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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you inside and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. Three major US

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Speaker 1: cities are taking on the US government, filing a federal

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Speaker 1: lawsuit against the Defense Department for the failure to report

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Speaker 1: many service members convicted of crimes to the FBI's National

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Speaker 1: Gun Background Check database. New York City, San Francisco, and

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Speaker 1: Philadelphia said in court papers that the military's longstanding failure

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Speaker 1: to report court martial convictions led to one of the

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Speaker 1: worst mass shootings in American history, the massacre of twenty

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Speaker 1: six people inside at Texas church last month. My guest

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Speaker 1: is Greg Wallace, professor at the Campbell University School of Law. Greg.

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Speaker 1: The failure to report military convictions over two decades has

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Speaker 1: been documented. Our reports of the Inspector General tell us

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Speaker 1: about the severity of the military's failure to comply with

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Speaker 1: the law. Well, one of the things that the law requires,

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Speaker 1: This law that has set up what's called the National

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Speaker 1: Instant Criminal Background Check or NICKS for short. UH. This

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Speaker 1: is a system that both UH gun sellers and UH

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Speaker 1: state and local governments used to run background checks to

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Speaker 1: see if a person is either. In the case of

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Speaker 1: a gun seller, UH doesn't doesn't have any disqualifications from

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Speaker 1: buying a firearm. In a case of cities and states, UH,

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Speaker 1: there's no disqualification in issuing UH let's say a concealed

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Speaker 1: carry permit or whatever. The database is only as good

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Speaker 1: as the information that's placed into it, and what what

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Speaker 1: they do is there are a number of disqualifiers, for example,

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Speaker 1: a dishonorably discharge, a domestic violence UH conviction, illegal alien passed,

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Speaker 1: any sort of past felony conviction, and states are not

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Speaker 1: required to report that information, but but they typically do

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Speaker 1: it voluntarily. The federal government course is required to report

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Speaker 1: that information, and the military has really dropped the ball here.

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Speaker 1: Anywhere from from four with the Air Force too as

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Speaker 1: high as forty with the Army. UH, those kinds of

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Speaker 1: convictions or other disqualifiers have not been reported over the

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Speaker 1: last several years, so greg this lawsuit is asking that

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Speaker 1: the military comply with the law, and the Pentagon has

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Speaker 1: admitted its failure to report criminal activity of service members.

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Speaker 1: So what would the cities have to prove in this lawsuit. Well,

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Speaker 1: one thing is they're going to have to prove they

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Speaker 1: have standing to bring this claim, and I think that's

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Speaker 1: that's a going to difficult for them. Um, the Texas

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Speaker 1: shooting UH did not occur obviously in in in San

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Speaker 1: Francisco or Philadelphia or New York City. Now what they're

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Speaker 1: saying is, well, we need to know, we need to

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Speaker 1: have up to date information uh in the system if

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Speaker 1: we're going to issue gun permits to two people. But

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Speaker 1: I think there's gonna be a standing question there as

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Speaker 1: to whether these cities really have standing to complain about

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Speaker 1: something that really didn't happen uh in in either in

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Speaker 1: any of those three cities. The the the The other

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Speaker 1: problem I think is that uh, they may have a

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Speaker 1: question of whether the lawsuit is moot because the Department

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Speaker 1: of Defense is taking steps to try to correct this problem.

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Speaker 1: Now the cities are asking for an injunction and for

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Speaker 1: a federal court to oversee compliance with the law. How

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Speaker 1: would that work in practice? What a federal court would

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Speaker 1: probably do is to to to if, assuming they can

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Speaker 1: clear the standing and muteness hurdles, UH, what the federal

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Speaker 1: court would do is to typically issue a timetable in

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Speaker 1: which the government would have to comply with the federal

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Speaker 1: law requiring the reporting of these kinds of offenses and

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Speaker 1: other uh disqualifiers to the next database. And now I

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Speaker 1: just let to go back a moment to you said

