es. In the past few years, however, the use of these tools has been broadly expanded to investiga - tions of securities fraud, tax fraud, and other traditional white collar crimes. It is clear that the prosecu - torial successes achieved through the expanded use of these tools mean they are going to become the norm, not the exception. Lawyers can expect white collar cases to be less about the paper and more about the snitches and their tape recordings. This article examines recent uses of confidential informants, whistleblowers, and cooperating witnesses. It outlines potential dangers and opportunities, as this emerging trend becomes an ongoing reality. Snitches: Confidential Informants, Whistleblowers, And Cooperating Witnesses The expansion of the gov - ernment’s use of Title III war - rants authorizing wiretaps in financial crimes has been widely noted. 2 However, electronic eavesdropping is not the only undercover technique that law enforcement will be using with increasing frequency in white collar cases. The Department of Justice (DOJ), Securities and Exchange Commission (SEC), and the Internal Revenue Service (IRS) have demonstrat - Blue Collar Tactics in ed, through statements and action, that they will be turn - ing to the use of undercover operatives to assist their White Collar Cases investigative efforts. 3 These operatives come in three basic flavors: confidential informants, whistleblowers, and cooperating witnesses. The most troubling of these is the confidential informant, cited in search warrant affidavits and indictments simply as the “CI.” When sophisticated business people Confidential Informants: begin to adopt the methods of common Hidden From View and Inherently Unreliable According to the FBI’s Manual of Investigative criminals, we have no choice but to treat Operations and Guidelines (MIOG), CIs are classified in 1 them as such . each of the following categories: organized crime, gener - al criminal, domestic terrorism, white collar crime, confi - dential source, drugs, international terrorism, civil rights, riminal defense lawyers are familiar with law national infrastructure protection/computer intrusion enforcement’s use of confidential informants and program, cyber crime, and major theft and violent gangs. 4 Ccooperating witnesses in the prosecution of organ - A CI is “any individual who provides useful and credible ized crime, drug trafficking, and other “blue collar” offens - information to a law enforcement agent regarding felo -

BY ELLEN C. BROTMAN AND ERIN C. DOUGHERTY

16 WWW.NACDL.ORG THE CHAMPION nious criminal activities and from whom white collar cases has increased dramat - techniques to uncover FCPA the agent expects or intends to obtain ically as demonstrated by these recent violations and the largest action additional useful and credible informa - examples: ever undertaken by the Justice tion regarding such activities in the Department against individuals future.” 5 CIs pose a special problem v In conjunction with a Medicare fraud for FCPA violations. … The because their identities may never be investigation, which ultimately result - fight to erase foreign bribery revealed and have frequently been pro - ed in the arrest of three men for al - from the corporate playbook tected from disclosure by the courts. legedly bribing assisted-living facili - will not be won overnight, but In Roviaro v. United States ,6 the ties, home healthcare agencies, patient these actions are a turning Court held that disclosure of the infor - recruiters and patients for referrals, the point. From now on, would-be mant’s identity may be required if it is FBI had a confidential informant FCPA violators should stop and “relevant and helpful to the defense of an (a.k.a. “Fancy”) pose as a patient re - ponder whether the person they accused, or is essential to a fair determi - cruiter. She wore a video camera in a are trying to bribe might really nation of a cause.” 7 The determination button on her blouse and carried an - be a federal agent. 22

requires the court to balance “the public other in her purse. Fancy, who knew B

interest in protecting the flow of infor - the defendant’s family from Cuba and In this case, the defendants have L mation against the individual’s right to South Florida, had a cocaine-traffick - moved to dismiss the indictment, argu - U 8 prepare his defense.” In conducting this ing record in her past and was intro - ing that the FCPA requires proof of the E balance, the Court stated that courts duced to the FBI by a former Drug En - involvement in the alleged scheme of an should consider “the crime charged, the forcement Administration agent who actual “foreign official” and that bribing C possible defenses, the possible signifi - worked with the state Attorney Gener - an undercover agent posing as a foreign O cance of the informer’s testimony, and al’s Office on health care fraud. 16 official does not fulfill the element of the L L 9 23 other relevant factors.” However, in offense. The U.S. District Court for the A

cases where the CI is not testifying, dis - v A confidential informant served as a District of Columbia has rejected that R

closure of the CI’s identity has been diffi - check runner in a wide-scale bank argument, but it will be interesting, in cult to obtain. 10 fraud/aggravated identity theft con - the event of a conviction, to see how the T The inherently secretive nature of spiracy in New York. 17 appellate courts view this issue. A the relationship between the confidential C informant and the law enforcement v Acting on instructions from the Office Whistleblowers: The “Rats” T I agency for which he works serves as a sig - of the Inspector General of New York Who Reap the Rewards C nificant barrier to obtaining helpful City’s School Construction Authority, Another confidential source utilized S information for the defense. 11 Without an informant bought false OSHA by the government during both civil and I

court supervision or public scrutiny the training certification cards from criminal investigations of white collar N 18 informant’s deal is negotiated, often on defendant on two occasions. crimes is the whistleblower. A whistle - an ad hoc basis, to serve immediate blower is typically an employee in a pri - W

investigative needs rather than systemic v At trial, a co-conspirator testified she vate enterprise who confidentially pro - H 12

goals of fairness and justice. It is no sur - connected defendant with an FBI con - vides information to law enforcement I prise that the DOJ’s Office of the fidential informant who sold co-con - regarding his employer’s or colleague’s T Inspector General (OIG) found signifi - spirator and defendant fraudulent mismanagement, corruption, or other E

cant and troubling deficiencies in the invoices to support fraudulent bills wrongdoing. The whistleblower provides C

