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Multiple Jeopardy

By Irvin B. Nathan

A combination of factors has coalesced to spell trouble, or at least unwelcome complications, for federal prosecutors and aspiring cooperators and their counsel in the white-collar criminal arena. The factors include the political ambitions of state attorneys general (AGs), the broad overlap of state and federal financial-fraud crimes, the fully justified emphasis of federal prosecutors on pursuing nationwide financial-fraud offenses, and the persistence of the federal courts in refusing to limit the outmoded “dual sovereignty” doctrine that allows concurrent or consecutive federal and state prosecutions for the same offenses.

Many state AGs with their eyes on higher political office see the benefits that Elliott Spitzer and others have reaped from pursuing white-collar miscreants for state law violations arising out of multistate financial fraud. Some have piled on with state charges even after federal charges have been filed. This grab for the spotlight (or more accurately, the klieg lights) complicates the efforts of federal prosecutors to obtain cooperation and unfairly burdens and threatens defendants seeking to cooperate with federal authorities.

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