Companies, executives, legal and compliance advisers be warned— DOJ is getting on the AI bandwagon, and a “smart” compliance program can mean the difference between an indictment and a declination.  The Department of Justice has announced that it expects companies to mitigate risks associated with AI and other emerging technologies, while simultaneously incorporating those capabilities into their compliance programs.  In our latest article for the NYLJ, “Get Smart or Get Indicted: Corporate Compliance in the Age of AI,” we offer practical strategies for adapting compliance programs to evolving technology. We hope you enjoy.

Recent rulings in two high profile local criminal cases have put attorneys where they are least comfortable: the witness chair. A ruling in United States v. Menendez allowed the government to offer statements Senator Menendez’s then-counsel made to prosecutors in an attorney’s proffer seeking to forestall prosecution, while a ruling in the long-running foreign bribery prosecution of former Cognizant executives, United States v. Coburn & Schwartz, allows defense counsel to call to the stand attorneys who conducted an internal investigation that found no evidence of wrongdoing.  In our latest article for the New York Law Journal, we discuss these unusual cases and the lessons they offer for practitioners.  We hope you enjoy.

In a world of ever-increasing globalization, the best defense often starts with putting up a strong fight against extradition. As demonstrated in the cases of prominent defendants like Michael Lynch, Sam Bankman-Fried, Julian Assange, and Huawei CFO Meng Wanzhou, international law provides practitioners robust means to contest DOJ efforts, and waging that battle can pay powerful dividends even if extradition ultimately occurs. In our latest article for the New York Law Journal, we examine the arguments used to oppose extradition in these cases and others. We hope you enjoy. 

The Supreme Court’s pattern of rejecting expansive interpretations of federal criminal statutes will be put to the test in a case set for argument this Tuesday that could have significant implications for the federal prosecution of former-President Trump.  Fischer v. United States will address whether a post-Enron obstruction statute under which Trump also is charged applies to the January 6, 2021 physical breach of the U.S. Capitol.  In our latest article, “Testing SCOTUS’s ‘Unmistakable Trend’ in Shadow of Trump Prosecution,” we analyze the parties’ arguments in Fischer and explore the potential impact of the Court’s ruling.  We hope you enjoy.

S.D.N.Y.’s new Whistleblower Pilot Program calls on individuals to try out for Team America in exchange for an oft-coveted non-prosecution agreement. The Program parallels Main Justice policies that offer companies leniency when they voluntarily self-disclose. The Southern District’s new Whistleblower Program is a notable departure from its traditional rigid approach to cooperators. In our latest article for the NYLJ, “S.D.N.Y. Outreach to ‘Whistleblowers’ Takes Page From Main Justice Playbook”, we analyze the Program, discussing how the Program works and what individuals with criminal exposure and their attorneys should understand when considering signing on with the government team.  We hope you enjoy.

Joint defense agreements often are among a criminal defense lawyer’s most valuable tools. One recurrent question is whether to take the trouble to put such agreements in writing. A recent decision in the Southern District of Florida, United States v. Vuteff, which disqualified a lawyer whose former client was in an oral joint defense agreement with an individual who later “flipped,” illustrates a benefit of utilizing a properly tailored written joint defense agreement. In our latest article for the New York Law Journal, “Avoiding Conflicts with a Joint Defense Member Who Flips,” we examine the legal basis for how conflicts can arise from joint defense agreements and steps counsel can take to avoid them. We hope you enjoy.

A recent decision tossing a guilty verdict in deference to the Supreme Court’s skepticism of broad readings of the federal wire fraud statutes, United States v. Full Play Group, S.A., may substantially curtail U.S. efforts to police foreign commercial bribery.  In Full Play, the latest ruling out of the Eastern District of New York in the long running FIFA saga, Judge Pamela Chen vacated defendants’ convictions based on SCOTUS’s decisions in Ciminelli v. United States and Percoco v. United States. In our latest article, we discuss the effects Full Play may have on the prosecution of foreign commercial bribery, and other forms of misconduct prosecuted under the wire fraud statutes. We hope you enjoy.

"The Supreme Court’s message is unmistakable: Courts should not assign federal criminal statutes a 'breathtaking' scope when a narrower reading is reasonable." So began a dissent that presaged the Supreme Court’s recent unanimous decision in Dubin v. United States, another in a line of SCOTUS rulings rejecting the government’s broad interpretation, this time a reading of the aggravated identity theft statute that would mandate a two-year minimum prison sentence for virtually every low-level fraud by a health care provider. In their latest article for the New York Law Journal, "SCOTUS Confirms 'Unmistakable' Trend in Narrowing Identity Theft Statute," Robert Anello and Richard Albert explore the Court’s decision and its potential impact on fraud cases and beyond. We hope you enjoy. 

Recent pronouncements from both DOJ and SEC officials, the two agencies responsible for enforcement of the Foreign Corrupt Practices Act, emphasize the importance of holding individuals accountable for foreign bribery. These announcements, however, are at odds with the recent steady decline in the volume of actual enforcement activity. In our latest article for the New York Law Journal, "Is FCPA Individual Enforcement at Odds with Government Rhetoric?" we explore the numbers and other recent patterns in the FCPA enforcement record regarding individuals, and discuss possible reasons for the decline. We hope you enjoy.

