On January 27, 2021, I joined noted French writer Antoine Garapon in a one-hour “webinar” covering current developments and trends in cross-border cooperation between France and the United States on criminal matters. The discussion was basically optimistic: unlike outcomes in 2014 involving the bank BNPParibas and French industrial icon Alstom — which resulted in French companies agreeing to huge criminal penalties without any participation by French authorities — the 2020 resolution of corruption charges against Airbus was addressed primarily by French authorities. My exchange with Antoine was immeasurably enhanced by the participation of Florence Hermite, the “magistrate de liaison” representing the French Ministry of Justice at the French Embassy in Washington. A video of this one-hour discussion can be found at https://echo360.org/media/b8cd166d-fb8a-446d-a3eb-a40050391f9c/public.
Columbia Law School colloquy on transnational law enforcement – video
On November 12, 2020, I moderated a (virtual) discussion about current developments in cross-border law enforcement that I think was lively and interesting. You will see a video recording of it (a bit under one hour) here. https://echo360.org/media/de0e168a-ec73-421d-9cb6-a1e38016c821/public
The two principal participants were Zainab Ahmad, now a partner at Gibson Dunn and for many years a leading prosecutor with the Department of Justice, including a stint with the Special Counsel’s office under Robert Mueller, and Andy Levander, a well-known criminal defense attorney and Chair of the Policy Committee of the Dechert law firm. The discussion included commentary by two Columbia stars, Professor Daniel Richman and Berit Berger, who directs the very important Center for the Advancement of Public Integrity at Columbia.
Our back-and-forth discussion focused on new challenges posed by the “globalization” of criminal activity and developing strategies among prosecutors’ offices around the world.
Friend of the Court Brief in United States v. Hoskins
On October 20, 2020, I filed in the United States Court of Appeals for the Second Circuit a brief as amicus curiae (friend of the court), on behalf of the International Academy of Financial Crime Litigators, in an unusual appeal of a criminal case being heard by that court. A copy of the my brief can be found in the Publications section of this site.
The Hoskins case is a long-running saga that has already achieved quite a bit of commentary. It involves a UK subject, who was employed by the UK subsidiary of a French company (Alstom) and who never set foot in the United States but was nonetheless charged with violating the U.S. Foreign Corrupt Practices Act (FCPA). The trial judge, after Hoskins’s conviction, determined that the record did not support the prosecutor’s theory that Hoskins fell within a category of individuals to whom the FCPA applied and acquitted him of those charges, and the prosecutor appealed.
The gist of the amicus brief is to urge that the Court of Appeals look carefully at the extraterritorial reach of the FCPA, and to decline the prosecutor’s invitation to extend it.
The procedural issues in the case a a bit complex, you will see them explained in my article on the Hoskins case that you will find in the Publications section of this site.
The case will be argued sometime in 2021, and a decision could come down later next year or even in 2022.
United States v. Michael Flynn – running commentary
Michael Flynn is a former U. S. General who briefly served as President Trump’s national security adviser. He almost immediately resigned from that post, and at the time it was explained that he had lied to the Vice President about meetings he had had with representatives of the Russian government. It later developed that before he resigned he was interviewed by agents of the Federal Bureau of Investigation, and apparently lied to them, as well, about his meetings. In December 2017 he pleaded guilty to a charge that he had lied to a federal officer (a violation of 18 U.S.C. Section 1001), and in December 2018 he confirmed that guilty plea, but asked that his sentence be postponed. Starting shortly thereafter, he refused to cooperate with federal investigators and asked to withdraw his guilty plea. In May 2020 the United States Attorney filed a motion to dismiss the charges against him. This move was immediately attacked by a number of observers (including myself), who argued that it was politically motivated to spare a friend of the President. The presiding judge then appointed an “amicus curiae” (friend of the court) to advise him how to proceed.
The matter was very intensely litigated, including a consequential review by the Court of Appeals. In November 2020, President Trump in effect ended the litigation by issuing a full (and very broad) pardon of Flynn. Curiously, Judge Sullivan subsequently issued an opinion dismissing the entire case as moot, but addressing the question whether he had power to review the prosecutor’s motion to dismiss under these highly unusual circumstances. He ultimately concluded only that it was a “close question” that he did not need to reach, but nonetheless offered very interesting (and provocative) thoughts on the legal issues, and distinctly uncomplimentary comments about the prosecutors’ conduct.
The legal issues are complex, and raise very difficult and important issues relating to the “separation of the powers” and the appropriate role of the judiciary in the administration of criminal justice.
