Most in-house lawyers, if they're fortunate, haven't bumped up against the Fifth Amendment and its related issues since the bar exam. After all, the so-called "nickel" typically arises solely in the criminal context, and corporations don't have the right to plead the Fifth Amendment at an organizational level. However, with governmental investigations of varying types on the rise, and in-house counsel advising the corporation and preparing witnesses for participation in these investigations, the Fifth Amendment and its protections are an important tool in protecting the company and its employees from self-incrimination.

FIFTH AMENDMENT FUNDAMENTALS

The Fifth Amendment to the U.S. Constitution provides, in relevant part, that "no person ... shall be compelled in any criminal case to be a witness against himself." This privilege against self-incrimination has been defined as the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself. To plead the Fifth, or to "take the nickel," is to refuse to answer a question from a governmental body because the response could provide self-incriminating evidence of an illegal act.

Importantly, the Supreme Court has repeatedly recognized that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances," as the court held in Grunewald v. United States, 353 U.S. 391 (1957). The Fifth Amendment is intended to protect "the truthful responses of an innocent witness" where the responses of such a witness might provide the government with "incriminating evidence from the speaker's own mouth," as the court held in Ohio v. Reiner, 532 U.S. 17 (2001). The privilege is thus available to both the innocent and the guilty. Importantly, the privilege protects statements that might incriminate the witness regardless of the likelihood of prosecution; rather, the witness must simply have a reasonable fear that his or her responses might self-incriminate.

The Fifth Amendment privilege applies when a witness might be compelled to give information that could be used directly or indirectly as evidence to support a criminal conviction. The applicability of the Fifth Amendment in response to a question seeking direct evidence of a crime is easily identifiable. Everyone who has seen Law & Order knows that when a prosecutor asks a witness whether he or she killed the victim, the witness has a right to remain silent if the answer could be used to establish that he or she has, indeed, done so.

Use of the Fifth Amendment in situations calling for indirect evidence of criminal culpability can be trickier. Questions like, "Where were you on the night of the incident?" and even, "Do you know the accused?" can, under certain circumstances, provide evidence that might incriminate the witness. When answers would provide a link in the chain of evidence needed to prosecute the witness, the Fifth Amendment is available as a protection.

Of course, a witness cannot simply claim a blanket Fifth Amendment privilege to all questions that might be asked of him or her. A witness must instead assert the privilege to each question asked. Likewise, because the privilege is personal, it cannot be asserted on behalf of another. In short, an attorney cannot assert the privilege on behalf of a client. A corporation cannot assert the privilege, nor can an employer assert the privilege on behalf of its employees.

The Fifth Amendment privilege is also limited to the protection against self-incrimination by being compelled to provide information that is testimonial or communicative in nature. Determining whether information is testimonial can also be tricky. The Fifth Amendment does not provide a shield for a witness to avoid producing incriminating material, such as a specific DNA, blood or other evidence that might lead directly or indirectly to incrimination. Documents themselves are not protected by the privilege.

However, the Fifth Amendment does protect a witness from being compelled to self-select or produce documents if, in doing so, the witness' mental processes would be revealed and incrimination might result. The act of producing the documents establishes the existence of the document, possession of the document by a witness and the belief that the document is responsive to a request for production. Each is testimonial in nature and thus the Fifth Amendment can apply to shield the witness from having to produce the documents. Importantly, however, the privilege will not apply to documents that are required by law to be kept or to documents or records maintained by a corporation or other entity.

Often, whether a document belongs to a corporation or an individual is a threshold question in asserting the privilege. If a document is a corporate record, the act of production is merely custodial in nature and no privilege applies. If, however, the document is personal to an employee of the corporation, the privilege would shield production if the document were self-incriminating. Typically, courts look at the totality of the circumstances to determine whether a document is corporate or personal, including factors such as who prepared the document, where the document was located, the contents of the document and whether the creation of the document was necessary to the business. In today's world, however, where the line between employee and employer property blurs more every day, and more employees are bringing their own technology to the workplace, these questions can become difficult to answer.

UPJOHN AND CONFLICTS OF INTEREST

All corporate counsel are familiar with the Upjohn warning, or corporate Miranda, which the company gives to employees involved in corporate investigations. The purpose of the Upjohn warning makes it abundantly clear that the attorney represents the company and its interests, not the individual, and that, therefore, the privileges and protections of the attorney-client relationship exist only between the attorney and the company and can only be waived or asserted by the company. In short, a proper Upjohn warning explains to the employee that any statements made by the employee can be disclosed at the company's discretion. Consequently, a proper Upjohn warning can make employees less likely to be forthcoming with incriminating information.

