Criminal Litigation

Articles

In-depth looks into topics relevant to you. Find all of the Criminal Litigation Committee’s articles in this archive.

2019

Federal Criminal Tax Charges and DOJ Tax Division Conference Requests
By Caroline Rule – December 5, 2019
Always request a DOJ Tax Division conference as soon as it appears that your client may face federal criminal tax charges.

From Indictment to Forfeiture: What's Yours Is (Now) Mine
By Jin-Ho King – December 5, 2019
A primer on criminal forfeiture and some of the traps along the way.

If We Were in OUR Home Country: Remedies for Victims
By Suzanne Bailey and Kayla Hall-Morgan – December 5, 2019
Victims of crimes such as domestic violence and human trafficking are either protected or made more vulnerable depending on their country's laws.

State Overhauls Criminal Discovery Rules
By Laura W. Givens – December 5, 2019
Early production of evidence will allow defendants to make informed decisions.

Internal Investigations Best Practices, Part II: Interviews
By Paul Rodrigues and Thomas Wagner – September 17, 2019
The investigator's job is to be methodical and well prepared with an investigation plan, yet willing to adjust course as the evidence dictates.

Understanding Cyberattacks and Best Practices in Triaging Breaches
By Sean Renshaw – September 17, 2019
What do you do when a cyber-related case lands on your desk or in your courtroom?

Defendant's Right to Exculpatory Evidence under Review
By Benjamin E. Long – July 22, 2019
Due process rights at guilty plea stage in question.

The Role of a Consulting Expert in Financial Litigation
By Michael Braverman and Chris Ekimoff – May 20, 2019
The forensic accounting capabilities of consulting experts set them apart from other accounting and finance professionals.

Judicial Notice: A Useful Tool to Consider
By Cheryl D. Stein – May 20, 2019
Often the simplest and most efficient way to establish facts that are essential to your case.

Video Testimony Replay Excluded from Closing Argument
By Jonathan R. Engel – April 23, 2019
Trial court did not abuse discretion in refusing replay of video testimony.

When and Why to Consider Self-Disclosure of Criminal Conduct
By Ariel A. Neuman and Jen C. Won – March 21, 2019
A white-collar primer for civil litigators.

Cannabis Cash: Tips for Financial Institutions
By Wade A. Thomson and E.K. McWilliams – February 6, 2019
A growing number of financial institutions are providing services to MRBs--despite uncertainty about future DOJ actions.

New Maryland Gun Law: Immediate Surrender of Firearms
By Farrah Champagne – February 6, 2019
Extreme risk protective orders require strict compliance or respondents risk facing harsh penalties.

Internal Investigations Best Practices, Part I: Protocols
By Paul Rodrigues and Thomas Wagner – February 6, 2019
Proper planning is critical to the success of a fraud investigation.

GDPR: Impact on Corporate Investigations and Due Diligence
By Jane Shvets and Robert Maddox – February 6, 2019
In collecting personal information, companies must adhere to the GDPR's heightened data-protection regulations.

United States v. Coinbase: One Year Later
By Benjamin Tompkins – February 6, 2019
Individuals who have used or are contemplating using cryptocurrency to shield income should be forewarned.

2018

Be Aware of 26 U.S.C. 7216: You May, to Your Surprise, Be a Tax Return Preparer
By Caroline Rule – November 15, 2018
If you are an attorney who practices in the criminal tax area, be aware of 26 U.S.C. 7216, which makes it a crime for a tax return preparer to make unauthorized use or disclosures of a taxpayer's tax return information.

How Integrity Due Diligence Can Protect Your Company from Risk
By Greg Naviloff – November 15, 2018
Lost in this compliance-driven environment is an appreciation of the strategic utility of in-depth IDD work.

From Case Law to the Courtroom: Tips for Drafting Your First Winning Motions
By Jin-Ho King – November 15, 2018
Advice on crafting your first motion from the slip opinions (and other case law) that you read.

