Armstrong & Exception to Statute of Limitations
BLafferty
http://www.fanhouse.com/2010/10/28/lance-armstrong-could-be-target-of-new-tactic-by-prosecutors/
RicodJour
> For continuing the a conspiracy to coverup crimes beyond the 5 year s of l.
>
Acid reflux...? You keep regurgitating the same shit.
R
BLafferty
William R. Mattil
> Another non-substantive, personal attack. I'm counting them.
When did you learn to count ?
Bill
--
William R. Mattil
Mike Jacoubowsky
news:86WdnRqu8ceIcFfR...@giganews.com...
> For continuing the a conspiracy to coverup crimes beyond the 5 year s of
> l.
>
> http://www.fanhouse.com/2010/10/28/lance-armstrong-could-be-target-of-new-tactic-by-prosecutors/
"A grand jury empaneled in Los Angeles to investigate whether Armstrong was
part of a conspiracy to purchase and use performance-enhancing drugs
typically could only consider crimes committed over the last five years. But
a person with knowledge of the investigation said prosecutors could claim
that Armstrong and others made overt acts to continue the conspiracy, a move
that could effectively reset the clock on the statute of limitations."
Would hiring an attorney constitute an "overt act?" Where do you draw the
line when someone has been accused of something and you deny it? Is the very
denial an "overt act" and if so, are we saying that the statute of
limitations is only relevant when someone hasn't been accused (or is accused
and remains silent)?
Or does "continuing the conspiracy" mean that the acts subject to the
statute of limitations are continuing, in which case it's moot?
I'm a cyclist and bicycle retailer dammit, not a lawyer!
--Mike Jacoubowsky
Chain Reaction Bicycles
www.ChainReaction.com
Redwood City & Los Altos, CA USA
BLafferty
fraud can be continuing and effectively toll the running of the statute
of limitations. Taking active steps to keep the fraud concealed is going
to be argued to be a continuing conspiracy. All of Armstrong's
continuing public denials as well a those of others like Johan, will be
seen as a continuing conspiracy to cover up what they are accused of
doing.
Mike Jacoubowsky
So you're saying there is no such thing as a statute of limitations if
someone has been accused of an allegation, whether it by in the press or
whatever, and has denied it? Wouldn't that throw out the statute of
limitations as a defense in the vast majority of cases (exceptions being
only those in which evidence and accusations didn't turn up until after the
time ran out)?
I understand what you're saying. It just seems unreasonable. Unreasonable
doesn't mean that's not the law of the land. It just seems to beg for
guidelines in application. Which you may have discussed with Henry last
month.
RicodJour
> On 10/29/2010 1:58 PM, Mike Jacoubowsky wrote:
>
> I "discussed this with Henry a month or so ago. A conspiracy to commit
> fraud can be continuing and effectively toll the running of the statute
> of limitations.
Use your new-found counting ability to count the number of times you
have brought this up. You discussed it a month ago, which was a
regurgitation of several months ago, etc. You're a one trick pony
without a trick.
R
Mr. Slate
Why? I thought you were retired?
Fredmaster of Brainerd
> On 10/29/2010 1:58 PM, Mike Jacoubowsky wrote:
>
> > "BLafferty" <B...@nobody.com> wrote in message
> >news:86WdnRqu8ceIcFfR...@giganews.com...
> >> For continuing the a conspiracy to coverup crimes beyond the 5 year s
> >> of l.
>
By you perhaps.
The very article quoted by yourself in the OP says:
Armstrong has continually denied that he used performance-
enhancing drugs. Such denials, however, likely wouldn't constitute
extending the conspiracy, although his interactions with the
managers and any new attempts to hide the presence of a doping
conspiracy would.
Although the reporter is no more of a legal authority
than you or me, this seems a more reasonable position.
I kind of doubt that a court would uphold using a public
protestation of innocence as a part of a conspiracy.
