forgery. But to sue claiming that the claim is an "egregious falsehood," Complaint p. 7, when your representatives were accused by Florida law enforcement of thousands of instances of forgery? In my opinion, that's a tough argument to sell to a jury.

Mr. Snyder claims that an allegation in the City Paper article that he "cut down trees protected by the National Park Service" and "made a great view of the Potomac River for himself by going all Agent Orange on federally protected lands" is false. Complaint, p. 7. Again, I did about five minutes of research and found a Washington Post article and accompanying report issued by the Inspector General's Office of the Department of the Interior. The article, referring to the official report, says:

A high-ranking National Park Service official improperly helped Washington Redskins owner Daniel M. Snyder broker a deal to cut down more than 130 trees on a hillside between his Potomac estate and the C&O Canal, according to a report by the Interior Department inspector general's office.
The 2004 decision should have been left to park biologists and horticulturists, who had advised against the deal on federally protected land, and should have been opened to public debate, the report says. After an eight-month investigation, the office concluded that P. Daniel Smith, then special assistant to the director of the Park Service, intervened to help clear Snyder's view of the Potomac River.

The report does not accuse Snyder of doing anything improper when he got permission to clear 50,000 square feet of mature trees and replace them with saplings. But it does suggest that he had access to top Park Service officials that other citizens might not have had.

In a memorandum that accompanied the report written by Inspector General Earl Devaney, Mr. Devaney indicated:

Our investigation also revealed that the unprecedented decision to allow Mr. Snyder to cut on the easement resulted from the undue influence of P. Daniel Smith. Smith inappropriately used his position to apply pressure and circumvent NPS [National Park Service] procedures, on Snyder's behalf, through his personal communications with park officials and Mr. Snyder and his representatives.

The letter continues:

...In December 2004, Montgomery County cited Mr. Snyder for violating the county forestation code, Chapter 22A-4, and fined him $1,000. The following year, in August 2005, Mr. Snyder reached a settlement with the Maryland National Capitol Parks and Planning Commission and was required to implement a restoration planting plan that included reforestation of 1.3 acres of land cleared by Mr. Snyder, enhanced planting outside the cleared area, the purchase of the equivalent of three acres of land to be deposited in a forest conservation bank(minimum to be spent-$37,000), permanent protection of existing forest, and the posting of a $45,000 bond for two years of maintenance costs.

The publishing of the Washington Post article and IG's report in 2006 did not result in a lawsuit by Mr. Snyder. So what's his complaint? The use of the words "Agent Orange," which seems to be a clear attempt at hyperbole? I think it would be difficult for Mr. Snyder to succeed on a claim that the City Paper or McKenna was reckless.

Finally, Snyder takes issue with a section of the article that states that "Snyder was tossed off the board of directors at Six Flags." Complaint, p. 7-8. My preliminary research indicates that there was a complicated series of transactions and actions taken by various players involved (i.e. shareholders, banks, board members). Whether Mr. Snyder was forced to resign, or voluntarily relinquished his seat under is somewhat unclear. Again, not the type of claim that's appealing to a jury.

What's more important to me is that Mr. Snyder doesn't protest at all the rest of the article's allegations, which basically say that he has continuously gouged the team's fans and provided an inferior product, and that he's run his team like a fantasy football squad.

In his op-ed piece in the Washington Post, Mr. Snyder attempts to defend his decision to sue McKenna and the City Paper. I'm not sure what the City Paper's circulation is, but I guarantee you that Mr. Snyder has kept this story alive through several media cycles. Who does this? The thrust of the article was his catalog of idiot moves as an owner, not the issues raised in the lawsuit, and after a few days, who cared about the article anyway?

The only way the lawsuit makes sense is if this is an elaborate plan to distract Washington fans from the pitiful performance of the team with a legal maneuver that will most likely increase bad feeling towards Mr. Snyder personally. Most civil cases settle, but in the unlikely event this goes to trial, does Mr. Snyder expect to find a sympathetic group of jurors in the box, considering what he's subjected them to during his tenure?

Here is the most damning thing I can say about Daniel Snyder. This is the team's record since he took over in 1999:

Year	Record	Play Offs
1999	10-6	Yes (1 Win)
2000	8-8	No
2001	8-8	No
2002	7-9	No
2003	5-11	No
2004	6-10	No
2005	10-6	Yes (1 Win)

Isn't the smart thing to do simply shut up and run your team better?

Journey of a Criminal Defense Attorney in Washington, DC Part Five

Thu, 28 Apr 2011 16:33:05 -0500

This blog post is written by David Benowitz, founding partner of Price Benowitz LLP and a DUI attorney in Washington, DC. He received an LL.M in Trial Advocacy from Temple University, is a member of the National College for DUI Defense, and is a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, for his work as a Washington DC criminal defense attorney.

I started at PDS in October 1995. Since I hadn't received my bar exam results yet, I couldn't go to court, so along with my new classmates I was detailed to work at Oak Hill, the maximum security detention center for juveniles. We were sent there to represent the kids locked up there in disciplinary hearings at the facility.

