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Supreme Court's October Term 2018 Contains Hints of Things to Come
In Part One of this article last month, we discussed several of the key business crimes cases from the recently concluded October Term 2018. We resume this discussion in Part Two of our article and offer some concluding thoughts about where the Court may go next in the years to come.
United States v. Haymond: Apprendi Continues to Impact Sentencing
Some 20 years ago, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 491-92 (2000) that any fact that increases the penalty for a crime beyond the otherwise-applicable statutory maximum (other than the existence of a prior conviction) must be proved to a jury beyond a reasonable doubt. As United States v. Haymond, 139 S. Ct. 2369 (2019), demonstrates, Apprendi continues to cast a long shadow over criminal proceedings.
Following his conviction for possession of child pornography, Haymond completed a prison sentence. He was serving a ten-year term of supervised release when government officials discovered what appeared to be images of child pornography on his cell phone. Following a hearing for the revocation of Haymond's supervised release, the judge found, by a preponderance of the evidence, that Haymond had knowingly possessed some of the images. Under 18 U.S.C. §3583(k), possession of child pornography during a period of supervised release carries a mandatory five-year term of imprisonment, and, so, Haymond received an additional five-year sentence. The Tenth Circuit held that the procedure contemplated in Section 3583(k) — that is, a mandatory five-year prison term for violation of supervised release, as determined by a judge under the "preponderance of the evidence" standard — violated the defendant's right to a trial by jury.
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The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
How AI Has Affected PR
When we consider how the use of AI affects legal PR and communications, we have to look at it as an industrywide global phenomenon. A recent online conference provided an overview of the latest AI trends in public relations, and specifically, the impact of AI on communications. Here are some of the key points and takeaways from several of the speakers, who provided current best practices, tips, concerns and case studies.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.