Criminal Litigation

Practice Points

What you need to know in a quick-to-read format. Find all of the Criminal Litigation Committee’s practice points in this archive.

2020

DOJ Issues Updated Guidance for Corporate Compliance Programs
By Zachary H. Greene and Lynsey M. Barron – September 17, 2020
Following this guidance is not only a way to help potentially avoid legal scrutiny, but it should be considered part of best practices.

“Bridgegate” Comes to a Close in SCOTUS Decision
By Sheena Foye and James R. Wyrsch – August 4, 2020
The federal government must prove a person charged with wire fraud and theft from a federally funded entity intended to take money or property, and that the money or property cannot be an “incidental byproduct” of a scheme.

Massachusetts District Court Vacates Opioid Convictions
By Sheena Foye and James R. Wyrsch – April 24, 2020
As opioid prosecutions against physicians and others continue across the country, practitioners should review Judge Allison Burroughs's order in United States v. Gurry.

Farm Bill Offers Hope for Marijuana Offenders
By Sheena Foye and James R. Wyrsch – January 22, 2020
How practitioners can use the Agriculture Improvement Act of 2018, which legalizes the production, possession, and sale of hemp federally, to help clients facing federal marijuana charges stemming from dog-sniff searches.

The Ongoing Debate over Access to Encrypted Technology for Law-Enforcement Purposes
By Eileen H. Rumfelt – January 10, 2020
Technology companies face a difficult tension between satisfying the privacy concerns of consumers and meeting government demands for access to encrypted devices and messaging.

2019

Protecting Communications with Incarcerated Clients
By Sheena Foye and James R. Wyrsch – December 3, 2019
The recordings of attorney client communications at Corrections Corporation of America in Leavenworth, Kansas and how to protect attorney client communications with clients who are incarcerated.

Separation of Powers in the Trenches: Using Ethical Rules to Expand Criminal Discovery
By Zachary H. Greene and Jenna W. Fullerton – October 15, 2019
Opinion 2017-F-163 and the tension in the Eastern District of Tennessee could represent a national trend.

SCOTUS Grants Certiorari in “Bridgegate” Case
By Sheena Foye and James R. Wyrsch – July 19, 2019
Defense practitioners should monitor Kelly v. United States as the U.S. Supreme Court could further limit prosecution for political corruption and white-collar crimes.

A Look into the Future of Surveillance Technology
By Madison Conkel and Eileen H. Rumfelt – June 26, 2019
San Francisco’s new ordinance banning the use of facial-recognition technology by law enforcement is an important harbinger of legislation (and litigation) to come.

DOJ Focuses on Company Culture in Updated Guidance on Corporate-Compliance Programs
By Wick Sollers, Dan Sale, Christina Kung, and Kelli Gulite – June 26, 2019
The DOJ has made clear that it will no longer accept a “checklist” approach to compliance.

Witness Tampering Update: United States v. Orozco
By Sheena Foye and James R. Wyrsch – June 26, 2019
The Tenth Circuit reverses Judge Robinson’s decision to dismiss with prejudice the case against Mr. Orozco.

DOJ Highlights New Guidance on Corporate-Compliance Monitors Among 2018 Achievements
By Eileen H. Rumfelt – April 11, 2019
The Benczkowski Memo clarifies that a corporate monitor should be viewed as the exception rather than the rule.

The Impact of the Marinello Decision on Prosecutions for Obstructing the IRS
By Sheena Foye and James R. Wyrsch – February 26, 2019
All criminal practitioners, not just those who practice tax-related defense, should be aware of the recent holding by the Supreme Court.

Continued Congressional Interest—Insider Trading and Rule 10b5-1 Trading Plans
By Wick Sollers, Dan Sale, Christina Kung, and Kelli Gulite – February 26, 2019
With persistent suspicion around Rule 10b5-1 trading plans, Congress has found a target that both sides of the aisle can rally against.

Cryptocurrency Crackdown
By Wick Sollers, Dan Sale, Christina Kung, and Kelli Gulite – February 5, 2019
The SEC ramps up its efforts to combat digital fraud.