As an investigator, I'd spent a decent amount of time at the DC Jail and at various prisons in Lorton, VA, where DC inmates used to be sent before its criminal justice system was federalized; now all people convicted of crimes in DC are sent to federal prisons. I thought my experience would've prepared me, but nothing could have. There were 10-year-old kids locked up in what was essentially a prison for stealing a car. It was also part-insane asylum, with the guards and staff being the insane ones. I had a nurse, who I'd never met before and who was clearly hallucinating at the time, call me a "white devil," which didn't necessarily lead me to believe she was crazy; it was the fact that she sincerely believed that I was putting poison in the kids' medicine, which she administered. This shithole was run by a complete asshole of a woman who fancied herself an old-time sheriff; she wore a cowboy hat to work every day.

The disciplinary hearings were run by two guys, one a retired DC cop and the other a hack who couldn't make it through law school. These idiots were allowed to place kids into solitary confinement for days as punishment. The hearings were a complete farce; the examiner would read an incident report, we'd be allowed to make some arguments, and the examiner would find the kid guilty. I actually won my first hearing, which shocked our supervisor and contributed to my totally unjustified confidence going into my second one.

My client was a 12-year-old boy. He was about 5' tall and weighed about 90 lbs. He was born addicted to crack and was currently addicted to PCP. He'd been locked up on a PCP possession charge, and because his mother, also a PCP addict, couldn't take care of him. Now during these hearings the kids had their hands cuffed behind their backs to prevent them from attacking the examiner if they got upset with the result. My kid had been accused of fighting. He vehemently denied it for about 30 seconds; the examiner found him guilty, sentenced him to three days in solitary and left the room.

The kid started sobbing, screaming that he couldn't take small spaces, and that he would kill himself in solitary. I was trying to say something, anything, to make him feel a little better. We were standing about two feet away from each other. He stopped screaming, looked around for a second, and stepped forward and put his head on my chest. I felt a hole blow through me as I hugged this handcuffed boy. Any romantic illusion I had about my path in life fell away. I knew then that I was totally unprepared to do this type of work but I also knew that there was absolutely nowhere else I'd rather be at that moment.

Journey of a Criminal Defense Attorney in Washington DC Part Four

Mon, 18 Apr 2011 12:14:40 -0500

This blog post is written by David Benowitz, founding partner of Price Benowitz LLP and a Washington DC criminal defense attorney. He received an LL.M in Trial Advocacy from Temple University, is a member of the National College for DUI Defense, and is a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy.

I've often felt like my destiny was to work as a public defender. From the day I walked into the basement at 451 Indiana Avenue, I felt like I was supposed to be there. However, my path to a job as a PDS attorney was not an easy one. Most of their attorneys had gone to Harvard or Yale and several had clerked for Supreme Court justices. On the other hand, I was all set to attend law school at American University. In fact, the one PDS lawyer I knew who'd gone to A.U. came up to me at my law school orientation and told me to try to get into a better school.

As fate would have it, my friend and current law partner, who I'd known since the first day of college, had gotten into GW Law School from its waiting list. He figured that I should come too, so he simply asked GW's admissions people to admit me as well. I'd almost not even made their waitlist because my father had thrown out the form I needed to fill out to accept the spot on it; I accepted a spot on the list on the very last day it was open. Anyway, they looked at their list, and once my friend said that I was already in town and would definitely come, they okayed my admission.

I had a tremendous chip on my shoulder because I'd always thought of myself as the student that any school would want. Basically, my friend had arranged to have me shoved into the back of a large section of one of the largest law school classes in the country. I'm sure they were simply looking for the extra tuition. My pride almost didn't allow me to accept, but in the back of my mind I knew this at least marginally improved my chances of getting a job at PDS.

I walked home from school every night that first year chanting to myself that I would work harder and be better than everyone who'd gotten into school the regular way. I literally killed myself working and ended up finishing in the top 10% of the class and made Law Review.

During my last year of school, I participated in the DC Law Students in Court Program, where we, with supervision, represented people accused of misdemeanors in DC Superior Court. I took all of my classes at night so I could devote as much time as possible to working in the clinic. We were only supposed to take three cases per semester, but I took 12 - 15, because I wanted to see if I had what it took to do this as a career.

Towards the end of the year, I applied to PDS. I was again put on a waitlist. Months passed and no decision was made. It's funny though, once I made the waitlist at PDS, I figured that I was sort of destined to slide my way onto the path I wanted, kind of like the 6th round draft pick who ends up making the team.

In the summer of 1995, I attended the funeral of a relative (a law professor and renowned criminal defense attorney) of my friend and mentor at PDS. As I was paying my respects at the open casket, PDS's Deputy Director came up to me. As we leaned over the open casket, she asked me if I was still interested in the job since there was one remaining opening and it looked like the waitlist had been whittled down to me and one other person. I tried to get every connection I had at PDS to lobby for me.

I was in Austin, Texas doing working as a defense investigator on death penalty cases at the Texas Resource Center when I got the call that changed my life. I still have the offer letter on my desk.