The esquire report
News and updates
MENENDEZ TRIAL ENDS WITH HUNG JURY
In the first prosecution of a sitting U.S. senator in nearly a decade, a federal judge in Newark, N.J., declared a mistrial Thursday in the case against Robert Menendez, who was accused of trading political favors for trips and other gifts.
The declaration came after jurors sent a note to the judge Thursday morning saying they were deadlocked on all 18 counts in the case, including bribery, fraud and making false statements. It was the second time this week the jurors had indicated they were unable to reach a verdict.
The outcome could have significant political and legal implications, possibly giving Democratsmore hope of holding on to the Senate seat in the 2018 midterm election but raising questions about the ability of federal prosecutors to try other public officials accused of corruption.
"The way this case started was wrong, the way it was investigated was wrong, the way it was prosecuted was wrong, and the way it was tried was wrong as well," Menendez said in remarks to the press after the decision. "I've made my share of mistakes, but my mistakes were never a crime."
Menendez, a two-term Democratic senator who once served as chair of the powerful Senate Foreign Relations Committee, was charged in 2015 with engaging in a years-long corruption scheme that included accepting a series of lavish gifts from Salomon Melgen, a wealthy ophthalmologist from West Palm Beach, who was convicted in a separate trial on 67 counts of Medicare fraud. Menendez was also accused of using his influence to exert pressure on officials in Washington on Melgen's behalf.
Prosecutors in the trial, which lasted 11 weeks, said Menendez accepted free plane rides, a stay in a five-star Paris hotel and trips to a vacation resort in the Dominican Republic from Melgen.
Melgen also wrote $771,500 worth of checks to a legal expense fund for Menendez and various political committees.
Menendez did not report the gifts on disclosure forms until news reports in 2013 made the trips public.
In exchange for those gifts, prosecutors argued, Menendez helped Melgen obtain visas for his foreign girlfriends, assisted Melgen with a Medicare billing issue and intervened in a contract dispute Melgen had in the Dominican Republic.
Defense attorneys for Menendez argued that Melgen was simply a friend who behaved generously toward someone he had known and shared holidays with for years. They said Menendez's conduct fell within the scope of his routine business as a senator and did not constitute "official acts" as defined by federal bribery law.
The case was seen by some as a test of the law's meaning. Last year, in a corruption case against former Virginia Gov. Robert McDonnell, the Supreme Court threw out a lower court's conviction, ruling that although McDonnell had arranged meetings for one of his benefactors, he didn't make any official decisions on that person's behalf.
The justices said the judge in that trial had given jurors too broad a definition of what constituted an "official act," leading to several other corruption cases also being thrown out.
Menendez is the first sitting senator to stand trial since Alaska Sen. Ted Stevens, a Republican, was convicted in 2008 of concealing $250,000 in gifts. Though his conviction was ultimately thrown out, Stevens lost his bid for reelection.
Menendez, a two-term incumbent, has not announced whether he will seek another term next year. But he continued to raise money during the long criminal investigation, and he did not relinquish his duties during the trial.
A Quinnipiac poll released in September showed that fewer than a third of New Jersey voters approved of the job Menendez was doing and that half believed he did not deserve reelection.
The 2018 midterm could tip the balance of power in the Senate, as Republicans currently have a 52-48 advantage over Democrats and allied independents.
Early on in the Menendez trial, U.S. District Judge William H. Walls indicated that the bribery argument might not hold water, but then reversed course, leaving it to a jury to decide.
The jury's deliberations took a series of twists and turns since last week. After the first full day, jurors asked Walls if he could read back the part of closing arguments that addressed the definition of a senator — a question that may have pointed to a debate about whether Menendez should have acted on behalf of a constituent in another state.
A few days later, a juror who had been dismissed so she could go on a previously planned vacation told various media outlets that she expected a hung jury in the case, and that she had been prevented from sending a note to the judge and was told her vote didn't matter because she would be leaving early.
Walls seemed unconcerned about the effect of the media reports and their content, noting that the jury would begin deliberations anew with an alternate juror in place.
After one day of deliberation, the new jury said it was deadlocked. Walls told the jurors to go home and return with clear heads the next day.
On Thursday, they again sent a note to the judge saying they could not reach a verdict, leading to the mistrial declaration.
"This jury could not, would not and did not return a verdict that validated any of the government's charges," defense attorney Abbe Lowell said. "The fundamental reason for that is that this is what happens when you put a real 25-year friendship on trial."
Randall Eliason, a law professor at George Washington University who specializes in white-collar crime, said the problem for jurors was probably not whether Menendez's actions constituted "official acts," but that there was no "smoking gun" that proved a corrupt agreement between Menendez and Melgen.
"There was no real explicit email that set forth the corrupt arrangement, no piles of cash in a brown paper bag changing hands, and [neither party] testifying," Eliason said. Prosecutors "were left to ask the jury to infer the corrupt agreement from the sequence of events."
