Although initially charged under both statutorily provided theories of liability, the government’s superseding indictment limited both the conspiracy-based and substantive charges (Counts 1 and 2, respectively) to the cohorts’ unauthorized access to the Exel computer system.At Musacchio’s 2012 jury trial, his counsel apparently overlooked that the general five-year federal statute of limitations (codified at 18 U.S.C. § 3282) might have barred Count 2, and so he raised no defense on that basis. And, for the government’s part, it raised no objection to a clearly erroneous jury instruction that diverged from the indictment and the proposed instructions, and directed the jury to consider whether Musacchio had both “intentionally accessed a computer without authorization” and “exceeded authorized access.”

is constitutional requirement in 1944 in Rule 7 (a)(1) as follows:“An offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable by either death or imprisonment for more than one year.” With no redress available within the definition of an infamous crime, federal prosecutors then examined Rule 7 (b) of the Federal Rules of Criminal Procedure which is entitled “waiving indictment” and reads as follows:“An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant, in open court and after being advised of the nature of the charges and of the defendant’s rights, waives prosecution by indictment.”With no apparent recourse to the waiver requirement, federal prosecutors took the position that a prosecution could be “instituted” by filing an information without an open court waiver of indictment, which effectively would toll the statute of limitations. In doing so, prosecutors relied on the language of title 18 USC § 3282 (a) which reads as follows:“Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found, or the information is instituted within five years after such offense shall have been committed.”Using this unconstitutional interpretation of “institute,” prosecutors began filing an “un-waived” information before the court to charge violations of felonies to toll the statute of limitations. Prosecutors could then subsequently dismiss the information when the grand jury returned to service and presumably file an indictment within six months of the date of the dismissal of the information in keeping with 18 USC § 3288, or within six months of the expiration of the applicable statute of limitations pursuant to 18 USC § 3289.Conflicting Rulings – U.S. Southern District of FloridaIn 2021, contradictory decisions were reached by two federal district court judges in the Southern District of Florida concerning

They quickly filed a motion to dismiss the case as being time-barred by the federal statute of limitation. See: 18 U.S.C. § 3282 [five-year limitation period for ‘non-capital” crimes]. The trial court denied the motion, the case proceeded to trial, and a jury convicted Seale.

United States v. Hanafy, 302 F.3d 485 (5th Cir. 2002). The Trademark Counterfeiting Act, 18 U.S.C. § 2320; 18 U.S.C. § 3282(a).See United States v. Foote, 413 F.3d 1240, 1247 (10th Cir. 2005)See United States v. Bohai Trading Co., 45 F.3d 577 (1st Cir. 1995); United States v. Hon, 904 F.2d 803 (2d Cir. 1990); United States v. Diallo, 476 F. Supp. 2d 497 (W.D. Pa. 2007), aff’d, 575 F.3d 252 (3d Cir.), cert. denied, 130 S. Ct. 813 (2009).See United States v. Farmer, 370 F.3d 435 (4th Cir. 2004); United States v. Gonzalez, 630 F. Supp. 894, 896 (S.D. Fla.1986).Id. Office of Legal Educ., supra note 2, at 141.Id.

Additional Updates on Best Practices and Guiding PrinciplesStatute of Limitations DistinctionThe 2020 Guide notes a previously unclear distinction between the statutes of limitations applicable to violations of the Anti-Bribery and Accounting provisions. Violations of the Anti-Bribery provision are subject to the general five-year statute of limitations set out in 18 U.S.C. § 3282. On the contrary, violations of the Accounting provisions are considered “securities fraud offenses” subject to the six-year statute of limitations in 18 U.S.C. § 3301.Mens ReaThe Guide also clarifies by brief mention the mens rea required for criminal violation of the accounting provisions.

Liability Under Accounting ProvisionsThe Second Edition clearly states the government’s position on two important legal issues with respect to the accounting provisions of the FCPA.First, the Second Edition corrects the First Edition’s explanation of the applicable statute of limitations for the FCPA’s accounting provisions. In the First Edition, the government took the position that all FCPA criminal violations are subject to a five-year statute of limitations under 18 U.S.C. § 3282[30] because the FCPA does not provide otherwise.[31] The Second Edition, however, explains that violations of the accounting provisions are subject to a six-year limitation period because these violations are defined as “securities fraud offense[s]” under 18 U.S.C. § 3301, which contains a six-year limitation period.[32]Second, the Second Edition also clarifies that the mens rea for criminal liability for violating the accounting provisions of the FCPA is “knowingly and willfully.”[33]II.

terest in RE&D Investments LLC, a Memphis-based company with real estate holdings, and additional monies and items seized from Zhong’s home in November 2021, including $661,900 in U.S. currency; silver- and gold-colored bars or coins of varying ounce weights; and approximately 11.12 bitcoin. In addition, Zhong voluntarily surrendered more than 140 bitcoin between April and June 2022. He is scheduled to be sentenced in February 2023.ConclusionThis action serves as a reminder of the criminal threat cryptocurrency platforms are exposed to and that the DOJ will continue to investigate and bring charges from dated conduct. In the fall of 2021, the DOJ announced the formation of its National Cryptocurrency Enforcement Team, highlighting the department’s interest in crypto-related fraud. Moreover, the DOJ published a report in September 2022, proposing, inter alia, that the statute of limitations for prosecution of criminal activity related to digital assets be extended from five years under 18 U.S.C. § 3282 to 10 years under 18 U.S.C. § 3293. This matter runs in parallel with these increased enforcement measures and highlights the government’s use of cryptocurrency-tracing technology to recover ill-gotten proceeds. The largest seizure to date was announced by the DOJ in February 2022 and involved $3.6 billion in cryptocurrency stolen during the 2016 hack of Bitfinex. See Press Release, U.S. Dep’t of Justice, Two Arrested for Alleged Conspiracy to Launder $4.5 Billion in Stolen Cryptocurrency (Feb. 8, 2022), available at https://www.justice.gov/opa/pr/two-arrested-alleged-conspiracy-launder-45-billion-stolen-cryptocurrency. Press Release, U.S. Dep’t of Justice, U.S. Attorney Announces Historic $3.36 Billion Cryptocurrency Seizure And Conviction In Connection With Silk Road Dark Web Fraud (Nov. 7, 2022), available at https://www.justice.gov/usao-sdny/pr/us-attorney-announces-historic-336-billion-cryptocurrency-seizure-and-conviction. When this split occurred, Bitcoin addresses with a bitco

United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006). The Trademark Counterfeiting Act, 18 U.S.C. § 2318; 18 U.S.C. § 3282(a). Office of Legal Educ., supra note 1, at 290-91.Id.[View source.]

The National Defense Authorization Act (NDAA) for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (2011), H.R. 1540, S. 1867; The Food and Drug Administration Safety and Innovation Act (FDASIA), Pub. L. No. 112-144, 126 Stat. 993, S. 3197. 18 U.S.C. § 2320(f). The Trademark Counterfeiting Act, 18 U.S.C. § 2320; 18 U.S.C. § 3282(a). Id.See United States v. Farmer, 370 F.3d 435 (4th Cir. 2004); see also United States v. Gonzalez, 630 F. Supp. 894, 896 (S.D. Fla.1986).

17 See 31 U.S.C. § 5323.18 See 31 U.S.C. § 5321(b); 18 U.S.C § 3282(a).19 See 31 U.S.C. § 5323.