FBI’s management of confidential they submitted to Medicare. The this information with the hope of receiv - O informants. 13 In 104 of the 120 confiden - defendant was found guilty on one ing a percentage of the money ultimately L

tial informant files examined, the OIG count of conspiracy to commit health recovered as a result of his or her disclo - L found “failure to document the agent’s care fraud and six counts of health sure. 24 The whistleblower may or may not A 19 evaluation of one or more suitability fac - care fraud. be directly involved in the underlying R tors in the initial or continuing suitabili - illegal activity. 25 ty evaluations, failure to give the required v An indictment alleged that a stock The government’s use of cash to C instructions to CIs or to do so at the promoter paid kickbacks to a confi - award confidential sources for their A required intervals, failure to obtain prop - dential informant in return for the CI’s information and assistance, a practice S E 26

er authority to permit CIs to engage in persuading purported investors to buy that dates back to the Civil War, is S otherwise illegal activity, issuance of promoter’s stock at inflated prices. 20 explicitly authorized in the False Claims retroactive approvals of otherwise illegal Act 27 and the Federal Whistleblower Act. 28 activities, failure to report unauthorized Early last year, the government also Public opinion regarding this controver - illegal activity in accordance with the used this traditional “blue collar” tech - sial system is naturally varied — with Guidelines, and failure to document nique for the first time in a Foreign some deriding it as the “Award for Rats deactivation of CIs.” 14 As the DOJ itself Corrupt Practices Act (FCPA) prosecu - Program” 29 and others touting it as a way acknowledges, these failures provide tion of 22 individuals: consensual tape for “folk heroes” to expose corporate opportunities for the defense to argue recordings made through the assistance wrongdoing. 30 Regardless of public opin - that it has failed to preserve or provide of undercover confidential informants. 21 ion, one thing is certain: whistleblowers exculpatory or impeachment informa - DOJ issued a press release when it filed have been effective and lucrative for the tion, in violation of a defendant’s consti - the indictments: government, especially when it comes to tutional rights. 15 white collar cases. 31 Despite the inherent problems of This ongoing investigation is Over the past few years, whistleblow - reliability, credibility and transparency, the first large-scale use of ers have been especially prevalent in the the use of confidential informants in undercover law enforcement area of health care fraud. 32 As a result of

WWW.NACDL.ORG SEPTEMBER 2011 17 qui tam suits filed under seal by relators, rate of downward departures granted may prove to be more sophisticated and the Food and Drug Administration and based on government motions due to a more presentable in a courtroom, adding the Department of Justice have collected defendant’s cooperation was 11.5 per - credence to deceptive testimony.” 47 This huge civil recoveries. 33 The government’s cent and varied by district from 40.7 presents an additional and interesting success in the health care context has led percent to 1.7 percent. 41 challenge to the white collar crime practi - both the IRS and SEC to follow suit. Unlike confidential informants, tioner and may require more focused Though the IRS has been authorized cooperating witnesses agree to testify in investigation of the cooperating witness, to pay awards to individuals who blow legal proceedings and typically have writ - for instance, in bankruptcy or matrimo - the whistle on delinquent taxpayers for ten plea agreements with the Department nial court filings. over 140 years, 34 the program was long of Justice that spell out their obligations Notwithstanding a defense lawyer’s “criticized for offering inadequate incen - and their expectations of future judicial familiarity with the cooperating witness, tives and protections for would-be or prosecutorial consideration. 42 White it may come as a surprise that, pre- whistleblowers to come forward.” 35 In collar cooperation in federal court usual - indictment, the government can use 2006, however, Congress modified the ly follows the same or similar pattern: an these witnesses to reach out to the program to boost the IRS’s authority to attorney will “proffer” to government defense lawyer’s white collar clients,

S pay cash awards to tax whistleblowers. counsel the information his client would despite the prosecutor’s knowledge that

E The Tax Relief and Health Care Act of hypothetically provide. If this proffer is she is contacting a represented party in

S 2006 increased the maximum potential well-received, the defendant and his apparent contravention of the ethics

A award to 30 percent of the recovery, counsel attend a proffer session with the rules. 48 In a recent securities fraud case,

C removed the $10 million cap, 36 and estab - prosecutor and at least one law enforce - the government’s use of a cooperating lished a separate “Whistleblower Office.” ment agent. The cooperator will have to witness as a proxy to elicit information R These changes increased both the quanti - disclose his own criminal conduct, and was held not to violate professional con - A 37

L ty and quality of claims and resulted in any other conduct of which he has duct rules because this conduct is 38 49 L some of the largest fines ever reported. knowledge. If all goes smoothly, the par - “authorized by law.” Counsel represent -

O In 2010, the Dodd-Frank Wall Street ties enter into a cooperation plea agree - ing an individual during the course of an

C Reform and Consumer Protection Act ment. These plea agreements reference ongoing investigation should repeatedly

provided the SEC with these tools. The the familiar language of U.S.S.G. advise the client to refrain from speaking E Act provides that the SEC shall pay § 5K1.1. 43 The agreements are intention - or corresponding about the investigation T

I awards to eligible whistleblowers who ally worded to weaken the defense cross- — even with friends and colleagues.

H voluntarily provide the SEC with original examination of the cooperator by making information that leads to a successful it seem that the benefit of cooperation is

W Cooperators and the Parallel

enforcement action yielding monetary up to the judge, not the prosecutor, and 44 Civil Investigation

N sanctions over $1 million. The award that it is not result-dependent. In prac -

I amount is required to be between 10 per - tice, however, the prosecutor’s downward Another important difference cent and 30 percent of the total monetary departure motion is rarely denied, and between white collar and blue collar cases S sanctions collected in the Commission’s the “success” of a witness is a factor in the is the fact that, almost always, corpora - C

I action or any related action, including a extent of the departure. tions and individuals will be subject to

T criminal case. 39 The new program is Cooperation in drug prosecutions parallel regulatory and criminal investi -

C expected to begin in August 2011. and violent street crimes such as Hobbs gations. Recent cases demonstrate that 50 A It is important to note that these Act robberies became commonplace as this trend is likely to continue. In T

whistleblower programs do not require soon as the Sentencing Guidelines went October 2009, the DOJ was joined by the

R that employees report through their into effect, as defendants had no other U.S. Department of the Treasury

A employers’ internal compliance system way to avoid draconian mandatory mini - (Treasury), and the U.S. Department of 45 L before or at the same time they report to mum sentences. Similarly, the bonds of Housing and Urban Development L the government. Without this mandatory loyalty and collaboration that white collar (HUD) in announcing President Barack

O internal reporting, these programs defendants enjoyed in the executive suites Obama’s newly established interagency

C undermine the ability of an entity to of their corporate offices quickly melted Financial Fraud Enforcement Task detect, investigate, and remediate viola - away in the face of multi-year, multi- Force. 51 The task force has increased coor - E tions and create an unhealthy atmosphere decade and even multi-century sentences dination and cooperation among the dif - U 40 46

L of distrust in an organization. In for financial crimes. ferent federal and state authorities

