We wrote earlier this year on the Fourth Amendment issue presented in Maryland v. King: whether a Maryland statute that allows the state to obtain DNA samples via “cheek swabs” from arrested individuals, as one step in the state’s routine booking and processing procedure, is an invalid warrantless search.
Another One Bites the Dust: SEC’s Insider Trading Investigation Strategy Nabs Another Foreign Trader in Nearly Real Time
On June 6, 2013, the Securities and Exchange Commission (SEC) announced [http://www.sec.gov/news/press/2013/2013-102.htm] that it secured an emergency order freezing over $3 million in profits of a trader based in Bangkok, Thailand. The trader is suspected of trading on insider information about the multi-billion dollar acquisition by China-based Shuanghui International Holdings of Smithfield Foods. The speed of the SEC’s investigation is extraordinary and appears to establish its template for future global insider trading investigations, as we predicted back in April.
While the SEC has taken the fast lead on this case, as most experienced defense lawyers will know, the DOJ is surely lurking closely near. We should expect to see criminal action in this case.
The Rise of Multinational FCPA Criminal Prosecutions: First Ever Coordinated French and U.S. Action
On May 29, 2013, the U.S. Securities and Exchange Commission (SEC) and the U.S. Department of Justice (DOJ) joined with French enforcement authorities to announce charges against French-based oil and gas company Total S.A. The SEC entered into a cease-and-desist order against Total, wherein Total agreed to pay disgorgement and prejudgment interest of $153 million. The DOJ filed a criminal information against Total, but promised to dismiss the case if Total behaved for the next three years. This is known as a deferred prosecution agreement. The price tag for the settlement was an additional $245.2 million. According to the DOJ, “French enforcement authorities announced earlier today that they had requested that Total, Total’s Chairman and Chief Executive Officer, and two additional individuals be referred to the Criminal Court for violations of French law, including France’s foreign bribery law.” The alleged conduct in this case is egregious, requiring little comment or insight. U.S. authorities stated:
Update on Missouri v. McNeely: Supreme Court Holds Against Warrantless Blood Tests (Usually).
We wrote in February about the issue pending before the United States Supreme Court in Missouri v. McNeely: whether police can dispense with a search warrant and draw blood from an individual suspected of driving while intoxicated.
Well, in April, the Supreme Court ruled and in a decision authored by Justice Sotomayor held that usually police must obtain warrants in such situations.
Historic U.S., China Agreement on Auditor Access Announced: Is This a Crack in the Wall Separating The Cross-Border Enforcement Cooperation Impasse?
On May 15, 2013, the U.S. Securities and Exchange Commission charged CEO Dejun Zou and board chair Amy Qiu, husband-and-wife executives at China-based RINO International Corporation, alleging that they engaged in a scheme to overstate the company’s revenues and divert $3.5 million in proceeds from a securities offering for their personal use. This would be a routine case – except it involves a China-based company, a jurisdiction that the SEC has found difficult to regulate. For some time now, the SEC has been hamstrung in gaining access to information from China. Today’s historic announcement by the Public Company Accounting Oversight Board (“PCAOB”) may be the first major step in alleviating such difficulties.
Unprecedented FCPA Wake-Up Call for U.S. Broker Dealers and Foreign Banks: Has the Perfect FCPA Storm Finally Arrived for U.S. Financial Markets?
On May 7, 2013, the U.S. Attorney’s Office for the Southern District of New York unsealed extraordinary criminal charges against two registered representatives of a U.S. broker-dealer and a high-level Venezuelan government official for engaging in a “Massive International Bribery Scheme.” What makes this fraud scheme remarkable is that it involves the activities of a U.S. broker-dealer, its client, a foreign-owned and controlled bank, the Foreign Corrupt Practices Act (FCPA) and several suspicious transactions that potentially should have raised concerns—a perfect storm. This case may be the catalyst that jump-starts a government FCPA sweep of Wall Street that has been predicted since 2011, but not realized.
Click here to view the full alert.
DOJ Using WWII-Era Act to Extend Statutes of Limitations
According to the Wall Street Journal, the Justice Department has invoked the 1948 Wartime Suspension of Limitations Act (the “WSLA”) in an effort to aggressively extend and suspend statutes of limitations in alleged financial crimes.
Pursuant to the WSLA, “[w]hen the United States is at war…. the running of any statute of limitations applicable to any offense involving fraud … against the United States … shall be suspended until 5 years after the termination of hostilities. 18 U.S.C. § 3287(c).
Continue reading “DOJ Using WWII-Era Act to Extend Statutes of Limitations”
Can Federal Judges Play Any Role in Plea Negotiations? The Rules Say “No”, But What Should the Remedy Be If the Rule is Broken?
Federal Rule of Criminal Procedure 11(c)(1) is clear. It states that federal judges “must not participate” in plea discussions between a defendant and the United States. There are sound policy reasons that support such a strong line. There is an inherent friction between the roles of judge and participant in plea negotiations. The involvement of a district court judge or Magistrate-Judge in what is by nature a rather adversarial process could easily be perceived a coercive by a defendant, especially if the judge comments, even in passing, on the case’s eventual outcome or the quality of the evidence.
Duane Morris Partner Eric Breslin to Moderate “Brave New World: What the Government’s New War on Computer Crimes Means for Privacy Interests”
Duane Morris partner Eric Breslin will moderate “Brave New World: What the Government’s New War on Computer Crimes Means for Privacy Interests” at the American Bar Association (ABA) Criminal Justice Section’s Fourth Annual Prescription for Criminal Justice Forensics. The panel will occur on Friday, June 7, 2013 from 4 p.m. to 5 p.m.
Click here to read more about the event.
The Foreign Corrupt Practices Act (FCPA) Indictments Related to LATAM Are Unsealed
On April 5, 2013, the Department of Justice (DOJ) unsealed charges against four former executives of BizJet International Sales and Support, Inc., the U.S.-based subsidiary of Lufthansa Technik, AG, a company that provides aircraft maintenance, repair and overhaul services for alleged bribery payments in Latin America. This news comes less than 30 days since our last blog entry, that quoted the warning by Department of Justice, FCPA Assistant Chief James Koukios, who said that the DOJ has “a lot of cases in the hopper” pertaining to Latin America.What can we learn from the latest case unsealed by the DOJ?