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Criminal Forfeiture Laws
The government's ability to freeze a defendant's assets pursuant to 21 U.S.C. Section 853(e) before trial and the resulting impact on the defendant's constitutional right to counsel of his choice is currently before the Supreme Court in Kaley v. United States, 12-464 (Oct. 15, 2012). That case focuses on whether defendants who need potentially forfeitable money to hire counsel are entitled to challenge the evidentiary support and legal theory of the underlying charges at a pretrial hearing or are limited to challenging the determination that the restrained assets are connected to the alleged criminal activity. The Circuit Courts of Appeal are split.
The Second, Ninth, and D.C. Circuits have held that a pretrial hearing regarding frozen assets can address whether probable cause exists to believe that the defendant is guilty of the crime that makes the assets forfeitable. The Eleventh, Tenth, Sixth, and Seventh Circuits have held that defendants only are allowed to challenge the grand jury's finding of probable cause to believe the restrained assets are linked to the crime with which the defendant is charged. U.S. v. Kaley, 677 F.3d 1316, 1329 n.9 (11th Cir. 2012) (citing decisions from other Circuits).
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.