The EDVA Holdout Juror Has (Thus Far) Saved Paul Manafort $16 Million

I want to pull something from this post into its own post. In that post, I talked about the stakes of a guilty verdict in Paul Manafort’s DC case, which subjects most of the counts to a $30 million forfeiture judgment.

Based on the EDVA indictment, I had thought that all the bank fraud charges in that case were subject to forfeiture. But with Andrew Prokop’s help, have confirmed that just charges 29 and 30 included forfeiture. The Special Counsel’s Office has confirmed that “forfeiture was limited at trial to convictions on counts 29 or 30.”

That means that the one holdout juror may have saved Paul Manafort $16 million. It also raises the stakes of a retrial considerably.

Update: Two more clarifications from SCO. First, “Nothing has changed in the D.C. case” from what was described in the indictment. When I asked about civil forfeiture, they responded, “The case filed in EDVA only references criminal forfeiture.” So here’s the distinction. The Forfeiture section in the EDVA indictment starts,

Pursuant to Fed. R. Crim. P. 32.2, notice is hereby given to the defendants that the United States will seek forfeiture as part of any sentence in accordance with Title 18, United States Code, Section 982(a)(2), in the event of the defendants’ convictions under Counts Twenty-Four through Thirty-Two of this Superseding Indictment.

As SCO notes, 18 USC 982 is just criminal forfeiture.

Whereas the DC indictment cites both 18 USC 981 (Civil) and 982 (Criminal).

Pursuant to Fed. R. Crim. P. 32.2, notice is hereby given to the defendants that the United States will seek forfeiture as part of any sentence in accordance with Title 18, United States Code, Sections 981(a)(1)(C) and 982(a)(1), and Title 28, United States Code, Section 2461(c), in the event of the defendants’ conviction.

 

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62 replies
    • Ed Smiley says:

       Yes. The pardon power was granted to the President by the constitution when there was no distinction between civil and criminal offenses, and some of those that were categorized as crimes are considered civil today. It would be reasonable to conclude that such a crime would not suddenly escape the pardon power just because of a statutory change of this kind.

      • bmaz says:

        Can, in relation to the several comments here, and responses thereto, you be more specific? Because the pardon issue vis a vis Manafort and forfeiture is nowhere near that clear. I mean, not even close.

        That said, welcome to Emptywheel, join us often!

  1. Geoff says:

    A little behind the scenes witness tampering, which results in what looks like a pretty innocuous wee bit of juror uncertainty, can apparently go a long long way.

  2. gedouttahear says:

    If there is any credible evidence of jury tampering, that would be wonderful. Is there?
    OT: Maybe Kavanaugh is not looking so inevitable.

    • bmaz says:

      Well, that is not clear in the least, and why I have some real issue with Mr. Prokop’s certitude on this. He refers to a jury verdict form. That is fine as to the ability to exercise criminal forfeiture from the EDVA convictions, I guess. The indictment specifically cited 28 USC §2461 as being in play for a much broader spectrum of conduct, which very much means that civil forfeiture is a possibility. I do not know how it will play out, but to say that forfeiture, at least as to civil forfeiture, is off the table even as to the EDVA convictions, is not not necessarily correct.

      • Andrew Prokop says:

        To be clear, I make no claims to certitude. I was just asking about Marcy’s previous post, and ended up stumbling upon those forms and found them interesting. You would know better than I what they mean.

        • bmaz says:

          Fair enough! And it is a good point as to the actual ability of the criminal court to so order. And, also, I have no idea where the government will go, but there may be room for more on the federal level. And all this weakens his ability to defend against any state civil forfeiture action.

          • Andrew Prokop says:

            Yeah, just in my layman’s reading, it seemed to me like Mueller had that forfeiture “special verdict” form ready to go for the jury if they convicted on those 2 counts, but they didn’t, so it wasn’t used. So Manafort did dodge a bullet for the time being at least. (Obviously let me know if I’m misinterpreting this.)

            • emptywheel says:

              Note my updates (per SCO comments).

              EDVA cited only Criminal Forfeiture. DC invokes both Criminal and Civil.

              Now bmaz can explain what that means for leverage over Manafort.

              • bmaz says:

                So, SCO is saying that, despite the 28 USC 2461 reference in both superseding indictments, they can only proceed in a civil manner in DC because they did not also throw in a §981 in EDVA? Seriously?? Especially laughable as the “other” ten counts in EDVA were not “not guilty” but were mistrials. Are they really saying that ???

  3. pseudonymous in nc says:

    29-30 were the TFSB fraud charges, where the defense argued that it’s not bank fraud if: a) you get a loan by giving someone a campaign position and putting a word in for an administration job; b) you submit dodgy documents but provide adequate collateral from the properties bought by sleazy influence peddling and money laundering.

    I do wonder why the prosecution didn’t call Steve Calk, but it was probably because they wanted it to be as much of a paper trial as possible.

    But in that regard, having the DC trial on sleazy influence peddling and money laundering, and then a retrial on the bank fraud charges raises the possibility that the new jury would get to hear evidence of convictions for SIP/ML.

