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United States v. Stringer

535 F.3d 929 (2008)

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United States v. Stringer

United States Court of Appeals for the Ninth Circuit

535 F.3d 929 (2008)

Facts

The Securities and Exchange Commission (SEC) initiated a civil investigation for securities fraud against Kenneth Stringer, Mark Samper, and William Martin (defendants) and their company, FLIR Systems, Incorporated (FLIR). Two weeks after the SEC investigation began, the SEC started meeting with the Oregon United States Attorney’s Office (USAO) (plaintiff) to coordinate the SEC’s investigation with a potential criminal investigation by the USAO. As a result, the USAO and Federal Bureau of Investigation (FBI) opened a criminal investigation. Pursuant to federal law, the SEC granted access to its investigative files to the USAO. The SEC communicated with the USAO and FBI as both the civil and criminal investigations progressed, with the SEC turning over documents that it collected to the USAO and FBI. Stringer, Samper, and Martin were all early targets of the USAO’s investigation. FLIR began cooperating with the SEC investigation. The USAO, wanting to avoid disrupting the SEC investigation, decided to wait to convene a grand jury. In the meantime, the USAO instructed the SEC on how best to facilitate a criminal investigation. They kept great care in keeping the criminal investigation secret. That being said, the SEC did provide written notice (Form 1662) attached to the subpoenas sent to Stringer, Samper, and Martin that any information gained during their investigation could be shared with other government agencies. Form 1662 also advised the three men of their Fifth Amendment rights against self-incrimination, which the three men did not invoke at their depositions. At Stringer’s deposition, Stringer’s attorney questioned the SEC attorney regarding potential criminal investigations. Without lying, the SEC attorney gave evasive and vague answers to Stringer’s attorney. Later, Samper and Martin agreed to consent decrees with the SEC. Eventually, the three men were criminally indicted for securities violations. The district court dismissed the criminal indictments and suppressed evidence obtained by the SEC, reasoning that the government had violated the men’s due-process rights through deceitful conduct. The government appealed.

Rule of Law

Issue

Holding and Reasoning (Schroeder, J.)

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