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COVID-Era Challenges to Federal Indictments

Bloomberg Law recently published two articles drawing on the Women's White Collar Defense Association (WWCDA) Thought Leadership Subcommittee’s recent WaterCoolerPLUS session entitled “COVID-Era Challenges to Federal Indictments.” Both articles, co-authored with fellow WWCDA members, offer practical insights for practitioners seeking to challenge federal indictments related to COVID-19. 

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Third Circuit Reaffirms That Willfulness Does Not Require Knowledge That Conduct is Criminal, Rather Than Merely Unlawful

On December 4, 2020, the Third Circuit affirmed the district court’s willfulness jury instruction in a criminal payroll tax case under I.R.C. § 7202, which followed the familiar definition of willfulness found in Cheek v. United States.  In United States v. Gilmore, the Third Circuit rejected the defendant’s contention that willfulness requires knowledge that the defendant’s conduct is criminal, affirming that “willfulness in the context of tax crimes merely requires knowledge and violation of a duty.”  

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Understanding and Protecting the Defendant’s Right to Confront Witnesses in the COVID-19 Era 

In the September 2020 edition of the Pennsylvania Association of Criminal Defense Lawyers’ (PACDL) For the Defense magazine, Carolyn Kendall examines the careful balance judges and court administrators must strike between ensuring that judicial proceedings protect the rights of the accused and minimizing the risk of COVID-19 transmission. 

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FinCEN Releases Second Advisory on COVID-19 Illicit Activity, Including New Red Flags for Common Consumer Fraud Scams 

On July 7, 2020, the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) released its second advisory to financial institutions about detecting and preventing COVID-19 consumer fraud. The guidance provides financial institutions with 18 new red flag indicators to help identify potential imposter and money mule pandemic fraud. FinCEN plans to continue issuing additional advisories about financial crimes related to the pandemic based on evolving trends. 

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Third Circuit Addresses Parameters of Permissible Law Enforcement Investigation Overview Testimony in Precedential Opinion

On May 5, 2020, the Third Circuit addressed the permissible limits and scope of overview testimony provided by a law enforcement officer to summarize the government's case at the beginning of trial. In its first precedential opinion on this issue, the Third Circuit, in United States v. Lacerda, the court held that an officer cannot provide "overview testimony that opines on ultimate issues of guilt, makes assertions of fact outside of the officer's personal knowledge, or delves into aspects of the investigation in which he did not participate."

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DOJ Updates Corporate Compliance Program Evaluation Guidance

First, DOJ updated its interpretation of one of the three “fundamental questions” that an evaluating prosecutor should ask. In addition to determining whether the company’s compliance program (1) is well designed and (2) works in practice, prosecutors should also consider (3) whether the program is being applied earnestly and in good faith. The updated guidance explains that this third question requires prosecutors to determine if the program is “adequately resourced and empowered to function effectively.” 

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FinCEN Releases First Advisory on COVID-19 Illicit Activity, Including New Red Flags for Potential COVID-19 Fraud and Scams

On May 18, 2020, the Department of Treasury's Financial Crimes Enforcement Network (FinCEN) released its first advisory to financial institutions about detecting and preventing COVID-19 fraud. The guidance provides financial institutions with 22 red flag indicators to help identify potential illicit activity related to the pandemic, such as price gouging and hoarding medical supplies; fraudulent cures, tests, and vaccines; and non-delivery scams. FinCEN plans to issue additional advisories about financial crimes related to the pandemic in the future.

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U.S. Attorney in Philadelphia Calls on Hospitals and Providers to Help Fight COVID-19-Related Fraud

In a letter released Thursday, April 16, 2020, the U.S. Attorney for the Eastern District of Pennsylvania called on area hospitals, health systems, and other providers to join the government's fight against coronavirus-related fraud. Hospitals, providers, and other health care institutions are on the front lines of the coronavirus pandemic and know first-hand the challenges in obtaining critical supplies. They also are in a unique position to identify COVID-19-related fraud, such as offers to sell non-existent or fake equipment and price gouging of supplies.

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