DOJ's new Pilot Program for clawing back executive compensation and the SEC's long-awaited Rule 10D-1 demonstrate that the Biden administration has placed clawbacks at the forefront of its white-collar enforcement priorities. Without express statutory authority behind them, however, clawbacks face substantial hurdles under existing state law. As a result, these new programs may have less practical impact than policymakers envision. In our latest article for the New York Law Journal, "New DOJ and SEC Compensation Clawback Policies - Easier Said Than Done?," we examine these two new programs and discuss some of the issues companies must consider in implementing them. We hope you enjoy.

A recent decision by the Second Circuit in United States v. Blaszczak further clouded the already murky waters of insider trading law. The decision, which vacated the defendants’ convictions in light of an intervening Supreme Court decision, technically left intact a prior holding that requires fewer elements for the government to prosecute criminal insider trading than for the SEC or any other litigant to prove a civil insider trading violation.  The ruling prompted two judges to warn of troubling consequences for beneficial market activity, and to call for further action by Congress and the courts. In our latest article for the New York Law Journal, we review the Second Circuit’s decision and discuss the uncertain path forward. We hope you enjoy.

The recent acquittal of Thomas Barrack and repeated setbacks in the DOJ’s prosecution of Bijan Rafiekian, two allies of former President Donald J. Trump, are only the latest examples of the government’s difficulties successfully prosecuting cases of non-traditional foreign influence in U.S. affairs. In our latest article for the New York Law Journal, we review the statutory framework and examine the DOJ’s underwhelming recent track record in obtaining convictions in politically charged foreign influence cases involving ostensibly legitimate international business dealings. We hope you enjoy.   

The government’s recent application of the “insider trading” doctrine to realms beyond securities illustrates we are crossing a new frontier. In our latest article for the New York Law Journal, “Insider Trading Unchained: Not Just Securities Anymore,” we discuss two recent cases in which the Department of Justice has brought insider trading charges involving NFTs and cryptocurrency markets, without claiming any securities were involved, signaling another bend in the long and winding insider trading road. We hope you enjoy.

Federal courts long have struggled to define the limits of the mail and wire fraud statutes, famously beloved by prosecutors for their vast breadth and catch-all adaptability. In our latest article for the New York Law Journal, “SCOTUS to Assess ‘Right-to-Control’ and Honest Services Fraud,” we discuss how, in granting review in two related cases arising from New York state government scandals, the Supreme Court will have another opportunity to cut back on overly broad prior interpretations of the federal fraud statutes that enabled prosecutors to extend their reach into conduct that would not otherwise be criminal. We hope you enjoy.

In April, riding a wave of bipartisan political support, the Biden Administration and House of Representatives proposed expanding the executive branch’s authority to freeze, seize, and forfeit to the people of Ukraine assets of individuals perceived to be aligned with the Russian government. In our latest article for the New York Law Journal, “Rough Seize Ahead – Do Asset Forfeiture Proposals Throw Due Process Overboard?,” we discuss how laws imposing criminal and other serious sanctions based on political affiliation should raise questions for those concerned about politicizing enforcement of the law and the due process protections. We hope you enjoy.

When is a doctor a doctor and when is a doctor an illegal drug dealer?  In early March, the Supreme Court heard oral argument in two consolidated cases to address where that line is drawn. In our latest article for the New York Law Journal, “License to Pill — SCOTUS Confronts Doctors’ Good Faith Defense to Unlawful Distribution of Controlled Substances,” we discuss hints that this ruling may break from the Court’s recent pattern of relying almost entirely on textual analysis to narrow potential overbroad constructions of federal criminal statutes.  We hope you enjoy.

We recently had the privilege of sitting down with Manhattan’s new District Attorney (and Morvillo Abramowitz Grand Iason & Anello alumnus) Alvin Bragg to learn about his priorities for addressing white-collar crime. Mr. Bragg underscored the strengths of his office, including its role in combatting cybercrime, construction fraud and protecting the city’s business community, and also addressed how the office can leverage prosecutions of financial crimes to assist in violent crime investigations. In our latest article for the New York Law Journal, “D.A. Alvin Bragg Sets Out White-Collar Crime Priorities,” Manhattan’s newly-elected prosecutor discusses his vision for the office. We hope you enjoy.

The Biden Justice Department and SEC have served notice on the business and financial community that they intend to be tougher on corporate wrongdoing. The key policy changes they have outlined so far, however, mirror those attempted by the Obama Administration, which were forcefully criticized for increasing costs but having dubious impact on meeting enforcement goals. In our latest article for the New York Law Journal, “Signaling Tougher Tone, Biden Administration Steps Backward,” we analyze recent statements by the new leaders at DOJ and SEC and the policy changes announced.

The abundance of data stored on cellphones has been a double-edged sword for cellphone users seeking to suppress government searches.  Since the Supreme Court recognized heightened privacy interests implicated by modern cellphone searches, lower courts have scrutinized the scope and circumstances of government searches of cellphones in criminal cases.  In our latest article, “Recent Woes for Prosecutors in Cellphone Searches,” we analyze recent district court decisions applying Fourth Amendment protections to this ubiquitous form of modern technology.