In-house counsel interviewing employees as part of an investigation must take care to ensure that its employees do not forfeit or waive their Fifth Amendment rights as a result of an improper Upjohn warning or a failure of in-house counsel to advise the witness to obtain independent counsel. The interests of the in-house counsel in obtaining full and truthful statements can conflict with the interests of the witness to not incriminate himself or herself. If the witness believes the attorney is representing his or her interests, or believes that his or her statements cannot be used without his or her permission, an irreparable conflict of interest might be created. Likewise, if an individual testifies in a criminal case or before an administrative or regulative body while represented by the attorney for the company and without being informed about his or her Fifth Amendment rights, the individual could later bring a claim against the attorney and the employer. In short, when dealing with a government investigation in which employees might testify in ways that self-incriminate them, proper Upjohn warnings and a thorough examination of potential conflicts are critical.

 Parallel Incrimination

Often, when an individual employee of a corporation commits a criminal act on behalf of a corporation, both the individual and the corporation can be criminally liable. When such a scenario occurs involving a corporate officer, the officer's assertion of the Fifth Amendment privilege can protect the individual directly and the corporation indirectly. Therefore, in-house counsel should prepare the officer for Fifth Amendment issues or provide the officer with separate counsel who can assure that the officer is properly prepared. So long as the officer is protected by the attorney-client privilege of the corporation, the discussions between in-house counsel and the officer regarding the Fifth Amendment are protected from disclosure by the privilege. Although the interest of the individual against self-incrimination and the interests of the company against being incriminated by an officer will often align, in-house counsel should carefully examine the facts and interests involved to determine whether separate counsel is necessary or desirable under such circumstances.

 Note also that a corporate officer can waive his or her right to assert the Fifth Amendment by willingly participating in the investigation up to a certain point. For example, if a corporate officer verifies interrogatories or discovery responses on behalf of the corporation while acting as the corporation's agent, the officer may waive his or her individual right to invoke the Fifth Amendment as to those subject areas. Corporate counsel should take great care in selecting particular personnel to act as agents of the corporation in responding to government investigations to ensure that a waiver of Fifth Amendment protections, which could benefit both the individual and the organization, does not occur.

 The privilege against self-incrimination applies in criminal, civil, administrative, judicial, investigative, regulative or adjudicatory proceedings, and it can be invoked at any stage of those proceedings. Accordingly, in-house counsel facing an investigation of any type are well advised to consider and prepare for Fifth Amendment considerations early in the process.

 Consider the following example:

The Securities and Exchange Commission is investigating your company for securities fraud. They have subpoenaed your controller to provide information about corporate practices and bookkeeping. He knows his testimony could potentially incriminate both him individually and the corporation. The SEC warns that an adverse inference will be drawn in a later enforcement action if he refuses to provide the requested information. Should he take the Fifth during the investigation and risk the adverse inference? Or should he testify and potentially provide a roadmap to prosecution or lock himself (and the company) into testimony that can be used in later proceedings, including a subsequent criminal case?

The answers to these questions depend, as always, on the specifics of the situation and the facts involved. However, corporate counsel can best be prepared for dealing with these kinds of questions by familiarizing himself or herself with the protections of the Fifth Amendment, the limits of those protections, and its applicability to a wide variety of circumstances and proceedings. By giving serious consideration to the uses and consequences of the Fifth Amendment from an early point in the proceedings, corporate counsel can maximize the use of this powerful tool to the benefit of the client and the protection of its employees, and to avoid the conflicts and pitfalls often created when the interests of the corporation and the employee diverge.

Originally published in The Legal Intelligencer on April 24, 2013

About a year or so ago, around the same time that the movie The King's Speech won the Academy Award, I wrote a piece for From The Sidebar regarding an experience I had at trial regarding my own stuttering issue.  My article described an experience where, after a successful verdict for my client, several jurors approached me afterwards and told me that they could tell that I stuttered and appreciated that I took the lead in a trial. 

After I wrote the article, I received numerous emails from law students, lawyers, and even law professors who all stuttered.  Some asked for advice for how to deal with their impediment in a courtroom, many law students were worried how their stutter would impact their job search, and others shared their own stories of personal triumph that made my trial verdict small in comparison.

Another interesting thing happened after Hayes published my article.  Adam Grant, a professor at The Wharton School saw it on the Internet and included my experience in his recently published book, Give and Take.  The premise of Professor Grant's book is that there are three types of people: givers, takers, and matches (combination).  He studied a lot of research about success in the workplace.  This research debunks the theory that there are takers at the top and givers at the bottom.  In fact, this research shows that the givers are at the top AND the bottom.  One of the questions addressed in Professor Grant's book is -- what's the difference between the givers at the top and the ones at the bottom?  One part of the answer involves communication styles, which is where my experience comes in.  His point is that, after we establish our expertise and command of the subject matter, we need to re-humanize ourselves with our audience.  Sounding too perfect makes the audience suspicious and blocks any emotional connection between the speaker and the audience. Many trial lawyers know this instinctively, but it is interesting how social science research proves it.   

Dave Walton is a partner in Cozen O'Connor’s Labor & Employment Practice Group and co-chair of the firm's E-Discovery Task Force. 

It is not uncommon for the parties to play hardball litigation to exert pressure on the other side to settle a case.  But if your opposing party engages in tactics that you perceive to be coercive, should you immediately seek relief from the court?  A recent decision illustrates some of the issues to consider before you ask a judge to solve your litigation problems.

