NACDL to Focus on Service and Support for Members, Clients, and Community Throughout Virus EmergencyLearn More
Developing resources and education opportunities for the white collar criminal defense bar is also a top priority. Through cutting edge white collar CLE programs, an active white collar crime discussion community, and an engaged white collar defense committee, NACDL brings together the best-informed criminal defense attorneys to share information and strategy. Exclusive for NACDL Members, NACDL maintains a briefs and motions bank dealing specifically with white collar crime. The White Collar Department also conducts webinars and publishes cutting-edge policy analysis on emerging issues in white collar enforcement.
Detailed information about NACDL’s white collar initiatives and links to resources can be found on the following pages.
- Overcriminalization Reform
- Federal Discovery Reform
- Conspiracy Reform
- Computer Fraud and Abuse Act (CFAA)
- Forfeiture Reform
- Prosecutorial Misconduct
- Foreign Corrupt Practices Act (FCPA)
- Advocacy Letters & Testimony
- White Collar Amicus Briefs
- Federal Legislation
- Computer Fraud & Abuse Pending Legislation
- Public Corruption Pending Legislation
- Mens Rea Pending Legislation
- White Collar Sentencing
- White Collar Issue Areas
- White Collar Education
- White Collar Discussion Group (members only)
- NACDL Legal Resource Center
- White Collar On The Web
- White Collar Crime Prof Blog
Tiffany May Joslyn White Collar Crime Policy Externship/Internship
The National Association of Criminal Defense Lawyers is looking for an enthusiastic and productive law student intern with a commitment to criminal defense issues to engage in a variety of projects related to federal policy analysis, nonprofit advocacy, and criminal defense scholarship. The Tiffany May Joslyn White Collar Crime Policy Internship was created in memory and honor of Tiffany Joslyn’s significant contributions to the cause of criminal justice reform, particularly in the areas of white collar and regulatory crime, overcriminalization, and the erosion of due process protections in the criminal justice system. This internship will afford a law student specifically interested in the area of white collar crime and policy with the opportunity to work directly with and learn first-hand from leaders in the field at NACDL. Learn more about this opportunity.
On May 26, 2016, NACDL co-hosted a free law and policy symposium with the U.S. Chamber of Commerce’s Institute for Legal Reform entitled The Enforcement Maze: Over-Criminalizing American Enterprise. The day-long symposium featured key leaders from industry, academy, law, and policy across the political spectrum. Together they addressed the rise of overcriminalization, the inappropriate criminalizing of civil and regulatory matters, why laws need criminal intent requirements, fundamental flaws with the plea bargaining process, criminal discovery abuses and inadequacies of the grand jury process, as well as the use of certain pressures associated with enforcement against business and corporate individuals. For more information, see videos and commentary about the symposium.
At its spring 2015 meeting in Las Vegas, NACDL’s Board of Directors unanimously approved a resolution on criminal conspiracy law reform. The resolution is guided by a position paper drafted by NACDL’s Conspiracy Reform Subcommittee and adopts the recommendations therein. Before approving the resolution, the Board received a presentation by Subcommittee Co-Chairs Steven Morrison and John Cline on the flawed nature of existing criminal conspiracy law and the critical need for reform. The presentation focused on how existing conspiracy law results in possible constitutional violations, evidentiary unreliability, and false convictions. The Co-Chairs also presented the recommendations contained in the position paper, which would address, among other things, the overt act requirement, jury instructions, Pinkerton liability, and more. Read the Board resolution.
On November 17, 2014, at the National Press Club in Washington, DC, NACDL officially released its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School. Complete copies of the report, executive summary, and fact sheet are available at www.nacdl.org/discoveryreform/materialindifference. Watch C-SPAN3's video coverage of the launch event.
Pattern Cross-Examination of Expert Witnesses: A Trial Strategy & Resource Guide
In a criminal trial, cross-examination of the prosecution’s forensic expert may make the difference between victory or defeat.