B response to this challenge, companies While both blue collar and white col - involved in the regulation of the financial must strengthen their compliance pro - lar defendants are similarly motivated to markets. 52 As SEC Enforcement Chief grams by creating substantial incentives avoid incarceration, their cooperation Robert Khuzami explained, “One of the for internal, rather than external, report - can present some interesting differences. vital aspects of the task force will be to ing. They will also need to create a corpo - For instance, it is likely that the white col - better coordinate criminal and civil rate culture that fosters loyalty, collabora - lar cooperators will differ from their blue enforcement efforts.” 53 The efficacy of this tion, and commitment to the success of collar counterparts in terms of their coordination was evident in recent suc - the organization. apparent reliability and credibility: often, cessful insider trading prosecutions of the they will not have criminal histories that Galleon Hedge Funds. 54 Cooperating Witnesses: might be helpful for purposes of cross- Part of this coordination has been The Irresistible 5K Incentive examination. White collar cooperators the result of the SEC’s Cooperation Some defense clients choose to will likely be more at ease testifying and Initiative. Described by Khuzami as a become cooperating witnesses in order appear more credible. Indeed, as one “game changer,” the initiative mimics the to mitigate the harshness of the sen - commentator pointed out, “It is of course use of cooperating witnesses in criminal tences they face. In 2010, the national conceivable that white collar cooperators prosecutions by promising rewards in

18 WWW.NACDL.ORG THE CHAMPION civil prosecutions. 55 The SEC described approval by the U.S. Attorney Confidential Informants, the initiative on its website: General, to seek or, for the period Whistleblowers, and from June 17, 2011, through The Cooperation Initiative is a December 19, 2012, to issue Cooperating Witnesses: series of measures designed to orders compelling an individual The Potential for Abuse encourage greater cooperation to give testimony or provide The use of informants and witnesses by individuals and companies in other information pursuant to that are motivated to lie to avoid prison SEC investigations and related subpoenas that may be necessary or gain big paydays is inherently risky. enforcement actions. The SEC to the public interest in connec - These problems are exacerbated by the has set forth, for the first time, tion with investigations and fact that, in federal court, cooperators the analytical framework it will related enforcement actions. … and informants provide information use to evaluate whether, how behind closed doors in sessions that are much, and in what manner to 17 C.F.R. § 200.30-4(14) not recorded. Instead, the sessions are credit cooperation by individu - memorialized only by an agent’s notes.

als in its investigations and As explained in the “Supplementary Often, after multiple proffer sessions, the B

enforcement actions. Information” section of the rule change, agent combines these notes into a consol - L

the new rule “authorizes the Division idated memorandum of the various ses - U

In addition, the Commission Director to issue orders to compel indi - sions, making the witness and the agent E

has streamlined the process for viduals to give testimony or provide harder to impeach. submitting witness immunity other information pursuant to 18 U.S.C. Cooperation in white collar cases is C requests to the Department of §§ 6002-6004.” 57 The Commission justi - especially problematic because an organi - O Justice for witnesses who have fies this grant of power, which bypasses zation’s employees may have gathered L L

the capacity to assist in its inves - Commission approval, as “intended to information from a second-hand source, A

tigations and related enforce - further conserve Commission resources, through the grapevine, or through unau - R

ment actions. enhance the Division’s ability to detect thorized access to documents or comput - violations of the federal securities laws, ers. This “information” can be tested T Finally, the Division of increase the effectiveness and efficiency beforehand by an attorney proffer, which A Enforcement authorized its staff of the Division’s investigations, and is more typically used in white collar C to use new tools and to expand improve the success of the Commission’s cases. The exchange of information T I 58 the use of existing tools to enforcement actions.” In recognition of between the defense attorney and the C

encourage individuals and com - the potential for abuse of this power, the prosecutor during this proffer is similarly S

panies to report securities law Commission “adopt(ed) this amend - hidden and creates a danger that, either I

violations and provide assis - ment for a period of 18 months, and, at inadvertently or purposely, the prosecu - N

tance in connection with inves - the end of that period, will evaluate tor may provide direction to the cooper -

tigations and related enforce - whether to extend the delegation to issue ating witness that is neither memorial - W 56 59

ment actions. immunity orders.” It is interesting to ized nor revealed. H

note the Commission found that the I The streamlining referred to on the “revision relates solely to agency organi - Practice Points T website includes a very recent amend - zation, procedures, or practices. It is E

ment to 17 C.F.R. § 200.30-4(a)(14), therefore not subject to the provisions of The hidden nature of these negotia - C

which in its original form provided for the APA requiring notice and opportuni - tions and contacts requires a defense O the Director of Enforcement to obtain ty for comment.” 60 lawyer’s best effort to bring them to L

witness immunity through the following The rule change is more than proce - light. Detailed discovery requests should L procedure: dural: it signals an intention to continue be made early and often pretrial. The A

to use the civil investigation more aggres - Department of Justice’s recent Ogden R

To submit witness immunity sively and identify cooperators even earli - Memorandum can assist defense coun - requests to the U.S. Attorney er in the process. This creates an opportu - sel. 61 This memorandum recommends C General for approval to seek an nity for defense lawyers to gather intelli - that prosecutors access the agency files A order compelling an individual gence about the client’s position early and for each testifying confidential source S E

to give testimony or provide insulate their clients from criminal expo - and review the entire informant/source S other information pursuant to a sure sooner, rather than later. Also, a deci - file, not just the portion relating to the subpoena that may be necessary sion not to provide immunity will be a current case, including all proffer, to the public interest in connec - clear indication of where the client stands immunity and other agreements, valida - tion with investigations and with the SEC and with the DOJ; counsel tion assessments, payment information, related enforcement actions. … and client can prepare accordingly. and other potential witness impeach - Further, the grants of immunity will mean ment information. In a white collar case, The amendment to the rule permits that more cooperators will be giving testi - this would require accessing the files of the Director of Enforcement himself to mony under oath in civil proceedings, and each of the multiple regulatory agencies issue an order of immunity, after consult - this testimony should be produced as involved in the investigation. It is impor - ing with DOJ: Jencks material. Of course, to the extent tant to note that as to non-testifying wit - this testimony conflicts with later grand nesses, the prosecutor’s review is discre - To submit witness immunity jury testimony or with other witness testi - tionary. Also, the memorandum advises requests to the U.S. Attorney mony or statements, these statements prosecutors to take steps to protect sen - General pursuant to 18 U.S.C. should all be provided as Brady evidence sitive information and authorizes the §§ 6002-6004, and, upon immediately upon indictment. provision of a “summary letter to