In The Board of Trustees of the University of Illinois v. Micron Technology, Inc., a patent infringement suit, the University alleges that Micron sold semiconductors that were made using its patented process.  Before the lawsuit, the parties had a collaborative relationship and Micron actively recruited the University’s engineering students to work in its facilities.   The lawsuit brought this relationship to an end.  An email from Micron’s Academic Program Manager to many of the University’s engineering professors in January 2013 read as follows:

Because Micron remains a defendant in a patent infringement lawsuit that [the University] filed against Micron . . . , effective immediately, Micron will no longer recruit [University] students for open positions at any of Micron’s world-wide facilities.

The University immediately demanded confirmation from Micron that it would not engage in any further communications of this kind.   Micron requested a legal basis for the University’s demand, which apparently was never provided, and refused to confirm that it would cease its communications.  The University then filed a motion with the court seeking “an injunction that prohibits Micron from sending similarly coercive correspondence to the University.” 

In support of its request, the University argued that Micron’s behavior was “coercive” under Illinois law and was designed to compel the University to dismiss the case.  The University acknowledged that Micron could choose not to hire University students, but argued that Micron could not convey that choice to University personnel in an effort to put pressure on the University.

District Court Judge Sarah Darrow rejected the University’s requests for several reasons.  Initially, the injunction sought was vague and could not be tailored to describe what future communications would be prohibited.  The requested injunction was also a prior restraint on speech, raising serious First Amendment concerns.  In addition, Judge Darrow determined that the University improperly sought to “enjoin an alleged injury that is unrelated to its underlying complaint of patent infringement.” Finally, Judge Darrow noted that the University failed to present sufficient evidence to suggest that Micron’s email was sent in a calculated effort to interfere with the litigation. 

So, while Judge Darrow considered Micron’s “decision to shun the University’s students  [to be] without tact” and was “very concerned” about the manner in which the decision was communicated, she could not provide the University with any relief. 

If the University’s goal was simply to make the court aware of Micron’s behavior, then its strategy worked.  But getting the court involved in a fight that it is unable to resolve is not a valuable practice.  Before requesting relief, it may be best to attempt to resolve the dispute by agreement or seek leave to pursue discovery in order to determine whether there is basis for the court to intervene at all.  Along with assembling evidence, you should determine whether there is a viable judicial remedy.  If not, the parties must simply resolve the issue on their own and not ask the court to umpire hardball litigation.

Last week, Liverpool striker Luis Suarez was suspended for 10 games for biting a Chelsea player during a globally broadcasted English Premier League game.  You can watch Suarez’s chomp in slow motion from just about every camera angle.  Suarez issued a public apology and paid a fine, believed to be approximately two week’s salary — approximately $350,000.  British Prime Minister, David Cameron, stated that Suarez’s conduct set “the most appalling example” to children. 

This, unfortunately, is not the first instance of Suarez’s aggression.  In 2010, he was banned for 7 games when he bit PSV Eindhoven player, Otman Bakkal.  As a result, he earned the nickname the “Cannibal of Ajax.” 

Unlike soccer, American football, hockey, and boxing are based on repeated physical assaults.  These occurrences raise questions about the liability athletes face (or do not face) for acts of aggression taking place on the field during the game.  Of course, when a player steps into that zone, he or she assumes certain risks —  the risk of any loss, damage, or injury that may occur to him or her while on the playing field.  The athlete also has given informed consent to any injuries that may occur — he or she has full knowledge of the risks associated with athletic competition and consents to those risks.  Under these theories, it would seem as if athletes are protected from tort liability for incidents or injuries administered to an opponent.  What happens, though, when the conduct at issue extends beyond aggressive competition and rises to the level of criminal conduct?  

Here, Suarez’s actions, if taking place off the field, would be deemed criminal.  One cannot merely walk down the street and bite another individual without criminal sanctions or penalties.  Suarez, however, was not charged criminally; he was merely suspended for a number of games,despite the fact that this is not his first offense.  This incident, of course, brings up memories of the 1997 Tyson v. Holyfield fight, where Tyson bit off a portion of Holyfield’s ear.  Rather than face criminal penalties, Tyson was fined $3 million and his boxing license was temporarily revoked. 

Evasion of criminal liability, however, is not always the norm.  There are numerous incidents where the conduct of NHL hockey players has resulted in criminal charges.  Most recently, Todd Bertuzzi of the Vancouver Canucks punched Steve Moore of the Colorado Avalanche in the back of the head, rendering Moore unconscious.  Bertuzzi then fell on top of Moore, crushing him into the ice.  Moore sustained numerous injuries, including fractured vertebrae and a concussion.  In addition to fines and suspension, Bertuzzi was criminally charged with assault causing bodily harm and faced up to one and a half years in prison.  Bertuzzi later pled guilty to the charge and was sentenced to 80 hours of community service and one year’s probation.

