USA Law and Practice Contributed by: Daniel J. Fetterman and Brian S. Choi, Kasowitz LLP
tion (FBI), the Securities and Exchange Commission (SEC), and the Commodity Futures Trading Commis - sion (CFTC). It is common for law enforcement agencies to conduct criminal and civil investigations in parallel. For exam - ple, in a False Claims Act case, the DOJ’s Criminal and Civil Divisions may co-ordinate their investigation and enforcement activities. In the securities law context, DOJ’s Criminal Division often co-ordinates its crimi - nal investigation with the Securities and Exchange Commission (SEC), which is responsible for the civil enforcement of the federal securities laws. There also are scenarios in which a federal agency like DOJ may work together with one or more of the Attorneys Gen - eral of the 50 US states to prosecute crimes in a spe - cific jurisdiction, multiple jurisdictions, or nationwide. 2.2 Initiation of Investigations Financial crime investigations are initiated through a variety of means. In some cases, authorities may receive reports from victims or tips from whistle-blow - ers. These reports may go to one of the investigative agencies, like the FBI, SEC, and CFTC. Reports also can be made directly to DOJ or one of the US Attor - neys’ Offices. Financial crime investigations also may be initiated as a result of suspicious activity reports from banks and criminal referrals from other state or federal agencies, among other sources. Additionally, several federal agencies have their own whistle-blower programmes designed to encourage individuals to report misconduct (often in exchange for not being prosecuted or potential financial awards if information results in a successful recovery for the government). For example, a company involved in misconduct may voluntarily self-report to the authori - ties pursuant to one of various leniency programmes and policies that DOJ and US Attorneys’ Offices have created. The DOJ’s Antitrust Division has a prominent leniency programme that offers “amnesty” to a com - pany if it complies with the applicable requirements. Based on the information it receives through these programmes, DOJ can identify and investigate other culpable companies and individuals. Federal authorities have broad discretion over which cases to investigate and which companies and indi -
viduals to prosecute. At the federal level, DOJ prose - cutors rely on the Justice Manual, which includes prin - ciples for when to bring charges against companies and individuals. These principles are intended to “pro - mote the reasoned exercise of prosecutorial authority and contribute to the fair, even-handed administration Federal law enforcement authorities have broad pow - ers and tools to investigate financial crimes. Both criminal and civil agencies can compel the produc - tion of documents and testimony through subpoenas. In criminal cases, the government has several power - ful enhanced investigatory tools. These include the ability to obtain wiretaps pursuant to a court order, execute search warrants pursuant to judicial review, and record meetings and telephone calls through co- operators and undercover agents. of the federal criminal laws”. 2.3 Investigatory Powers The government also can request voluntary co- operation from companies and individuals, including requesting documents and information, and inter - views of suspects and witnesses in the investigation. In contrast with subpoenas and search warrants, the recipients of voluntary requests are free to decline to co-operate with the government’s investigation. Finally, the government has the ability through criminal and civil procedures to seek the forfeiture of assets involved in or resulting from financial crimes. The government may also freeze such assets pending the Law enforcement authorities in the United States rou - tinely use technology as part of their investigations. In financial crimes investigations, they often use AI and other forms of electronic data surveillance to identify and investigate potential financial crimes. DOJ recent - ly has invested in specialised personnel and tools, and has announced that it will be doubling down on these efforts. For example, in wire fraud and money laun - dering cases, federal authorities have worked with blockchain analytics firms to gather information about a cryptocurrency, its transaction history and trading frequency. outcome of the criminal proceedings. 2.4 Use of Technology and Data
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