WWW.NACDL.ORG SEPTEMBER 2011 19 defense counsel rather than producing rrentPage=all. (in prosecution for willful failure to file the record in its entirety.” 2. See, e.g., Kenneth Breen & Sean Haran, income tax returns, trial court properly Frequently, these discovery battles Securities Fraud: The Rise of Wiretaps and denied defendant’s motion to discover iden - will have to be resolved by the court Government Eavesdropping in Securities Fraud tity of informant who had told IRS that through a defense motion to compel Cases, THE CHAMPION , May 2011 at 43; Peter J. defendant had not filed tax returns where Brady or Giglio materials. When filing Henning, The Pitfalls of Wiretaps in White Collar defendant did not make any showing that these motions defense lawyers must be Cases , NYTimes.com (Mar. 25, 2011); Peter disclosure of informant’s identity or contents sure to argue, that pretrial, materiality is Lattman, The Newest Wiretaps in the Galleon of his communication would be relevant or not an issue. The materiality determina - Investigation , NYTimes.com (Mar. 22, 2011); helpful to defense or essential to fair deter - tion requires an evaluation of confidence Hilary Russ, DOJ Promises More Wiretaps in mination of case); United States v. Hanna , 198 in the verdict that is not possible at the White Collar Cases , Law360.com (Nov. 4, 2010); F. Supp. 2d 236 (E.D.N.Y. 2002) (district court pretrial stage. 62 Therefore, as many dis - Gail Shifman, Wall Street Meets ‘The Wire ,’ denied defendants’ motion for disclosure of trict courts have concluded, in the con - White Collar Crime Prof. Blog (Oct. 19, 2009). confidential informants where government text of a pretrial motion for Brady evi - 3. See Shawn J. Chen, Coordination and contended that it would, prior to trial, identi - dence, the question of whether informa - Leverage Make It Happen: How the SEC fy any co-conspirators whose statements

S tion is favorable is the key inquiry, and an Handles Complex Cases , Thomson Reuters, were to be offered against defendants;

E attempt to prospectively assess whether Securities Law (May 2, 2011) (SEC “is coordi - defendants failed to show their need for

S the information would be material at trial nating with the Department of Justice and identity of confidential informants).

A is not necessary. 63 Moreover, while the trying to ‘leverage third parties where [it] 11. Alexandra Natapoff, Snitching: The

C Supreme Court has said that pleading can’ by introducing cooperation tools like Institutional and Communal Consequences ,

defendants have no Fifth or Sixth the non-prosecution agreements and the 73 UNIV . C IN . L. R EV . 645, 652 (2004). R Amendment right to have federal prose - SEC’s whistleblower program. The SEC is 12. Id. at 670. A See FBI’s Compliance supra L cutors provide “impeachment informa - not bluffing about the[se] new tools in its 13. , note 4, at

L tion relating to any informants or other kit. …”); Peter J. Henning, Going Undercover 93.

O witnesses,” this may not apply to Brady for a White Collar Sting , NYTimes.com (Jan. 14. Id. 64

C material. At least one court has held that 21, 2010) (FCPA charges filed against 22 15. Id. at 74.

prosecutors cannot include a waiver of a arms industry executives for paying bribes 16. Jay Weaver, FBI Nabs Man Accused in E defendant’s discovery rights to exculpato - to undercover FBI agents posing as foreign Medicare Fraud Case , MIAMI HERALD (Mar. 29, T 65

I ry evidence as part of a plea agreement. government officials); see also Bernard W. 2011).

H Bell, Theatrical Investigation: White Collar 17. Tom Gilroy, Prosecutors Accuse More Crime, Undercover Operations, and Privacy , Than 70 in Massive $163 Million Billing

W Conclusion

11 WM. & M ARY BILL RTS . J. 151, 152 (2002). Scheme , 5 WCR 722 (Oct. 22, 2010). (undercover techniques “are arguably also 18. John Herzfeld, Prosecutors Charge N Undoubtedly, the next few years will

I see an increase in the use of these “blue essential in investigating certain white col - New York Trainer With Selling False OSHA collar” tactics. U.S. District Court Judge lar offenses. White collar crime may be vir - Certifications , 5 WCR 495 (July 16, 2010). S Lewis Kaplan of the Southern District of tually impossible to uncover by non-decep - 19. Miami DME Firm Owner Found Guilty C

I New York cogently summed up the situa - tive means because many white collar in $3.8 Million Bogus Billing Scheme , 4 WCR

T tion when he addressed a defendant who offenses involve deception and abuse of 552 (Aug. 14, 2009).

C had worn a wire and cooperated in the legitimate authority.”). 20. Canadian-Based Stock Promoter Will

A investigation and prosecution of an insid - 4. See U.S. DOJ OIG, The Federal Bureau of Serve Nearly Two Years in Prison for Kickbacks , 3 T Investigation’s Compliance With the Attorney see also FBI’s er trading ring: WCR 770 (Nov. 7, 2008);

R General’s Investigative Guidelines , at 64 (Sept. Compliance , supra note 4, at 80 (Tier 1 criminal

A Our criminal justice system 2005) (hereinafter “FBI’s Compliance”) (citing activity — which includes violent crimes

L works in part because of bar - MIOG § 137-3). committed by someone other than the L gaining with people like your - 5. Department of Justice Guidelines informant, official corruption, theft, and the

O self. It isn’t pretty. It just serves a Regarding the Use of Confidential Informants manufacture or distribution of drugs — must

C utilitarian purpose without (Jan. 8, 2001), available at http://www.jus - be authorized in writing in advance by a which other people couldn’t tice.gov/ag/readingroom/ciguidelines.htm Special Agent or prosecutor; Tier 2 criminal E have been brought to justice. (hereinafter “DOJ Guidelines”). activity — which encompasses all other crim - U

L You happen to have the goods 6. 353 U.S. 53, 59 (1957). inal activity — must be authorized in writing

