• Fifth Amendment,  Grand Jury

    Dante’s Guide: Preparing the Grand Jury Witness

    In the year 1300, at age 35, the narrator of Dante’s Inferno famously finds himself in trouble: Midway in our life’s journey, I went astray             from the straight road and woke to find myself                         alone in a dark wood.  How shall I say   what wood that was!  I never saw so drear,             so rank, so arduous a wilderness!             Its very memory gives a shape to fear.   The grand jury witness finds himself or herself in a position not unlike that of the Italian poet at the beginning of his trek through the Divine Comedy.  The federal grand jury is one of the most…

  • Congressional Investigations,  Fifth Amendment

    Where Did You Go, Batman? Martin Shkreli, Congress, the Fifth Amendment and You

    It does not help that the most recent symbol of the Fifth Amendment is The Joker:   There has been plenty of news coverage about Martin Shkreli, “pharma bro” and alleged securities fraudster, and his appearance before Congress.  (Examples are here, here and here).   The proceeding itself was snarky, entertaining and time-wasting: Congressional testimony is political theater, no more and no less, but some observations are in order for us non-Joker citizens, as well. As a refresher, it never hurts to take a look at what the Constitution actually says: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment…

  • Fifth Amendment,  Legal Education,  Obstruction of Justice,  Presumption of Innocence,  Witnesses

    The Five Best Ways for Your Client’s Employees to Get Indicted

    The nice folks at the Birmingham Bar Association (and white-collar criminal defense lawyer Steve Shaw in particular) invited me to deliver a lunchtime CLE on a white-collar subject of my choice.  The topic ended up being “The Five Best Ways for Your Client’s Employees to Get Indicted.” One could come up with more ways your client’s employees could get indicted, but life is short. Here is the handout: The Five Best Ways for Your Client’s Employees to Get Indicted. Download it.  It’s not legal advice, but it has some fairly useful material about bribery, obstruction and honest-services fraud in the Eleventh Circuit, as well as quotes from Men In Black (1997).  We spent…

  • Compliance,  Fifth Amendment,  International

    The Border, Searches and the Digital Devices of Executives and Employees

    Here’s a story (via @nytimes) about how the border is a back door for device searches. There is, of course, a “border exception” to the Fourth Amendment, a constitutional doctrine that came of age when national physical borders were also, usually, information-borders as well.  Although the discussion in the article takes place in the national-security context, it’s worth American companies giving more careful thought to how they address the way their executives and employees work and travel.  Employees usually love using their own devices and storing company data in ways that are readily accessible to and productive for them. At the border, though, all that corporate data is free game.…

  • Fifth Amendment,  Insider Trading,  Legal Education,  SEC,  Securities Fraud

    Complimentary One-Day Financial Services CLE SuperCourse in NYC

    If you are in the New York area, this is an excellent source of free CLE: Network of Trial Law Firms Financial Services CLE Supercourse When?  Friday, September 20, when experienced financial services practitioners from across the U.S. and Canada convene in New York City.  Breakfast and lunch at the City Bar Building (44th St. near Sixth Ave.) are included.  Presentations are short (20 minutes each). Sign-up?  on-line. Why? I admit it —  I’m speaking (actually, I’m leading a breakout session on “White-Collar Crime.”). Topics: Litigating against FINRA and the SEC 18 USC 1519: The Changing Face of Obstruction Traditional and Alternative Products: Suitability and Supervisory Issues FINRA Arbitration –…

  • Fifth Amendment

    Men In Black, the Salinas Decision and Employee Interviews

      The FBI: Movies and Real Life Beatrice: You here to make fun of me too? Kay: No, ma’am. We at the FBI do not have a sense of humor we’re aware of. May we come in? Beatrice: Sure.                                          — from Men In Black (1997) Set out below is an excerpt from an actual government training-manual on how to interview witnesses.  Coupled with the Supreme Court’s recent decision in Salinas, it bespeaks caution to any corporate officer or employee who submits to a government interview without counsel (or, at least, without preparation by counsel). Ten Techniques for Building Rapport 1) Establish artificial time constraints. Allow the potential source to feel…

  • Fifth Amendment,  Parallel Proceedings,  Trials, Judges and Jurors

    SAC Trader Seeks Access To Some Witnesses In SEC Civil Case – Law Blog – WSJ

    In parallel proceedings, the civil case is frequently stayed pending the outcome of the criminal case.  Sometimes, the stay can significantly hamper the trial preparation of a defendant in the criminal proceeding (for example, by restricting access to cooperating witnesses).    SAC Trader Seeks Access To Some Witnesses In SEC Civil Case – Law Blog – WSJ How does the court best balance these principles?