November 2000 -- Reversing a Conviction When the Government’s Witness Lied By Kathryn Keneally In last month’s issue of The Champion, the RICO Report set out a valuable analysis of the standards that courts have applied when confronted with evidence of perjury on a motion for a new trial.1 Now comes a report from NACDL members Robert E. Welsh, Jr., Catherine M. Recker, and NACDL life-member Peter Goldberger of their success, after a multi-year battle, of reversing their client’s conviction in the face of perjury by a government witness. --more--
October 2000-- New Trial Motions Based on Evidence of Perjury: What Standard Applies? By Barry Tarlow Rule 33 of the Federal Rules of Criminal Procedure states, rather obliquely, that the district court may grant the defendant a new trial “if the interests of justice so require.” Although the rule establishes a three year time limit on motions for new trial based on newly discovered evidence, it does not articulate any standards for determining when such a motion should be granted. more December 1999-- Defense Discovery in White-Collar Criminal Prosecutions: Federal Rule of Criminal Procedure in Subpoenas By Peter J. Henning Defending a white-collar case requires access to more than just what the prosecutor has, because what may be relevant to the grand jury's probable cause determination and proof of guilt may not encompass the documents needed to mount a credible defense. more December 1999-- RICO Report By Barry Tarlow Reflections on the Passing of a True Champion; Reminding Federal Prosecutors To Play by Their Own Rules; Ethical Restraints on Law Enforcement Contact with Corporate Employees more November Issue '99 -- Defense Discovery of Documents in White-Collar Criminal Prosecutions By Peter J. Henning The white-collar defendant, under Fed. R. Crim. P.16(A)(1)(C), must have access to the documents in the government's paper trail to mount a defense. The trick is the defendant must show what is in the records before being allowed to review them. more November Issue '99 -- White-Collar Crime By Kathryn Keneally The Line Between a Bargain and Extortion more November Issue '99 -- RICO Report By Barry Tarlow Judge Rejects Miami Prosecutors' Use of RICO to 'Regulate' Criminal Defense Practice; Unanimous Verdicts -- Surprising Supreme Court Reversal in CCE Case, But How Far Will It Extend?; Everybody's a Critic in Failed New England Mob RICO Prosecution more Sept/Oct Issue '99 -- RICO Report By Barry Tarlow Thai Citizen Finally Returned Home After Lesson in American 'Injustice'; Statute of Limitations and the Continuing Scheme more Sept/Oct Issue '99 -- Informal Opinion By Diarmuid White The Cooperation Market and the Co-Opting of Criminal Defense Attorneys more August Issue '99 -- White-Collar Crime By Kathryn Keneally District Court Relies on Rule 41[e] To Set Limits Upon the Government's Retention of Seized Evidence; Sometimes the Government Will Do as it Pleases -- more -- August Issue '99 -- RICO Report By Barry Tarlow Proffer Evidence to the Prosecution? Only if Your Client Plans To Plead Guilty; Defense Victory Subverted: Prosecutor's Disparagement of Defense Counsel Results in Waiver of Attorney-Client Privilege; Giglio Disclosure: Prosecutors Just Don't Get It -- more -- July Issue '99 -- RICO Report By Barry Tarlow Yes, Daubert's 'Gatekeeping' Function Does Apply to Soft Expert Testimony; Fifth Circuit Sets Standard for Determining Breach of Non-Prosecution Agreement; Prosecutors Licensed To Commit Misconduct in Fourth Circuit; Tainted Verdicts Protected By Local Rules Preventing Post-Trial Juror Interviews -- more -- June Issue '99 -- White-Collar Crime By Kathryn Keneally Supreme Court Extends Trial Court Role to Nonscientific Experts -- more -- June Issue '99 -- RICO Report By Barry Tarlow Federal Prosecutors No Longer Subject to Thornburgh Memorandum; A Few Small Fish Escape RICO Net; Pre-Trial Restraint of Defendant's Assets -- How Much 'Process' Is 'Due'?; The Public Speaks: Banks Should Not 'Know' You and Your Customers -- more -- May Issue '99 -- Press Advocacy and the High-Profile Client By Robert S. Bennett The famed white-collar counsel says you sometimes must discard the traditional "no comment" and vigorously advocate your client's cause in the public opinion. -- more -- May Issue '99 -- RICO Report By Barry Tarlow In Memoriam -- Ben Margolis; Literally Correct Answers and an Expanding Definition of Perjury; Criminal Malpractice -- A Disturbing Trend; Intimidation of Defense Witnesses -- more -- April Issue '99 -- RICO Report By Barry Tarlow A Small Victory in the Battle Against 'Federalizing Crime'; Incredible Shrinking 'Willfulness' Requirement; Bogus Prosecution Ethics Complaint -- New Tactic in War on Defense Bar -- more -- April Issue '99 -- White-Collar Crime By Kathryn Keneally Ill-Advised Government Theories -- more -- March '99 Champion -- Impeachment in White-Collar Crimes: Practical Ideas and Suggestions By Michael D. Monico Knowing when not to impeach a witness is as important as knowing how to do it. Sometimes impeaching