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FIDUCIARY ISSUES IN FEDERAL CRIMINAL PROSECUTIONS. by Douglas R. Young 1 Farella Braun + Martel LLP, San Francisco
- Dennis McBride
- 3 years ago
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1 FIDUCIARY ISSUES IN FEDERAL CRIMINAL PROSECUTIONS I. Fiduciary defined. by Douglas R. Young 1 Farella Braun + Martel LLP, San Francisco A. The word fiduciary derives from the Latin fidere, meaning to trust. A fiduciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation. Restatement (Second) of Torts 874 comment a (1979) (emphasis added). 1. At the heart of the fiduciary relationship lies reliance, and de facto control and dominance. The fiduciary relation exists when confidence is reposed on one side and there is resulting superiority and influence on the other. U.S. v. Kim, 184 F.Supp.2d 1006, (N.D.Cal. 2002) (citations and quotation apparatus omitted). 2. Counted among hornbook fiduciary relations are those existing between attorney and client, executor and heir, guardian and ward, principal and agent, trustee and trust beneficiary, and senior corporate official and shareholder. U.S. v. Chestman, 947 F.2d 551, 568 (2d Cir. 1991) (citation omitted). 3. It is a cardinal principle that an officer or director of a corporation will not be permitted to make out of his official position an undisclosed profit adverse to the corporation s interests and because of their fiduciary character will not be permitted to acquire for their own advantage interests adverse or antagonistic 1 Douglas R. Young is a senior litigation partner in the San Francisco law firm of Farella Braun + Martel LLP where he concentrates his practice in the areas of complex commercial litigation and white collar crime defense. He is a Fellow of the American College of Trial Lawyers and of the American Academy of Appellate Lawyers, and past president of the California Academy of Appellate Lawyers and of the Bar Association of San Francisco. In addition, Mr. Young is currently Co-Chair of the ABA White Collar Crime Subcommittee for Northern California and a past recipient of the Criminal Justice Achievement Award by the Criminal Trial Lawyers Association of Northern California. Mr. Young thanks David F. Phillips of Farella Braun + Martel for his help in preparing this material for publication. Mr. Young can be reached at or at Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 1
2 to the corporation. U.S. v. De La Mata, 266 F.3d 1275, 1297 (11th Cir. 2001). 4. [A] fiduciary duty cannot be imposed unilaterally by entrusting a person with confidential information. Chestman, 947 F.2d at 567. II. Examples of federal criminal cases where guilt can turn on fiduciary issues. A. Securities fraud. 1. Misappropriation theory of insider trading. a) Under the misappropriation theory of insider trading, a fiduciary s undisclosed, self-serving use of a principal s information to purchase or sell securities, in breach of a duty of loyalty and confidentiality, defrauds the principal of the exclusive use of that information. In lieu of premising liability on a fiduciary relationship between company insider and purchaser or seller of the company s stock, the misappropriation theory premises liability on a fiduciary-turned-trader s deception of those who entrusted him with access to confidential information. U.S. v. O Hagan, 521 U.S. 642, 652 (1997) (holding criminal liability under 10(b) of Securities Exchange Act may be predicated on misappropriation theory). b) A corporate insider such as a member of a company s board of directors, may be liable for violations of Section 10(b) and Rule 10b-5 if he has breached his fiduciary duty to the corporation and its shareholders by making use of material non-public information about the company to attain a personal benefit either by trading in the company s securities himself or by providing tips to allow others to do so. U.S. S.E.C. v. Blackwell, 291 F.Supp.2d 673, 687 (S.D. Ohio 2003). c) On the other hand if the inside information is received from someone to whom no fiduciary duty is owed, there is no misappropriation. The leading case is Chiarella v. U. S, 445 U.S. 222 (1980) (employee of financial printer deduced identity of takeover target and traded in its shares without making disclosure; as defendant was not a corporate insider he had no duty to disclose). (1) See, e.g., United States v. Kim, 184 F.Supp.2d 1006 (N.D.Cal. 2002) (duty to fellow club member who gave information in confidence insufficient to ground criminal liability; dismissing indictment for securities fraud and wire fraud); U.S. v. Cassese, 273 F.Supp.2d 481, 486 (S.D.N.Y. 2003) (dismissing securities fraud indictment; no fiduciary duty owed to competitor who was source of information); Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 2
3 United States v. Chestman, 947 F.2d 551, (2d Cir. 1991) (en banc) (duty to wife and wife s family insufficient to ground securities fraud and mail fraud convictions). (a) Chestman affirmed convictions for violations of Rule 14e-3(a) (trading on material nonpublic information concerning a pending tender offer) because that rule is a disclosure provision which does not require a fiduciary relationship. Id. at 557; and see 17 C.F.R e3(a). 2. Failure to disclose material information. a) Securities fraud can be grounded in nondisclosure where there is a fiduciary duty to disclose[,] and inadequate disclosure which arises when a public statement is made that is false or misleading or is so incomplete as to be rendered false or misleading. U.S. v. Cannistraro, 800 F.Supp. 30, (D.N.J. 1992) (citation, footnote and quotation apparatus omitted) (holding cases denying criminal liability under Rule 10-b absent a duty to disclose did not extend to affirmative misrepresentation). b) [E]ven in the absence of any general fiduciary duty resulting from discretionary authority, we hold that [the brokers were] under a duty to disclose [50% commissions on stock sales] because the information would have been relevant to a customer s decision to purchase the stock. Accordingly, wire fraud charges, which were premised on the existence of a duty to disclose the commissions, were proper theories of conviction for the jury s consideration. U.S. v. Szur, 289 F.3d 200, 212 (2d Cir. 2002). c) In U.S. S.E.C. v. Park, 99 F.Supp.2d 889 (N.D.Ill. 2000), a broker who advised investors through an expensive premium Internet site did not have a duty to disclose his scalping (acquiring shares, touting them, and profiting by the interest thus created) just because he was an investment advisor. But because the alleged facts may show that Defendants enjoyed a relationship of trust and confidence with their subscribers or may have assumed a duty to disclose their scalping, the SEC properly alleged its claims based on Defendants omission. Id. at 900. B. Bank fraud. 1. Violation of a fiduciary duty is not an essential element of bank fraud. See, e.g., U.S. v. Colton, 231 F.3d 890, 904 (4th Cir. 2000). But a prosecution theory based on reckless disregard of fiduciary duties is sufficient to ground an Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 3
4 indictment and support a conviction for bank fraud see, e.g., U.S. v. Ely, 142 F.3d 1113, (9th Cir. 1998). a) For example, in U.S. v. De La Mata, 266 F.3d 1275 (11th Cir. 2001), a ring of officers and directors of a Florida bank manipulated business deals involving their bank so as to realize an undisclosed profit to themselves. They were indicted on federal charges including bank fraud, money laundering, false statements to a federally insured institution, false entries, and misapplication of bank funds. De La Mata claimed that a scheme to defraud a financial institution must be predicated upon an affirmative duty to disclose; although the court found no support for that theory, it held that even if it were so, such a duty would arise from the bankers fiduciary duties as well as from federal laws and the bank s internal regulations. See id. at b) In Ely, the indictment alleged that the defendant directors declared dividends without regard to prudent banking practices and with reckless disregard for the effects the payment of these dividends would have on the bank. The court held that allegation was sufficient to charge a crime under 18 U.S.C. 1344(a), even though the statute does not refer to false representation but makes it a crime to defraud a financial institution. (1) The fraud charged in Ely was the reckless disregard by fiduciaries of the property committed to their care. See id., 142 F.3d at The court held that [i]f the indictment charged the directors in their capacity as directors with throwing the bank s money out the window, or if the indictment charged the chairman, abetted by the directors, of ordering the cashier to turn over $2 million to him for his personal use, it could scarcely be doubted that crimes under 1344(a) were being alleged. The brazen openness with which these hypothetical handouts were made would not remove the stain of fraud. Here, the charge is of the use of a legal form, the declaration of dividends, to extract from Statebank cash that should not have been paid out. Neither the openness of the maneuver nor the legal form in which it was dressed remove the stain of fraud if in fact the fiduciaries acted in reckless disregard of the property of Statebank. Id., 142 F.3d at C. Common law fraud, federalized by mail and wire fraud laws. 1. The elements required for conviction under [18 U.S.C.] 1341 (mail fraud) and 1343 (wire fraud) are identical except for the means of communication. Sun-Diamond, 138 F.3d 961, 973 (D.C. Cir. 1998) aff d 526 U.S. 398 (1999) (citation omitted). Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 4
