June 17, 2011
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “From Push to Shove: Defending Against Higher Sentences,” Friday, June 17, 2011
Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)
The seminar closed with a discussion of sentencing strategies. Moderated by Jeffery Robinson, the panel consisted of David Angeli, Ellen Brotman, U.S. District Court Judge Robert T. Dawson, Vito de la Cruz, and Jan Nielsen Little.
Mr. de la Cruz started the discussion by suggesting that because the guidelines still carry considerable weight, plea agreements should (where possible) be negotiated to impose a statutory cap on the possible penalty. With regard to the guidelines, Mr. de la Cruz discussed looking at the way in which the guideline was drafted. If the guideline was not based upon a Sentencing Commission study and empirical evidence, the case law is clear that the district court can reject the guideline based upon policy alone.
Ms. Brotman seconded those comments, and noted the excellent resources made available by federal defender offices to assist in analyzing whether the guideline at issue may be subject to challenge on this basis.
Judge Dawson noted the reason behind the guidelines was to establish some sense of fairness between sentences, but were intended to be recommendations only. Post-Booker, the “real work” at sentencing is with regard to variances.
Mr. Angeli suggested that the “deconstructing the guidelines” approach may be effective with regard to 2B1.1 guidelines, because those guidelines have not evolved due to careful Sentencing Commission study. Ms. Brotman followed up by noting that this kind of attack should be supported by empirical evidence in favor of the sentence that is being sought, rather than just relying on omissions by the Sentencing Commission. She additionally noted that the initial research upon which the guidelines were based was flawed, because it only included defendants who were sentenced to prison.
Mr. Angeli discussed Pepper v. U.S., a Supreme Court case which held that post-1st-sentencing, pre-re-sentencing rehabilitative efforts can be taken into consideration. He noted that the Court held that the sentencing guideline which did not make good policy sense could and should be disregarded. The holding in Pepper suggests that a number of other policy statements are now subject to challenge.
Ms. Little noted that the Sentencing Commission has compiled a huge variety of statistics, available on their website, which can be used to make arguments for lenience. For example, she noted that statistics supporting a relatively high frequency of variances with regard to similarly situated defendants can be cited to request a similar variance. Ms. Brotman suggested that the Sentencing Commission can remain relevant by making this information even more readily available.
Ms. Brotman discussed the application of the four purposes of sentencing listed in 18 U.S.C. 3553 apply to white collar cases. The negative use of the same factors by the government was discussed by Mr. Robinson and Ms. Little.
Ms. Brotman discussed the Ninth Circuit’s review of white collar sentences, and noted with concern that a number of the Judges have expressed that discretion in white collar cases should be reined in because Judges are more inclined to be sympathetic to white collar defendants because they are more likely to actually be similar to them with respect to their background.
The panel noted (with audience agreement) that Assistant United States Attorneys are almost uniformly asking for guideline sentences. Ms. Brotman noted that this rigid policy often eliminates them from the discussion regarding the appropriate sentence.
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Defending the Individual in FCPA Cases: Managing the Company, Dealing with the Facts,” Friday, June 17, 2011
Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)
This panel dealt with a hypothetical company which had a deferred prosecution agreement with SEC/DOJ involving small value facilitation payments which were actually bribes. The hypothetical involves an email sent to the company’s auditing committee by a sales agent in Egypt alleging the bribes are taking place.
Following the disclosure to the audit committee, outside counsel is retained, and (due to the deferred prosecution agreement) DOJ/SEC needs to be informed of the situation.
Mr. Rhodes indicated that the company should retain counsel for the whistleblower in response to hypothetical questions involving that individual’s exposure and rights.
Ms. Andrues, acting as counsel for the hypothetical whistleblower, reviewed the information she would want to have access to, and the potential issues she would need to address, including the relevant law in the foreign country (Egypt) that could impact the investigation.
Mr. Knox indicated that he (acting as hypothetical prosecutor) would potentially provide background information to counsel for the whistleblower. However, both Ms. Andrues and Ms. Davis (acting as hypothetical whistleblower counsel) indicated that it was unlikely they would contact the prosecutor, although both indicated that the call could be useful to obtain the lay of the land.
