2018 NBAA Regional Forum White Plains, NY June 21, 2018

Transcription

1 2018 NBAA Regional Forum White Plains, NY June 21, 2018

2 When G Man Comes Calling Darrell A. Clay Walter Haverfield LLP Cleveland, Ohio dclay@walterhav.com

3 Why Are We Here? Aviation is a highly regulated industry government scrutiny is intense on numerous levels Aviators and business aviation units plan to avoid/mitigate risk The time to plan for a government investigation is BEFORE agents and subpoenas arrive Leave here today with tools for addressing this critical organizational need

4 Some Basic Criminal Law Concepts Grand jury 12 to 23 citizens who investigate potential criminal conduct Administered by prosecutor either issue an indictment or return a no bill Judge Sol Wachter: By and large prosecutor can get grand jury to indict a ham sandwich Indictment Document that provides formal accusation of crime Right guaranteed by the Fifth Amendment Target vs. subject Target is a person as to whom there is substantial evidence linking him or her to commission or crime and who prosecutor believes to be a putative defendant Subject is a person whose conduct is within the scope of the grand jury's investigation

5 Plan? What Plan? SHOW OF HANDS: How many of your organizations have a written plan about who to contact if the government shows up asking for documents or to interview employees? Your plan should be: In writing Distributed to ALL employees (from CEO to night security guard) Should designate a PRINCIPAL POINT OF CONTACT (CIO, GC, Head of Security), and 1-2 backups Reflect cooperative attitude, properly balanced against relevant corporate and personal concerns such as privacy rights, attorney-client privilege, etc. Contemplate initial and refresher training on an on-going basis

6 First Contact

7 First Contact First contact can set the tone for everything that is likely to follow Corporate cooperation can have substantial benefits, but should be the product of conscious decision-making At a bare minimum, plan should facilitate initial compliance with properly-authorized demands for information and then allow time for informed decision-making with defense counsel

8 Types of First Contact NOW Telephone Call Personal Visit (home/office) Search Warrant Forthwith Subpoena LATER Subpoena Duces Tecum Subpoena Ad Testificandum Administrative Subpoena Civil Investigative Demand

9 Telephone First Contact Name of agent and agency Telephone number where agent can be contacted Your call with be returned immediately by PPOC PPOC promptly returns call, with counsel and another company representative Can choose not to return call, but think twice about simply ignoring

10 In-Person First Contact Disclose nothing Have a seat (waiting room/another room) Immediately notify the PPOC PPOC s duties: Verify agents identity / check credentials / get business cards What is the nature of the visit? Is there a prosecutor who can be contacted? We intend to cooperate, but have to get counsel involved Maybe: Is the company a target or subject?

11 In-Person First Contact - Employees Could be approached day or night; home/work/elsewhere Employees have absolute right not to submit to interviews Never tell employee that he/she must refuse interview Employees have absolute right to be represented by counsel at an interview Company may elect to provide counsel for employees If employee does submit, request opportunity for counsel to debrief

12 In-Person First Contact Management Statements during interview may constitute admissions Binding on company going forward Company counsel can control access to management/control group employees, and demand to be present at any interview FOREWARNED IS FOREARMED!

13 Search Warrant Confirmation of a pending criminal investigation Agent signs affidavit - judicial officer finds probable cause Doesn t necessarily mean company is subject or target Must be given copy of warrant, but not affidavit Agents should be escorted at all times choose the route carefully Consider sending all non-essential employees home Request to video/photograph search Refuse consent for search of areas not expressly included in warrant Inventory must be provided when search concluded

14 Forthwith Subpoena Directs witness to appear immediately and give testimony or bring items with him/her Not common requires approval of the United States Attorney DOJ policy: Only be used when an immediate response is justified Typically used where there is a risk of loss or alteration of evidence Requires immediate involvement of counsel Ordinarily, should be very targeted in scope If overbroad, company could try to narrow through Motion to Quash/Motion for Protective Order Failure to respond results in contempt

15 Subpoena Duces Tecum Order to appear and produce categories of documents or other items to grand jury Cannot be unreasonable or oppressive Ordinarily have a reasonable time period in which to respond Immediately implement written hold to all impacted employees with confirmation Avoids potential spoliation of evidence / allegations of obstruction of justice Especially electronically-stored information Designate custodian(s) of records Guard against release of attorney-client privileged or other protected information Social Security Numbers, Protected Health Information, etc. Failure to respond results in contempt

16 Subpoena Ad Testificandum Order to appear and give oral testimony to grand jury Sometimes coupled with a duces tecum Counsel should help prepare witness Can refuse to testify based on self-incrimination privilege Could be immunized or given proffer agreement Can refuse to disclose attorney-client privileged information Counsel should debrief witness (if he/she is willing) Failure to respond results in contempt

17 Administrative Subpoena Power vested in Executive Branch agencies (other than DOJ) to compel testimony and/or production of documents in aid of the performance of their duties Over 300 instances where federal agencies have been granted administrative subpoena power, including FAA (Order B) Similar procedures exist under many states laws Not typically a tool for criminal investigation Could be precursor to grand jury investigation, or remain at the administrative level Respond as if it were a subpoena duces tecum Failure to comply may result in denial of a license/permit or another adverse administrative decision

18 Civil Investigative Demand Pre-complaint procedure to obtain documents, answers to interrogatories, and/or oral testimony Must be issued by the Attorney General or Assistant Attorney General; no judicial involvement Typically indicates a matter is being handled via civil, not criminal, process Respond as if it were a subpoena duces tecum Failure to respond may result in Petition for Order of Enforcement

19 Controlling the Message Don t assume that no one with find out Consider retaining a crises communications consultant Designate a single spokesperson not the PPOC Involve legal counsel in formulating all messaging, internal or external Avoid no comment

20 Internal Investigation? If company previously unaware of the matter, should consider having counsel conduct an independent investigation of the matter

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