5 2. Criminal liability for mail and wire fraud can turn on the existence of a fiduciary relationship. For example, in U.S. v. Brown, 79 F.3d 1550 (11th Cir. 1996) a Florida real estate firm s agents deceived buyers about the investment value of the homes they sold them. But the Court of Appeals reversed their fraud convictions. a) In Brown the court held that when there is a special relationship of trust, such as a fiduciary relationship, the trusted party must always disclose facts where nondisclosure could result in harm.. Where there is a fiduciary relationship, the federal fraud statutes are broadly interpreted and were intended by Congress to protect the careless and the naive from lupine predators. Id. at 1556 b) But in Brown the defendants were not in the kind of legal relationship with its customers which required them to disclose pricing structures under every circumstance. Instead, the firm and its customers were entering into an arm s length transaction of considerable financial importance to the customer. Under federal law the firm and the defendants had no general affirmative obligation to disclose the sales price disparity between its houses and its competitors houses. See id. at c) In the private sector context, [18 U.S.C.] 1346 [defining fraud] poses special risks. Every material act of dishonesty by an employee deprives the employer of that worker s honest services, yet not every such act is converted into a federal crime by the mere use of the mails or interstate phone system. Aware of the risk that federal criminal liability could metastasize, we held that not every breach of a fiduciary duty works a criminal fraud. Rather, there must be a failure to disclose something which in the knowledge or contemplation of the employee poses an independent business risk to the employer. Absent reasonably foreseeable economic harm, proof that the employer simply suffered only the loss of the loyalty and fidelity of the employee is insufficient to convict. Sun Diamond Growers, 138 F.3d at 973 (citations, footnote and quotation apparatus omitted). 3. [U]nder the intangible-rights theory of federal mail or wire fraud liability, a valid indictment need only allege, and a finder of fact need only believe, that a defendant used the interstate mails or wire communications system in furtherance of a scheme to misuse his fiduciary relationship for gain at the expense of the party to whom the fiduciary duty was owed. U.S. v. Hausmann, 345 F.3d 952, 956 (7th Cir. 2003) (lawyer failed to disclose to his clients a kickback scheme with a chiropractor). Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 5
6 D. Embezzlement. 1. Embezzlement is the fraudulent appropriation of property by a person to whom such property has been intrusted [sic], or into whose hands it has lawfully come. It differs from larceny in the fact that the original taking of the property was lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking. Moore v. U.S., 160 U.S. 268, (1895); accord e.g., U.S. v. Smith, 373 F.3d 561, 565 (4th Cir. 2004). 2. The funds embezzled need not have come into the embezzler s hands through a fiduciary relation with the beneficial owner of the funds. Thus in Smith, supra, the defendant was properly convicted of embezzling from the Social Security Administration for keeping his mother s continuing pension payments after she died. 3. One who has been entrusted with funds by a principal has a duty to hold or use them for the benefit of another, which is by its nature a fiduciary duty. But that he had lawful possession of the funds did not give him the right to appropriate them for his own purposes. Thus, it was his lack of legal entitlement to own the funds that renders his misappropriation of them after their deposit embezzlement. Smith, id. at 567 (emphasis by the court). 4. The federal embezzlement statute, 18 U.S.C. 656, does not mention fiduciary obligations, but they are implicit in its definition of the crime. The statute provides that whoever being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve Bank... embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank shall be fined or imprisoned... a) Thus in U.S. v. Doane, 975 F.2d 8, 12 (1st Cir. 1992) an attorney for a bank was held to come under this statute as an agent because of his fiduciary relation with the bank. E. Fiduciaries ex oficio (e.g. attorneys, guardians, ERISA plan fiduciaries). 1. Violations of these duties are usually prosecuted either civilly or under state criminal law, or both, although the facts of a state law violation can have an impact at federal sentencing. 2. There are federal examples of criminal consequences for ex oficio fiduciaries: a) [A] doctor convicted of using her position to commit Medicare fraud is involved in a fiduciary relationship with her patients and the government Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 6
7 and hence is subject to an [abuse of trust] enhancement under 3B1.3. U.S. v. Ntshona, 156 F.3d 318, 321 (2d Cir. 1998). b) As noted, in U.S. v. Doane, 975 F.2d 8, 12 (1st Cir. 1992) an attorney for a bank was held to come under the embezzlement statute because of his fiduciary relation with the bank. c) Goodstein was clearly a fiduciary with discretionary authority or discretionary responsibility in the administration of the DuPage [profitsharing] Plan. Viewing the evidence in the light most favorable to the government, we think a reasonable jury could have concluded that [he], acting in a fiduciary capacity, knowingly used profit sharing funds in an unauthorized manner, thereby converting the funds in violation of 18 U.S.C. section 664. U.S. v. Goodstein, 883 F.2d 1362, 1372 (7th Cir. 1989). d) References to fiduciary duties are scattered throughout the federal statutes references appear in at least 332 sections of the U.S. Code. For example: (1) It shall be unlawful for any officer, director, employee, agent, or other participant in the management or conduct of the affairs of a rural business investment company to engage in any act or practice, or to omit any act or practice, in breach of the fiduciary duty of the officer, director, employee, agent, or participant if, as a result of the act or practice, the rural business investment company suffers or is in imminent danger of suffering financial loss or other damage. 7 U.S.C. 2009cc-14(b). (2) Similar provisions appear elsewhere see, e.g., 15 U.S.C. 689n(b) (New Markets Venture Capital company). e) Issues concerning ERISA fiduciaries are discussed elsewhere on this panel. F. The above examples are for illustration, and are not intended as an exhaustive catalogue of situations in which violation of a fiduciary duty can be an element of a federal crime. III. Implications for civil cases where adverse findings are made on fiduciary issues in a related criminal case. A. In some circumstances a finding of a fiduciary violation in a criminal case could have a preclusive effect, barring relitigation of the same issue in a subsequent civil case. Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 7