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Speaker 1: about Attorney General Jeff Sessions ordering a review of the

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Speaker 1: FBI database and directing the FBI to work with the

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Speaker 1: Defense Department. These cities are claiming that Sessions doesn't have

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Speaker 1: the power to ensure compliance, that only court would. What's

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Speaker 1: your take on that, Well, I don't think that's that's

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Speaker 1: necessarily true. I mean, certainly the Department of Justice has

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Speaker 1: has the power to UH to to direct um the

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Speaker 1: other branches of government if they're not complying with federal law. UM,

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Speaker 1: just like they would have the power to UH to

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Speaker 1: address the failure of state governments to comply with with

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Speaker 1: federal law. So I think that's that's one thing that

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Speaker 1: um the city's uh. I think it's a bit of

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Speaker 1: a stretch here. The the other thing is that you know,

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Speaker 1: this next database, everybody, this this database for background checks

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Speaker 1: is only as good as as the volume of information

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Speaker 1: that goes into it, and there are failures across the board. UH.

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Speaker 1: States for example, as as I said earlier, they under

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Speaker 1: UH Supreme Court precedent, they can't be required to report

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Speaker 1: this kind of information, but the federal government has incentivized that.

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Speaker 1: But states are are woefully come up, come up woefully

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Speaker 1: short in reporting, for example, things like mental health committals,

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Speaker 1: other types of disqualifiers uh as. And it's not just

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Speaker 1: limited really to the Defense Department. Even these these three

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Speaker 1: cities that are bringing the lawsuit, they're all three sanctuary cities,

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Speaker 1: and I doubt that they're reporting to the next database

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Speaker 1: the illegal aliens that they arrest. So greg as far

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Speaker 1: as looking at the case now, we don't know what

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Speaker 1: the Defense Department is going to say exactly. What kind

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Speaker 1: of a chance do you give the cities of actually

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Speaker 1: having a court supervise Well, I think probably it's difficult

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Speaker 1: to predict how courts are going to rule, but I

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Speaker 1: think the cities have got a pretty steep, hilled climb here.

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Speaker 1: As as a general matter, UH cities are really not

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Speaker 1: in a position, even through the court system UH to

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Speaker 1: to enforce federal law against federal agencies. That's really up

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Speaker 1: to Congress and up to other executive agencies like the

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Speaker 1: Department of Justice. And so I'm not sure a court's

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Speaker 1: going to take too well to uh three municipalities attempting

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Speaker 1: to force the d D to comply with federal law.

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Speaker 1: All right, that I'm sorry that ends our time, but

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Speaker 1: it certainly is an important topic. And thank you for

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Speaker 1: your insights. That's Greg Wallace, professor at the Campbell University

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Speaker 1: School of Law. On Tuesday, a jury acquitted Peru's former

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Speaker 1: top soccer official of charges that he accepted bribes from

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Speaker 1: sports marketing companies in exchange for lucrative media rights to

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Speaker 1: major soccer tournaments. Last Friday, the Brooklyn jury convicted his

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Speaker 1: to co defendants, former South American soccer officials, of accepting

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Speaker 1: millions of dollars in bribes, but said it was unable

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Speaker 1: to reach a unanimous decision on the one ken count

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Speaker 1: against Manuel Burger. The judge ordered the jurors to continue deliberating,

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Speaker 1: and they exonerated Burger after another day's deliberations. Joining me

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Speaker 1: is Andy Spalding, a professor at the University of Richmond

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Speaker 1: School of Law, and he first described the investigation that

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Speaker 1: uncovered hundreds of millions of dollars in bribes and kickbacks

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Speaker 1: over decades at EIFA, which is international soccer's governing association.

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Speaker 1: Sure well, it's uh an interesting and even ironic development

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Speaker 1: in the United States because we're not a big soccer country.

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Speaker 1: But several years ago the United States initiated an investigation

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Speaker 1: into a systemic corruption at FIFA, which is the the

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Speaker 1: international soccer governance organization. The FBI has devoted a great

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Speaker 1: deal of resources to this investigation, and uh, we've have

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Speaker 1: come up with about forty individuals whom we have charged.

