During its 2023-2024 Term, the U.S. Supreme Court allowed criminal penalties for people who are homeless; blocked the ATF’s regulation of bump stocks; ended Chevron deference, a landmark doctrine of administrative review; and decided that U.S. presidents are immune from criminal prosecution for core constitutional acts taken during their tenure in office. Criminal defense lawyers will talk about these cases for years to come.

Speaking indictments are indictments that contain more facts and allegations than the law requires. These lengthy narratives permit the government to favorably influence the public perception of a case and impact the jury at trial. How can defense attorneys push back against speaking indictments?

Photo above: Special Counsel Jack Smith speaks during a press conference after Donald Trump is indictment on criminal charges by a federal grand jury in the 2020 election interference case in Washington, DC on Tuesday, August 1, 2023. | Credit: Bonnie Cash/UPI/Newscom

Defense attorneys must keep their eyes open to shield clients from the government’s improper use of data and summary charts. Moreover, defense advocates should look for ways to turn the situation around to their advantage. The defense team should look for errors and sloppiness in the government’s analysis and find information in the data that the defense can use. The failure to look at data is tantamount to leaving potential evidence on the table.

Patrick O’Donnell highlights some of the ethics issues that arise in internal investigations. How can competent counsel also take care to be ethical counsel?

This month Dan Lawton reviews Justice at Trial: Courtroom Battles and Groundbreaking Cases by James J. Brosnahan.

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.

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.

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.