Recording IndustryIn our last post on www.doescrimepay.com, former federal prosecutors Steven A. Block and Sarah M. Hall summarized the legal saga of indicted R&B star R. Kelly, one of the world’s best-selling music artists. Kelly’s legal troubles are far from the world of non-violent white-collar crime; indeed, Kelly stands charged with offenses that include racketeering, kidnaping, aggravated criminal sexual abuse, and child pornography. Several of his associates have been charged with intimidating witnesses by offering bribes and threatening acts of violence.

We ask our readers, Did You Ever Think that Kelly’s charges could relate to the staid world of white-collar criminal defense? In today’s Part 2, we are One Step Closer to answering that question by presenting lessons learned from these non-white collar cases for the white-collar practitioner and client.

Don’t Believe You Can Fly (Public statements seldom help)

Anyone who watched Kelly’s March 2019 interview with Gayle King will never forget it. Kelly apparently thought that he could use his celebrity and charisma to shape the public’s perception after the Cook County State’s Attorney charged Kelly with aggravated criminal sexual abuse. To the contrary, reviews described Kelly as “embattled,” “bizarre,” and “unhinged.” Though Kelly should have known better because this was not his first brush with the law, white-collar defendants usually find themselves in unfamiliar territory when facing criminal charges. These defendants, though they may not be celebrities, often have respectable careers, loving families and friends, and previously untarnished reputations. They often have an instinct to defend themselves in the court of public opinion before trial by speaking to the media or others in their community. This is almost always a bad idea. White-collar defendants should be counseled to save their defense for the courtroom in order to prevent making a bad situation worse. Moreover, misleading public statements may impact a white-collar defendant’s ability to accept responsibility later and seek a reduction in the total offense level at sentencing.

Beware the 3-Way Phone Call (Wiretap evidence is extraordinarily powerful)

The August 2020 federal obstruction of justice charges against Kelly associate Richard Arline are partially based on Title III wiretaps in which Arline is heard speaking with an alleged conspirator about coordinating a bribe payment to a witness against Kelly in exchange for her silence. In the white-collar world, the government also regularly utilizes wiretaps, and they may be incredibly damaging to a defendant. Many white-collar cases hinge on the defendant’s intent, (i.e., what is in his or her mind at the time the government alleges a crime occurred). As prosecutors like to tell jurors, wiretaps are powerful because they allow jurors to hear a defendant’s own words when he or she thought no one else was listening. If a white-collar case involves wiretaps, the defense attorney must have a carefully thought out plan to address the evidence in order to try the case—or decide the defense is Barely Breathin’ and seek the best plea deal possible.

Money Makes The World Go Round (Following the money is not just for prosecutors)

Though most of the charges against R. Kelly are based on witness testimony and other evidence, federal prosecutors in Brooklyn reportedly used financial and other public records to support their claim that Kelly gave Dollar Bills to an Illinois government employee to obtain fake identification that allowed him to marry the then-15-year-old singer Aaliyah in 1994. White-collar cases are often built upon the government’s financial investigators following a money trail to uncover alleged wrongdoing. But financial investigations are also critical tools of the defense. A defense financial investigator or expert (oftentimes a retired IRS agent or forensic auditor) can poke holes in the government’s financial summary, help the defense attorney prepare for cross-examination of the government’s financial analysts, and undercut the government’s damages calculations, thereby impacting the quality of the evidence presented by the Government, and, if it gets that far, the potential sentence.

Let’s Be Real Now (Honestly assess the evidence)

The cases against Kelly are not slam dunks for prosecutors. The cases mostly involve difficult witnesses and conduct that dates back many years where corroborating evidence may no longer be available. Moreover, the racketeering charges brought in New York involve complicated legal theories that may be difficult for prospective jurors to understand. On the other hand, because he faces charges in several jurisdictions, Kelly’s current legal troubles are compounded by the multiple bites at the apple prosecutors may get should his first trial result in acquittal or a hung jury. Though white-collar defendants are not likely to be charged with four separate criminal cases as Kelly is, they may face parallel civil proceedings, such as from the SEC or CFTC. White-collar defense attorneys must devote the time and attention to carefully assessing the evidence in each case to advise clients how to achieve the best outcome possible. Perhaps even more important than assessing the evidence is having the objectivity and confidence to reassess the evidence as the facts develop. What may have seemed like an impossible case at the outset may be triable with further investigation; similarly, the opposite could also be true.

If the 12 Won’t Play, Prepare to Say it’s All My Fault (Think ahead to sentencing when it’s inevitable)

Kelly has no choice but to go to trial. In light of the serious nature of the charges and Kelly’s history and notoriety, prosecutors are not going to offer Kelly a plea deal that would significantly shorten the decades-long sentence he would receive after a guilty verdict. White- collar defendants, however, are often in a far different position. Sometimes after assessing (and reassessing; see above) the evidence, the defense attorney comes to the conclusion that a case is not triable and a plea may result in an opportunity to pursue a far shorter sentence. Assuming the client agrees, the white-collar attorney’s job is nowhere near finished. Long before the decision to plead guilty is made, the conscientious white-collar attorney should advise the client regarding the importance of being in the best position possible at sentencing should that day come: if the defendant is out on bond, is he trying to find work or make other efforts to better himself or his community? Has the defendant maintained his relationships to encourage friends and family to write and speak on his behalf at sentencing? Has he considered setting aside even a nominal amount of money each month in order to show up at sentencing with restitution in hand? Finally, well in advance of sentencing, the white-collar attorney needs to counsel the client regarding allocution to avoid Fireworks. Ideally, when the defendant speaks, the judge should be thinking that he Just Can’t Get Enough, not that he wants to send the defendant away Forever More…