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Medical Whistleblower Advocacy Network

Human Rights Defenders

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

 Universal Declaration of Human Rights

Article 1

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“Sunlight is said to be the best of disinfectants.”

Supreme Court Justice Louis Brandeis

Contracts Clause - Corporate Rights

The Supreme Court ruled in Dartmouth vs. Woodward (1819) that a corporation is as a party in a private contract based on the Contracts Clause (Art 1, Sec 10) rather than being a creature of public law. Even though the state creates a corporation when it issues a charter, that state is not sovereign over the charter, merely a party to the contract.

Thus, corporations became "private contracts" with the state and, therefore, shielded from many forms of control by We the People.

This decision is considered by many to be one of the most important Supreme Court rulings.  It strengthened the Contract Clause and limits the power of the states to interfere with private charters, including those of commercial enterprises.  State governments wanted to have the absolute right to amend or repeal a corporate charter.  Popular opinion, some state courts and even state legislatures agreed but the Supreme Court imposed limitations. The courts have now established that the alteration or revocation of private charters  or the enactment of laws affecting private charters must be reasonable and not cause harm to the members (founders, stockholders etc.).  

Historically Important Cases:

  • Fletcher v. Peck, 10 U.S. 87 (1810)
  • Dartmouth College v. Woodward, 17 U.S. 518 (1819)
  • Miller v. State, 82 U.S. 478, 21 L. Ed. 98 (1872)

  • Pennsylvania College Cases, 80 U.S. 190, 20 L. Ed. 550 (1871)

  • Terrett v. Taylor (1815)

  • Shields v. Ohio, 95 U.S. 319, 24 L. Ed. 357 (1877)

 

 

 

Anti-Fraud Prosecution

In June 2010, the Supreme Court issued a ruling that limits the scope of the "honest services"  statute. This was a key national anti-corruption law that – until then – was particularly effective in the prosecution of corrupt acts involving public officials. Following the Supreme Court’s decision, several federal courts have overturned honest services fraud convictions in a number of cases, many of which included public officials.

The Supreme Court went back to the earlier standard set forth in McNally v. United States, which limited the earlier “honest-services” doctrine to the protection of property rights.  The Court rejected the use of the statute to convict for “undisclosed self-dealing by a public official or private employee – i.e., the taking of official action by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty.” The U.S. Supreme Court trimmed the prosecution's use of the honest-services theory back to the standard that requires bribery and kickbacks.  

 The Supreme  Court chose Skilling v. United States  to address the issue of how to interpret and prosecute under the honest services statute. Skilling arose from the Enron scandal. The Government prosecutors had criminally charged Jeffrey Skilling (at various times, the company’s president, COO and, briefly, CEO) with conspiring to defraud Enron’s shareholders by misrepresenting the company’s fiscal health, thereby artificially inflating its stock price. The Government did not allege that Skilling solicited or accepted payments from third parties. Skilling appealed his case to the Supreme Court and asked the Court to strike down Section 1346 as unconstitutionally vague.  Instead, the Court construed § 1346 to avoid a constitutional problem, rather than invalidate the entire statute, and held that it criminalizes “only the bribe-and-kickback core of the pre-McNally caselaw.”

 

In the following  Supreme Court decisions, the Court has reined in the highly malleable - and often used in federal prosecutions - honest-services theory. These Supreme Court decisions also have serious implications for many recent high-profile fraud convictions, and may even result in the overturn of other guilty verdicts. 

  • Skilling v. United States
  • Black v. United States
  • Weyhrauch v. United States

 

At the heart of the dispute is a short statute, 18 U.S.C. § 1346, a complement to the mail and wire fraud statutes, which provides:

 

For the purposes of th[e] chapter [of the United States Code that prohibits, inter alia, mail fraud, § 1341, and wire fraud, § 1343], the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.

 

18 U.S. Code § 1346 - Definition of “scheme or artifice to defraud” 

For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.

Pub. L. 113-185

(Added Pub. L. 100–690, title VII, § 7603(a),Nov. 18, 1988, 102 Stat. 4508.)

 

 

http://www.law.cornell.edu/uscode/text/18/1346

http://www.gpo.gov/fdsys/pkg/PLAW-113publ185/html/PLAW-113publ185.htm

 

 

 

U.S.A. National Action Plan

 

At the inaugural Open Government Partnership (OGP) meeting on September 20, 2011, President Obama reiterated his belief “that the strongest foundation for human progress lies in open economies, open societies, and in open governments."

http://www.opengovpartnership.org/sites/default/files/US%20National%20Action%20Plan.pdf

The United States has worked both domestically and internationally to ensure global support for Open Government principles to promote transparency; fight corruption; energize civic engagement;and leverage new technologies in order to strengthen the foundations of freedom in our own Nation and abroad. 

The U.S.Open Government National Action Plan (NAP)  lays out a set of 26 commitments that have increased public integrity, enhanced public access to information, improved management of public resources, and given the public a more active voice.

 

“Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around.”
 
― Leo Buscaglia

Medical Whistleblower Advocacy Network

MEDICAL WHISTLEBLOWER ADVOCACY NETWORK

P.O. 42700 

Washington, DC 20015

MedicalWhistleblowers (at) gmail.com

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"Never impose on others what you would not choose for yourself."  Confucius

"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat."

Theodore Roosevelt- Excerpt from the speech "Citizenship In A Republic", delivered at the Sorbonne, in Paris, France on 23 April, 1910