For armchair prognosticators on the criminal law proclivities of the newly constituted Supreme Court, Justice Barrett’s majority opinion in Van Buren v. United States may provide some clues. In narrowly construing a provision of the Computer Fraud and Abuse Act of 1986 to avoid criminalizing “a breathtaking amount of commonplace computer activity,” the opinion is likely to be welcomed by those concerned about overcriminalization. Only time will tell, but Van Buren suggests that we can expect the Court’s tendency to narrowly interpret statutes to avoid criminalizing large swaths of trivial conduct to continue. We explore this issue in our latest Article: "Van Buren v. U.S. -- A Window Into Criminal Law in the Coney Barrett Era?"

The application of the Fifth Amendment to law enforcement demands for cellphone passcodes has developed into a constitutional quagmire for the lower courts. With the Supreme Court resisting opportunities for specific guidance, right now the application of the right against self-incrimination to this overwhelmingly important modern technology depends heavily on the state or federal jurisdiction where a person is located. We explore the issue in this article: “Hey SIRI, Does the Fifth Amendment Protect My Passcode?”

For years, the defense bar has criticized courts’ ability to sentence defendants based on conduct for which a jury of their peers has acquitted them. As we explain in our latest article, although the Supreme Court has hesitated to review this arguably unconstitutional practice, Congress has taken up the torch with a new bipartisan bill that would ban it. The jury is still “out” on whether the bill will become law, but its introduction is a welcome sign of Congressional interest in preserving the jury’s crucial role as a bulwark of liberty.

Not every incoming SEC Chair gets a welcome gift from Congress. While Wall Street has greeted Gary Gensler’s nomination with some trepidation, by contrast, as we describe in this article, “Congress’s Signing Bonus for Gensler: New Powers for His SEC,” legislators recently handed the SEC powerful new enforcement tools, in the form of longer statutes of limitations and new statutory disgorgement powers. Although defendants in SEC cases may challenge some applications of these new powers, the new law likely means a tougher road for those under SEC investigation as the Biden Administration takes charge in Washington.

Days before Thanksgiving, in a notable about-face, the government agreed that the Supreme Court should vacate a Second Circuit panel’s controversial insider trading decision in United States v. Blaszczak, accepting that Blaszczak’s holding that a government regulatory agency’s confidential information can constitute protectible “property” had been undermined by the Supreme Court’s subsequent decision in the George Washington Bridge case. But vacating Blaszczak would also erase the panel’s more controversial holding that the “personal benefit” test for insider trading does not apply to cases brought under the Title 18 fraud statutes, which would have significantly broadened the reach of criminal insider trading laws. In our article, “Days Seem Numbered for Circuit’s Controversial Insider Trading Decision,” we analyze the defendants’ petitions for Supreme Court review in Blazsczak discuss the implications of the government’s change in position. 

With the selection of Judge Amy Coney Barrett as the proposed replacement for liberal icon Justice Ruth Bader Ginsburg, a 6-3 conservative majority may shape the future direction of the Supreme Court’s jurisprudence. The generally accepted wisdom is that a more liberal Court equals a Court more protective of the rights of a criminal defendant. The color of the defendant’s “collar,” however, may make a significant difference. In this article, we discuss the Roberts Court and what has been described as the “White-Collar Paradox,” analyze Judge Amy Coney Barrett’s sparse record on the Seventh Circuit, and conclude that based on the prior voting habits of the conservative justices, white-collar criminal defendants may find the Court receptive to their arguments in ways that “blue-collar” defendants would not. 

The government’s lead role in the prosecution of corruption within FIFA, the organization governing international soccer, may be a paradigmatic example of U.S. law enforcement acting as the world’s policeman, pursuing wrongdoing with little apparent connection to the land of baseball, hot dogs and apple pie. In this article, we analyze the Second Circuit’s recent decision in United States v. Napout, and discuss how its holding illustrates that the FCPA is not the only card the government can play to prosecute foreign bribery, with little regard to whether such conduct violates foreign law. 

Federal prosecutors often cannot resist the attractions of broadly worded “catch-all” fraud statutes like the one prohibiting wire fraud. From time to time, however, the Supreme Court has rebuffed efforts to further expand the boundaries of these crimes. In our latest article, we discuss the Court’s reversal of the “Bridgegate”-related convictions of two senior New Jersey officials, and the decision’s impact on other high-profile pending fraud prosecutions such as the NCAA basketball case. We conclude that although the Bridgegate decision did not definitively resolve the controversial issue whether what has become known as the “right to control” constitutes "property" under the federal fraud statutes, the opinion takes its place among Supreme Court decisions reining in prosecutors’ expansive readings of these laws.

Sometimes defense counsel sees hard-won plea agreement concessions have limited impact on the court at sentencing, and the issue arises whether the prosecutor’s sentencing arguments went so far as to deny the defendant the benefit of his or her plea bargain. In our latest article, we discuss United States v. Wright, an appeal to the United States Court of Appeals for the Second Circuit brought by a co-defendant in the fraud prosecution of former sports radio personality Craig Carton, which presented the question whether though purporting to accept the terms of a plea agreement, a prosecutor’s advocacy may cross the line into a breach of that agreement. Although Wright’s withdrawal of the appeal leaves further development of this important area of criminal law to another day, in analyzing Wright and other key Second Circuit decisions, we conclude that Wright should serve as a cautionary tale to prosecutors who prefer to avoid claims of violating their own plea agreements.

One of the key tools that white-collar attorneys regularly use to engage with prosecutors – the attorney proffer – often proceeds without any express agreement regarding what ground rules apply. In this article, we discuss the law around attorney proffers, highlight special considerations for corporate clients, and conclude that ample support exists for the longstanding custom and practice of using a careful attorney proffer as a means for necessary “frank discussion between defense counsel and prosecutor” without undue risk to either side.