Wiping Slate Clean: Revamped Expungement Is Now Less about Who Can Afford It
By Sam Stockard – November 15, 2018
The scales of justice in Tennessee are slowly tipping back toward the poor--and not so poor--helping them regain traction lost to often-minor transgressions.

Does a Diverse Bench Really Matter?
By Ruthe Ashley – October 18, 2018
"Justice" has many factors that influence outcomes, and the lack of diversity on the bench can lead to unjust results.

When Silence Isn't Golden: The Use of Adverse Inferences in Healthcare Enforcement Actions
By Alex Alonso – August 30, 2018
Adverse inferences are not limited to findings in a case; they can also come into play in terms of mitigating factors.

Domestic Violence: Jury Trials Recommended
By Ralph E. Guderian – August 30, 2018
There is a strong bias against defendants in domestic battery and order of protection cases.

SCOTUS Limits Restitution in Federal Criminal Cases
By Patrick Otlewski and Chris O'Malley – August 30, 2018
Companies victimized by fraud can no longer count on recovery of the costs of investigations under the MVRA.

Career Offender Guidelines: Court Rejects Vagueness Challenge
By Thad Davis – June 20, 2018
Walking like a duck and quacking like a duck are not good enough for career offender challenges.

Privilege in Internal Investigations: SEC v. Herrera
By Jane Shvets and Jil Simon – June 20, 2018
Maintaining privilege while obtaining cooperation credit has become a balancing act under the Herrera opinion.

Q&A with San Diego County District Attorney Candidate Geneviéve Jones-Wright
By Hali M. Anderson – May 18, 2018
A discussion about her campaign, her vision for San Diego, and what needs to change in our society and profession.

Key Lessons from the 2017 FCPA Plea Agreements and Indictments
By Nicholas R. Barnaby, David Bitkower, Kelly Hagedorn, and Veronica Lopez – March 7, 2018
The DOJ will continue to prioritize individual prosecutions in FCPA cases and use the accountability as a benchmark for the successful resolution of corporate investigations.

How Much Racial Bias Is Enough to Show Racism in a Jury Verdict?
By Mark A. Flores – March 7, 2018
The Supreme Court ruled that racism could not play a role in a juror's decision to send a criminal defendant to jail or to his death.

Clarifying Statistical Evidence: The Big Shortchange in the "Abacus" Case
By Laura Robinson – March 7, 2018
Hypothesis tests of evidence can often be misinterpreted, but with proper cross-examination of experts, the finder of fact can be clearer about the truth.

The Art of the Blind Cross-Examination: 8 Tips for When You Don't Know the Answers
By Sanket J. Bulsara and Adam Hornstine – May 28, 2015
What is an attorney to do when he or she confronts a witness who has not yet been deposed?

2017

Gaining Knowledge of Specialized Versus Particularized Knowledge
By Cheryl D. Stein – November 28, 2017
Drawing the line between lay and expert opinion testimony can be difficult even for the most experienced trial lawyers.

Statutory Maximum/Minimum Sentences and Application of Offense Levels
By Caroline Rule – November 28, 2017
Attorneys shouldn’t be reticent about suggesting sentencing methods when maximum/minimum sentences conflict with Offense Levels.

Protecting Victims of Cyberbullying
By Farrah Champagne and Mia Champagne – November 28, 2017
Most states do not have criminal cyberbullying laws, so prosecutors often rely on stalking and harassment statutes to bring criminals to justice.

Protecting Privilege in an Internal Investigation: A Global Perspective
By Chris O’Malley and Courtney Roldán – November 28, 2017
With the rise of international practice comes the rise of cooperation among government authorities across borders—and the rise of risk relating to privilege.

Compliance Programs and International White-Collar Crime
By Bruce J. Casino – August 8, 2017
Global compliance programs help minimize the risks of conducting business internationally.

Purposefully Protecting Pets
By Farrah Champagne – August 8, 2017
Maryland's final protective order does not protect pets from injury, threats, or death.

Recollections: Refreshed and Recorded
By Cheryl D. Stein – August 8, 2017
Recollection rules cause confusion among even the most competent and experienced of trial lawyers.