Mr. Rochon proposed a one-way flow of information from company counsel to counsel for the whistleblower as a way to get the attorney up to speed without compromising company’s counsel’s ability to remain as counsel in the event the whistleblower ends up cooperating with the government.
Another employee, an accountant, also needs counsel, and has given statements indicating involvement and potential additional exposure. The panel agreed that counsel for that individual might not allow an interview of that client, although the employee will almost certainly be terminated. Ms. Davis indicated that he may be facing termination even after an interview. The panel agreed that if the accountant still wanted to go forward with the interview, he should be thoroughly advised regarding the risks. However, the panel expressed significant doubts that the company would facilitate investigation.
Another hypothetical client was then discussed: in-house counsel who failed to act on the whistleblower’s initial complaints and who’s (at a minimum) negligence appears to have led to this problem. Because this hypothetical client’s version of the events was unsupported by documents or other witnesses, the panel agreed that this individual would clearly not be allowed to be interviewed by anyone, regardless of employment consequences.
During these exchanges, it was repeatedly discussed that the company’s agreement with DOJ/SEC required them to disclose information it discovered, and that this factored into every decision regarding allowing the various clients to be interviewed.
Mr. Rhodes commented regarding employment futures of these individuals. All appear to be unlikely to remain with the company, but the in-house counsel is most likely to be fired immediately. The accountant was deemed likely to be terminated after another interview. The tension between the interests of the company and the individual appeared especially intense in this scenario.
With regard to interview requests by DOJ/SEC, Ms. Andrues and Ms. Davis expressed skepticism regarding the amount of protection and value of proffer letters. In the event that the interviews were to take place, and a recording was required and defense counsel was not going to be given a copy, it was unlikely that the interview would occur. Mr. Knox noted that admissions by officers during interviews would be considered admissions by the company.
In response to a comment from the audience regarding the dangers of conducting investigations in foreign countries, Mr. Rhodes and Mr. Rochon agreed that local legal issues will always influence investigations and should be carefully considered.
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – Keynote Address: Benedict P. Kuehne, Friday, June 17, 2011
Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)
The Keynote Presentation, "Standing Tall: Criminal Defense Lawyers as Constitutional First Responder s in Today’s War on Crime," was given by Benedict P. Kuehne.
Benedict Kuehne spoke regarding the important role that criminal defense attorneys play in America. He noted that criminal defense lawyers often put at risk not only their fee, but their own liberty. Because the role of criminal defense lawyers is to safeguard our constitutional rights, that role itself is threatened. Mr. Kuehne used his personal story to examine these principles. In 2004, his office was searched pursuant to a federal warrant. He was the subject of a grand jury investigation into conspiracy and money laundering. His alleged crime related to legal advice he provided another criminal defense lawyer regarding the source of his fee.
This prosecution was part of an overall trend towards the broadening of the scope of money laundering prosecutions, Mr. Kuehne suggested, noting that money laundering has replaced conspiracy as the prosecution’s weapon of choice.
Mr. Kuehne noted that this prosecution theory threatened to chill the assertion of the Sixth Amendment right to counsel and the willingness of counsel to provide legal representation to individuals facing prosecution.
Mr. Kuehne then explored the history of litigation surrounding the specific statutory exemption for criminal defense fees. For 20 years, the government persisted in attempts to convince courts that the exemption did not mean what it said. These efforts, combined with the ability to seek forfeiture of fees, had a chilling effect on that Sixth Amendment right.
His case resulted in the decision U.S. v. Velez, vindicating the criminal defense fees exemption in money laundering cases. Mr. Kuehne's story is an inspiring one that clearly demonstrates the importance of the work that we defense lawyers do everyday.
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Nowhere to Run, Nowhere to Hide: Antitrust Defense in the Age of Amnesty Agreements & Corporate Self-Reporting,” Friday, June 17, 2011
The morning of day two of the seminar concluded with a panel discussion of the current issues facing antitrust defense practitioners. The panel consisted of Richard H. Deane, Jr., David Gerger, Eric Grannon, Christine Levin, and Jessica K. Nall.
