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in the indictment. In light of BDO’s admissions, the not refute in light of the deposition testimony,
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Court granted us permission to issue subpoenas was that he had never known Denis Field to do
seeking the withheld material on the ground that anything that was not in the best interest of BDO.
the crime-fraud exception to the attorney-client That was certainly a far cry from the government’s
privilege applied. The material produced by the depiction of Mr. Field as the consummate fraudster.
law firms, some of which arrived in the midst of In the end, we were able to hammer home to
trial, proved to be quite valuable and opened up the jury all of the evidence that supported Mr.
important lines of cross-examination. For instance, Field’s good faith belief in the legality of the tax
at the first trial, BDO’s prior General Counsel (the shelters and his lack of day to day involvement in
“GC”) testified that Mr. Field had forbidden him the tax shelter business, which he had delegated
from getting involved in any of the company’s to the people who ended up as the government’s
tax shelter matters, suggesting that Mr. Field was cooperating witnesses. The jury, which had been
trying to hide the shelter’s illegality from BDO’s incredibly attentive during the eight-week trial,
highest legal officer. After he gave the same embraced Mr. Field’s good faith defense, acquitting
testimony at the re-trial, we impeached the GC him on all counts in the indictment.
with the detailed billing records of outside counsel, While every case is different, there is one
which clearly showed that he had been involved in constant that it behooves trial counsel to fully
numerous phone calls and meetings with the prior embrace: the client is the closest to the facts and
GC relating to specific tax shelter matters over the has valuable information that, if listened to with
life of the alleged conspiracy. From that, we could an open mind and corroborated sufficiently, may
argue that nothing, in fact, had been hidden from very well provide the key to a positive outcome.
him. It takes a tremendous amount of work, devotion,
A trial subpoena issued to that same witness, imagination, and focus to develop a robust
BDO’s prior GC, netted a document that was key to defense to what almost always seem like iron-clad
our defense: the witness’s deposition testimony in criminal charges, but we hope that these three
a civil lawsuit brought by BDO against an outside examples from our experience—two acquittals,
law firm, which the government had not produced and one dismissal of the indictment before trial—
as Jencks Act material. When that testimony was will provide some guidance and hope to defense
produced to us by the witness, we learned that, counsel preparing to take on the awesome
several months after the first trial, the witness had responsibility of representing a client at trial. PANTONE
said several things under oath at a deposition that 2955C 7406C
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were exculpatory of Mr. Field, which we were able 90/78/39/30 9/22/91/0
to use to great effect in cross-examination. The key Click here to view and/or print the RGB
testimony we elicited, and that the witness could full notes section for this article. 22/58/92 234/194/56
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About the Authors

Sharon L. McCarthy and Jay Nanavati are partners at
Kostelanetz & Fink, LLP. Ms. McCarthy is based in the Firm’s
New York City office, and Mr. Nanavati is based in Washington,
D.C. They each previously worked as government attorneys,
Ms. McCarthy as an Assistant United States Attorney in the
Southern District of New York, where she was Deputy Chief of
the Criminal Division and Chief of the Violent Crimes Unit, and
Mr. Nanavati first as an Assistant Commonwealth’s Attorney for
Fairfax, Virginia, and then as a trial attorney and supervisor in
the Tax Division of the United States Department of Justice. The named clients have given the authors
permission to use their names and cases.

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