On June 17, 2014, Peter Vaira published an article in the Legal Intelligencer on Cyber Attacks on Law Firms. In it he explained the law firms are becoming inviting targets for cyber thieves, to obtain valuable client information. Vaira explained that law firms regularly possess valuable information about client’s business operations, which would be of great interest to the client’s competitors. He explained it is much easier to pierce a law firm’s security than the client’s. He also said law firms communicate regularly with their clients in unprotected methods such as emails and phone calls. He detailed what firms must do to protect the communications between law firm and client, and internal law firm storage. A copy of this article may be obtained from email@example.com.
June 19, 2014
May 8, 2014
Peter Vaira recently authored a two part series in The Legal Intelligencer on Pennsylvania State Grand Jury Investigations. The articles were published on April 15 and April 29, 2014.
In the articles, Vaira compared the state grand juries to the federal grand juries. He pointed out that in the state grand juries, if the prosecution informs the court that the witness is not a target, the court may require the witness to testify even if he asserts the Fifth Amendment.
Vaira also described the practice of grand juries issuing a report critical of individuals who are not indicted. Those persons, who are usually public officials or hold professional licenses, have no practical way of refuting the report.
Copies of the articles may be obtained by contacting firstname.lastname@example.org.
April 23, 2014
Peter Vaira is now Special Counsel to GPEFF, Attorneys at Law:
Greenblatt, Pierce, Engle, Funt & Flores, LLC
123 South Broad Street
Philadelphia, PA 19109
The 2014 Edition of Eastern District of Pennsylvania Federal Practice Rules Annotated by Peter Vaira is now available. The book is available on-line at no extra cost. The book is the only published work that continues an extensive annotation (466 pages) of Eastern District’s local civil and criminal rules. Contact: Gann Law Books, One Washington Park, Suite 1500, Newark, NJ 07102 or (973) 268-1200.
Peter Vaira was appointed by Mayor Michael Nutter of Philadelphia to the position of Executive Director of the Mayor’s Independent Commission to study the collapse of a three story building in Philadelphia in June, 2013 that killed six persons. The Commission consists of 20 persons, who are to examine the Department of Licenses & Inspections’ role in the oversight of the demolition of the building. The District Attorney of Philadelphia has charged one contractor with manslaughter for his role in the demolition of this building. The Commission is scheduled to issue a report on September 15, 2014.
October 15, 2012
There has been a considerable discussion of the government’s duty to disclose favorable evidence to the defendant as a result of the District Court decision in United States v. Stevens. The defendant was a sitting U.S. Senator whose conviction was thrown out by the Court for the prosecutor’s failure to turn over extensive exculpatory material until nearly five months after trial. As a result of that decision, the Attorney General issued a January 4, 2010 Memorandum to federal prosecutors regarding searching for and disclosing favorable material. This article discusses a vastly overlooked area for Brady material, the sentencing phase.
In Brady v. Maryland, and Giglio v. United States, the Supreme Court established the rule that defendants in a criminal trial have a due process right to receive favorable information from the prosecutor regarding the defendant’s conduct and the prosecuting witnesses’ conduct that would aid in the defense of the charges. Although there have been varying interpretations of what is favorable, the Supreme Court has said the information must be disclosed it if would overturn a verdict of guilty by a reasonable doubt. See, Pennsylvania v. Ritchie,
The obligation of the prosecutor to search for and turn over Brady material extends to the sentencing process. See, United States v. Quinn; United States v. Weintraub. Indeed, Brady was a sentencing case. The Court in Brady held that all evidence favorable to an accused whether material either to guilt or punishment must be supplied to the defendant. Brady has a two pronged disclosure requirement but in the words of one federal district court judge, “Prosecutors all too frequently forget about the second requirement for disclosure [punishment]”. See United States v. Feeney. The ABA Rules of Professional Conduct also impose a prosecutorial obligation to turn over favorable material in the sentencing process. Rule 3.8 (d) of the Rules of Professional Conduct requires the prosecutor to make timely disclosure to the defense and the court of all unprivileged mitigating information relating to the sentencing of the defendant. This rule is binding on all federal prosecutors in states which have adopted it.