Practitioners have observed a tension between criminal enforcement of the broadly written terms of the Sherman Antitrust Act of 1890 and the modern Supreme Court’s notions of statutory interpretation and due process. In this article, we analyze a recent certiorari petition filed in Sanchez et al. v. United States, which asks whether the operation of the per se rule in criminal antitrust cases violates the constitutional prohibition against instructing juries that certain facts presumptively establish an element of a crime. If the Court grants certiorari, Sanchez could provide an interesting test of the direction of the current Court’s criminal law jurisprudence and of its willingness to reconsider longstanding precedent.

When companies consider resolving an SEC enforcement action, they sometimes learn too late about so called “bad-boy” provisions that will inflict serious collateral consequences on their business unless the SEC provides a waiver. In this article, we discuss SEC Chairman Jay Clayton’s recently announced change in how the SEC will consider such waiver requests, which should rationalize the waiver process and provide greater certainty to companies and their shareholders regarding the consequences of enforcement settlements.

In leading to the ouster of a former United Sates attorney from his cabinet position, the Jeffrey Epstein case drew attention to the Crime Victims’ Rights Act, the federal statute intended to guarantee victims a role in federal criminal proceedings. In this article, we analyze the statute and its role in the Epstein case, and address his victims’ effort to use the statute to invalidate a non-prosecution agreement —which although likely mooted by Epstein’s death—is of particular significance to white-collar practitioners and their clients.  

Governments worldwide are attempting to restrict the use of encryption services like WhatsApp and Snapchat to allow a greater opportunity for surveillance. This Big-Brother-is-watching approach has met with resistance from public rights and civil liberty activists. In this article, we discuss the spectrum of the global response – including here in the United States – to the increased use of encrypted technologies and highlight encryption laws and policies of a number of countries. This digital tug-of-war has enormous implications for privacy and for our criminal justice system.  

In connection with several recent high-profile international cases, the Trump administration has implied that it sees law enforcement — or the lack of it — as a tool in its foreign policy arsenal. In this article, we discuss why maneuvering criminal prosecutions of individuals to influence foreign relations raises due process concerns. On the other hand, with respect to corporate prosecutions, which at their core are regulatory in nature, different considerations apply.

Two recent prosecutions in the foreign exchange (F/X) market raise questions about the use of general criminal statutes to regulate a trading practice that Congress, specialized regulators, and market rules have declined to prohibit. Both cases deal with a practice that bankers refer to as pre-positioning, which the government pejoratively labels “trading ahead” or “front running,” in the context of complex, multi-billion dollar F/X trades between sophisticated parties. In this article, we discuss the appeal of the conviction in one such case and the court’s dismissal of the charges in the other.

The halfway point of President Trump’s term offers an opportunity to examine and assess the impact of his administration on business-related prosecutions. In this article, we discuss the government’s shift in enforcement priorities, which focus on violent crimes, opioid cases, and most notably, immigration violations. We also highlight the decline not only in the number of traditional white-collar cases brought, but also in the amounts of fines and penalties imposed. Despite these numbers, however, the Trump Justice Department has remained aggressive and creative in its pursuit of individual wrongdoers in certain business-related areas, particularly in international corruption and foreign bribery.

The Justice Department’s prosecution of the 1Malaysia Development Berhad (1MDB) case illustrates how despite early predictions otherwise, Trump administration enforcement of the Foreign Corrupt Practices Act is alive and well. In this article, we discuss the 1MDB case and examine the extent to which the Justice Department will adhere to the Administration’s declared intent not to “employ the hammer of criminal enforcement to extract unfair settlements” from corporations where there is cooperation and evidence of a strong compliance structure.

Contrary to Hollywood’s fictionalized vision of our criminal justice system, a recent report from the National Association for Criminal Defense Lawyers confirms what many have recognized: trials are an endangered species. In this article, we discuss how the "trial penalty"-- the difference between the result a defendant may obtain by pleading guilty and the far harsher result that same defendant may receive if found guilty after trial -- has skewed our criminal justice system.   

Congress has armed the government with an arsenal of weapons to extend limitations periods in white-collar cases that prosecutors have used in increasingly creative ways that are often difficult for defendants to predict. In this article, we examine the various tools at the government’s disposal, including mutual legal assistance treaties in cross-border matters; FIRREA’s ten-year statute of limitations for frauds “affecting” financial institutions; criminal conspiracy charges; tax crimes; and war-time extensions. We highlight a recent decision in United States v. Bogucki, a wire fraud prosecution, which is a prime example of how the government may lie in wait before launching hidden “time” bombs to lengthen the applicable limitations period.

Following the Supreme Court’s landmark 2005 decision in United States v. Booker, which transformed the United States Sentencing Guidelines from mandatory to advisory, the question of how sentencing judges would exercise their restored discretion has been a matter of great interest. In this article, we highlight insights from recent sentencing statistics and conclude that the data support the continuation of welcome trends: district courts exercising their restored discretion to tailor sentences individually, with increased regional differences and courts in the Second Circuit taking a leading role in mitigating the excessive harshness of the fraud guidelines.