The mistrial is a major setback for the Justice Department, which brought the charges against Menendez more than two years ago. The department said in a statement only that it would "carefully consider next steps," but Eliason said it would be unusual for there not to be a retrial.
"If you believed enough in the case to bring it a first time, you would normally bring it again," he said.
Eliason said he didn't think the development in the Menendez case carried broader significance for future corruption cases, but he did note that prosecuting such cases has become more difficult in recent years because of the McDonnell case and others.
The government watchdog group Citizens for Responsibility and Ethics in Washington took a harder line.
"It's now clear that … it has become significantly harder to convict an elected official of corruption," the group said in a statement following the decision, urging Congress to strengthen corruption laws.
Senate Majority Leader Mitch McConnell (R-Ky.) also called for an ethics probe into Menendez on Thursday.
"His trial shed light on serious accusations of violating the public's trust as an elected official, as well as potential violations of the Senate's Code of Conduct," McConnell said in a statement.
This article was originally published in the LA Times
In a case of first impression in New Jersey, a Chancery Division Court in Morris County dealt with the issue of service of process through social media and, in particular, Facebook. The court held that when service of process cannot be served on a defendant by traditional means, such as by personal delivery, mail or publication, then the rules of civil procedure authorize a court to permit an alternate form of service, like Facebook, provided it comports with constitutional due process of law. Specifically, it must be reasonably calculated, under all the circumstances to appraise interested parties of the pendency of the action and afford them an opportunity to present their objections.
In the civil process service world, few jobs are more challenging than those without a physical address. And while cases in which you are given a post office box may offer slightly more information, there is a chance that they could be just as challenging as those cases without addresses.
Unless service is being mailed using the USPS and certified mail, you will need to do some work to determine the physical address of the individual you need to serve. In an effort to take some of the mystery out of these serves, we’re outlining some tips for how to tackle locating and serving the individual and make these types of serves not as challenging as they appear.
(Don’t) Serve the PO Box
If only it were that easy… Although service can sometimes be effectuated using certified mail, if personal service is required, you cannot serve a Post Office box. In those cases, you would have to serve the individual named on the summons. Furthermore, you cannot serve post office workers. Not only will employees at the post office not be able to accept service for an individual holding a box at the post office, they will likely refuse. If for some reason they were to accept service, it could be deemed unacceptable, and the service could be thrown out in court. You will need to locate the physical address in order to complete or attempt personal service, or you will have to serve the individual on the street.
Locate the Physical Address
When you’ve been given a PO Box, the order of business to tackle is to identify the physical address. Having this information will obviously put you in a better position to effectuate service. Luckily, there is a fairly easy way to obtain it given that you have all necessary information.
While not something that the general public can easily access, obtaining the physical address of a PO Box is a little easier for process servers. You can easily request the PO Box owner’s verified address, but it must be done in writing using the correct form. The form is available online on the USPS website. According to the USPS website, “Agencies must use the Address Information Request Format - Government Agencies in accordance with regulations at 39 CFR 265.6(d)(5)(i) & 265.6(d)(7) when requesting address verification. If the request lacks any of the required information or a proper signature, the custodian must return the request to the agency specifying the deficiency in the space marked "other".” There is also another “boxholder request” form, which is available on the United States Post Office website.
Keep in mind that completing that form does not guarantee that you will be given the box holder’s information, and if you incorrectly fill out the form, the post office is not required to complete your request.
No Address? No Problem with Skip Tracing
In the event that you are unable to obtain the box holder’s physical address, or if the address you are given turns out to be a dead-end lead, you can utilize skip tracing services. While some civil process service companies offer skip tracing services to their clients, some companies exclusively specialize in this service, which taps into a number of resources in order to locate the current address of an individual.
Depending on the company or what resources you have available, you may be able to access vehicle registration and/or utility records. And regardless of whether you use a professional skip tracer, don’t forget about various public records accessible to anyone, such as the county assessor’s office and other public records!
STOP! Hold That Service
In the event that you cannot locate the physical address of the individual to be served, keep in mind that you cannot drop or post service inside a United States Post Office. If you choose to wait for an individual to pick up his or her mail, you would need to attempt service on the actual individual.
Do You Accept The Challenge?Although civil process service can have its challenges, there is certainly nothing stopping a civil process server from rising to the occasion and completing the service. Many process servers choose to require that their clients find the address of the party to be served, whereas some offer that as a value-added service. Depending on the volume of work you do, your time, and ability, choosing to handle service without having a physical address is entirely up to you and your business — just be upfront about it with your clients to maintain a positive business relationship.
Does your firm accept jobs in which the client only has a PO Box? If so, how do you handle it and did we miss anything that should be included?
Re posted from Servenow