The importance of Brady to the sentencing process is evident from the statistics of the disposition of criminal cases. In federal court, over 85% of the criminal cases filed result in guilty pleas. Of those that go to trial over 90% result in convictions. Despite these figures, the search for Brady material in the sentencing process is greatly neglected by the prosecutors and defense counsel, and gets little attention from the courts.
The prosecutor’s Brady obligation in the sentencing process is even more important considering the requirements of the Federal Sentencing Guidelines. The sentencing guidelines require the Court to make numerous findings concerning the defendant’s role in the offense, such as whether sophisticated means were used, the amount of financial loss in a fraud case, the quantity of drugs in a narcotics case, or the defendant’s actual role in a conspiracy, all of which could be affected by favorable material. Many offenses require their own particular findings that must be made by the court.
The standard to determine whether the material is favorable is far less stringent at sentencing than for the guilt phase. Unlike the guilt phase where the material must affect a finding of guilty beyond a reasonable doubt, the standard at the sentencing phase is whether the material would alter a finding of preponderance of the evidence required to prove any of the sentencing guideline adjustments. In practical terms, the test should be: whether the disclosed material would reduce the weight of evidence regarding a sentence adjustment from a preponderance (51%) to 50% or less causing the court to find the adjustment was not proven. For example, pursuant to Section 3B1.1 of the sentencing guidelines, the defendant’s offense level may be increased by 4 levels depending upon whether the defendant was an organizer or leader of criminal activity that involves 5 or more persons. The sentence level increase is 3 levels if the defendant was only the manager or supervisor of criminal activity involving 5 persons. If the defendant was the organizer manager or supervisor of any other criminal activity the offense level is increased by 2. Thus, any information that would lessen the weight of the evidence regarding any of the above factors would substantially decrease the sentence. The calculation of loss in a fraud case is most always a subject of contention at sentencing. Creed Black, a former prosecutor and an experienced criminal defense lawyer in Philadelphia put it this way, “the estimation of fraud loss in a criminal case is an inexact science. If there are things in the government’s file that undercut its own numbers, those are Brady material. In many cases the government’s loss number may be just an estimate, often one advanced by the victim in hopes of enhanced restitution. Did the government run alternative calculations and present only the highest; did the loss methodology contain flaws which were not disclosed; does the government file reveal credits against loss; or does the government’s number include interest or penalties which the guidelines specifically exclude from loss. These items are Brady material and must be disclosed.”
In the sentencing process a great source of the favorable material may be found in the files and interview reports of the investigating agency. This is especially important in a guilty plea where the defense counsel has had little opportunity to view the particulars of the government’s evidence. The prosecutor should be directed to cause a search of those files. The Attorney General’s January 4, 2010 directive specifically instructs the prosecutor to cause such a search of the files of the investigative agency to determine if there is any favorable Brady material.
The Brady request for sentencing material for each case will depend upon the adjustments to the base level offense required by the sentencing guidelines. Defense counsel cannot rely upon the pre-trial motion request made pursuant to Rule 16 of Federal Rules of Criminal Procedure. In order to formalize the process for sentencing, I propose the Court issue a standing order directed to defense counsel to particularize the adjustments to the sentence that the prosecutor should address, and the defense counsel’s request be served on the prosecutor, with a copy to the probation officer. A draft of such an order is set out below. I suggest that the Rules Committee of the district court consider enacting a standing order to this effect.
The defendant in this case (has entered a plea of guilty) or (been found guilty) of charges (indicate the charges).
Within ten days of this Order, defense counsel is to serve upon the government, with copies to the probation officer, any requests for favorable material pursuant to Brady v. Maryland and specifically relating to mitigation of punishment for all chapter three adjustments of the United States Sentencing Commission Guidelines Manual which are necessary to calculate the sentencing guidelines.