2020 Sample Motions Collection Update
NACDL’s 2020 Sample Motions Collection is the follow-up to our wildly popular 2019 Sample Motions Collection and contains the newest and most recent additions to our ever-expanding Sample Motions library.
State v. Stone - A Case Study on Child Sexual Molestation & Sexual Battery
The criminal defense attorney tasked with defending such a case has to be prepared to not only show reasonable doubt, but to answer this question: If it did not happen, how is it that the child believes it did happen?
POZNER ON CROSS: Advanced Cross of Experts & Officers in DUI Cases
It’s not your strong opening argument. It’s not how many of your impassioned objections the judge sustains. It’s not even how you tie your theory of the case together with a dazzling closing statement bow. What wins your trial is your cross.
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A Primer on Financial Records in Economic Crime Cases
White collar financial and economic cases can involve voluminous and confusing documents, but these cases need not be feared. The authors discuss the importance of financial records received as well as exculpatory records that are sometimes not provided. Is it a criminal case, a civil case, or just a bad investment? The answer is almost always somewhere in the documents.
Applying the Per Se Rule in Criminal Antitrust Cases Contravenes the Constitution and Sherman Act
In antitrust cases, the per se rule prohibits inquiry into the reasonableness of defendants’ conduct when particular types of antitrust violations are at issue – for example, price fixing or bid rigging. In a criminal antitrust case, however, is this presumption of unreasonableness – of illegality – consistent with the Fifth and Sixth Amendments? Is it consistent with the text of the Sherman Act? NACDL, as amicus curiae, offered the Supreme Court an answer to these questions. That answer is no.
- A Primer on Financial Records in Economic Crime Cases
Challenges to Obtaining Foreign Evidence in Cross-Border Criminal Cases
It is the criminal defendant who is at a disadvantage in a case involving foreign evidence. Among other things, the government has access to evidence through mutual legal assistance treaties and informal cooperation agreements. The authors provide an overview of constitutional issues defendants face when seeking foreign evidence in cross-border cases. They also discuss the methods defendants can use to obtain foreign evidence and the hurdles they may encounter when seeking it.
Theft of Trade Secrets: The Economic Espionage Act, China Initiative, and Silicon Valley
Prosecutions alleging theft of trade secrets have been creeping upward since 2009. White collar practitioners must become fluent in the language of the Economic Espionage Act and be on alert that civil trade secret litigation can easily lead to criminal charges. Defense counsel should expect tailored and well-investigated cases by prosecutors unafraid to delve into highly technical and complex materials.
Honest-Services Fraud in the Private Sector After Skilling v. United States
Continuing Vagueness and Resulting Opportunities for Clients
The U.S. Supreme Court saved 18 U.S.C. § 1346 and the honest-services doctrine from the void-for-vagueness dust heap in Skilling v. United States. Jonathan Jeffress and William Zapf explore certain “limiting principles” courts have followed that may be avenues for challenging an honest-services prosecution. In addition, they include a brief survey detailing how circuit court pattern jury instructions cover honest-services fraud.
Defending Hippocrates: Representing Physicians in the Wake of the Opioid Epidemic
In the wake of the opioid epidemic, state and federal prosecutors are becoming aggressive in prosecuting DEA registrants who deviate from professional norms. If a physician prescribes controlled substances “for other than a legitimate medical purpose” or “outside the course of professional practice,” he or she faces up to 20 years in prison. However, through pretrial motion practice, jury instructions and expert witness testimony, practitioners can tip the scales by narrowing the applicable standard.
Is It Time to Revisit the Corporate Privilege Against Compelled Self-Incrimination?
In Hale v. Henkel (1906), the Supreme Court held that an officer of a corporation could not assert the Fifth Amendment privilege against compelled self-incrimination on behalf of the corporation. The authors argue, however, that the basis for Hale is no longer valid. For the right client, defense attorneys should consider recommending assertion of the privilege.
Storm Clouds on the Horizon: Private Equity and the False Claims Act
Philadelphia litigator Alexander Owens discusses two cases that may reflect a renewed focus on private equity firms in the False Claims Act arena. Lawyers representing private equity firms should strive to understand the unique financial and managerial dynamics that place many private equity firms in the government’s crosshairs.