Many of the administration’s enforcement priorities may raise serious concerns for criminal defense lawyers and other champions of legal rights. In this article, however, we discuss the “anti-piling on” policy announced by Deputy Attorney General Rod Rosenstein, which is intended to reduce the perceived unfairness of repeated punishments for corporate misconduct. The policy bespeaks a welcome change in DOJ leadership’s attitude toward corporate accountability, but how the policy will be applied in individual cases remains to be seen.

Good faith reliance on counsel can be a critical line of defense in white-collar prosecutions, but defendants seeking to assert it often face skepticism and procedural hurdles borne of an unduly narrow view of the doctrine. One example is the district court’s ruling in United States v. Scully, and the Second Circuit’s recent opinion reversing that ruling offers useful guidance. In this article, we discuss Scully and other relevant decisions, including case law supporting the so-called “involvement of counsel” defense.

The Trump administration is emphasizing individual rather than corporate liability in white collar investigations and has shifted the focus of criminal law enforcement toward some non-white collar priorities. In this article, we discuss how the move away from corporate criminal liability has been manifest in policy decisions by the Justice Department, highlight the transition of its staff, and discuss whether this shift in priorities is likely to result in a decrease in white collar investigations and prosecutions.

Mostly lost among the headlines regarding the charges brought by Special Counsel Robert Mueller against former Trump campaign chairman Paul Manafort was the simultaneous release of a court opinion compelling one of Manafort’s own lawyers to testify against him in the grand jury. In this article, we trace the history of the bar’s failed efforts to restrict the authority of federal prosecutors to issue this troubling type of subpoena, and discuss the D.C. district court’s decision affirming that authority in the Manafort case.

The cryptocurrency boom has been met with a fresh wave of regulatory and enforcement efforts by the SEC, DOJ, and beyond. Although these regulatory efforts are intended to address concerns about cryptocurrencies being subject to fraud and manipulation, or being used for money laundering, the agencies' responses complicate the growing use of these new technologies. In this article, we discuss the SEC’s crack down on Initial Coin Offerings, securities fraud liability implications, anti-money laundering efforts with respect to bitcoin and cryptocurrency exchanges, and the international response to the cryptocurrency boom.

Despite years or even decades of law abiding conduct, individuals with a criminal record face extraordinary hurdles in rebuilding their lives because of the significant collateral consequences of their conviction. In the past decade, many state lawmakers have enacted laws providing for expungement or sealing remedies. At the same time, federal legislation has taken a step backwards. In this article, we discuss judicial efforts to address this problem, which federal judges acknowledge requires a solution by Congress.

A recent high-profile Fourth Amendment victory for the defense in Southern District of New York case United States v. Wey provides an occasion to assess how courts are applying search and seizure precedents to today's “big data.” In this article, we consider Wey in light of other recent decisions in the Second Circuit. These cases demonstrate that the government’s tendency to use broadly-worded search warrants, combined with uncertainty regarding what meets the Fourth Amendment test of “reasonableness” for off-site reviews of electronic files, continues to raise vexing issues for prosecutors, defense counsel, and courts in white collar criminal cases.

The start of a new presidential administration brings along changes to personnel, policies, and enforcement priorities, and during the transition period, counsel to businesses and individuals try to anticipate which way the enforcement wind will be blowing in order to best advise anxious clients. One high-stakes area of enforcement focus, the Foreign Corrupt Practices Act (FCPA), has been subject to much speculation in this regard. In this article, we highlight 5 reasons to think that corporations should continue to commit to FCPA compliance: early signs of the new regime foretell continued zealous enforcement; the limited impact of the FCPA on American companies’ competiveness overseas; enforcement efforts by other countries; expansion of anti-bribery statutes has led to increased cooperative partners for the U.S.; and business reasons alone may encourage strong compliance.

Corporations operating globally face significant uncertainty regarding their ability to maintain the confidentiality of their counsels’ activities, especially in the context of internal investigations. Recent events, including a raid of outside counsel’s office and a significant U.K. court decision, illustrate a troubling trend. In this article, we discuss why companies and their U.S. law firms must carefully consider the manner in which they conduct internal investigations abroad.

After years of expressing frustration with the barriers to trial preparation in complex criminal cases, the organized defense bar has again called for revisions to Rule 16 of the Federal Rules of Criminal Procedure. Buoyed by a recognition among the judiciary that current practices must come to terms with the proliferation of electronically stored information, and by the Department of Justice's acceptance of the principle that amending the Rule would be useful, an amendment now appears likely. In this article, we highlight issues with the current Rule 16, review the proposals for amendment under consideration, and discuss their potential impact on trial preparation in complex white-collar cases.

SEC Takes a Second Bite at Statute of Limitations Apple: Last month, the Supreme Court granted certiorari in Kokesh v. SEC to settle the issue of whether the so-called "fallback" five-year statute of limitations applies to SEC disgorgement claims. This article highlights the federal courts’ ongoing debate about the nature of the disgorgement remedy, and the potential impact of the Supreme Court’s decision on SEC enforcement proceedings.

Before her last stand refusing to enforce the Muslim Ban and subsequent firing, Sally Quillian Yates was best known for authoring the Yates Memorandum. This policy directive, released over a year ago in apparent response to criticism of the Department of Justice’s (“DOJ”) handling of cases related to the nation’s financial crisis, directed DOJ prosecutors to focus on holding individuals accountable through criminal prosecutions. Today, entities embroiled in criminal investigations continue to pay massive fines and plead guilty to criminal charges, but these investigations have led to few individual convictions. In this article, we discuss the differences between white collar corporate and individual prosecutions, explain how establishing individual criminal liability has proven difficult for prosecutors, and conclude that the Yates Memorandum may not materially alter the landscape. Thus, Yates may be remembered more for her letter refusing to enforce the Muslim Ban as unjust, not for the Yates Memorandum.

