Category: Webinars & Podcasts

Originally published at NACDL | December 20, 2019

Ep.36 – Congress’s Overcriminalization Task Force — The Congressional Task Force on Overcriminalization held its fourth hearing in November. Composed of five Democrats and five Republicans, the Task Force, which awaits reauthorization after its November 30 expiration, was first created on May 7, 2013, by a unanimous vote of the House Committee on the Judiciary. The Task Force was charged to “conduct hearings and investigations and issue a report on overcriminalization in the federal code, as well as possible solutions.” In this podcast, we hear from Shana-Tara Regon, NACDL’s Director of White Collar Crime Policy, about this groundbreaking task force, the work it has done, and the critically important work that lies ahead. Learn more about NACDL. Ivan J. Dominguez, host; Isaac Kramer and Elsa-Maria Ohman, production assistants; Steven Logan, production supervisor. Music West Bank (Lezet) / CC BY-NC-SA 3.0 and Walkabout (Digital Primitives) / CC BY-NC-ND 3.0.

Listen to the Podcast Here

Originally published by the Washington Legal Foundation |September 18, 2019

Over the last two years, the Justice Department and more recently the Treasury Department and increasing numbers of non-US authorities have issued policy statements, guidance documents, and made speeches intending to make white-collar criminal enforcement more transparent. As recent federal prosecutions and consent decrees demonstrate, however, businesses enterprises and their corporate officers should not mistake clarity in the decision-making process for disinterest. Those enforcement actions and DOJ guidance reflect the need for consistent, committed corporate compliance procedures. Our speakers will analyze this year’s most important white-collar developments and trends, forecast future concerns, and discuss key refinements that can improve even the most effective corporate compliance program. 

Watch the presentation Here.

Originally posted by the Cato Institute | November 7, 2017

Prosecutors and other government lawyers who enforce our nation’s laws wield vast power and exercise tremendous discretion with little oversight or accountability. The following panelists have written powerful and often deeply shocking books about their firsthand experiences with that system and the damage it does to the cause of justice:

Rob Cary, Partner at Williams & Connolly, and author of Not Guilty: The Unlawful Prosecution of U.S. Senator Ted Stevens; Howard Root, Former CEO, Vascular Solutions, and author of Cardiac Arrest: Five Heart‐​Stopping Years as a CEO on the Feds’ Hit‐​List; and Michael J. Daugherty, Founder and president, LabMD, and author of The Devil Inside the Beltway: The Shocking Exposé of the U.S. Government’s Surveillance and Overreach into Cybersecurity, Medicine and Small Business; moderated by Clark Neily, Vice President for Criminal Justice, Cato Institute.

Originally published at The Federalist Society | February 15, 2017

Farha v. United States, currently pending on a petition for writ of certiorari to the U.S. Supreme Court, is a case study raising basic notions of due process, fair notice, the rule of lenity, mens rea, and whether administrative and civil remedies would be more appropriate.  What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute ended in the indictment, conviction, and prison sentences for the Wellcare executives for fraud.  

On appeal, where the case was captioned Clay v. United States, the U.S. Court of Appeals for the Eleventh Circuit upheld the convictions over the objections of the defendants that the jury instruction impermissibly allowed the jury to convict if the defendants were “deliberately indifferent” to the law’s requirement as opposed to finding a “knowing” violation as the statute requires.  The Supreme Court in 2011, in Global-Tech Appliances, a civil case involving patent infringement, held that “knowledge” cannot include “deliberate indifference” to show sufficient mens rea to establish infringement. Accordingly, the cert petition, filed by Seth Waxman of WilmerHale, seeks to have the Court rule that the jury instructions should require a higher mens rea standard, all the more so in a criminal case. 

This case is particularly important for all regulated industries, where there are numerous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement.

Listen to the Podcast Here

Originally published at The Federalist Society | June 14, 2016

Are federal prosecutors abusing their enforcement powers in the civil and criminal context? The news is increasingly filled with examples of the government taking advantage of vague statutory language and applying powerful prosecutorial tools to questionable ends. On May 25, 2016, the House Subcommittee on Oversight of the Ways & Means Committee held a hearing criticizing the Department of Justice and the IRS practice of seizing the bank accounts of small businesses for allegedly “structuring” cash deposits in violation of the Bank Secrecy Act (originally passed to combat money laundering and terrorism finance) where there was no intent to violate the law and no underlying criminal activity. One witness included a Maryland farmer whose $60,000 bank account from farmers’ market proceeds was seized, and who was further punished for speaking to the press about his case. Pending before the Eleventh Circuit is United States v. Clay, a case in which some 200 FBI agents raided a Florida health care company over an accounting dispute stemming from the interpretation of an allegedly vague Florida Medicaid regulatory provision. That raid resulted in the prosecution, conviction, and sentencing of the company’s top executives. Our experts discussed these cases, as well as other recent controversies involving prosecutorial discretion, civil asset forfeiture, and the criminal law.

Listen to the Podcast Here

Originally published by The Federalist Society | September 30, 2015

On October 2, the Eleventh Circuit Court of Appeals heard oral argument in United States v. Clay, a case that raises important questions about the nature of regulatory prosecutions. In particular, it presents issues that relate to what conduct constitutes a crime and what mental state is required to prove criminal conduct. These issues take on added importance in the light of the recent announcement of a new “get-tough policy” directed at corporate officials and employees by the US Department of Justice.

Prosecuting corporate officers and employees for their criminal conduct in the same way that other criminals are prosecuted for their wrongdoing serves the interests of justice. However, the core of determining whether someone is guilty of criminal conduct is not who the actor is, but whether that person did something that the law forbids (actus reus) with criminal intent (mens rea). Laws and regulations define the acts and states of mind which make conduct criminal, and those laws and regulations should provide clear notice of what conduct is subject to criminal sanctions. Without such notice, any prosecution is unfair and violates due process, especially when someone makes a reasonable response to an ambiguous or ill-defined government regulation or contract provision.

Continue Reading at The Federalist Society.

Originally published at The Federalist Society | July 29, 2015

Is Clay v. United States, currently pending in the 11th Circuit, a case study of overcriminalization and abusive federal prosecution? The case raises basic notions of due process, fair notice, the rule of lenity, mens rea, and actus reus. What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute of how to interpret a provision in Florida’s Medicaid reimbursement statute with no clarifying administrative regulations, ended in the indictment, conviction, and prison sentences for the company’s top executives for fraud. This case is particularly important for all regulated industries, where there are numerous and ambiguous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement. John Lauro, counsel in the case, discussed the lawsuit, with Paul Kamenar joining to offer questions and comments.

Listen to the Podcast Here