- White Collar Crime Policy: Wartime Suspension of Limitations Act
- Book Review: Cardiac Arrest by Howard Root and Stephen Saltarelli
Harjo v. City of Albuquerque: A Road Map for Challenging Government Forfeiture Programs
The city of Albuquerque seized Arlene Harjo’s car after her son borrowed it and was arrested for DUI. Her case shows that a forfeiture statute may appear constitutional on its face but, in actuality, may provide improper financial incentives to prosecutors and police to seize citizens’ property for their own or their organization’s benefit. The Harjo case offers lessons on how to successfully mount a due process challenge to forfeiture statutes.
Criminal Forfeiture Case Law Updates
Asset forfeiture – also called “policing for profit” – has come under scrutiny from courts and legislatures. Elliot Abrams provides defense lawyers with recent updates to forfeiture law, primarily focusing on pretrial seizure and attorney’s fees. Courts are taking a hard look at forfeiture and pretrial seizures, and lawyers should continue bringing statutory challenges to actions that appear to violate statutory language or a defendant’s fundamental rights.
An American Lawyer in Queen Elizabeth’s Court: How NACDL Highlighted the International Consequences
In 2017, the U.K. High Court of Justice handed down a decision holding that attorney work papers, including witness interview memoranda, were not protected by the “litigation privilege” under U.K. law. Given the frequency of cooperation between the U.K. Serious Fraud Office and the U.S. Department of Justice, NACDL recognized that the decision had implications in the United States. When the case was appealed, NACDL sought to ensure that the U.K. appellate court understood the international implications of the High Court’s decision. This article tells that story.
- Challenges to Obtaining Foreign Evidence in Cross-Border Criminal Cases
Handling SEC Enforcement Matters
Although the Securities and Exchange Commission is a creature of administrative law, criminal defense lawyers possess the strong advocacy skills that will enable them to handle SEC cases. It is important, however, to know how the landscape at the SEC differs from criminal defense forums. Susan Brune and Juliet Hatchett make the comparisons, point out the contrasts, and for the benefit of criminal defense practitioners who have not yet had the opportunity to deal with the SEC, demystify the process.
Informal Opinion: More Than Just Taxes: Considering the Effects of the New Government Reporting Requ
The new federal tax law contains a provision regarding the process of seeking tax deductions for payments made to the government in satisfaction of a settlement agreement or judgment. Practitioners must understand the tax consequences of the new law and its potential effect on the availability of insurance coverage for their clients.
The Basics of an Office of Inspector General Investigation — Taking It Seriously
A federal agency’s Office of Inspector General (OIG) has no criminal authority. An inspector general cannot arrest counsel’s client or charge the client with a crime. The most an OIG can do within the agency is refer a person for disciplinary action. For these reasons, an investigation by an inspector general is no big deal. Right? Wrong. Lawyers should not be complacent simply because an OIG lacks criminal authority. OIG investigations can derail careers and lead to criminal investigations. Sara Kropf and Daniel Portnov describe an OIG’s statutory authority and offer practice tips that can be helpful when representing someone in an OIG investigation.
Happy Birthday, FCPA: Implications of DOJ’s New FCPA Corporate Enforcement Policy on the Act’s 40th
A year ago, Deputy Attorney General Rod Rosenstein made a major policy announcement regarding the new Foreign Corrupt Practices Act Corporate Enforcement Policy. The Policy is the most extensive and substantial change to the U.S. Attorneys’ Manual section on the FCPA and has implications for both companies and individuals. It promises substantial benefits for cooperative companies — including a presumptive “declination” of prosecution provided that the Policy’s prerequisites are satisfied. Should companies jump for joy or should they look upon the Policy with a jaundiced eye? Justin Danilewitz and Albert Moran caution that the need for careful, fact-sensitive and detailed weighing of the costs and benefits of disclosure, and the value in robust compliance policies and procedures, remain as critical as ever. They discuss the Policy, cases illustrating how the Policy will be applied, and the implications of the Policy for companies and individuals.