The Do's and Don'ts of a Closing Argument
By Farrah Champagne – August 8, 2017
Present your closing argument with vigor, but be careful to follow the rules.

Lemons and Lemonade: Making the Most of Grounds for Transferring Venue
By Thad A. Davis and Kelsey J. Helland – March 6, 2017
It appears that Rule 21(b) motions are regularly successful, whereas Rule 21(a) motions are virtually never granted.

Loving v. Commonwealth: A Powerful Lesson Turns 50
By Mark A. Flores – March 6, 2017
A review of the opinions that resulted in love prevailing over bigotry is as important today as it was the day that the Supreme Court announced the Loving decision.

Gang Membership: Deadly, but Avoidable, Consequences
By Ralph E. Guderian – March 6, 2017
My client’s story, like so many others, involved a gang and a gun.

The Art of Evaluating an Appeal: 10 Hard-Learned Tips
By Sylvia H. Walbolt – August 23, 2016
An appellate practitioner with over 50 years of experience provides tips on evaluating whether to pursue an appeal.

2016

How Not to Waive Privilege When Consulting Non-Attorney Experts or Professionals
By Caroline Rule – November 30, 2016
Attorney-client privilege is not protected unless the services of a non-attorney or professional are necessary to translate, interpret, or explain client communications.

Proving Racial Bias During Juror Deliberations under Rule 606(b): Pena-Rodriguez v. Colorado
By Mark A. Flores – November 30, 2016
The Supreme Court just heard a case and will decide whether a juror can testify about racial animus inside the jury room during deliberations.

Luis v. United States and the Future of Federal Forfeiture Reform
By Vadim A. Glozman – November 30, 2016
Pretrial asset-freezing moving toward reform.

The Rise of Revenge Pornography and Its Damaging Effects
By Farrah Champagne – September 13, 2016
Sharing of intimate photos online without permission has become increasingly trendy.

Fraud, Abuse, and the Value-Based Payment Regime: Is New Thinking Needed?
By Jeremy D. Sherer – September 13, 2016
The structure of healthcare payment in the United States is changing.

Medicare Fraud: A Historic Takedown
By Ariella Cohen – September 13, 2016
The Affordable Care Act provides tools and resources to fight federal healthcare fraud.

Delaware Capital Punishment First Domino to Fall under Hurst
By David I. Schoen – September 13, 2016
Delaware strikes down the death penalty as unconstitutional under Hurst.

Rule 801(d)(1): The Admissibility of Prior Consistent Statements
By Cheryl D. Stein – September 13, 2016
Every prior consistent statement offered to rehabilitate a witness is defined as nonhearsay, even when the witness has not been accused of fabrication.

Lawful Searches by Bankruptcy Trustees
By Thad Davis and Peter Bach-y-Rita – May 31, 2016
A growing body of law has expanded the powers of the bankruptcy court to authorize home searches for the discovery of hidden assets or cash.

Nonconfrontational Self-Defense and the Imminent Threat Requirement
By Farrah Champagne – May 31, 2016
What constitutes an imminent threat for self-defense purposes?

Is Proximate Cause Being Eroded in Determining Restitution?
By Dennis S. Medica – May 31, 2016
The first legal challenge to U.S. Coast Guard's complex restitution calculation.

Assaults and Life
By Kele Onyejekwe – May 31, 2016
When the victim of an assault dies from the strike, only the homicide remains. Courts that disregard this rule violate the prohibition against judicial creation of crimes.

Substance Abuse: A Perspective for Use in Plea Bargaining
By Ralph Guderian – May 31, 2016
Attorneys who are educated about substance abuse can offer viable alternatives to conviction for defendants accused of alcohol-related crimes.

Indirect Criminal Contempt
By Robert S. Held – February 24, 2016
One court's disregard for First Amendment rights highlights the need for education on due process requirements for indirect criminal contempt.

Supreme Court Sidesteps First Amendment, Voids Criminal Conviction
By Farrah Champagne – February 24, 2016
Violent posts on Facebook: What constitutes a true threat and guilty mind?

