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Daubert Motions in Business Crimes Cases

By Michael E. Clark

White-collar defense attorneys face many challenges to overcome in successfully representing their clients. In federal criminal cases, the challenges have increased dramatically due to the heightened punishments that can be assessed against “non-cooperating” individuals or businesses who insist upon their rights to a trial. Consider the recent case of Jamie Olis, a mid-level accountant at an energy company, who (unlike two of his superiors) went to trial and was convicted of various fraud charges for having engaged in “income-smoothing” or “cookie-jar accounting” of the company's earnings history to try to help the company meet its earnings expectations. Although Olis received no financial benefit for his misguided efforts, he got 24 years' imprisonment (compared with his cooperative bosses, whose sentences were capped at a 5-year maximum under plea agreements). The sentence was largely due to the calculations of the “amount of loss.” See Gibeaut J: Do the Crime, Serve More Time: Midlevel Dynegy Exec Feels the Brunt of New Guidelines, 3 NO. 13 A.B.A. J. E-Report 1 (April 2, 2004).

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