This past week, federal and state correctional facilities across the country have confirmed outbreaks of COVID-19 infections among inmates and staff. New York City’s primary jail, Riker’s Island, currently has the most confirmed cases, with 52 inmates and 30 employees testing positive. As this blog and other outlets have reported, crowded conditions, limited access to healthcare, and a high-risk population mean those incarcerated are particularly vulnerable to the disease.
Since the outbreak of the COVID-19 virus, law enforcement officials throughout the country have publicly committed to aggressively combatting pandemic-related fraud. Those pronouncements have translated into action focused, at least at this early stage, upon frauds which might impact consumers’ health and safety. The first federal civil enforcement action took place on Saturday, March 21, 2020. On that date, the U.S. Department of Justice, in coordination with the U.S. Attorney for the Western District of Texas, filed the first civil enforcement action against a COVID-19 related fraud. Prosecutors sought an injunction shutting down a website, which purportedly offered to provide “free” coronavirus “vaccine kits” for a $4.95 shipping and handling fee. This request for injunctive relief, which resulted in a temporary restraining order pursuant to 18 U.S.C. § 1345, is likely an omen of more to come. Continue reading U.S. Department of Justice Files Civil Complaint for COVID-19-Related Fraud
Federal and state prison officials have started releasing their action plans in response to the COVID-19 outbreak. The BOP and some states have suspended legal and/or social visits and inter-facility transfers for 30 days or more, among other changes in policy that we discussed last week. The links below will direct you to the complete guidance issued by the BOP and various state prison authorities:
As businesses and governments scramble to contain the coronavirus pandemic (“COVID-19”), one segment of society is uniquely vulnerable: the prison population. Poor hygiene, limited medical resources, overcrowding, and prohibitions on over-the-counter medical supplies such as hand sanitizer make corrections facilities and immigration processing centers very susceptible to the disease. It presents a serious threat to the prison system and could quickly escalate into a disaster if immediate steps are not taken.
The White House recently unveiled its federal budget proposal and, as expected, funding for regulatory agencies is on the chopping block once again. Under the proposal, the Consumer Financial Protection Bureau (“CFPB”) would see its budget trimmed by $110 million in 2021 while the Commodity Futures Trading Commission (“CFTC”) faces a potential budget cut of more than 20 percent.
Yet, perhaps the most surprising feature of the proposed budget is what it leaves out. The administration has proposed eliminating the Public Company Accounting Oversight Board (“PCAOB”) and reassigning its responsibilities to the Securities and Exchange Commission (“SEC”) beginning in 2022. The White House estimates the move would save the government $57 million in its first year and up to $580 million by 2030 by reducing “regulatory ambiguity and duplicative statutory authorities.” But doing away with the PCAOB will weaken the policing of auditing firms and ignores the improvements made in accounting standards and auditing quality. Continue reading Budget Proposal to Eliminate the PCAOB Could Leave Financial Markets More Susceptible to Accounting Fraud and Misconduct
Sooner or later, nearly every white collar defense attorney will represent a witness subpoenaed to testify before a federal grand jury. It is well settled in most circuits that federal grand jury witnesses do not have a right to have defense counsel present during the grand jury proceedings – but how frequently may witnesses request a break in the grand jury proceedings to leave the room to consult with their lawyers about the questions being posed?
Quite frequently, it turns out. Many federal courts allow non-immunized grand jury witnesses to consult with their lawyers after each question posed. See U.S. v. Soto, 574 F.Supp. 986, 990 (D. Conn. 1983). Courts recognize that witnesses reasonably wish to consult with counsel to avoid, for example, providing testimony which may tend to incriminate them. While some courts may limit the frequency of consultation to every two or three questions, particularly if the breaks become too lengthy or disruptive, courts will typically honor requests for regular consultation unless the request appears “frivolous” or “with intent to frustrate the proceedings.” See In re Tierney, 465 F.2d 806, 810 (5th Cir. 1972). Continue reading Sometimes, You CAN Always Get What You Want: Counseling Clients On Taking Breaks Before a Federal Grand Jury
The Supreme Court’s landmark ruling in United States v. Davis, 588 U.S. ___ (2019), has opened the floodgates to hundreds of petitions seeking to overturn convictions under the residual clause of Section 924(c). Now, circuit courts of appeals across the nation are feeling the immediate impact of the decision as federal offenders appeal their firearms convictions and seek to reduce their sentences. Continue reading Second Circuit Asks How to Address 924(c) Appeals in the Wake of Davis
An important statute in the prosecution of federal firearms offenses was struck down this week by the Supreme Court in United States v. Davis. The ruling will relieve many defendants who would otherwise face longer sentences for using firearms while committing a “crime of violence” – a phrase the Supreme Court determined was unconstitutionally vague as defined under the statute. Continue reading Supreme Court Strikes Down Criminal Firearms Statute As Unconstitutionally Vague
The protection against double jeopardy is guaranteed by the Fifth Amendment of the United States Constitution. While well enshrined in both the law and public awareness, this protection does not actually extend to a situation in which state and federal authorities seek to prosecute a defendant for the same offense. For decades, the Supreme Court has justified this exception to the Double Jeopardy Clause by invoking the dual sovereignty doctrine. Yesterday, in Gamble v. United States, the Supreme Court doubled down on its previous decisions and upheld the double jeopardy exception that allows federal and state prosecutors to pursue alleged criminals for the same offense. Continue reading Double Jeopardy “Loophole” Withstands Supreme Court Review in Gamble v. United States
On April 30, 2019, the U.S. Department of Justice (“DOJ”) issued the most comprehensive guidance that the DOJ has provided on how prosecutors should evaluate corporate compliance programs (“Policy”). In a speech announcing the Policy, Assistant Attorney General for the Criminal Division, Brian A. Benczkowski expressed the DOJ’s desire “to provide additional transparency” to companies in designing and implementing compliance programs.