A change to Rule 41(b) of the Federal Rules of Criminal Procedure took effect on December 1. Amended Rule 41(b) now allows courts to issue warrants for remote access to electronic data outside their jurisdiction if the location of the information has been “concealed through technological means” or when the data is in five or more districts. Thus, under the revised rule, a magistrate judge has the authority to issue a warrant outside of their district without specific knowledge of the location of the computers being searched. By contrast, warrant requests were previously limited to the search and seizure of property within the court’s own district.
FinCEN Penalizes New York Credit Union for Failure to Manage High-Risk International Financial Activity
On December 14, the Financial Crimes Enforcement Network (FinCEN) announced that it had assessed a $500,000 civil money penalty against a federally-chartered, low-income designated, community development credit union, for “significant violations” of anti-money laundering regulations. According to FinCEN, the credit union had historically maintained an AML program designed to address risks stemming from its designated field of membership in New York, NY. However, in 2011, the credit union began providing banking services to many wholesale, commercial money services business, some of which were located in high risk jurisdictions or engaged in high risk activities, without taking steps to update its AML program. As a result, the credit union was unable to detect and report suspicious activity and was left particularly vulnerable to money laundering.
In its first insider trading decision in nearly two decades, the US Supreme Court ruled unanimously to uphold an insider trading conviction of an individual who traded while aware of material non-public information received from a friend who received no financial benefit in exchange. Salman v. United States, No. 15-628, 2016 WL 7078448 (U.S. Dec. 6, 2016).
The defendant in Salman was convicted in 2013 for trading on confidential information obtained through his brother-in-law even though Salmon he gained no tangible financial benefit. The appeal thus presented the Justices with the central question of how to define a “personal benefit” garnered from insider information. In upholding Salman’s conviction, the Supreme Court affirmed that a user of financial tips breaches fiduciary duty with respect to “insider information” from a relative, whether or not the person giving the information receives a tangible financial benefit. In so holding, the Court also undercuts a narrower interpretation in a case decided by the Second Circuit in 2014 that held that the person who provides the tips must receive something of value in exchange for inside information given to family or friends.
On November 22, the U.S. government filed a superseding indictment against a Macau real estate developer and his assistant in connection with their alleged involvement in an international bribery scheme. The superseding indictment included new charges that both men violated the FCPA in connection with alleged payments to then-UN ambassadors from Antigua and the Dominican Republic in exchange for official actions to benefit the defendants’ real estate company. The bribery charges contained in the original October 2015 indictment concerned only domestic bribery charges brought under 18 U.S.C. § 666, and not the FCPA.
It is not clear why the U.S. government chose to add the FCPA charges now as opposed to bringing them in the original indictment. First, there did not appear to be any FCPA jurisdictional hurdles in the original indictment. Moreover, one of the alleged bribe recipients named in both the original indictment and superseding indictment – the then-UN ambassador from Antigua – is and always was a “foreign official” under the FCPA. The UN has been designated a public international organization, and individuals associated with these organizations are “foreign officials” under the FCPA.
In an official FCC blog post published November 21, FCC Enforcement Chief Travis LeBlanc re-emphasized the agency’s efforts to work with international law enforcement partners to target fraudsters who might otherwise be outside the FCC’s reach. As explained by Mr. LeBlanc:
“Unsolicited calls and text messages are more than just a nuisance these days. They are used to perpetrate criminal fraud, phishing attacks, and identity theft schemes all around the world. These calls often overwhelm facilities, including emergency or 911 call centers. Those responsible for sending unwanted calls and texts often operate from outside of the United States, too often allowing them to evade our enforcement. Indeed, it is very easy for these scammers to operate from multiple countries, hide their locations, change their phone numbers between calls, trick caller ID systems into displaying false or trusted numbers, increasingly demand payments in hard-to-trace forms such as cash or gift cards, and move quickly to avoid detection and prosecution in our increasingly mobile world.”
Earlier this year, the FCC signed a memorandum of understanding with members of the “Unsolicited Communications Enforcement Network,” a global network of law enforcement authorities and regulatory agencies that have agreed to share intelligence, identify common threats, learn from each other’s best practices and assist each other with investigations where permissible to combat unsolicited communications.