B and get the goods on them. And 7. Id. at 60-61. in advance by a Senior Field Manager.). so, frankly, in the words of the 8. Id. at 62. 21. United States v. Goncalves, et al., 09- street, you get to walk. 66 9. In McCray v. Illinois , 386 U.S. 300 cr-335 (D.D.C.), Doc. 22, Superseding (1967), the Court held that disclosure was Indictment, at ¶¶ 25, 26 (filed Apr. 16, 2011) The defendant was sentenced to five not required at the preliminary hearing (indicating that there was an undercover years probation, a $10,000 fine, and was stage. Special Agent with the FBI posing as a repre - ordered to forfeit $2,751,366. 67 10. Zathrina Zasell Gutierrez Perez, sentative of the Minister of Defense of this Piercing the Veil of Informant Confidentiality: country and another Agent posing as a pro - Notes The Role of In Camera Hearings in the Rovario curement officer for the Ministry). 1. Preet Bharara, U.S. Attorney for the Determination , 46 AM. C RIM . L. R EV . 179, 199 22. Press Release, DOJ, Twenty-Two Southern District of New York, quoted in (2009) (Courts have imposed a heavy bur - Executives and Employees of Military Law George Packer, A Dirty Business , NEW YORKER den on defendants, requiring them to show Enforcement Products Companies Charged MAGAZINE , June 27, 2011, available at http:// that the informant’s testimony would be in Foreign Bribery Scheme (Jan. 19, 2010), www.newyorker.com/reporting/2011/06/ material to the defense.); see also United available at http://www.justice.gov/opa/pr/ 27/110627fa_fact_packer?printable=true&cu States v. Buras , 633 F.2d 1356 (9th Cir. 1980) 2010/January/10-crm-048.html.

20 WWW.NACDL.ORG THE CHAMPION 23. Goncalves, et al., 09-cr-335 (D.D.C.), the Commission shall not disclose any infor - Primer on the Federal False Claims Act , OKLA . B AR Doc. 270, Joint Motion to Dismiss mation, including information provided by a J. , available at http://www.okbar.org/obj/ Superseding Indictment, at 6-7 (filed Mar. 9, whistleblower to the Commission, which articles_05/040905lahman.htm. 2011). could reasonably be expected to reveal the 27. 31 U.S.C. §§ 3729 et seq. (2005). 24. See Michelle M. Kwon, Whistling identity of a whistleblower.”); Whistleblower 28. 5 U.S.C. §§ 1201 et seq. (2005). Dixie About the IRS Whistleblower Program Law Blog, Dodd-Frank Bill Provides Robust 29. During debate of the 1998 IRS Thanks to the IRC Confidentiality Restrictions , Whistleblower Protections (July 15, 2010), Restructuring and Reform Act, Harry Reid 29 VA. T AX REV . 447 (2009-10) (“Although the available at http://employmentlawgroup - proposed to eliminate the IRS whistleblower whistleblower must reveal her true identity blog.com/2010/07/15/dodd-frank-bill-pro - program, labeling it the “Award for Rats in her reward request, the Whistleblower vides-robust-whistleblower-protections/. Program” and “Snitch Program,” and charac - Office promises to protect the whistleblow - 25. It should be noted that Section 922 terizing it as “unseemly, distasteful, and just er’s identity using its common law informer of the Dodd-Frank Act prohibits the SEC wrong.” See Kwon, supra note 24, at 449. privilege.”); see also Internal Revenue Manual from providing an award to a whistleblower 30. SmartMoney, Rat Out Your Boss, Get — 25.2.2.11 (06-18-2010), Confidentiality of who is convicted of a criminal violation relat - Paid by the IRS , MSN.com (Dec. 14, 2009),

the Whistleblower (indicating that the IRS ed to the judicial or administrative action for available at http://articles.moneycentral. B

will protect the identity of the whistleblower which the whistleblower provided informa - msn.com/Taxes/Advice/RatOutYourNeighb L

to the fullest extent permitted by the law); tion. There is no similar provision under the orsGetPaidByTheIRS.aspx (“Ratting on your U

Dodd-Frank Wall Street Reform and IRS program. boss or ex-husband might sound sleazy, but E

Consumer Protection Act, Pub. L. 11-203, H.R. 26. The False Claims Act was enacted in whistleblowers have taken on a more vener - C 4173, Section 922 (July 21, 2010) (“[T]he 1863 to ferret out unscrupulous contractors able image in recent years. That’s especially Commission and any officer or employee of and fraud. See Larry D. Lahman, Bad Mules: A true since the Enron era, when the few O L L

NACDL S TAFF DIRECTORY A R

Resource Counsel Director of Public Affairs & Communications Vanessa Antoun / [email protected] 202-465-7630 Jack King / [email protected] 202-465-7628 T A

Education Assistant 202-465-7630 Associate Executive Director for Programs 202-465-7636 C Akvile Athanason / [email protected] Gerald Lippert / [email protected] T I

Sales & Marketing Director Information Services Manager C

James Bergmann / [email protected] 202-465-7629 Steven Logan / [email protected] 202-465-7648 S

Director of Institutional Development Graphic Designer I Malia Brink / [email protected] 202-465-7624 Ericka Mills / [email protected] 202-465-7635 N

Deputy Executive Director Staff Accountant W Tom Chambers / [email protected] 202-465-7625 Douglas Mitchell / [email protected] 202-465-7652 H

Editor, The Champion Associate Executive Director for Policy I Quintin Chatman / [email protected] 202-465-7633 Kyle O’Dowd / [email protected] 202-465-7626 T E

Membership Director National Security Coordinator

Michael Connor / [email protected] 202-465-7654 Michael Price / [email protected] 202-465-7658 C Deputy Director of Public O

Education Assistant L Affairs & Communications 202-465-7662 202-465-7643 Ivan Dominguez / [email protected] Doug Reale / [email protected] L A

State Legislative Affairs Director 202-465-7642 Director — White Collar Crime Policy 202-465-7627 R

Angelyn Frazer / [email protected] Shana-Tara Regon / [email protected] C Manager for Grassroots Advocacy Executive Director A Christopher D. Glen / [email protected] 202-465-7644 Norman L. Reimer / [email protected] 202-465-7623 S

Indigent Defense Counsel Manager for Member Services E John Gross / [email protected] 202-465-7631 Mary Ann Robertson / [email protected] 202-465-7622 S Marketing Manager Membership and Administrative Assistant Renee Harris-Etheridge / 202-465-7661 Viviana Sejas / [email protected] 202-465-7632 [email protected] Administrative Assistant Special Assistant to 202-465-7639 the Executive Director 202-465-7640 Tyria Jeter / [email protected] Daniel Aaron Weir / [email protected] Counsel — White Collar Crime Policy Art Director Tiffany M. Joslyn / [email protected] 202-465-7660 Catherine Zlomek / [email protected] 202-465-7634

Manager for Meetings & Education Death Penalty Resource Counsel Tamara Kalacevic / [email protected] 202-465-7641 Terrica Redfield / tredfi[email protected] 404-688-1202

National Affairs Assistant Obaid Khan / [email protected] 202-465-7638 Membership Hotline 202-872-4001

WWW.NACDL.ORG SEPTEMBER 2011 21 employees who spoke up about the compa - amount to $57 million or more for himself ). pending investigation. This plea agreement ny’s misconduct were seen as folk heroes 39. See SEC Division of Enforcement, is not conditioned upon any result in any after the full extent of wrongdoing came to Enforcement Manual (Feb. 8, 2011), Section future prosecution that may occur because light.”). 2.2.1.2 Whistleblower Award Program. of the defendant’s cooperation. This plea 31. U.S. DOJ, Civil Division, Fraud 40. Robert Khuzami, Remarks at Open agreement is not conditioned upon any Statistics — Overview, October 1, 1987 — Meeting — Whistleblower Program result in any future grand jury presentation September 30, 2010, available at (Washington, D.C. May 25, 2011), available at or trial involving charges resulting from this http://www.justice.gov/civil/docs_forms/C- http://www.sec.gov/news/speech/2011/ investigation. This plea agreement is condi - FRAUDS_FCA_Statistics.pdf (indicating that spch052511rk.htm. tioned upon the defendant providing full, the office recovered approximately $2.5 bil - 41. United States Sentencing complete, and truthful cooperation.” United lion from qui tam actions in 2010). Commission, 2010 Annual Report, available States v. Vick , No. 07-Cr-274 (E.D. Va.), Doc. 45, 32. See, e.g., Tennessee-Based Dialysis at http://www.ussc.gov/Data_and_Statistics/ Plea Agreement (filed Aug. 24, 2007). Company Ordered to Repay More than $82 Annual_Reports_and_Sourcebooks/2010/20 45. See 18 U.S.C. § 3553(e) (“Upon Million , 6 WCR 453 (June 3, 2011) (United 10_Annual_Report_Chap5.pdat p. 34. motion of the government, the court shall States intervened in whistleblower suit and, 42. The “[r]ewards [for cooperating in have the authority to impose a sentence

S upon court’s finding that dialysis service this manner] range from considerable — below a level established by statute as a

E company “recklessly disregarded federal outright forgiveness, in which the suspect minimum sentence so as to reflect a defen -

S law” when billing the Medicare program, escapes all charges — to the conditional — dant’s substantial assistance in the investi -

A recovered $86.2 million); Mylan Laboratories a non-binding recommendation by the gation or prosecution of another person

C to Pay $65 Million to Resolve Alleged Rx Price prosecutor to impose a lower sentence — who has committed an offense. Such sen - Reporting Fraud , 6 WCR 21 (Jan 14, 2011) ($65 to nothing at all if the government decides tence shall be imposed in accordance with R million settlement reached with generic the informant has been insufficiently use - the guidelines and policy statements A Snitching, supra L manufacturer Mylan Laboratories Inc. to set - ful.” Natapoff, note 11, at issued by the Sentencing Commission pur -

L tle charges that it inaccurately reported 652. But see United States v. Flemmi , 225 F.3d suant to section 994 of Title 28, United

O drug prices to the Texas Medicaid program, a 78, 91 (1st Cir. 2000) (rejecting district court’s States Code.”).

C scheme brought by a whistleblowing phar - holding that FBI agents possessed authority 46. See United States v. Shalom Weiss, No.

macy); GlaxoSmithKline to Pay $750 Million to to make promises of use immunity to 98-Cr-00099 (M.D. Fla.) (835-year sentence E Resolve Adulterated-Drug Allegations , 5 WCR informants). for insurance fraud of $450 million); United T

I 756 (Nov. 5, 2010) (GSK agreed to pay $750 43. Section 5K1.1 provides as follows: States v. Keith Pound, 98-Cr-00099 (M.D. Fla.)

H million in criminal and civil penalties to set - Upon motion of the government (740-year sentence for participation in the tle charges of manufacturing and distribut - stating that the defendant has same fraud); United States v. Norman W

ing adulterated drugs from 2000 to 2005; an provided substantial assistance in Schmidt , No. 04-Cr-00103 (D. Colo.) (330-year attorney for the whistleblower, a former the investigation or prosecution of sentence for $38 million Ponzi scheme); N

I quality control inspector at GSK’s Puerto another person who has commit - United States v. Thomas Petters , No. 08-Cr- Rican plant, received 22 percent of the civil ted an offense, the court may 00364 (D. Minn.) (50-year sentence for $3.5 S settlement — or about $96 million). depart from the guidelines. billion investment fraud scheme.). But see C

I 33. 31 U.S.C. § 3730(d); see Woods v. (a) The appropriate reduction shall United States v. Adelson 441 F. Supp. 2d 506,

T Empire Health Choice Inc. , 574 F.3d 92, 98 n.1 be determined by the court for 506 (S.D.N.Y. 2006) (rejecting a guidelines

C (2d Cir. 2009) ( qui tam is short for “ qui domino reasons stated that may include, sentence of life imprisonment and imposing

A rege quam pro se ipso in hac parte sequitur ,” but are not limited to, considera - a sentence of 42 months). T White Collar

which means “who pursues this action on tion of the following: 47. Ellen S. Podgor,

R our Lord the King’s behalf as well as his own”). (1) the court’s evaluation of Cooperators: The Government in Employer- ARDOZO EV

A 34. See Kwon, Whistling Dixie , supra note the significance and usefulness of Employee Relationships , 23 C L. R .

L 24, at 448. the defendant’s assistance, taking 796, 803 (2002). L 35. SmartMoney, Rat Out Your Boss , into consideration the govern - 48. See Model Rule of Professional

O supra note 30. ment’s evaluation of the assis - Conduct 4.2 (“In representing a client, a

C 36. See 16 U.S.C. § 7623. tance rendered; lawyer shall not communicate about the 37. See Kwon, Whistling Dixie , supra note (2) the truthfulness, com - subject of the representation with a party E 24, at 449. pleteness, and reliability of any the lawyer knows to be represented by U

L 38. Joann M. Weiner, Brad Birkenfeld: Tax information or testimony provid - another lawyer in the matter, unless the

B Cheat and UBS Informant Doesn’t Deserve ed by the defendant; lawyer has the consent of the other lawyer Pardon , Politicsdaily.com, available at (3) the nature and extent of or is authorized to do so by law or a court http://www.politicsdaily.com/2010/04/ the defendant’s assistance; order.”); see also Model Rule of Professional 26/brad-birkenfeld-tax-cheat-and-ubs- (4) any injury suffered, or any Conduct 4.1(a) (“In the course of represent - informant-doesnt-deserve-par/ (noting that danger or risk of injury to the ing a client a lawyer shall not knowingly: (a) Birkenfeld, “a world-class tax cheat” who will defendant or his family resulting make a false statement of material fact or sit in prison for three-and-a-half years for his from his assistance; law to a third person.”). crime, was one of the whistleblowers (5) the timeliness of the 49. See United States v. Brown , 595 F.3d responsible for helping the IRS crack the defendant’s assistance. 498, 515 (3d Cir. 2010) (Pre-indictment inves - biggest U.S. tax evasion case in history); 44. Michael Vick’s cooperation plea tigation by prosecutors is “precisely the type William P. Barrett, Whistleblowers: IRS Ordered agreement contained this typical language: of contact exempted from the Rule as to Surrender Informant Documents (Dec. 1, “This plea agreement is not conditioned ‘authorized by law.’ To conclude otherwise 2009) (Vincent Spondello, longtime Monex upon charges being brought against any would serve to insulate certain classes of accounting employee, files a claim with the other individual. This plea agreement is not suspects — i.e., those who retained counsel IRS Whistleblower Office for what could conditioned upon any outcome in any — from ordinary pre-indictment investiga -

22 WWW.NACDL.ORG THE CHAMPION Navigating Your Way Through Cross-Examination N N A A Navigating Your Way Through v Faculty of Stars of Cross contents C C D

D Cross-Examination 1 Reaching New Heights in Cross-Examination | Lisa Wayne L

C v L Includes all written materials L C Exposing the “Eyewitness” Who is Really a 2 E L Snitch | Pamela Mackey & David Kaplan E &URVV([DPLQLQJ3ROLFH2IÀFHUVLQ&RQIHVVLRQ v Up to 14 hours of *CLE Credit 3 Cases | Deja Vishny *CLE Credit is issued to participants 4 Cross of Experts | Andrea Lyon who fulfill the necessary N

5 Crossing Crime Scene Investigators | David Rudolf a requirements and in states where v

Searching CODIS & AFIS Databases and Crossing i self-study CLE is authorized.

6 g

Print Experts | Barry Scheck a C t r

7 Cross-Examining Kids | Colette Tvedt i o n s 8 DWI Cross-Examination | Abe Hutt g s

Y -

On the Edge of the Ethical Cliff: When Prosecutors E 9 o x N u Go Too Far | Virginia Grady & Evan Jenness N a r A A

G Navigating Your Way Through

10 Revealing True Character Through Cross | Keith Belzer m W R contents C C i O a n 11 Towering Above: Impeachment | Hugo Rodriguez D .

D Cross-Examination y a L L

t 1 Reaching New Heights in Cross-Examination | Lisa Wayne D C L T i C o L C NOTE: Video is in DVD format. Written materials are in Adobe PDF. h

ExposingA the “Eyewitness” Who is Really a E n

r 2 L N

r Snitch | Pamela Mackey & David Kaplan . E o W

u &URVV([DPLQLQJ3ROLFH2IÀFHUVLQ&RQIHVVLRQ ATIONAL SSOCIATION OF RIMINAL EFENSE AWYERS 3 W N A C D L g Cases | Deja Vishny 1660 L St., NW, 12th Floor, Washington, DC 20036 | Phone 202.872.8600 h W www.nacdl.org/multimedia 4 Cross of Experts | Andrea Lyon

N

© 2011 National Association of Criminal Defense Lawyers 5 Crossing Crime Scene Investigators | David Rudolf a

Unauthorized Reproduction Strictly Prohibited by Law. A PRODUCTION OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS NACDLCLE v

Searching CODIS & AFIS Databases and Crossing i

6 g

Print Experts | Barry Scheck a C t r

7 Cross-Examining Kids | Colette Tvedt i o n s 8 DWI Cross-Examination | Abe Hutt g s PAyMENt INFOrMAtION Y -

On the Edge of the Ethical Cliff: When Prosecutors E 9 o x Go Too Far | Virginia Grady & Evan Jenness u

Cost # Quantity total a r G

10 Revealing True Character Through Cross | Keith Belzer m W R i

Video $400* X ______= $______O a 11 Towering Above: Impeachment | Hugo Rodriguez n . y a L

t Audio $200* X ______= $______D T i C o

NOTE: Video is in DVD format. Written materials are in Adobe PDF. h A n

All orders add shipping $7.50 r N r . o W $ u ATIONAL SSOCIATION OF RIMINAL EFENSE AWYERS W total N A C D L g 1660 L St., NW, 12th Floor, Washington, DC 20036 | Phone 202.872.8600 h W

*Special pricing is available for public defenders. www.nacdl.org/multimedia

q © 2011 National Association of Criminal Defense Lawyers Check enclosed (payable to NACDL) Unauthorized Reproduction Strictly Prohibited by Law. A PRODUCTION OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS NACDLCLE qPay by credit card: CreditCardPaymentInformation q Amex q Visa q Mastercard q Discover ShIppINg ADDrESS INForMAtIoN

Credit Card Number Expiration Date Name

Name on Card Mailing Address (No P.O. Boxes)