Pursuant to the requirements of Brady v. Maryland the prosecution is to respond to this request by affirmatively conducting a search of the prosecution files, including evidence and interview reports in possession of the investigative agency assisting the prosecution. The prosecution is required to make a formal response in writing.
BY THE COURT:
* * *
Courts may be reluctant to require such a procedure by formal order. It will most likely require the organized effort of the defense bar to promote the adoption of a formal order to this effect. In the meantime, defense counsel should as a matter of course, file a motion making such a request on the prosecutor, with a copy to the probation officer.
* * * *
March 23, 2012
Former Chief Judge Harvey Bartle III has written Mortals with Tremendous Responsibilities, a History of the United States District Court for the Eastern District of Pennsylvania, St. Joseph’s University Press. Cost is $35.00.
Judge Bartle’s book recounts the story of this federal district court which traces its history back to 1789 and the Judiciary Act signed by President George Washington. Highlighted are the Court’s judges, its important cases, and the growth and changes in its jurisdiction, workload, and administration over more than 220 years.
Judge Bartle said that the book grew out of a project in which the court hired a professor from Indiana Pennsylvania University in 2006 to research on the significant occurrences of the court since its inception. After the professor completed the research, the task fell to the court to put it in a readable form.
Judge Bartle was Chief Judge at that time, volunteered to prepare the manuscript in book form. He said it was necessary that a lawyer who was familiar with the Court actually be the author. Judge Bartle said he also did significant research on his own.
Copies may be purchased at the Clerk’s office for the Eastern District of Pennsylvania, Room 2609, 601 Market Street, Philadelphia, PA 19106. Make checks payable to “St. Joseph’s University Press” in the amount of $35.00.
March 9, 2012
On February 27, 2012, the Judges of the Eastern District approved a resolution effective as of that date to amend Local Civil Rule 7.1 and Local Civil Rule 7.4(b)(2).
In Rule 7.1, the party opposing a motion shall serve a brief in opposition within 14 days after service of the moving party’s motion. This rule is extended to responses to motions filed under Federal Civil Rule 12(b) or 56. In absence of a timely response the motion may be granted as uncontested, except as provided by Federal Rule of Civil Procedure 56. The prior Rule 7.1 permitted 21 day responses to Rule 12(b) or Rule 56 motions.
Rule 7.4 regarding Notices and Stipulations paragraph (2) is amended to state that “in accordance with Fed. R. Civ. P. 6(b) no stipulation between the parties relating to the extension of time shall be effective until approved by the Court”. Under the prior Rule 7.4 the Clerk of the Court could grant an extension of 30 days upon a stipulation of all parties.
January 3, 2012
As the result of Peter Vaira’s proposed amendment to Local Criminal Rule 32.3.2, Judge Timothy J. Savage of the Eastern District of Pennsylvania amended his own required procedures in 2011 to require both prosecution and defense counsel to serve each other with any material provided to the probation officer in the sentencing procedure. Recently Judge Berle M. Schiller amended his procedure to follow Judge Savage’s requirements. For a copy of the proposed amendment, or Judge Savage’s order, please e-mail email@example.com.
November 30, 2011
The 2012 edition of Eastern District Federal Practice Rules, Annotated, edited by Peter Vaira is now available for sale through the Gann Law Books website. The URL is: http://www.gannlaw.com/onlinestore/main/cartAdd.cfm?book_no=15. A purchase of the book provides an automatic interactive e-book access. The book contains all rule amendments to October 24, 2011, and cases through 783 F. Supp. 2d 1353, and 275 F.R.D. 342. The book includes extensive case annotations of the local civil and criminal federal rules (not found anywhere else), and an invaluable overview of the individual variations in practice and procedure among the Court’s Judges and Magistrate Judges as well as the Clerk’s Office Procedure Handbook.
This is a necessary workbook for anyone who has a case in the courts of the Eastern District.