Over the years, a number of courts and practitioners have criticized the "fox guarding the chicken coop" procedure of allowing a government taint team to try to cull attorney-client privileged materials from seized documents. In this article, we discuss a recent case, U.S. v. DeLuca, that illustrates just what these skeptical courts and counsel have been concerned about.

One of the most significant areas of U.S. law enforcement's extraterritorial expansion has been the Foreign Corrupt Practices Act (FCPA), a niche notable for untested legal theories because of the dearth of cases that actually are litigated. Now, however, in United States v. Hoskins, the U.S. Court of Appeals for the Second Circuit will determine the validity of prosecutors’ use of conspiracy and accomplice liability theories to expand their extraterritorial reach even beyond that of the underlying FCPA statute. In this article, we discuss Hoskins and the likely impact the Second Circuit’s decision will have beyond FCPA enforcement efforts.

On September 23, 2016, Fordham Law Review published a special edition, Volume 85, Issue 1, in connection with the U.S. Court of Appeals for the Second Circuit’s 125^th Anniversary. In honor of the celebration, Morvillo Abramowitz partner Robert J. Anello and associate Miriam L. Glaser contributed a chapter on white collar crime. Their article addresses six different areas of white collar law and procedure, which showcase the Second Circuit’s role as the nation’s compass in white collar criminal matters.

Click here to read full article.

The so-called Bridgegate scandal, in which New Jersey Governor Chris Christie's administration allegedly closed entrance lanes to the George Washington Bridge in September 2013 to create traffic jams in retribution for the mayor of Fort Lee's failure to endorse Christie, already has had a significant impact on a number of prominent careers, and perhaps even on our national politics. In this article, we discuss the recently argued appeal of a demand by the media for disclosure of the names of unindicted co-conspirators in the pending federal prosecution of two top Christie associates, and the possible influence the appeal may have on courts' future deference to the reputational interests of individuals implicated but not charged in prominent investigations.

The Supreme Court’s 2015 Term promises significant developments for the white-collar bar. The court already has issued three decisions that are noteworthy for white-collar practitioners, with the most significant likely yet to come. In this article, we discuss the Supreme Court's recent white-collar decisions as well as cases to be decided in the upcoming year, and consider the impact of Justice Antonin Scalia’s absence.

Because the federal sentencing guidelines applicable to fraud cases are widely acknowledged to be broken and dysfunctional, particularly in high-loss cases, sentencing judges may increasingly seek other sources to help guide their discretion. In this article, we discuss the thoughtful alternative framework offered by a blue-ribbon panel of judges, law professors and practitioners, and highlight recent court decisions applying those “shadow guidelines.”

The Supreme Court's grant of certiorari in the highly-publicized case of former Virginia Governor, Robert McDonnell, to examine the contours of a quid pro quo arrangement under federal law will have an impact on more than just federal political corruption prosecutions. A number of other federal criminal statutes, including the Anti-Kickback Enforcement Act and the Foreign Corrupt Practices Act, include a quid pro quo requirement. In this article, we discuss the McDonnell case and its implications.

Even without its catchy name, the relatively new crime of “spoofing” would seem to appeal to prosecutors seeking to tap into the populist desire for prison time for perceived financial chicanery and the view that high-speed trading has rigged the markets against regular participants. Not surprisingly, therefore, the conviction last month in United States v. Coscia, the first criminal trial on spoofing charges, has generated a good deal of attention. In this article, we discuss the Coscia trial and what it portends for future prosecutions in the realm of market manipulation.

Partner Robert J. Anello recently authored  “White Collar Crime,” a chapter in the highly regarded treatise Commercial Litigation in New York State Courts, Fourth Edition. The treatise is a joint venture of Thomson Reuters and the New York County Lawyers’ Association and features the work of experts authors, including some of the best commercial litigators in New York.

Move over Holder, Thompson, McNulty, and Filip and make room for Yates. Taking its place in the parade of guidelines issued by Department of Justice leadership on the topic of policing corporate malfeasance comes a new entry from Deputy Attorney General Sally Quillian Yates. On Sept. 9, 2015, Yates issued a memorandum titled “Individual Accountability for Corporate Wrongdoing,” setting forth six guidelines for federal prosecutors in all future investigations of corporate wrongdoing. In this article, we discuss the Yates Memorandum and its possible effects on corporate investigations and white-collar practice.

For some, the Ninth Circuit’s reversal of home run king Barry Bonds’ obstruction of justice conviction and the government’s recent decision to drop any further prosecution may prompt a reassessment of Bonds’ place in baseball history. For those who focus on white collar crime, the case presents another example of how the breadth of the federal obstruction laws makes them a nearly irresistible choice for prosecutors, and of the seemingly endless struggle of the courts to define appropriate limits on their reach. This article discusses the federal obstruction of justice statutes and the implications of the Bonds decision.