The inconsistencies in these sanctions show that there are no “rules of the game” when it comes to criminal conduct on the playing field.  What remains to be seen is how authorities will deal with such conduct in the future.  Will government entities intervene and create legislation against criminal conduct in sports, or will it continue to be left to the governing body of each sport? 

Let’s say one day you observe your local police officer walk a drug-sniffing police dog up to the front door of your neighbor’s house.  The dog sniffs around outside, then gives a positive signal to the officer.

Did you just witness the police conduct a search of your neighbor’s home?  The answer, according to a recent opinion from the Supreme Court of the United States, is yes.

Recently, the Court handed down its opinion in Florida v. Jardines, its second drug-sniffing dog case from last term.[1]   In Jardines, the Court held that “the government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”

The facts of Jardines are essentially what were laid out above.  Police received an unverified tip that marijuana was being grown in the home of Joelis Jardines.  Police officers approached Jardines’ home with a trained drug-sniffing dog.  The dog sniffed around the front porch area of the home and the base of the front door, and gave an alert signal indicating he had detected drugs.  On the basis of the dog’s signal, police applied for and obtained a warrant, and executed a search of Jardines’ home later that day, discovering marijuana plants inside.

Writing for a 5-4 majority, Justice Scalia wrote that the police’s actions with the drug-sniffing dog constituted a physical intrusion into the curtilage of Jardines’ home which was protected by the Fourth Amendment.  The majority opinion rejected the notion that the police had an implied license to come onto Jardines’ property with their dog.  While past decisions of the Court had recognized an implied license for a visitor, whether a police or private citizen, to approach a home and knock on a door “background social norms do not invite him there to conduct a search[,]” wrote Justice Scalia.

In a concurrence, Justice Kagan wrote that the case could be decided not only on the grounds of property rights, but also based on the Fourth Amendment’s “reasonable expectation of privacy” jurisprudence.  Kagan likened the police’s activity in Jardines to a stranger coming to one’s front porch and peering in through the windows with binoculars.  Such behavior, Kagan pointed out, would obviously violate an individual’s reasonable privacy expectations.

Justice Alito, writing for a four-justice minority, argued that the police were acting within their license when they approached the front door, and the presence of a police dog did nothing to alter that license. Privacy interests were not violated, according to the dissenting opinion, because a reasonable person understands that odors emanating from a home are capable of being detected from locations that are open to the public.

Jardines unquestionably strengthens the protection afforded to an individual’s home and curtilage by the Fourth Amendment.  Notably, Jardines is also a rare check by the Supreme Court on the government’s ability to use drug-sniffing dogs in law enforcement efforts. 

[1] Recently, we also covered Florida v. Harris, a case in which the Supreme Court of the United States held that the reliability of a drug-sniffing dog’s positive alert for illegal substances was properly determined by a fact driven, totality-of-the-circumstances analysis. 

Recently, the Chief Judge for the United States District Court for the Southern District of New York refused to recuse herself from a case simply because her husband and his clients may have been the victim of the defendant’s efforts to hack a computer system.  Similarly, a Philadelphia judge acquitted a defendant/police officer and his verdict raised “concerns” that the judge was married to a police officer.

Since 2009, when the Supreme Court issued its decision in Caperton v. A.T. Massey Coal Co., Inc. 556 U.S. 868 (2009), the issue of recusal has been a hot topic in civil and criminal litigation.  In Caperton, the Supreme Court ruled that a justice on the West Virginia Supreme Court violated the Due Process Clause of the Fourteenth Amendment by not recusing himself in the case.  Recusal in the case was sought after the appellant’s chairman and principal officer gave a substantial donation to the justice’s election campaign.

28 U.S.C. § 455 governs disqualification of federal judges.  Pursuant to § 455, a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”  (emphasis added).  A judge’s disqualification also is required in particular circumstances.  A judge is required to recuse himself when: (1) he has personal bias or prejudice towards a party; (2) he served as a lawyer in the matter; (3) he previously practiced with a lawyer involved; (4) has a financial interest in the matter; or (4) a person with whom he or she has a relationship is involved as a lawyer or party in the proceeding.  

In state courts, the rules governing recusal differ but generally are more vague than § 455.  Cannon 3 of the Pennsylvania Code of Judicial Conduct permits judges to recuse themselves in proceedings “in which their impartiality might reasonably be questioned.”  The Cannon goes on to provide examples of instances where recusal would be proper, most of which mirror the circumstances provided in the federal court statute described above.  However, unlike the federal statute that requires recusal, the Pennsylvania rule merely allows for recusal.  As a result, despite the provided examples, the Pennsylvania rule is subject to interpretation and provides a judge with significant latitude when deciding whether he or she should recuse herself.  In Pennsylvania state judges are elected officials.  As a result, attorneys may have campaigned for a judge, donated to a judge’s campaign, or have an established relationship with a judge which arguably could warrant recusal.  Also, in smaller communities, judges are central public figures and frequently interact with the public. 