8 1. In the case of a criminal conviction based on a jury verdict of guilty, issues which were essential to the verdict must be regarded as having been determined by the judgment. Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 569, 71 S.Ct. 408, 414 (1951) (allowing plaintiffs to introduce the prior judgment to establish prima facie all matters of fact and law necessarily decided by the conviction and the verdict on which it was based ). 2. A classic example is Resolution Trust Corp. v. Spagnoli, 811 F.Supp (D.N.J. 1993). Spagnoli had pleaded guilty to a thirty-count indictment charging (among other crimes) violations of 18 U.S.C. 215(a)(2) and 371 (conspiracy to solicit payment to bank officer). A bank employee, he had insisted on kickbacks before processing loans. His admissions of the elements of the offense were on the record. Held: the acts to which Spagnoli pled guilty also rendered him liable to the RTC for fraud and breach of fiduciary duty, and he was collaterally estopped from attempting to relitigate those issues. Id. at a) See also Cook County v. Lynch, 560 F.Supp. 136 (N.D.Ill. 1982), where the defendants RICO convictions established they knowing profited from a scheme involving county officials breaching their fiduciary duty to the county, and so by collateral estoppel the county had made a sufficient showing to force an equitable accounting by defendant for these profits and impose a constructive trust. b) For a notable example of collateral estoppel from an SEC civil enforcement action barring relitigation in a subsequent private civil action of claim of breach of fiduciary duties by corporate director, see In re Ivan F. Boesky Securities Litigation, 848 F.Supp. 1119, 1126 (S.D.N.Y. 1994) (breach of former director s fiduciary duties to corporation was established by collateral estoppel by findings in earlier civil suit by SEC against former director; nature of alleged violations was clear, findings were litigated and necessary to earlier result). 3. But courts will parse very carefully just what has been proved in, and what was necessary to the proof of, a previous criminal action before allowing collateral estoppel or res judicata. For example, the bankruptcy court in In re Johnson, 108 B.R. 129, 133 (Bkrcy. W.D. Tex. 1989) examined the transcript and the jury instructions in an earlier criminal case charging willful misapplication of funds from a Federal Reserve bank, and found that neither the existence nor the extent of the debtor s fiduciary duty was either addressed in the instructions to the jury or litigated by the parties. Accordingly, a finding of a violation of a fiduciary duty of the nature required by 11 U.S.C. 523(a)(4) was not one of the elements essential to the conviction of the debtor under the federal criminal statute and it could not be relied on in the bankruptcy action. Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 8
9 a) [T]he doctrine of collateral estoppel has limitations to assure that the precluded issue was carefully considered in the first proceeding. For the bar to apply: (1) the issues in both proceedings must be identical, (2) the issue in the prior proceeding must have been actually litigated and actually decided, (3) there must have been a full and fair opportunity for litigation in the prior proceeding, and (4) the issue previously litigated must have been necessary to support a valid and final judgment on the merits. Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986) (holding conviction for fraud based on false insurance claims after arson barred litigation of claims against insurance company). b) For a detailed analysis of collateral estoppel issues after a criminal conviction, see Resolution Trust Corp. v. Keating, 186 F.3d 1110, (9th Cir. 1999). 4. An acquittal does not form the basis for collateral estoppel against a civil claimant. [T]he difference in the burden of proof in criminal and civil cases precludes application of the doctrine of collateral estoppel. The acquittal of the criminal charges may have only represented an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused. As to the issues raised, it does not constitute an adjudication on the preponderance-of-the-evidence burden applicable in civil proceedings. One Lot Emerald Cut Stones and One Ring v. U.S., 409 U.S. 232, 235, 93 S.Ct. 489, 492 (1972) (citation and quotation apparatus omitted). B. A recent case suggests another possible effect in a civil action of a potential fiduciary violation established in a criminal action. In April 2004, three former officers of Computer Associates, a major software company, pleaded guilty to obstruction of justice in the Eastern District of New York, admitting that they lied to investigators during an internal company investigation focused on potential securities fraud issues. The novel criminal prosecution was based on the theory that even though the defendants lied to a non-government investigator, they knew their lies would be reported to federal investigators. 1. The prosecution of the Computer Associates defendants gives rise to many new and interesting questions in both civil and criminal contexts. Within the topics discussed here, these include: a) Do the guilty pleas establish a breach of fiduciary duty on the part of the three officers for a future civil action? One theory is that as company officers they owed their company the duty of candor and disclosure of material facts, but instead lied to investigators acting on behalf of their company, in order to protect themselves. Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 9
10 b) Do the guilty pleas (or the associated allocutions by the defendants) foreclose a defense to a civil securities fraud action, either against them personally or against the company? c) Can a company officer or director be held civilly liable for refusing to cooperate with a company investigation on Fifth Amendment grounds, on the theory that he or she must resolve a conflict of interest in the company s favor? 2. Case law answers to these questions are scarce. For more on the Computer Associates case, see Alex Berenson, Case Expands Type of Lies Prosecutors Will Pursue, New York Times, May 17, A link to the story appears at < IV. Examples of federal criminal cases where fiduciary issues can affect sentencing A. The Sentencing Guidelines. 1. Federal sentencing is governed by the U. S. Sentencing Guidelines ( Guidelines or U.S.S.G. ), which were established, in part, to correct the perceived abuse of leniency for white collar defendants. a) The Guidelines determine a sentencing range by coordinating a criminal history score, which is usually at the lowest level for white collar defendants because they are typically first offenders, with an offense level, set by the Guidelines at a base for the type of crime and then varied by specific characteristics of the particular offense, and adjusted up or down for various factors including the defendant s role in the offense. b) The mechanistic approach the Guidelines imposed has indeed resulted in harsher treatment for white-collar defendants, and has curtailed the sentencing discretion of federal judges to the point where some have resigned in protest. c) Federal sentencing practice has become a legal specialty of its own, with specialist consultants. The current edition of the United States Sentencing Guidelines is more than 1800 pages long, including 662 amendments, and there have been thousands of cases interpreting the Guidelines since they were established in B. Adjustment for abuse of position of trust. 1. U.S.S.G. 3B1.3 provides for a two-level enhancement if the defendant abused a position of public or private trust, provided this abuse is not included in the base offense level or specific offense characteristic. Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 10