Ms. Levin began by referencing the concerns expressed yesterday regarding the trend towards cooperation by corporate counsel. She indicated this has been driven, in part, by the Anti-trust Division’s amnesty program and DOJ’s aggressive marketing thereof. She reviewed the requirements of eligibility for the amnesty program: first to approach DOJ; prompt and effective action to terminate the wrongful conduct; full, continuing and complete cooperation; it must be “a true corporate act”; restitution must be made if possible; the company cannot have been the architect of the scheme, and cannot have coerced the others.
The benefits of the amnesty program include: the company receives complete protection from fines; no jail or fines for employees; no joint and several liability exposure in the subsequent civil actions; and no treble damages. Potential pitfalls include the following: the agreement only binds the Antitrust Division; a failed application, which can result in a prosecution using the information provided during the application process; “Amnesty Plus”, a program giving a break to companies which are not first in reporting to DOJ if the company reports additional violations, but which can lead to new grand jury investigations; and the use of amnesty as an anticompetitive tool, i.e., a way to cause headaches or worse for a company’s competition.
Mr. Gergen noted pending litigation in which the government has asserted that an employee may not seek to enforce the amnesty agreement.
To facilitate discussion of these problems and how they apply in real-world settings, the panel reviewed a number of cases in which a successful defense was mounted against leniency application prosecution.
Mr. Deane compared antitrust defense to white collar defense generally. He analogized the amnesty program to “proffering” in other white collar cases, noting the differences – particularly as it results in tension between the goals of corporate counsel and the interests of the individuals involved, and the potential conflict between such goals and a joint defense agreement.
Ms. Nall discussed endgame negotiation strategies. She noted that positioning a client is very fact-specific, but some general principles do apply. For example, cooperation is always viewed favorably by the government. She cautioned that DOJ views with great disfavor the argument that a defendant should be treated with leniency because the defendant is foreign and doesn’t understand or isn’t familiar with American antitrust laws. Legal arguments (regarding jurisdiction, for example) may also be strong bargaining chips. Mr. Grannon suggested jurisdiction may provide a defense at trial as well.
Mr. Grannon also discussed the decision making process involved in evaluating a plea offer. These decisions often take place after a company has received amnesty, your client’s company has pled guilty, and your client has been left as a “carve-out.” Mr. Grannon presented data on sentences for defendants, comparing different kinds of defendants and providing examples from specific cases. He noted that DOJ indicates that “no jail” pleas are no longer an option. He noted one particularly troubling DOJ strategy as follows: DOJ has a Memorandum of Understanding with Immigration, indicating that Sherman Act violations are crimes of moral turpitude – which results in deportation and exclusion for 15 years. This agreement exists despite a strong argument that it is not a crime of moral turpitude as that term is commonly defined. DOJ will use this threat as a bargaining chip, agreeing to waive the application of the Memorandum of Understanding it has with Immigration in exchange for a plea of guilty.
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Monsanto and More: Ethical Tactics for Getting Paid When the Government Gets There First,” Friday, June 17, 2011
John Cline began the discussion with a hypo of an indicted individual who has millions of dollars that the government believes were garnered through criminal activity. Mr. Welk presented the government’s perspective and outlined the steps taken to identify the assets the government believes can be tied to the charged crimes. Typically this involves going to the Magistrate and obtaining seizure warrants for assets and then seizing them. If it involves real property, then they will go get a lis pendens.
Mr. Cline asked about ex parte restraining orders and when and how the government uses them. Mr. Welk explained that once he obtains the restraining order, he will typically approach the counsel for the client, inform them of the order, and then set up a plan. Typically the parties sit down and work out the issues together. Mr. Welk noted that going in ex parte can be extremely disruptive to the business and that is why the defense is willing to sit down. However, there is always a concern that the assets could disappear if the government does not come in strong.
Mr. Cline then sought the defense perspective from Ms. McNamara—what steps she takes when faced with an ex parte restraining order. She would first seek out help from an experienced forfeiture lawyer. This is because this process is quite draconian and it allows the government to basically step into the defendant’s shoes. However, given the practicality of the temporary restraining order, where the government must show its cards, the parties are usually willing to come to the table and talk.