I have created a public “folder,” where one can find essentially all of the critical documents along with my occasional commentaries on the case; you will see it here https://1drv.ms/f/s!AvFhCNETJRA6rz6KyUproj_t_u7k .
Video of Conversation with Christine Okhrent about the U.S. Elections (French)
Although it is far afield from the world of cross-border criminal investigations, you might be interested in the tape of a “conversation” I had in September with well-known Parisian journalist Christine Okhrent about the forthcoming elections in the United States, and the possibility of legal interventions. The event was hosted by the French American Foundation – France, and a video of the event can be found here. https://vimeo.com/460623300
Overview of Internal Investigations Published in the Netherlands
In September 2020, the Dutch criminal justice review Tijdschrift voor Sanctierecht Onderneming published my article Internal Investigations – an Overview, which is available for download in the Publications section of this site. (It is the only article in English that appears in that edition of the publication.) The article is neither academic nor strictly practical, in the sense that it does not purport to offer “how to” lessons in conducting internal investigations. Rather, it attempts to “take a step back” and address some basic questions about the function of internal investigations, of which there are several quite different examples. I believe that anyone contemplating engaging in a significant internal investigation would find the article useful.
France Modernizes Its Criminal Procedures
In a post on the Global Anticorruption Blog curated at Harvard Law School, which you will find in PDF format in the Publications page, and you can see online here, I describe a subtle but very important shift in France’s efforts to address corporate crime: Whereas traditionally complex economic and financial crimes involving international corporations had been handled through a procedure known as an instruction, led by an investigating magistrate, the National Financial Prosecutor of France has recently indicated that over 80% of his cases are now being handled by his office without reference to an investigating magistrate. This shift is likely to make French prosecutors considerably more nimble and effective, and much better positioned to work on equal terms with their counterparts in the United States, the United Kingdom, and elsewhere. The joint resolution announced in January 2020 that aerospace giant Airbus had reached deferred prosecution agreements with all three countries — in an investigation led by France, and in which it received the largest share of the penalty payments — shows the effects of this evolution.
Internal Investigations and the Specter of State Action
The Spring edition of the Litigation Journal published by the American Bar Association includes my article “Internal Investigations and the Specter of State Action.” You will find a PDF copy in the Publications section of this site.
The article was inspired by the May 2019 opinion of Chief Judge Coleen McMahon of the United States District Court for the Southern District of New York in United States v. Connolly. Judge McMahon explored whether a theoretically “private” and “voluntary” internal investigation conducted by a large corporation could trigger after-effects normally associated with a formal, state-run investigation. The specific question before her was whether an individual criminal defendant could claim that statements given to lawyers conducting an internal investigation for his corporate employer were “compelled” within the meaning of the Fifth Amendment. Her answer to this question was largely Yes: because the prosecutor was actively involved in overseeing the internal investigation, she concluded that the acts of private lawyers conducting it were “fairly attributable to” the government.
Her opinion focused on the issue of compelled self-incrimination. The point of my short piece is that her reasoning may lead to other legal issues as well.
Comment on US v. Hoskins, and the difficulty of addressing “jurisdictional” issues in criminal cases
On April 10, the excellent Compliance & Enforcement blog edited by the NYU Program on Corporate Compliance and Enforcement published my comment called “What the Hoskins Rule 29 Acquittal Reveals About Contesting ‘Jurisdictional’ Issues in American Criminal Justice.” You will find a PDF in the Publications page of this site, and a link to it in the NYU site is here.
The Comment addresses an oddity in US criminal procedures that I believe is not fully appreciated: US criminal cases (especially at the federal level) often involve “threshold” issues unrelated to the core issue of guilt itself. While the term “threshold” is admittedly unscientific, I use it to refer to factual questions that do not go to whether the defendant committed a prohibited act (or had requisite intent), but rather whether the relevant laws apply to the defendant at all, whether the court has “jurisdiction” because of a needed federal element such as interstate commerce, whether venue is proper in that District, and increasingly whether the criminal laws in question have the “territorial reach” to apply to the case. The oddity is that while such issues can indeed be considered “threshold,” in most cases there is no procedure to resolve them at the “threshold,” that is, before an expensive and risky trial. The very recent Hoskins case was an extreme example of this, and the Comment summarizes some other recent or pending cases presenting the same problem. The Comment explores why this phenomenon is built into distinctively American procedures.
I would be very interested in your views on whether this is, in fact, a problem — I believe it is — and any ideas you may have on how to deal with it.