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W. James Payne Article Published in NC Lawyers Weekly
December 16, 2013

Why treat business people as if they are drug dealers?

By: W. James Payne December 13, 2013


The North Carolina General Assembly wants to treat business men and women, as well as politicians, as if they are drug dealers. Until this year, prosecutors could convene an investigative grand jury only when drug dealing was afoot. But if the General Assembly has its way, investigative grand juries will have license to peer into conduct of business people under the guise of preventing political corruption.

House Bill 800 (and companion Senate Bill 565) would dramatically expand the instances in which a district attorney could convene an investigative grand jury under §15A-622. The sponsor of the Senate bill indicates: “The bill’s purpose is to strengthen the authority of prosecutors to uncover and prosecute political corruption cases. It was endorsed by the Conference of District Attorneys in North Carolina.” (In April, both bills were referred to the respective chambers’ Committee on Rules, Calendar, and Operations.) Take a look, however, at the crimes that would be subject to the investigative powers of a grand jury:

“… Article 29 or 30 of Chapter 14 . . . (relating to bribery and obstructing justice), G.S. 14-228 (buying and selling of offices), G.S. 14-230 (failing to discharge duties), or G.S. 14-234 (public officers or employees benefiting from public contracts)

“. . . G.S. 14-90 (embezzlement of property received by virtue of office or employment), G.S. 14-100 (obtaining property by false pretenses), G.S. 14-118.4 (extortion), or G.S. 14-119 (forgery of notes, checks, and other securities; counterfeiting of instruments)

“. . . Article 20, 22, or 22A of Chapter 163 of the General Statutes (relating to absentee ballots, corrupt practices and other offenses against the elective franchise, and regulation of contributions and expenditures in political campaigns)

“. . . G.S. 14-254 (malfeasance of corporation officers and agents).”

Without question this effort strays from the original political target to include white collar defendants.

With this new weapon prosecutors would now have the power to plague political figures and businesses with document production and testimony – the supposed procedural safeguards in §15A-622(h) notwithstanding. One can easily foresee a prosecutor crippling a business by deciding to see what manner of records may be available. Electronic data, proprietary data, accounting records, notes, files – all of it could be trotted into the grand jury room. Key employees would have to hire counsel to represent them as they are forced to answer their own grand jury summonses. A business or political office could suffer ruination as productive citizens and professionals are forced to hire attorneys, give evidence against each other, produce voluminous records, and bargain for immunity.

Federal investigation and prosecution of our political officers, businesses, and professions already abounds. U.S. attorneys continually employ grand jury investigations. This over-criminalization of American business, political leaders and professionals will paralyze us. Leaders in businesses and professions must realize that they are now targets. Witness the transformation of this bill from the original “political corruption” intent. In our state the ill-fated attempt to convict former Sen. John Edwards was the product of the federal use of an investigative grand jury. Defense counsel filed a rare-but-compelling motion for prosecutorial misconduct (albeit denied).

Inflicting that debacle upon the taxpayers of every single county of the state and treating our own politicians and business professionals in this manner is itself unjust. Businesses and professionals are not the threat to our security that narcotics traffickers are. This expansion of power – on top of what we already have – is itself a threat to liberty.

Pity the business professional who becomes the target of such an investigation. Imagine multiple prosecutors from several different prosecutorial districts launching their own investigative grand juries. It’s bad enough that the federal prosecutor may be looking over the books of the business; imagine a business that simultaneously has to answer grand jury inquisitions in Cherokee County, Dare County, and Brunswick County. The task of answering the inquisition alone would torpedo the stability of any business or political office.

Let us not transform the “war on drugs” to a war on business. Reversing the trend of over-criminalization is true leadership. Let us lead by example.

 

James Payne is a Wilmington attorney who focuses on white collar criminal defense matters.

 

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