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Speaker 1: A couple dozen have pled guilty right away, as you mentioned,

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Speaker 1: We got a couple of convictions just last week, and

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Speaker 1: then now this acquittal. So despite the recent news that

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Speaker 1: someone um has been acquitted, I think this has been

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Speaker 1: tremendously successful and impactful investigation, both for the anti corruption

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Speaker 1: movement and for and for sport. How is the evidence

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Speaker 1: against Burger different from the evidence against his co defendants

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Speaker 1: and simple terms, why was he acquitted while the others

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Speaker 1: were convicted? Sure, the charges against Burgo were relatively weak

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Speaker 1: to begin with, He is not does not appear to

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Speaker 1: be the biggest player in the scheme Um, but there

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Speaker 1: was only one charge against him, while there were multiple

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Speaker 1: charges against against many others. But appears that there's some

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Speaker 1: question as to whether he actually ever received a bribe.

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Speaker 1: There was a conflicting evidence at trial. Uh. And so again,

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Speaker 1: his acquial does not mean that he did not accept

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Speaker 1: the bribe or pay a bribe. It just means that

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Speaker 1: there wasn't enough evidence to prove it. A rather strange

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Speaker 1: part of the defense was his lawyer's argument that he

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Speaker 1: would not have been able to receive bribes because he

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Speaker 1: was under investigation for money laundering in Peru. That's that's

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Speaker 1: sort of a very strange to me defense. I didn't

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Speaker 1: do it because I couldn't do it at the time, right. I.

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Speaker 1: I agree it's weak, and that he was under investigations

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Speaker 1: just further evidence that there's there's just so much systemic

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Speaker 1: corruption in sport here. There's so much smoke. We all

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Speaker 1: know there's fire there. This is the question whether we

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Speaker 1: can prove it. And I think few people believe that

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Speaker 1: his hands are clean. Um. As a result of this acquittal,

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Speaker 1: it just shows that the government still has to has

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Speaker 1: to prove its case and it can be hard to

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Speaker 1: do so. Um um. But again I would emphasize that

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Speaker 1: that despite his acquittal, that the United States has been

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Speaker 1: able to accomplish a tremendous amount with this prosecution, and

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Speaker 1: I think um will permanently change international soccer. This case

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Speaker 1: was in some ways like a Hollywood movie script Dawn

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Speaker 1: Raid's at a five star hotel in Zurich, the suicide

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Speaker 1: of a lawyer named in the testimony, security tied enough

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Speaker 1: for a mob trial, and the star prosecution witness crying

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Speaker 1: on the stand when Burger allegedly made throat slashing gestures.

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Speaker 1: Tell me about that, which was called alleged witness intimidation. Yeah, well,

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Speaker 1: the throat slashing gesture makes for good news. I think

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Speaker 1: that particular event can be an predicted a couple of

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Speaker 1: different ways. It could mean I want to kill you.

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Speaker 1: It couldn't mean put an end to this, which, in

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Speaker 1: other words, stopped talking about this. Whatever it was, it

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Speaker 1: was inappropriate and and certainly evidence that, um, these individuals

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Speaker 1: are not operating in ways that are our customary and legal. Uh,

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Speaker 1: there's a certain disrespect for the law that's and for

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Speaker 1: the legal processes that are that's conveyed there. But yeah,

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Speaker 1: the drama has been high suicide, perhaps a murder in Mexico. Um.

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Speaker 1: And a lot of emotion here, and it's because that's

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Speaker 1: just the stakes are so high. Uh, there's so much

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Speaker 1: money in international sport now, particularly international soccer um. And

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Speaker 1: where there's money, there tends to be corruption. And I

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Speaker 1: believe the defense said that he was just scratching his throat. Yes, yes,

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Speaker 1: that he had he had dry skin on his throat.

