Does the Government Have to Turn Over FBI 302s in Discovery?

Writing correspondenceBy Sara Kropf

The government usually turns over interview memos, or FBI 302s, during discovery in a criminal case.

As I’ve written before, a 302 is a summary of a witness interview written by an FBI agent. It is in narrative form, sometimes has quotes in it (but more often does not). The witness does not get to review or correct it before it is finalized.

When you are preparing for trial in a criminal case, reviewing the statements made by potential witnesses for the government is absolutely critical. They are the best roadmap to understand how the government will prove its case at trial. They are also a way to learn about potentially helpful witnesses.

If the government resists turning over 302s in discovery, what are the possible avenues to force it to do so? There are three of them.

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How an OIG Investigation Becomes a Criminal Investigation

Big magnifying glass.jpgThe following excerpt is from our upcoming e-book, A Guide to OIG Investigations for Federal Employees and Contractors. It’s filled with all sorts of useful information on the OIG investigations.

We chose this excerpt in light of recent news about the criminal prosecution of former Acting FBI Director Andrew McCabe as well as the recently declined prosecution of his predecessor, FBI Director James Comey.

If there is only one thing you take away from this book, it is that an OIG investigation can turn into a criminal investigation. In fact, the OIG agent who interviews you may actually be conducting not only an OIG investigation but a criminal investigation as well. At a minimum, that agent is trying to determine whether you committed a crime, as well as a violation of federal or agency-specific policy.

This may sound confusing and counter-intuitive. How can an employee of a federal agency investigate a criminal case? Isn’t that what the Department of Justice (“DOJ”) and its prosecutors do?

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Calling DOJ’s Bluff: Why a Stand-Alone False Statement Charge Is the Sign of the Weak Prosecution

hand raises for two winning cards on a green poker tableOn September 4, 2019, after just a few hours of deliberation, a jury in federal district court in Washington, DC found former White House counsel Gregory Craig not guilty of one count of making a false statement.

Mr. Craig had an excellent legal team and plenty of funds to pay them (he’s a former Skadden partner). Even that amazing group of lawyers couldn’t convince the Department of Justice not to indict him in the first place.

That’s because it’s notoriously easy for a prosecutor to charge someone with false statements. That said, any defense lawyer will tell you that when a prosecutor threatens a false statement charge—without an underlying substantive charge—the government has a weak case.

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Trial for the Terrified

Jury.jpgBy Dan Portnov

I’ll make a confession: I am not a trial attorney. If you need a Johnny Cochran or Benjamin Brafman-type courtroom wizard, I’m not your guy and I never will be.

Still… I love trial. I’ve done several and had my moments of glory. It is a rush and sometimes I will completely lose myself in the moment. Sara, on the other hand, is much more seasoned and in command of the courtroom. (Check out what she has to say about trials here, here and here). I’ve had the good fortune to second-chair a few trials with her (and other great attorneys) and I learn something new each time.

Now I hope to share with you a few things I’ve picked up along the way: tips for the trial enthusiast. (Or for the junior lawyer or law student who hopes to get in the courtroom one day.)

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Why Do White-Collar Criminal Defense Lawyers All Seem to Know Each Other?

People stacking hands together in the parkBy Sara Kropf

When I first started doing white-collar criminal defense work as an associate at a big firm, I noticed that the partner always seemed to know the other lawyers on the case. They had been AUSAs together, or worked at Main Justice at the same time, or toiled in the trenches as federal public defenders.

Sometimes they had only a connection forged through a night of drinking at some conference somewhere.

At the time, I wondered how even tenuous connections led to a tremendous amount of professional trust among these lawyers—the kind of trust that you wouldn’t normally place in someone you only knew for a little while. White-collar criminal defense lawyers regularly participate in joint defense arrangements with other lawyers. To make a joint defense agreement work, you must trust that the other lawyer won’t turn around the tell the government what you have just shared with the group.

Now that I’m approaching two decades doing this work, I’ve come to realize why such trust exists: Mostly because the community of white-collar defense lawyers is a close group. That doesn’t mean everyone is a wonderful human being (not even close), but it is an amazing community. Heck, I’m proud to be part of it.

Why is it such a close group?

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OIG Investigations – Why Lawyers and Federal Employees Should Both Worry (Part IV)

interrogation room.jpgBy Dan Portnov

If you’re a federal employee or individual under investigation by an Office of Inspector General, waiting for an update or some sign of progress from the OIG can be agonizing. As we’ve written before,[1] OIG policies and procedures are often opaque, and the investigation proceeds at whatever pace the investigating agent desires.

Since it is never advisable for the possible target of the OIG investigation to contact OIG directly, your lawyer is your only source of news. But your lawyer should not sit back and wait for the investigators to make their conclusions. Instead, an experienced counsel will build rapport with the OIG investigator and advocate on your behalf throughout.

So, what are the points at which your lawyer can try to positively influence the OIG’s investigation?

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The Reach of Federal Blackmail and Extortion Statutes (Part II)

Businessman giving bribe money in the envelope to partnerNote: This is the second part of an article that was first published in the ABA Criminal Justice magazine.

By Sara Kropf

In Part I of this article, we analyzed the difference between blackmail and extortion and examined the various federal statutes that govern those offenses. In this second part, we’ll look at the related Hobbs Act and Travel Act, as well as the sentencing guidelines for these federal statutes.

The Hobbs Act and the Travel Act

There are two other statutes that can be used to charge an individual with extortionate conduct, the Hobbs Act and the Travel Act.

The Hobbs Act, 18 U.S.C. § 1951, prohibits interference with commerce by threats or violence. It provides for a maximum sentence of twenty years in prison. The key section is the following:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

The Justice Manual (formerly the U.S. Attorney’s Manual) sets forth four questions that “must be answered affirmatively” to bring a Hobbs Act charge:

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Jeffrey Epstein is Dead. Now What?

Image result for jeffrey epsteinBy Dan Portnov

(photo from USAToday.com)

In perhaps the biggest news story of a slow August, Jeffrey Epstein apparently hung himself in his cell at the Metropolitan Correctional Center (MCC) in Manhattan early Saturday morning.[1] Epstein’s suicide launched multiple conspiracy theories (one was even re-tweeted by the President) as well as incredulity that prisons don’t have better suicide prevention policies in place. Less covered, however, is what will happen to the seemingly endless legal proceedings surrounding Epstein. The rosters of his defense teams and the government attorneys investigating him contained many impressive names.

Now that Jeffrey Epstein is dead, what are all the lawyers supposed to do?

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Posted in civil case, Congressional investigation, Criminal Investigation, Detention issues, DOJ policy and practice, OIG investigations | Leave a comment

The Reach of Federal Extortion and Blackmail Statutes (Part I)

Businessman giving bribe money in the envelope to partnerNote: This article was first published in the ABA’s Criminal Justice magazine in Summer 2019.

By Sara Kropf

In early February 2019, Amazon CEO Jeff Bezos published an explosive blog post accusing the National Enquirer’s owner, American Media Inc. (AMI), of blackmailing him. Bezos’ accusations could have serious consequences for AMI. In September 2018, AMI signed a non-prosecution agreement with the U.S. Attorney’s Office for the Southern District of New York.

As part of the non-prosecution agreement, AMI must cooperate with the government’s investigation of a hush-money payment made to Karen McDougal from President Donald Trump. The non-prosecution agreement also mandates that AMI “shall commit no crimes whatsoever” after its execution. If the government determines that AMI did blackmail or extort Bezos, then it may charge AMI “for any federal violation of which this Office has knowledge.” In other words, if this was a crime, then all bets are off and AMI no longer enjoys the protection of the non-prosecution agreement.

In addition to heading Amazon, Bezos owns The Washington Post, which has been critical of President Trump’s administration. AMI and its CEO, David Pecker, are closely linked to President Trump. After the National Enquirer published texts between Bezos and his girlfriend, Bezos hired private investigators to find out how the media group had obtained his texts.

In two emails quoted in Bezos’ post, AMI employees describe salacious photos of Bezos in its possession and offer not to publish additional intimate texts and these salacious photos in return for certain concessions by Bezos. The “proposed terms” of the agreement are outlined in an email from AMI’s deputy general counsel. Central to the proposal is that AMI will not publish other texts and photos in return for

A public, mutually-agreed upon acknowledgment from the Bezos Parties, released through a mutually-agreeable news outlet, affirming that they have no knowledge or basis for suggesting that AM’s coverage was politically motivated or influenced by political forces, and an agreement that they will cease referring to such a possibility.

It is worth noting that the AMI proposal also includes some legal terms that one would not normally expect in a blackmail threat, such as a “full and complete mutual release of all claims” between AMI and Bezos, and the use of JAMS mediation to resolve any disputes.

Following Bezos’ public accusation, there have been media reports that the New York federal prosecutors are considering whether AMI broke the law with respect to its demands to Bezos. AMI’s conduct may have been questionable, but it is far from clear that federal law makes it a crime.

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Sweet Release: Alternatives to Incarceration

iStock-73979757.jpgBy Dan Portnov

Last week convicted and newly accused sex offender Jeffrey Epstein was found injured in his cell in the Metropolitan Correctional Center (MCC), while awaiting his trial. This came shortly after his attorneys lost their bid to have him freed on bail or, in the alternative, kept under “house arrest” in his Manhattan mansion. Although we at Grand Jury Target do not have much sympathy for Epstein, there’s no question that incarceration, including pre-trial detention, is a difficult existence.

White collar defendants rarely get detained pre-trial or while awaiting sentencing, and when they do, it’s news (we wrote about this here and here).

What are the alternatives? Without going too far down the prison reform rabbit hole, this post examines the different forms of pre- and post-sentencing types of release. If anything, we hope it will educate the reader on the range of outcomes that face a criminal defendant, both in the federal and state criminal justice systems.

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Posted in Bail, Pre-Trial Motions Practice, Sentencing | 1 Comment