1. "[T]here’s a broad expectation that Mueller will file what’s called a superseding indictment of Manafort and Rick Gate." I offer at the bottom of this blog excerpts from my now discontinued Federal Tax Crimes Book. I think the discussion is still good. On the effect of superseding indictments, the article quotes Jonathan Turley, the frequent pundit, as saying that there is a tactical reason for superseding indictments in that they "tend to grind defendants a bit more over time." While superseding indictments may have that effect, I don't think the federal prosecutors stage superseding indictments for that purpose. In my experience and observation, there is some need for the timing of the original indictment and the state of the investigation does not make the additional matters in the superseding indictments ready for indictment at the time of the original indictment. The article later describes use of superseding indictments as:
“Superseding indictments are frequently brought in financial investigations due to defendant recalcitrance to cooperate and also because they take so long to be put together,” said Martin Sheil, a retired supervisory special agent for the IRS’ criminal investigations unit.The article speculates that the superseding indictment may charge tax crimes. There has been speculation that the Special Counsel's team had not yet obtained the required Tax Division approval to charge tax crimes and that, when and if that approval is obtained, tax crimes counts would be included in a superseding indictment. The article says that obtaining Tax Division approval "can be time-consuming, and the would-be defendant’s attorneys often can petition Tax Division lawyers against authorizing the charges." I assume that all readers of this blog are familiar with the process for a putative defendant to invoke a conference with Tax Division Criminal Enforcement Section attorneys to attempt to dissuade CES from obtaining an indictment.
2. The article quotes an unnamed former Tax Division prosecutor as describing the original indictment as a
“speaking indictment"—in other words, an indictment that contains more information than necessary.
“It’s a way of dirtying up a defendant without having to actually prove the conduct,” he said. “I think, in fairness to them, they probably rushed it because they didn’t want to wait for the tax division approval on those tax counts. That, I assume, would be working its way through the system.”I found a good discussion of speaking indictments. Ronald Levine, Talk Is Cheap: The Misuse of ‘Speaking’ Indictments (Law Journal Newsletters Nov. 1916), here.
I would note that speaking indictments, like briefs, are intended to state the prosecutors' view that its audience will find persuasive. The audience is often the audience of public opinion. Levine says:
In other words, by design, the government’s speaking indictments advocate a story — one usually reserved for opening and closing jury arguments, but now intended for the news media, the jury pool and the trial jury. See Crafting Helpful Indictments, United States Attorneys’ USA Bulletin at 9, 18 (July 1998) (“An indictment … is an advocacy tool … ‘Speaking indictments’ are more effective because they help notify the defense, court and jury of the Government’s theory.”).Levine notes another benefit:
At the back-end of prosecutions that go to trial, “advocacy” speaking indictments may afford the government a second, and this time ex parte, closing argument to the jury. This occurs if and when the trial court reads from the indictment or sends it back with the jury during its deliberations.Levine then offers guidance as to responses.