However, if for example the prosecution could uncover, say,
a text message from LA to Johan saying "Remember,
if anyone asks, those blue coolers were for your Orange
Fanta habit," that could be used as evidence of a
conspiracy that was continuous from 2000 or whenever
to now.
I don't have exhaustive knowledge of all the conspiracy
cases that have ever been brought. Perhaps you could
point us to a case where protestations of innocence
have been successfully prosecuted as conspiratorial
acts. The conspiracy laws are quite wide ranging, so it's
possible such a case exists somewhere.
Fredmaster Ben
Frederick the Great
BLafferty <B...@nobody.com> wrote:
> For continuing the a conspiracy to coverup crimes beyond the 5 year s of l.
>
> http://www.fanhouse.com/2010/10/28/lance-armstrong-could-be-target-of-new-tactic-by-prosecutors/
Obviously he is covering up. He has not confessed.
--
Old Fritz
Steve Freides
Do you need to keep out of my killfile so much that you keep changing
your email addy? Sad.
-S-
BLafferty
Unlike some crimes, like bank robbery, where there is a criminal act at
a specific time and place at which time the statute of limitations
begins to run, some crimes are of an ongoing nature and the concealment
of the crime can act to toll the statute of limitations because it is
considered a part of the crime.
The article linked makes reference to using the tolling of the statute
as it relates to doping and PED distribution, but that is not the charge
relating to the crime that the government is likely to assert tolling.
A. Dumas
> Perhaps you could point us to a case
Dumbass,
Fredmaster of Brainerd
Well played.
BLafferty
I could as it's very basic law regarding the tolling of certain criminal
statutes, but it would be more meaningful for you if you did your own
legal research.
BLafferty
Out of concern for overusing your minimal mental abilities, look at this
which I came up with in less than 3 minutes.
> The government routinely charges companies and individuals with conspiracy to violate the FCPA in place of or in addition to substantive FCPA charges. And, by charging a conspiracy offense, the government can effectively stretch the statute of limitations period well beyond five years. This is because with conspiracy offenses, the government only needs to prove that one act in furtherance of the conspiracy occurred during the limitations period. See, e.g., United States v. Milstein, 401 F.3d 53, 71 (2d Cir. 2005). By charging conspiracy, the government was able to include in the recent charges against Siemens’ subsidiaries conduct that occurred as far back as 1997—some eleven years prior to the date that the criminal information was filed in late-2008. Similarly, in the recent KBR/Halliburton matter, the government was able to reach criminal conduct that occurred as far back as 1994, although the five-year period generally applicable to those acts would ordinarily have exp
ired in 1999.
BLafferty
For a start, look at the following which I came up with in less than 3
minutes.
The government routinely charges companies and individuals with
conspiracy to violate the FCPA in place of or in addition to substantive
FCPA charges. And, by charging a conspiracy offense, the government can
effectively stretch the statute of limitations period well beyond five
years. This is because with conspiracy offenses, the government only
needs to prove that one act in furtherance of the conspiracy occurred
during the limitations period. See, e.g., United States v. Milstein, 401
F.3d 53, 71 (2d Cir. 2005). By charging conspiracy, the government was
able to include in the recent charges against Siemens� subsidiaries
conduct that occurred as far back as 1997�some eleven years prior to the
BLafferty
> conduct that occurred as far back as 1997—some eleven years prior to the
> date that the criminal information was filed in late-2008. Similarly, in
> the recent KBR/Halliburton matter, the government was able to reach
> criminal conduct that occurred as far back as 1994, although the
> five-year period generally applicable to those acts would ordinarily
> have expired in 1999.
five years (18 U.S.C. § 3282), except for mail and wire fraud schemes
that affect a financial institution, in which case the statute is ten
years (18 U.S.C. § 3293).
COMMENT: Consider that a scheme may extend back beyond the limitations
period; the gist of the offense is the use of the mails, and if the
prohibited use of the mails was within the period, the prosecution is
timely. See O. Obermaier and R. Morvillo, White Collar Crime: Business
and Regulatory Offenses, § 9.04[5], at 9-67 (Rel. 2, 1991) (citing
cases); cf. United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir.
