Last week the National Association of Criminal Defense Lawyers met at the Fairmont Miramar Hotel hosting their annual West Coast White Collar Seminar. This year’s theme was turning the tables on the government. I attended for several reasons, not the least of which is that I want to know exactly how the people over in the Federal Building are planning to trap, ensnare and convict the citizenry.
It turns out that it’s not always the devil you know that will get you. I mean we can all be suspicious of the FBI, and the Department of Justice, after all it’s their job to go find reasons to investigate and prosecute individuals. If they stopped finding people to convict, well then they’d be out of a job, and so that’s not going to happen.
But the more interesting thing that came out of this summit was the way in which private individuals and companies are actually using the government to both extract revenge and eliminate competition. At one panel that I attended attorney Benjamin Au went into rather extensive detail about how and when the government can use privately funded investigative materials.
In one case the government needed an outside contractor and incurred a debt for them. Seeking a funding source for this debt, the government reached out to a private source that agreed to pay the debt, however, this was overturned on appeal as an improper appropriation that would at a minimum create an appearance of obligation towards the payor to charge and prosecute an individual that was perhaps a competitor. This improper appropriation was noted by the court and they overturned the conviction.
However, in a slightly different scenario, a private actor, Charles Koch of the Billionaire Kochs, was defrauded in some fancy wine purchases (Billionaire Problems right?) and he wanted to make sure this fraudster was taken to the woodshed. Koch apparently used his massive wealth to fund an investigation privately and put together the entire case which he then handed over to the appropriate authorities to decide if they wanted to prosecute or not. No great surprise, they prosecuted, and this was a proper use of the private investigation because the government had not incurred any debt or obligation PRIOR to the prosecution.
How is this being used in the corporate world? Well those great corporate saints the insurance companies are funding investigations and litigation on the civil side that so wound their targets, there is no money left for the criminal defense funds. The lack of criminal defense funds may seem like a minor inconvenience in the battle of corporations against insurance companies, but imagine you’re on a midlevel director for a company and they become a target of an insurance investigation. Your involvement has historically been managing your department while someone else runs the company, all of a sudden you’re in the middle of a battle of titans and the defense funds are running out.
Attorney Hank Asbill had that situation with a client he was representing. His client’s company decided that they didn’t have the funds to pay for Asbill’s representation any longer, while his client was faced with the full force of the boot of the government on his neck. Asbill decided to subpoena the entire board of directors for depositions, amazingly the funds for his services became available. Oh the company? AOL.
Why does any of this matter? We live in interesting times. Whether you want to call the housing of wannabe immigrants a concentration camp or a holding facility, we have a government that is profoundly powerful and I recall the 80’s when certain elements of our society wanted to quarantine all the gay men because of the level of fear surrounding the “gay cancer” as it was known. I am a student of history, and I know that horrible tragedies happen in the name of ‘ethnic cleansing’ ‘defending the homeland’ and individuals religious choices, let alone things as inconsequential as money, oil and land.
I believe we should all know the ways the government can come after any one of us. Because sometimes, it may not be the government really behind it, but some other sinister actor, or angry individual.
The work that the Criminal Defense Bar does is frequently maligned, misconstrued and minimized. But let me tell you, when you are faced with the power of the government against you, you’ll need a strong attorney and we should be grateful that they exist in fine organizations like the NACDL.
David Pisarra is a Los Angeles Divorce and Child Custody Lawyer specializing in Father’s and Men’s Rights with the Santa Monica firm of Pisarra & Grist. He welcomes your questions and comments. He can be reached at dpisarra@pisarra.com or 310/664-9969.You can follow him on Twitter @davidpisarra
