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Bail for White-Collar Defendants
In the May 2009 issue of this newsletter, Steven F. Reich and Arunabha Bhoumik discussed the government's failure to persuade a district judge to jail Bernard Madoff pending trial so that he couldn't deplete assets, as well as the court's requirement that Madoff's wife hire private around-the-clock security to ensure that Madoff didn't flee. (“Pre-Trial Detention and White-Collar Defendants,” May 2009, page 1; http://www.ljnonline.com/issues/ljn_buscrimes/16_9/news/ 152029-1.html.)
Beyond these two unusual aspects, however, the Madoff detention litigation has revived longstanding questions about whether pretrial detention can ever be based solely on economic dangerousness. This issue has caused confusion throughout the quarter-century since the Bail Reform Act of 1984 (BRA) took effect. And given that Eric Holder, the new Attorney General, plans to allocate additional resources to investigating white-collar crime, prosecutors and defense counsel may square off frequently over this question in the years to come.
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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.
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.
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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.