1994) (mail fraud scheme may continue after mailing). That a scheme may
extend back beyond the limitation period does not preclude prosecution
of an offense committed in furtherance of the scheme within the period.
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/43mcrm.htm
BLafferty
In United States v. Maze, 414 U.S. 395 (1974), mailings which occurred
after the scheme ended fell outside the prohibitions of the statute. See
also United States v. West, 549 F.2d 545, 556 (8th Cir. 1977), cert.
denied, 430 U.S. 956 (1977) and Battaglia v. United States, 349 F.2d
556, 561 (9th Cir.), cert. denied, 382 U.S. 955 (1965) (wire used after
the scheme has come to an end is not within the statute); cf. United
States v. Pollack, 534 F.2d 964, 971 (D.C. Cir.)(Maze has no adverse
impact on fraud prosecutions where the scheme has not reached
fruition.), cert. denied, 429 U.S. 924 (1976).
It is a well-established principle of mail fraud law, however, that use
of the mails after money is obtained may nevertheless be "for the
purpose of executing" the fraud. This proposition was considered by the
Supreme Court in United States v. Sampson, 371 U.S. 75 (1962), where
salesmen fraudulently obtained applications and advance payments from
businessmen and then mailed acceptances to the defrauded victims to lull
them into believing the services would be performed. The Court held that
such a "lulling" use of the mails was for the purpose of executing the
fraudulent scheme. *Thus, post-purchase mailings or wire transmissions
that are designed to lull the victim into a false sense of security,
postpone inquiries or complaints, or make the transaction less suspect
can be in furtherance of the scheme. United States v. Rogers, 9 F.3d
1025 (2d Cir. 1993), cert. denied, 115 S.Ct. 95 (1994).*
BLafferty
Mr. Armstrong's use of various forms or electronic communication to
divert suspicion from the use of PEDs by his team and himself, will
easily fit into the lulling definition set out by the US Supreme Court.
Consider also that, contrary to the assertions of some legal beavers
here, it matters not that the victim was not the sharpest tool in the
shed, nor does it matter that there was no actual damage to the victim.
"It is the scheme to defraud and not actual fraud that is required."
United States v. Reid, 533 F.2d 1255, 1264 (D.C. Cir. 1976). "No
particular type of victim is required . . . nor need the scheme have
succeeded." United States v. Coachman, 727 F.2d 1293, 1302-03 n. 43
(D.C. Cir. 1984). No actual loss to the victims is required. See United
States v. Pollack, 534 F.2d 964, 971 (D.C. Cir.) ("The fraud statutes
speak alternatively of devising or intending to devise a scheme to
defraud and do not require that the deception bear fruit for the
wrongdoer or cause injury to the intended victim as a prerequisite to
successful prosecution. [S]uccess of the scheme and loss by a defrauded
person are not essential elements of the crime under 18 U.S.C. §§ 1341,
1343 . . . ."), cert. denied, 429 U.S. 924 (1976); see also United
States v. Jordan, 626 F.2d 928, 931 (D.C. Cir. 1980) ("The amount of
money realized as a result of the scheme is not an essential element of
mail fraud. It was not even necessary to prove that the scheme succeeded.").
For a discussion of fraud loss computation in sentencing see Guidelines
Sentencing (Federal Judicial Center, 1997), Section II.D.2. Offense
Involving Fraud and Deceit.
"[I]t makes no difference whether the persons the scheme is intended to
defraud are gullible or skeptical, dull or bright . . . . " United
States v. Maxwell, 920 F.2d 1028, 1036 (D.C. Cir. 1990) (quoting United
States v. Brien, 617 F.2d 299, 311 (1st Cir.), cert. denied, 446 U.S.