DOJ Issues Updated U.S. Attorneys’ Manual
By Wick Sollers, Dan Sale, Christina Kung, and Kelli Gulite – February 5, 2019
The manual gets a new name and a comprehensive overhaul for the first time in more than 20 years.

2018

New Congress, New Outlook: 10 Things In-House Counsel Need to Know about House Congressional Committees
By Emily M. Loeb and Natalie K. Orpett – November 28, 2018
It is also almost certain that the business community will face renewed scrutiny from the incoming Democratic majority.

“Taint Team” or Special Master: One Recent Analysis
By Eileen H. Rumfelt – September 27, 2018
The parties' and court's reasoning in United States v. Gallego illustrate the thorny decisions that such cases require.

SCOTUS to Decide on “Separate Sovereigns” Exemption to Double Jeopardy Clause
By Sheena Foye and James R. Wyrsch – September 10, 2018
Practitioners with clients being prosecuted for crimes for which they have already been convicted should track Gamble v. United States.

In Lagos, Supreme Court Limits Potential Corporate Victim Recovery
By Destiney Randolph and Eileen H. Rumfelt– July 9, 2018
A recent U.S. Supreme Court ruling could significantly affect how corporate victims handle internal investigations.

Vagueness Surrounding “Crimes of Violence” Opens Door for Defense Objections to Sentencing Guidelines Calculations
By Sheena Foye and James R. Wyrsch – May 29, 2018
Following the recent U.S. Supreme Court decision in Sessions v. Dimaya, federal practitioners should object to criminal history points added for a conviction of a “crime of violence.”

Congress’s Effort to Deal with Overseas Data in the Wake of United States v. Microsoft
By Eileen H. Rumfelt – May 29, 2018
A forecast for CLOUDy skies?

Recent Decision Underscores Importance of Building a Record to Prove Witness Tampering
By Sheena Foye and James R. Wyrsch – May 29, 2018
Tampering could be a violation of your client’s Sixth Amendment right to present a defense, and could result in a new trial or even an outright dismissal.

Challenging the Statute of Conviction When Your Client Pleads Guilty
By Sheena Foye and James R. Wyrsch – January 2, 2018
The Supreme Court's opinion in Class v. United States will provide guidance in an area of law with a three-way circuit split.

Supreme Court to Decide the Extraterritorial Reach of the Stored Communications Act
By Eileen H. Rumfelt – January 2, 2018
U.S. v. Microsoft is poised to play a prominent role in the ongoing development of big-data privacy jurisprudence.

Department of Justice Announces New Opioid Fraud and Abuse Detection Unit
By Wick Sollers and Dan Sale – January 2, 2018
The formation of this new program comes amid increasingly strenuous calls from all corners regarding the need to target opioid fraud and address prescription drug abuse.

2017

Voices of Recovery Podcast Series
By ABA CoLAP – November 10, 2017
The ABA Commission on Lawyer Assistance Programs debuted the first of a series of podcasts that will address substance use disorders, mental health issues, addiction, and recovery issues. Episode 1 features attorney Laurie Besden, the Executive Director of Lawyers Concerned for Lawyers of Pennsylvania, who shares her battles with alcohol and drug addiction.

Investigation into CCA Leavenworth Communications Monitoring Continues
By James R. Wyrsch and Sheena A. Foye – October 3, 2017
Recent developments surrounding the breach of confidential attorney-client communications at CCA Leavenworth and how to protect attorney client communications moving forward.

SEC ALJs Found Unconstitutional by Tenth Circuit, under Review by D.C. Circuit
By Charles Dell’Anno – June 22, 2017
The forthcoming D.C. Circuit decision will either create a circuit split, or create unanimous circuit opposition to the SEC ALJs.

Honeycutt v. United States: SCOTUS Rejects Joint and Several Forfeiture Liability
By Wick Sollers and Dan Sale – June 21, 2017
Litigation regarding the contours of this ruling should be expected.

Motion to Compel Government to Identify Exculpatory Evidence When Government’s Discovery Materials Are Voluminous
By James R. Wyrsch – June 21, 2017
Highlights from several cases that arm defense attorneys with an additional weapon in the fight against voluminous productions from the government.

