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Developing resources and education opportunities for the white collar criminal defense bar is also a top priority. Through cutting edge white collar CLE programs, an active white collar crime discussion community, and an engaged white collar defense committee, NACDL brings together the best-informed criminal defense attorneys to share information and strategy. Exclusive for NACDL Members, NACDL maintains a briefs and motions bank dealing specifically with white collar crime. The White Collar Department also conducts webinars and publishes cutting-edge policy analysis on emerging issues in white collar enforcement.
Detailed information about NACDL’s white collar initiatives and links to resources can be found on the following pages.
- Overcriminalization Reform
- Federal Discovery Reform
- Conspiracy Reform
- Computer Fraud and Abuse Act (CFAA)
- Forfeiture Reform
- Prosecutorial Misconduct
- Foreign Corrupt Practices Act (FCPA)
- Advocacy Letters & Testimony
- White Collar Amicus Briefs
- Federal Legislation
- Computer Fraud & Abuse Pending Legislation
- Public Corruption Pending Legislation
- Mens Rea Pending Legislation
- White Collar Sentencing
- White Collar Issue Areas
- White Collar Education
- White Collar Discussion Group (members only)
- NACDL Legal Resource Center
- White Collar On The Web
- White Collar Crime Prof Blog
Tiffany May Joslyn White Collar Crime Policy Externship/Internship
The National Association of Criminal Defense Lawyers is looking for an enthusiastic and productive law student intern with a commitment to criminal defense issues to engage in a variety of projects related to federal policy analysis, nonprofit advocacy, and criminal defense scholarship. The Tiffany May Joslyn White Collar Crime Policy Internship was created in memory and honor of Tiffany Joslyn’s significant contributions to the cause of criminal justice reform, particularly in the areas of white collar and regulatory crime, overcriminalization, and the erosion of due process protections in the criminal justice system. This internship will afford a law student specifically interested in the area of white collar crime and policy with the opportunity to work directly with and learn first-hand from leaders in the field at NACDL. Learn more about this opportunity.
On May 26, 2016, NACDL co-hosted a free law and policy symposium with the U.S. Chamber of Commerce’s Institute for Legal Reform entitled The Enforcement Maze: Over-Criminalizing American Enterprise. The day-long symposium featured key leaders from industry, academy, law, and policy across the political spectrum. Together they addressed the rise of overcriminalization, the inappropriate criminalizing of civil and regulatory matters, why laws need criminal intent requirements, fundamental flaws with the plea bargaining process, criminal discovery abuses and inadequacies of the grand jury process, as well as the use of certain pressures associated with enforcement against business and corporate individuals. For more information, see videos and commentary about the symposium.
At its spring 2015 meeting in Las Vegas, NACDL’s Board of Directors unanimously approved a resolution on criminal conspiracy law reform. The resolution is guided by a position paper drafted by NACDL’s Conspiracy Reform Subcommittee and adopts the recommendations therein. Before approving the resolution, the Board received a presentation by Subcommittee Co-Chairs Steven Morrison and John Cline on the flawed nature of existing criminal conspiracy law and the critical need for reform. The presentation focused on how existing conspiracy law results in possible constitutional violations, evidentiary unreliability, and false convictions. The Co-Chairs also presented the recommendations contained in the position paper, which would address, among other things, the overt act requirement, jury instructions, Pinkerton liability, and more. Read the Board resolution.
On November 17, 2014, at the National Press Club in Washington, DC, NACDL officially released its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School. Complete copies of the report, executive summary, and fact sheet are available at www.nacdl.org/discoveryreform/materialindifference. Watch C-SPAN3's video coverage of the launch event.
Pre-Trial Suppression & Fourth Amendment Issues
This Trial Guide is a topical and practical handbook examining the nuts and bolts of the most current Fourth Amendment & Pre-Trial Suppression issues encountered in modern criminal cases.
Defense Counsel Playbook for Eyewitness ID Cases
This Trial Guide was written to help counsel use existing case law to its strongest advantage, and to create a framework for appellate challenges urging courts to adopt leading cases.
Ultimate Cross 2.0
This special CLE compilation program includes the highest-rated presentations on Cross-Examination techniques from NACDL's most recent seminars (2017-2019).
Forensic Sciences in Criminal Cases: A Multidiscipline Primer
In order to challenge forensic evidence, experts, reports and findings commonly encountered in the courtroom, an attorney must first have a basic understanding of the forensic issues that they will be confronting.