  4. ApacheTrout says:

    I think the idea of signalling messages via filings & court statements is moot if so many of these guys are sharing defense documents.

    • SpaceLifeForm says:

      Scenario: Happened in Maryland (lets say Bethesda), victim now lives in California (lets say Silicon Valley).

    • Trip says:

      The FBI does background checks.

      If it had been rape, it would be past the statute of limitations and would the GOP actually care? They’ll come up with some ‘boys will be boys’ excuse/response, the same as was done for the confessed pussy grabber.

      I’m glad they (Dems) are pulling out all of the stops.

    • harpie says:

      This is an informative Matt Zapatoski thread:

      FBI official on the Dianne Feinstein referral about Kavanaugh: “Upon receipt of the information on the night of September 12, we included it as part of Judge Kavanaugh’s background file, as per the standard process.” / […]

      • bmaz says:

        Uh, you may want to look at the date where that statute was so modified versus the date of conduct alleged against Kavanaugh. Don’t make people here stupid.

        • SpaceLifeForm says:

          Maryland. Not California whose laws did change.

          But, even then, they still could be applicable due to the ‘reporting’ exception.

          But believe that the Maryland laws would apply fully.

      • AitchD says:

        The referral to the FBI would mean at the least that he might have lied to Senator Hirono, and depending on the investigation, it could be a slam dunk instance of undeniable perjury.

      • Trip says:

        Placed in WH file. The matter is over, unless the woman decides to go public:

        Sen. Dick Durbin (D-Ill.) told BuzzFeed Thursday that the matter had been referred to the FBI. An FBI official acknowledged that it has the document, saying the bureau received the information on Sept. 12 and “included it as part of Judge Kavanaugh’s background file, as per the standard process.”
        That indicates there’s no plan for further investigation as part of the background check process, which likely would have happened if the FBI had received the information earlier on. Kavanaugh’s background file is available for the White House to review.
        https://www.huffingtonpost.com/entry/dianne-feinstein-brett-kavanaugh-document_us_5b9a90eee4b01151973bca90

  5. Frank Probst says:

    Has the SCO definitively stated that they’re not going to recharge him on the counts that resulted in a mistrial?  Normally, the answer would probably be no.  Here, I’m not sure what they’re going to do.  If they’re really in the middle of plea negotiations, this would be one of the things that Mueller has for leverage.  The situation here is so bizarre, because Manafort is in jail unless and until he’s pardoned or gets sent to prison.  He seems to have unlimited legal funding, but the stress of being in jail has to be wearing on the guy.

    • SpaceLifeForm says:

      It’s all about timing. I still believe he will flip. ‘Stuff’ has to be collected before that happens however.

      The Metadata will be very rich tonight.

    • pseudonymous in nc says:

      No. Manafort was granted a 30-day extension to file post-trial motions because of the need to prepare for the DC trial, and Ellis granted the prosecution an additional week after that to file notice on whether to retry those counts.

  6. harpie says:

    o/t Remember when Marcy praised Mazie Hirono‘s staff and tweeted:

    9:17 AM – 6 Sep 2018 Great point: @MazieHirono’s publication of Kavanaugh’s views on certification of Native status affects both states of swing Republicans.

    Yesterday, from Anchorage Daily News, via  Briane Fallon:

    Anchorage Daily News: Alaska Federation of Natives, a key supporter of Murkowski, opposes Kavanaugh appointment

    • harpie says:

      Related to the above, [as well as Kamala Harris’ question at Kava-NUH-UH hearing: Are there are any laws that give the gov’t power to make decisions about a male body?]: Thanks for retweeting this EPIC thread, Marcy!

      https://twitter.com/designmom/status/1040363431893725184 [Gabrielle Blair] 3:15 PM – 13 Sep 2018 I’m a mother of six, and a Mormon. I have a good understanding of arguments surrounding abortion, religious and otherwise. I’ve been listening to men grandstand about women’s reproductive rights, and I’m convinced men actually have zero interest in stopping abortion. Here’s why… / […] /

  7. david sanger says:

    Related to this is a subject I’ve not seen discussed anywhere. Manafort was found guilty of filing false tax returns for five years. The law says you have to file tax returns with correct info so I presume Manafort will have to amend those five years of tax returns, report the income correctly and pay taxes on it. That is not a punishment or a penalty; it’s just what everyone has to do.

    If Trump pardons Manafort for filing false tax returns that is not a determination of innocence; he is still guilty. It just removes the criminal penalties (jail and/or fine) for the criminal violation. It should not remove the obligation to file correct returns and pay the remaining income tax.

    As for the standard late payment penalties and interest, that is a natural consequence of filing and paying late and not a result of his criminal conviction so I would think those would still be in effect too.

    I did research previous pardons for tax evasion. Obama issued four, the most well known of which was to Willie McCovey, but the cases were all from the 80’s or 90’s and the people had already paid their fines and/or served time.

  8. david sanger says:

    “Former Trump campaign chairman Paul Manafort has tentatively agreed to a plea deal with special counsel Robert Mueller that will head off his upcoming trial, sources familiar with the negotiations tell ABC News.”

    waiting…..

