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“The Supreme Court’s message is unmistakable: Courts should not assign federal criminal statutes a ‘breathtaking’ scope when a narrower reading is reasonable.” See, United States v. Dubin, 27 F.4th 1021, 1041 (5th Cir. 2022) (Costa, J., dissenting). So began the powerful dissent of Judge Gregg Costa, joined by six of his U.S. Court of Appeals for the Fifth Circuit colleagues sitting en banc, which presaged the U.S. Supreme Court’s June 8, 2023, unanimous reversal in Dubin v. United States, 143 S. Ct. 1557 (2023). The dissenters then cited a string of Supreme Court criminal law decisions, many previously discussed by these authors, illustrating that the Court’s delivery of that message was “nearly an annual event,” and observed that not “once this century” has the Court adopted the “government’s broad reading … for a white collar/regulatory criminal statute.” Dubin, 27 F.4th at 1041. In its ruling in Dubin, the Supreme Court forcefully continued the trend recognized by Costa, rejecting the government’s literalist view of 18 U.S.C. Section 1028A(a)(1) that would make virtually every low-level fraud by a healthcare provider into aggravated identify theft subject to a mandatory two-year prison sentence.
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DOJ’s Cyber Fraud Initiative: A Wake-up Call That Keeps Ringing
By Randy S. Grossman, Kareem A. Salem and Kayla LaRosa
DOJ’s Cyber Fraud Initiative has been a wake-up call for companies to prioritize cybersecurity and adhere to stringent standards. By leveraging the FCA, DOJ has used a powerful enforcement tool to target a wide range of cybersecurity failures and misrepresentations. The increasing focus on cybersecurity by enforcement agencies means that robust cybersecurity practices are becoming a standard expectation, not just a best practice.
The State of Supreme Court Jurisprudence On Public Corruption
By Carrie H. Cohen and Allison M. Magnarelli
In the past decade, each time the Supreme Court has taken certiorari in a public corruption case, the court has reversed trial convictions and limited the types of conduct that constitute a federal bribery offense.
Defending Against Extradition to the United States
By Robert J. Anello and Richard F. Albert
The arm of U.S. extradition law is long. Fortunately, practitioners have defenses at their disposal that they may raise in the requested country’s courts to help either limit the scope of prosecution once extradition occurs, or to prevent it altogether.
New DOJ Self-Disclosure Pilot Program Increases Risk for Startups
By Jonathan Fahey, Jonathan P. Lienhard and Oliver Roberts
The DOJ has created new incentives for employee, or anyone, to report criminal misconduct allegedly committed by companies and their agents. Given their often laxer internal reporting structures and higher employee turnover rates, startup companies should pay particularly close attention to this new development to best mitigate legal risks.