White Collar Crime Policy: Supreme Court Vacates Sineneng-Smith Decision
Ruling Immigration Law Unconstitutionally Overbroad, But Door Remains Open for Future Challenges
The Supreme Court in Sineneng-Smith did not directly rule against the argument that 8 U.S.C. § 1324(a)(1)(A)(iv) is unconstitutionally overbroad. But it is possible that this statute may be challenged in the future.
The Right to Control Theory — What It Is, How It Is Used, and How to Defend Against It
Jennifer Bouriat provides an overview of the mail and wire fraud statutes and the right to control theory, a brief history of the pertinent case law that has shaped the theory, and an overview of the circuit split on the validity of the theory. She offers key points to consider in defending a mail and wire fraud case.
The Public Corruption Trial: A Checklist
Few areas in the white collar world are in as much upheaval as law and practice under the federal honest services statute, but public corruption investigations continue at a quick pace. The authors provide practical suggestions about how to shape and present a defense – from a theory of the case and in limine motions to jury instructions and post-trial advocacy.
Practice Points: Joint Defense Agreements:
An Ounce of Prevention Can Be Worth a Pound of Cure, Especially When Careful Planning Avoids Ethical Pitfalls
Defense attorneys Andrew Boutros and John Schleppenbach provide proactive guidance for white collar practitioners on avoiding ethical traps – such as a potential conflict of interest – when entering into joint defense agreements.
A Survey of Federal Proffer Agreements:
The Shortcomings and Pitfalls in the Government’s Promised Protections
Proffer agreements may appear to extend some assurance to the defense that statements made during a proffer will not be used against the potential defendant in the future. A closer examination, however, may reveal that the shelter they provide is far less than it might seem. It is important to approach such interviews with caution.
- White Collar Crime Policy: The Perjury Factory in White Collar Cases
A Primer on Financial Records in Economic Crime Cases
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.
Applying the Per Se Rule in Criminal Antitrust Cases Contravenes the Constitution and Sherman Act
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.
- White Collar Crime Policy: Supreme Court Vacates Sineneng-Smith Decision
Challenges to Obtaining Foreign Evidence in Cross-Border Criminal Cases
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.
Theft of Trade Secrets: The Economic Espionage Act, China Initiative, and Silicon Valley
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.
Honest-Services Fraud in the Private Sector After Skilling v. United States
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.
Defending Hippocrates: Representing Physicians in the Wake of the Opioid Epidemic
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.
Is It Time to Revisit the Corporate Privilege Against Compelled Self-Incrimination?
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.
Storm Clouds on the Horizon: Private Equity and the False Claims Act
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.
- White Collar Crime Policy: Wartime Suspension of Limitations Act
- Book Review: Cardiac Arrest by Howard Root and Stephen Saltarelli
Harjo v. City of Albuquerque: A Road Map for Challenging Government Forfeiture Programs
The city of Albuquerque seized Arlene Harjo’s car after her son borrowed it and was arrested for DUI. Her case shows that a forfeiture statute may appear constitutional on its face but, in actuality, may provide improper financial incentives to prosecutors and police to seize citizens’ property for their own or their organization’s benefit. The Harjo case offers lessons on how to successfully mount a due process challenge to forfeiture statutes.
Criminal Forfeiture Case Law Updates
Asset forfeiture – also called “policing for profit” – has come under scrutiny from courts and legislatures. Elliot Abrams provides defense lawyers with recent updates to forfeiture law, primarily focusing on pretrial seizure and attorney’s fees. Courts are taking a hard look at forfeiture and pretrial seizures, and lawyers should continue bringing statutory challenges to actions that appear to violate statutory language or a defendant’s fundamental rights.
An American Lawyer in Queen Elizabeth’s Court: How NACDL Highlighted the International Consequences
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.
- Challenges to Obtaining Foreign Evidence in Cross-Border Criminal Cases
Handling SEC Enforcement Matters
Although the Securities and Exchange Commission is a creature of administrative law, criminal defense lawyers possess the strong advocacy skills that will enable them to handle SEC cases. It is important, however, to know how the landscape at the SEC differs from criminal defense forums. Susan Brune and Juliet Hatchett make the comparisons, point out the contrasts, and for the benefit of criminal defense practitioners who have not yet had the opportunity to deal with the SEC, demystify the process.
- Handling SEC Enforcement Matters
News of Interest
- "2nd Circuit Upholds Convictions Over College Basketball Recruiting Fraud, Limiting Impact of 'Bridgegate' Reversals,"
- "Could SC cops be banned from keeping money seized in cases? Supreme Court hears arguments,"
- "FBI Increasingly Probes for Corruption Overseas,"