Preet Bharara gave the morning keynote at the second day of Compliance Week 2019. It was interesting because rather than a speech he did so with a one-hour Q&A format with Allen & Overy partner Gene Ingoglia facilitating the session through the role of the questioner. The questions were built around Bharara’s recently released book Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law.You should definitely check out the book as many of the stories in it were not only great tales of law enforcement but had many lessons for compliance professionals about doing compliance and leadership.

One of the most powerful stories was about the manhunt and capture of the Times Square Bomber Faisal Shahzad. Shahzad had left a vehicle in Times Square packed with explosives. Fortunately the bombed failed and never went off. Moreover, it was Times Square vendors who noticed the vehicle and alerted police to the threat.

Lessons No. 1-it is your own employees who can provide the best information to stop illegal or unethical activity. Times Square vendors are there every day, rain or shine to ply their wares. They know better than anyone when something is out of place. So when Shahzad’s dark tinted Toyota Forerunner was left running, they alerted police which led to the evacuation of Times Square and the massive manhunt. For the compliance professional, put resources into your internal reporting system and listen to your own employees.

This led to one of the most intense short-term manhunts in US history. The US Attorney’s Office for the Southern District of New York worked hand-in-hand with the FBI, Joint Terrorism Task Force (JTTF), the New York Police Department and many other law enforcement agencies to locate and arrest Shahzad. He was eventually located on an Emirates jet getting ready to fly to Dubai and disappear. The plane had literally left the gate but was brought back and Shahzad was apprehended without incident and taken into custody.

A key question in the US Attorney’s Office had been the timing of giving the Miranda warning. A Miranda warning is given when a suspect is taken into custody so that anything said may be used in evidence later. The underwear bomber Umar Farouk Abdulmutallab, was given his Mirandawarning when he was taken off the plane in Detroit and immediately clammed up, waiting for his counsel before communicating to authorities. However under a 1984 US Supreme Court decision, US v. Quarles, a suspect may be questioned about their plans, co-conspirators and anything else which is important for immediate public safety.

The plan developed by the US Attorney’s Office was question Shahzad for several hours to see if he was involved with other co-conspirators, if other attacks were planned, who had radicalized him, where his bomb-materials came from and mine him for other information. He literally while he was in custody at JFK Airport, the lead interrogator, a New York City Police Detective developed enough of a rapport with him that he felt like it was the time to give Shahzad his Miranda warning. Shahzad did not clam up, waived his right to counsel and continued to speak to the detectives present and did so for many hours.

Here there was a general rule in place that any similarly situated suspect would not be given a Miranda warning until the operational questions surrounding the terrorist issues had been developed. The legal tradeoff was that this information could not be used in court (although it could lead to other forms of admissible evidence). Yet the detective on the front lines made the decision, that the time was right to give Shahzad hisMiranda warning to preserve the statements he subsequently made as potential evidence against him.

Lesson No. 2-train your employees on the policies of your compliance program but give them the ability to use that training.  As Bharara said in his book, “it was the detective’s professional judgment in the room, based on his assessment of Shahzad’s demeanor and state of mind—honed by years of investigative work and thousands of interview-that he could give the fateful Miranda warning and Shahzad would keep talking nonetheless.” This is a prime example of the operationalization of compliance because the ultimate decision on when to provide the Miranda warning was made by the person on the ground, closes to the situation.

The employee on the ground, here the NYC detective made a professional judgement. He used his emotional intelligence to read the mood, body language and state of mind of Shahzad and made the decision to give him a Mirandawarning. He did not have to call Bharara or other higher-ups to make that decision. Moreover that decision by the detective directly led to Shahzad’s guilty plea and conviction.

Bharara also gave some leadership lessons which are relevant for the compliance professional. He said that after key meetings he will return to his office with the team involved in perform post-mortems on their performances. To help alleviate the tendency of no one to criticize the boss, Bharara said he would generally lead off with some criticism of himself. This would lead others in the group to make similar observations on themselves.

Lesson No. 3-employees must be comfortable with coming forward and providing information. As a Chief Compliance Officer or other business leader, you must be able to hear and take in criticism, critiques and other information on your own performance to move for to do better.

Bharara used a phrase which I think all compliance professionals need to incorporate into their calculus-“Do the Right Thing in the Right Way for the Right Reasons”. It is good way to close this blog on Bharara’s presentation. I picked up a copy of his book after the speech. I hope you will do so as well.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2019

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