Expunging Criminal Records Promotes Justice
By Kele Onyejekwe – February 24, 2016
The expungement of a criminal record allows your client to move forward from a past mistake to pursue a full civic life.

2015

Prosecuting Domestic Violence Cases
By Farrah Champagne – September 17, 2015
An examination of mandatory arrest and no-drop policies in the prosecution of domestic violence cases.

Federal Appeals Courts Must Exercise Jurisdiction over Decisions of the BIA
By Kele Onyejekwe – September 17, 2015
The Supreme Court's decision in Mata v. Lynch continues immigration law's march into the mainstream of American law.

Will the Court Define "Actual Damages" in the OPM Cyber-Attack Lawsuit?
By Matthew A.S. Esworthy and Aaron M. Danzig – September 17, 2015
What are actual damages under the Privacy Act of 1974 in a massive data breach? AFGE's class action against OPM may provide an answer.

Sustainable Growth Rate Legislation Refines Civil Monetary Penalties for Gainsharing
By Alix Pereira – September 17, 2015
Recent laws suggest that hospitals will be granted latitude to implement gainsharing agreements under specific circumstances.

Not Guilty but Might as Well Be: Ending Acquitted Conduct Sentencing
By Dillon Malar – September 17, 2015
Congress should eliminate acquitted conduct sentencing, as the practice goes against the basic assumptions of criminal procedure.

"Equalizing" the Negotiation Process with a Trial-Ready SEC
By Thad A. Davis and Nicola M. Paterson – June 29, 2015
There are options beyond trial or settlement in the new "broken windows" era.

Protecting the Attorney-Client Privilege in Foreign Investigations
By Jane Shvets and Blair Albom – June 29, 2015
Foreign companies are often deprived of the attorney-client privilege.

Searches and Seizures of Foreign Email Servers: Microsoft v. United States
By Theodore G. Fletcher – June 29, 2015
Does the Stored Communications Act apply beyond the borders of the United States?

The Serial Comma in Interpreting Criminal Statutes
By Kele Onyejekwe – March 23, 2015
The placement of a comma can be critical in a criminal statute.

LIFO vs. FIFO: A Red Herring?
By Laura Robinson – March 23, 2015
The impact of the mechanics of matching purchase-and-sale transactions in estimating class damages is examined.

2014

Ethical Issues for Corporate Counsel in an Internal Investigation
By Michael T. Dawkins – December 11, 2014
Clear identification of corporate clients will assist lawyers in carrying out the duty of loyalty while maintaining client confidentiality.

Foreign Corrupt Practices Act 101
By Felicia C. Quentzel – December 11, 2014
A basic guide to the provisions of the FCPA and how it is enforced.

Traffic Stops Based on Mistake of Law: Are They Constitutional?
By LaKeisha R. Randall – December 11, 2014
In Heien v. North Carolina, the Supreme Court could vastly expand police officers' discretion.

When Federal Agencies Are the "Same Party" under FRE 804(b)(1)
By Thad A. Davis and Leslie A. Wulff – August 14, 2014
The hearsay exception for prior testimony under FRE 804(b)(1) requires that the evidence being offered is being used against the same party or a party who had a similar interest in the litigation. Federal courts have interpreted this requirement differently.

Recent Cases Limit Government's Ability to Search Phones, Computers
By Aaron M. Danzig – August 14, 2014
A modern interpretation of the Fourth Amendment?

U.S. v. Houser: Bellwether for Civil FCA Theories in Criminal Prosecutions?
By Jerry Friedberg and Amanda Touchton – August 14, 2014
Future cases will test the extent to which theories of liability that have been accepted in civil FCA cases may also form the basis of criminal prosecutions.

The U.S. Sentencing Commission's War on Drugs
By Vadim A. Glozman – August 14, 2014
Recent amendments to the Federal Sentencing Guidelines are consistent with Attorney General Holder's agenda, and will allow courts significant discretion in reducing sentences of qualifying defendants.

A Look at Retroactive Reduction of Drug-Trafficking Sentences
By Dillon Malar – August 14, 2014
The amendments to the Federal Sentencing Guidelines were approved to be retroactive and will create challenges for the system when the approximately 60,000 expected sentence-reduction motions are made.

Blurred Lines: Disgorgement, Forfeiture, and Punishment
By Jay Musoff, Nathan J. Muyskens, and Emily H. Stone – April 2, 2014
The Second Circuit has blurred the line between the equitable nature of disgorgement and the punitive nature of forfeiture.

Fundamentally Wrong: The Consequences of Prosecutorial Cognitive Error
By Emily M. Smith – April 2, 2014
Cognitive shortcuts can lead to wrongful convictions.

Practice Tips for Mitigating Data-Breach Risk and Liability
By Michael T. McGinley – April 2, 2014
Six critical steps businesses can take to prepare for a cyber-attack.

SCOTUS Permits State-Law Securities Class-Action Suits in Limited Situations
By Kenneth C. Pickering – April 2, 2014
The door is open where the claims do not involve a "covered security" as defined by the Securities Litigation Uniform Standards Act.

2013

United States v. Cuti and Lay/Fact Witness Opinion Testimony
By Stanley A. Twardy Jr. and Daniel E. Wenner – December 18, 2013
Second Circuit rules on "what-if-you-had-known" questions posed to accountants called as fact witnesses but not as expert witnesses.

Introducing Email Evidence at Trial
By Ryan Malkin – December 18, 2013
It is more than likely that emails were sent or received that will assist you at trial.

Conscious Avoidance as a Basis for Criminal Supervisory Liability: A Viable Theory?
By Joseph W. Martini and Melissa Fernandez – October 9, 2013
Recent charges indicate that prosecutors may seek to expand the use of conscious avoidance to hold supervisors liable for an increasing range of criminal liability.

What the Holder Memo on Mandatory Minimum Drug Sentences Means
By Darren M. Gelber – October 9, 2013
It is essential that federal criminal defense attorneys assess and assemble as much information as possible on the defendant's criminal history.

Glitches Within the CFAA's "Exceeds Authorized Access" Language
By Aaron M. Danzig and Matthew A. S. Esworthy – October 9, 2013
Defendants facing charges under the Computer Fraud and Abuse Act are affected by differing interpretations of a specific provision.

The Intersection of Off-Label Promotion and Free Speech
By Gerard T. Leone Jr., Hannah Bornstein, and Conor S. Harris – October 9, 2013
First Amendment protection may extend to "truthful" off-brand promotional activities, but the issue then becomes what qualifies as "truthful."

First Federal Charges Brought Following Referral from CFPB
By Jill Baisinger and Erin Yates – June 12, 2013
The first indictment has been brought stemming from the controversial bureau created by the Dodd-Frank Act of 2010.

FCPA, Due Process, and Jurisdictional Overreach by the DOJ and SEC
By Bruce J. Casino and Scott Maberry – June 12, 2013
The FCPA itself and due-process concerns likely limit the statute's expanded extraterritorial reach.

The LIBOR Cases: A New Prosecutorial Model?
By Ari D. MacKinnon – June 12, 2013
Corporate entities and defense attorneys alike should be on guard for a shift away from the DPA/NPA model.

Challenging Indictments Without Appearing in the United States
By Kimberly Murphy – June 12, 2013
Is there an out for foreign criminal defendants?

Federal Contractors Face Increased Risk of Suspension and Debarment
By Jason M. Silverman and Felicia C. Quentzel – June 12, 2013
What suspension and debarment are, why you should be concerned, and what to do about it.

Punxsutawney Phil and the Whole Truth
By Mark L. Greenblatt – June 12, 2013
How true statements, blank spaces on forms, and half-truths constitute false statements under 18 U.S.C. § 1001.

Best Practices for Advising Clients on Cyber-Security
By Amanda Marie Baer and Kenneth C. Pickering – March 13, 2013
Checklists for guarding against and responding to a data breach.