919 (1980)). "[T]he monumental credulity of the victim is no shield for
the accused . . ." Id. (quoting Deaver v. United States, 155 F.2d 740,
744-45 (D.C. Cir.), cert. denied, 329 U.S. 766 (1946)); cf. Pollack, 534
F.2d at 971 (To hold that actual loss to victim is required "would lead
to the illogical result that the legality of a defendant's conduct would
depend on his fortuitous choice of a gullible victim.") (quoted in
Maxwell, 920 F.2d at 1036).
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00943.htm
IMO, Lance is toast once the initial use of PEDs is proven in
relationship to obtaining money from the Postal Service.
Fredmaster of Brainerd
I asked for a case in which the public protestation of
innocence was interpreted as a material part of the
conspiracy and thus worthy of extending the statute
of limitations. These examples don't show that. A
mailing of fictitious acceptances would be like getting
a statement from your investment in Bernie Madoff's
hedge fund - I have no quibble with its interpretation
as a significant part of a conspiracy to commit fraud.
A private assurance from Madoff that the business
was on the up and up could also be a significant part
of his conspiracy.
However, these are distinct from a public utterance
of innocence, directed to no particular person or defrauded
entity. Precedent for the use of that as a critical element
of conspiracy is what I asked you to exhibit.
Fredmaster Ben
> http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00...
BLafferty
Are you truly dumb as a post? Let me paraphrase the precedent announced
by the Supreme Court so that you may more readily apprehend its meaning.
"Thus, post-procurement of multi-year sponsorship
electronic(wire)transmissions to web sites, blogs, text messages, emails
etc. that were designed to *lull* the victim into a false sense of
security, *postpone inquiries or complaints*, or make the transaction
less suspect are in furtherance of the scheme. United States v. Rogers,
9 F.3d 1025 (2d Cir. 1993), cert. denied, 115 S.Ct. 95 (1994).
>
> However, these are distinct from a public utterance
> of innocence, directed to no particular person or defrauded
> entity. Precedent for the use of that as a critical element
> of conspiracy is what I asked you to exhibit.
We are addressing "public" lulling statements of innocence transmitted
in furtherance of the mail/wire fraud scheme to defraud.
BLafferty
I would add that the "donation" to the UCI can be interpreted as a
lulling act (an act which used the banking system's electronic
transmission system) as are email and text transmissions to cycling
authorities and the cycling press.
DirtRoadie
> IMO, Lance is toast ....
IOHO, we ALL knew what YOU thought.
Thanks for the cites. I'll take a look if the urge arises and I have
time.
DR
RicodJour
Are you for real?! Please don't discourage L'enema from posting his
obsession research. It is ever so much more enjoyable than his usual
knee-jerk - or is it just jerking? - posting of puerile links that
allow him to play holier than thou while self-flagellating his demonic
digit to that picture of LANCE naked on his bike.
So please, encourage the boy.
R
Fredmaster of Brainerd
Wait a second. Please don't begin paraphrases with
double quote marks and end them with a citation. As is
easily verifiable, U.S. v. Rogers contains no mention of
sponsorships, web sites, blogs, text messages or emails,
which is not surprising since it's from 1993. Your case might
be stronger if you stuck with the direct quote from the ruling
that you gave earlier.
Also if I have this right, cert was denied by the Supreme Court
so the precedent is from the 2nd Circuit, which doesn't really
matter (apart from the issue of precedents across different
circuits) - except that it's another detail you seem to be
exaggerating to make the case.
> > However, these are distinct from a public utterance
> > of innocence, directed to no particular person or defrauded
> > entity. Precedent for the use of that as a critical element
> > of conspiracy is what I asked you to exhibit.
>
> We are addressing "public" lulling statements of innocence transmitted
> in furtherance of the mail/wire fraud scheme to defraud.
Hmm. From the case cited above
http://openjurist.org/9/f3d/1025/united-states-v-e-rogers
Paragraphs 17 through 19 are probably of interest here.
I'll quote paragraph 19, citing the Supreme Court in
Grunewald v. U.S.
