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Government Enforcement Exposed - "The GEE"
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07 Apr 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 4 (Part 2)

  What does the DOJ’s response to FAQ No. 4 tell us about cooperation?   This is the second of two posts relating to FAQ No. 4. In a previous post, we addressed the DOJ’s response to FAQ No. 4 regarding voluntary disclosure by a company. This post will address what the DOJ’s response says about a company cooperating, which includes, as we noted in Part 1, only a brief but important reference to cooperation:   “In recognition of the significant value early reporting holds for the government, the Principles [of Federal Prosecution Of Business Organizations] were revised to separate voluntary disclosure from cooperation in order to treat prompt voluntary disclosure as an independent factor to be considered.”   While it may be a rare,…

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04 Apr 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 4 (Part 1)

  *This is the fifth in a series of blog posts that examines seven FAQs issued by the DOJ in response to questions the Yates Memo raised. The fourth of these questions concerns when a company should voluntarily disclose misconduct.   Question: When should a company report misconduct?   Let’s investigate what the DOJ’s response tells us about voluntary disclosure:   It is fair to say that the Yates Memo focuses on a company’s cooperation with the DOJ, focusing primarily on a company providing information about culpable individuals. For example, five of the seven FAQs refer to “cooperation” or “cooperating.” Yet, FAQ No. 4 relates to reporting misconduct and does not specifically mention cooperation. Similarly, the DOJ’s response to FAQ No. 4 makes only a brief, but…

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04 Sep 2014 U.S. House of Representatives Committee on the Judiciary: Over-Criminalization Task Force

  In July on this Blog, I suggested that the House Committee on the Judiciary’s bipartisan Over-Criminalization Task Force may be worth keeping an eye on. With that in mind, here is a bit of an update.   When the Task Force was re-authorized this past February, it was scheduled to conclude its work in early August 2014. Of course, early August has come and gone. So, you may be wondering whether there is anything new to report about the Task Force. It appears that the House Committee has not again re-authorized the Task Force since February, and that the Task Force has held its final hearing. A report by the Task Force may not be too long in coming, and it will be interesting…

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17 Jul 2014 U.S. House of Representatives Committee on the Judiciary: Over-Criminalization Task Force

Regardless of what one may think about Congressional committees, or even Congress itself, the bipartisan Over-Criminalization Task Force may be worth keeping an eye on.   The Task Force was initiated in May 2013 and was re-authorized to continue its work in February of this year. When the Task Force was re-authorized, Bob Goodlatte (R-Va.), Chair of the House Judiciary Committee, said “Over the past few decades, the federal criminal code has expanded dramatically, creating an ever-increasing labyrinth of federal statutes and regulations, many of which impose criminal penalties without requiring that criminal intent be shown to establish guilt. We need to make sure our laws and regulations protect freedom, work as efficiently and fairly as possible, and do not duplicate state efforts. This Task…

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28 May 2014 Dear Department of Justice: Welcome to the “Modern Age”

  On May 12, 2014, Deputy Attorney General James Cole issued a memo to federal prosecutors, as well as several investigative offices (the FBI, DEA, ATF and U.S. Marshals Service) entitled “Policy Concerning Electronic recording of Statements.” The issuance of the memo is somewhat worthy of note because it was done with no fanfare or announcement by the Department, at the time. It is more worthy of note because it reflects a dramatic change in a many decades-long policy of the Department not to electronically record in-custody interviews. Attorney General Holder has described the change as a “sweeping new policy” and the Department announced the “significant policy shift concerning electronic recording of statements” in a May 22, 2014, press release, after several published reports on the…

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11 Apr 2014 Feds Issue Guidance for Banks Dealing with Marijuana-Related Businesses

  While marijuana dealing activities are not generally a topic of interest to those who are involved in the prosecution or defense of white collar criminal cases, financial institutions probably are well aware that dealing with persons involved in such activities can lead to prosecution of the financial institution. That is the “stuff” of interest to white collar criminal practitioners. With recent enactments in various states concerning medical marijuana and recreational use of marijuana, however, financial institutions have been scratching their heads about where the line is between permissible banking business and that which crosses the line.   In an effort to give clarity to that question, the Department of Treasury (Financial Crimes Enforcement Network) and the Department of Justice have issued memos providing guidance…

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19 Feb 2014 The Position Of Assistant Attorney General For The Criminal Division May Be Filled In The Near Future

By Mark Stuaan |   Leslie Caldwell, a partner at Morgan Lewis & Bockius LLP, was nominated in September 2013 by the White House for the position of Assistant Attorney General for the Criminal Division in the Department of Justice. She was re-nominated for the position in January 2014, and her nomination took a step forward when she testified last week before the Senate Judiciary Committee. If confirmed, she would fill the position left by Lenny Breuer when he returned to private practice in 2013.   In her prepared remarks, Caldwell told the Committee: “I will do my best to ensure the vigorous enforcement of our criminal laws, and to apply them with equal force whether the wrongdoing is in a boardroom, across a computer…

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27 Jan 2014 Warrant Required to Search Cell Phone?

By Mark Stuaan |   In mid-January the Supreme Court granted certiorari in two cases which reached different answers to the question of whether the police must obtain a warrant before searching a person’s cell phone incident to that person’s arrest. The cases are likely to be argued in April. With 90 percent or more of adult Americans owning cell phones, and today’s cell phones being far more than just mobile phones, the Court’s decision could have significant impact on police activity concerning the vast majority of adults in this country.   In Riley v. California (Supreme Court No. 13-132), after police stopped Riley for expired tags on his license they found firearms under the hood of the car during an impound search of the…

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05 Jan 2014 Supreme Court Case Likely to Resolve Dispute on What Government Must Prove in Bank Fraud Prosecutions

By Mark D. Stuaan |   The U.S. Supreme Court plans to hear arguments later this year related to Loughrin vs. United States, which involves a bank fraud prosecution out of the Tenth Circuit. At issue is whether the government must prove that the defendant intended to defraud a bank and expose it to risk of loss in every prosecution under 18 U.S.C. § 1344. The question reflects a split in the federal courts of appeals. The Supreme Court granted Loughrin’s petition for certiorari in mid-December 2013.   The case was premised on the defendant allegedly stealing checks out of mailboxes, altering the checks, and then using the altered checks for purchases at a large retail store. Even though the defendant did not defraud a financial…

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