"Defending the White Collar Case: In & Out of Court"

LOCATION: Westin DC City Center Hotel, Washington, DC
DATES: October 23-26, 2019

NACDL Board member Barry Pollack's written statement to the House Judiciary Committee regarding federal criminal fraud laws.

Since the turn of the century, the rule of lenity has enjoyed a mini-revival, at least when interpreting a law broadly would expose a defendant to a lengthy sentence disproportionate to the offense. The latest illustration of this trend is Yates v. United States. When punishment would be incommensurate with the offense, defense attorneys should not forget that an argument based on the rule of lenity can have considerable force.

The government’s almost 100 percent success rate in insider trading prosecutions has come crashing up against the Second Circuit’s focus on remote tippee liability in United States v. Newman. If the U.S. Supreme Court agrees to hear Newman, the government’s cause may be helped by United States v. Salman, a Ninth Circuit decision that appears to disagree with Newman.

NACDL National Security Amicus Curiae Briefs

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: A state government's right to regulate traffic flow does not qualify as "money or property" under this Court's applications of the mail fraud statute. The deception charged in this case -- lying about the motivation for state governmental policy -- is not cognizable as fraud under the mail fraud statute.

NACDL amicus curiae brief in support of appellant Joseph P. Nacchio addressing the district court's refusal to allow the defendant to call an expert witness. On March 17, 2008, the court of appeals reversed the defendant's conviction finding that the exclusion of the defense expert was prejudcial error; the government petitioned for rehearing before the full court of appeals.

US District Court Southern District of New York: Walsh v. USA; Memorandum and Order

US District Court District of Connecticut: Copenhaver et. al Indictment - conspiracy to commit mail fraud 

NACDL amicus curiae brief arguing that the appellants were prosecuted under novel theories that expanded the wire fraud statute, i.e., that the appellants engaged in a scheme to deprive Enron of a “property right” to receive a full and fair report of the corporation’s “full and accurate economic information” and deprived the company of an intangible right of honest services of its employees.

Argument: Brief argues that the wire fraud statute (18 U.S.C. §1343) neither creates nor protects a “property right” to “accurate financial information”; that the phrase “scheme to defraud” as used in the statute is limited to schemes in which the defendant obtains money or property; and last, that the jury instructions erroneously extended liability for deprivation of honest services to defendants who worked openly with company employees to the company’s and shareholders’ benefit.

In this case, in which one of the last remaining big accounting firms was essentially driven out of business, the entire conviction hinged on edits made to one memo by one in-house lawyer--edits that any reasonable person would consider permissible and even necessary to the representation of a client. Among many other arguments, NACDL urged in its brief that the trial judge's jury instruction on obstruction of justice criminalized entirely lawful conduct.

Amicus curiae brief in support of defendant-appellees’ petition for rehearing en banc. 

Argument: The panel decision erroneously failed to apply the rule of lenity in its ruling that the Clean Air Act’s ban on releasing hazardous air pollutants are defined more broadly in the criminal context than in the civil context; even if there were some merit in the panel’s ruling, the Act is ambiguous in that regard, which triggers the rule of lenity. The panel decision is also in error in holding that the government may cure an untimely indictment, originally dismissed for failure to state an overt act within the statute of limitations, by filing a superseding indictment within six months of dismissal.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Appellants on rehearing en banc.

Argument: Requiring proof beyond a reasonable doubt that a defendant created a scheme or artifice to defraud “a person of ordinary prudence and comprehension” demarcates the boundary between conduct that is merely unethical and conduct that is unlawful and worthy of criminal prosecution.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Defendants-Appellants in Support of Affirmance of Dismissal of money laundering conspiracy count.

Argument: In that Congress provided an exception to the money laundering statutes, 18 U.S.C. §1956-1957, for bona fideattorneys’ fees – transactions “necessary to preserve” an individual’s Sixth Amendment right to representation—the government’s parsimonious view of what is “necessary” to a defense threatens to hamstring all complex criminal defense efforts by interjecting the threat of prosecution into every monetary transaction over $10,000 in which counsel enters. The threat of possible prosecution of retained counsel in virtually any case may well dissuade attorneys from taking on clients in certain types of cases, thus depriving some defendants of their right to counsel of choice.