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:
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Addressing the elements, policies, training materials, auditing procedures,
and structure of compliance programs.
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Representing corporate officers, directors, boards, and employees.
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Anticipating and responding effectively to DOJ and SEC investigations and
enforcement.
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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:
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How do you prevent investigations?
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What do you do if an investigation begins?
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What efforts can you make to avoid trial?
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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
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Effective Corporate Compliance Programs
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Elements of an Effective Compliance Program
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Corporate Compliance Officers and Committees
Chapter 2: AFFIRMATIVE OBLIGATIONS TO INVESTIGATE AND REPORT - Edward S.
Keefe and Kelly A. Moore
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Background
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Unique Requirements of Sarbanes-Oxley
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Other Sources of Obligations to Self-Report
Chapter 3: CONDUCTING INTERNAL INVESTIGATIONS - Kelly Moore and Amy Schuller
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Introduction
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Initiating the Investigation
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Who Should Conduct the Investigation
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Crafting an Investigative Plan
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Preserving Privilege Protection
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Gathering of Documents and Tangible Evidence
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Witness Interviews
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Developing a Record of the Investigation
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Actions Based on Investigative Findings
Chapter 4: ATTORNEY-CLIENT PRIVILEGE - Leslie Caldwell, Jason Conn, and
Eric Sitarchuk
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Background
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Current DOJ Policy
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Genesis of the Current DOJ Policy
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Selective-Waiver and Confidentiality Agreements
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Other Potential Solutions
Chapter 5: VOLUNTARY DISCLOSURE TO AUTHORITIES - Meredith Auten, Leslie
Caldwell, and Michael Cleary
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Background
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Benefits and Risks
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Government Programs and Procedures
PART II - DEFENDING AGAINST GOVERNMENT INVESTIGATIONS
Chapter 6: SUBPOENAS - Zane D. Mcmeger
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Grand Jury Subpoenas
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Administrative Subpoenas and Civil Investigative Demands
Chapter 7: SEARCH WARRANTS - Zane Mcmeger and Carlos Montoya
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Background
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The Warrant Requirement and Federal Rule of Criminal Procedure 41
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The Fourth Amendment
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The Exclusionary Rule
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Searching and Seizing Computers
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Privilege Issues
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Warrantless Searches
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Practical Considerations for Companies and Counsel
Chapter 8: OBSTRUCTION-OF-JUSTICE ISSUES - Alicia Villarreal, Diana Cortes,
Michael Cleary, and Martha Stolley
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Scope of Statutes
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The Omnibus Clause: 18 U.S.C. § 1503
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Participants in Agency and Congressional Proceedings: 18 U.S.C. § 1505
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Participants in Federal Criminal Investigations: 18 U.S.C. § 1510
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Tampering with Witnesses, Victims, or Informants: 18 U.S.C. § 1512
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Safe Harbor for Attorney Conduct: 18 U.S.C. § 1515
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The U.S. Sentencing Guidelines
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Obstruction Can Be a Two-Way Street
Chapter 9: ELECTRONIC SURVEILLANCE - Colm Connolly
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Electronic Surveillance Generally
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Electronic Surveillance of Communications
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Other Types of Electronic Surveillance
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Stored Electronic Communications
Chapter 10: CYBER-EVIDENCE - Denise Backhouse
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Managing Electronically Stored Information
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The Duty to Preserve Potentially Relevant ESI: Triggers and Timing
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Identifying Discoverable ESI
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Data Preservation and Collection
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Data Analysis and Data Review Technologies
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Production
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Considerations for Counsel: Best Practices for Anticipating and Conducting
Internal Criminal Investigations
Chapter 11: EMPLOYEES, OFFICERS, AND DIRECTORS - Brian Privor and Kelly
Moore
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Background
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Distinctions Among Witnesses, Subjects, and Targets
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Legal Representation
Chapter 12: SEC DISCLOSURE - Joanna C. Hendon, William H. Kimball, Michelle
Park Chiu, and Kerry J. Land
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Background
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Practical Considerations
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Legal and Accounting Principles
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Conclusion
Chapter 13: PARALLEL CIVIL AND CRIMINAL PROCEEDINGS - Jill Baisinger, Saba
Bireda, and Nate Andrisani
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Overview
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Parallel Proceedings Are Generally Permissible
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Government Information Sharing in Parallel Proceedings
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Common Constitutional Issues Associated with Parallel Proceedings
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Stays or Other Limitations on Civil Proceedings
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Considerations in Resolving Parallel Proceedings
Chapter 14: UNIQUE PROCEDURES AND CONSIDERATIONS IN TAX CASES - Mark
Matthews, T. Joshua Wu, and Neil Gordon
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Investigations of Federal Tax Crimes
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The IRS Criminal Investigation Division
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Case Development
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Investigative Process
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Investigative Tools
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Other Procedures Unique to Tax Cases
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Voluntary Disclosure Program
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Approval Process for Tax Charges
PART III - DEFENDING AGAINST PROSECUTION AND TRIAL
Chapter 15: DISMISSAL OF INDICTMENTS - Meredith Auten and James Carroll
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Background
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The Elements of Federal Indictments
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Contesting Indictments
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Post-Dismissal Proceedings
Chapter 16: CRIMINAL DISCOVERY - Alicia Villarreal, Laura Mc Kaskie, and
Lisa Veasman
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Government Discovery Obligations
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Defendant’s Discovery Obligations
Chapter 17: SUPPRESSION - Tiffany Johnson and Mark Srere
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Background
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Procedural Aspects of Motions to Suppress
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Grounds for Suppression of Evidence
Chapter 18: JOINDER AND SEVERANCE - Sarah Montgomery and Mark Srere
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Overview of Joinder and Severance
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Joinder and Severance of Offenses
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Joinder and Severance of Defendants
Chapter 19: UNIQUE ISSUES IN DEFENDING CORPORATE CRIMINAL TRIALS - Eric W.
Sitarchuk, Peter M. Smith, and Erin C. Montgomery
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Introduction
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Corporate Criminal Responsibility
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Character Evidence
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Out-of-Court Statements of Employees
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Admissibility of Employee Guilty Pleas
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Expert Testimony Regarding Complex Legal and Regulatory Frameworks
Chapter 20: PLEA NEGOTIATIONS, PROSECUTION ALTERNATIVES, AND COLLATERAL
CONSEQUENCES - Nathan J. Andrisani and Jason B. Conn
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Negotiations with the Prosecutor
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DOJ Chain of Command
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Federal Prosecution of Business Organizations
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Alternatives to Prosecution
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Collateral Consequences of Convictions
Chapter 21: CORPORATE SENTENCING - Lisa Tenorio-Kutzkey, Torya Esposito
Oliver, and Sean Duffy
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The Federal Sentencing Guidelines
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Calculating an Organization’s Fine Under the Guidelines
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Role of the Prosecutor in Sentencing Decisions
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Enforceability of Guidelines
Table of Cases
Index
Automatic Supplementation
