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Criminal Law & Procedure Practice Group Podcast

Farha v. United States,\\xa0currently pending on a petition for writ of certiorari to the U.S. Supreme Court, is a case study raising basic notions of due process, fair notice, the rule of lenity, mens rea, and whether\\xa0administrative and civil remedies would be more appropriate.\\xa0 What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute ended in the indictment, conviction, and prison sentences for the Wellcare executives for fraud.\\xa0\\xa0

On appeal, where the case was captioned\\xa0Clay v. United States, the U.S. Court of Appeals for the Eleventh Circuit upheld the convictions over the objections of\\xa0the defendants that the jury instruction impermissibly allowed the jury to convict if the defendants were “deliberately indifferent\\u201d to the law\\u2019s requirement as opposed to finding a “knowing\\u201d violation as the statute requires.\\xa0 The Supreme Court in 2011, in\\xa0Global-Tech Appliances, a civil case involving patent infringement, held that "knowledge" cannot include "deliberate indifference" to show sufficient mens rea to establish infringement. Accordingly, the cert petition, filed by Seth Waxman of WilmerHale, seeks to have the Court rule that the jury instructions should require a higher mens rea standard,\\xa0all the more so in a criminal case.\\xa0

This case is particularly important for all regulated industries, where there are numerous\\xa0laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement.

Featuring:

• Paul Kamenar,\\xa0Washington, D.C. Public Policy Attorney and Senior Fellow, Administrative Conference of the U.S.
• Jeff Lamken, Partner,\\xa0MoloLamken
• Moderator:\\xa0John G. Malcolm,\\xa0Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation