Mike Diederich, Jr. – DA Candidate Rockland County, NY – Op Ed., Values that Protect All Citizens

About Mike Diederich’s DA Opponent, Judge Thomas E. Walsh II

Note to Reader:

Mike Diederich, Jr. is running against Judge Thomas E. Walsh II for the DA position in Rockland County, NY. Judge Walsh, who is running as both an avid Republican and an avid Democrat (depending upon the locations of the signs) seems not to have been able to decide which platform suits him best. We are not really certain what to make of that, except to state that it would seem he has no particular sense of loyalty.

Walsh has been endorsed by a number of law enforcement agencies; but is also funded in large part by big development within Rockland County, with money coming in from Brooklyn, from Lakewood and from other areas which are currently mired in development controversies.

The same people who equate code enforcement with anti-Semitism are the same people supporting Walsh.

In 2013, Judge Walsh, in an article entitlted “New York’s Double Dippers” was cited in the Democratic Chronicle as one of the top paid members of the judiciary at that time:

17 state judges collected salaries and pensions last year, the highest earner being Surrogate Court Judge Thomas E. Walsh II, a retired local judge in Haverstraw, Rockland County, and a former county attorney. State records show he earned a $104,687 pension and two salaries — $3,750 from the state Department of Taxation and Finance and $132,260 as a state judge; he’s also an acting Supreme Court judge. His total compensation was $240,698.

We suspect a win for DA would mark him squarely as one of the top paid people in the County, if not the State, when you attach all of his accumulated pension and benefits; but we cannot independently verify how exactly that works, whether or not he keeps other pensions or has to relinquish them. To the best of our knowledge Walsh is no longer paid as a judge, though we are uncertain what other benefits he may be receiving.

 

Opinion – Mike Diederich, Jr.

 

See the source image

No, It Isn’t Anti-Semitism

In response to “Chassidim Are The Target, Not Overdevelopment” (op-ed, Sept. 13):

Concerns about irresponsible development in Rockland County are not anti-chassidic; “us vs. them” name-calling is counterproductive; and labeling people anti-Semitic when they are simply concerned about the problems they see around them is un-American.

Rockland’s homeowners see ever-increasing taxes of all sorts; public corruption that stems, at least in part, from bloc voting; housing and fire code violations endangering lives; crumbling public schools; and educationally-deficient private schools.

Our nation is great because we welcome diversity and respect everyone’s right to their own religious beliefs. I learned this from my father, who fought in World War II. But religious belief does not give a citizen a free pass to ignore the obligations of citizenship – and one of these obligations is to be an educated citizen.

An informed, educated citizen knows it’s wrong to discriminate against a person because of his religious faith, knows it’s wrong to say, “You cannot live in my neighborhood” because of unfamiliar clothing attire or customs, and knows it’s wrong to be a bigot.

But an informed, educated citizen also knows it’s wrong to deny children their right to a sound secular education and know it’s wrong to call someone an anti-Semite for supporting core American values.

I am an independent Democrat running for District Attorney in Rockland County who served with the U.S. military in places like Iraq and Afghanistan. I have been part of the fight against religious hatred. And as District Attorney, I will promote the values I outlined above since these values protect all citizens.

Mike Diederich, Jr.
Stony Point, NY

The Platinum (Teflon) Partners – and a New Trial for One an Acquittal for Another – An Unheard of Move…

Note to readers:

One of the problems with having lost total anonymity (see here) is the second hat worn by the blogger, that of an attorney. Unfortunately of late, attorneys have been suspended for criticizing judges. Whistle blowers are now at risk for their lives from the ruler of what used to be the free world; and the moral compass of the judicial system in the US seems to have turned on its axis. Being a nameless and faceless spokesperson for truth or some form of justice is risky; but putting a face to that is like removing a Kevlar vest. 

Anonymity provided protection, not by allowing us to type words we otherwise would not have typed, but by affording us with a voice without the weights and burdens of multiple degrees and professional demands and what could appear to be attorney advertising were it to have a face. Our voice spoke words of a faceless anybody who did the research and came to a set of conclusions. We no longer have that level of protection. So we tread lightly, a chilling of speech in full force and effect. And for the sake of attorney ethics, perhaps call this attorney advertising, perhaps not. View it as you will. 

And we digress. The ruling below by Judge Brian Cogan feels nothing short of a betrayal of justice for the victims, for justice and for the entire financial system. The jury had it right despite the theatrics of truly gifted attorneys representing the defendants. The attorneys did their jobs and the jury ruled, even at the many legal and judicial disadvantages imposed by Judge Cogan. And then the judge overruled. 

We don’t get it. It feels very wrong.

The jury was an unsophisticated jury with likely precious little by way of experience in the investment world. And yet they were convinced that there was enough evidence to convict Mark Nordlicht and David Levy. We were disappointed they missed the whole picture but they got a piece of it right.

Unfortunately the Prosecution team did a rather inadequate job of breaking up the entire fraud piece by precious piece; and missed so many crucial bits of evidence to put before the jury, not the least of which was a comparison to how the global markets were performing at the time the Platinum Partners were active. This comparison shed light on how lacking in transparency were the activities of Platinum Partners now Teflon Partners at the time.

It was all very complicated; but could have been broken down by someone with enough experience in investments to break it all down. Yet the jury got the significance of Black Elk, a feat of epic proportions. 

We have years of research behind our stories on this subject, a lifetime in the hedge fund world and extensive knowledge of the subject matter. The lawyers representing the State were out-played by master craftsmen. Simple.

But the jury got it right.

To be undone by the judge came as a surprise, accompanied by a deep sense of sadness and a feeling of despair for everything just and true about our judicial system, if such truth exists, and our financial markets. The markets work because of the integrity of the investment vehicles, the rules the hedge fund managers MUST play by.  Teflon/Platinum Partners did not play by those rules. It all only works in concert when the investors can count on the judicial system to ensure act as referees or alternatively dole out equitable and judicial remedies when all else has failed. In this case, the justice system was in discord, as we see it.

The world’s financial markets continue to function only when investors can trust the underlying materials about the risks,  solely when investors understand the thickness of the ice they are going to be skating on, which is supposed to be transparently laid out. There can be no substrata of lies and deceit or the entire endeavor is accompanied by hidden risks. That was the Teflon/Platinum Partners strategy. They hid risks, the ice was thinner in places. 

This case, if not for any other in our anonymous and not-so-anonymous viewpoint, is representative of an entirely broken system. If risks can be so well hidden that minutiae determine a Judge’s unilateral decision to overturn a verdict, no market is safe.

The jury understood the material and afforded us with a just result. The judge here we simply do not understand. 

Hopefully the prosecution team will retry this case; and perhaps they will contact those with an abundance of knowledge on the materials for assistance. If they decide not to retry the case, the victims will have been re-victimized by the very system designed to protect them. 

If the Prosecution does not retry this case it will only either serve to substantiate a belief in unequal justice for the wealthy or prove that the Securities Acts and the investor laws are meaningless or some combination of the two. The Jury got it right. One of those convicted has been acquitted by Judge Cogan. Game well played.

We implore upon the Prosecution to take up the case again and to do better. 

New Life In Platinum Partners Case, Acquittal And New Trial

In a rare move, U.S. District Judge Brian Cogan (Eastern District of New York) overturned a jury’s conviction.  Cogan acquitted David Levy and granted a new trial for Mark Nordlicht.  Levy and Nordlicht, both executives at now defunct hedge fund Platinum Partners, were convicted of securities fraud, conspiracy to commit securities fraud, and conspiracy to commit wire fraud in July of this year after a 9-week trial.  A third defendant, former Chief Financial Officer Joseph SanFilippo, was cleared of all charges.

Back on December 14, 2016, seven individuals were indicted for their alleged participation in transactions at Platinum Partners, which was founded in 2003.  Two of the primary targets of the investigation were Nordlicht, one of Platinum’s founder partners and its Chief Investment Officer, and David Levy, a senior executive at Platinum who also served as co-portfolio manager for Black Elk, an oil and gas company that Platinum controlled from August 2010 through September 2015.

As the trial approached,  Nordlicht made a change in counsel from high powered attorneys at Quinn Emanuel Urquhart & Sullivan LLP to Jose Baez who gained notoriety when he won “not-guilty’ decisions in two separate high profile murder cases defending Casey Anthony (Florida) and former New England Patriot tight end Aaron Hernandez.  It was an interesting strategy and one that seems to have paid off for now.

There is no doubt that there was some great lawyering here, but the case is also interesting because it went from some slam dunk Ponzi scheme, to a real hedge, who had some exotic investments, that went out of business after the FBI raided the place.  So was it the hedge fund that was a fraud or an FBI raid that caused the fund to shut down?  One thing is clear, there was a raid.

Platinum managed multiple funds, including Platinum Partners Value Arbitrage Fund, L.P. (“PPVA”), Platinum Partners Credit Opportunities Master Fund, L.P. (“PPCO”), and Platinum Partners Liquid Opportunity Master Fund L.P. (“PPLO”). One transaction involved the valuation of one of the funds’ investments, Black Elk – an oil and gas company that Platinum controlled from August 2010 through September 2015, and the subsequent sale.

Government prosecutors claimed that Nordlicht and Levy hatched a plan to get the money from Black Elk’s sale through misrepresentations to bondholders.  The Government claimed that the evidence would show that the defendants rigged the Black Elk bond consent solicitation.  At trial, the jury found Nordlicht and Levy guilty on counts six to eight (related to the Black Elk) but not guilty on counts one to five, which related to Platinum.   

After a 9-week trial and the partial guilty verdict, Nordlicht and Levy moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 and for a new trial under Federal Rule of Criminal Procedure 33. Judge Cogan deferred ruling on these motions until Nordlicht, Levy, and the government prosecutors fully briefed their respective positions.  So just when prosecutors thought the trial was over, it wasn’t.  After hearing arguments from both sides, Judge Cogan acquitted Levy and stated that Nordlicht’s motion for acquittal was denied, but a new trial was approved as prosecutors did not provide enough evidence to sustain the conviction.

Judge Cogan wrote;

“In considering whether to grant a new trial, a district court may itself weigh the evidence and the credibility of witnesses, but in doing so, it must be careful not to usurp the role of the jury .. The ultimate test is whether letting a guilty verdict stand would be a manifest injustice. … There must be a real concern that an innocent person may have been convicted.”

Although the Government adduced sufficient evidence for a judgment of acquittal to be unwarranted, letting the verdict stand against Nordlicht would be a manifest injustice. Thus, Nordlicht’s motion for a new trial is granted.

It was a complex case but Platinum was a complex hedge fund, something any jury would struggle with.  It all started with an FBI raid, allegations that Nordlicht was seeking to flee the country and that the hedge fund was a Ponzi scheme.  It turns out that the FBI’s raid was successful in taking down the Platinum but there was no clear motivation as to the defendants when they began to experience a liquidity crisis at Platinum (a real issue but not necessarily criminal).  It’s not against the law to make bad decisions or to lose money … something that seems to have been criminalized in this case.

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Is There Nothing Sacrosanct, Like a Law Degree to Prevent Corruption? Gordon Caplan and College Admissions

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Gordon Caplan, The Legal Profession and the Words of a Lifelong Idealist

There is apparently good reason for the number of lawyer jokes that circulate the internet, parties, schools and even children’s playgrounds. One would think that to practice law you must yourself be worthy of the profession, have an unshakable set of ideals and standards and draw lines in the sand that cannot be crossed. They say we would do anything for our children. But what does that mean when a future generation depends upon our integrity?

Those who have spent a lifetime practicing law should be held to a higher standard in everything they do, whether it is trying a case, drafting a contract or sending a child off to college. We should not be cheating the system. We should not be paying off public officials. We should not be coercing or gaming a judicial system and we should not be falsifying test results.   

We most certainly should not be setting a stage whereby our children cannot distinguish right from wrong. Lines should be clearly drawn. We are supposed to be setting an example for others. Instead we make a mockery of the profession.

FOREVER THE SLEW OF LAWYER JOKES:

Question: A driver is driving and sees a lawyer and a snake on the road, she has a choice and can only miss one. What does the driver do?

Answer: She swerves to miss the snake.

Ex-Willkie Co-Chair Gordon Caplan Gets Prison Term in College Admissions Case

Gordon Caplan, the former co-chairman of Willkie, Farr & Gallagher, was sentenced to one month in federal prison on Thursday for paying a college admissions consultant to rig his daughter’s ACT score.

U.S. District Judge Indira Talwani in Boston said the interests of general deterrence drove the need for Caplan to serve time behind bars. The sentence was below the eight months prosecutors asked for, but dashed Caplan’s hopes for a noncustodial sentence.

He was ordered to report to prison on Nov. 6. In addition to the prison time, Talwani ordered Caplan to pay a $50,000 fine and to serve one year of supervised release. His sentence also includes community service.

The sentence is another notch in the belt for U.S. Attorney Andrew Lelling’s office, which brought cases against some 50 defendants as part of its probe into a web of corrupt college admissions officials centered on William Rick Singer, dubbed “Operation Varsity Blues.” Many other defendants pled guilty and await sentencing.

The government, whose prosecution team included multiple Big Law alumni, said Caplan had shown “callous disregard for honesty and the rule of law.”

Caplan is at least the fourth parent in the college admissions case to be sentenced to prison time; Felicity Huffman, the actress, was sentenced to two weeks after she pled guilty to working with Singer to rig her daughter’s SAT score. Parents Devin Sloane and Stephen Semprevivo—who worked with Singer to fraudulently pass their kids off as talented athletes—each got four months.

John Vandemoer, a coach accused of accepting funds for the Stanford sailing program in exchange for a willingness to tell the school’s admissions office that phony athletes referred by Singer were prized recruits, received a sentence of no prison time.

Caplan’s lawyers at Ropes & Gray and Smith Villazor argued that Caplan’s public humiliation and his possible disbarment would be enough punishment, and said a prison term would harm his family. If anything, they argued, he should face no harsher a penalty than Huffman, who went so far as to consider making use of Singer’s illegal services for a second child.

Prosecutors sought to rebut that argument, however. Assistant U.S. Attorney Eric Rosen argued that Caplan’s status as a lawyer, the fact that he hired another attorney who was oblivious to the cheating to threaten the ACT after it withheld his daughter’s test score and the fact that he paid $75,000 for Singer’s test-rigging services—five times what Huffman did—made clear that he was the worse offender.

But Judge Talwani split with prosecutors over whether the price Caplan paid meant his crime was any worse than Huffman’s. Caplan’s plea agreement included an upward adjustment to the guidelines based on that sum, but the judge rejected that reasoning in her assessment of the guidelines—the total offense level should be five, not 11, as it was in the plea deal, she said.

Still, the judge cited the high price tag Caplan paid in other parts of her analysis. What drove her decision to impose a prison sentence, she said, was the need for general deterrence, plus the huge amount of money involved.

“This is large money, which makes it more of a serious issue,” the judge said. “It’s just different than most [crimes with a guidelines range of zero to six months in prison].”

Talwani made clear that she didn’t agree with prosecutors about Caplan’s status as a prominent lawyer figuring into his crime or punishment. “I don’t see how this offense was trading on his position as a lawyer,” she said.

As to further consequences Caplan may suffer to his already-derailed career, judge invoked “a combination of having a punishment here and the court’s recognition that you have fully accepted responsibility here and, in my view, are more likely to understand the morality and rules and law going forward than before this conviction.

“So I don’t know what will happen with the collateral consequences, but… hopefully the punishment will weigh against further consequences,” she continued.

‘The Moral Issue’

The sentence marks the end of a relatively straightforward and short criminal case. Caplan was among dozens of parents charged in March with paying corrupt consultant Singer to help their children get into good schools. Within less than a month, he announced his intent to plead guilty.

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