Billing Address City State Zip

City State Zip Phone Fax

Authorized Signature E-mail Address Fax to (202) 872-8690 or Mail to NACDL Education Dept. 1660 L St., NW, 12th Floor, Washington, DC 20036 www.nacdl.org/multimedia tion and would significantly hamper legiti - table=true¤tPage=all. 65. See United States v. Conroy , 567 F.3d mate law enforcement operations.”). 55. Robert Khuzami, Remarks at News 174, 179 (5th Cir. 2009) (declining to extend 50. Robin M. Bergen & Shawn J. Chen, Conference Announcing Enforcement Ruiz to exculpatory evidence), cert denied , Coordination and Leverage Make It Happen: Cooperation Initiative and New Senior 130 S. Ct. 1502 (Feb. 22, 2010); McCann v. How the SEC Handles Complex Cases , Leaders (Washington D.C., Jan. 13, 2010) Mangialardi , 337 F.3d 782, 787-88 (7th Cir. Thomson Reuters, Securities Law (May 2, available at http://www.sec.gov/news/ 2003) (extending Ruiz to Brady disclosures 2011) (“Recent cases in the areas of insider speech/2010/spch011310rsk.htm. that provide factual innocence); see also trading, international fraud and the mort - 56. SEC, Enforcement Cooperation Ellen S. Podgor, Pleading Blindly , 80 MISS . L. J. gage industry also show that the Initiative , available at http://www.sec.gov/ 1633 (Summer 2011). Enforcement Division is coordinating with spotlight/enfcoopinitiative.shtml. 66. David Glovin, Insider-Trading the Department of Justice and trying to 57. See SEC, Release No. 34-64649, Cooperators at Heart of Prosecutions, ‘leverage third parties where [it] can’ by Delegation of Authority to the Director of Its StamfordAdvocate.com (Jan. 14, 2011), introducing cooperation tools like the non- Division of Enforcement , Final Rule (effective available at http://www.stamfordadvocate. prosecution agreements and the SEC’s June 17, 2011), available at http://www.sec. com/business/article/Insider-trading- whistleblower program. The SEC is not bluff - gov/rules/final/2011/34-64649.pdf. cooperators-at-heart-of-958010.php#

S ing about the[se] new tools in its kit. …”). 58. Id. ixzz1Q9PtAsii.

E 51. See George J. Terwillger III, Darryl S. 59. Id. 67. United States v. Glass , No. 07-Cr-159

S Levin & G. William Currier, President Barack 60. Id. (S.D.N.Y.), Doc. 16 — Order of Forfeiture (filed

A Obama Establishes Interagency Financial Fraud 61. U.S. DOJ, Memorandum for Dec. 9, 2007) . n

C Task Force (Nov. 19, 2009), available at Department Prosecutors from David W. http://www.whitecase.com/alert_11192009/. Ogden, Deputy Att. Gen., Guidance for R About the Authors 52. “[I]n fiscal 2009, more than 150 of Prosecutors Regarding Criminal Discovery A available at Ellen C. Brotman is a partner in the L the SEC’s enforcement cases were filed in (Jan. 4, 2010), http://www.jus -

L coordination with criminal charges filed by tice.gov/dag/discovery-guidance.html. White Collar and Government Inves - O the DOJ and others, an increase of 30 per - 62. See Kyles v. Whitley, 514 U.S. 419, tigations Group at C cent over fiscal 2008. Similarly, [the SEC] 434, 115 S. Ct. 1555, 1566 (1995) (“The ques -

coordinated with criminal authorities and tion is not whether the defendant would Montgomery Mc - E other regulators in approximately 75 per - more likely than not have received a differ - Cracken. She also T represents attor - I cent of our most recent high priority cases.” ent verdict with the evidence, but whether neys before the H Robert Khuzami, Director, Div. of in its absence he received a fair trial, under - Enforcement, Sec. & Exch. Comm’n, stood as a trial resulting in a verdict worthy Disciplinary Board W of the Pennsylva -

Testimony Concerning Mortgage Fraud, of confidence.”). Securities Fraud, and the Financial 63. United States v. Naegele, 468 F. nia Supreme Court. N

I Meltdown: Prosecuting Those Responsible, Supp. 2d 150, 153 (D.D.C. 2007) (the duty to Before the U.S. Senate Committee on the disclose evidence pretrial (and during trial) Ellen C. Brotman S Judiciary (Dec. 9, 2009), available at applies “without regard to whether the fail - Montgomery McCracken, C

I http://www.sec.gov/news/testimony/2009/t ure to disclose it likely would affect the Walker & Rhoads, LL P

T s120909rk.htm (hereinafter “Senate outcome of the upcoming trial.”); United 123 South Broad Street

C Judiciary Committee Testimony”); see also States v. Safavian, 233 F.R.D. 12 (D.D.C. Philadelphia, PA 19109

A Robert Khuzami, Remarks at SEC v. Galleon 2005) (“Because the definition of ‘material - 215- 772-7683 T Management, LP Fax 215- 772-7620

Press Conference (Oct. 16, ity’ discussed in … appellate cases is a E- MAIL [email protected]

R 2009), available at http://www.sec. standard articulated in the post-conviction

A gov/news/speech/2009/spch101609rk.htm process for appellate review, it is not the

L (“Our law enforcement agencies are togeth - appropriate one for prosecutors to apply Erin C. Dougherty is an associate in the L er much more than the sum of our parts. during the pretrial discovery phase.”); White Collar and

O That is why coordination, of which today’s accord United States v. Acosta, 357 F. Supp. Government Inves -

C actions are a prime example, is critically 2d 1228, 1233 (D. Nev. 2005) (“ Brady implies tigations Group at important to the goal of rooting out fraud that all evidence favorable to an accused Montgomery Mc - E and misconduct in our markets.”). must be disclosed.”); United States v. Carter Cracken. Prior to U joining the firm, she

L 53. Robert Khuzami, Remarks at 313 F. Supp. 2d 921, 925 (E.D. Wis. 2004) spent a year as a B Financial Fraud Enforcement Task Force (“the court should require disclosure of Press Conference (November 17, 2009); see favorable evidence under Brady and Giglio primary case work - also Robert Khuzami, Senate Judiciary without attempting to analyze its material - er at O’Keeffe Solic - Committee Testimony, supra note 52 (“We ity at trial. The judge cannot know what itors, a defense firm in London. are enhancing our historically close working possible effect certain evidence will have relationship with other law enforcement on a trial not yet held.”); United States v. Erin C. Dougherty authorities, including the DOJ, in order to Sudikoff ; 36 F. Supp. 2d 1196, 1199 (C.D. Cal. Montgomery McCracken, maximize the efficient use of limited 1999) (Because the definitions of material - Walker & Rhoads, LL P resources, as well as to deliver a united and ity as applied to appellate review are not 123 South Broad Street forceful response to those who would vio - appropriate in the pretrial discovery con - Philadelphia, PA 19109 late the federal securities laws.”). text, the court relies on the plain meaning 215- 772-7381 54. See George Packer, A Dirty Business , of “evidence favorable to an accused” as Fax 215- 772-7620 E-MAIL NEW YORKER MAGAZINE , June 27, 2011, available discussed in Brady .). [email protected] m at http://www.newyorker.com/report - 64. United States v. Ruiz, 536 U.S. 622, ing/2011/06/27/110627fa_fact_packer?prin 625 (2002).

24 WWW.NACDL.ORG THE CHAMPION