Judges pride themselves on being impartial and on having the ability to put aside personal biases and prejudices.  Because judges may sua sponte recuse themselves from cases, a recusal motion can be seen as questioning these qualities.  A fundamental principle, right or wrong, is that judges are objective and impartial.  A judge potentially could be offended by a recusal request and/or could attempt to be overly impartial in an attempt to be fair.  Conversely, the judge may be overly sensitive to the subject of the motion and lean in favor of the party that asked for a removal.  While each of these occurrences is uncertain, a recusal request puts litigants in a tough position. 

Last month, the U.S. Court of Appeals for the D.C. Circuit in United States v. Ring, No. 11-3100 (D.C. Cir. Jan. 25, 2013), upheld a conviction for bribery under the public sector honest-services fraud statute, expanding the definitions of "corrupt payments" and "official action," and thus making it easier for federal prosecutors to secure convictions under this statute. The court, in an opinion by Judge David Tatel, held: (1) implicit quid pro quo is sufficient for a bribery conviction, and no actual agreement by the public official is necessary; (2) there is "official action" when a lawyer in the Justice Department emails a secretary with the Immigration and Naturalization Service requesting expedited review of a visa application; and (3) the trial court did not abuse its discretion under the First Amendment or Federal Rule of Evidence 403 in allowing the jury to draw an adverse inference from a defendant's history of lawful campaign contributions.

The Facts

The defendant, Kevin Ring, worked as a lobbyist for Jack Abramoff. His role included fundraising for campaign contributions and developing and maintaining relationships with public officials to serve the lobbying firm's clients. Although campaign contributions were the primary means of accessing public officials, Ring treated these individuals to dinners, drinks, travel, concerts, sporting events and other forms of entertainment. A 2004 federal investigation of Abramoff ultimately led to the prosecution of Ring. At trial, he was convicted on three counts of honest-services fraud, one count of paying an illegal gratuity, and one count of conspiracy to pay an illegal gratuity, and sentenced to 20 months in prison, the opinion said.

Lawful Lobbying vs. Corrupt Bribery

The court noted that "lobbying has been integral to the American political system since its very inception." It is an enormously influential political machine. As of 2008, there were more than 14,000 registered Washington lobbyists, and lobbying expenditures on Congress and federal agencies exceeded $3 billion. "Lobbyists serve as a line of communication between citizens and their representatives, safeguard minority interests and help to ensure that elected officials have the information necessary to evaluate proposed legislation," the opinion said.

To achieve these ends, lobbyists develop personal relationships with officials, through campaign contributions and events including, for example, dinners, drinks, concerts and sporting events. As long as gifts do not constitute bribery, lobbyists are free to use them to "curry political favor," the opinion said. The line dividing legal lobbying from corrupt bribery is crossed when a gift is tied to a particular act. (See United States v. Sun-Diamond Growers of California, 526 U.S. 398, 405-08 (1999).) In Ring, the court commented that although the "distinction between legal lobbying and criminal conduct may be subtle ... it spells the difference between honest politics and criminal corruption."

The Supreme Court set the scene for Ring in Skilling v. United States, 130 S. Ct. 2896, 2907 (2010), in construing the public sector honest-services fraud statute to cover "only bribery and kickback schemes."

'Implicit' Quid Pro Quo Is Sufficient

Ring challenged the jury instructions underlying his bribery conviction for three flaws in stating: "(1) that an explicit quid pro quo was required; (2) that the official must agree to the exchange; and (3) that, at the very least, a corrupt payment must be offered." The court rejected all three challenges.

Ring claimed McCormick v. United States, 500 U.S. 257 (1991), required an explicit quid pro quo. There, the Supreme Court required an explicit quid pro quo to criminalize campaign contributions under the Hobbs Act. Ring urged the court to extend that holding to other things of value, but the court found that, in addition to the fact that it is unclear what an explicit quid pro quo requirement would look like in practice, campaign contributions are distinguishable from other things of value. In a world where political campaigns are privately funded, public officials must solicit contributions. Free lobster tails and Rolling Stones tickets simply do not serve this same purpose. Thus, there was far less concern about "criminalizing politically necessary activity or chilling constitutionally protected speech" and the court declined to impose an explicit quid pro quo requirement.

Ring also claimed the prosecution was required to prove that the public official accepted the offer. Based on Skilling's conclusion that honest-services fraud covers only bribery and kickbacks, the federal bribery statute, 18 U.S.C. §201(b), provides background for honest-services bribery. The court commented that the bribery statute "defines two separate crimes: the act of offering a bribe and the act of soliciting or accepting a bribe." Because bribery does not require that the official accept the bribe, neither does honest-services bribery. The key to bribery is intent — the intent to affect a quid pro quo, and the intent to influence an official act. Thus, the statute is satisfied by proof beyond a reasonable doubt of "intent to offer or solicit an exchange of official action for personal gain."

