September/October 2013

September/October 2013 Cover

Do wiretap challenges have a bright future after the Rajaratnam case? What age-related considerations support arguments for sentencing leniency?  


Articles in this Issue

  1. Affiliate News

    The Washington Association of Criminal Defense Lawyers (WACDL) recently announced the recipients of its annual honors.

    Gerald Lippert

  2. Book Review: Enemies Within: Inside the NYPD’s Secret Spying Unit and Bin Laden’s Final Plot Against

    With the assistance of Bradley Manning and Edward Snowden, journalists have had a treasure trove of data from which to write stories about actions taken by the U.S. government post-9/11. These actions, always characterized as having been taken “to keep Americans safe,” have in many instances been directed at Americans. This reporting has sparked a healthy debate about the scope of the national security state that has arisen in the United States in reaction to the horrific terrorist attack on New York City in 2001.

    Barry J. Pollack

  3. Book Review: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect

    In his latest book, Glenn Greenwald argues that when it comes to holding the political elite in Washington accountable for their criminal conduct, the notion of equal justice under the rule of law has been abandoned. The criminal laws are simply not applied against our nation’s most powerful elites, and to them, these laws have become “nothing more than advice or recommendation.” The result is an erosion of our only real guarantee against tyranny.

    Booth M. Ripke

  4. 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.

    Donna A. Walsh and Patrick A. Casey

  5. Digital Defense: Meeting the Challenges That the Computer Fraud And Abuse Act Poses

    In this digital age, computers are everywhere, from the time people wake up in the morning until the moment they fall asleep at night. And for defense lawyers, the predominance of computers has extended not only to their day-to-day practices but even to the cases they handle, which increasingly involve allegations brought under the Computer Fraud and Abuse Act (CFAA).

    Timothy P. O’Toole

  6. 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.

    Douglas K. Rosenblum

  7. From the President: NACDL’s Mission and the White Collar Department

    Through significant coalition building and outreach to Capitol Hill and federal agencies, NACDL's efforts in the white collar arena are yielding important results.

    Jerry J. Cox

  8. 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.

    Josh A. Cohen

  9. NACDL News: Another State Recognizes Counsel Is Required at First Appearance Where Liberty Is at Sta

    On Sept. 25, 2013, the Maryland Court of Appeals, the state’s highest court, ruled in a 4-3 decision that “under Article 24 of the Maryland Declaration of Rights, an indigent defendant is entitled to state-furnished counsel at an initial hearing before a district court commissioner.”

    Ivan J. Dominguez and Isaac Kramer

  10. NACDL News: NACDL Sponsors Hill Briefing on Federal Indigent Defense Crisis

    Panelists at the Capitol Hill briefing stressed how severe budget cuts are damaging the indigent defense system.

    Ivan J. Dominguez and Isaac Kramer

  11. NACDL News: NACDL Staff and Members Speak at Gideon Symposium

    NACDL Indigent Defense Counsel John Gross, NACDL Board Member Bonnie Hoffman, NACDL Executive Director Norman Reimer, and NACDL members American University Law Professor Jenny M. Roberts and WilmerHale Partner Danielle Spinelli all spoke at “Gideon at 50: How Far We’ve Come, How Far to Go,” a symposium presented by the Charleston School of Law and the South Carolina Commission on Indigent Defense.

    Ivan J. Dominguez and Isaac Kramer

  12. NACDL News: Surveillance Discussion and Book Signing Are Part of White Collar Summer Series

    On Sept. 12, NACDL joined with Miller & Chevalier Chartered to host “Who’s Watching the Watchers,” a well-attended reception and conversation about post-9/11 government surveillance tactics and wider constitutional, privacy, and national security issues.

    Ivan J. Dominguez and Isaac Kramer

  13. NACDL to Expose the Trial Penalty in Bid to Resuscitate the Sixth Amendment (Inside NACDL)

    Exercising the Sixth Amendment right to counsel is now burdened with such extraordinary risk that even some individuals who are innocent rationally and wisely enter guilty pleas.

    Norman L. Reimer

  14. The ‘Silver Tsunami’ And Sentencing — Age and Health as Mitigating Factors

    Age and health are significant mitigating factors in an increasing number of sentencings as the baby-boomer generation turns 65 — the so-called “Silver Tsunami.”1 This is particularly true in white collar cases, which disproportionately involve offenders over 50.2 

    Evan A. Jenness

  15. The NSA Holds the Key to Client Confidences at GTMO (Military Commissions Perspective)

    Defense attorneys representing defendants at Guantánamo Bay realized they could not rely on the government’s IT network when the government, in trying to replicate files, lost 7 GB of data – including mitigation investigation notes and potential witness and expert resource files. Later, defense attorneys learned that their Internet usage was being tracked.

    Mason C. Clutter