10 Prosecution Terms You Didn't Learn on The Wire
David Simon's hit TV series The Wire taught us various techniques prosecutors can use to catch crooks from pen registers to Title III wiretaps. The show also taught us how to talk the talk with key phrases like what it means to re-up (get more dope), where the hall (city hall) is, and how to carry your weight (do time). But corporate counsel may sometimes feel they need a translator when talking to a prosecutor as the victim of a corporate crime such as a theft of trade secrets or during a grand jury proceeding.
Its far too common for in-house counsel to get lost with some of the federal criminal procedure terms of art. Because there will never be a season of The Wire focusing on corporate crime, weve put together a quick reference guide for need-to-know corporate federal criminal procedure terms. These 10 terms will help corporate counsel stand tall.
- Proffer Letter: This letter (also known as a "queen for a day letter," but with no crown) generally provides information from a proffer meeting, which will not be used directly against the individual or for purposes of sentencing enhancements (as long as he or she does not lie during the meeting). A proffer letter should not to be confused with immunityeither letter immunity, which provides the individual protection from prosecution only for the U.S. Attorney's Offices that sign the letter, or statutory immunity under 18 U.S.C. § 6002, which is used to compel testimony after a witness invokes the Fifth Amendment and must receive approval by an Assistant Attorney General.
- Grand Jury Subpoena: This is the most common way federal prosecutors gather evidence. The subpoena either requests testimony or documents such as business, phone, or financial records. If its a request for documents, there is typically a records affidavit attached to the subpoena. If completed correctly, the affidavit can lay the proper evidentiary foundation and save some poor clerk a trip to court to get the records into evidence or the grand jury to testify about the records.
- Search Warrant: This means a bunch of agents (POH-leece in Wire parlance) in flak jackets are going to take everything that could be connected to a crime they are investigating. And a judge has blessed it. You should plan on business disruption, unhappy employees, and attempted interviews of employees. The warrant package will consist of the warrant itself, a description of the location to be searched, a list of items to be seized, and a sealed affidavit that describes the probable cause leading to the warrant. After executing the warrant, the agent will leave a copy of the warrant and receipt for the property taken.
- Target and/or Subject: Target is as bad as it sounds: The government plans to charge this person or company with a crime. They are just waiting for enough evidence to do it. A "target letter" may memorialize this intention. Subject means the government thinks the individual or entity may have done something wrong, but does not have enough informationyet. Keep in mind that subjects can become targets.
- Guidelines: This refers to the federal sentencing guidelines (also called U.S. Sentencing Guidelines or USSG). This is how federal judges figure out either how long a defendant will go to jail or how much money a company will pay using a formula based on the defendants history and conduct. The U.S. Supreme Court said that the guidelines were advisory in 2005, so judges need to consider the guidelines and impose a sentence no greater than necessary to achieve their objectives of the USSG. Corporate fines are calculated using Chapter 8, and companies can obtain a lower penalty range under the guidelines by cooperating and having an effective compliance program.
- Cooperators: The Wire crew calls these folks snitches. They are providing information about alleged wrongdoing (some of it may be true). Cooperators provide information for a variety of reasonsto get a 5K (see below) or other consideration.
- 5K: This means the cooperator was helpful, and the government will ask the sentencing judge to depart below the advisory sentencing guideline range to get a lower sentence. This may be bad for the target, and subjects may now become targets. The judge may depart more or less than the government asks from the guidelines.
- Monitor: A monitor is an independent third party agreed to by the company and government who makes sure the company complies with a deferred or non-prosecution agreement. These agreements save the Department of Justice and companies trial resources and time by agreeing to an out-of-court settlement of a criminal investigation with the company paying a lot money, agreeing to reform the compliance program, and not breaking the law for a certain period of time. There is no conviction for the company, but employees may get charged later. The monitor is probably a former DOJ guy who will make a lot of money for this service.
- Forfeiture: This may be civil or criminal and refers to an effort by the government to take either proceeds or funds that facilitate criminal activity and use it to buy helicopters, guns, and other law enforcement goodies. For criminal forfeiture, its part of sentencing and must be noticed in the charging instrument. For a non-prosecution or deferred prosecution agreement, the government and company agree that the government could, hypothetically, bring a successful civil or criminal forfeiture action, but to save everyone a lot of trouble, the company will just write a check when the agreement is signed.
- MLAT: This stands for Mutual Legal Assistance Treaty. Prosecutors use the term to discuss gathering evidence overseas. (Not to be confused with letters rogatory, which are formal government-to-government requests for evidence.) The DOJ has a special Office of International Affairs (OIA) that handles these sorts of issues for prosecutors, in coordination with a local U.S. Attorney's Office. Similarly, federal prosecutors must consult with OIA before issuing any subpoenas to persons or entities in the United States for records located abroad.
Ryan McConnell is a partner at Morgan Lewis and former federal prosecutor. He teaches criminal procedure and corporate compliance at the University of Houston Law Center. Sonia Rye is an associate at Morgan Lewis in Washington, D.C. Send us your favorite Wire slang or ideas for this column to firstname.lastname@example.org.