Ring's final challenge to the instructions was that they failed to require that the defendant intended to offer a quid pro quo exchange. Both sides agreed this element was necessary, and the court found that the jury was properly instructed as to this element. Instructions must require, and these did, "a specific intent to influence official acts, an intent that the official realize or know that the corrupt exchange is being proposed, and a showing that the gifts were conditioned upon the official act or agreement." The court concluded that the mens rea element, rather than the conduct itself, distinguishes legal lobbying from corrupt bribery. 

Email Constitutes 'Official Action'

Ring's illegal gratuity conviction was based on him giving Washington Wizards basketball tickets to a DOJ attorney after he helped expedite the review of a visa application at Ring's request. The attorney called a secretary at the INS and then emailed her Ring's request with a short personal note. The secretary contacted five INS officials to make sure the request was answered, because it had come from "higher headquarters" at the DOJ. In less than a day, the INS agreed to expedite the application. Soon after, Ring emailed Abramoff that the DOJ attorney had helped with the application and wanted Wizards tickets. Ring did not challenge whether Wizards tickets should be considered a "thing of value," the opinion said.

Ring did not challenge that the tickets were given "for or because of" the attorney's assistance, but he claimed the attorney did not take any "official action" because the attorney had no direct control over the ultimate end — the expedited review. Ring claimed that under Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007) (en banc), the attorney did not exert any "inappropriate influence on decisions that the government actually makes." In Valdes, the court found there was no "official action" when a police officer accepted money in exchange for conducting searches of license plate and warrant databases.

The court distinguished Valdes as a case in which the official was merely answering an informational inquiry. By contrast, the DOJ attorney, in forwarding the email, "acted in his official capacity to influence the visa application process." The secretary even testified that she felt that she had to meet the attorney's request because of his office. Finally, the prompt result, achieved in less than a day, demonstrated the attorney's influence on the process. This evidence provided a sufficient basis to find "official action."

No Abuse of Discretion

During the trial, the government repeatedly introduced evidence of Ring's lawful campaign contributions in order to create a complete picture of Ring's "interactions with public officials." For example, the opinion said, there was meaty evidence of a running joke whereby Ring would hold up a campaign check and ask, "Hello quid. Where's the pro quo?" The trial court admitted this and similar evidence to demonstrate Ring's modus operandi and to give the jury a more complete picture of the circumstances, but each time admonished the jury that the campaign contributions were lawful and not to be considered in reaching a verdict. In all likelihood, the jurors did not appreciate Ring's attempt at humor.

The appellate court rejected Ring's claim that this evidence infringed on First Amendment protections, citing to Supreme Court precedent allowing "the evidentiary use of speech to establish the elements of a crime or to prove motive or intent," as in Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993). McCormick, according to the court, did not indicate that campaign contributions were an exception to this general rule.

Ring's Rule 403 claim had to jump over the high hurdle of "abuse of discretion review." Ring's campaign contributions were probative to show how Ring was able to influence public officials. There was testimony at trial that campaign contributions were viewed as "ante in a poker game." In other words, lobbyists are not in a position to offer bribes without the campaign contributions. The contributions show how Ring carried out his clients' political agendas. On the other hand, the contribution evidence could unduly prejudice Ring or confuse the jury. In assessing whether there was a quid pro quo, the court noted that the jury may have improperly considered evidence of Ring's jokes about contributions. Despite this impropriety, the court concluded that the trial court did not abuse its discretion in allowing the testimony. In particular, the judge's repeated instruction to the jury that the contributions were not illegal reduced the prejudicial effect.

Power for Prosecutors

Ring gives federal prosecutors more power to secure convictions for honest-services bribery and illegal payment of gratuities. In particular, the court declined to require proof of an explicit quid pro quo (although it is not clear what such a requirement would entail), and adopted an expanded view of "official action," finding that an email forwarding a request can meet that requirement.

Businesses and their lobbyists should keep these principles in mind moving forward in this complex political sphere, because bribery prosecutions are nothing to joke about.

Originally published in The Legal Intelligencer on February 27, 2013

The alert of a drug-sniffing dog might allow police to search your car or baggage, but just how reliable does that hound have to be?  The U.S. Supreme Court provided some guidance but rejected a fixed checklist of requirements in Florida v. Harris, the first of two significant dog-sniffing cases that were argued before the high Court last October.

For over forty years, law enforcement officials in the United States have used drug-sniffing dogs as part of their effort to detect illegal narcotics.  Police may use such dogs at routine traffic stops or in airports without need for a warrant or probable cause because, as the Court famously ruled in United States v. Place, 462 U.S. 696 (1983),  the sniff of a police dog is not considered a search subject to Fourth Amendment protection.  Courts have made clear that while the use of a drug-sniffing dog doesn’t require probable cause, the dog’s detection of the scent of narcotics can produce the probable cause that justifies a police search.

But should that always be the case?  In his dissent in Illinois v. Caballes, 543 U.S. 405 (2005) Justice Souter wrote, “The infallible dog … is a creature of legal fiction.”   Was Justice Souter right?  Are there circumstances under which a positive alert from a drug-sniffing dog does not constitute  probable cause for a search?  That was the argument from the defendant in the Harris case. 

