The Sentencing Guidelines provide for an increase in the offense level for most fraud or theft offenses based on the amount of “loss” determined by the court. Loss is not defined in the Sentencing Guidelines. However, the commentary defines loss as “the greater of actual loss or intended loss.” Megan Siddall explores a new argument that loss should be limited to actual loss – and not intended loss – in the wake of the Supreme Court’s decision in Kisor v. Wilkie.

Federal statutes should provide a person of ordinary intelligence fair notice of what is prohibited, but the term “property” is undefined by the federal fraud statutes. The internet, untethered digital currency, and the metaverse are raising questions about the traditional understandings of things and possessions. Legislators need to provide greater clarity about how older statutes apply to newer concepts.

Leveraging Data to Defend Against Healthcare Fraud, PPP Fraud, and Other Enforcement Actions featuring Murad Hussain (Arnold & Porter), Lloyd Liu (Bennett Doyle LLP), Hilary LoCicero (Bennett Doyle LLP), and Greg Russo (BRG)

DOJ has had mixed success in the prosecution of traders. Where is the dividing line between illegal activity and savvy trading? Susan Brune and Erin Dougherty review the major categories of recent prosecutions and highlight the key issues that have presented obstacles to conviction – and opportunities for the defense.

The CARES Act included the creation of the Paycheck Protection Program for forgivable loans to small businesses. The basis for prosecutions will be the certifications in the PPP applications. Sarah Wirskye outlines steps borrowers can take that will help them prove that the certifications are accurate.

Letter to the U.S. Sentencing Commission regarding USSC priorities in the current (2014) amendment cycle.

Comments to the U.S. Sentencing Commission regarding proposed amendments to the sentencing guidelines.

Comments to the U.S. Sentencing Commission regarding proposed amendments to the sentencing guidelines.

Comments to the U.S. Sentencing Commission on the Controlling the Assault of Non-Solicited Pornography and Marketing ("CAN-SPAM") Act of 2003.

Comments to the U.S. Sentencing Commission on proposed 1997 Emergency Amendments.

Letter to the U.S. Sentencing Commission regarding proposed amendments pertaining to diminished capacity and theft, fraud and tax loss tables.

Brief Amicus Curiae of the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant Wayne Wilkerson.

Argument: The district court erred by not requiring mens rea, which is a cornerstone requirement for criminal liability and punishment. The district court erred in premising the fraud convictions on non-disclosure absent any cognizable duty to disclose.

Continuing Vagueness and Resulting Opportunities for Clients

The U.S. Supreme Court saved 18 U.S.C. § 1346 and the honest-services doctrine from the void-for-vagueness dust heap in Skilling v. United States. Jonathan Jeffress and William Zapf explore certain “limiting principles” courts have followed that may be avenues for challenging an honest-services prosecution. In addition, they include a brief survey detailing how circuit court pattern jury instructions cover honest-services fraud.

Jennifer Bouriat provides an overview of the mail and wire fraud statutes and the right to control theory, a brief history of the pertinent case law that has shaped the theory, and an overview of the circuit split on the validity of the theory. She offers key points to consider in defending a mail and wire fraud case.

Congress often includes criminal offenses and penalties in legislation regulating the financial services industry and other major industries with significant business components, such as the healthcare industry. NACDL works to educate members of Congress on the problems with including criminal offenses and penalties in such legislation and, where appropriate, advocates against the legislation.