How to Prepare a Nervous Witness for a Government Interview (Part II)

Anxious young business man looking awayBy Sara Kropf

In Part I of this series, I listed my first six tips for preparing a nervous witness (or any witness, really) for a voluntary government interview. Those tips involved a lot of the mechanics of preparing your client for what the interview will look like.

Below is my second set of tips. They run the gamut from the obvious (tell your client to tell the truth) to the less-than-obvious (beware the speakerphone).

Feel free to add any tips you have in the comments. Who knows, maybe there will be a Part III to this series down the road.

Seven: Reassure your client that it’s okay to say “I don’t know” or “I don’t remember.” I’ve found that the more sophisticated the client is, the more difficult it is for him to admit that he can’t answer a question. But it is critical that clients don’t speculate or guess at the answer, since the government may have a document that conclusively establishes the answer—and giving an incorrect answer is simply fodder for a false statement charge.

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Bring in the SEC Taint Team


by Dan Portnov

Let’s say that you or your company find yourselves in the unfortunate position of receiving a document request by the Securities and Exchange Commission (SEC) with limited resources for representation. You’ve retained a moderately-priced, hyper-efficient securities enforcement lawyer (a “unicorn”). Still, the Commission’s initial document request demands every document, every draft, every e-mail created by you since the beginning of time.

You’ve got nothing to hide so your first instinct is to cooperate with the request.[1] Your lawyer informs you that she will need to engage a vendor to harvest data from your server(s), task junior lawyers to review each document for responsiveness and privilege, then produce the documents pursuant to the SEC’s exacting data delivery standards. This is going to cost a small fortune, but, once this arduous task is complete, the real preparation and advocacy can begin.

This is a frustrating position in which to find yourself – spending thousands or more just to put documents in the hands of the Commission. However, this is not the only option. Enter the Purposeful Production Without Privilege Review (PPWPR)…

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How to Prepare a Nervous Witness for a Government Interview (Part 1 of 2)

Anxious young business man looking awayRepresenting a witness during a voluntary interview or proffer session with the government requires preparation. As the lawyer, you will get ready by reviewing documents, talking to other lawyers in the joint defense group about anticipated questions and working through those substantive topics with your client.

But you must also prepare your client for the nuts and bolts of what will happen during the interview. This preparation is just as important as the substantive part. Even a well-prepared client can fall apart during the interview if she faces an unanticipated environment.

Trust me, you don’t want to watch your client fall apart during the interview. I’ve been there. It ain’t pretty.

Some of these tips are more or less applicable depending on whether your client is accustomed to being the center of attention at a meeting or to answering difficult questions from a hostile audience.

For a CEO, walking into a large conference room filled with people staring at her will not be excessively intimidating. For a small-business owner or someone who works in a blue-collar field, simply walking into the room will be (at best) uncomfortable or (at worst) terrifying.

Spending some time preparing the witness for what will happen that day will help tamp down these fears and, hopefully, allow your client to focus on answering questions truthfully.

Here are the first 6 of my top tips for preparing a nervous witness for a voluntary government interview. (I’ll write some other time about preparing for a less-than-voluntary interview, such as a cooperation session by a person pleading guilty.)

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OIG Investigations – Why Lawyers and Clients Should Both Worry (Part II)

By Dan Portnov

Last week, Sara wrote about Liff v. Office of Inspector General for the U.S. Dep’t of Labor, et al., a government contractor’s unsuccessful suit against the Department of Labor and its Office of Inspector General (OIG) for the latter’s publication of a non-public investigative report. Her exceptionally well-written analysis serves as the jumping off point for a look into an OIG’s investigations of private entities.

(For a summary of OIG investigations into federal employees, check out Sara’s 2017 post, retroactively called Part I, here. Warning: pulling back the curtain on OIG investigations will be a multi-blog post endeavor, so buckle in.)

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Fighting Back Against OIG Investigations (But Losing)

Fist pileBy Sara Kropf

Office of Inspector General—or OIG—investigations can have wide reaching consequences. I’ve written before about the lack of procedural fairness surrounding these investigations.

Now, you might think that OIG investigations affect only federal agency employees, but that’s not the case. OIGs can investigate people outside of the agency, including federal government contractors.

A negative investigative finding about a government contractor can mean that contractor doesn’t win any more contracts with the feds. This is a very big deal for the contractor and could spell the end of her business altogether.

One outside contractor who was the subject of a negative OIG report about his company decided to fight back.

Stewart Liff and his consulting company sued the Department of Labor and its OIG (“DOL-OIG”), as well as the Office of Personnel Management (“OPM”) for the reputational harm and loss of government contracts resulting from the publicized report.

The DC Circuit said no way. It reversed the denial of the dismissal of the case.

(I apologize in advance for the number of acronyms in this post. It’s a very DC post.)

