It may well be a layup, and I'd agree that's probably a useful term to use to describe the present position.But nobody puts the two points up on the scoreboard before the ball has actually gone through the hoop, but that's exactly what you are saying the NFL should do here.
Finally! On that we can agree!
Sadly, not true.
In nearly 30 years of practice, I watched one criminal proceeding in real time. Both the FTC and DOJ were investigating a client for consumer fraud. After we successfully avoided an action by the FTC for civil penalties (which is why I was involved), the DOJ did not let it go.
We thought we had dodged the bullet. The FTC only had to prove wrongdoing by a preponderance of evidence, not beyond a reasonable doubt.
Out of the blue, the consumer fraud division of the DOJ served a search warrant. I took the warrant (my criminal defense partners are in DC and Chicago) and was at the client’s house in LA when it was searched by the feds and local police. The client and his family were not there—nothing you want to watch. The agent in charge and the police literally called and treated the client as a “perp” in my presence.
Two years go by—nothing. There is a 5 year statute of limitations. My criminal defense colleagues kept calling to check with the DOJ on status. Same response—still investigating.
Then they got a phone call from the DOJ, which said they had finished and were gonna file charges . . . for bank fraud. They tried to make a consumer fraud case but couldn’t. But in the investigation, they discovered payment process shenanigans by payment processors, which the DOJ claimed defrauded merchant (credit card) banks—violating agreements and industry standards governing risk tolerance.
Of course, no bank lost a penny. It was a way to back-door the DOJ’s consumer fraud charge neither the FTC nor DOJ could prove. If found guilty of bank fraud, at time of sentencing, the DOJ could introduce evidence of consumer fraud as the harm — the alleged purpose of the bank fraud. Without the merchant bank accounts, which allegedly would have closed but for the bank (risk tolerance) fraud, no further sales transactions occur and thus no consumer fraud. With the credit facility, the alleged consumer fraud occurs.
The feds acknowledged it was like catching Al Cabone for tax evasion. Rock meet hard place.
The client had given my law firm a $1 million retainer when the FTC and DOJ began by obtaining an ex parte TRO to prevent alleged consumer fraud. After beating back the FTC and 3 years of investigation by the DOJ, most of the retainer was still left, but now the client was facing trial and punishment.
If he lost, the punishment would have been a 5 to 30 year prison sentence. If he won, the client and his family are broke. The criminal defense team would have not only spent the rest of the retainer but also the rest of the client’s savings plus a second mortgage on his house.
For what? A 10% chance of jury nullification? The DOJ does not bring changes it can’t win. They know what they have to prove. They marshal the evidence, then give it to you. It took them 3 years but they had the documents—emails with payment processors and internally regarding payment processing trying to manage risk—charge backs and returns from consumers. The payment processors were aggregating risk and not disclosing it to the merchant banks and the emails showed knowledge and complicity.
The deal offered was to be first through the door and testify against the payment processors. In exchange, a 1 to 5 year prison sentence, which could mean probation.
The DOJ put its “two points up on the scoreboard before the ball [had] actually gone through the hoop.” They know when they got you. They know what deal they can offer where only an irrational person would go to trial. And even if they go to trial, they know they’ll win absent jury nullification. Then the defendant is facing a hanging judge at time of sentencing. And his family is broke.
