Department of Justice prosecutors should be held to the highest standard of behavior, as the proverbial strikers of hard blows, but fair ones, but the Eighth Circuit recently had to step in to prevent prosecutorial overreaching in attempting to squeeze unfair advantage out of a proffer agreement.
There are a variety of circumstances under which investors may provide sensitive tax-related information to the Securities and Exchange Commission; they may be victims of securities fraud eager to assist the SEC in recovering lost monies or, under the SEC’s newly-developed policy of encouraging and rewarding cooperation — previously reported here — they may be low-level… Continue Reading
More than twenty years ago the Supreme Court decided the case of Braswell v. United States, 487 U.S. 99 (1988), in which the Court extended to even small, closely-held corporations the principle that corporate entities have no Fifth Amendment privilege to assert in opposition to a subpoena seeking corporate records. In its famous, and tantalizing, footnote 11,… Continue Reading
Monte McFall, a local California lobbyist and ex-officio staffer for an elected official, was charged in a Hobbs Act conspiracy for allegedly coercing a state contractor into paying McFall a fee in exchange for McFall’s assistance in securing funding. The co-conspirator, a lawyer and crony named Sawyer, had earlier testified at length in the grand… Continue Reading
Practitioners have long understood that there is some psychic, but little practical, value in securing from the government a letter attesting that the client is not, based on the information then known to the prosecutor, currently considered a target of a grand jury investigation. Such letters are generally heavily caveated, making it clear that the… Continue Reading
Generally, the Supreme Court has approved the Government’s use in a criminal case of evidence gathered in a related civil proceeding, often by a civil agency of the Government. The leading authority in this area is United States v. Kordel, 397 U.S. 1 (1970). The Kordel Court, addressing the criminal use of evidence garnered by the FDA,… Continue Reading
It is often exceedingly difficult for a defense attorney to obtain access to the legal instruction given by the prosecutor to a grand jury. Under Fed. R. Crim. P. 6(e)(3)(E)(ii), discovery of grand jury proceedings may be granted where "a ground may exist to dismiss the indictment because of a matter that occurred before the grand… Continue Reading