September 15, 2008
The Other Four in the Stein-KPMG Related Case
Defendants are not always successful in KPMG related cases before Judge Kaplan. The four remaining defendants in the case found that out this past week when their claims of due process violations were denied.
The issue is a fascinating one, and one previously seen in cases such as Scrushy and Stringer - the sharing of information in a parallel proceeding. The court held that "[i]t is well-established that as a general rule, '[t]he prosecution may use evidence acquired in a civil action in a subsequent criminal proceeding unless the defendant demonstrates that such use would violate his constitutional rights or depart from the proper administration of criminal justice.'"
In denying the defense motion to dismiss the case, the court held that a reliance on other cases was "misplaced" in that in each of the cases cited by the defense, "the court emphasized that (1) there was no bona fide civil investigation, and (2) the defendant was deceived by the government during the civil investigation." With "no such allegations in this case" the court denied the defense motion to dismiss.
Memorandum and Order - Download 20080910_order_re_6103_tj252.pdf
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