Consider the facts of Harris: a police officer observed Harris’s truck on the road with an expired license plate, and pulled Harris over as part of an ordinary traffic stop.  After pulling him over, the officer noticed that there was an open alcoholic container in the vehicle and Harris appeared nervous.  Harris refused to consent to a vehicle search.  Not surprisingly, the officer then retrieved his specially trained police dog, Aldo, from the vehicle and walked Aldo around the truck.  Aldo gave an alert at the driver’s side door handle that signified he had detected the scent of drugs there.  The officer then searched Harris’s truck and uncovered ingredients for making methamphetamine.  Harris was arrested and released on bail.  Amazingly, while on bail, Harris was pulled over again for having a broken tail light by the same officer, and subjected to another sniff and alert by Aldo.  The second time, however, the officer found nothing in the truck.

At a subsequent hearing to suppress the evidence found in the first search, Harris argued that Aldo’s alert was insufficient probable cause for the search of his vehicle.  Harris offered two reasons: (1) Aldo’s certification in drug testing (issued by a private company) had expired a year prior to the search; and (2) in both searches, Aldo smelled drugs that were not found in Harris’s truck (Aldo was trained to detect the scent of  methamphetamine, but not the scent of the meth ingredients that were actually found in Harris’s truck).  The state countered Harris’s argument with extensive training and testing records for Aldo. 

The Florida Supreme Court agreed with Harris and suppressed the evidence.  “[T]he fact that a dog has been trained and certified is simply not enough to establish probable cause,” the Florida court wrote.  Instead, the Florida court concluded, the state must produce “the dog’s training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts) and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability.”

Justice Kagan, writing for an unanimous Court, flatly rejected the Florida court’s holding.  Determining probable cause is a fluid approach, wrote Kagan, “turning on the assessment of probabilities in particular factual contexts – not readily, or even usefully, reduced to a neat set of legal rules.”  By creating a checklist of fixed requirements for drug-sniffing dogs, the Florida court had “flouted” the Court’s probable cause jurisprudence.  The proper test, said the Court, is “whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” 

In the course of emphasizing analysis driven by factual context, however, the Court did provide guideposts.  The Court concluded that a dog’s reliability is better measured in controlled testing environments rather than in field performances, where a number of variables may contribute to errors in the record.  Significantly, the Court noted that a dog’s satisfactory performance in a training or certification program could by itself  provide sufficient reason for a court to presume that a dog’s alert constituted probable cause.  A defendant must also have the opportunity to challenge the evidence offered by the state, the Court explained, such as contesting the adequacy of a training program or introducing evidence of poor field performance, an officer cueing a dog, or a team working under unfamiliar conditions.

Under the circumstances of the case, the Court concluded that Aldo’s substantial training and demonstrated proficiency gave the officer sufficient reason to trust the dog’s alert.  It should be noted, however, that Harris could not challenge Aldo’s training on appeal because he had failed to do so in the trial court.

Harris undoubtedly gives law enforcement officials a long leash for their police-sniffing dogs, but also dispels the legal fiction of the “infallible dog.”  Next up on the Court’s dog docket: Florida v. Jardines, a case that examines whether police may use a drug-sniffing dog to check the front porch and door of a home suspected of illegal drug activity.

By now, the concept of Upjohn warnings should be familiar to any counsel, whether in-house or external, who represents a corporation's interests in an internal investigation. In a nutshell, an Upjohn warning is derived from the Supreme Court decision in Upjohn v. United States, 449 U.S. 383 (1981), and is a mechanism for establishing corporate privilege by which corporate counsel explains to the corporation's officers and employees that when the individual officer or employee provides a statement to corporate counsel in the course of an internal corporate investigation, it is the corporation — and not the individual — that holds the attorney-client privilege for that statement.

A pair of significant cases in 2012 demonstrated just how important proper documentation of an Upjohn warning can be for establishing a privilege claim.

The first case is In re Google, 462 F. App'x 975 (Fed. Cir. 2012). You probably read about the legal battle pitched last year between technology giants Google and Oracle. In February 2012, several months before a jury found that Google did not infringe on two of Oracle's patents, the U.S. Court of Appeals for the Federal Circuit ruled that an internal email by a Google engineer was not protected under Upjohn because nothing indicated that the engineer had prepared the email "in anticipation of litigation or to further the provision of legal advice."

Google had argued that the engineer's email was made at the request of in-house counsel for the purpose of investigating Oracle's infringement allegations. In support, Google offered a declaration from its counsel that the email was prepared at his request. The Federal Circuit rejected Google's argument, observing that the content of the email itself suggested that the engineer's email was a response to a request from Google management relating to Google's pursuit of a license for Oracle's patents — and not a response to a request from counsel for assistance in the infringement suit.

