How Blakely Affects Sentencing in Tax Cases
September 30, 2004
Ever since the Supreme Court rendered its landmark decision in the case of <i>Blakely v. Washington</i>, lawyers and judges have been cast in the role of prognosticators, trying to predict how the courts -- most importantly the Supreme Court itself -- will apply <i>Blakely</i> to the Federal Sentencing Guidelines. We will soon know the answer, as the Supreme Court has agreed to hear arguments on Oct. 4, 2004, after expedited briefing. Until then, however, lawyers must prognosticate -- at the risk of guessing wrong.
The Cost of Cooperation
September 30, 2004
Cooperation with government investigators has long been important for companies under the specter of an investigation. Under current agency policies and practices of the Securities and Exchange Commission (SEC) and U.S. Department of Justice (DOJ), and relevant provisions of the Sentencing Guidelines for Organizational Offenders, a "cooperative" corporation can realize substantial reductions in penalties or even avoid an enforcement action altogether. Seaboard Corporation in 2001 and HomeStore, Inc. in 2002 are excellent examples -- both were able to avoid SEC enforcement actions because of the extent and nature of their cooperation with investigators. The multi-million dollar question is what will be defined as "cooperation."
In The Courts
August 31, 2004
Recent rulings of interest to you and your practice.
The Duty to Preserve Electronic Business Records
August 31, 2004
For companies in highly regulated industries, lawsuits and government investigations are a cost of doing business. This cost goes well beyond the fees for lawyers, experts and consultants. In the early stages of a lawsuit or investigation, much of it comes from the diversion of personnel from their business responsibilities to complying with requests for information made by an adverse party or the government. Instead of running the business, employees spend their time meeting with lawyers and reviewing historical records.
DOJ Requests to Stay Civil Discovery: Recent Trends
August 31, 2004
Most of us have experienced at one time or another the long arm of the Department of Justice reaching into a civil action, whether it be an SEC proceeding, a class or derivative action or a contract dispute, to intervene and stay discovery in favor of a pending criminal investigation or proceeding. And, far more often than not, the federal government's request is granted. However, courts on both coasts in the past year have shown that they are willing to scrutinize carefully government assertions of prejudice and potential witness tampering and defendants' claims of hardship and prejudice. In several instances, they have denied intervention and/or discovery stays.
The Blakely Effect: Managing the Uncertainty
August 31, 2004
On June 24th, the Supreme Court decided a case that has sent a virtual shock-wave through the criminal justice system and threatens to upset the long-established practice of sentencing defendants under the federal Sentencing Guidelines. In <i>Blakely v. Washington</i>, 124 S.Ct. 2531 (2004), the Court invalidated a defendant's sentence imposed under the State of Washington's sentencing guidelines by holding that the Sixth Amendment prohibits a judge from increasing a defendant's sentence based on facts beyond those found by the jury or admitted by the defendant.
In the Courts
July 29, 2004
National rulings of interest to you and your practice.
Supreme Court Overrules the Nexus Requirement in 18 USC ' 666
July 29, 2004
Several U.S. appellate courts have expressed discomfort with the breadth of 18 U.S.C. ' 666 ("Theft or bribery concerning programs receiving federal funds") because its literal language makes certain theft and bribery federal crimes even when there is arguably no federal interest. Some circuits construed the statute to require a federal nexus to the wrongdoing, but each circuit that did so adopted a different test. Others refused to limit the statute at all. The Supreme Court last term purported to resolve the circuit split by affirming Congress's power to prohibit the corruption of entities that receive at least $10,000 in federal funds, regardless whether the crime has a federal nexus. <i>United States v. Sabri</i>, 124 S. Ct. 1941 (2004). Sabri rejected the constitutional limits courts had added to the statute, but it did not address the view of some courts that certain words within ' 666 express Congress's intent to limit the statute's reach on grounds of federalism.
Securities Fraud and Sentencing Guidelines After Sarbanes-Oxley
July 29, 2004
In the legislative process that led to the adoption of Sarbanes-Oxley (SOX), legislators from both sides of the aisle vied with each other to establish their credentials for being tough on white-collar crime. The maximum penalties for mail fraud and wire fraud were increased from 5 to 20 years. Pub. L. No. 107-204 ' 903. The maximum penalty for willful violations of any provision of the Exchange Act or rule or regulation adopted thereunder the violation of which is unlawful was increased from 10 to 20 years. Pub. L. No. 107-204 ' 903. If this were not enough, a new crime relating to securities fraud in connection with the securities of public companies with a maximum penalty of 25 years was created. Pub. L. No. 107-204 ' 807 This does not exhaust the list, but should be sufficient to suggest that there are more than enough post-SOX criminal laws covering financial fraud to deter rational corporate officers and others to refrain from participating in financial crimes.