11 a) This is the main vehicle for varying a federal sentence because of misuse of a fiduciary relationship. 2. The abuse of trust enhancement has been interpreted and applied as follows: a) U.S.S.G. 3B1.3 Application Note 1 explains that a position of public or private trust is characterized by professional or managerial discretion Those holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily nondiscretionary in nature. For this enhancement to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense. (1) This adjustment, for example, applies in the case of an embezzlement of a client s funds by an attorney serving as a guardian, a bank executive s fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician under the guise of an examination. This adjustment does not apply in the case of an embezzlement or theft by an ordinary bank teller or hotel clerk because such positions are not characterized by the above-described factors. Id. (2) [R]ecognizing the fiduciary nature of the trust relationships set forth as examples in the commentary i.e., attorney/client, bank executive/bank client, and doctor/patient relationships courts have emphasized that, to qualify as a position of trust the guideline enhancement requires more than a mere showing that the victim had confidence in the defendant. Something more akin to a fiduciary function is required. U.S. v. Snook, 366 F.3d 439, 447 (7th Cir. 2004) (citations and quotation apparatus omitted). (a) Thus an asbestos-abatement contractor, even though he operated without close supervision, is not in the same category as the positions listed in the Application Note, see U.S. v. Technic Services, Inc., 314 F.3d 1031, 1051 (9th Cir. 2002). (b) But the Second Circuit held that a position of trust exists, even in the absence of a fiduciary relationship [such as discretionary investment authority], where a defendant-broker affirmatively establishes a trust relationship by recommending a stock to his clients. U.S. v. Santoro, 302 F.3d 76, 80 (2d Cir. 2002). b) The presence of a position of public or private trust is analyzed from the perspective of the victim of the crime. Technic Services, 314 F.3d at Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 11
12 c) A sentencing court must carefully distinguish between those arms-length commercial relationships where trust is created by the defendant s personality or the victim s credulity and those where a fiduciary or personal trust relationship exists with the victim, and the defendant takes advantage of the relationship to perpetrate or conceal the offense. Only the latter circumstances justify the enhancement. At bottom, 3B1.3 s critical term position of public or private trust is a term of art, appropriating some of the aspects of the legal concept of a trustee or fiduciary. U.S. v. Caplinger, 339 F.3d 226, 237 (4th Cir. 2003) (citations and quotation apparatus omitted). (1) For example, in U.S. v. Mullens, 65 F.3d 1560, 1566 (11th Cir. 1995), the appellate court reversed an abuse of trust enhancement in a mail and wire fraud case because it was not aware of any evidence suggesting that Mullens had a special, close, or personal attachment, or fiduciary relationship, with any member of the country club that significantly contributed to his ability to perpetrate or conceal the ponzi scheme. (2) But in U.S. v. Bennett, 9 F.Supp.2d 513, (E.D.Pa.), aff d 161 F.3d 171 (3d Cir. 1998), the defendant s position as a fiduciary and sole director of a non-profit organization qualified him for an abuse of trust enhancement after conviction in a charitable fraud scheme. In causing significant misrepresentations to be made in order to secure and maintain his organization s tax-exempt status, Bennett violated his fiduciary duties both to the public and to the organization. And as the government proved, defendant used these positions of trust to enable the perpetration of the crimes. Id. d) In the case law on the abuse of trust enhancement, the focus is on lack of supervision of the defendant s activities. But a fiduciary relationship is sufficient to allow the enhancement to be applied. (1) For example, in U.S. v. Mabrook, 301 F.3d 503 (7th Cir. 2002) the defendant was convicted of mail and wire fraud for persuading his victims to invest in a business he knew was failing. An abuse of trust enhancement was held proper, among other reasons, because he made use of the corporate form, thereby assuming a fiduciary duty with respect to his investors. Id. at 510. (2) We recognize that Bracciale s plea agreement listed breach of fiduciary duty as an element of his underlying fraud offense. [But] the base offense level of six in 2F1.1 is for various forms of fraud and is not dependent on how the defendant committed the fraud or the elements of the particular fraud crime involved. For sentencing guideline purposes, Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 12
13 Bracciale s abuse of his position of trust or breach of his fiduciary duty is captured only by the abuse-of-trust enhancement. Thus, the district court did not err in applying the abuse-of-trust enhancement. U.S. v. Bracciale, 374 F.3d 998, 1006 (11th Cir. 2004) (finding no doubledipping in applying abuse of trust enhancement for fiduciary violation). 3. When the misuse of a fiduciary relationship is a necessary element of the offense, it should not ordinarily raise the offense level, as that would be double-dipping. See, e.g., U.S. v. Broderson, 67 F.3d 452, 456 (2d Cir. 1995). a) If the offense involved theft or embezzlement from an employee pension or welfare benefit plan and the defendant was a fiduciary of the benefit plan, an adjustment under this section for abuse of a position of trust will apply. U.S.S.G. 3B1.3 Application Note 4(A). Fiduciary of the benefit plan is defined in 29 U.S.C. 1002(21)(A). C. Specific offense characteristics. 1. In the Guidelines system, each offense has a base offense level and may also have specific offense characteristics that may adjust the level up or down. See U.S.S.G., Chapter Two, Introductory Commentary. a) For example, in the fraud Guideline, 2B1.1, the amount of loss is a specific offense characteristic, see 2B1.1(b)(1). There are 13 others listed in the fraud Guideline alone, many with complex subdivisions. 2. The only specific offense characteristic in the Guidelines specifically referencing a fiduciary relation is that for bribery. U.S.S.G. 3E5.1(b)(1) provides a two-level enhancement if the defendant was a fiduciary of the benefit plan or labor organization. a) In U. S. v. Glick, 142 F.3d 520 (2d Cir. 1998), Glick made illegal payments to Loeb, the trustee of a welfare fund established as a vehicle for employment-based health benefits, in return for the exclusive right to market the welfare fund s health insurance program. The fund qualified as an employee welfare benefit plan under ERISA, and Glick was convicted under 18 U.S.C and given the two-level enhancement at sentencing. (1) Glick claimed the enhancement should not have been applied to him that as a matter of law, he cannot qualify as a fiduciary because he performed only mundane tasks that are routinely performed by salespersons, and lacked managerial control. Id. at 527. Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 13
14 (a) But, Application Note 3 to 2E5.1 defines fiduciary by reference to the ERISA definition in 29 U.S.C. 1002(21)(A), which provides, in part, that a person is a fiduciary with respect to a plan to the extent he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets... [emphasis added]. Since the money out of which he paid his commission and bribes were constructively plan assets from the time they were collected, Glick qualified. (b) Glick may not have exercised fiduciary power over the entire Welfare Fund, or even with respect to the monies he forwarded to Loeb. Glick did, however, exercise fiduciary power in regard to those assets he used to pay his commissions. Id. at 528 n.9. b) This specific offense characteristic is not applied in addition to the abuse of trust adjustment. See U.S.S.G. 3E5.1, Application Note Note that the post-sarbanes-oxley amendments to U.S.S.G. 2B1.1 (the fraud Guideline), involving such positions as investment advisor and officer or director of publicly held company (see 2B1.1(b)(14)), do not turn on fiduciary issues. Those issues are addressed in fraud cases by applying the abuse of trust adjustment. D. Impact of Blakely v. Washington. 1. In a far-reaching decision, the U.S. Supreme Court held on June 24, 2004 that a criminal defendant has a federal constitutional right to have a jury decide on any factual circumstance the presence of which is used to impose a more severe sentence than the statute provides for without that circumstance. See Blakely v. Washington, 124 S.Ct (2004). 2. Although the case dealt with a state sentencing regime, it is assumed that this decision applies to the federal sentencing guidelines also. But this has not yet been authoritatively decided. a) The U.S. Supreme Court has granted certiorari, on an accelerated basis, to two cases in the coming October term, with argument scheduled on the first day of term. The Court is expected to use these cases, U.S. v. Booker, No , and U.S. v. Fanfan, No , to decide whether Blakely really does apply to federal sentencing, and if so whether the whole scheme is unconstitutional or whether parts can still be used. See, e.g., Supreme Court Acts Quickly to Consider Validity of Federal Sentencing Guidelines, 75 BNA Criminal Law Reporter 516 (August 4, 2004). Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 14
15 3. But assuming Blakely applies in federal sentencing, it will require additional charging and proof (or an admission by the defendant) before factors can be considered which now are routinely used to raise sentences above the basic level assigned to the underlying crime. 4. Specifically, both the existence of a fiduciary duty, and its violation, would have to be charged and proved (or admitted) for this circumstances to increase the sentence beyond the base level which would have applied in its absence E. Today s aggressive prosecutorial environment. 1. The Justice Department in the present administration is very aggressive in charging, negotiating pleas, proposing sentences, and demanding waivers. a) For example, a memorandum from Attorney General John Ashcroft, dated September 22, 2003 and entitled Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing, directs that prosecutors charge the most serious, readily provable offense or offenses, which generate the most substantial sentence. The use of statutory enhancements is strongly encouraged. b) Another memorandum, issued in January 2003 by United States Deputy Attorney General Larry D. Thompson ( Principles of Federal Prosecution of Business Organizations ), directs prosecutors investigating wrongdoing by companies to elicit privilege waivers. (1) One factor the prosecutor may weigh in assessing the adequacy of a corporation s cooperation is the completeness of its disclosure including, if necessary, a waiver of the attorney-client and work product protections, both with respect to its internal investigation and with respect to communications between specific officers, directors and employees and counsel. Such waivers permit the government to obtain statements of possible witnesses, subjects, and targets, without having to negotiate individual cooperation or immunity agreements. 2. The Department s response to Blakely is similarly aggressive. a) In his July 2, 2004, memo to federal prosecutors, entitled Departmental Legal Position and Policies in Light of Blakely v. Washington,, Deputy Attorney General James Comey outlined the Department s preliminary response to Blakely for federal sentencing purposes. The memo is available on the web at < Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 15
16 b) In his memo Comey says: (1) The Department s position at this writing is that Blakely affected only the Washington state sentencing regime and does not apply to federal sentencing at all. (2) If the courts disagree with this view, then the Department s position will be that the Federal Sentencing Guidelines cannot be applied at all in cases in which the application of the Guidelines requires the resolution of contested factual issues to determine whether upward adjustments or upward departures should be imposed above the maximum sentence based solely on the facts admitted by the defendant in a guilty plea or established by the jury s verdict. In that event the court should choose a sentence within the statutory range, but as a discretionary matter, one consistent with what would have been the Guidelines sentence. (a) This approach would still allow the judge to consider and decide on whatever factual matters the prosecution suggests, without a jury or the constraints of the Rules of Evidence, as long as the result does not exceed the statutory maximum for the crime. (b) This approach would also presumably avoid the existing grouping provisions, allowing multiple sentences for multiple crimes in a way Chapter 3 Part D of the Guidelines does not now permit. (3) The Comey memo directs prosecutors to begin immediately to include in indictments all readily provably Guidelines upward adjustment or upward departure factors except for prior convictions, which are not covered by Blakely. 3. Expect pressure to waive Blakely protection. a) Blakely is explicit that the right to jury fact-finding on aggravating sentencing factors can be waived. (1) But nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty. Even a defendant who stands trial may consent to judicial factfinding as to sentence enhancements, which may well be in his interest if relevant evidence would prejudice him at trial. We do not understand how Apprendi can Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 16
17 possibly work to the detriment of those who are free, if they think its costs outweigh its benefits, to render it inapplicable. Blakely, 124 S.Ct. at (a) The references to Apprendi are to Apprendi v. New Jersey, 530 U.S. 466 (2000), on which Blakely was based, and which held that any fact (other than the fact of prior conviction) that increases the penalty for the crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. (2) The Comey memo states that in a case in which the defendant agrees to waive his right to resolution of contested factual issues under the Blakely procedural requirements, the Guidelines should be applied. Thus, waivers of Blakely rights in connection with plea agreements may be sought. (3) The Comey memo also says prosecutors, who will now include sentencing enhancement factors in indictments, should consider striking them in return for Blakely waivers. b) It may be expected, therefore, that prosecutors will place heavy pressure on defendants to waive the protections of Blakely and consent to judicial factfinding, or to admit aggravating elements which would otherwise have to be proved. (1) This includes the existence and/or violation of a fiduciary relation if is an element either of the offense or a prosecution theory of the offense, or of a Guidelines-based sentencing enhancement (e.g., abuse of a position of trust). August 2004 Copyright 2004 Douglas R. Young; Farella Braun + Martel LLP. All rights reserved. 17
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Located on 125 Lakeview off of Walnut Street
Lakeview Park is where we hold our annual Easter Egg Hunt. This park overlooks City Lake which is a 27 acre manmade lake that includes a handicap accessible fishing pier and boat ramp. It is also equipped with benches for those who just like to relax and read a good book.
Copyright ©1997-2018 City of Dickson, Tennessee. Employee Email ---->Ver. 7-Employee Email

subset: commoncrawl


text:
June 21st, 2016
Many of you will have read the account of the rape of a girl by a young male athlete from Stanford University recently. The girl had attended the same party as her assailant and had drunk a considerable amount. So much, that she was not conscious when the assault occurred.
The case has attracted a lot of attention, partly because of the manner in which the defence was conducted, because of a letter from the boy's father begging for clemency because the boy had such a bright future ahead of him, and partly because of the eventual leniency of the sentence, just 6 months. The family, the legal team and (it would appear) the judge excused the behaviour on account of the defendant's promising future. What about the girl's future?
Parents reading the account will, no doubt, have had strong reactions, whether you have sons or daughters or your children are still much younger than this boy or are in the later teenage years. Most parents who've spoken to me about this case are appalled at the manner of the young defendant, his legal team and his father when he suggested to the judge that his son should not have his promising career as a swimmer jeopardised by "20 minutes of action." So it begs the question what should this dad have done? What should we do when our children are in the wrong? This is a most difficult position for a parent to be in and one where we have to be courageous and live out our values if we are to really help our children at the eleventh hour. As much as we might think we have communicated our values to our children they will still do wrong sometimes. It also prompts the further question, how do we prevent situations like this arising in the first place?
For the record I have been in that unenviable position (albeit in a minor way) of receiving that most unwanted call from the school. When my son was very young he hit another child in the playground and caused a nose-bleed. He was suspended from school. It didn't feel minor at the time.
We are usually quick to judge other parents and you might think that I had not brought my son up with proper values about using force. Well, we thought we had. But he was 7 or 8 years old and very impulsive. His self-esteem was low, with an as yet undiagnosed learning difficulty and he regularly felt humiliated at school. That does not excuse the behaviour but it did serve to explain it and to direct our strategies. When we excuse we do nothing. When we seek to explain we are trying to understand it. His upbringing was of course still a work in progress; he was still learning. And to be frank at that stage my husband and I were not particularly skilled. This episode was one of the catalysts that sent us to take a parenting course that transformed our lives!
How do you pass on the values that you really care about to your children? How do you equip them with those standards that would allow them by the time they go to university to know how to behave toward a drunken girl at a party and for those values to be so embedded that they would guide your child's actions even if he was drunk himself?
Parents model those values I hear you say. Of course this is a really big part of how we pass on our values. But the father of this aspiring undergraduate may never have assaulted anyone in front of his son. Our values get passed on in much more basic ways when they are much younger. While the boy in this case may not have witnessed outright physical violence in his own family, what did he absorb about respecting others generally and particularly toward women, did his parents discipline him by using force when he was young and was he held accountable for his actions growing up? In particular as his sporting prowess grew was he put on a pedestal and excused certain behaviours?
In Rosalind Wiseman's excellent book Ringleaders and Sidekicks she talks about how being a top athlete gives a boy exalted status and how those talented sportsmen are often not held to account for their actions. I enjoyed her story of a wise coach who observed such behaviours in one of his team. When the team was travelling interstate for a match this particular boy pushed to the front of the queue when boarding the plane. This behaviour may not seem like much in itself but it is a small example of thinking oneself better than others. The coach took the unusual action of making the boy apologise to all the passengers in the cabin over the public address system. When adults take steps over small behaviours the values get embedded.
We parents pass on our values when:
When children get things wrong it isn't effective to get mad at them but we do need to hold them accountable. At The Parent Practice we recommend The Mistakes Process which helps kids recognise why what they did wasn't a good thing to do and to make amends for it. We believe in redemption. When our children do something wrong we want to forgive them but forgiveness depends on there being genuine remorse. That is much more likely when parents discipline without anger and judgment.
So what should this dad have done? Of course he should have stood by his son. But that doesn't mean condoning or trying to excuse his behaviour. He should have supported his boy to take responsibility for his actions, like a man. And we know that would have taken a great deal of courage. But if the father can show it, maybe the son can too.
In what ways were you held accountable as a child? How have you required your children to make amends? Do share your stories with us.
June 13th, 2016
The sensational story of the 7 year old Japanese boy Yamato Tanooka who was left in the woods by his parents as a form of discipline and then got lost has of course attracted all sorts of comment, with much criticism of the parents. But there has been little discussion about what the parents were trying to do and whether it was effective.
In case you've missed it (because you've been lost in the woods yourself?) Yamato had been throwing stones at cars and people and his parents decided he needed to be taught a lesson. Their buttons had been pushed. They'd had enough and decided to take action. Most of us would applaud them at this point –we don't want to have kids pelting us with pebbles while their parents smile benignly at them, saying 'boys will be boys'. (You know you've seen similar).
They put the boy out of the car and drove off intending to return in a few minutes. The boy, apparently quite distressed, ran after the car but got disorientated and took a wrong turn so when the parents returned to the spot he was gone. He went some distance along a track until he found shelter where he was found, several days later, physically unharmed.
Imagine how those parents felt. The terrible fear for the boy (there were bears in those woods), the fear for themselves (which showed up in them lying to the authorities about how the boy came to be missing), the guilt and shame (so clearly expressed in images of his poor father hanging his head). Who knows how it had happened. Maybe one parent was more angry than the other so there was conflict between them. Maybe they'd given several warnings already and felt really disrespected when the boy continued his behaviour. Maybe they thought it was essential to do something dramatic to reassert their authority and teach the boy a lesson. Generally when we make mistakes in our discipline the consequences aren't the potential loss of life of our children and they're not played out in the full glare of media attention.
When my middle son was just a little bit older than Yamato he too engaged in some stone throwing activity with his cousin (boys and projectiles!) –in his case off a high-rise balcony, oblivious of the effect on cars below. I'm pretty sure if I'd had some bear-infested woods nearby at the time I'd have thought that was a pretty good option! In our case this was part of a series of incidents which very clearly showed us how little we were in control of this boy and so we were feeling powerless, angry and embarrassed. Our buttons were being pushed too! Luckily my husband and I had recently started the parenting course that was the beginning of The Parent Practice journey, so we had a few emerging skills to hand.
A key message we had learnt was that discipline has got to be about teaching, not just revenge for the wrong-doing. We talk about 'teaching children a lesson' but we have to be careful that the child learns the lesson we intend.
When the Yamato story broke many people rang in to a radio programme to which I was listening with their own stories of discipline in childhood. A surprising number talked about their parents putting them out of cars and driving off, only to return a few moments later. What do our children learn from this? Momentarily we learn that if we are really bad our parents will abandon us. This breaks a fundamental primal bond between parent and child, causing great fear and a belief that we must be truly awful people. Then when the parent returns we learn that they were bluffing. So we learn not to trust their word. Even if we don't abandon our children in the woods we frequently threaten to leave our children in shops when they won't come as quickly as we want. It can make a small child hurry up (older children know we don't mean it) but they do so out of fear and they get the message that our care for them is conditional upon them doing what we say. While they couldn't articulate it they feel manipulated and controlled and that feeling is at the heart of much poor behaviour.
You may be wondering what we did with our own stone-throwing miscreant. Luckily there were other parents (my sister and her husband) involved which I think helped us to stay calm. (It doesn't always have that effect-embarrassment can make us do weird things in our attempts to demonstrate our authority.) We agreed a course of action together. We calmly explained to our sons why it was wrong. Although you'd think they'd know, the impulse of the moment hijacked their thinking brains. We then involved them in making amends. The boys had to admit to the manager of the building what had happened and the parents had to undertake to pay for the damage to the cars. The boys were to earn the money to repay the parents by doing extra jobs, for a very long time. But at no point did we indicate that the boys were no longer worthy of our love or care. Our boys learnt a lesson from this episode about taking responsibility…and also that the family would tell the story at their expense, but with humour, for years to come!
What is the craziest thing your parents did by way of discipline? What about you? Do share with us your experiences of discipline that really teaches what you want your child to learn. www.theparentpractice.com/blog
June 06th, 2016
An article appeared in PsyPost (a psychology and neuroscience news website) this week about how children confuse simple words like 'and' with 'or' which had The Parent Practice team excitedly sending emails back and forth (don't laugh it's to your benefit!)
Apparently young children (under the age of 6 at least) confuse the word 'or' with 'and' so that when parents offer cake or ice cream children hear 'cake and ice cream'. Doesn't that explain a lot?
Researchers in linguistics at MIT and a team at Carleton University have conducted studies with children between the ages of 3 and 6 and found that there are subtle differences between how adults and children clarify the meaning of sentences. Both adults and children test out the meaning of statements. Take the sentence "Max ate some of the biscuits." Now suppose you find out that Max actually ate all of the biscuits. So the sentence "Max ate some of the biscuits" is still technically correct, but it would be more accurate to say, "Max ate all of the biscuits."
Adults can make this distinction – we can compare the two sentences and consider the implications of using 'all' or 'some' and recognise that each alternative spells out a specific new meaning. But guess what? The researchers discovered that children can't make the same distinctions as adults. When they hear 'cake or ice-cream' they are very much focussed on two of the three words! And the subtle and important implications of 'or' is missed.
What can parents do? Should we not offer children choices? Offering choices is generally thought to be a good idea as children at this age have so few opportunities to make decisions for themselves and can feel very frustrated and powerless.
But choices have downsides. If you have a child in this age bracket you may have watched them choose cake, only to be terribly disappointed with their choice later and wished they'd chosen ice cream… and have a meltdown. When a child realises that making a choice means giving up on something or losing something it takes maturity they may not have yet to handle the responsibility of that choice. Their pre-frontal cortex which governs perspective and the ability to weigh the consequences of decisions will not be fully mature until their 20s. Under the age of 6 the brain is still in its infancy and is largely governed by emotions.
So what do we do? Not give them any choices at all?
No. We think there is still merit in giving choices for under 6s (perhaps less for under 3s) but with this knowledge we can be very clear about the potential for confusion and support our children to handle the implications of their choices.
"William would you like some dessert? You can have yoghurt or fruit. You know that means just one. I'm going to put the one you choose on the table and the other one in the fridge. That will be for tomorrow. Which one for today and which one for tomorrow?"
William chooses fruit but later wants yoghurt. "Oh you want both the fruit and the yoghurt. That's hard for you to remember that Mummy said just one. I guess you didn't understand that and now you feel so disappointed. Maybe you wish you'd chosen the yoghurt." This may seem like a big fuss, especially when it's between two fairly healthy options but the parent is supporting the child to deal with disappointment by naming the feeling.
"Hannah, you're going to have to think carefully about how you want to spend your birthday money. There's enough there for you to buy one thing. You liked both the bubble factory and the butterfly mosaics but you can only choose one. I'm sure you wish you could have both. And when you choose one you might feel sad later that you didn't choose the other one. If that happens come and tell me and I'll give you a hug. That's the tough bit about making choices. The good bit is you get to choose something that you really like yourself. You get to be in charge of this decision."
Giving those pesky feelings a label helps strengthen the neural pathways between the emotional part of the brain and the logical part and at is the core of developing emotional intelligence.
Does your child get to choose sometimes? Does he sometimes change his mind? Does she want both? Next time there's a meltdown tell them you know what it's like to really, really want something when a few minutes ago you really, really wanted something else. It's so confusing! Let us know how you get on.
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68 Thurleigh Road London SW12 8UD
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text: Government Relations The Government Relations team leads on engagement with central and local government, and with Parliament. European Office London's European Office in Brussels represents the Mayor of London to the European Union institutions. International relations The Mayor is committed to maintaining London as a world-leader in finance, creative and tech industries, and more. Related content Mayoral webcasts Watch live and previous meetings at which the Mayor's priorities and programmes are debated. Meet the Mayor The Mayor makes appearances at a number of public events in London across the year. See where you could meet him next. ERDF Programme: 2007-2013 Learn more about the 2007-2013 ERDF legacy and find annual implementation reports. #LondonIsOpen #LondonIsOpen is a major campaign to show that London is united and open for business and to the world.


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Fortuny Floor Lamp by Pallucco
Product ID: 19211
Original Price: $5,400Our Price: $1,400
Out of stock
The Fortuny floor lamp is considered a contemporary yet timeless icon; a camera tripod inspired the base with an adjustable central leg, and Fortuny designed an 'upside down' tilting shade — unheard of in 1907. The modern Fortuny light maintains its iconic design, and features framework in profiled steel channel section, drawn flat bar and tubular steel, featuring a lacquered epoxy powder finish. The lamp height can be adjusted between 75 and 94 inches, and features a dimmer switch on the cord for easy access.
The modernity of the Fortuny floor lamp is fresh a century later, with exceptional design reflecting its conceptual core: an efficiently redefined task show light for the stage. Celebrated by his contemporaries as the last Renaissance man, Mariano Fortuny said "It is not the quantity, but the quality of light, that makes things visible". The Fortuny lamp is a fine example.
Good - slightly worn, has small flaws, but still looks great
small hole in shade
36 (L) x 36 (W) x 74.8 (H) in
36" in diameter, expandable overall 74.8" - 94.5"
Sacramento, CA


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Hillary Clinton believes government should make virtually every choice in your life. Education, healthcare, marriage, speech – all dictated out of Washington.
But something powerful is happening. We've seen it in both parties. We've seen it in the United Kingdom's unprecedented Brexit vote to leave the European Union.
Voters are overwhelmingly rejecting big government. That's a profound victory.
People are fed up with politicians who don't listen to them, fed up with a corrupt system that benefits the elites, instead of working men and women.
– Ted Cruz


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"Therefore let anyone who thinks he stands take heed lest he fall." – 1 Cor. 10:12
Bad behavior always requires penance. May be immediate, may take a lifetime, but everything we do has a consequence. God makes it clear and life confirms it. God tells us ahead of time so we can live right and thereby avoid such consequences. Life tells us by the consequences when we don't. Just look around. Whether it's the thunderous crash of moral decadence in the entertainment world or the house of cards beginning to crumble at a frantic pace in the land of American politics, that penance is occurring … in plain view, in real time.
Man's sinful nature has existed since Adam and Eve, but the unbound acceptance of most imaginable sin has evolved ever since. What was unthinkable in society even a decade ago is now commonplace. What was once banned from broadcast and cable television is now available on most channels. Introduced by what still is a young digital age, the immorality on demand accessible to anyone today was just 25 years ago nearly unheard of and mostly inaccessible. We've all watched societal boundaries disappear and, as a result, the world become a dangerous, volatile, fragile free-for-all.
Most of us are likely aware by now of the rather recent, spectacular revelations regarding the illicit, explicit behaviors of senators, congressmen, actors, athletes and news folks, to name to a few. For those who aren't, here's a sample of what's dominating the national news these days:
Sitting Unites States Senators and Congressmen who have sexually harassed female subordinates and colleagues scrambling like cockroaches under the bright lights of each new discovery. The number of said harassers is increasing and it's time they go away … for good.
A taxpayer funded pot of gold used to pay for the defense of these guys is an American travesty. Imagine the scheme – the citizens of this country are being forced to pay for fancy lawyers to negotiate sums of money paid to the victims of dishonorable behavior of dishonorable men. Making matters worse, almost unbelievable, is the disclosure that subsequent judgements are kept hidden by sealed agreements. In other words, we pay for genuinely bad people to get away with committing inexcusable acts of sexual harassment, but are denied the right to know what happened. Unethical doesn't begin to define the nature of what once honorable, admirable houses of congress have become. It's time to eliminate the fund, reveal the perps and tell the American taxpayer the truth.