Justice Scalia and the Interpretation of Criminal Statutes
Although he described himself as “socially a law and order conservative,” on the bench Justice Antonin Scalia sometimes came down on the side of the accused. For example, he spoke for the Court in Crawford when it reinvigorated the Confrontation Clause. In addition, Scalia’s approach to statutory interpretation led him to urge revival of the rule of lenity, narrowing of liability for mail and wire fraud, and rejection of deference to administrative interpretation of criminal statutes. Paul Mogin says Scalia’s insights on these subjects will be cited by criminal defense attorneys for years to come.
- Inside NACDL: The Supreme Court Once Again Steps in to Curtail Government Abuse of Vague Criminal Pr
Applying the Brakes on a Runaway Train: Forfeiture and Recent Supreme Court Developments
The dictionary defines “forfeiture” as the loss of property or money due to the breach of a legal obligation. This is the part of a client’s sentencing that turns some criminal defense attorneys into frightened first-year law students. Many inform the client to “let the property go” or to retain someone later to deal with the issue. Steven L. Kessler discusses some of the basics every attorney should know about forfeiture. He also examines the recent Supreme Court decision in Honeycutt v. United States and its possible ramifications.
- Handling SEC Enforcement Matters
An Introduction to Litigating the Loss Amount in Health Care Fraud Cases
Exaggerated “loss amounts” proposed by the government in health care fraud cases can arbitrarily increase a client’s sentencing exposure by a significant amount. Defense counsel should consider whether invalid statistical samples were used; determine if the “net loss approach” will benefit the client; and, in a conspiracy case, consider whether the client’s culpability was less than that of the co-conspirators.
Renewed Government Focus on Section 7212(a)
What Does It Mean to Corruptly Endeavor to Impede the IRS?
Two issues remain unresolved in connection with prosecutions under Section 7212(a) of Title 26, the Internal Revenue Code. Can a defendant’s failure to act, even under circumstances that might support a charge of other tax offenses, suffice to support a conviction under Section 7212(a)? As an obstruction statute, does Section 7212(a) require proof by the government that the defendant intended to impede a pending IRS proceeding or investigation? The Supreme Court may soon answer these questions.
A Primer for Representing Medical Professionals in Criminal Cases
A criminal charge will be one of the most devastating life events for a medical professional. Certain criminal convictions will result in loss of enrolled provider status with public and private health care benefit programs. Unfortunately, the criminal case may be but the first of many insults; the client’s legal concerns either will evolve, or will already have evolved, past the criminal defense attorney’s case. It makes no difference whether the criminal case involves practice-related conduct such as billing fraud or patient abuse, or whether the criminal charges are nonwork-related such as DUI or domestic violence. Industry-specific state and federal laws can provide for sanctions and can cause the loss of livelihood based on the same set of facts as the criminal case. Criminal counsel’s strategy and decisions can have a ripple effect on parallel and collateral administrative and civil matters. Laura Perkovic identifies several such matters and discusses the synergy among the proceedings.
EB-5 Visa Fraud Cases — What Practitioners Need to Know
Under the EB-5 Immigrant Investor program, the government grants conditional permanent residency status to individuals who invest $1 million (or $500,000 in rural or high unemployment areas) in an enterprise or business that creates or preserves at least 10 full-time jobs. The EB-5 Program has been a magnet for abuse by parties on all sides of the transactions. Depending on the case, immigration attorneys, foreign investors, and the U.S.-based offerors of EB-5 investments can be defendants or victims. The typical EB-5 scheme is relatively simple, explicit and demonstrable, which makes such cases attractive to prosecutors. William Haddad analyzes a sampling of the cases brought by the Department of Justice and the Securities and Exchange Commission, and examines potential regulatory and legislative reforms.
