White-Collar Criminal Law

June 21, 2013September 9, 2014 by Duane Morris

Second Circuit Shifts Burden of Showing Assets to Defendants; Clarifies Monsanto Decision

Both civil and criminal agencies charged with enforcing U.S. laws have turned increasingly to broad based use of “asset freeze orders.” Legal counsel and their clients should understand the issue, particularly as there is a split in the Circuits and the Supreme Court has not yet addressed the issue. On June 19, 2013, the U.S. Court of Appeals for the Second Circuit issued an opinion “clarifying” its 1991 decision in U.S. v. Monsanto, where it held that a (criminal) defendant who wishes to use frozen funds for their defense is entitled to a pretrial hearing to determine whether there is probable cause to believe the defendant committed the crimes that formed the basis for the forfeiture and whether the funds are forfeitable. In U.S. v. Bonventre, the Second Circuit ruled that a defendant must first make a “threshold showing” that a Monsanto hearing is warranted.

Click here to read the full Alert.

June 17, 2013September 9, 2014 by Eric R. Breslin

Supreme Court Permits DNA Sampling of Persons Arrested, But Not Yet Convicted, in Maryland v. King

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.

Continue reading “Supreme Court Permits DNA Sampling of Persons Arrested, But Not Yet Convicted, in Maryland v. King”

June 12, 2013September 9, 2014 by Mauro M. Wolfe

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.

Continue reading “Another One Bites the Dust: SEC’s Insider Trading Investigation Strategy Nabs Another Foreign Trader in Nearly Real Time”

June 3, 2013September 8, 2014 by Mauro M. Wolfe

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:

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May 28, 2013September 8, 2014 by Eric R. Breslin

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.

Continue reading “Update on Missouri v. McNeely: Supreme Court Holds Against Warrantless Blood Tests (Usually).”

May 24, 2013September 8, 2014 by Mauro M. Wolfe

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.

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May 14, 2013September 8, 2014 by Mauro M. Wolfe

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.

May 3, 2013September 8, 2014 by Daniel R. Walworth

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).

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April 22, 2013September 8, 2014 by Eric R. Breslin

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.

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April 12, 2013September 8, 2014 by Eric R. Breslin

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.