By Eli Richardson, Bass, Berry & Sims
White-collar criminal practitioners have numerous skills and employ them in many different contexts. In the realm of white-collar practice, however, one discipline goes largely unpracticed: corporate victim advocacy.
Victim advocacy is a valuable tool for achieving important objectives for corporations harmed by white-collar crimes. It is also an opportunity for white-collar practitioners to demonstrate their versatility in providing value to corporate clientele. The corporate client may be pleasantly surprised to learn that white-collar counsel is not necessarily limited to performing reactive and expensive damage control but can also, through victim advocacy, proactively achieve positive results including recovery of corporate assets.
Unfortunately, the potential of corporate victim advocacy often is overlooked, resulting in missed opportunities for both corporate victims and their counsel. To avoid this, white-collar practitioners should have a firm grasp of victims' legal rights and the potential advantages and methods of asserting them on behalf of corporate victims.
These topics are discussed below, using the federal system as an example.
Three main federal victims' rights laws exist. One prescribes a full panoply of victims' rights, while the others relate solely to restitution.
The Crime Victims' Rights Act (CVRA) provides every “crime victim” with:
These rights are enforceable in various ways, by the prosecutor and/or the victim.2 For example, the prosecutor and the victim—separately or jointly—can file a motion to enforce them.3 A victim may also file a complaint with the Justice Department alleging violation of these rights by responsible Justice Department employees, who are subject to discipline for violations.4 The CVRA also specifically contemplates victims retaining counsel to enforce these rights.5
Importantly, “crime victim” here means, in pertinent part, “a person directly and proximately harmed as a result of a Federal offense.”6 The term encompasses artificial persons such as corporations.
Under the CVRA, crime victims have a right of restitution. The goal of restitution in federal criminal cases is “to restore a victim, to the extent money can do so, to the position he occupied before sustaining injury.”7 That goal is effectuated via two statutes: the Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. §3663A, and the Victim and Witness Protection Act of 1982 (VWPA), 18 U.S.C. §3663. These statutes have many similarities, but “the MVRA makes restitution mandatory for the crimes it covers, and the VWRA enables discretionary restitution for non-MVRA crimes.”8 In both, a “victim” is defined in pertinent part as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered.”9 Again, a corporation can be such a person.10
A client must be a “crime victim,” or a “victim,” to invoke rights under the CVRA, or MVRA or VWRA, respectively. (Hereinafter, unless the context requires otherwise, “victim” refers to a person qualifying as a “crime victim” under the CVRA and/or a “victim” under either the VWPA or MVRA). Victim status will be obvious in some but not all cases,11 and counsel must endeavor to establish that the corporate client has such status whenever possible.
The objectives of corporate victim advocacy include enabling the corporate victim to:
Of course, not all objectives are applicable in every case. Victim advocacy must be case-specific, fitting the needs and budget of the corporate victim at issue. At the outset, counsel and the corporation should identify particular objectives sought from victim advocacy.
Although I served eight years as a federal prosecutor, handling or supervising dozens of cases involving corporate victims, I cannot recall a single occasion on which a corporation actively pursued any of these objectives. Whatever the cause of such inaction, it leaves vindication of victims' rights solely to the executive and judicial branches of government, which may not realize that the corporation possesses and wishes to exercise particular victims' rights. This could deprive the corporation of the information, voice, restitution, prompt closure, or preferred sentencing outcome they might have obtained via victim advocacy. Therefore, a corporate victim generally is best served by retaining its own counsel to promote its interests by pursuing selected objectives.
Regarding the form of a resolution, there are several options: declination of prosecution; a guilty plea with or without a plea agreement; an agreement not to prosecute; an agreement to defer a pending prosecution; or trial. A prosecutor should consider the views of any corporate victim, not only to honor the victim's right to confer but also to obtain the corporation's unique perspective regarding key factors bearing on the proper resolution of the case, including the seriousness of the criminal offense and the background of the offender.12 Thus, counsel should make known the corporation's views. For example, how would the corporation feel if prosecution were to be declined? If the case were to go to trial? If a charged defendant were offered a deferred prosecution agreement? Speaking of agreements, what terms would the corporation want included in any agreement with the offender?
