White Collar Roundup - December 2011

Author:Mr Day Pitney
Profession:Day Pitney LLP

Don't Count Your Chickens

The U.S. Court of Appeals for the Ninth Circuit has broadly interpreted the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030(a)(4). The court reversed the district court's dismissal of an indictment that charged a firm's former employee with conspiring to violate the CFAA by having current employees send information to him. The Ninth Circuit held that "an employee 'exceeds authorized access' under § 1030(a)(4) when he or she violates the employer's computer access restrictions--including use restrictions." But that ruling has been vacated because the court decided to hear the case en banc on December 15, 2011.

Skilling Alone Can't Keep Bruno Out of Jeopardy

The Second Circuit held that the honest-services-fraud conviction of former New York State Senate Majority Leader Joseph L. Bruno should be vacated in light of United States v. Skilling. But that was a Pyrrhic victory because Mr. Bruno now faces a retrial. Mr. Bruno argued "that the government adduced insufficient evidence at his first trial," such that re-prosecution is barred by the Double Jeopardy Clause. The court engaged in a sufficiency-of-the-evidence review, finding a reasonable jury could convict Bruno for honest-services fraud if properly charged in light of Skilling, and rejected Bruno's argument.

A Lawyer's "Privilege" to Produce

The First Circuit rejected a series of arguments from the client of an attorney who received a grand-jury subpoena for the client's records. The client tried to avoid production by making every conceivable argument that the documents were privileged, but the First Circuit disagreed with them all.

Mo' Money, Mo' Years in the Hoosegow ... Sometimes

Assistant Attorney General Lanny A. Breuer addressed sentencing disparities, including white-collar sentencing disparities, in a recent speech. He noted that "[w]ith increasing frequency, federal judges have been sentencing fraud offenders--especially offenders involved in high-loss fraud cases--inconsistently." He continued that "a defendant in one district may be sentenced to one or two years in prison for causing hundreds of millions of dollars in losses, while a defendant in another district is sentenced to ten or 20 years in prison for causing much smaller losses."

Madoff: A Scandal That Keeps Making Waves

The SEC shook up its reporting structure by issuing a final rule to make the Office of the Ethics Counsel a stand-alone office that reports to the chairman of the...

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