Friday, June 17th, 2016

Second Circuit Updates – June 17, 2016

One major decision out of the Second Circuit today, United States v. Rowland (Docket 15-985). It’s a good read for those interested in statutory construction and interpretation. A brief overview of the facts: The defendant, John Rowland was once governor of Connecticut. After being released from federal custody following a 2004 conviction for corruption and a kickback scandal, Rowland attempted to get back in the political game by offering his consulting services to Connecticut politicians running for federal office. When the politicians, wanting his advice, but not an association with him, raised their concerns about the optics, Rowland suggested that their respective companies and non-profits hire him as a consultant. As the government alleged, though, in reality he would offer advice to their campaigns.

One politician declined his offered, going so far as to rip up the proposed contract Rowland provided that would have him work for the politician’s non-profit. A second politician, though, had Rowland and the lawyer for the nursing home company she owned draft and sign a contract for him to provide consulting services to the nursing home for a monthly salary.  Rowland did indeed do nominal work for the nursing home, but spent the bulk of his time working for the campaign.  An investigation led to a multi-count indictment on a range of federal fraud and campaign fraud violations, a conviction after trial and a 30-month sentence. (In March, I wrote about the oral argument in Rowland here.

Rowland appealed to the 2nd Circuit claiming, among other things (including a Brady violation), that he had not “falsified” documents under the strict definition of 18 U.S.C. § 1519, which prohibits one from “falsify[ing]…documents” in order to impede an investigation the federal government has jurisdiction over.  Rowland argued that “to falsify” inherently meant to alter or cover up something that was pre-existing, but here, he and the lawyer for the nursing home had made the contract from scratch.

The court noted that § 1519 had been considered recently by the Supreme Court in a case where a fisherman was convicted of destroying evidence after federal authorities instructed him not to release fish he had caught, Yates v. United States, 135 S.Ct. 1074 (2015). There, the Supreme Court cautioned against the strict use of dictionary definitions that may torture the true purpose and intent of the law. The Second Circuit considered its analysis with this instruction in mind, but nonetheless concluded that Rowland’s conduct was rightfully charged under § 1519. It concluded that in Rowland, unlike in Yates, “interpreting ‘falsify’ – in accordance with its dictionary definition – to include the creation of a document fits comfortably within the general purview of the statute suggested by title.”

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