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?

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.

President-elect Gerald B. Lefcourt, Asset Forfeiture Abuse Task Force co-chair E.E. (Bo) Edwards, Attorney David B. Smith, and Susan Davis' written statements to the House Judiciary Committee regarding Civil Asset Forfeiture Reform Act of 1997 (H.R. 1965).

NACDL adopts recommendations to address the aforementioned flaws through reforms to the applicable securities laws and the rules governing the SEC administrative proceeding process.

The trial of Elizabeth Holmes showed our criminal legal system at its best.

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.

NACDL frequently testifies or provides comments on new and evolving criminal legislation and policies affecting white collar-related criminal law. This includes live testimony before the House and Senate Judiciary Committees and the U.S. Sentencing Commission, as well as written testimony, letters, and commentary submitted to Congress, the U.S. Sentencing Commission, the Securities and Exchange Commission, and other executive branch agencies.

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.

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?

Todd Haugh, Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases, American University Law Review 62(1) (October 2012), available at http://ssrn.com/abstract=2163644

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.

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.

How can a defense attorney minimize the potentially long-lasting impact of burdensome pretrial release conditions? How can the defense attorney engage in meaningful review, especially when the assistant U.S. attorney refuses to produce an exhibit list?

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.

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.