Corporate Criminal Defense: Compliance, Investigation, and Trial Strategies

The current focus on compliance, disclosure, enforcement, and penalties continues to increase. As new and sweeping financial reform and other laws are passed and new regulations are promulgated, enforcement activity will continue to be stepped-up and all corporations must be prepared. Corporate Criminal Defense: Compliance, Investigation, and Trial Strategies enables the practitioner to provide the highest quality and most current compliance advice regarding both current and future federal government regulation and scrutiny.

This brand new resource helps practitioners identify the specific areas that leave corporate clients open to legal actions and guides them on how to spot risk-points and respond when a situation arises. Corporate Criminal Defense: Compliance, Investigation, and Trial Strategies provides expert guidance on:

• Addressing the elements, policies, training materials, auditing procedures, and structure of compliance programs.
• Representing corporate officers, directors, boards, and employees.
• Anticipating and responding effectively to DOJ and SEC investigations and enforcement.
• Representing the corporation and its individuals in pre-trial and trial proceedings.

Corporate Criminal Defense: Compliance, Investigation, and Trial Strategies provides clear, concise, and proven answers to these key questions:

• How do you prevent investigations?
• What do you do if an investigation begins?
• What efforts can you make to avoid trial?
• How do you handle a trial if it can’t be avoided?

Only Corporate Criminal Defense: Compliance, Investigation, and Trial Strategies combines practice tips and warnings, checklists, strategic commentary, and primary law interpretation— all in one essential volume.

PART I - AVOIDING GOVERNMENT INVOLVEMENT: RISK MANAGEMENT AND COMPLIANCE PROGRAMS

Chapter 1: CORPORATE RISK MANAGEMENT AND COMPLIANCE PROGRAMS - Martha Stolley and Kelly Moore

• Effective Corporate Compliance Programs
• Elements of an Effective Compliance Program
• Corporate Compliance Officers and Committees

Chapter 2: AFFIRMATIVE OBLIGATIONS TO INVESTIGATE AND REPORT - Edward S. Keefe and Kelly A. Moore

• Background
• Unique Requirements of Sarbanes-Oxley
• Other Sources of Obligations to Self-Report

Chapter 3: CONDUCTING INTERNAL INVESTIGATIONS - Kelly Moore and Amy Schuller

• Introduction
• Initiating the Investigation
• Who Should Conduct the Investigation
• Crafting an Investigative Plan
• Preserving Privilege Protection
• Gathering of Documents and Tangible Evidence
• Witness Interviews
• Developing a Record of the Investigation
• Actions Based on Investigative Findings

Chapter 4: ATTORNEY-CLIENT PRIVILEGE - Leslie Caldwell, Jason Conn, and Eric Sitarchuk

• Background
• Current DOJ Policy
• Genesis of the Current DOJ Policy
• Selective-Waiver and Confidentiality Agreements
• Other Potential Solutions

Chapter 5: VOLUNTARY DISCLOSURE TO AUTHORITIES - Meredith Auten, Leslie Caldwell, and Michael Cleary

• Background
• Benefits and Risks
• Government Programs and Procedures

PART II - DEFENDING AGAINST GOVERNMENT INVESTIGATIONS

Chapter 6: SUBPOENAS - Zane D. Mcmeger

• Grand Jury Subpoenas
• Administrative Subpoenas and Civil Investigative Demands

Chapter 7: SEARCH WARRANTS - Zane Mcmeger and Carlos Montoya

• Background
• The Warrant Requirement and Federal Rule of Criminal Procedure 41
• The Fourth Amendment
• The Exclusionary Rule
• Searching and Seizing Computers
• Privilege Issues
• Warrantless Searches
• Practical Considerations for Companies and Counsel

Chapter 8: OBSTRUCTION-OF-JUSTICE ISSUES - Alicia Villarreal, Diana Cortes, Michael Cleary, and Martha Stolley

• Scope of Statutes
• The Omnibus Clause: 18 U.S.C. § 1503
• Participants in Agency and Congressional Proceedings: 18 U.S.C. § 1505
• Participants in Federal Criminal Investigations: 18 U.S.C. § 1510
• Tampering with Witnesses, Victims, or Informants: 18 U.S.C. § 1512
• Safe Harbor for Attorney Conduct: 18 U.S.C. § 1515
• The U.S. Sentencing Guidelines
• Obstruction Can Be a Two-Way Street

