White-Collar Crime: The Crash Course (Page 5)
K. Representing The Main Target
As noted earlier, if you are the primary target of the prosecution, you will want your attorney to conduct, if resources permit, a shadow grand jury. In addition to allowing you to monitor the government’s investigation, this affords you the opportunity to lock in the witnesses’ stories, through affidavits, just like the government seeks to do in front of the real grand jury. In this way, if the witness later changes his story, your attorney’s private investigator can take the stand and impeach him. You should also seriously consider entering into a joint defense agreement with other witnesses, subjects, or targets, in order to be able to trade information, if you so desire, without having it fall into the hands of the prosecution. A word of caution is in order here, though. Prosecutors usually hate joint defense agreements, viewing them as obstructionist in nature. Such agreements often act as great motivators for the prosecution team, which assumes that the alleged crime is even greater than originally anticipated because of all the players involved in the joint defense agreement. Also, many corporations will no longer enter into joint defense agreements with employees and former employees because it is now the policy of the Department of Justice that corporations entering into such joint defense agreements may not be fully capable of cooperating with the government.
A competent white-collar crime attorney should always be keenly aware of the chief law enforcement agent, or case agent, assigned to your case. Being friendly to the case agent is usually highly beneficial, resulting in good will and the obtaining of information. Occasionally you will draw a lazy, inexperienced, or poor agent. Monitor his indiscretions closely. These can be used to good effect at trial, though this is a very dangerous game, as juries typically fall in love with law enforcement agents. You should also consider the use of the media if it will help advance the goals of the case or if the United States Attorney’s Office is leaking to the press. In political corruption cases, for instance, portraying the client as the subject of a political vendetta is, depending on the locale and jurisdiction, sometimes an effective tool. Just make sure that it is the client’s interests being advanced by use of the media, and not the white-collar attorney’s career goals. Also be aware that your white-collar defense attorney’s statements to the media may be used against you, as an admission by an authorized agent, if the federal prosecutor assigned to your case is very aggressive. This is rare, but it does happen.
If the white-collar crime client works in a highly regulated field (such as the securities industry) or controls a company that makes its livelihood through government contracts, the government is in a position to whipsaw the client. The government’s burden of proof is much lighter than beyond a reasonable doubt in the civil and regulatory arena. If the government decides to shut your business down as part of an effort to put pressure on you or to bring about a global settlement, your options can be greatly limited. Moreover, by engaging in parallel civil and criminal proceedings, the government can try and force you in the civil suit or regulatory action to choose between asserting the privilege against self-incrimination, which often has very negative consequences, or testifying and having that testimony available for use against you in the criminal case.
L. Derivative Use Testimonial v. Transactional Immunity
If your attorney is skilled or lucky enough to obtain immunity for you, you should not lose too much sleep worrying over whether the immunity is transactional (that is, covering an entire category of behavior) or derivative use testimonial in nature (that is, covering direct or indirect use of your testimony or statements). Though transactional immunity is preferred, as a practical matter, derivative use immunity is quite broad in scope, and it is extremely difficult to successfully prosecute someone who has been given such immunity as long as the agreement has not been nullified due to the subject’s breach of the agreement. Derivative use immunity can be ordered by the court, pursuant to Title 18, United States Code, Section 6002, or can be negotiated through the vehicle of a letter immunity agreement between your attorney and the AUSA. A prosecutor can also immunize you through the use of pocket or informal immunity. This is an oral offer of immunity, typically given to low level witnesses who have committed some minor wrongdoing and are reluctant to talk. Pocket immunity is every bit as enforceable as the more formal kind if it is given by a federal prosecutor. It is simply more difficult to prove in the event of a dispute. Occasionally, an inexperienced agent will offer pocket immunity to a subject or target, either not realizing what he is doing or not realizing that a particular individual is in fact a key wrongdoer. Most federal courts have held that federal law enforcement agents who offer immunity without the knowledge of federal prosecutors cannot bind these prosecutors.
4. BETWEEN INDICTMENT AND TRIAL
A. Whether And When To Plead Guilty
There can be certain advantages to pleading guilty before, rather than after, indictment. In many federal districts you will never get as good of a plea offer from the government as the offer you get pre-indictment. Also, by pleading guilty at the earliest possible time, that is, at the pre-indictment stage, you may increase your chances of obtaining a 5K1.1 downward departure recommendation from the government under the Guidelines.
