10 Effective Defenses in White-Collar Cases
We are here today with attorney Dr. Nick Oberheiden, founder and managing partner of Oberheiden PC, and one of the country’s most demanded federal defense attorneys, to hear how Nick and his team defend clients that are under investigation for white-collar offenses like healthcare fraud, tax fraud, mail and wire fraud, aggravated identity theft, money laundering, mortgage fraud, bank fraud, embezzlement, allegations of public corruption, to name only a few.
Q: Nick, good afternoon, thank you for this interview.
A: My pleasure being here.
Q: Nick, when a client— a business owner, an executive, a politician, a lawyer, a doctor or anyone else— contacts you and asks for your help with a criminal investigation, what is the primary goal of such a client typically?
A: Everyone has the same goal: whether you are a celebrity, public official, or simply running your family business: when the FBI, when the federal government, investigates you: you want a lawyer with effective tools to protect your business, your reputation, and your freedom.
Q: How do you know what to do to accomplish these goals? How do you know what the right defense strategy is for a particular client?
A: The right help really depends on two factors: First, the information the client provides, the story, and the circumstances of the case. Two, the stage of the investigation. The spectrum here ranges from a business owner learning about rumors that the FBI is trying to interview former employees or affiliates, to receiving a grand jury subpoena or a government target letter, all the way to search warrant, arrest, and indictment. Each of those scenarios requires a different, tailored and targeted response.
Q: Can you provide an example?
A: Certainly. Say you were contacted by the government. You know there is an investigation. If you now wait, you may miss your window of opportunity to fix things, to clarify the situation through your attorney. The more time you give the government, the more difficult it is to stop the investigation. I always tell my clients, federal investigations are not juvenile court; you can’t afford to sit back, you need to be proactive. I really don’t like saying it, but you better prove your innocence early, then getting indicted and gamble on whether the government will meet its burden. Our proactive strategy works in about 90% of all federal investigations to conclude them without charges.
Q: How is such a situation different compared to a target letter or a search warrant?
A: In case of target letter and search warrant, experienced attorneys know instantly what the concrete allegations are—and can enter into a pointed dialogue with the government to address concerns, and to clarify things. We have avoided criminal charges despite target letters and search warrants. Again, much is possible, as long as you call experienced and proven attorneys early.
Q: What do you do when a client calls you and is already indicted? Given the power of the federal government, does that mean the case is essentially lost and hopeless?
A: Absolutely not. When someone goes through the unfortunate situation of an indictment, we advise a client that there are essentially three options to resolve the case from here forward.
Q: Walk us through: What is Option 1:
A: Option 1 is what everyone wants: get my case, get my indictment dismissed. There is good news and bad news with that. The bad news is that federal indictments almost never get dismissed. Importantly, the client asserting his innocence or lack of criminal intent do not count. These are factual questions, exclusively left to the jury, which means we need to first go and have a full trial. Rare examples for dismissals are that the statute of limitation kicked in, in other words, the case was indicted too late. Another recent example is that the defendant was less than 18 years old at the time of the alleged crime. Despite these statistical challenges, and here is the good news, my team and I were able to dismiss a number of federal and state white collar cases over the years.
Q: Ok. What is the second option?
A: The second option is to prepare for litigation and for trial. In fact, we analyze every single case from the perspective of how a judge or a jury would look at the facts. If we go to trial, we typically invoke the Speedy Trial Act. That means, every defendant is, generally speaking, entitled to a trial before a jury within 90 days from the effective indictment. We execute this important constitutional right to put pressure on the government, and to clear our client’s good name as quickly as possible to bring this nightmare of a criminal case behind.
Q: Do you ever win at trial?
A: Oh yes, absolutely. Our network of attorneys on the website has obtained acquittals in dozens and dozens of trials involving virtually all types of federal offenses all around the country. I, myself, just obtained two acquittals in a federal white-collar criminal trial. This understanding, this trial experience, is really critical to help a client assess whether a trial or a plea is in that client’s best interest. Put differently, how can you advise a client to go to trial when you have never won a case?
Q: Very impressive. I guess, Option 3 then is to negotiate a plea?
A: Yes, but I want to emphasize the word “negotiate”. Many clients come to us because they feel that their lawyer is essentially selling them to the government. At my firm, we don’t surrender, we negotiate, we literally make comprehensive presentations at the U.S. Attorney’s Office to put our client in a better position. Often, these—what we call mini-trials at the government’s office— lead to dramatic reductions.
Q: You mentioned the statute of limitation. Some of your cases seem to go back many years in time. How come that these defendants are not protected by the statute of limitation?
A: Excellent question. The problem with that is that many federal cases are charged as a federal conspiracy. Even though subject to much litigation, what often happens is that the government will say: yes, we agree that the last alleged misconduct your client engaged in was more than five years ago; however, as a co-conspirator he is subject to the last conduct of the other defendants in this case.
Q: I could imagine that many clients may say: yes, I may have done what the government claims, but I never ever wanted to intentionally violate the law. I had no criminal intent. Am I right?
A: Yes. We all make mistakes. And truly not everyone who makes a mistake is a criminal. We have convinced the government in hundreds of cases all over the United States that our client truly did not do something intentionally.
Q: How did you do that?
A: I call these factual defenses. What I mean by this is nothing is more compelling than the actual, the true client story. To me, nothing is more important than what my client tells me. I don’t care what the indictment says, I don’t care what the FBI says. I focus on what my client tells. I would say I spend entire days working with my clients, establishing the chronology of the case, learning about my client’s background, and distilling the true facts. That is a lot of work—but very very rewarding. At the end of the day, no defense is better than the truth.
Q: What about a situation where I client relied on the advice he received from his lawyer?
A: We call this the advice-of-counsel defense. This defense is tricky. You need to be careful because once you invoke it, the client waives the attorney-client-privilege and all discussions and communications between lawyer and client may become discoverable.
Q: What about ignorance of the law? If someone really doesn’t know that a certain behavior or act is prohibited, is that a defense?
A: Yes and no. Ignorance of the law, generally speaking, is not a defense that, for example, gets the case dismissed; but, not knowing what you do is wrong is certainly a major factor when it comes to the ultimate case result. Many healthcare fraud cases are like this.
Q: You mentioned now quite a few different defenses: from establishing legal defenses, cooperating, obtaining an acquittal at trial, to showing that there was no intent to start with. What are ways to avoid criminal charges in the first place?
A: Good question. There are really plenty of ways. But: you must avoid the number one mistake in federal cases. You cannot afford to sit around. Don’t hesitate. Don’t wait. Call an experienced attorney right away. Focus on prevention. Make sure that your business has the necessary compliance policies and protocols to eliminate criminal intent. Have your attorney identify and fix potential compliance problems before the government does. If you are already on the government’s radar, hire an experienced federal criminal defense attorney immediately. Don’t think this case will just go away. Have your lawyer secure an immunity agreement for you. If there is perhaps one message I have for everyone even potentially exposed to federal government scrutiny: don’t wait. Be proactive. Intervene early. Stop the case before it escalates. Finally, feel free to call me directly to discuss your situation in a free and confidential consultation.
Thank you so much for these important insights.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.