The second case is Custom Designs & Manufacturing v. Sherwin-Williams, 39 A.3d 372, 374 (Pa. Super. Ct. 2012). Just as in the Google case, the court in this case rejected a corporation's privilege claim under Upjohn because the record did not indicate that the disputed communication was prepared at the request of counsel. In Custom Designs, the plaintiff was a cabinet company whose building caught fire and was significantly damaged. The day after the fire, a Sherwin-Williams employee visited the site of the fire and shortly thereafter prepared two memoranda addressed to Sherwin-Williams' in-house counsel. The cabinet company later sued Sherwin-Williams, alleging that Sherwin-Williams' products had caused the fire. In discovery, Sherwin-Williams claimed privilege with regard to its employee's two memoranda to its counsel.

The Pennsylvania Supreme Court has adopted the protections of Upjohn, and the Superior Court analyzed Sherwin-Williams' privilege claim in the case accordingly. The court noted that the employee's memoranda did not become nondiscoverable "solely by virtue of [their] having been communicated to counsel." The court noted that the employee had visited the site of the fire on his own initiative to aid a major client, and had testified that he didn't know whether he had prepared the memoranda on his own or had been directed to by counsel. The court further found that Sherwin-Williams had produced no evidence that its counsel had requested the memoranda or that counsel was actively conducting an investigation at the time. Under those facts, Sherwin-Williams could not meet its burden to establish privilege under Upjohn. 

Both the Google case and Custom Designs remind us that a corporation claiming privilege under Upjohn will need to be able to support its privilege claim with evidence that the material in question was prepared at its counsel's request. As these recent cases demonstrate, courts do not grant Upjohn protection lightly. Corporate counsel conducting internal investigations in 2013 should document their efforts accordingly.

Published in The Legal Intelligencer on January 23, 2013.

Aaron Swartz, 26 year-old co-founder of Reddit and long-time activist against the Stop Online Piracy Act (SOPA), committed suicide.  Mr. Swartz killed himself weeks before his trial for charges related to his access to MIT’s computer network and downloading thousands of academic articles from MIT's JSTOR system.  Swartz faced up to 20 years in prison for charges of computer fraud, wire fraud, and unlawfully obtaining information from a protected computer.  Swartz was convinced he should not be imprisoned for his actions as part of any negotiated plea agreement.  The prosecution insisted on jail time as part of any sentencing recommendation to the Court. MIT and JSTOR did not file any civil actions against Swartz and it is unclear how interested either was in criminal charges.

As details of Swartz’s suicide emerge, it has become clear that he suffered from a history of depression.  In fact, he wrote about his mental issues publicly in a November 27, 2007 blog post titled “Sick”.  Many commentators are linking Swartz’s suicide to his prosecution. Not surprisingly, Swartz’s suicide has raised an impassioned debate about prosecutorial discretion.  This issue has been the topic of debate on the New York Times blog and the Wall Street Journal Law Blog.  Many critics have argued that U.S. Attorney Carmen Ortiz’s actions were overzealous and overreaching.  Ortiz has been notoriously quoted for her comment: “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”  Swartz’ supporters have even rallied behind “Aaron’s Law,” which would reform the Computer Fraud and Abuse Act, the very law used to prosecute Swartz. Ortiz’s position has been defended by others.  For example, George Washington University Law School Professor, Orin Kerr, on his blog, “The Volokh Conspiracy stated that “the charges against Swartz were based on a fair reading of the law.”  Afterall, a Grand Jury voted and returned an indictment based on witness testimony and evidence.

Within this debate, is the issue of how prosecutors, as well as defense attorneys, should handle depression and mental illness facing the accused.  What duties do attorneys have when a client/defendant is competent to stand trial but suffers from the dangers of depression? 

Prosecutors, on the one hand, have a duty to protect the community against crime.  A prosecutor’s duties are laid out in ABA Model Rule 3.8.  Nowhere in that Rule is a duty to analyze or address the mental state of the accused.  A case like this one, however, makes one re-think these duties.  Were the prosecutors aware of Swartz’s depression issues?   Assume the prosecutor was aware of Swartz' 2007 blog post, did their role change?  Prosecutors do not have a duty or a professional responsibility to take the accused’s mental illness into consideration when determining how to prosecute a case.

On the other hand, what responsibilities does the defense attorney have in this situation?  According to Model Rule 1.6, “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent . . . .”  Accordingly, a defense attorney does not have the right to reveal a client’s mental health information without the client’s consent.  The Rule, however, provides an exception permitting the breach of client confidentiality “to prevent reasonably certain death or substantial bodily harm.”  Does a client’s mental illness or depression rise to the level of a permissive breach of client confidentiality?  If so, to what extent can this information be disclosed to the prosecution.

Finally, if such a situation does arise, where the defense attorney releases the mental health information and the prosecution plans to take it into consideration, how should the disclosure take place for purposes of sentencing? Or, in this case, when negotiating a plea agreement.  The timing of such disclosure can be critical to both sides’ evaluation of an appropriate and fair disposition.

The charges against Swartz were dismissed after his death and JSTOR has now made several million academic articles available free of charge.