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Speaker 1: That I believe was was was the suggestion, which is

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Speaker 1: which is an equally bad uh defense. So you know

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Speaker 1: they're grasping. And again there's there's little doubt these individuals

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Speaker 1: are involved in this priberties. Just a question whether the

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Speaker 1: lawyers can can produce just enough doubt to defeat the

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Speaker 1: prosecution's case. So, as you mentioned, it's a huge investigation.

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Speaker 1: Federal prosecutors indicted more than forty people tied to FIFA

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Speaker 1: at pleaded guilty. What did these three fight the charges?

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Speaker 1: Is it a question of the money necessary to go

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Speaker 1: to trial? Well, going to trial is extremely expensive, that's

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Speaker 1: certainly true. Um. Perhaps these uh, these three individuals either

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Speaker 1: thought the the evidence was weaker um or that they

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Speaker 1: were just uh just a strong wild enough to do it. Um. Uh.

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Speaker 1: They I think they're probably at least two of them

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Speaker 1: are regretting their case. But then then Burger from from

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Speaker 1: Prue is now uh probably the the hero to some

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Speaker 1: of these guys. Um. But uh again it shows that

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Speaker 1: uh Burgen notwithstanding um, uh, you know, there's just so

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Speaker 1: much evidence here that that even if you go to trial,

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Speaker 1: you're still gonna get in troub will and to judge.

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Speaker 1: The two who were convicted, the judge immediately sent them

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Speaker 1: to prison and said that there will be jail time

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Speaker 1: and she didn't think that their appeal was worth much.

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Speaker 1: I think, yeah, that's right. I I again, I think uh,

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Speaker 1: I think the likelihood the succeed an appeal is weak. Um,

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Speaker 1: there's just so much evidence. As soon as you get

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Speaker 1: twenty four guilty please among forty indictments, there's just going

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Speaker 1: to be a tremendous volume of evidence available to the government.

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Speaker 1: Uh that that's a lot of cooperating witnesses, and so

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Speaker 1: I I will be surprised if there's anything that can

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Speaker 1: be reversed here. Andy, So the acquittal makes it a

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Speaker 1: mixed verdict for the government here. Is there anything for

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Speaker 1: prosecutors or defense to learn from this trial for the future? Oh,

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Speaker 1: I think maybe pick your battles. I think it's it

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Speaker 1: will be a shame if the burg acquittal ends up

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Speaker 1: getting a disproportionate amount of of of press coverage or attention,

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Speaker 1: because UM, it makes it look like the government has

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Speaker 1: somehow failed, which I don't think we would say it has.

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Speaker 1: If you have twenty four guilty police and to convictions,

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Speaker 1: a single acquittal on a single charge is not a

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Speaker 1: major loss for the government. UM. And and so maybe

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Speaker 1: maybe the government could have could have spent its resources

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Speaker 1: a little more, a little more carefully. Maybe you could

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Speaker 1: have gone after the bigger fish. Maybe uh, defendants against

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Speaker 1: him there's only one charge aren't worth pursuing. Excuse me,

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Speaker 1: because what you know the government wants to do here

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Speaker 1: is not just convicted these individuals, but to but to

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Speaker 1: to uh, to to make a message state a message

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Speaker 1: to the world that international soccer is now on the

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Speaker 1: radar of US enforcement authorities and and people who who

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Speaker 1: engage in this conduct and then try to challenge the

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Speaker 1: allegations in court, UM are are likely not to farewell.

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Speaker 1: So UM, I hope and trust that the government can

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Speaker 1: still make that message. And then that message has heard

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Speaker 1: in these national and international soccer federations around the world.

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Speaker 1: Despite this, I think relatively minor defeat. All Right, more

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Speaker 1: to come on the soccer investigation for sure. That's Andy Spauling,

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Speaker 1: professor at the University of Richmond School of Law. Thanks

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Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe

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Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and

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Speaker 1: on bloomberg dot com slash podcast. I'm June Brosso. This

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Speaker 1: is Bloomberg