A member of the audience asked about money that the lawyer already has, such as a retainer. Mr. Welk explained that there is a wide diversity of views on how to handle this situation. He will typically sit down with the attorney and work out an arrangement, typically involving a return of a portion of the money.
Ms. McNamara noted that there has been an uptick in asset forfeiture since the Madoff case but Mr. Welk noted that it was really a coincidence of timing. Rather, he noted that the uptick was a product of at least five years of work by the Asset Forfeiture Working Group. It just happened that their work aligned with the Madoff case.
Mr. Cline then asked the panelists to discuss negotiations that frequently happen in order to avoid an evidentiary hearing. Both parties usually go in hoping to cut a deal and come out with a clear plan. Ms. McNamara explained that the government typically comes in with a pragmatic approach, but that is not always the case.
The panelists engaged with the audience on the interaction between bail and forfeiture, the potential conflict for the defense attorney in seeking to protect the client’s assets in general and specific to defense fees, and the question of government authority over third-party assets. Mr. Welk noted that while the government has authority to seize third-party assets, but the courts don’t like that.
Mr. Cline closed the panel with a discussion the potential for prosecutors to clawback fees that have been unfrozen for defense. Mr. Welk said this is rare and there are other venues to explore, one of which is a strongly worded letter to counsel explaining that it is the government’s belief that all the client’s money comes from illegal activity and thus any money accepted may be subject to forfeiture. There is serious debate over the use of these letters, but defense counsel should be aware of them and on the lookout.
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “The Accidental Felon: Challenging The Expansion of the Willful Blindness Doctrine,” Friday, June 17, 2011
One of two breakout sessions, two speakers (Timothy O’Toole and Professor Ellen S. Podgor) reviewed the ever-broadening scope of the willful blindness doctrine and proposed several defenses and counter-attacks to this brutally successful prosecutorial tactic.
The speakers opened by discussing a recent U.S. Supreme Court case, Global-Tech Appliances, Inc. v. SEB S.A. Though this is a patent infringement case, the Court addresses the scope of the criminal law willful blindness doctrine. The Court notes that the instruction has been applied to a wide variety of cases, but sets forth two universal requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact. The Court affirmed, holding there was sufficient evidence that the patent infringer was willfully blind under the criminal law standard.
Professor Podgor began by reviewing U.S. v. Jewell, the Ninth Circuit case most commonly cited as setting forth the law on willful blindness. Professor Podgor noted that Justice (then Judge Kennedy) dissented in the 9th Circuit decision in Jewell, and that he again found himself (this time alone) in the dissent in Global-Tech.
Mr. O’Toole noted that the use of willful blindness in white collar cases (even though it originated in a drug case) is an excellent example of why white collar defense attorneys should not wall themselves off from other areas of criminal defense. With respect to Global-Tech, he noted that the second requirement of “deliberate action” appears to narrow the scope of willful blindness in comparison to existing circuit case law. The Supreme Court itself emphasized this requirement in its analysis, noting that the Federal Circuit was in error in not requiring deliberate action.
Professor Podgor emphasized the strength of the language used by the Supreme Court in this case. Powerful jury instructions can and should be crafted based upon the Global-Tech. Mr. O’Toole seconded these comments, pointing out that the willful blindness doctrine is often relied upon by the government in cases where evidence of deliberate actions is non-existent. He questioned whether any circuit’s pattern instruction remains valid in light of a universal failure to include a requirement of “deliberate actions” to avoid learning of the key fact(s). He also noted that the Supreme Court didn’t merely indicate that recklessness or negligence wasn’t sufficient, but actually set forth the definitions of those two mental states, and suggested that proposed jury instructions should do the same.
One questioner asked whether the improvement in the legal standard was so great that defense counsel should ask for this instruction, to allow focus on the absence of deliberate actions. Both speakers cautioned against it.