material does not arise out of a prior inconsistent statement, but from common sense. Preparation and common sense are the two most important traits of every successful cross-examiner. -- more -- March '99 Champion -- RICO Report By Barry Tarlow Update on Gotti, Jr. -- Second Circuit Bars Pre-Trial Restraint of Substitute Assets; Positional Predisposition -- Not Entrapment Panacea But There May Be Alternative Medicine; Fertile Ground for Entrapment Defenses; Hitting Rogue Prosecutors Where It Hurts -- more -- Jan/Feb '99 Champion -- RICO Report By Barry Tarlow Yes, You Can Be Prosecuted for Providing Traditional Legal Services; Intentional Prosecutorial Misconduct Bars Retrial -- more -- Jan/Feb '99 Champion -- White-Collar Crime By Kathryn Keneally Two Courts Allow Substantial Assistance Downward Departures in the Absence of a Government Motion -- more -- December '98 Champion -- RICO Report By Barry Tarlow L'Affaire Czuprynski Revisited; RICO Wiretap Implodes Because Previous Electronic Surveillance Was Not Disclosed; Stipulating Away Prior Bad Acts -- more -- November '98 Champion -- White-Collar Crime By Kathryn Keneally At a Loss for an Explanation -- more -- November '98 Champion -- RICO Report By Barry Tarlow Relatedness of RICO Predicate Acts; Juror Misconduct Undermines Keating RICO Verdicts -- more -- Sept/Oct '98 Champion -- Grid & Bear It By Barry Boss and Louis Feuchtbaum Downward Departures in Money-Laundering Cases: The Punishment Should Fit the Real Crime -- more -- Sept/Oct '98 Champion -- RICO Report By Barry Tarlow They Said What? Prosecutors Can No Longer Buy Informer Testimony?; Continuity and Relationship of RICO Predicates; Government Objects to Order Requiring Truthful Wiretap Affidavit; Can A Court Limit Informer Cross-Examination Because It Is Too Effective? -- more -- August '98 Champion -- White-Collar Crime By Kathryn Keneally Independent Counsel Overreaches in the Hubbell Indictment -- more -- August '98 Champion -- RICO Report By Barry Tarlow Miami U.S. Attorney Becomes RICO Enforcer for Chamber of Commerce; Seventh Circuit Reverses RICO Dismissal; Eighth Circuit Rejects Latest DOJ Attempt To Exempt Federal Prosecutors from State Ethical Rules; S.D.N.Y. Suppresses Incriminating Statements Obtained in the Absence of Counsel -- more -- August '98 Champion -- Forfeiture By David B. Smith Supreme Court Adopts Reasonable Test for Excessive Fines -- more -- July '98 Champion -- Curbing Prosecutorial Excess: A Job for the Courts & Congress By Arnold I. Burns, Warren L. Dennis & Amybeth Garcia-Bokor Three attorneys identified with strong, effective and responsible law enforcement say some current prosecutorial practices endanger the fundamental nature of due process and fair play. The authors think the courts and Congress should help right a system that they believe has gone astray. -- more -- July '98 Champion -- RICO Report By Barry Tarlow Pre-Trial Restraint of Substitute Assets; Latest Battle Over Lawyers' Right to Speak Out -- more -- Legislative Alert (Revised 6/2/98) -- DOJ Trying To Thwart True House Forfeiture Bill House Judiciary Chairman Hyde returns to true forfeiture reform effort. -- more -- June '98 Champion -- President's Column: Money Laundering Laws Invite Abuses A decade ago, the RICO statute was one of the most feared, powerful weapons in the prosecutor's arsenal. Now there's a new weapon in the prosecutor's stockpile -- even more deadly than RICO -- whose use is limited only by the prosecutor's imagination. I am referring to the money laundering statutes, principally 18 U.S.C. 1956 and 1957. -- more -- June '98 Champion -- White-Collar Crime By Kathryn Keneally Second Circuit Defines Reach of the Work Product Immunity for Corporate Counsel -- more -- June '98 Champion -- RICO Report By Barry Tarlow Does Daubert Apply to Soft Expert Testimony?; Collateral Estoppel Is Alive and Well: Possession Acquittal Bars Importation Retrial; Entrapment As a Matter of Law: Judge Does Justice -- more -- May '98 Champion -- RICO Report By Barry Tarlow Do Local Ethics Rules Apply to Federal Prosecutors? It Depends; Hall of Shame; Ninth Circuit Holds Absence of Prior Bad Acts Admissible to Show Entrapment; Secret Wiretaps Exposed -- more -- April '98 Champion -- President's Column: High Time for a Bill of Rights for the Grand Jury Twenty years ago, the American Bar Association House of Delegates overwhelmingly endorsed a comprehensive set of proposals for grand jury reform. Congress held hearings, heard many well thought-out proposals, but did nothing. In the intervening 20 years, examples of grand jury abuse, prosecutorial distortion and misconduct have gone from bad to worse. And most recently, the misuse of the grand jury process by prosecutors in the office of Independent Counsel Kenneth Starr has again focused the spotlight on the need to protect ordinary Americans from this key facet of the criminal justice system that is so rife with abuse. -- more -- April '98 Champion -- Trade Secret Theft: Using State Civil Precedent To Challenge a Prosecution under the