Look, Alex, I'm with you. Seriously. I too don't like it when the government files criminal charges against someone who's not guilty of anything. It's an abuse (and waste) of government power. It destroys people's lives. It's normatively wrong.
So when you write a long concurrence -- with flourish and outrage -- about the impropriety of the government doing so, please don't think I'm not sympathetic. Because I am. Truly.
But is this really the best case in which to get up on that horse?
I'll take the panel's word that the evidence against the defendant was insufficient because the government didn't introduce enough proof that the altered revenue in this criminal securities case was material. I'm not at all sure about that. The heightened revenue consisted of huge deals, worth millions of dollars -- almost a full quarter of the company's annual revenue -- and this is no small company: it's McAfee (now known at Network Associates). If you're frontloading fake revenue in that amount, I think it's at least plausible that that's material.
But let's assume you're right; and, again, I think that's plausible. Is this really the best case to write a lengthy concurrence that bemoans the injustice of erroneously charging a criminal defendant, the harm to someone that results from criminal charges, and the alleged adequacy of alternative civil suits?
I mean, let's face the facts. Yes, the evidence might not have been sufficient, but it sounds like that's only because the AUSA thought that either the stipulation or the undisputed size of the transactions would be sufficient. So Goyal's perhaps "innocent" not primarily because of what he did, but rather from an erroneous tactical decision by the government. Hardly the best case in which to raise the banner of actual innocence and government overreaching.
But let's ignore all that. Judge Kozinski's concurrence cries for Goyal, and says: "Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal."
I feel extremely badly for people unjustly convicted. But in the pantheon of those people -- of whom there are no shortage -- Mr. Goyal is pretty low on mylist. For one thing, he did something wrong. Maybe it wasn't criminal, but it was wrong. He manipulated revenue by doing deceptive (and essentially fake) quarter-end deals. He did it deliberately: to deceive others into buying (or holding) his company's stock. He did it for personal gain: he benefitted reputationally and through his stock options, and to a significant degree. His conduct was "illegal" in that it was, at a minimum, a civil tort. As well as morally inexcusable. It distorted the market and harmed both the company and its investors. The fact that lots of companies do the same thing -- and I assure you they do -- only makes it worse, not better. These shenanigans are hardly morally praiseworthy. They're bad things.
So this is not, for example, a woman who's unjustly convicted of shaking her baby to death and spends a decade in prison as a result. For cases like that, I'd definitely write (or, better yet, sign onto) Judge Kozinski's powerful concurrence. But here's a guy who does something demonstrably wrong and at least arguably gets off on a technicality due to a prosecutor's mistake. That's really the best case for something like this?
Plus, is this really the best case for Judge Kozinski to argue that we should leave stuff like this to civil courts? Sure, they'll be a lawsuit. Several. And you know what will happen? They'll be settled. For pennies on the dollar. With the money coming from an insurance company, most likely. The actual wrongdoer will pay not a cent. Boy, that really deters misconduct. I can't see at all why anyone would maybe want to add some potential criminal responsibility as well.
So it's not that I didn't like Judge Kozinski's concurrence. I did. A lot. But I'd have written it in an entirely different case. And, at best, would have referred to that concurrence in this case obliquely: e.g., by saying: "I have previously expressed my distaste for criminal charges brought against innocent defendants. See [Citation]. I reiterate those comments here." 'Cause I've seen far, far worse cases than this one. So has Judge Kozinski. And given the facts of this case, and the underlying conduct, to me, the presentation of these arguments here detracts, rather than adds, to the power of what Judge Kozinski says.
Which is too bad. 'Cause there's really great stuff here. Which I'd be praising effusively, and without reservation, if said in a different type of case.
In short: I'd have picked a different horse.