Postscript - Mentioned in this session was a wonderful article by Dane C. Ball (Gerger & Clarke) titled, Improving "Willful Blindness" Jury Instructions In Criminal Cases After High Court's Decision in Global-Tech, published in the BNA Criminal Law Reporter. With many thanks to Dane C. Ball and the Criminal Law Reporter for allowing us to post it here - Download BNAinsights.Ball2
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Navigating the Wilderness of Mirrors: National Security Issues for the White Collar Lawyer,” Friday, June 17, 2011
Day two of the seminar started with a discussion of the issues that arise when classified information is implicated in a white collar case. Led by John D. Cline, the panel consisted of Deborah Boardman, Matt Apuzzo (of the Associated Press), Joshua L. Dratel, Ross H. Garber and Nancy Hollander.
John Cline began the discussion by reviewing the Classified Information Procedures Act (“CIPA”) and the Foreign Intelligence Surveillance Act (“FISA”).
Mr. Garber suggested that there are a number of cases in which defense attorneys don’t realize that national security information is implicated. This is for many reasons, including unfamiliarity with the statutes involved and an increasingly aggressive use of FISA and national security related charging decisions by the government. The increased numbers of FISA warrants granted and their revealed use in non-“terrorism” cases (money laundering, export violations, FCPA, among others) were cited in support. Mr. Apuzzo noted that the potential for these issues to arise in cases is often underestimated. The scope of the government’s use of its surveillance powers is constantly increasing.
Mr. Dratel noted that an increasing amount of information has been designated classified, leading to this increase in cases with these issues. Once information is classified, however, a Judge cannot declassify it. There are administrative procedures available, but they are impractical for most cases due to timing. Once classified information is involved, CIPA is going to be the sole avenue of relief. He further noted several examples of the “tactical” use of classification and CIPA by the government, including the use of section 4 of CIPA (which allows the government to submit potentially exculpatory classified material to a Judge for review prior to any disclosure).
Ms. Hollander noted tactical de-classification was also a weapon in the government’s arsenal. She also added that FISA includes more than that wiretapping authority: it includes sneak and peek warrants, email, among other powers. Another hurdle caused by classification arises, she noted, in the context of obtaining security clearances for experts, an additional time-consuming burden imposed in these cases. Deborah Boardman noted that the delay in getting clearances can apply to anyone on the defense team that an attorney wants or needs to have access to classified material in order to effectively defend the client.
Many of these practical problems are best understood by using a case study method. To facilitate that, Ms. Boardman used her recent litigation in U.S. v. Thomas Drake to review these problems and how navigating CIPA enabled her excellent result. Mr. Cline and Ms. Hollander also commented upon the practical problems. The role of Classified Information Security Officers as neutral problem solvers was emphasized. John Cline described them as “the best bunch of problem solvers I have ever run across,” a description with which anyone who has ever dealt with them will readily agree.
Mr. Garber, characterizing these problems as “fun”, described the FISA procedure for challenging the warrant. Unlike traditional search warrant applications, FISA applications are not routinely provided to defense counsel. There is a procedure for requesting the application for the warrant. No such request has ever been granted in 30 years.
Ms. Hollander noted a new problem with FISA warrants: they may continue after indictment. She emphasized that if the FISA information is not going to be used by the government, the existence of the wiretap won’t even be disclosed.
In conclusion, Mr. Apuzzo spoke about the problems of reporting on national security cases. He noted reporters actually have several advantages in understanding these cases. For example, because defense counsel receives only a well-defined set of information, they often miss the larger picture, whereas reporters who work on these cases are often more able to quickly understand the significance of new disclosures. He also indicated that communicating effectively with the media is especially important where a case may have (or appear to have) national security implications. Nancy Hollander emphasized Mr. Apuzzo’s points, emphasizing that a good reporter can often find information that defense could never find.
June 16, 2011
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Finding the Line: Ethical Considerations When Contacting and Interviewing Witnesses,” Thursday, June 16, 2011
Day One of the seminar concluded with a panel discussion of the various ethical pitfalls surrounding the interviewing of witnesses. Patrick Robbins moderated the discussion. The panel included Blair G. Brown, David Fechheimer, Nina J. Ginsberg, Marc S. Harris, and Steven Singer.