When delivering legal advice, lawyers attempt to provide informed guidance based on controlling law. Yet, when it comes to significant chunks of the white collar criminal and regulatory landscape, practitioners often are forced to provide advice based on professional “lore” derived from negotiated settlements rather than enacted laws or judicially established caselaw. In this two-part article, we discuss the lore that counsel must rely upon when tackling FCPA enforcement actions, as well as the downside of such reliance.

In this article, we discuss the recent guilty pleas by four major international banks—Citigroup, JPMorgan Chase, Barclays, and Royal Bank of Scotland—for the attempted manipulation of foreign exchange rates. Although the Department of Justice characterized the pleas as “historic resolutions,” in truth the government made significant efforts to blunt the effects of the criminal convictions by granting waivers to rules that would have restricted the banks’ ability to continue doing business in the United States—so-called “bad boy” provisions. We also discuss how these resolutions illustrate fundamental problems with the current framework for corporate criminal liability in the United States.

In the wake of the 2010 Dodd-Frank Act’s broadening of the reach of SEC administrative enforcement proceedings, the agency undertook a major shift toward pursuing such proceedings instead of federal district court actions. Administrative proceedings, which are heard by judges employed by the Securities and Exchange Commission, are widely perceived to favor the agency. Indeed, recent data on the results of such proceedings reveal that the SEC has enjoyed a lopsided record of success, compared to its far more modest record in federal court trials. In this article, we discuss federal court challenges to the SEC’s initiation of administrative proceedings, including Duka v. SEC, in which Duka relies on recent Supreme Court precedent to assert an intriguing constitutional challenge to the status of SEC administrative law judges.

The restoration of sentencing judges’ discretion in the post-Booker era has rendered the federal sentencing guidelines—widely perceived as unduly punitive—less important in the white-collar context. Statistics confirm that courts increasingly have chosen to impose non-guideline sentences and, in some recent high profile cases, even the prosecution has proposed sentences below the guideline range. The U.S. Sentencing Commission recently has responded to complaints about the guidelines’ application by proposing a series of amendments to the guidelines governing economic crimes. We discuss all of this in our latest New York Law Journal article.

White-collar criminal practitioners spend much of their time arguing about how prosecutors should exercise their discretion in making charging decisions, often against the backdrop of broad and uncertain criminal statutes. When the Supreme Court grapples with the same issue, however, significant new criminal law doctrine may emerge. That potential became apparent most recently during the oral argument of Yates v. United States, the peculiar case of a fisherman prosecuted for obstruction of justice under the Sarbanes-Oxley Act for throwing undersized fish back into the sea. In this article, we discuss this case, the critical comments the justices directed toward the government regarding its exercise of prosecutorial discretion, and potential judicial remedies.

Enforcement actions seeking penalties long have been subject to the five-year statute of limitations set forth in 28 U.S.C. §2462. For years, the SEC has sought not to be tied down by a strict five-year limitation by arguing that the clock does not start to run until the alleged fraud is discovered by the agency—a position flatly rejected by the U.S. Supreme Court last year. The last arrow in the SEC’s quiver to avoid the five-year statute has been its argument that when it seeks so-called “equitable” remedies, like injunctions and disgorgement, the limitations period contained in Section 2462 is inapplicable. This final effort to avoid statutory time constraints also may be doomed. SEC v. Graham, a recent decision from the Southern District of Florida, if upheld, would require the SEC timely to investigate and file all enforcement actions regardless of the remedy sought. In this article, we discuss this case and other recent cases, and evaluate the role a change in §2462 would play in future cases.

Government searches of ever more sophisticated technology and ever vaster quantities of electronic data implicate ever increasing stakes for individual privacy. Recent decisions from the Supreme Court and the Second Circuit demonstrate that courts are recognizing these stakes, and may be beginning to breathe more life back into the Fourth Amendment after years of cutting back on its protections. This article takes a look at the Second Circuit's ruling in United States v. Ganias, which reversed a tax evasion conviction based on the government's improper off-site search of hard drives, and discusses related Fourth Amendment issues that pose particular challenges when the government seizes digital media.

The insider trading conviction of Galleon Group founder Raj Rajaratnam continues to ignite debate on the breadth of federal insider trading law. In affirming Rajaratnam’s conviction, the U.S. Court of Appeals for the Second Circuit relied on its precedent, broadly imposing criminal insider trading liability where a defendant has knowledge of insider information without evidence that he actually relied on the information in making a trade. That question, which is central to Rajaratnam’s petition for certiorari to the U.S. Supreme Court, is the topic of this article.

This article, “Conscious Avoidance: An Over-Used Doctrine,” discusses the problems engendered by court interpretations of the evidentiary foundation required for a conscious avoidance jury instruction in criminal cases.

A criminal defendant's decision whether or not to take the stand at trial is one of the most pivotal. Declining to testify, particularly in insider trading cases, can be risky, but testifying can permit attack by otherwise inadmissible "prior bad act" evidence. This article discusses the Martoma prosecution, which illustrates how the government can seek to attack a defendant with "prior bad acts" even if he does not take the stand.

The second part of this Business Crimes Bulletin article examines the issues surrounding criminal forfeiture laws. The first article discusses the criminal forfeiture statute. The publication of part two coincides with the Supreme Court's ruling on February 25 in Kaley v. United States, which limits the ability of defendants to challenge a court's decision to freeze their assets before trial. The outcome of this closely watched case provides the government with another tool in its arsenal. An analysis of Kaley and its potential impact on white-collar cases and on the ability of defendants to hire counsel of their choice, is discusses in part two.

