As 2022 winds down, we want to thank all our loyal readers (hi mom!) for taking the time to visit Grand Jury Target and read our posts. We had over 50,000 views this year. While this number is a rounding error for Google or YouTube’s stats, we’re proud that so many people found our posts helpful. As always, we love hearing from our readers, so keep the comments/questions/complaints coming. On second thought, I have teenagers and don’t need any more complaints; keep them to yourself.
There have been some huge white-collar criminal cases this year: Elizabeth Holmes was convicted in the Theranos scandal along with her partner Sunny Balwani, Michael Avenatti was (again) convicted, and we’re watching the Sam Bankman-Fried/FTX case play out in real time. There are also some very big white-collar criminal issues before the Supreme Court this term as well, including how to interpret the overly broad identity theft statute and the scope of honest services fraud. Plus, the Department of Justice continues to say that it will prosecute individual executives and punish companies that do not snitch on them ASAP.
With all that said, on to our list of our ten most-read posts this year. Our goal is always to defend our clients from government overreach and overzealous prosecutors. We hope—as always—that our blog is helpful to people under investigation and to the lawyers who are defending them. Looking at the list of most-read posts, it seems that people are always hungry to read about the basics of what we do as defense lawyers.
10. Rule 17(c) Subpoenas – The Unfair Limits on a Defendant’s Ability to Prepare a Defense (Part I).
I’m trying not to be hurt that Part II of this series got no love, but I’m glad to see that this post was popular. Those new to the criminal justice system are often amazed at how criminal defense attorneys’ hands are tied when preparing for trial. This is only one example—that we cannot simply issue subpoena to gather information to assist in the defense—but it’s an important one.
9. OIG Investigations in the Time of Coronavirus: Time and Attendance Fraud by Federal Employees
This is still a hot topic for readers and for the OIG agents, too. We’re seeing an increase in these cases as remote work appears here to stay, and it will be interesting to see what kinds of time-and-attendance cases arise out of the increase in teleworking and remote work trends at federal agencies.
Proffers are a key part of a white collar criminal defense lawyer’s arsenal. But there are many kinds of proffers. Reverse proffers are the rare time when the lawyer—and the client—are not on the hot seat. The prosecutor does the talking, but it often means there is a lot of bad news for the client.
7. By Search Warrant or Subpoena, the Government Will Get Your Gmail (and the Numbers Are on the Rise)
This post uses statistics from 2019 (40,000+ subpoenas and search warrants a year to Google alone) and the numbers are on the rise. If there’s a Checklist for Investigations somewhere, then one item is no doubt on it: “Subpoena target’s Gmail account.” We’re seeing an increase in search warrants to Microsoft, Google, Dropbox, Box, and Slack—the government (correctly) realizes that companies and individuals use cloud storage for everything. Physical search warrants are likely not as fruitful as cloud-based ones. And since the tech companies aren’t pushing back, there is a lot less friction to obtaining vast amount of information.
6. OIG Investigations – Why Lawyers and Clients Should Both Worry
This has been a top post for years. We’re seeing a big uptick in new OIG investigations right now. Our firm handles a lot of OIG investigations, particularly because they can turn very quickly into criminal investigations. But all too often, federal employees and government contractors think, “it’s just the OIG” and don’t take the investigation seriously. That’s a mistake. This post exposes the hidden dangers of an OIG investigation.
5. Can a Defendant Get Attorney’s Fees If He’s Acquitted and There’s Prosecutorial Misconduct?
This is a new entrant on the list, and I have a feeling it’s the result of searches for “prosecutorial misconduct.” We continue to see some high-profile examples of prosecutors not following all the rules. Sadly, this post explains the near impossibility of recovering attorney’s fees, even if you were wrongly prosecuted in the first place.
4. How Many Times Can DOJ Try a Case After a Hung Jury? DOJ “Jury Shopping” for a Conviction
The Antitrust Division had some embarrassing losses this year—and none bigger than the “chicken cases” in Denver. This post covers the basics of why a hung jury does not always mean the end of a prosecution.
3. What is an FBI 302? The Problematic Nature of FBI Agents’ Interview Memos
There was a lot of interest in how the FBI conducts its interviews, and how it records those interviews. This post describes how an FBI interview memo can be the start of a world of hurt for the target of an investigation. This is always a popular post, mostly because I think there is a dearth of writing about this topic, even though every criminal defense lawyer will tell you how important 302s are to criminal defense work.
2. What Is a Grand Jury Subpoena?
This post goes through the basics of grand jury subpoenas—what they are, what they can demand, whether you can challenge them and so forth. This is the primary way the government builds its white collar cases.
1. Concurrent, Consecutive and “Stacked” Sentences: Why One Word Makes a Big Difference at Sentencing
This was the #1 post in 2021, too. There can be a lot of confusion about a concurrent sentence versus a consecutive sentence, particularly when the words are awfully similar. This post unpacks the various types of sentences that can be imposed.
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We wish all our readers a peaceful and happy holiday season. Stay safe and healthy out there, folks.