Developing resources and education opportunities for the white collar criminal defense bar is also a top priority. Through cutting edge white collar CLE programs, an active white collar crime discussion community, and an engaged white collar defense committee, NACDL brings together the best-informed criminal defense attorneys to share information and strategy. Exclusive for NACDL Members, NACDL maintains a briefs and motions bank dealing specifically with white collar crime. The White Collar Department also conducts webinars and publishes cutting-edge policy analysis on emerging issues in white collar enforcement.
Detailed information about NACDL’s white collar initiatives and links to resources can be found on the following pages.
- Overcriminalization Reform
- Federal Discovery Reform
- Conspiracy Reform
- Computer Fraud and Abuse Act (CFAA)
- Forfeiture Reform
- Prosecutorial Misconduct
- Foreign Corrupt Practices Act (FCPA)
- Advocacy Letters & Testimony
- White Collar Amicus Briefs
- Federal Legislation
- Computer Fraud & Abuse Pending Legislation (Legislative tracking services returning soon)
- Public Corruption Pending Legislation (Legislative tracking services returning soon)
- Mens Rea Pending Legislation (Legislative tracking services returning soon)
- White Collar Sentencing
- White Collar Issue Areas
- White Collar Education
- White Collar Discussion Group (members only)
- NACDL Legal Resource Center
- White Collar On The Web
- White Collar Crime Prof Blog
Tiffany May Joslyn White Collar Crime Policy Externship/Internship
The National Association of Criminal Defense Lawyers is looking for an enthusiastic and productive law student intern with a commitment to criminal defense issues to engage in a variety of projects related to federal policy analysis, nonprofit advocacy, and criminal defense scholarship. The Tiffany May Joslyn White Collar Crime Policy Internship was created in memory and honor of Tiffany Joslyn’s significant contributions to the cause of criminal justice reform, particularly in the areas of white collar and regulatory crime, overcriminalization, and the erosion of due process protections in the criminal justice system. This internship will afford a law student specifically interested in the area of white collar crime and policy with the opportunity to work directly with and learn first-hand from leaders in the field at NACDL. Learn more about this opportunity.
On May 26, 2016, NACDL co-hosted a free law and policy symposium with the U.S. Chamber of Commerce’s Institute for Legal Reform entitled The Enforcement Maze: Over-Criminalizing American Enterprise. The day-long symposium featured key leaders from industry, academy, law, and policy across the political spectrum. Together they addressed the rise of overcriminalization, the inappropriate criminalizing of civil and regulatory matters, why laws need criminal intent requirements, fundamental flaws with the plea bargaining process, criminal discovery abuses and inadequacies of the grand jury process, as well as the use of certain pressures associated with enforcement against business and corporate individuals. For more information, see videos and commentary about the symposium.
At its spring 2015 meeting in Las Vegas, NACDL’s Board of Directors unanimously approved a resolution on criminal conspiracy law reform. The resolution is guided by a position paper drafted by NACDL’s Conspiracy Reform Subcommittee and adopts the recommendations therein. Before approving the resolution, the Board received a presentation by Subcommittee Co-Chairs Steven Morrison and John Cline on the flawed nature of existing criminal conspiracy law and the critical need for reform. The presentation focused on how existing conspiracy law results in possible constitutional violations, evidentiary unreliability, and false convictions. The Co-Chairs also presented the recommendations contained in the position paper, which would address, among other things, the overt act requirement, jury instructions, Pinkerton liability, and more. Read the Board resolution.
On November 17, 2014, at the National Press Club in Washington, DC, NACDL officially released its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School. Complete copies of the report, executive summary, and fact sheet are available at www.nacdl.org/discoveryreform/materialindifference. Watch C-SPAN3's video coverage of the launch event.
A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.
Sentencing: The Trial Practice for the 21st Century
Because 90 percent of all federal cases end in a plea deal, criminal defense lawyers have become sentencing lawyers rather than trial lawyers. Defense lawyers should not abandon vigorously defending their clients before juries. The authors suggest, however, that lawyers must begin to view trial preparation through the lens of sentencing.
The DOJ’s Mixed Record on Cases Against Traders
DOJ has had mixed success in the prosecution of traders. Where is the dividing line between illegal activity and savvy trading? Susan Brune and Erin Dougherty review the major categories of recent prosecutions and highlight the key issues that have presented obstacles to conviction – and opportunities for the defense.
- Shifting the ‘Burden of the Defense’ in White Collar Conspiracy Prosecutions
Reconsidering Joint and Several Restitution
Does a common feature of restitution orders – joint and several liability – violate the Excessive Fines Clause? There is “no general federal right to contribution” between co-defendants under restitution orders. This seemingly creates an Eighth Amendment problem in that a defendant can be held jointly liable for a co-defendant’s restitution yet has no right to collect contribution from the co-defendant.
