Department of Justice prosecutors face new scrutiny concerning their role in Deutsche Bank’s internal investigation as an employee recently convicted of wire fraud for improper efforts to affect the London Interbank Offered Rate (“LIBOR”) attempts to overturn his conviction. In response to a motion by defendant Gavin Black to overturn his conviction on grounds that the government improperly relied on purportedly compelled statements he gave to Deutsche Bank during its internal investigation, the district court told the government to provide a “great deal of evidence” of its own investigation separate and apart from Deutsche Bank’s.
V&E has previously reported about Black’s original challenge to the government’s role in Deutsche Bank’s internal investigation of the LIBOR scandal. Black sought to prevent the company’s outside counsel from testifying about statements Black made during an interview as part of the internal investigation. Black argued that that the government had, through its role in the investigation, effectively deputized Deutsche Bank and its outside counsel as state actors and therefore his statements during the investigation were “compelled,” in violation of the Fifth Amendment’s protection against self-incrimination, because Deutsche Bank had a policy of terminating employees who refused to participate in investigations. The government sidestepped a potential adverse ruling by deciding not to call the outside counsel as a witness.
Black has now asked the district court to overturn his conviction on the grounds that the government impermissibly relied on his purportedly compelled statements when presenting the case to the grand jury and/or during the trial against him. As it did during the original motion to prevent the outside counsel from testifying, the district court suggested Black's argument may have merit. In an order about the length of post-trial briefs, the court advised the government to “concentrate on the real deal,” namely, Black’s argument that his compelled statements tainted the government’s case.
The court’s order suggests that government may not be able to avoid a ruling on the merits in this round. A ruling in Black's favor could have broad implications for the role of the government during internal investigations. V&E will continue to provide updates on this issue. In the meantime, our prior post provides recommendations to companies on internal investigation best practices.