Summary
Twelfth Survey of White Collar Crime
A number of criminal procedure issues are of particular importance in white collar crime prosecution and defense. Criminal and civil proceedings are often brought in tandem because of the many remedies, including forfeiture and restitution, that are available. Discovery in parallel proceedings can pose a threat to the Fifth Amendment rights of the defendant. The US Attorney's subpoena power may pose a threat to the attorney-client privilege, particularly if the client is a corporation, not an individual.See the full content of this document
Extract
Procedural issues.
I. INTRODUCTION II. INITIATION OF PROSECUTION
A. The Grand Jury 1. Standard of Review for Grand Jury Error 2. Prosecutorial Misconduct B. Document Production 1. Fifth Amendment Aspects of Document Production 2. Act of Production Doctrine 3. Collective Entity Doctrine 4. Required Records Exception 5. Immunity 6. Computer Records as Evidence III. PARALLEL CIVIL LITIGATION A. Standards for Parallel Discovery 1. Internal Revenue Service 2. Other Government Agencies B. Stays and Protective Orders 1. For the Benefit of Private Parties 2. For the Benefit of the Government C. Disclosure of Grand Jury Materials 1. Matters Occurring Before the Grand Jury 2. Preliminary to or in Connection with a Judicial Proceeding 3. Balancing Test and Particularized Need D. Constitutional and Procedural Considerations 1. Fifth Amendment--Double Jeopardy 2. Fifth Amendment--Self-Incrimination 3. Fifth Amendment--Due Process 4. Sixth Amendment--Right to Counsel 5. Eighth Amendment--Excessive Fines Clause 6. Note on Collateral Estoppel IV. SPECIAL CONSIDERATIONS FOR ATTORNEYS A. Subpoenas Served on Attorneys B. Attorney-Client Privilege 1. Exceptions to the Attorney-Client Privilege 2. Waiver of the Attorney-Client Privilege 3. Attorney-Client Privilege and the Corporate Client 4. Enforcement Actions Against Attorneys and Potential Criminal Liability. C. Attorney Fee Forfeiture D. Status of the Thornburgh Memorandum. I. INTRODUCTION This article discusses criminal procedure, emphasizing issues which are particularly relevant to white collar crime litigation.(1) Section II discusses the initiation of white collar criminal prosecutions. Section III examines the concerns that arise from parallel civil and criminal proceedings. Finally, the special issues faced by lawyers litigating white collar crime cases are addressed in Section IV. II. INITIATION OF PROSECUTION A prosecutor has enormous discretion in determining whether and how to charge a defendant. In United States v. Batchelder,(2) the Supreme Court examined this discretion, holding that it is within the prosecutor's power to charge a defendant under the more severe of two overlapping statutes.(3) The Court in Batchelder upheld such discretion in the face of a variety of constitutional challenges.(4) Where statutes overlap, a defendant can avoid prosecution under the earlier, more severe statute only if the intention to repeal it is clearly manifested in the language or legislative history.(5) Also, a defendant may succeed in a challenge based on racial or other invidious discrimination,(6) but must establish that similarly situated individuals of a different race were not prosecuted.(7) A. The Grand Jury The Fifth Amendment mandates that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."(8) Therefore, a grand jury indictment is a necessary precursor to the prosecution of any federal felony.(9) A grand jury is a "jury of inquiry . . . whose duty is to receive complaints and accusations in criminal cases, hear the evidence adduced on the part of the state, and find bills of indictment in cases where . . . a trial ought to be had."(10) A grand jury does not adjudicate guilt or innocence;(11) rather, it determines whether there is probable cause for a trial.(12) Acting both as a "shield" and a "sword," the grand jury protects the accused from "ill-conceived and malicious prosecutions," but also assists the government in investigating crimes.(13) It is extremely difficult for a defendant to succeed in having a grand jury indictment dismissed.(14) This difficulty results from grand jury secrecy rules,(15) the limited discovery allowed to defendants,(16) the inapplicability of many trial safeguards to grand jury proceedings,(17) the government's power to reindict once an indictment is dismissed,(18) and the application of the harmless error rule to errors occurring during grand jury proceedings.(19) A defendant asserting defenses or objections based on defects in the indictment must do so prior to trial, unless the challenge is based on the indictment's failure to establish jurisdiction or to charge a crime.(20) Furthermore, a guilty verdict returned by a petit jury generally establishes that any error in the grand jury proceedings was harmless.(21) The following sections describe (1) the standard of review used in deciding whether error in grand jury proceedings warrants the dismissal of an indictment, and (2) prosecutorial misconduct. 1. Standard of Review for Grand Jury Error In Bank of Nova Scotia v. United States,(22) the Supreme Court reaffirmed that the "harmless error rule" set forth in Rule 52(a) of the Federal Rules of Criminal Procedure(23) generally governs error in grand jury proceedings.(24) The Court held that while a court may invoke its supervisory powers(25) to dismiss an indictment, it may o...See the full content of this document
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