Defending a Client in a Mandatory Self-Disclosure World
Representing Federal Government Contractors in Parallel Criminal, Civil, and Administrative Investigations
Federal contractors often face a “three-headed monster” of parallel criminal, civil False Claims Act, and administrative investigations. Each investigation involves different procedures, different obligations, and different potential sanctions. Sara Kropf and Margaret Cassidy provide practical approaches to developing strategies to help manage risk.
- Understanding Bitcoin in Criminal Defense Cases
- Forfeiture Money Judgments: Will the Supreme Court Clamp Down
- Challenges of Voir Dire in a White Collar Case
White Collar Crime Policy: Beneficial Ownership Provisions Become Law in Defense Spending Act
A law passed in 2020 requires small businesses to file a report listing their beneficial owners to the Financial Crimes Enforcement Network (FinCEN) at a date to be determined after FinCEN has issued implementing regulations. The law does not apply to companies that have more than 20 employees or have more than $5 million in annual gross receipts.
- Guilty Until Proven Guilty: The Prosecution of Public Corruption and White Collar Crime
- Sentencing: The Trial Practice for the 21st Century
White Collar Crime Policy: Supreme Court Vacates Sineneng-Smith Decision
Ruling Immigration Law Unconstitutionally Overbroad, But Door Remains Open for Future Challenges
The Supreme Court in Sineneng-Smith did not directly rule against the argument that 8 U.S.C. § 1324(a)(1)(A)(iv) is unconstitutionally overbroad. But it is possible that this statute may be challenged in the future.
The Public Corruption Trial: A Checklist
Few areas in the white collar world are in as much upheaval as law and practice under the federal honest services statute, but public corruption investigations continue at a quick pace. The authors provide practical suggestions about how to shape and present a defense – from a theory of the case and in limine motions to jury instructions and post-trial advocacy.
The Right to Control Theory — What It Is, How It Is Used, and How to Defend Against It
Jennifer Bouriat provides an overview of the mail and wire fraud statutes and the right to control theory, a brief history of the pertinent case law that has shaped the theory, and an overview of the circuit split on the validity of the theory. She offers key points to consider in defending a mail and wire fraud case.
Practice Points: Joint Defense Agreements:
An Ounce of Prevention Can Be Worth a Pound of Cure, Especially When Careful Planning Avoids Ethical Pitfalls
Defense attorneys Andrew Boutros and John Schleppenbach provide proactive guidance for white collar practitioners on avoiding ethical traps – such as a potential conflict of interest – when entering into joint defense agreements.
A Survey of Federal Proffer Agreements:
The Shortcomings and Pitfalls in the Government’s Promised Protections
Proffer agreements may appear to extend some assurance to the defense that statements made during a proffer will not be used against the potential defendant in the future. A closer examination, however, may reveal that the shelter they provide is far less than it might seem. It is important to approach such interviews with caution.
- White Collar Crime Policy: The Perjury Factory in White Collar Cases
A Primer on Financial Records in Economic Crime Cases
White collar financial and economic cases can involve voluminous and confusing documents, but these cases need not be feared. The authors discuss the importance of financial records received as well as exculpatory records that are sometimes not provided. Is it a criminal case, a civil case, or just a bad investment? The answer is almost always somewhere in the documents.
Applying the Per Se Rule in Criminal Antitrust Cases Contravenes the Constitution and Sherman Act
In antitrust cases, the per se rule prohibits inquiry into the reasonableness of defendants’ conduct when particular types of antitrust violations are at issue – for example, price fixing or bid rigging. In a criminal antitrust case, however, is this presumption of unreasonableness – of illegality – consistent with the Fifth and Sixth Amendments? Is it consistent with the text of the Sherman Act? NACDL, as amicus curiae, offered the Supreme Court an answer to these questions. That answer is no.
- White Collar Crime Policy: Supreme Court Vacates Sineneng-Smith Decision
Challenges to Obtaining Foreign Evidence in Cross-Border Criminal Cases
It is the criminal defendant who is at a disadvantage in a case involving foreign evidence. Among other things, the government has access to evidence through mutual legal assistance treaties and informal cooperation agreements. The authors provide an overview of constitutional issues defendants face when seeking foreign evidence in cross-border cases. They also discuss the methods defendants can use to obtain foreign evidence and the hurdles they may encounter when seeking it.
Honest-Services Fraud in the Private Sector After Skilling v. United States
Continuing Vagueness and Resulting Opportunities for Clients
The U.S. Supreme Court saved 18 U.S.C. § 1346 and the honest-services doctrine from the void-for-vagueness dust heap in Skilling v. United States. Jonathan Jeffress and William Zapf explore certain “limiting principles” courts have followed that may be avenues for challenging an honest-services prosecution. In addition, they include a brief survey detailing how circuit court pattern jury instructions cover honest-services fraud.
- Challenges to Obtaining Foreign Evidence in Cross-Border Criminal Cases
News of Interest
- "As the jury deliberates Elizabeth Holmes' fate, experts say 'fraud is complicated',"
- "A profile of Wall Street's top cop: SEC Chairman Gary Gensler,"
- "Prosecutors in Elizabeth Holmes Trial Revealed Untruths, but Did They Prove Intent?,"