Proving Money Laundering Beyond a Reasonable Doubt: The Problem of Commingled Property Under 18 USC
When the government charges a defendant pursuant to 18 U.S.C. § 1957, that individual is accused of knowingly engaging or attempting to engage in a transaction involving more than $10,000 of criminally derived property. Such a defendant is often engaged in a legitimate business and may (or may not) have engaged in isolated instances of criminal conduct. For example, consider charges against a grocery store owner accused of supplementing profits by paying cash for food stamps. As a result, the defendant’s property is “commingled,” i.e., some funds are “clean” and some are “tainted.” When a defendant uses commingled funds in a charged monetary transaction, at what point does the government prove that the transaction involved criminally derived property (tainted funds) of a value greater than $10,000? Some courts presume that tainted money was spent first. Other courts presume that the defendant spent clean funds if the defendant’s account contained sufficient clean funds to cover the transaction. Until the U.S. Supreme Court settles the issue, the authors say practitioners should object and resist any application of the presumption that the defendant spent tainted funds first. Practitioners should advance the position that the government must prove beyond a reasonable doubt that each charged monetary transaction contained more than $10,000 of criminally derived property.
- An Introduction to Litigating the Loss Amount in Health Care Fraud Cases
From Bean Counting to Soul Searching: The Amended Definition of ‘Intended Loss’ in the Fraud Guideli
For the purpose of determining the amount of loss from economic crime, in 2015 the Sentencing Commission amended the fraud guidelines (U.S.S.G. § 2B1.1) to clarify that “intended loss” means “the pecuniary harm that the defendant purposely sought to inflict” on the victim. The authors discuss two cases, one decided by the Seventh Circuit and one pending in the Third Circuit, that demonstrate how the recent amendments concerning intended loss can benefit white collar defendants.
- White Collar Crime Policy: Once Again, SCOTUS Scolds DOJ for Overreaching
The Changing Face of Corporate Prosecutions
As legal persons, corporations can be criminals too — and never before has corporate criminal enforcement been so important in this country and across the globe. Billion dollar corporate criminal fines are now common events. Judges have intervened to supervise corporate prosecution agreements, and appellate courts have intervened to frustrate such supervision. Brandon Garrett gives an overview of the changing landscape of corporate criminal enforcement. He describes the trends in data collected on corporate prosecutions, including the remarkable rise in the size, but not the numbers, of federal corporate prosecutions in recent years. In addition, he discusses policy, including legislative proposals and changes to Department of Justice strategy. Finally, Garrett describes the changing global landscape, as other countries have reacted to and even imitated U.S.-style corporate prosecution approaches. Whether the billions in fines paid will have a real deterrent and preventative effect going forward may hinge on what the Department of Justice does next and how the next Department of Justice views its remarkable new role.
Representing Individuals in International Investigations
The U.S. Department of Justice sees its beat as worldwide, focusing on transnational criminal enterprises and global corporate misconduct. As a result, it is now standard for companies to respond to the DOJ’s demand for cooperation by launching internal investigations worldwide. International investigations promise to become more and more common. Defense counsel must be prepared to encounter an abundance of issues, including the following: the domestic and extraterritorial applications of U.S. law; likelihood of extradition; effect of a parallel investigation on the right against self-incrimination; data privacy; and the logistics and process for conducting an interview through a mutual legal assistance treaty.
Restitution in Federal White Collar Cases: Squeezing Blood From a Stone
Although an attorney may represent white collar defendants, this does not mean the clients have endless amounts of money and assets. The imposition of a hefty restitution amount imposes a massive burden. That taxing penalty cannot be eliminated. Instead, it is important to keep the client informed and reduce, when permitted, the client’s obligation. What are the client’s restitution obligations while on probation? What can the court do if the client is in default?
- Inside NACDL: NACDL’s Relentless Efforts to End Overcriminalization
The Scope and Limitations of the Kovel Accountant
Accountants can assist in the delivery of legal advice, but defense attorneys must be alert to the potential dangers of using an accountant beyond the scope of the attorney-client privilege. Criminal tax defense attorney Martin Schainbaum discusses the need for a formal engagement letter when the attorney hires the accountant, and he discusses recent cases involving accountants and the attorney-client privilege.