Bring Your Own . . . Fingerprint?
By Eileen H. Rumfelt – April 26, 2017
As smartphones become increasingly complicated, so do the legal implications for these small devices that hold “the privacies of life.”

DOJ Issues New Corporate Compliance Guidelines
By Wick Sollers and Dan Sale – March 30, 2017
The new compliance guidance will serve as an important reference point for evaluating whether compliance programs measure up to the expectations of enforcement authorities.

Expungement and Firearm Possession Post-Conviction
By James R. Wyrsch – February 27, 2017
Recent developments in the federal courts concerning motions to possess a firearm and for expungement after conviction.

Obama Commutes Record Number of Inmate Sentences
By Eileen Rumfelt – January 25, 2017
President Obama’s clemency initiative was one component of an overall reform initiative designed to promote fairness and equity in the criminal justice system.

2016

Supreme Court Upholds “Friends and Family” Insider Trading Conviction
By James R. Wyrsch – December 19, 2016
In Salman v. United States, the Court confirmed that the government need not prove that an insider received a tangible pecuniary benefit in exchange for tipping inside information, to obtain a conviction.

Researching the Public Social Media Posts of Prospective or Trial Jurors
By Criminal Litigation Committee – November 23, 2016
A recent ruling out of the Northern District of California appears to be inconsistent with ABA Formal Opinion No. 466.

A 10-Point Checklist for the Criminal Appeal
By Kele Onyejekwe – February 8, 2016
Tips to get the most out of the appellate process.

2015

Reporting from the Sixth Session of the CoSP to the U.N. Convention Against Corruption
By Criminal Litigation Committee – November 5, 2015
The Sixth Session of the Conference of the State Parties to the United Nations Convention against Corruption is currently being held in St. Petersburg, Russia. We will be reposting reports this week.

5 Tips for Engaging Opening Statements
By Farrah Champagne – October 30, 2015
The opening statement provides the first impression of the case and shapes the impressions of the jury.

DOJ Announces New Policy on Corporate Misconduct Focusing on Individual Culpability
By James R. Wyrsch – September 30, 2015
This shift in policy is shaking up the white-collar defense community

GM Gets Criminal Charges and Deferred Prosecution with $900 Million Forfeiture
By James R. Wyrsch – September 30, 2015
The announcement follows the investigation of a dangerous defect in an ignition switch that could result in the disabling in frontal airbags.

Fourth Circuit: Government Can Prosecute Citizens for Illicit Sex Overseas
By Alexander S. Vesselinovitch – August 26, 2015
The court held that the Foreign Commerce Clause allows Congress to regulate such sexual activities that demonstrably affect foreign commerce, such as sex tourism.

Feds Announce Criminal and Civil Charges Involving Hacking and Insider Trading
By Alexander S. Vesselinovitch – August 25, 2015
The defendants are alleged to have hacked three business newswires, to have stolen unpublished press releases regarding financial information, and to have made trades that generated tens of millions of dollars in illegal profits.

Seventh Circuit Affirms Some Blagojevich Convictions, Reverses Others
By Alexander S. Vesselinovitch – August 25, 2015
The court concluded that the jury instructions failed to distinguish between the defendant’s proposal to trade one public act for another (legal) as opposed to his attempt to swap an official act for a private payment (illegal).

Federal White-Collar Prosecutions Reach 20-Year Low
By Zachary H. Greene – August 16, 2015
Data released by the Justice Department show that the federal government is prosecuting white-collar criminal cases at the lowest rate in two decades.

Internal and External Whistleblowers Entitled to Same Protections
By Zachary H. Greene – August 16, 2015
The SEC issued an interpretation, at least in part, to avoid contrary rulings by the federal courts of appeal.

D.C. Circuit Reaffirms Privilege and Protections over Corporate Investigations
By Eileen H. Rumfelt – August 16, 2015
The court vacated a ruling regarding attorney-client privilege and work-product protection that “would ring alarm bells in corporate general counsel offices throughout the country.”

No Reasonable Expectation of Privacy in So-Called "Butt Dialed" Calls
By Eileen H. Rumfelt – August 16, 2015
According to the court, a butt dial is akin to leaving one’s curtains open to the public street, putting an otherwise private home in plain view.

