After a year of our client enduring the constant threat of arrest and being unable to visit his children in India, we convinced the DOJ to drop their investigation altogether.
Queen for a Day Fiasco
Prior counsel’s ill advised decision to bring Dr. Patel in nearly cost him his freedom. The prior attorney didn’t properly prepare our client for the withering examination he faced from the prosecutor and FBI agents, appearing to them a guilty man. Unfortunately, too many bad criminal defense attorneys, many of whom are former prosecutors, run to the government first in the hopes of getting a better plea deal without properly vetting the facts. This was true here with prior counsel.
What we tell clients is that the government is NOT your friend and you have to approach negotiations understanding that.
After the fiasco of the Queen for a Day with prior counsel, Dr. Patel fired him and hired us.
Changing the Narrative
A closer look and deeper examination of the facts revealed our client’s conduct wasn’t criminal at all
At this point, we had to clean up the mess left by Dr. Patel’s original attorney. We started by examining the statute.
“Theft of trade secrets” is a crime under the Economic Espionage Act of 1996. Congress enacted this provision to expand on earlier legislation criminalizing the theft of company property. The term “‘trade secret’ means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible.”
Shortly after Dr. Patel retained us, we met with the government in what is called a “reverse proffer” where the government presented their evidence to us outside Dr. Patel’s presence. They then conveyed a plea deal to us where if Dr. Patel pleaded guilty to theft of trade secrets imminently before they continued their investigation, he would receive the benefit of an “acceptance of responsibility” adjustment to his potential sentence. This sentencing benefit would have basically ensured that our client wouldn’t go to jail. Yet, of course, if our client pleaded guilty, even without going to jail, he would have the stigma of a felony conviction and a reputation forever tarnished due to the inevitable news media press release from the DOJ claiming victory.
Our client wasn’t pleading guilty.
After the reverse proffer, we weren’t convinced of the strength of the government’s case. So we took the time to parse through all the details of our client’s background, his employment history, and the conversations that he had with his prior employer. Ultimately, we presented the whole, accurate picture to the government in a subsequent “attorney innocence proffer,” where we pitched the case for our client’s actual innocence without Dr. Patel being present at the meeting.
During this meeting, we confronted the assistant United States attorney with the Department of Justice’s U.S. Attorneys’ Manual. The United States Attorneys’ Manual is designed as a quick and ready reference for United States Attorneys and it contains their general policies and some procedures relevant to their work. The Manual is intended to be comprehensive and it lays out the discretionary factors federal prosecutors must consider when deciding to charge someone.
Under the guidelines set forth in the Manual for charging someone with theft of trade secrets, prosecutors are to consider the scope of criminal activity, whether a defendant aided a foreign government, and whether a defendant inflicted economic injury to the company.
We demonstrated to the government that our client’s conduct didn’t meet any of these factors and therefore a prosecution wasn’t warranted.
Shortly, after our presentation, the government agreed to drop the investigation and ultimately returned all of his property, including his passport. It was a victorious day for our client, who could finally take a breath of fresh air knowing he would be at peace.
After a year of fear and confusion, the government returned his passport just in time to travel to India and celebrate the birth of his first grandchild
When you are under investigation for a crime, even if you haven’t been arrested yet, it can be just as frightening and confusing. The government can seize your belongings, restrict your travel, and continually monitor your email and bank accounts. Amidst all this, you live with the dread of being criminally charged, imprisoned, and publicly scorned through a DOJ press release and news coverage. For many crimes, the statute of limitations doesn’t expire for years, meaning law enforcement has plenty of time before they have to make an actual arrest. Fortunately for Dr. Patel, that arrest never came.
Dr. Patel regained his passport just in time to travel to India to welcome the birth of his granddaughter. We are thrilled that we were able to help our client resume his life.