Complex-Federal-Investigations-Gleeson-Fall04

Complex-Federal-Investigations-Gleeson-Fall04 - Complex...

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Complex Federal Investigations – Gleeson, Orenstein, Fall 2004 I. I NTRODUCTION AND O VERVIEW OF F EDERAL L AW E NFORCEMENT : A. Jeffries & Gleeson, “ Federalization of Organized Crime: Advantages of Federal Prosecution ”: 1. Constraint and Discretion of Fed Prosecution: a. Constraint: large increase in $$ over 20 yrs, but small pool of fed prosecutors. i. Prosecution is local decision; types of crimes prosecuted depend on local policy (i.e., immigration) and on workload of state/local prosecutors. b. Concern about disparate treatment: unavoidable. 2. Organized Crime: fed prosecutors have comparative advantage. 3. Advantages of Fed Prosecution: a. RICO b. Accomplice Testimony: b/c most culpable/dangerous Ds rarely do dirty work. i. Fed court: D can be convicted on uncorroborated testimony of accomplice. I. Keep all accomplices apart so as not to taint testimony. II. Allows fed prosecutors to bring weaker cases. ii. State court: D may not be convicted on testimony of accomplice unsupported by corroborating evidence tending to connect D w/ crime. Can’t be satisfied by corroboration of other accomplices. (NY, CA, etc.) c. Fed Grand Jury: commenced at any time , no req of formal allegation that crime has occurred. Stacked in favor of prosecution. i. Nationwide subpoena power over people and docs: subpoena quashed only if movant shows there is no reasonable possibility that witness/docs will produce info relevant to general subject of investigation . ii. Can hear evidence inadmissible at trial (hearsay); states use rules of evidence during grand jury. iii. Contempt power: civil confinement for <18 mths, then crim prosecution. iv. Fed immunity to compel testimony in exchange for use/derivative use immunity (no protection from perjury, obstruction, contempt prosecution); state statutes generally only allow transactional immunity. I. Use of grand jury to investigate possible defenses; lack of knowledge at grand jury means witness can’t testify at trial. II. If there is a tape, witness may be prosecuted for perjury. III. Quite a few witnesses take the contempt route. IV. Potential for charges of suborning perjury. d. Guidelines/Mandatory Mins: turns targets/Ds into accomplice witnesses. i. Only way to escape from mandatory sentences is to cooperate w/ govn’t. ii. On motion of govn’t, DC may depart from applicable Guideline range if D’s cooperation has resulted in substantial assistance to govn’t. iii. Govn’t has unreviewable discretion in deciding whether to enter into cooperation agreement, and substantial leeway in determining whether D has complied and rendered requisite assistance. iv. Degree of leniency is delegated to DC so as not to compromise credibility. v. Prosecutor can confer leniency directly: not charging / granting immunity; charge bargaining; agreeing to specific sentence w/ ct permission.
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