Check out Michael S. Pasano's new book, Winning the Acquittal: Tips from a High-Profile Trial.
(esp)
Category: Scholarship
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Check out Ellen C. Brotman's (Montgomery, McCracken, Walker & Rhoads) article: Make Probation a Real Option at Sentencing, 23 Federal Sentencing Reporter 257 (No. 4) (April 2011). Her opening line: "My advice to the Commission is to amend the Guidelines to establish probation as a distinct type of sentence with independent value, rather than as merely a lenient option to be used only in extraordinary cases."
(esp)(hat tip to Evan Jenness)
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The American Bar Association’s Criminal Justice Section is launching a new website that provides up-to-date, practitioner-oriented information and analysis on global anti-corruption matters. Managed by the section’s Global Anti-Corruption Task Force, the site features, among other unique categories of information:
Peer-reviewed articles and analysis from practitioners worldwide;
Up-to-date news reports;
Extensive online resource links;
A library of presentations; and
Notices of upcoming anti-corruption events and seminars.
The task force provides a neutral, practitioner-focused online resource to monitor, evaluate and report on anti-corruption news and developments in transnational anti-bribery efforts. Focus is on the interplay between anti-corruption governmental efforts and the effect that those efforts have on global commerce and business development.
The website’s distinguishing features are: a) all published articles are peer-reviewed and available free of charge online; b) its subject-matter focus covers the globe, and not just the United States; c) published pieces come from leading practitioners and industry leaders from all over the world; and d) its objective is to provide news and analysis that is "for and by" practitioners who are looking for the latest developments and insights in the ever-changing global anti-corruption arena.
The site also provides extensive real-time news announcements and reports on criminal and regulatory enforcement activities relating to the Foreign Corrupt Practices Act, as well as similar international instruments such as the United Kingdom Bribery Act, the German Anti-Corruption Act, Russia’s National Plan for Counteraction to Corruption, and the U.N. Convention Against Corruption.
The Global Anti-Corruption Task Force is co-chaired by Assistant U.S. Attorney Andrew S. Boutros (in his personal capacity) and Perkins Coie Investigations and White Collar Defense Group partner (and former Assistant U.S. Attorney) T. Markus Funk.
A link to the task force website is available here.
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Peter D. Hardy, BNA – CRIMINAL TAX, MONEY LAUNDERING & BANK SECRECY ACT LITIGATION
– An analysis of the law and procedure relating to federal criminal cases handled by the IRS and DOJ, addressing the pragmatic and strategic challenges at every stage of litigation.
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Sara Kropf, Andrew George, William C. Cleveland & Julie Rubenstein, The 'Chief' Problem With Reciprocal Discovery Under Rule 16, The Champion, Sept/Oct. 2010
Charlotte Simon, Ryan D. McConnell, & Jay Martin, Plan Now or Pay Later: The Role of Compliance in Criminal Cases
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Oxford University Press recently published William K.S. Wang & Marc I. Steinberg “Insider Trading” (3d ed. 2010). An abstract can be found on SSRN here.
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Okay, let me take off my white collar defense attorney hat and put on my former prosecutor hat for a minute. Call it my citizenship hat. Don't most of us want real, unadulterated big-time crooks to be investigated and, where appropriate, charged? Where are all the investigations and prosecutions of the accounting control fraud that caused one of the greatest recessions in U.S. history? You know, the current recession.
Back in the late 1980s, when the S&L Crisis hit and the Dallas-based S&L Task Force was formed, federal law enforcement officials quickly realized that, in many instances, colossal fraud had been committed by the very players who controlled the S&Ls. The S&L fraud was overwhelmingly based on sham transactions and sham accounting for those transactions. Massive resources were committed to investigating and prosecuting the S&L fraud. It was understood that the crooked players had hijacked their S&Ls and defrauded depositors and/or the FSLIC. This rather elementary distinction between the savings and loan as an institution and the fraudsters who controlled it was grasped by AUSAs and effectively conveyed to juries across the land.
Nothing like this is happening today with respect to the federal government’s investigation of the housing bubble, liars’ loans, and Wall Street's subprime lending scandal. The overwhelming number of investigations and prosecutions seem to be focused on piker fraudsters—corrupt individual borrowers or mortgage brokers. These cases are easy pickings, but do not get to the massive fraud that clearly permeated the entire financial system.
Professor William Black, of Keating Five fame, has written a scathing piece all about this for the Huffington Post. Here it is. Among Black's revelations? "During the current crisis the OCC and the OTS – combined – made zero criminal referrals." Astounding. These two agencies accounted for thousands of criminal referrals per year during the S&L Task Force years. More fundamentally, Black argues that today's federal prosecutorial authorities do not comprehend that individuals in control of an institution can have an incentive to engage in short-term fraud that enriches them individually while destroying the long-term prospects of the institution and the larger economy.
Nobody should be charged with a white collar crime unless the crime is serious and the prosecution believes in good faith that a jury will find guilt beyond a reasonable doubt. But how about a substantive investigative effort, including commitment of appropriate resources? Why are such huge resources being spent on dubious endeavors like insider trading and FCPA enforcement, while elite financial control fraud goes largely unaddressed? Professor Black's piece is highly recommended reading.
(wisenberg)
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Jonathan C. Cross, law.com, RICO's Post-'Morrison' Reach: Will Other Courts Adopt the 2nd Circuit's Approach?
Margaret Colgate Love, Wash Post, Time to pardon people as well as turkeys, Mr. President
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Cooperation Costs by Miriam H. Baer (Brooklyn) – forthcoming article is Washington U. Law Review – here
SSRN Abstract:
This Article explores the costs and benefits of criminal cooperation, the widespread practice by which prosecutors offer criminal defendants reduced sentences in exchange for their assistance in apprehending other criminals. On one hand, cooperation increases the likelihood that criminals will be detected and prosecuted successfully. This is the "Detection Effect" of cooperation, and it has long been cited as the policy’s primary justification.On the other hand, cooperation also reduces the expected sanction for offenders who believe they can cooperate if caught. This is the Sanction Effect of cooperation, and it may grow substantially if the government signs up too many cooperators, sentences them too generously, or causes them to become overly optimistic about their chances of receiving a cooperation agreement.
When the government allows the Sanction Effect to grow too large, it undermines one of its key tools for improving deterrence. Indeed, when the Sanction Effect outweighs the Detection Effect, cooperation reduces deterrence, and the government unwittingly encourages more crime. Since cooperation is itself administratively costly, the policy perversely causes society to pay for additional crime.
This Article reorients the cooperation debate around the fundamental question of whether cooperation deters wrongdoing. Drawing on economics and behavioral psychology, it provides a framework for better understanding how and when cooperation "works." Government actors who laud and rely on cooperation must address the fundamental question of whether it actually deters wrongdoing. To do otherwise, is to leave society vulnerable to cooperation’s greatest cost.
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With more and more white collar cases experiencing issues that normally would come up in street crime cases, it becomes important to see what is happening with topics such as Miranda. So check out the Harvard Law & Policy Review – Online Jrl article, Death by a Thousand Cuts: Miranda and the Supreme Court’s 2009-10 Term by Anthony J. Franze.
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MattBray.net 