353 U.S. at 397, 77 S.Ct. at 970 (footnote omitted).
Grunewald noted that "a vital distinction must be made
between acts of concealment done in furtherance of the main
criminal objectives of the conspiracy, and acts of concealment
done after these central objectives have been attained, for the
purpose only of covering up after the crime." Id. at 405, 77
S.Ct. at 974 (emphasis in original). "Thus, the life of a
conspiracy cannot be extended for statute of limitations
purposes by acts of concealment occurring after the conspiracy's
criminal objectives have been fully accomplished even if
those acts are 'done in the context of a mutually understood
need for secrecy.' " United States v. Fletcher, 928 F.2d 495,
499 (2d Cir.) (quoting Grunewald, 353 U.S. at 402, 77 S.Ct. at
972), cert. denied, --- U.S. ----, 112 S.Ct. 67, 116 L.Ed.2d 41
(1991).
This is followed by paragraph 20 which contains
this sentence:
In the context of wire fraud, the Supreme Court has stated
that mailings occurring after the receipt of goods obtained by
fraud are within the statute if those mailings were designed
"to lull the victims into a false sense of security, postpone
their ultimate complaint to the authorities, and therefore
make the apprehension of the defendants less likely than
if no mailings had taken place."
Interesting. In the context of U.S. v. Rogers, it's clear the
lulling communications were designed to reassure the
creditor that it would be paid eventually, that is as a
promise of some future action. It's not clear to me that
is a good analogy for the Armstrong situation.
Do you think Armstrong's protestations of innocence
during 2004-2010 will be viewed as having been designed to
postpone fraud complaints from the US Postal Service?
If so Armstrong must be a very prescient man, as before
2010 I think hardly anyone but he would have realized that
fraud charges were even a possibility.
I think this one will have to be argued by real lawyers; so far
your examples are not to the point of my question.
Fredmaster Ben
is not accredited to give legal advice on the Internets
Beloved Fred No. 1
> IMO, Lance is toast
Did he always fall on the buttered side until he broke his collar bone ?
BLafferty
LOL! The law rolls off your back like water off a duck.
>
> Also if I have this right, cert was denied by the Supreme Court
> so the precedent is from the 2nd Circuit, which doesn't really
> matter (apart from the issue of precedents across different
> circuits) - except that it's another detail you seem to be
> exaggerating to make the case.
And your inane point is? The citation notes that cert. was denied.
There is no representation in the case citation that the Supreme Court
decided the case on its merits. As for precedent, only the circuit
making the ruling is bound by the decision as precedent, unless the
appeal to the Supreme Court was automatic, in which case cert. denied is
binding as precedent across all circuits. But, you knew that.
It isn't often in the practice of law that one finds a case on all fours
with the one being considered. Hence, the argument above that has so
easily rolled off your back. Frankly, your stupidity is at an amazingly
high level, even for a non-attorney such as you are.
BLafferty
seek medical assistance.
Fredmaster of Brainerd
> On 11/2/2010 3:58 AM, Fredmaster of Brainerd wrote:
> > On Nov 1, 1:56 pm, BLafferty<B...@nobody.com> wrote:
>
Let me recap. The problem is not in the citation
you appended to your paraphrase, I mean apart
from the fact that you appended a citation to a
paraphrase. The problem is also that you said:
"Let me paraphrase the precedent announced
by the Supreme Court"
The Supreme Court didn't announce diddly squat.
It denied cert.. The 2nd Circuit announced the ruling,
but either you were sloppy or that didn't sound
impressive enough and you exaggerated.
This is not a critical legal point (IIRC courts often take
note of precedent from other circuits even when not
bound by it). It's only worth pointing out because it
fits into a pattern of sloppiness and skewing of
arguments.
You resort to insults and are incapable of presenting a
reasoned response in an argument on points of law,
which is supposedly your domain of expertise - I have
never claimed any special legal knowledge, so educate
me. Is your intemperate response supposed to convince
anyone still reading this exchange?
Fredmaster Ben