If You Give a Judge a Case: Judicial Oversight of Deferred Prosecution Agreements
Three district courts have found that a court has the authority to reject a deferred prosecution agreement if it disagrees with the substance of the document, regardless of the agreement of the parties. These rulings can be viewed as violating the separation of powers doctrine. The hook for such judicial review is a provision of the Speedy Trial Act, but does the statute actually give courts the authority to review and reject the substance of DPAs? Plenary review of DPAs may have far-reaching implications. For example, after a court rejects a DPA, is a defendant still bound by the statement of facts admitted to as part of the DPA? If judicial scrutiny of DPAs becomes the norm, defendants should insist on language putting the parties back on an even playing field upon the rejection of a DPA.
- From Bean Counting to Soul Searching: The Amended Definition of ‘Intended Loss’ in the Fraud Guideli
‘And the Hits Just Keep on Coming’ — The Collateral Consequences of a Criminal Conviction for Health
For a health care professional, the collateral consequences of a criminal conviction go beyond licensure problems. The collateral consequences can be more serious than fines and perhaps as serious as prison. As a practical matter, the collateral consequences can prevent a defendant from earning a living in the health care industry. The authors explore the collateral consequences of a criminal conviction for health care professionals so that a defense attorney can advise a client of the potential consequences of a plea.
Inside NACDL: Overcriminalization: It Can Be Complex or Simple, But It Is Always Wrong
In September 2015, NACDL sponsored a briefing for congressional staffers that addressed two questions: How should the federal government strike the right balance between the use of criminal law sanctions and civil law sanctions? Are prosecutors expanding the reach of criminal statutes to address conduct that was clearly not contemplated by Congress when enacted?
The Rule of Lenity Redivivus: New Interest In an Old Doctrine
Since the turn of the century, the rule of lenity has enjoyed a mini-revival, at least when interpreting a law broadly would expose a defendant to a lengthy sentence disproportionate to the offense. The latest illustration of this trend is Yates v. United States. When punishment would be incommensurate with the offense, defense attorneys should not forget that an argument based on the rule of lenity can have considerable force.
The Newman Decision And Its Ramifications
The government’s almost 100 percent success rate in insider trading prosecutions has come crashing up against the Second Circuit’s focus on remote tippee liability in United States v. Newman. If the U.S. Supreme Court agrees to hear Newman, the government’s cause may be helped by United States v. Salman, a Ninth Circuit decision that appears to disagree with Newman.
The SEC’s New Admissions Policy Means Sometimes Having to Say You’re Sorry
While it still uses its “no admit, no deny” policy in most cases, now in certain circumstances the Securities and Exchange Commission will require defendants to admit wrongdoing in order to settle their cases. Has the new policy made a significant impact? What may be the real danger in this new policy?
- White Collar Crime Policy: Legislative Update: There's Hope on the Horizon
- From the President: The Time Has Come for Forfeiture Reform
- Changing the Rules of the House: A Tangible Step to Stem the Tide of Overcriminalization (Inside NAC
- Overcriminalization and the Trial Penalty: Gaining Traction One Case — And One Justice — at a Time (
- ‘And the Hits Just Keep on Coming’ — The Collateral Consequences of a Criminal Conviction for Health
Protecting the Attorney-Client Privilege When the Government Executes a Search Warrant
When the government executes a search warrant in a white collar case, it runs a higher than usual risk of seizing documents or electronic information protected by the attorney-client privilege. Sara Kropf explores the steps defense counsel should take to protect the privilege. If the government intentionally violates “taint team” procedures ordered by the court, there are sanctions or specific injunctive relief defendant can request to remedy the misconduct.
If I Can’t Be in the Grand Jury Room, Maybe My PowerPoint Can: Revisiting The Government’s Duty To P
Defense lawyers are not permitted in the grand jury room, and the government has no constitutional duty to present exculpatory evidence to the grand jury. The absence of a constitutional right or statutory obligation on the part of the government does not, however, foreclose other avenues for the defense to put its presentation before the grand jury. By looking to the government’s own policies, the defense lawyer may have an opportunity to be heard.
