In Culley, Justices Unlikely to Set New Forfeiture Standards | Law360 (Subscription Required)

The U.S. Supreme Court is currently considering a case that could reshape the practice of civil asset forfeiture – the process that allows the government to seize assets allegedly connected to criminal activity, absent a conviction or even an arrest.

By Jennifer Freel, Michael Murtha, and Mark Mariani

Insights • November 21, 2023

White Collar Docket Check: US Supreme Court to Decide Key Administrative, Whistleblower, and Due Process Cases This Term

The U.S. Supreme Court began its new term this week and is taking cases government enforcement practitioners will want to follow. Specifically, the Court will address issues concerning: the interplay between SEC administrative proceedings and the right to a jury trial; the amount of authority Congress can permissibly delegate to the SEC; who bears the burden of proof on the issue of retaliatory intent in adverse employment actions concerning whistleblowers; and the scope of due process for post-seizure probable cause hearings.

By Jennifer Freel, Michael Murtha, and Mark Mariani

Insights • October 5, 2023

A Deepening Circuit Split: The Fifth Circuit Weighs in on Divide Over Deference Afforded to Sentencing Guidelines

In this article contributed to Law360, Jennifer Freel and Michael Murtha take a deep look into the effect of a recent Fifth Circuit en banc decision, noting that the amount of deference courts give the Guidelines is an issue for criminal practitioners to watch and something likely headed to the U.S. Supreme Court.

Insights • August 14, 2023

Major Case Update: Fifth Circuit Declines to Transform How Courts Apply Sentencing Guidelines

The Fifth Circuit Court of Appeals has issued its much-anticipated en banc decision United States v. Vargas, which tasked the Court with deciding how much deference courts should give commentary to the U.S. Sentencing Guidelines following the Supreme Court’s decision in Kisor v. Wilkie. In a fractured decision, the Fifth Circuit held that Kisor does not extend to the Guidelines; rather, Stinson v. United States continues to control without any alteration from Kisor. Thus, the current paradigm remains in the Fifth Circuit absent Supreme Court intervention: the Guidelines commentary is “authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”

By Jennifer S. Freel & Michael J. Murtha

Insights • July 26, 2023

US Supreme Court Curtails Government Enforcement Power Under Three Federal Statutes, Reining in the DOJ

The U.S. Supreme Court recently decided three cases against the United States, with the Court rejecting the government’s attempt to prosecute or penalize private citizens under what the Court deemed to be overly expansive interpretations of statutes or regulations. As the Court winds down its current term, we look for the lessons it provided in these three marquee cases.

By Jennifer S. Freel & Michael J. Murtha

Insights • May 23, 2023

Docket Check Update: US Supreme Court Declines to Decide Whether Attorney-Client Privilege Protects Dual-Purpose Communications

The U.S. Supreme Court decided on January 23, 2023, in a per curiam slip opinion that it would not consider whether communications including both legal and non-legal advice are protected by attorney-client privilege.

By Jennifer S. Freel & Michael J. Murtha

Insights • January 25, 2023

Major Case Alert: Is the Fifth Circuit About to Transform How Courts Apply Sentencing Guidelines?

On January 24, 2023, the Fifth Circuit Court of Appeals will sit en banc to decide how much deference courts should give commentary to the U.S. Sentencing Guidelines. The full Court will do so in the much-anticipated case of United States v. Vargas, 21-20140. Specifically, the Court will decide whether the Supreme Court’s decision in Kisor v. Wilkie, which limited judicial deference to agency interpretations, extends to the Guidelines.

By Jennifer Freel & Michael Murtha

Insights • January 17, 2023

Docket Check: US Supreme Court to Decide Key Criminal and Regulatory Cases This Term

This term, the U.S. Supreme Court is tasked with construing the Bank Secrecy Act’s penalty provision, ruling on whether the “right to control theory” provides a viable theory of liability under the federal wire fraud statute, and deciding whether a private citizen who has informal political influence over governmental decision-making can be convicted of honest services fraud. It also must decide whether the Government has authority to dismiss a False Claims Act case after initially declining to intervene.

By Jennifer Freel & Michael Murtha

Insights • October 11, 2022