TV personalities and actors once thought of highly enough to be welcomed into homes across the country being outed as sexual predators, perverts and pathological liars. From Matt Lauer to Kevin Spacey, these men represent the tip of the iceberg. More are sure to be exposed in the weeks ahead.
Media outlet executives quick to sensationalize the indecency of anyone they believe will drive ratings even as the same sorry behaviors permeate their own organizations. To suggest these executives have somehow been in the dark and unaware of such abhorrent conduct is to further validate the notion that a fish rots from the head down. Every one of these cowards is complicit in destroying lives and, like those who've gotten away with the abuse, should be sent packing.
Disrespectful athletes using the nation's anthem to protest are the very reasons the NFL is failing in all measurable aspects of the league. And the guy at the top is making $40 million a year to dismantle it by mismanagement and politics. It's football for God's sake, not a political movement. I'm with Jerry J. on this one.
The modern day city of Sodom and Gomorrah known as Hollywood beginning to feel the same kind of rage God had for the ancient city He eventually destroyed. Harvey Weinstein and, pardon the pun, the cast of lowlifes now starring in this epic meltdown are but a symptom of what is a Sodom and Gomorrah culture. I say wipe it away and take with it every piece of filth and immorality contained therein.
Even in our own backyard is the news of Joe Barton and his sordid escapades. Barton hasn't been accused of sexual harassment like those above and we should understand that. Frankly, what the congressman does in his personal life is his to own just like the rest of us own what we do. From the looks of it, Barton is one half of a saga or two that only bitterness and hate would compel someone to tell the world about. Even so, it's not my place or yours to judge either half, but what is valid is the notion that Barton has been part of a culture infested with awful behaviors for a long time. The implicit acceptance of such behaviors begins to numb the need to consistently be of high character, act with impeccable integrity and the perpetual discipline to be wise … especially as an elected public official. Joe Barton should know better than to expose himself, pardon pun number two, by behaviors unbecoming a Christian, a dad and a United States Congressman. Failure to do so results in what we've all just learned.
These are watershed moments in America. Just as elastic stretched too far will fray and unravel, so goes the culture in this country. In the fray is found deep-seeded sin and abomination – the very things that separate us from God. In the unraveling can be found ruined lives and destroyed legacies. As such, we shouldn't be surprised to watch as that which infected a city of old - a city God finally wiped from the face of the earth – further infect the most blessed country in the world, America. A return to God is the only cure.
And it's high time we understand that.


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There are a lot of rappers out there in Nigeria right now; Some spitting real stuff, and some are not really rapping anymore. But we want to know, who are the best in the game right now. Not the best historically but as of this very moment.
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text: Fishing: Story Story Posted 02-06-2013 Finals: Brauer Pulling Out the Blinders 2013 General Tire Summit Cup, Chautauqua Lake, Aug. 27 - Sept. 1, 2012 By: Lynn Burkhead, MajorLeagueFishing.com Permitted use provided by: MajorLeagueFishing.com After a legendary career that has seen Denny Brauer accomplish virtually everything an angler can accomplish in the sport of professional bass fishing, how does one of the elder statesman of Major League Fishing plan to go out and fish his first championship round? By putting the blinders on, grabbing a flipping rod and going fishing. That's Brauer's game-plan as the Jack Link's Major League Fishing 2013 General Tire Summit Cup competition comes to its final day on the 13,000-acre Chautauqua Lake in Western New York. But Brauer notes that such fishing will come only after he's had a chance to run around the championship zone and see what is available via the 15-minute "Hot Round." "That 15 minutes of riding around will be critical," said Brauer, who won both the Bassmaster Classic and the FLW Angler of the Year titles in 1998. "Hopefully I land right on top of them and get this thing going right." Brauer believes that a good early start is really important in the final round, especially in light of the previous two rounds that he has fished at Chautauqua. "I think it's critical to get off to a good start early," said the part-time Missouri, part-time Texas pro. "Both of the other rounds that I've been in, I haven't been able to do that and I've been scrambling from behind. This is one day that I don't want to be scrambling from behind. "I want to try to get out in front and stay out in front." Doing so could be more difficult for the sport's legendary jig-flipper: there aren't as many bass holding docks in this zone as compared to the previous ones. Zone 2 (Championship Day 6) Zone 2 is the premier bass area on Chautauqua Lake. Like zone 1, Zone 2 offers both shallow and deep water, with the deepest area of the lake off Lower Dewittville Bay. Some the finest lake front property is in Zone 2. For bass anglers, that means some great dock fishing action. Zone 2: 5.4 miles of shoreline, 2283 acres "I'll probably have to go flip grass (some) and do some different things," said Brauer. "But I'll just try to adapt as the day goes on." Given its preponderance of vegetation, finding grass will not be hard on the lake or in this particular zone. But finding the right spot in the fish holding grass, well, that could be another issue. "That's the hard part in such a short period of time," admitted Brauer, the 1987 B.A.S.S. Angler of the Year. "In a traditional tournament, you've got practice days and you'll drop a trolling motor and you'll go down the grass edges until you stumble into a bunch of fish. You'll GPS 'em in and that's where you'll concentrate come tournament time. "(But) this is going to be like a practice day. We're probably going to fish a lot of dead water until we find that little magic spot in the grass. "If you find it, you're a hero, if you don't find it, you're probably not going to get any bites." Which is one reason why Brauer acknowledged that he doesn't plan to stray too far from what has brought him this far in the dance. "Early on, I imagine that you can flip some docks and during the (heat of the day), there will be more fish that will get around those docks," said Brauer, who comes into this event with 17 wins and $2.57 million in career earnings on his B.A.S.S. resume. "The negative is that once you get a lot of boat traffic, waves going up and down, and people on top of those docks, docks can become very, very hard to get bites on." How will the leader board bouncing back and forth during the final - which will be aired on NBC, Saturday, Feb. 9 at 1 p.m. ET/noon CT - affect Brauer? He says not much at all. "Well, it's interesting to watch the leader board," said Brauer. "It kind of gives you an idea of how you're doing compared to the other guys. "But compared to how you fish, it's really not going to change what I'm going to do." After a career of doing the right thing on the water, setting the pace in a tournament, and letting the other guys adapt and play catch-up, there's no reason to expect anything else from Brauer in the finals. Share This Story Next From Story Major League Fishing Celebrates 5-Year Anniversary with Top Rating Related Fishing : Posted 02-01-2013 Chautauqua Institution Meets Major League Fishing – And Vice-Versa View Fishing : Posted 01-30-2013 Winding Down To Finals View Comments Categories News Stories Recipes Tips Gear Videos Photo Galleries Viewer Photo Galleries Features MAP: Find out where the fish are biting in your area Out There Fishing with Keith "Catfish" Sutton Major League Fishing World Fishing Network Feature Fishing Check Out All The Photos Explore the United States. Find information about and activities within your state. Get Started