The panel first discussed hypotheticals involving a lawyer who first represents a company (through an audit committee) under investigation. Ms. Ginsberg pointed out the first potential conflict that lawyers face when interviewing employee witnesses under these circumstances is that the witness’s interests may be adverse to the company client. She further noted that such adverse interests would preclude dual representation as well. She discussed the burdens the model rules place upon lawyers interviewing witnesses. Model Rule 4.3 requires an explanation of the lawyer’s role, prior to interviewing, where the witness may be confused regarding the lawyer’s role, and that this explanation approaches that required by Miranda warnings. As Mr. Brown noted, these warnings are in the interest of the lawyer as well, as they will protect the company and the lawyer from subsequent motion, though he doubted that the warnings ever approach the standard of Miranda. The panel agreed that the overriding goal of representing the company by ferreting out information, and convincing the government that the company is being aggressive in its investigation, runs directly contrary to strong warnings. Marc Harris noted that it was common to demand cooperation from employee witnesses, upon threat of termination.
The panel discussed the problems presented by the question: “Should I get a lawyer?” Everyone agreed that the question required the lawyer to walk a fine line. The lawyer should not give the witness legal advice by opining whether a lawyer is a good idea, but must accurately answer that the witness has the option to get a lawyer.
The next hypothetical involved a lawyer advising an AUSA that he represents all current employees of the corporation and the current and former CFO and CEO, but the AUSA sends the agents to interview the employees. Mr. Brown started his response by cautioning against such blanket assertions of representation unless the facts truly warrant it. He continued by noting that the state ethics rules may provide the best barrier to this kind of conduct. The panel agreed, with Mr. Singer noted that many state ethics rules specifically include corporate employees as represented parties.
Marc Harris noted that another fine line exists when advising all employees of a company that they need not talk to agents, and that flatly advising against it may constitute obstruction of justice. Ms. Ginsberg further cautioned that it created an impression on the part of the employees that they are being represented. Mr. Brown noted that Model Rule 8.4 allows a lawyer to advise a client’s employee not to talk to an adverse party.
One questioner noted that the trend toward “hyper-co-operativity” on the part of companies has only aggravated the problems faced by the employees on the other side of the hypotheticals discussed.
Another questioner asked about government pressure to not interview government witnesses. Mr. Singer commented that such efforts to intimidate the defense must not be allowed to succeed, and discussed taking steps to protect oneself during those scenarios, i.e., having multiple people present for any interviews.
The final hypothetical involved a grand jury witness taking the 5th Amendment privilege to protect another individual and advising the lawyer he was doing so. Mr. Harris indicated that this is not problematic, but, advising a witness to do so might constitute obstruction of justice, especially if that advice was motivated by a desire for financial gain by securing further employment by the corporation at issue.
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Twitter, Facebook & Google in the Courtroom: High Profile Defense in Real Time,” Thursday, June 16, 2011
The seminar opened with a discussion of the intersection between the internet (especially so-called “social media”) and the courtroom. The discussion was moderated by Gail Shifman, and the panel included Leslie R. Caldwell, Rusty Hardin, Dennis P. Riordan, and Allen J. Ruby.
The panel started by discussing cases with intense media scrutiny. High profile cases can arise due to the notoriety of the client, as was the case with Mr. Ruby’s former client Barry Bonds. But as Ms. Shifman noted, any kind of case or defendant can become notorious, as the glare of the media spotlight can be prompted by the facts of the case. The skills discussed can be required by cases in any criminal defense practice.
Mr. Hardin stressed determining early in the case to what extent the client’s reputation in the community is especially important, i.e., a celebrity or politician, and if so, react more proactively in media response. He stressed that the storyline of the case for the media will be set very early, perhaps in the first 36 hours, and will be repeated as the media updates the story.
Mr. Ruby spoke about a client’s concerns when under the spotlight: a strategy that repairs damage to reputation, to the extent possible. The internet has changed the game in many ways, but one is that it never forgets: every news story remains preserved for future searches, making “weathering the storm” less viable of a strategy than in years past.
Mr. Riordan discussed picking potential media outlets to suit your strategy: not every client and case will benefit from a discussion with Nancy Grace or her ilk, but some will. Different kinds of print media and bloggers are well suited to other kinds of cases.
