White Collar Roundup - January 2012

Author:Day Pitney LLP's White Collar Defense And Internal Investigations Practice
Profession:Day Pitney LLP

No Unanimity Required

The unanimity requirement for convictions of crimes in federal court, laid out in Federal Rule of Criminal Procedure 31(a), does not apply to overt acts under the criminal-conspiracy statute in the U.S. Code. The U.S. Court of Appeals for the Second Circuit affirmed a conviction in which the court had not instructed the jury that it must be unanimous as to which overt acts were committed. In its ruling, the court distinguished between the elements of an offense (requiring unanimity) and specific facts relating to those elements (not requiring unanimity).

"White" and "Green" Text Messages Are Seen (and Not Suppressed)

A legal search of the contents -- text messages, directories and call logs -- of a cellphone requires no more than the use of the generic terms "correspondence, address books and telephone directories" in a search warrant, according to a Fifth Circuit opinion. There, while the cellphone seized was found in plain sight when federal agents stormed a possible cocaine and marijuana drug-trafficking operation, their warrant application did not list "cellphones" among the items to be searched. Nevertheless, they searched the phone's text messages and found incriminating evidence (such as references to the "white" and the "green") against the defendant, who tried in vain to have those elaborately coded messages suppressed.

SEC to Judge Rakoff: "Game On"

The Securities and Exchange Commission (SEC) director of the Division of Enforcement, Robert Khuzami, released a statement in connection with the SEC's notice of appeal of Judge Jed S. Rakoff's rejection of its proposed consent judgment with Citigroup. Mr. Khuzami contended that Judge Rakoff had improperly changed the rules of the game by requiring an admission of facts before agreeing to accept the consent judgment. Mr. Khuzami also defended the SEC's entering into the $285 million deal with Citigroup as justified in light of the circumstances of the case.

Should the SEC Have an Extreme Makeover?

Yes, according to this report by the U.S. Chamber of Commerce. The report details the history and functionality of the SEC and makes 28 recommendations for reform, nine of which relate to enforcement. Among other things, the report suggests enhanced training on investigative techniques, increased staffing and reduced malingering...

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