The January Foreign Corrupt Practices Act (FCPA) sting operation that nabbed 22 gun-industry executives--21 of them arrested at a Las Vegas trade show--changes the white-collar defense landscape markedly. The bust was the result of a classic undercover operation, complete with elaborate ruses, false identities and the key collaboration of an executive who was caught and flipped.
But as law enforcement escalates its war on FCPA crimes and expands its repertoire of tactics, white-collar lawyers are left with fewer options for defense.
"The biggest change for us will be way we advise our clients. If law enforcement is doing a sting operation, a lot more is unknown," says Pat Brady, a partner at Barnes & Thornburg.
As the feds ramped up the intensity on FCPA over the last decade, the focus was on self-disclosure. Defense lawyers could counsel their clients on what to disclose, when to disclose it and the extent of any other cooperation with investigators, all of which would be weighed by prosecutors before indictment and ultimately figures into sentencing.
But an undercover sting skips that dance and proceeds directly to the arrest. Defense counsel then face a defense strategy more akin to mob and drug trials. It's a dramatic indicator of just how much white-collar prosecution has evolved. The lines between what had been treated as separate classes of criminal are blurring. In practical terms, white-collar sting may be just another collar.
"Thirty years ago the mentality was, 'Nobody's dead, nobody's going to jail.' Now white-collar crime is viewed much more seriously," Brady says. "But recently we've seen some major sentences, both in terms of jail time and fines. Hey, they dedicated 150 agents to this sting. They don't want to plead it out to probation."