Criminal Law & Procedure Practice Group Podcast
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.
- Paul D. Kamenar, Washington, D.C. Attorney and Senior Fellow, Administrative Conference of the United States
- John F. Lauro, Principal, Lauro Law Firm
- Moderator: John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
On February 25, 2015, the Supreme Court issued its decision in Yates v. United States. This case concerns whether Mr. Yates’ order to his crew to throw undersized fish back into the Gulf of Mexico during the course of a government wildlife investigation violated the "document shredding provision" of the Sarbanes-Oxley Act, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation.
Justice Ginsburg announced the judgment of a divided Court, and delivered a plurality opinion concluding that for purposes of the Sarbanes-Oxley Act, a "tangible object" refers to an object used to record or preserve information. Justice Alito concurred, on somewhat narrower grounds.
Justice Ginsburg was joined by Chief Justice Roberts, and Justices Breyer and Sotomayor. Justice Alito filed an opinion concurring in the judgment. Justice Kagan filed a dissenting opinion, which Justices Scalia, Kennedy, and Thomas joined. The judgment of the Eleventh circuit was reversed and the case remanded for further proceedings.
To discuss the case, we have Todd Braunstein who is Counsel at WilmerHale. Criminal Law & Procedure Practice Group Podcast
In a 4-1-4 decision issued on February 25, 2015, the United States Supreme Court held that a federal criminal law prohibiting the destruction of corporate records and other “tangible objects” could not be used against a commercial fisherman who threw undersized fish overboard to avoid prosecution. The decision featured an unusual lineup of justices, wave after wave of fishing metaphors, and a citation to Dr. Seuss. Todd Braunstein covered the November oral arguments on a Teleforum conference call, and he returned to wade through the complicated decision.
SCOTUScast 11-21-14 featuring Todd Braunstein
- Todd F. Braunstein, Counsel, WilmerHale
Todd F. Braunstein November 21, 2014
On November 5, 2014, the Supreme Court heard oral argument in Yates v. United States. This case concerns whether Mr. Yates was given fair notice that throwing undersized fish back into the Gulf of Mexico during the course of an investigation would violate the "document shredding provision" of the Sarbanes-Oxley Act, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation.
To discuss the case, we have Todd Braunstein who is Counsel at WilmerHale.