New Federal Law By Robert J. Lauchlan, Jr. & Daniel M. Krainin Previously covered by state law and civil litigation, charges of trade secret theft are now covered by federal criminal law. The authors say civil precedents can be useful in defending against the new federal law. -- more -- April '98 Champion -- RICO Report By Barry Tarlow War on Defense Bar Flares Anew; Narrowing Double Jeopardy Bar To Retrial After Intentional Prosecutorial Misconduct Reversal; Supreme Court Expands RICO Net -- more -- March '98 Champion -- The Hyde Amendment: Congress Creates a Toehold for Curbing Wrongful Prosecution By Elkan Abramowitz & Peter Scher The new law allows for reimbursement of legal fees to defendants who were the victims of wrongful federal prosecutions. This legislation could go a long way toward providing judicial oversight of DOJ's excesses. -- more -- March '98 Champion -- President's Column: IRS Reform? It's Time for Congress To Stand Up to Property-Seizing, Forfeiture Bullies As April 15 approaches, there's a lot of talk about curbing IRS abuses. A measure addressing the issue passed overwhelmingly in the House last session. The Senate is next. This reform effort is due. It ought to include a measure exempting attorneys from the Internal Revenue Code 6050I, Form 8300 "cash reporting" requirement, which today guts the sacred attorney-client privilege. -- more -- December '97 Champion -- Supreme Court Turns Insider Trading Inside Out By Michael D. Monico & Jacqueline S. Jacobson On June 25, 1997, the United States Supreme Court handed government prosecutors generally, and the Securities and Exchange Commission (SEC) in particular, another weapon with which to prosecute insider trading cases against lawyers, and other individuals who may be exposed to material non-public information. -- more -- July '97 Champion -- Defending Against Food & Drug Prosecutions By John W. Lundquist & Sandra L. Conroy The Food and Drug Administration (FDA) does not often refer cases for criminal prosecution, but when it does, it can be a formidable adversary. Among the weapons at its disposal are a statutory scheme imposing strict liability on offenders and a doctrine of corporate responsibility that allows the FDA to target virtually any high-ranking corporate official. -- more -- Jan/Feb '97 Champion -- Responding to Subpoenas: Constitutional and Practical Issues By Knut S. Johnson Businesses and individuals are frequently subjected to criminal investigations. Subpoenas are an important part of such investigations because they are easy to obtain and do not usually require the approval of a judge. If they are thwarted, prosecution and disruption of business may be prevented. -- more -- August '96 Champion -- Challenging the Law Office Search By Martin G. Weinberg & Kimberly Homan This article is addressed to the question of what to do when you receive a call from a friend or a colleague seeking your assistance because federal agents have invaded his or her offices with a search warrant and are proceeding to examine client files and seize documents. -- more -- April '96 Champion -- Third Party Searches: Lawyers & Other Strangers By Milton Hirsch All too frequently, the third party against whom the search is directed is a lawyer. Searches of law offices raise complex Fourth Amendment questions that subsume issues of attorney-client privilege and work product privilege. -- more -- March '96 Champion -- Litigating Sealed Search Warrants: Recent Cases Limit Indefinite Seal in Pre-Indictment Investigations By James E. Phillips, David F. Axelrod & Kevin G. Matthews The documentary search warrant is one of the government's most potent weapons in white-collar criminal investigations of business organizations. In state and federal investigations, this device is often used instead of the more traditional grand jury subpoena. -- more -- December '94 Champion -- Mail Fraud: Limiting The Limitless By Ellen S. Podgor One thinks of the mail fraud statute as omnipotent and omnipresent, with prosecutors often selecting this charge as a convenient tool for pursuing alleged criminal conduct. -- more -- Sept/Oct '94 Champion -- Defending Charges of Health Care Fraud By J. Richard Kiefer & Carol A. Glass The authors provide an introduction to defending clients in health care fraud investigations. The article analyzes the pertinent statutes and regulations, discusses the administrative exclusion of health care providers, covers defense strategy and collateral proceedings, and considers plea bargaining and sentencing issues of particular importance. -- more -- April '94 Champion -- Motion Practice in Environmental Crime Cases: The Hot Areas and How To Spot Them By David M. Eldridge The complexity of environmental crime cases often presents difficult problems for defense lawyers. The complexity also presents many opportunities for a successful motion practice. The author discusses recycling, the Mixture Rule and Bills of Particular and concludes with a motions "punch list" of motion opportunities that may arise in such cases. -- more --