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Biden Appointees Suggest Uptick in Federal Fraud Prosecutions

In a recent op-ed, former Deputy AG Rod Rosenstein describes emerging trends suggesting that the federal government will soon take a more aggressive approach in investigating and prosecuting federal fraud cases. The article discusses the multi-decade decline in federal prosecutions, statements made by Biden’s DOJ appointees, and the recent COVID-19 relief legislation that could be the focus of several fraud prosecutions in the coming years.

DOJ Changes Position on First Step Act’s Sentence Reductions for Crack Offenders

In Terry v. US, involving the scope of the First Step Act’s sentence reductions for crack offenders, the DOJ has changed its position to support a broader reading of the law. Under the defendant and DOJ’s reading of the law, more inmates convicted for crack cocaine offenses will have “covered offenses” making them eligible for sentence reductions.

SDNY Judge Refers Prosecutors for Internal Investigation for Brady Violations

A case involving egregious prosecutor misconduct finally ended with a written opinion by the trial judge referring the prosecutors for investigation by the DOJ’s Office of Professional Responsibility. The Government had failed to disclose an exculpatory document until the middle of trial, where it produced a document dump and did not inform the defense of the new evidence, and emails between prosecutors showed they planned to “bury it” and lied to the court.

Feds and Georgia Announce Cyber Fraud Task Force Aimed at “BEC Fraud”

The DOJ has announced a state-federal “Cyber Fraud Task Force” targeting suspected “BEC” fraud (Business Email Compromise) in metro Atlanta. Statistics reflect a significant increase in BEC fraud over the years, and the DOJ reports that the metro Atlanta area is one of the top 5 clusters for BEC fraud cases in the country, suggesting there will be a significant increase in BEC fraud prosecutions there.

Criminal Charges Brought Against Former Governor and Others In Connection to Flint Water Crisis

Michigan’s Attorney General recently announced that eight former state officials, including former Governor Rick Snyder, have been charged with several crimes in connection with the Flint Water Crisis. While Snyder has only been charged with misdemeanors for willful neglect of duty, other officials have been charged with more serious crimes, including perjury, obstruction, extortion, and involuntary manslaughter.

Federal Prosecutors Now Explicitly Tying Trump’s Speech to Capitol Riots in Insurrection Cases

As reflected in documents filed by federal prosecutors in criminal cases against Capitol Hill rioters, the DOJ has begun to explicitly recognize and cite the connection between Trump’s speech and the violent actions by his supporters. Previously, federal prosecutors seemed to avoid drawing the connection, though defendants were quick to claim they were acting pursuant to the orders of the then-sitting U.S. president.

Senators Considering Legislation to Expand Eligibility for Compassionate Release

Senators from both parties have teamed up to try to get the COVID-19 Safer Detention Act of 2021 passed through Congress after the bill failed last year. The bill would expand the number of inmates eligible for early release to home confinement due to COVID-19 risks and also lower the “amount of time served” requirement under the Elderly Home Detention Pilot Program.

Democrats’ Judicial Agenda Includes Nominating Civil Rights Lawyers and Public Defenders as Federal Judges, Streamlining Confirmations, and More

President Biden and Senate Democrats are planning an aggressive approach to filling up judicial vacancies, including nominating more civil rights lawyers and public defenders, forming a commission to consider “structural changes” to the judiciary, and removing procedural tools like the “blue slip” to facilitate quicker judicial confirmations.

DOJ Ends Trump Administration’s Policy of Seeking the Harshest Charges, Sentences

The Department of Justice has issued a memo to federal prosecutors reversing the Trump DOJ’s policy directing prosecutors to seek the harshest charges and sentences possible under the law. Until a long-term policy is implemented, the DOJ is reverting to an Obama-era policy requiring prosecutors to treat charging decisions and sentencing positions as part of an “individualized assessment.”

What kinds of criminal charges can be brought against the Capitol Hill Rioters?

As the Government continues to identify suspects from the January 6 “Capitol Hill Riots,” we are starting to see what kinds of criminal charges are in play. While treason and advocating the overthrow of Government are not likely to appear in any indictments, rioters at the Capitol have significant exposure to charges like sedition, rebellion or insurrection, and felony trespassing on restricted buildings or grounds.

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