Multiple panelists referenced the Duke rape case as one of the finest examples of excellence in media strategy. The choice of media, themes and messengers were all lauded.
Where reporters are pressing attorneys for comments, but public comments would not be beneficial (i.e., are part of the media strategy), off-the-record or background comments to the press may be useful, either to “hold them at bay” or to begin to influence the media coverage of a case. Where attorneys are gagged not by strategy, but by court order, motions can be drafted to convey the client’s position.
Another point stressed by multiple panelists was that the jury will remember what the lawyers say, and therefore attorneys should be careful before they make specific factual assertions in the press.
The panel discussion turned to specific social media issues. Use of social media research on witnesses or jurors was discussed, and it was noted that the use of third persons to surreptitiously access Facebook pages has been repeatedly characterized as unethical in numerous bar opinions.
Jury control in the age of social media and internet saturation was discussed. All panelists agreed that ordinary jury admonitions on these topics are seemingly “not processed” by jurors: it is simply unfathomable to not use the internet. Suggestions included requesting Facebook and Twitter information from prospective jurors (perhaps being given only to the court), or requesting the strongest possible judicial warnings to jurors.
June 15, 2011
Will the “Blame the Man” Claim Help?
Danielle Chiesi, the Wall Street blond bombshell who gave new meaning to the term “insider trading” by extracting from sexual partners confidential information which she relayed to convicted inside traders Raj Rajaratnam and Mark Kurland, is reportedly seeking a downward variance from a Sentencing Guideline range of 37-46 months, in part because her wrongdoing resulted from her “toxic” sexual relationship with Mr. Kurland. Ms. Chiesi’s sentencing memorandum highlights a letter from her current boyfriend which contends that Mr. Kurland, her twenty-year lover, exploited her and turned her into his “virtual servant.” Ms. Chiesi seeks to be sentenced to no more than the 27-month term that had been imposed upon Mr. Kurland.
Ironically, one of Ms. Chiesi’s lovers/sources, former IBM executive Robert Moffatt, now serving a six-month sentence for providing confidential information to Ms. Chiesi, at sentencing blamed Ms. Chiesi for manipulating him.
It will be interesting to see whether this “blame the man” explanation strikes a responsive chord with sentencing Judge Richard J. Holwell. Historically, women have received more lenient sentences than men for similar conduct, and the “blame the man” defense frequently worked at sentencing. However, that record was largely compiled with a male-dominated judiciary where some might have condescendingly viewed women as the “weaker sex.” Given changing societal and judicial views (and non-discriminatory mandatory sentences and sentencing guidelines), I suspect that differential has diminished considerably.
June 13, 2011
100 Years of White Collar Crime in 'Twitter'
My forthcoming article in the University of Texas, Review of Litigation, is titled "100 Years of White Collar Crime in 'Twitter.'" It is available on SSRN here.
The Abstract states:
"Despite the fact that Twitter did not exist when the term “white collar crime” was coined in 1939, it is an interesting exercise to highlight the last 100 years of white collar criminal activity using “tweets.” In so doing, this Essay tries to capture some of the key events that have been prominent in the white collar world.
"This Essay first examines corporate criminal liability, looks next at individual liability, and then discusses key statutes and crimes that have been used in the prosecution of white collar criminal activity. In this regard, mail fraud, RICO, and perjury are examined. Sentencing issues and how they have influenced the treatment of white collar crime are tweeted. The ultimate goal of this fictional presentation is to demonstrate a historical overview of white collar crime happenings and is so doing evaluate its progression over time."
(esp)(blogging from Lenox, Massachusetts)
June 12, 2011
Conferences - Lake Tahoe - NACDL White Collar Crime - Turning the Tables on the Government
In the News & Around the Blogosphere
Mark Hamblett, law.com, NYLJ, Lawyer in Mortgage Fraud Is Sentenced to 5 Years (subscription required)
Tracy Breton, Projo.com, RI exec cleared of corruption loses bid for $1.7M in legal fees1:55 PM
DOJ Press Release, Hedge Fund Manager of A&O Entities Convicted in $100 Million Fraud Scheme