The Supreme Court of the United States has agreed to review an apparent circuit split over how long after a criminal conviction the United States can forfeit a criminal defendant’s property. In McIntosh v. United States the Court will review whether a district court may enter a criminal forfeiture order long after criminal proceedings have ended. How the Court resolves this issue will be important to future forfeiture cases, including those involving cryptocurrencies—an asset that over the last decade has been increasingly in the crosshairs of the government’s forfeiture powers.Continue Reading Supreme Court to Decide the Limits of the Government’s Forfeiture Power
The Supreme Court of the United States will decide an issue impacting charging decisions in criminal cases involving technology and where those cases are tried. Specifically, the Supreme Court will decide whether criminal defendants may be retried after they are convicted in the wrong “venue,” i.e., the location where the trial took place. This constitutional venue requirement—and the Supreme Court’s ultimate decision on the remedy for violating it—will influence future cases involving technology, where defendants, victims, servers, and resources used to commit the crime are often in different states or even nations.
In the case at issue, the defendant allegedly hacked into a company’s website, obtained certain trade secrets, and offered to sell those trade secrets through various posts on social media. As with many crimes involving technology today, numerous locations were involved: the defendant remained entirely within the Southern District of Alabama, the victim-company was in the Northern District of Florida, and the victim-company’s hacked servers were in the Middle District of Florida. But where to conduct the trial? Based on the location of the victim-company’s headquarters, the government decided (incorrectly) to indict the defendant in the Northern District of Florida, on three counts: violation of the Computer Fraud and Abuse Act, theft of trade secrets, and extortion. At the end of trial, the jury convicted the defendant of the latter two counts.
On appeal, the U.S. Court of Appeals for the Eleventh Circuit held that for the trade-secrets conviction “venue was not proper in the Northern District of Florida because [the defendant] never committed any essential conduct in that location.” To remedy this violation, the court had two options: (1) vacate the conviction, allowing the defendant to be retried in a (supposedly) proper forum, or (2) acquit the defendant of his conviction in the improper forum, which would bar his retrial in another forum under the U.S. Constitution’s Double Jeopardy Clause that prohibits giving “the government . . . a second chance at prosecution.” The 11th Circuit chose the first option, endorsing a remedy that effectively allows the government, when it chooses the wrong venue, to retry a defendant in the correct venue.Continue Reading Venue Misstep Shows Complexity of Prosecuting Cybercrime: Supreme Court to Weigh In
In remarks to the ABA Institute on White Collar Crime, U.S. Attorney General Merrick Garland and U.S. Assistant Attorney General Kenneth Polite Jr. delivered a wakeup call: enforcement activity by the U.S. Department of Justice (DOJ) “will only accelerate as we come out of the pandemic,” and federal prosecutors will focus more on white-collar criminal cases. The DOJ’s priority in these cases, AG Garland explained, is to hold accountable those individuals who commit and profit from corporate crime. And AAG Polite emphasized that the DOJ is committed to vindicating the rights of victims in white-collar cases who are too-often overlooked.
Continue Reading DOJ Foreshadows Increased Prosecutions of Corporate Crime
As this blog has previously noted, the Coronavirus pandemic, like other crises before it, is likely to increase prosecutions for fraud, particularly under the Payment Protection Program (“PPP”) created by the federal government’s Coronavirus stimulus packages. Two new prosecutions announced by the Department of Justice mark some of the first prosecutions under the PPP, and signal where and how the government will be looking for wrongdoing.
Continue Reading Prosecutions Related to Coronavirus Stimulus Begin
The U.S. Court of the Appeals for the Ninth Circuit recently held that criminal defendants who gain unlawful proceeds from certain offenses must pay back those proceeds—even when they no longer possess them. More specifically, the government may obtain “personal money judgments” that can be satisfied through the defendants’ untainted (and currently unidentified or even future) assets.
This ruling—reaffirming prior case law recently called into question—will impact defendants in cases involving economic crimes and forfeiture.
Continue Reading Crime Doesn’t Pay, But Defendants Still Left with the Bill
On March 6, 2019, the Division of Enforcement of the U.S. Commodity Futures Trading Commission (“CFTC”) issued a new Enforcement Advisory on self-reporting violations of the Commodity Exchange Act (“CEA”) involving foreign corrupt practices. Under the Advisory, the Division provided guidance that it might recommend no civil monetary penalties for certain non-registrants that voluntarily and timely self-report, fully cooperate, and appropriately remediate. The Advisory’s release was accompanied by formal remarks from CFTC Enforcement Director James McDonald at the American Bar Association’s National Institute on White Collar Crime.
Continue Reading CFTC Dips Its Toe into Anti-Corruption Space