The corporation can also offer information bearing on the proper calculation of the U.S. Sentencing Guidelines range. In white-collar cases, the guidelines range typically is driven largely by the amount of “loss” caused by the crime.13 A corporate victim can help the prosecutor accurately determine the total “loss” by providing relevant facts and helpful insight as to the crime's impact on the corporation. The corporation likewise can assist with other determinations necessary to properly calculate the guidelines range, including whether the defendant abused a position of trust within the corporation.14
When I was a federal prosecutor, however, corporate counsel never approached me with such input. By leaving estimated guidelines calculations completely up to me, corporations were taking their chances because my perspective and factual knowledge were never identical to theirs.
If the client decides to submit a written VIS, it should explore with counsel the statement's possible tone and content. Should the VIS sound indignant rather than conciliatory? Downplay rather than emphasize the crime's effect on the corporation? Provide details regarding the crime? Counsel also can help identify a sufficiently knowledgeable and willing corporate official to execute the statement on the corporation's behalf.
A victim also can be heard by making an oral VIS at the sentencing hearing. If a corporate victim wishes to exercise this right, corporate counsel can ensure this happens by so advising the U.S. Attorney's Office or the U.S. Probation Office before sentencing.
As to what will be spoken, and how, several options exist. They range from reading aloud a previously submitted written VIS to speaking “from the heart” without notes. Each option carries its own drawbacks and advantages. Counsel can help the client make a good choice, one that balances the desire for a compelling oral VIS against the need to minimize the financial and emotional costs of preparing and delivering it. Throughout this process, counsel and the corporation should remember that this may be an excellent opportunity to address an audience (including shareholders, employees, and the general public) beyond just the sentencing court, although the corporation must avoid thereby disclosing nonpublic information it does not wish to reveal.
In sentencings I handled as a federal prosecutor, a written VIS was rare and an oral VIS rarer. This may be due largely to a general lack of understanding of the right to be heard at sentencing or an underestimation of the powerful impact an oral VIS can have on the sentencing court.
Regardless of the nuances in particular cases, an informed client generally will want a restitution order, and counsel can help obtain one. Counsel can urge the prosecutor to insist upon restitution in a plea agreement and at sentencing. Counsel likewise can advocate for a particular figure or manner of calculating restitution. Also, counsel can provide to the prosecutor crucial factual information to support the desired restitution order. Moreover, if necessary, counsel can speak at sentencing on the issue of restitution.
First, counsel can inform the corporation of collection options. For example, a victim can obtain from the federal court clerk an abstract of judgment, certifying that a judgment has been entered in its favor in the specified amount. This document then can be recorded consistent with applicable state law, thereby operating as a lien on the defendant's property in that state just like a state court judgment.16
The corporation also should understand the federal government's role in enforcing restitution orders for victims through the Financial Litigation Unit (FLU) of the respective U.S. Attorney's Offices. This role complements or may even overshadow the victim's role, depending on the victim's ability and inclination to undertake its own collection efforts.17
The federal government is authorized to enforce restitution orders,18 and the various U.S. attorneys are responsible for collecting restitution orders.19 It is the Justice Department's policy to try diligently to collect restitution on behalf of victims.20 The federal government has numerous specific collection options,21 which counsel should explain to the corporate client.
Counsel also can discuss enforcement with the prosecutor or FLU attorneys, urging the government to do its part in collecting restitution. Further, counsel can assist the FLU's enforcement efforts by providing additional relevant information regarding the defendant's assets.
Finally, if the government has obtained assets of the defendant pursuant to a forfeiture order, counsel can seek to have those assets transferred to the corporate victim. Depending on the particular case, there are multiple ways to seek assets the government has obtained by forfeiture, including filing with the Justice Department what is known as a petition for remission or mitigation of forfeiture.22 Whether assets actually have been forfeited is a question counsel should raise intermittently with the FLU; if so, whether to seek such assets is a question counsel should raise with the corporate client.
Eli Richardson is a member of Bass, Berry & Sims, Nashville, Tenn. He has more than 20 years of private practice and government enforcement experience, including an extensive background in federal and international criminal matters. Before joining the firm in 2010, Richardson served in several high-profile positions with the Justice Department, including two U.S. attorney's offices and the FBI.
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