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
- Mens Rea Pending State Legislation
- Priority Federal 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.
A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.
When Silence Is Not So Golden
Public Statements Clauses and Interference With a Defendant’s Right to Present a Vigorous Defense
Andrew S. Boutros and Jay Schleppenbach discuss the proliferation of clauses in corporate deferred prosecution agreements and settlement agreements barring company representatives from publicly denying the factual basis of the plea or deferred prosecution agreement. Do these so-called “public statements clauses” interfere with the right to present a defense?
Non-Prosecution, Deferred Prosecution, and Pretrial Diversion Agreements: Just Say No to Pleas
Deferred prosecution agreements are almost exclusively used in corporate prosecutions, but they are occasionally offered to individuals. Non-prosecution agreements, on the other hand, may be easily obtained for fact witnesses when defense counsel does not want to take the chance that a client is more culpable than originally thought. What are the most critical factors that influence prosecutors to enter into an NPA or a DPA?
Long Overdue: Fifth Amendment Protection for Corporate Officers
Professor Tracey Maclin examines and challenges the collective entity rule, which is the Supreme Court’s long-standing view that an individual who works for a company is not protected by the Fifth Amendment when compelled to produce incriminating records that belong to the company. Maclin says the collective entity rule defies the text of the Fifth Amendment, the common law history of the privilege, and the Court’s Fifth Amendment precedents.
- Perspective: Takeaways From the Elizabeth Holmes Verdict
More Bite Than Just Bark: Using Model Rule 4.2’s No-Contact Rule
to Limit the Government’s Contact With Employees of a Represented Company
Andrew Boutros and John Schleppenbach provide practical guidance for white collar practitioners concerning when ABA Model Rule of Professional Conduct 4.2 prohibits the government from contacting and trying to interview employees of a represented corporation. The government may disagree with defense counsel’s interpretation of the rule. At the very least, however, providing notice of corporate representation should open a dialogue that prevents unpleasant surprises with regard to contacts with corporate employees.
Get Smart! The Smartphone Conundrum in Internal Investigations
Whether a defense attorney in an internal investigation represents an employer or an employee, it is imperative that the attorney is prepared for the issues that arise when collecting data from a personal smartphone. The authors outline the nearly infinite universe of potentially collectible data that exists within smartphones. Also, they provide an overview of the rights and interests of the employer and employee. Finally, the authors provide a cautionary note about the scope of internal investigations in which a private company becomes a de facto arm of the government.
Decoding the Crypto Space: Understanding Cryptocurrency in Today’s Criminal Defense Practice
The government’s attempts to regulate cryptocurrencies with existing statutes and traditional law enforcement approaches have resulted in confusing and inconsistent outcomes. Attorneys have faced difficulty in advising clients on how to lawfully use, purchase, and sell cryptocurrencies, particularly in light of the uncertainty concerning how to define and determine which agency has jurisdiction over digital currencies and transactions. What are the trends in prosecution and regulation?
- When Silence Is Not So Golden
Sentencing: The Trial Practice for the 21st Century
Because 90 percent of all federal cases end in a plea deal, criminal defense lawyers have become sentencing lawyers rather than trial lawyers. Defense lawyers should not abandon vigorously defending their clients before juries. The authors suggest, however, that lawyers must begin to view trial preparation through the lens of sentencing.
The DOJ’s Mixed Record on Cases Against Traders
DOJ has had mixed success in the prosecution of traders. Where is the dividing line between illegal activity and savvy trading? Susan Brune and Erin Dougherty review the major categories of recent prosecutions and highlight the key issues that have presented obstacles to conviction – and opportunities for the defense.
- Shifting the ‘Burden of the Defense’ in White Collar Conspiracy Prosecutions
Reconsidering Joint and Several Restitution
Does a common feature of restitution orders – joint and several liability – violate the Excessive Fines Clause? There is “no general federal right to contribution” between co-defendants under restitution orders. This seemingly creates an Eighth Amendment problem in that a defendant can be held jointly liable for a co-defendant’s restitution yet has no right to collect contribution from the co-defendant.
Defending a Client in a Mandatory Self-Disclosure World
Representing Federal Government Contractors in Parallel Criminal, Civil, and Administrative Investigations
Federal contractors often face a “three-headed monster” of parallel criminal, civil False Claims Act, and administrative investigations. Each investigation involves different procedures, different obligations, and different potential sanctions. Sara Kropf and Margaret Cassidy provide practical approaches to developing strategies to help manage risk.
- Understanding Bitcoin in Criminal Defense Cases
- Forfeiture Money Judgments: Will the Supreme Court Clamp Down
- Challenges of Voir Dire in a White Collar Case
White Collar Crime Policy: Beneficial Ownership Provisions Become Law in Defense Spending Act
A law passed in 2020 requires small businesses to file a report listing their beneficial owners to the Financial Crimes Enforcement Network (FinCEN) at a date to be determined after FinCEN has issued implementing regulations. The law does not apply to companies that have more than 20 employees or have more than $5 million in annual gross receipts.
- Guilty Until Proven Guilty: The Prosecution of Public Corruption and White Collar Crime
- Sentencing: The Trial Practice for the 21st Century
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 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.
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.
- White Collar Crime Policy: Supreme Court Vacates Sineneng-Smith Decision
News of Interest
- "Justice Department Promises to Crack Down as Corporate Crime Cases Decline,"
- "Federal Court Says Warrantless Seizure Of Vehicles Over Unpaid Fees Violates The Constitution,"
- "Report Shows Kansas Law Enforcement Seized $21 Million From People, Most Of Whom Were Never Charged With Crimes,"