- Whether Fish or Fowl — Prosecutorial Overreach Is a Poisonous Aspect of Overcriminalization (Inside
- White Collar Crime Policy
Responding to Search Warrants in White Collar Criminal Investigations
Responding to a corporate search in real-time presents uniquely difficult challenges for defense counsel. A search is a disruptive, unnerving show of force with the potential to shut down a business or cripple its reputation within the community. Armed agents have immediate access to significant documents and essential employees, which the government does not otherwise enjoy when it issues a grand jury subpoena. Counsel for the corporation must react quickly, cautiously, and calmly to minimize the potentially devastating consequences of the search. If a corporation has advance notice that it may be subject to a search, then employees should be appropriately trained to manage and respond to search warrants.
Ethical and Strategic Issues Unique to Tax Cases
Criminal tax cases present unique challenges. If a defense attorney is dabbling in this area, it is important to understand not only the tax and procedural nuances specific to criminal tax cases but the ethical issues as well. Sarah Q. Wirskye discusses the Fifth Amendment act of production privilege, filing of the current year return, dealing with the prior year return, and the required records doctrine. She also reminds defense attorneys that they should be aware of potential conflicts of interest that may arise with joint representation in a civil tax examination, which may later become a criminal case.
The Martoma Verdict And the Perils of Insider Trading Cases (White Collar Crime)
On Feb. 6, 2014, former SAC Capital Advisors LP manager Mathew Martoma became the 79th individual convicted of insider trading in cases brought by U.S. Attorney Preet Bharara’s office. After less than three days of deliberation, a jury of seven women and five men convicted Martoma on all three counts of insider trading.1 Despite the herculean efforts of a defense team led by Richard Strassberg of Goodwin Proctor, Martoma faces up to 20 years in prison at a sentencing hearing scheduled for June.
- Protecting the Attorney-Client Privilege When the Government Executes a Search Warrant
- A Lamentable Example of Overcriminalization: HIV Criminalization (Inside NACDL)
A Report on Behalf of the American Bar Association Task Force on the Reform Of Federal Sentencing Fo
In April 2013, the Criminal Justice Section of the American Bar Association assembled a task force to study and evaluate the reforms needed in the sentencing of federal economic crimes. The mission of the task force was not only to identify the areas of weakness in the existing Federal Sentencing Guidelines, but also to draft and propose a better guideline to remedy those weaknesses.
- From the President: NACDL’s Mission and the White Collar Department
Is Title III Dead? The Future of Wiretap Challenges in the Wake of Rajaratnam
The recent insider trading prosecution of hedge fund titan Raj Rajaratnam raised many eyebrows in the white collar defense bar for its reliance on wiretap evidence. Though Title III permits the government to seek court authorization to eavesdrop in most white collar investigations, prosecutors have traditionally reserved wiretaps for large conspiracy cases involving drugs, weapons, extortion, and organized crime.
Do You Accept Insurance? A Practitioner’s Guide to Coverage Issues in White Collar Cases
Consider a hypothetical in which a defense attorney receives an urgent telephone call from one of her firm’s long-standing clients, a diagnostic imaging center with several locations in the tri-state area that just received a subpoena from the local U.S. Attorney’s Office. The client knows nothing more than what the subpoena states: the government has initiated an investigation into allegations of healthcare fraud. The corporation has two weeks to produce all billing records for all patients at all locations for the past year. Having handled a number of similar matters, the defense attorney knows the drill. She will contact the prosecutor to get more time to respond and hopefully narrow the scope of the government’s far-reaching request. Mindful of costs, she recalls that the law firm just received the balance of a large invoice from this client on another matter, and that was not an easy task. She recalls attending a CLE about a year ago, and one of the topics discussed was insurance coverage for corporations under investigation. She does not want to pick up the phone to call the government until she knows the firm will be paid.
Can Violating a Work Rule Make You a Criminal?
