ABA Criminal Justice Section White Collar Crime Committee Newsletter

Newsletter of the ABA Criminal Justice Section's White Collar Crime Committee

February 2008

New Book from CJS

By Stephen Saltzburg

A compilation of high profile criminal cases, practice tips, legal analyses, and cautions that prepares defense counsel, prosecutors and judges to do outstanding work at trial and assists them in ensuring that justice is done each day in every court throughout the land.

New Product:
ABA Standards for Criminal Justice, Third Edition: DNA Evidence

The "black letter" Standards contained and discussed in this publication relate to collecting, preserving and use of DNA evidence, DNA testing, pretrial proceedings, trial, post-conviction, charging by DNA profile, and DNA databases.

Upcoming Event:

2008 CJS Spring Conference:

Superior Direct and Cross-Examination

April 4, Charleston, South Carolina

Criminal Justice Section Spring Meeting, April 3-6

Section News:

CJS Policy Updates

Legislative Update

Recent Amicus Brief: ABA Asks High Court to Support Law Requiring Citations

Weekly Criminal Justice News Round-Up

E-News

WCCC Contacts

WCCC Home Page

ABA CJS Home Page

Co-Chairs Column
By Gary Collins and Janet Levine

Thanks to the structural changes forged by our predecessors the White Collar Crime Committee remains the “premier forum for white collar crime issues nationally and internationally.” Our membership and attendance at our programs continues to grow. Regional committees continue to form and to thrive; the programming and activities of established regional committees continue to expand.

Message from the Newsletter Subcommittee

Co-Chairs
By Amy Carpenter-Holmes and Benjamin Gluck

We are very pleased to present the latest edition of the White Collar Crime Subcommittee newsletter. This edition of the newsletter covers important and timely issues from across the white collar world. First, David DuMouchel, George Donnini, and Joseph Richotte evaluate the impact of Gall and Kimbrough on sentencing advocacy for white collar defendants from the perspective of both the prosecution and the defense. Mark Mermelstein and Charlotte Decker discuss what civil attorneys need to know about criminal law and in particular, the difficulties civil attorneys may face in determining the line between zealous advocacy and potential obstruction of justice. Douglas Whitney examines the implications of the government’s expansive theory of obstruction of justice for counsel and company that conduct internal investigations. Finally, David Roth and Brian Flack discuss the issue of whether a special joint defense instruction should be given to juries in conspiracy cases.

We are also pleased to include a Book Review and Committee News section to share some of the events and activities of the various subcommittees.

Sentencing Advocacy for White Collar Defendants: Show Some Gall

By David F. DuMouchel, George B. Donnini, and Joseph E.

Richotte

On Monday, December 10, 2007, the United States Supreme Court issued two sentencing decisions that are likely to have a significant effect on sentences in white-collar cases, although neither case involved white-collar defendants. These two cases build upon the Court’s decisions in Booker and Rita. The Court reaffirmed that the sentencing guidelines are advisory, that the district courts have wide discretion to impose sentences under § 3553(a), and that appellate courts are limited to a deferential, abuse-of-discretion standard of review of criminal sentences.

What Civil Attorneys Need To Know About Criminal Law

By Mark Mermelstein and Charlotte Decker

Some careers are known to be risky, but the practice of law isn’t typically one of them. Yet, lawyers are exposed daily to the scary risk of criminal consequences for the practice of law. Terry Christensen, a respected member of the California bar, hired a private investigator, Anthony Pellicano, for a client’s divorce case. Christensen now finds himself charged in a criminal indictment, which alleges that the investigator conducted illegal wiretaps and Christensen used information gleaned from the wiretaps to secure a litigation advantage. Christensen faces two counts of conspiracy and wiretapping. Whatever the outcome of the case, Christensen – a civil attorney litigating a civil case – has been charged with crimes, and the fact that he may be vindicated at trial will do little to remedy the damage to his reputation.

Navigating the Perils of Internal Investigations in Light of the DOJ's Expansive Theory of Obstruction of Justice

By Douglas E. Whitney

In two unrelated cases in 2004, the Department of Justice brought obstruction of justice charges against company employees who, according to the government, intentionally misled the law firms conducting internal investigations on their employer’s behalf. The government’s theory in those cases -- that the federal obstruction of justice statutes criminalize knowingly false statements made during the course of internal investigations -- dramatically increased the risks for employees participating in such investigations. Although the government’s expansive obstruction of justice theory has received mixed receptions from the courts, it is nonetheless clear that, three years later, this theory continues to have important implications for counsel and companies that conduct internal investigations.

Special Joint Defense Instructions in Conspiracy Cases

By David E. Roth and Brian L. Flack

It has long been acknowledged that criminal conspiracy prosecutions present unique and troubling dangers for defendants. Justice Jackson’s oft-quoted description of conspiracy as an “elastic, sprawling and pervasive offense . . . . so vague that it almost defies definition” rings as true today as it did in 1949. See Krulewitch v. United States, 336 U.S. 440, 445-46 (1949) (Jackson, J., concurring). As the government continues to expand the limits of the conspiracy statute, ensnaring more and more defendants and alleging increasingly complicated criminal enterprises, the inherent risks in multi-defendant, “mega trial” conspiracy prosecutions are stretching judicial resources and creating fundamental constitutional problems.

Book Review By Stephen D. Miller

Business and Commercial Litigation in Federal Courts, Second Edition: A Treatise for Federal Criminal Practitioners

Business and Commercial Litigation in Federal Courts (2nd Edition) could have been titled “Civil and Criminal Litigation in Federal Courts.” This fine treatise was written primarily for federal commercial practitioners, but it is a valuable resource for federal criminal practitioners as well. In fact, the eight volumes of BCL cover a wide spectrum of procedural issues facing criminal practitioners in the preindictment, pretrial, and trial stages of a federal criminal case.

Committee News

Events and activities of the various subcommittees

If you are interested in contributing to the next edition of the newsletter, please send your articles and/or subcommittee announcements to either Amy Carpenter-Holmes (acarpenter-holmes@mckeenelson.com) or Benjamin Gluck (bng@birdmarella.com) by April 18, 2008.

The opinions expressed are those of the authors and shall not be construed to represent the policies or positions of the ABA or the ABA Criminal Justice Section.

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