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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Practitioners defending clients against federal fraud charges or related conspiracy charges should be aware of the Wartime Suspension of Limitations Act, particularly lawyers working on defense procurement cases.

This month Andrew George and Kyle Clark review Cardiac Arrest: Five Heart-Stopping Years as a CEO on the Feds’ Hit-List by Howard Root.

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.

The SEC’s Cooperation Initiative — Nearly Three Years Later, What’s the Deal? William A. Haddad September/October 2012 18 On January 13, 2010, Robert Khuzami, the Securities and Exchange Commission’s (SEC) Director of Enforcement, enthusiastically announced the SEC’s new Cooperation Initiative (t

Jury Instructions: Key Topics in Federal White Collar Cases Susan E. Brune and Laurie Edelstein September/October 2012 26 The right jury charge can make the difference between conviction and acquittal. Take, as a basic example, a criminal securities fraud case in which the government has alleged t