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Posted in civil case, Government contracting fraud, OIG investigations | Leave a comment

Stormy Daniels, USA Gymnastics and the Power of a Non-Disclosure Agreement

Shh!By Dan Portnov

With the recent revelation that then-candidate Donald Trump’s longtime attorney Michael Cohen used his “own personal funds to facilitate a payment of $130,000” to adult movie actress Stormy Daniels in 2016, we may be moving closer to finally getting confirmation of one of the President’s worst kept secrets: that Trump and Daniels had an affair in 2006.

Cohen’s revelation – acknowledging the payment but without further details such as his motivation or plan for reimbursement from his client – prompted Daniels’ manager to respond that the actress now believes Cohen has voided any non-disclosure agreement (NDA), and she is free to tell her side of the story. Neither Cohen nor President Trump have indicated whether the latter will preemptively seek enforcement of the agreement.

NDAs have always played a role in resolving civil lawsuits. But now they may play a role in more criminal cases.

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Winning the Hard Way

The hardest appeal to win is one based on insufficiency of the evidence. It argues that “the jury got it wrong.” Courts of appeal do not look kindly upon this argument, not only because it forces the court to dig deep into the record but because it asks the court to question the jury’s verdict.

It’s always easier to affirm what the jury did.

In a recent decision out of the Fifth Circuit, however, the court did not take the easy path. It reversed the Medicare fraud and conspiracy convictions of a doctor and home health agency owner because there just wasn’t enough evidence to convict them.

These kinds of decisions are extremely fact-intensive, so it may be hard to use this win in your own case. But, at a minimum, the opinion gives all of us hope that losing a trial is not the end and reminds us to keep fighting every step of the way.

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Posted in Appeal, Conspiracy, Health care fraud, Reversal | Leave a comment

Lawyers as Filmmakers: The Sentencing Mitigation Film

644751722By Dan Portnov

Every CLE panel on sentencing includes a judge. And often the judge emphasizes the importance of presenting your client as a person and not just a defendant. That can be a challenge at a sentencing hearing unless the friends and family who show up in support are incredibly articulate and comfortable speaking in a courtroom.

There’s another way.

Last month, as most lawyers were anxiously preparing for their firm or bar association holiday parties, the New York Times and Above The Law simultaneously published short opinion pieces on the growing use of sentencing mitigation films. “Growing use” might be pushing it, as our informal polling of colleagues and judges (we may or may not have clerked for) has resulted in bemused, if not outright skeptical, responses.

Nevertheless, you should think about using a sentencing mitigation film, as championed by Doug Passon (seemingly of the law firm “D Major Films”). The technology is simple these days since we all have video cameras in our pockets. Having attempted our first such film with some success, here are a few practical and legal considerations:

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The Government Keeps Trying to Erase Its Wrongdoing

gridlockA few months ago, I wrote about the successful effort by a U.S. Attorney’s Office to convince the First Circuit to remove the name of a prosecutor involved in a case about Brady violations.

Now, in a case in Philadelphia, a USAO did not ask the district court judge to delete a police officer’s name but rather to change his determination that the officer was not credible.

On September 26, 2017, a federal district court judge in Philadelphia, Judge R. Barclay Surrick, granted the motion to suppress of a defendant named Pedro Payano. The judge took the time to draft a written order. The order described what the Pennsylvania state trooper had done when he engaged in the illegal search and noted that the defendant’s “ethnicity very likely figured into” the officer’s actions that day.

The government was not happy.

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Posted in Brady violations, Dismissal of charges in indictment, Fourth Amendment, Policy issues | Leave a comment

David Ganek’s Valiant Effort to “Fight the Power” Fizzles—Where’s the Remedy When Law Enforcement Lies?

Fist pileI’ve written several times before about hedge fund owner David Ganek’s groundbreaking lawsuit against federal agents and prosecutors in New York. See my posts here and here.

As I described the case:

The plaintiff is David Ganek, the former head of now-defunct hedge fund Level Global. The government executed a search warrant for his office and personal devices. As a result of extensive publicity about the investigation and raid, Level Global went out of business. Even though Mr. Ganek was never charged with insider trading, he lost his business.

The government’s main defense was that the defendants—all federal employees—were protected by the doctrine of qualified immunity. Qualified immunity protects law enforcement officers from money damages imposed based on performance of their official duties. It’s a very high barrier to this type of civil lawsuit.

The district court rejected this argument in part, concluding that some of Mr. Ganek’s claims could proceed. Specifically, it allowed his Fourth Amendment claims to continue because Mr. Ganek had alleged that defendants made a deliberate or reckless misstatement of a material fact when they sought a warrant to search his property. It also refused to dismiss his Fifth Amendment claim based on the defendants’ alleged fabrication of evidence against him, as well as refused to dismiss some of the claims based on supervisory liability.

The defendants filed an interlocutory appeal. It took a few months, but the Second Circuit issued its opinion in October 2017. (I know, I know, I’m a little late to the party. But thanks to a busy late-year trial calendar, I’m a bit behind in my posts.)

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Posted in Appeal, civil case, DOJ policy and practice, Search warrant | Leave a comment