• Cooperation Agreements,  Special Counsel

    The Winter Olympics of Cooperation: The Bridge On The River Kwai, White-Collar Self-Image and Federal Sentencing

    With all of the discussion  about Special Counsel Robert Mueller and his “cooperators,” now is an appropriate time to revisit the basics of “cooperation” in white-collar investigations. “Cooperation” is a complex concept for individuals and businesses caught up in white-collar criminal cases, compliance reviews and breakdowns of business ethics.  As with the more obscure or corrupt Winter Olympic events, there are ways to demystify the complexity, but it is not easy. In David Lean’s 1957 film The Bridge On The River Kwai, we see cross-currents of duty, vainglory, cooperation, resistance, collaboration and death.  (We also hear some great whistling, but that is another matter).  All of these ideas and emotions come…

  • Cooperation Agreements,  Special Counsel

    Cooperation, and Something to Cooperate With

    From The Hill: With Mueller’s probe advancing behind closed doors, it is impossible for onlookers to judge the value or extent of any one witness’s cooperation. At the same time, observers say the deals Mueller has struck signal he believes their cooperation to have significant value. “If they have struck a deal where they’re going to cooperate, then that’s a pretty good indication that special counsel’s office believes they have something worth cooperating over,” said Jack Sharman, a former special counsel to Congress for the Whitewater investigation. Read the full story by Morgan Chalfant here.

  • Cooperation Agreements,  Deferred Prosecution Agreements,  Internal Investigations

    The Yates Memo and Three Dog Night

    Deputy Attorney General Yates Unless you have been on a monastic retreat or hidden as carefully as Hillary Clinton’s email server, you have by now likely read reports and analyses of the “Yates Memorandum,” a policy document issued by Deputy Attorney General Sally Yates entitled “Individual Accountability for Corporate Wrongdoing.” (Here is the document:  Yates-Memo-Prosecution-of-Individuals.pdf ). In this essay, I focus on one particular aspect that may be crucial for companies, their boards of directors, their audit committees and law department: The timing of potential disclosures to the Government and the degree to which outside counsel needs to have comfort that what he or she is relating to the Government…

  • Cooperation Agreements,  Presumption of Innocence,  Sentencing

    Why Innocent People Plead Guilty: Judge Rakoff, Eddie Coyle, Albert Camus and Sweet Dreams of Oppression

    If they give awards for “Best White-Collar Article of The Year,” I wish to nominate one.  And it’s not even, strictly speaking, an article only about white-collar crime. Jed Rakoff is a federal district judge in the Southern District of New York (in other words, in Manhattan).  We have mentioned Judge Rakoff before, here and here.  He also famously criticized DOJ’s failure, as he perceived it, to prosecute individual executives in the financial crisis. Here, he has a thoughtful article on Why Innocent People Plead Guilty. Portions bear quoting at some length: The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the…

  • Brady/Giglio,  Cooperation Agreements,  Witnesses

    The Agatha Christie School of Cooperating Witnesses

    From Lawrence S. Goldman and our friends at White Collar Crime Prof blog, a summary of a Second Circuit decision  addressing (1) the extent to which prosecutors can “bolster” cooperating witnesses’ testimony by relying on their cooperation agreements and (2) whether or not the tardy production of Brady and Jencks material matters.   (Answer: it doesn’t).  In particular: The opinion also excuses, but does not condone, the improper failure of the government to turn over handwritten notes by a testifying agent which were discovered in the later examination of another agent and belatedly revealed to the defense.  The notes should have been revealed earlier, says the Court, not only since they included…

  • Cooperation Agreements,  Parallel Proceedings

    For Corporate Counsel || Stalking Horses, Pitchfork Crowds, Narrow Neckties, Mr. Rogers’s Slippers and Indicted Employees: 6 Steps To Dodge Being Deweyed

    You may (or may not) recall the Boy Scout Law: “A Scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, friendly, brave, clean and reverent.” Your corporate employees, officers and colleagues may exhibit all, some or none of those characteristics.  Even if one masters all the peculiars of the Boy Scout Law, however, strict adherence is no shield against indictment in the situation where one moves from “witness” to “target” for reasons outside the control of the “Scout.” So: herewith 6 lessons to heed if you wish to avoid ending up like a young man named Zachary Warren.   It is unusual for the government to indict leaders of…