Some Federal Cases 'Shouldn't Be Filed,' Head of DOJ Criminal Division Says – New York Law Journal (registration)

Leslie Caldwell, Assistant Attorney General for the Criminal Division at the U.S. Department of Justice, speaking during a Federalist Society event on the topic of federal criminial law, held at the National Press Club in Washington, D.C. on Thursday, December 8, 2016.

The head of the U.S. Justice Department’s Criminal Division acknowledged Thursday that some federal prosecutors lack the experience and supervision to properly determine whether to bring charges, saying there are cases “that get filed that shouldn’t be filed.”

“There are districts where oversight is not what it should be, the experience level is not what it should be,” said Assistant Attorney General Leslie Caldwell, speaking generally about U.S. attorneys’ offices during a Federalist Society debate over the limits of criminal law.

“That does happen,” she added. “I’m not going to dispute that.”

Caldwell was joined on the panel by white-collar defense lawyers who represented companies that were cleared this year in controversial federal prosecutions.

One panelist, Cristina Arguedas of Arguedas, Cassman & Headley, defended FedEx against charges that it violated the Controlled Substances Act by delivering drugs from illegal online pharmacies. After an eight-year criminal investigation, the Justice Department dropped the charges in June, days after opening arguments.

Another panelist, King & Spalding partner John Richter, defended the Minnesota-based Vascular Solutions against fraud charges related to the off-label marketing of a medical device. In that case, a Texas jury delivered a not guilty verdict for the company and its chief executive, Howard Root, after a five-year investigation and $25 million in expenses.

“I would venture to say that a conversation that a sales rep has with a doctor, in which he or she is providing information that’s designed potentially to help patients, would not be the kind of conduct that the average person would believe could possibly be criminal. But that’s what we faced,” Richter said, noting that no patient was harmed by the device.

As a former U.S. attorney, Richter said that “for the life of me, I couldn’t at the time—and I still can’t today—understand why prosecutors believed this case was righteous if they actually did their homework.”

Goodwin Procter partner Joseph Savage Jr. discussed his defense of W. Carl Reichel, president of the pharmaceuticals division of New Jersey-based Warner Chilcott, who was found not guilty of conspiring to pay kickbacks to doctors who prescribed the company’s drugs.

Caldwell said she was not involved in any of the cases discussed Thursday but stressed that her division carefully deliberates charging-decisions and strives for fair prosecutions.

“I really do wish sometimes that the public and the press could be a fly on the wall in some of those meetings, because I think they’d be really impressed by the serious level and the serious attitude that people bring to those conversations,” said Caldwell, a former partner at Morgan, Lewis & Bockius who’s run the Criminal Division since 2014.

However, proposed prosecutions sometime advance too far before being nixed, she said. Caldwell said that, not long after becoming head of the division, a proposal was passed up from a U.S. attorney’s office—she didn’t specify which—to indict two law firm partners on obstruction of justice charges after they asked to push back the deadline to respond to a subpoena.

“When I was an assistant U.S. attorney, I always wondered: Why do we have to get, if we want to subpoena an attorney or pros an attorney or if we want to do a RICO case, why do we have to go to those bureaucrats in Washington and get their approval? Well now I know,” said Caldwell, who previously served as a federal prosecutor in Brooklyn and San Francisco.

Caldwell said that, in her time as a defense lawyer, she had discussions to extend deadlines “probably 50 to 100 times at least.”

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