Every workplace has its own rules regulating employee behavior. Some have formal progressive discipline policies calling for increasingly serious punishment for repeated instances of unacceptable behavior. While deviations from employment policies routinely result in discipline or even discharge, it is universally understood that violating a work rule does not make an employee a criminal. Prosecutors, however, continue to rely on alleged violations of workplace rules as the premise for bringing criminal charges against employees in both the public and private sectors.1 The theory is that workplace rules establish expected standards of conduct and, when those standards are breached, the employer is defrauded or suffers a theft.
Stopping the Train Before It Leaves the Station: Convincing Prosecutors Not to Charge Your Client
There are two kinds of overtures made to prosecutors pre-indictment. The first is: “Ok, you got my client, but this is what he can do for you,” and its cousin: “She didn’t do exactly what you think she did … but this is what she can do for you.” The second is: “I know you and your agents are convinced my client is guilty, but I want to show you why I believe a jury would acquit.” Skill is involved in advancing either message, and the difference between an artful presentation and an inartful one can determine whether the client avoids prison entirely or spends the rest of his life behind bars.
- The SEC’s Cooperation Initiative — Nearly Three Years Later, What’s the Deal?
- Jury Instructions: Key Topics in Federal White Collar Cases
- The Willfulness Element of a False Statement Charge
- Defense Strategies and Compliance Issues in The New Insider Trading Environment
- The Most Effective Opening Statement Ever Given?
- Let Counsel Beware: Overzealous Bankruptcy Practice Can Lead To a Prison Cell
- When It Comes to Overcriminalization, Prosecutorial Discretion Is for the Birds (Inside NACDL)
Tilted: The Trials of Conrad Black
Prosecutors’ multicount indictment accused Conrad Black, a Canadian who helped build the third largest media company in the world, of defrauding his company of millions by paying himself bogus noncompetition fees related to the sale of American community newspapers. Ultimately, an appeals court affirmed a single conviction for mail fraud and obstruction of justice. Steven Skurka discusses the profound differences between the U.S. and Canadian criminal justice systems, and writes that the system in the United States unfairly favors prosecutors.
Are Antitrust Violations Crimes Involving Moral Turpitude?
If an alien who has no U.S. immigration status is convicted of a crime involving moral turpitude (CIMT), the alien is subject to exclusion from the United States for a minimum of 15 years. For non-U.S. executives who do business with American companies, a 15-year ban on travel to the United States is potentially a career killer. But what offenses constitute a CIMT? When a criminal antitrust violation is alleged, the 15-year ban can come into play because, pursuant to a 1996 Memorandum of Understanding (MOU), the Department of Justice considers a criminal violation of the Sherman Antitrust Act to be a CIMT. No court, however, has held that a Sherman Act violation is a CIMT.
The New British Invasion: Will the UK Bribery Act of 2010 Eclipse the FCPA?
The Foreign Corrupt Practices Act outlaws bribes to obtain business from foreign governments, and it only targets the person or company paying the bribe. The U.K. Bribery Act of 2010 attacks corruption in a different way. The U.K. law (1) is not limited to acts of corrupting foreign governments, but applies to commercial bribery as well; (2) subjects persons receiving the bribe to prosecution; (3) criminalizes an organization's failure to prevent bribery; and (4) applies to conduct occurring anywhere in the world, even if unconnected to the United Kingdom. The result is that foreign laws now subject U.S. citizens to prosecution in foreign lands for conduct that has the most tenuous relationship to the foreign venue.
- Stopping the Train Before It Leaves the Station: Convincing Prosecutors Not to Charge Your Client
News of Interest
- "A Silver Lining for New York’s Former Assembly Speaker,"
- "Michigan County Prosecutor Charged With Embezzling Asset Forfeiture Funds,"
- "Duncan Hunter Sentenced to 11 Months in Prison for Stealing Campaign Funds,"
- "Feds grab $15,000 from Miami mom’s ‘quince’ savings for daughter. Now she’s fighting back. ,"
- "DEA to return $82,000 life savings seized at airport but doesn’t say why,"