The government’s successful use of civil injunctions to halt the sale of fraudulent COVID-19 cures has put the Anti-Fraud Injunction Statute in the spotlight. The statute is a unique hybrid of civil and criminal law, and confusion exists as to the proper evidentiary standard. This confusion presents an opportunity for defense lawyers, but they must prepare themselves for the statute’s complexities and landmines.

on Employee Compensation Clawbacks

Department of Justice guidance issued in March 2023 provided prosecutors with a set of criteria to use when evaluating the compliance programs of corporations facing a resolution to criminal charges, such as a plea agreement, deferred prosecution agreement, or non-prosecution agreement.

Rule 17 of the Federal Rules of Criminal Procedure provides the only means for a criminal defendant to obtain materials from third parties. Despite its broad language, the courts’ application of Rule 17 over the years has seriously limited its usefulness. Marci LaBranche and Carey Bell discuss problems with how the rule has been applied, the current state of Rule 17(c) practice, and how to make a record that encourages change.

The Sentencing Guidelines provide for an increase in the offense level for most fraud or theft offenses based on the amount of “loss” determined by the court. Loss is not defined in the Sentencing Guidelines. However, the commentary defines loss as “the greater of actual loss or intended loss.” Megan Siddall explores a new argument that loss should be limited to actual loss – and not intended loss – in the wake of the Supreme Court’s decision in Kisor v. Wilkie.

White collar lawyers must weigh various considerations in determining how to obtain mobile phone data or limit the government’s access to data. When can the government compel a client to provide the passcode to a mobile device? What is the significance of whether an executive’s mobile phone is owned by the executive or the corporation? This article provides tips about obtaining, protecting, preserving, and reviewing data on mobile phones.

White collar cases are complex, and the clients in these cases are often part of society’s higher social strata. From “being bold” at the first meeting with the client to dealing with the client’s desire to talk to the press, veteran defense attorney Jim Brosnahan offers 10 tips that will make a white collar representation smoother.

This month Susan Elizabeth Reese reviews In the Lions’ Den: The Penn State Scandal and a Rush to Judgment by Graham Spanier.

Facing Sentencing Guidelines Above Zone C

How can defense counsel utilize a provision within the Criminal Code, implemented by the Sentencing Guidelines, that allows for a split sentence in Zone D cases through the post-imprisonment condition of supervised release? Joseph A. DeMaria and Marissa Koblitz Kingman explain how to argue for the Zone D split sentence.

Part I: The Basics

According to the government, the goal of forfeiture is to take the profit out of crime. The government seeks to take private assets – including cash and real property – that it claims constitute the proceeds of criminal activity. Steven L. Kessler discusses some of the basics every attorney should know about forfeiture.

McDonnell v. United States provided a small dose of clarity to the issue of “official acts” under federal anti-bribery law, but confusion remains regarding some issues, such as what it means to “exert pressure.” The ambiguity left in McDonnell’s wake means that criminal defense lawyers will be responsible for waging the fight to clarify the boundaries of corruption prosecutions.

in Doctor-Prescribing Prosecutions

Doctors can breathe a partial sigh of relief after the decision in Ruan v. United States; the U.S. Supreme Court held that prosecutors must show more than mere negligence or malpractice to make a felon out of a physician. In addition, new guidance from the Centers for Disease Control and Prevention on opioid prescribing promises to make it much harder to prosecute – and easier to defend – doctors.

Against a Company and Dozens of Individuals

The Story of United States v. Rocket Learning, LLC

A post-indictment dismissal is rare. The authors walk readers through United States v. Rocket Learning, pointing out that the government’s retreat in the fraudulent billing case was bittersweet because a profitable business is defunct, and dozens of employees are still picking up the pieces of their lives.

Four new Justices have joined the Supreme Court in just five years. The new Court has made clear its willingness to reexamine precedent. It is uncertain what the change in the Court’s composition portends for federal criminal law, but the government may face a more skeptical audience.

Cases that end in conviction are often accompanied by an order of restitution. A restitution order can be a burden on a person for years even after a prison sentence has been served and a term of probation has been completed. Practitioners should pay attention to several key issues in order to zealously advocate for their clients – even after conviction and sentencing.

Federal statutes should provide a person of ordinary intelligence fair notice of what is prohibited, but the term “property” is undefined by the federal fraud statutes. The internet, untethered digital currency, and the metaverse are raising questions about the traditional understandings of things and possessions. Legislators need to provide greater clarity about how older statutes apply to newer concepts.

Public Statements Clauses and Interference With a Defendant’s Right to Present a Vigorous Defense

Andrew S. Boutros and Jay Schleppenbach discuss the proliferation of clauses in corporate deferred prosecution agreements and settlement agreements barring company representatives from publicly denying the factual basis of the plea or deferred prosecution agreement. Do these so-called “public statements clauses” interfere with the right to present a defense?

Deferred prosecution agreements are almost exclusively used in corporate prosecutions, but they are occasionally offered to individuals. Non-prosecution agreements, on the other hand, may be easily obtained for fact witnesses when defense counsel does not want to take the chance that a client is more culpable than originally thought. What are the most critical factors that influence prosecutors to enter into an NPA or a DPA?

Professor Tracey Maclin examines and challenges the collective entity rule, which is the Supreme Court’s long-standing view that an individual who works for a company is not protected by the Fifth Amendment when compelled to produce incriminating records that belong to the company. Maclin says the collective entity rule defies the text of the Fifth Amendment, the common law history of the privilege, and the Court’s Fifth Amendment precedents.

The trial of Elizabeth Holmes showed our criminal legal system at its best.

to Limit the Government’s Contact With Employees of a Represented Company

Andrew Boutros and John Schleppenbach provide practical guidance for white collar practitioners concerning when ABA Model Rule of Professional Conduct 4.2 prohibits the government from contacting and trying to interview employees of a represented corporation. The government may disagree with defense counsel’s interpretation of the rule. At the very least, however, providing notice of corporate representation should open a dialogue that prevents unpleasant surprises with regard to contacts with corporate employees.