Financial-Fraud Enforcement on the Rise
By Laura O. Robinson – March 13, 2013
Trends show that the SEC, DOJ, and FBI will continue to increase their focus on financial-fraud enforcement in 2013.

The CFTC's New Era of Aggressive Enforcement
By Vasu B. Muthyala and Laura L. Conn – March 13, 2013
Recent provisions in the Dodd-Frank Act have expanded the CFTC's enforcement opportunities and have brought on increased enforcement actions.

What's in the New FCPA Guide
By Bruce. J. Casino and Scott Maberry – March 13, 2013
Highlights from the 120-page Foreign Corrupt Practices Act Guide published by the DOJ and SEC.

2012

Practice Pointers for Deponent and Witness Preparation
By David Perrott – December 20, 2012
General tips and potential remedies for common problems that arise.

Brady Summaries and the Obligation to Disclose Favorable Evidence
By Steven F. Molo and Lucas M. Walker – December 20, 2012
What exactly must prosecutors turn over to criminal defendants?

JETWG Recommendations: Cooperation in E-Discovery
By Clifford E. Nichols III and Stanley A. Twardy Jr. – December 20, 2012
A new set of best practices aims to reduce cost and inefficiency when producing ESI.

Preserving Privilege During an Internal Investigation
By Daniel S. Park – December 20, 2012
To maintain privilege is to maintain options.

Civil Discovery Standards Influence New Criminal Guidelines
By Anne M. Chapman and Joseph N. Roth – August 20, 2012
The new recommendations are a step toward formalizing practice and expectations involving ESI in federal criminal cases.

The Pitfalls of Parallel Proceedings
By D. Grayson Yeargin and Lindsey M. Nelson – April 4, 2012
The safest path through one investigation may lead to a dead end in another.

The Risks and Benefits of Proffer Agreements in Parallel Proceedings
By Kenneth C. Pickering – April 4, 2012
Granting "queen for a day" immunity can have significant collateral consequences.

U.S. v. Jones Leaves Important Digital Privacy Questions Unanswered
By Nicole Jacoby – April 4, 2012
Just how reasonable is our expectation of privacy?

2011

Lessons from the Failed Prosecution of In-House Pharma Counsel
By Ronald J. Friedman and Michelle Peterson – October 12, 2011
As recently experienced by a pharmaceutical associate general counsel, the line between fair advocacy and criminality is not a settled matter.

Reconsidering the Extraterritorial Reach of the Mail and Wire Fraud Statutes
By Norman Moscowitz – October 12, 2011
Defense lawyers are now armed with better arguments, following Morrison, for challenging the prosecution of cases that are extraterritorial.

The Shifting Grounds of the Constitutional Right to Confrontation
By Emily R. Schulman and Melissa Turitz – October 12, 2011
The majority of the Supreme Court left open for interpretation how, if at all, courts should treat reliability when conducting a primary purpose inquiry.

Grand Jury Subpoenas That Reach Around the World
By Stanley A. Twardy Jr. and Doreen Klein – October 12, 2011
Recent decisions enhance prosecutors' ability to conduct international investigations at a time when the DOJ is aggressively targeting international antitrust and FCPA violations.

The SEC Is Preparing for a Greatly Enhanced Reliance on Whistleblowers
By Anthony Pacheco, Sigal P. Mandelker, and Massiel Pedreira – July 5, 2011
Since the passage of the Dodd-Frank Act, white-collar and compliance lawyers alike have been consumed by the potential consequences of the elevation the role of whistleblowers.

The Ninth Circuit and Arizona's Senate Bill 1070
By Mahsa Aliaskari – May 3, 2011
One day before the law was set to take effect, the district court granted a preliminary injunction, blocking certain provisions of the law from going into effect.

FCPA Enforcement Actions Against the U.S. Entertainment Industry
By James Clare – March 30, 2011
The recent conclusion of an FCPA enforcement action against a Hollywood couple presents a stark warning to an industry that was not traditionally on the FCPA's radar.