United States: White Collar Roundup - August 2014

Third Circuit Curtails Review for Procedural Error at Sentencing

In United States v. Flores-Mejia, the en banc U.S. Court of Appeals for the Third Circuit implemented a new requirement to preserve a sentencing error for appeal. Now, if "a party has an objection based upon a procedural error in sentencing but, after that error has become evident, has not stated that objection on the record" during the sentencing hearing, then the Third Circuit will review it only for plain error. Previously, as long as a sentencing argument was raised in the district court - even in a sentencing memorandum filed before the sentencing hearing - but was rejected by the district court at the hearing, on appeal it was reviewed for "reasonableness." Not anymore. After Flores-Mejia, anyone being sentenced who fails to note their objection to a procedural error at the sentencing hearing will have to clear the higher hurdle of plain-error review on appeal. Notably, this new rule applies to procedural errors only, i.e., "a court's failure to give meaningful review to a defendant's substantive arguments," but not to substantive errors, i.e., the length of the sentence imposed. In announcing this rule, the Third Circuit joins the First, Fifth, Sixth, Eighth, Ninth, Tenth and D.C. Circuits, but perpetuates the split with the Fourth Circuit.

FedEx Indicted for Distribution of Pharmaceuticals From Illicit Internet Pharmacies

The U.S. Attorney's Office in the Northern District of California has obtained a 15-count indictment against FedEx Corp. and various subsidiaries, alleging that FedEx knew its services were being used by illegal Internet pharmacies to deliver pharmaceuticals that were being sold without a prescription. FedEx was charged with violating the Controlled Substances Act and the Food, Drug, and Cosmetic Act. To substantiate FedEx's alleged knowledge that its services were used to distribute these illicit pharmaceuticals, the indictment claims FedEx drivers in Kentucky, Tennessee, and Virginia reported safety concerns to senior management because they were being stopped on the road by desperate customers demanding their packages of pills. Drivers also reported that often the delivery address was to a parking lot, school, or vacant home where several carloads of people waited for the packages from these "pharmacies." This type of thing apparently doesn't happen when people are expecting medicine from Walgreens or CVS. The indictment also alleges that FedEx's gross gain from the alleged misconduct was at least $820 million.

Common-Interest Privilege Confirmed in the Garden State

The Supreme Court of New Jersey unanimously endorsed broad protections for the common-interest privilege in O'Boyle v. Borough of Longport. There, Martin O'Boyle, a citizen in New Jersey with active interest in his town's affairs, sued a former planning and zoning board member and two town residents. Their lawyer suggested to the town's attorney that they work together to defend against O'Boyle's current and anticipated claims. The town attorney agreed. Their lawyer also prepared a joint strategy memorandum and compendium of documents and provided them to the town's attorney. O'Boyle later sought that memorandum, but the defendants claimed it was protected by the common-interest privilege. On appeal, the Supreme Court endorsed the rule that had been set down by the New Jersey Appellate Division: "The common interest exception to waiver of confidential attorney-client communications or work product due to disclosure to third parties applies to communications between attorneys for different parties if the disclosure is made due to actual or anticipated litigation for the purpose of furthering a common interest, and the disclosure is made in a manner to preserve the confidentiality of the disclosed material and to prevent disclosure to adverse parties." The court also clarified that "[t]he disclosure may occur prior to the commencement of litigation" and "the common interest need not be identical; a common purpose will suffice."

Prosecutors Looking for Evidence in Detainees' E-mails to Lawyers

The U.S. Attorney's Office for the Eastern District of New York is collecting and reading e-mails to attorneys from defendants housed at the Metropolitan Detention Center (MDC). In a letter to the Federal Defenders of New York, the government made plain that it would review all e-mails sent from MDC inmates, even if the e-mails were between the inmates and their lawyers. The government claims that those e-mails are not protected by the attorney-client privilege and are, therefore, fair game. The defense bar has cried foul as reported here and here. The New York Times Editorial Board doesn't like it either, as expressed here. District judges in Brooklyn have differing views as well. Judge Dora Irizarry told prosecutors they may not read such e-mails, but Judge Allyne Ross said they may.

Courts Split Over Searching Web-Based E-mail Accounts

A magistrate judge in the Southern District of New York approved a search warrant for a Gmail account, contradicting rulings from the U.S. District Courts for the District of Columbia and the District of Kansas, which did not approve similar warrants for web-based e-mail accounts. In refusing to issue the warrant presented to it, the District of Columbia ruling explained its concern that "the government...gets all e-mails - regardless of their relevance to its investigation - and keeps them indefinitely." The District of Kansas court denied the warrants requested because they did not meet the Fourth Amendment's particularity requirement. The Southern District ruling brushed these concerns aside, noting that courts have traditionally issued warrants to seize a large quantity of documents "in order for the police to perceive the relevance of the documents to crime" even though some documents are innocuous. The court also rejected the "particularity" concerns raised by the Kansas court, ruling that the warrants were sufficiently particular to identify the items within the scope of the warrant.

Should All E-mail Be Encrypted?

As more and more questions arise over the ability to obtain web-based e-mails, encryption technology might become more prevalent. For an interesting article on how to easily encrypt web-based e-mails, click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions