By Sara Kropf
This past year has been a doozy. Our collective hopes for a “normal” year were dashed, even with the amazing COVID vaccine (thank you science!). But #wepersisted, right?
First, our big news:
As some of you know, we had a new addition to Kropf Moseley. Attorney Jaime Rosenberg joined us this year. She’s a graduate of American University’s Washington College of Law, a former college soccer and track-and-field star, and the proud parent to a golden retriever. We’re really excited to have her join us. She’s already been posting about FARA, and you’ll see more posts from her this year.
And now, on to our list of our ten most-read posts.
As the Biden Administration makes clear that it will shift DOJ’s focus from immigration/drug cases to white-collar crime cases (and corporate executives), we just hope we’re not too busy defending our clients from government overreach and overzealous prosecutors to keep posting here. We hope—as always—that our blog is helpful to people under investigation and to the lawyers who are defending them.
10. What Is Grand Jury Secrecy? Grand juries are picking up again in federal courts, so it’s not surprising that this is a popular post. This post explains why grand jury proceedings are kept secret and why a prosecutor’s request to keep something secret is really just a request.
9. What Might Trigger an Investigation into my Paycheck Protection Loan? As we predicted last year, there is no question that when the government distributes a lot of money, there will be fraud investigations. We’re seeing them on the increase now. This post identifies some of the triggers for an investigation.
8. Rule 17(c) Subpoenas – The Unfair Limits on a Defendant’s Ability to Prepare a Defense (Part I). I’m trying not to be hurt that Part II of this series got no love, but I’m glad to see that this post was popular. Those new to the criminal justice system are often amazed at how criminal defense attorneys’ hands are tied. This is only one example—that we cannot simply issue subpoenas to gather information to assist in the defense—but it’s an important one.
7. OIG Investigations in the Time of Coronavirus: Time and Attendance Fraud by Federal Employees. This is still a hot topic for readers and for the OIG agents, too. We’re definitely seeing an increase in these cases and it will be interesting to see what kinds of time-and-attendance cases arise out of the increase in teleworking and remote work trends at federal agencies.
6. By Search Warrant or Subpoena, the Government Will Get Your Gmail (and the Numbers Are on the Rise). This post uses statistics from 2019 (40,000+ subpoenas and search warrants a year to Google alone) and the numbers are on the rise. If there’s a DOJ Checklist for Investigations somewhere, then one item must be on there: “subpoena target’s Gmail account.” We’re seeing an increase in search warrants to Microsoft, Google, Dropbox, Box, and Slack. The government (correctly) realizes that companies and individuals now use cloud storage for everything. Physical search warrants are likely not as fruitful as cloud-based ones. And since the tech companies aren’t pushing back, there is a lot less friction to obtaining vast amount of information.
5. OIG Investigations – Why Lawyers and Clients Should Both Worry. This has been a top post for years. We’re seeing a big uptick in new OIG investigations right now. Our firm handles a lot of OIG investigations, particularly because they can turn very quickly into criminal investigations. But all too often, federal employees and government contractors think, “it’s just the OIG” and don’t take the investigation seriously. That’s a mistake. This post exposes the hidden dangers of an OIG investigation.
4. What Is a Reverse Proffer? Proffers are a key part of a white collar criminal defense lawyer’s arsenal. But there are many kinds of proffers. Reverse proffers are the rare time when the lawyer—and the client—are not on the hot seat. The prosecutor does the talking, but it often means there is a lot of bad news for the client.
3. What Is an FBI-302? The Problematic Nature of FBI Agents’ Interview Memos. There was a lot of interest in how the FBI conducts its interviews, and how it records those interviews. This post describes how an FBI interview memo can be the start of a world of hurt for the target of an investigation. This is always a popular post, mostly because I think there is a dearth of writing about this topic, even though every criminal defense lawyer will tell you how important 302s are to a criminal prosecution.
[Note: If you liked this one, check out the “advanced” blog posts about how the government can effectively prevent creating outcome-determinative Brady material by not writing it down, thus making sure it doesn’t make its way into a 302 in the first place.]
2. What Is a Grand Jury Subpoena? This post goes through the basics of grand jury subpoenas—what they are, what they can demand, whether you can challenge them and so forth. This is the primary way the government builds its white collar cases.
1. Concurrent, Consecutive and “Stacked” Sentences: Why One Word Makes a Big Difference at Sentencing. This was 2020’s #2 post, but it slid into the #1 spot this year. (Big props to this post for the stunning victory.) That may be a reflection of courts reopening across the country and scheduling more sentencing hearings. There can be a lot of confusion about a concurrent sentence versus a consecutive sentence, particularly when the words are awfully similar. This post unpacks the various types of sentences that can be imposed.
We wish all of our readers a peaceful and happy holiday season. Stay safe and healthy out there, folks.