Chapter 9: ELECTRONIC SURVEILLANCE - Colm Connolly

• Electronic Surveillance Generally
• Electronic Surveillance of Communications
• Other Types of Electronic Surveillance
• Stored Electronic Communications

Chapter 10: CYBER-EVIDENCE - Denise Backhouse

• Managing Electronically Stored Information
• The Duty to Preserve Potentially Relevant ESI: Triggers and Timing
• Identifying Discoverable ESI
• Data Preservation and Collection
• Data Analysis and Data Review Technologies
• Production
• Considerations for Counsel: Best Practices for Anticipating and Conducting Internal Criminal Investigations

Chapter 11: EMPLOYEES, OFFICERS, AND DIRECTORS - Brian Privor and Kelly Moore

• Background
• Distinctions Among Witnesses, Subjects, and Targets
• Legal Representation

Chapter 12: SEC DISCLOSURE - Joanna C. Hendon, William H. Kimball, Michelle Park Chiu, and Kerry J. Land

• Background
• Practical Considerations
• Legal and Accounting Principles
• Conclusion

Chapter 13: PARALLEL CIVIL AND CRIMINAL PROCEEDINGS - Jill Baisinger, Saba Bireda, and Nate Andrisani

• Overview
• Parallel Proceedings Are Generally Permissible
• Government Information Sharing in Parallel Proceedings
• Common Constitutional Issues Associated with Parallel Proceedings
• Stays or Other Limitations on Civil Proceedings
• Considerations in Resolving Parallel Proceedings

Chapter 14: UNIQUE PROCEDURES AND CONSIDERATIONS IN TAX CASES - Mark Matthews, T. Joshua Wu, and Neil Gordon

• Investigations of Federal Tax Crimes
• The IRS Criminal Investigation Division
• Case Development
• Investigative Process
• Investigative Tools
• Other Procedures Unique to Tax Cases
• Voluntary Disclosure Program
• Approval Process for Tax Charges

PART III - DEFENDING AGAINST PROSECUTION AND TRIAL

Chapter 15: DISMISSAL OF INDICTMENTS - Meredith Auten and James Carroll

• Background
• The Elements of Federal Indictments
• Contesting Indictments
• Post-Dismissal Proceedings

Chapter 16: CRIMINAL DISCOVERY - Alicia Villarreal, Laura Mc Kaskie, and Lisa Veasman

• Government Discovery Obligations
• Defendant’s Discovery Obligations

Chapter 17: SUPPRESSION - Tiffany Johnson and Mark Srere

• Background
• Procedural Aspects of Motions to Suppress
• Grounds for Suppression of Evidence

Chapter 18: JOINDER AND SEVERANCE - Sarah Montgomery and Mark Srere

• Overview of Joinder and Severance
• Joinder and Severance of Offenses
• Joinder and Severance of Defendants

Chapter 19: UNIQUE ISSUES IN DEFENDING CORPORATE CRIMINAL TRIALS - Eric W. Sitarchuk, Peter M. Smith, and Erin C. Montgomery

• Introduction
• Corporate Criminal Responsibility
• Character Evidence
• Out-of-Court Statements of Employees
• Admissibility of Employee Guilty Pleas
• Expert Testimony Regarding Complex Legal and Regulatory Frameworks

Chapter 20: PLEA NEGOTIATIONS, PROSECUTION ALTERNATIVES, AND COLLATERAL CONSEQUENCES - Nathan J. Andrisani and Jason B. Conn

• Negotiations with the Prosecutor
• DOJ Chain of Command
• Federal Prosecution of Business Organizations
• Alternatives to Prosecution
• Collateral Consequences of Convictions

Chapter 21: CORPORATE SENTENCING - Lisa Tenorio-Kutzkey, Torya Esposito Oliver, and Sean Duffy

• The Federal Sentencing Guidelines
• Calculating an Organization’s Fine Under the Guidelines
• Role of the Prosecutor in Sentencing Decisions
• Enforceability of Guidelines

Table of Cases

Index