The increasingly aggressive use of criminal forfeiture has become a vital weapon in the federal prosecution of white-collar cases. Sometimes, however, the government's zealous pursuit of the supposed fruits of allegedly illegal conduct may run afoul of a defendant's constitutionally-protected right to counsel. That is the subject of part one of this Business Crimes Bulletin article, published in two parts.

This article, “Second Circuit to Resolve Split on Insider Trading,” examines an issue regarding the boundaries of insider trading law that has divided lower courts – whether a "tippee" must have knowledge that the insider received a personal benefit.

Sentences in white collar cases called for by the Sentencing Guidelines often are unduly severe.  Courts and policy makers finally appear to be taking notice and a change may be afoot.  This article, “Calls for Sanity in White-Collar Sentencing,” examines a powerful recent opinion from a judge on a Second Circuit panel that takes issue with courts' mechanical application of the Guidelines concept of “intended loss,” which greatly increases white collar sentences. The article also discusses the long over-due attention the Sentencing Commission is paying to the problem.

This article examines the cooperation system and some notable complex white collar prosecutions that have fallen apart after cooperating witnesses have pled guility. It suggests a reexamination of the system with respect to such cases that should include consideration of adjustments to the standard jury instructions regarding cooperator testimony.

This article discusses the problem of over criminalization and whether proposed remedies, including those that may be recommended by the House Judiciary Committee task force recently established to consider the issue, can be effective.

This article discusses the courts' treatment of criminal defendants' document subpoenas to third parties under Rule 17(c) of the Federal Rules of Criminal Procedure. Over the years, the practical utility of these subpoenas has been limited because courts have tended to hold them to the demanding standard that the Supreme Court utilized in United States v. Nixon, even though that standard arose in a different context. The article discusses how in recent decisions, however, courts have properly begun to depart from the rote application of the Nixon standard.

The federal mail fraud statute is a broad catch-all criminal law that has been called the prosecutor's 'secret weapon.' It, however, is not without limits. This article discuss the history and jurisprudence of the mail fraud statute, and, in particular, a recent decision by the Ninth Circuit authored by none other than SDNY Judge Jed Rakoff, sitting by designation. In that case, United States v. Phillips, Judge Rakoff, who published a scholarly article on mail fraud before taking the bench, examined the requirement that the mailing be 'for the purpose of executing' the fraudulent scheme.

Aggressive prosecutions of corporate misdeeds and complaints by the public that companies and their executives are not being punished enough both are in vogue. This article discusses the evolution of corporate criminal liability in the United States and the manner in which the government typically holds a corporation accountable for employee misconduct. The article concludes that the government's increased reliance on deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) is reasonable given the harshness of judicially-created law deeming corporate entities criminally liable for the acts of even a few wrongdoers.

Although the "pioneering nature" of the use of wiretaps in the insider trading case of United States v. Rajaratnam has received a great deal of media attention, the statutory prerequisites to wiretapping have received little prior close legal scrutiny in white-collar cases. This article discusses the wiretap law's "necessity" requirement, which is intended to limit the government's use of wiretaps. The article suggests that the Second Circuit use the opportunity presented by Rajaratnam to define this requirement more rigorously than it has in prior decisions.

Recent money laundering prosecutions illustrate nascent attempts to criminalize regulatory non-compliance by focusing on what the government believes are improper banking procedures or compliance weaknesses. Financial institutions long used to measuring their anti-money laundering program against the norms established by bank regulators will now have to consider whether their programs measure up to Justice Department standards, enforced by the threat of criminal prosecution. This article discusses new trends in anti-money laundering investigations, and what this means for the banking industry and other financial institutions.

A recent Second Circuit decision provides guidance against the practice of providing a copy of the indictment to the jury during deliberations. This article discusses issues presented by "speaking indictments," the court's decision in United States v. Esso, and its guidance, which is particularly apt in white collar cases.

Along with the increase in the application of white collar criminal laws of various countries to companies' international operations, multinational corporations facing international investigations have faced a confusing array of laws that govern the confidentiality of communications involving in-house and outside counsel. This article examines the myriad of laws that apply in the United States and abroad and offers strategies to maximize protection of the attorney client privilege.

Recent high-profile prosecutions of serial fraudsters like Bernard Madoff have fanned the flames of a debate regarding whether economic danger can be the basis for imposing detention to protect the financial safety of the community. This article discusses two recent district court opinions addressing misbehavior by white collar defendants while released on bail and the implications for defense attorneys.

The recent public release of federal sentencing data on a judge-specific basis has generated significant media attention. This article points out the flaws in some of the analysis of this new development.

Historically, courts have been reluctant to overturn a conviction on the grounds of juror misconduct. This article reviews recent decisions and pending matters helping to define the role of the courts in addressing juror misconduct.

Although the presumption of innocence is one of the bedrocks of our criminal justice system, quite often suspects are tried and condemned in the court of public opinion before even being charged in a court of law. This article discusses how to deal with the media, both tactically and ethically when a client is in the public eye, in order to rebalance a sometimes tilted playing field.

Extradition laws are of increasing relevance in white collar practice due to the cross-border nature of most business transactions. A related issue is the transfer of foreign citizens convicted in the United States to their home countries to serve their sentence and the real governmental benefits that attend such transfers. This article details the administration of such transfers in and out of the United States by the Justice Department's International Prison Transfer Unit.