SCOTUS Asked to Review Third Circuit Decision on Brady Obligations
By Anna H. Finn – August 4, 2015
A group of former prosecutors argue that the government’s obligation to turn over all material, favorable evidence is “unequivocal.”

Video of Vulnerable Adult Fails to Unseat Cochran, Results in Convictions
By Michael T. Dawkins – July 27, 2015
U.S. Senator Thad Cochran faced the most formidable challenge to his incumbency since his first election to the Senate in 1978.

DOJ's Offshore Compliance Initiative Will Reach Outside Switzerland
By Michael T. Dawkins – June 22, 2015
The Tax Division recently announced that it is investigating banks in other countries, naming India and Liechtenstein among others.

Conviction Stands Despite Defendant Not Having Sent Fraudulent Emails
By Michael T. Dawkins – June 22, 2015
The Eleventh Circuit affirmed that convictions under the wire-fraud statute can stand even if the defendant did not send fraudulent emails, if the third party's emails were reasonably foreseeable.

Pro Bono Lawyers Obtain Reversal of Sabotage Act Conviction of Catholic Nun
By Michael T. Dawkins – June 15, 2015
The Sixth Circuit held that the defendants had no intent “to impair the nation’s capacity to wage war or defend against attack.”

Former Hughes, Hubbard & Reed Partner Enters Plea of Guilty to Tax Fraud
By Michael T. Dawkins – June 15, 2015
Jeff Galloway will serve three months in jail, several years of probation, pay a $600,000 fine, and resign from the New York State Bar Association.

Unsealed Indictment Charges Economic Espionage and Theft of Trade Secrets
By David Lincoln – June 8, 2015
The indictment alleges a complex and long-running conspiracy by the defendants, in conjunction with entities ultimately funded by the People’s Republic of China.

NV Court Dismisses Online Gambling Prosecution, Ruling Evidence Inadmissible
By Joseph W. Martini – June 8, 2015
The FBI “created the need for the occupant to call for assistance from a third party by cutting off a service enjoyed by the occupant” in disconnecting a suspect’s Internet access.

FIFA Officials Indicted in Wide-Ranging Bribery Conspiracy
By Joseph W. Martini – June 8, 2015
The organization allegedly committed a foul, was issued a red card.

Sacramento Capitols Former Owner Ordered to Pay Restitution in Ponzi Scheme
By Joseph W. Martini – June 1, 2015
Deepal Wannakuwatte, former owner of the Sacramento Capitols professional tennis team, has been ordered to pay more than $100 million in restitution to victims of a decade-long Ponzi scheme he perpetrated.

Supreme Court Finds Prolonged Traffic Stop Unconstitutional
By Ronaldo Rauseo-Ricupero, and Charles Dell'Anno – May 14, 2015
The Court rejected the Eighth Circuit’s holding that a de minimis extension of a traffic stop could be justified under the Fourth Amendment.

Death-Penalty Case Highlights Supreme Court's Ideological Divide
By Yaser Ali – May 8, 2015
There was an unusually contentious argument on the final day of the Court’s term.

Second Circuit Denies Request to Reconsider Insider-Trading Ruling
By Danielle Pelot, Ronaldo Rauseo-Ricupero, and Charles Dell'Anno – April 24, 2015
The court’s Newman decision is expected to make future insider-trading prosecutions more difficult.

SCOTUS Preparing to Hear First Death-Penalty Case in Seven Years
By Yaser Ali – April 24, 2015
The Court will decide whether Oklahoma’s use of the sedative midazolam as the first drug in a three-drug protocol violates the Eighth Amendment.

SCOTUS: Forced Accompaniment of Just Several Feet Is Enough
By Andrea Halverson – April 8, 2015
The Court’s opinion relied heavily on the ordinary and historical meanings of “accompanied,” including citations to the works of Charles Dickens and Jane Austen as examples

SCOTUS: Fish Are Not "Tangible Objects" under 18 U.S.C. § 1519
By Andrea Halverson – April 8, 2015
The Court held that “tangible object” does not include any object, but is instead limited to objects used to record or preserve information.