January 23, 2017
Hopefully, the suggestions in my recent Business Crimes Bulletin article on the DOJ’s misuse of “speaking indictments” – found here – gather some momentum, as former E.D. Pa. U.S. Attorney Pete Vaira cited it in his January 17, 2017 article in Philadelphia’s The Legal Intelligencer.
Pete’s column, “A 2017 Wish List for Lawyers and Judges,” made several other great points, two of which I reproduce below with my comments:
- “That the defense bar propose to the federal courts, and the federal judges apply, the alternative sentencing guidelines for economic crimes published by the ABA Criminal Justice Section Task Force on Economic Crimes, Nov 10, 2014. These are far more realistic than the many overblown official guidelines by the U.S. Sentencing Commission.”
Levine comment: The ABA alternative guideline for economic crime with commentary, found here, provides a very helpful framework for white collar sentencing advocacy.
- “That the Pennsylvania State Legislature, the Attorney General, and the Pennsylvania Supreme Court cooperate to modify the Pennsylvania Grand Jury Statute and grand jury procedure to make it a unified and fair process. The present grand jury procedure for Commonwealth prosecutors is often whatever works that day before a particular supervising grand jury judge. There should be a standard grand jury procedure book, standard procedures for all investigating grand juries, and required training for supervising grand jury judges. The grand jury report used for criticizing non-charged persons should be eliminated from the statute. It is not a law enforcement function and is often used to attack political foes of the prosecutor or to stigmatize people that cannot be charged with a crime.”
Levine comment: If nothing else, the Sandusky grand jury debacle provides ample support for the first part of Pete’s comment about uniformity and training. In that extremely high profile investigation, Penn State’s in-house counsel accompanied three Penn State executives into the state grand jury for their testimony, but outside of the executives’ presence told the grand jury judge and the state prosecutor that she solely represented Penn State, and later testified herself before that grand jury which then proceeded to indict those same executives! On interlocutory appeal, the court quashed conspiracy, perjury and obstruction charges tainted by the in-house counsel’s grand jury testimony. For more detail, see Commonwealth of Pennsylvania v. Spanier, 132 A.2d 481 (Pa. Super. Ct. 2016).
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
About the Author:
Ronald H. Levine is Chair of Post & Schell's Internal Investigations & White Collar Defense Group. He counsels and defends corporations, as well as directors, executives, professionals and others, confronting potential allegations of fraud or other misconduct at all stages of the government enforcement cycle. Learn More >>