On the other hand, if you have the resources to mount a defense, you will often find the most weaknesses in the government’s case after indictment. This is because you will learn more about the government’s case once you start filing motions and obtaining discovery. The government is under no obligation to provide you with discovery materials until after you have been indicted. More importantly, the government is under no obligation to provide you with exculpatory information under the Brady doctrine until the post-indictment phase. The weaker the government’s case is, the more likely you are to prevail at trial or to force the government to offer a better deal. In addition, with respect to the issue of downward departures, now that the Guidelines are advisory, the trial judge has the ability to hand down a sentence significantly lower than the recommended Guidelines range. In effect, the judge can give you his or her own downward departure even without a government recommendation. So, if you decide to wait until after indictment and the obtaining of discovery to enter a plea agreement you can still cooperate with the government and have a shot at a downward departure from either the prosecution or the judge.
B. The Risk Of Going To Trial
Even in our era of advisory Guidelines, there is a tremendous risk for the federal white-collar defendant in going to trial. As noted earlier, most federal judges can be expected to follow the recommended Guidelines range most of the time. Federal prosecutors, through the selective handing out of 5K1.1 downward departures and the manipulation of Guidelines “amount of loss” figures, can dramatically reduce the potential sentence of a cooperating witness. A white-collar crime defendant who opts for trial and loses can easily wind up with a real-time sentence of 10 to 20 years more than that of a cooperating defendant in the same case.
5. GOING TO TRIAL
A. Counsel’s Credibility Is A Key Factor
Your attorney’s credibility, particularly in a white-collar crime case, cannot be emphasized enough. The jury must see your lawyer as a straight shooter. The minute the jury perceives that a white-collar lawyer is engaged in any kind of trickery, the consequences for you will be devastating.
B. State Of Mind Is All Important
Most successful white-collar crime defenses are won on the issue of intent. Your lawyer’s focus must be on convincing the jury that you did not intend to violate the law or to defraud anyone.
C. Taking The Stand
Unless you have a serious criminal record, you should almost always take the stand if you are the defendant in a white-collar crime case. Irrespective of any instruction it receives, the jury will usually not believe that you lacked the requisite criminal intent if you are not willing to look them in the eye and tell them so. We have all heard horror stories about white-collar crime defendants who took the stand and made the government’s case stronger through unbelievable testimony. Nevertheless, I am firmly convinced that in most of these cases the result would have been equally disastrous if the defendant had stood silent. There are exceptions to every rule. The decision whether to take the stand will differ with each individual defendant and case, and will sometimes depend on intangible factors. But all things considered, it is best for the white-collar criminal defendant to testify.
D. Businessman Trying To Run A Real Company
In a white-collar prosecution, your lawyer should seek to convince the jury that you are a responsible citizen– putting people to work, getting things done, and contending with government red tape. The unspoken message should be that your accusers are not doers, but are those who sit back and carp at people who achieve.
E. Don’t Personally Attack The Prosecutor Or Case Agent In Front Of The Jury
It almost never works. It usually helps to sink your case. Most juries bond with the prosecutor and the case agent. Only in the most unusual circumstances, or in cases of clear agent misconduct, should your attorney employ this tactic. The jury must not believe that by acquitting you they are accusing the prosecutor or case agent of anything. Your attorney must convey to the jury through spoken and body language that you both respect the prosecution, but that, in this particular case, the prosecution made a mistake.
F. Do Attack The Cooperator
One of the ways to convince the jurors that the prosecutor made a mistake is to convince them that the main cooperator is a pathological liar who will tell any falsehood he can think up about you in order to get a significant reduction in his own sentence. This is usually pretty easy to do, since most big cooperators are huge liars and do have the potential to get major sentence reductions for their cooperation. Extensive use of the Guidelines and the plea bargain agreement in cross-examining a cooperating witness is advisable. Comparing the possible Guidelines sentence if the cooperator had been tried, convicted and punished for all of his crimes with the possible Guidelines sentence he will receive under the plea bargain agreement is a very effective tool.