    • orionATL says:

      trump the dwarf jester.

      but the jester served the king.

      and the jester was a wise dude.

      avennatti is the king :)

  9. orionATL says:

    judge amy b. jackson moved the time up a bit for tomorrow’s ok corral moment between manafort & co and mueller & co.

    the office of special counsel does not speak (sort of), but this news report does not sound like what i would like to hear. the agreement seems a technical one focused on certain charges:

    https://www.nytimes.com/2018/09/13/us/politics/manafort-plea-deal-prosecutors.html

    osc needs to remember its larger audience is not judges or lawyers.

    a mistep here that smells like appeasement will likely collapse its tentative but growing public support.

    • orionATL says:

      i think this para. by haberman&co is bullshit; no, it’s just purblind, stupid reporting:

      “… Any plea by Mr. Manafort would be another unsettling development for a president who seems increasingly isolated and distrustful of members of his own circle. For months, Mr. Trump has praised Mr. Manafort for confronting Mr. Mueller instead of trying to negotiate a plea deal… ”

      mr. trump would be delighted, and would both consider it and loudly announce it as a victory, if manafort were to agree not to cooperate wiyh the osc. were have these reporters and their editors been sleeping these days – in caves?

      as for osc, if they lose their grip on manafort, who else to turn to to find out the gory details of trump’s conspiring with putin?

      • pseudonymous in nc says:

        It’s Maggie’n’Mike (and Sharon and Ken): consider their sources, and that none of them are law/justice reporters. So it’s really just a one-sentence story — “yeah, we have sources saying the same thing as reported elsewhere” — and everything else is filler.

  10. pseudonymous in nc says:

    If we can assume that it’s Paulie the Rug’s lawyers leaking this — or maybe Rudy911 passing on news from Paulie’s lawyers — then the bean-spilling is an overnight trial balloon to see how it plays before going through with it tomorrow.

    Though as EW said on the twitters, any cooperation agreement would require being out of the JDA.

        • Trip says:

          @Willis, you and I both know that Trump really doesn’t even care about the people who did vote for him. He is devoid of empathy and compassion.

          That multiple towns were just blowing up would appear to be a damned crisis, one would think.

      • Michael Schmitt says:

        Similar incident happened in Chicago back in 1992: http://www.historyillinois.org/FindAMarker/MarkerDetails.aspx?MarkerID=44

      • Bradley Brooks says:

        Re: Massachusetts explosions (not sure where this will post from my iPad)

        So, how many THOUSANDS, Hundreds of Thousands, of homes will have to be totally reinspected and repaired? (Because for every gas connection that failed and exploded, surely dozens of others were brought right up to the threshold of failure, just waiting for their own catastrophe, as soon as lines are repressurized.)
        And all of that, BEFORE the lines can be RE-pressurized, and BEFORE the onset of winter? I would also wonder, à la Flint, to what extent libertarian, low-regulation, ”Markets!”-driven, privatization or anti-government bubbafoolishness contributed to this clusterfrack.

  11. pseudonymous in nc says:

    CNN reported that Uzo Asonye was seen at the Special Counsel’s office on Thursday, though it doesn’t say whether he was there at the same time as Paulie’s lawyers. That makes me wonder whether any potential plea deal would include going back to EDVA and pleading guilty to some of the deadlocked counts as well.

    • bmaz says:

      Assuming they have really finalized a deal, yes it will also dispose of the remaining ten counts that hung in EDVA. Don’t know if that includes pleading to some of them or if they are just being written off, but they would be included.

    • harpie says:

      NYCSouthpaw:
      Special Counsel’s office confirms a Manafort guilty plea is imminent. It looks like they’re having him plead to the whole litany of charges in the indictment, which almost definitely means no cooperation deal was struck.

      • harpie says:

        nycsouthpaw, next tweet:

        Let me walk this back a little: the plea will be to only two counts—conspiracy against the US and obstruction. However, the criminal information recites the entire litany of conduct in the indictment. Let’s wait for the plea agreement to see if there’s a cooperation deal.

    • Frank Probst says:

      Everyone’s mum on the issue of co-operation.  Mueller’s team doesn’t leak, so this is either coming from Manafort or from someone in the JDA.  I don’t quite understand what Manafort can and can’t do while remaining in the JDA.  He was reportedly negotiating a plea during the jury deliberations at the first trial, so I don’t think simply negotiating a plea requires him to leave the JDA.  (@bmaz, please correct me if I’m wrong here.)  I’m guessing that a co-operation agreement against any of the other 36 members of the JDA WOULD require him to leave it.  (Again, could be wrong.)  Maybe the agreement has been “tentative” up until now because of this?  I don’t know.  But it feels like either we’re getting blindsided today, or Team Trump is.

  12. Drew says:

    @pseudonymous It might be as you say, but perhaps the opposite (but only in the case of real cooperation) – that is, working on a sentencing recommendation for reduced time or whatever. Of course, it could be neither, e.g. a meeting considering going ahead with the charges, or going over motions or administrative whatnot for upcoming stages of that case.

    Stay safe down there in NC!

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