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Lot's of questions swirling in the space about whether FTX will be charged criminally. So what factors do federal prosecutors generally consider when deciding whether to pursue criminal charges against a business organization? The “Principles of Federal Prosecution of Business Organizations” in the Justice Manual describe specific factors that prosecutors should consider in conducting an investigation of a corporation, determining whether to bring charges, and negotiating plea or other agreements." These factors include “the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision” and the corporation’s remedial efforts “to implement an adequate and effective corporate compliance program or to improve an existing one.” 

Three important factors prosecutors consider: (1) “Is the corporation’s compliance program well designed?“ (2) “Is the program being applied earnestly and in good faith? and (3) “Does the corporation’s compliance program work“ in practice? In answering each of these three “fundamental questions,“ prosecutors may evaluate the company’s performance on various topics that the Criminal Division has frequently found relevant in evaluating a corporate compliance program both at the time of the offense ...." 

"Prosecutors evaluating the effectiveness of a compliance program are instructed to reflect back on “the extent and pervasiveness of the criminal misconduct; the number and level of the corporate employees involved; the seriousness, duration, and frequency of the misconduct  and any remedial actions taken by the corporation, including, for example, disciplinary action against past violators uncovered by the prior compliance program, and revisions to corporate compliance programs in light of lessons learned.”DOJ Memo...

Attorney General Report to the White House on Crypto Criminal Regulation Recommends Amendments to 18 U.S.C. § 1960 (Unlicensed Money Transmitting Businesses). Let's discuss those proposed amendments regarding range of punishment and fines. Section 1960’s penalty provisions: "Under existing law, violations of § 1960 are punishable by a maximum of five years’ imprisonment, a term materially less than that prescribed for analogous fraud (20 or 30 years) and money laundering statutes (10 or 20 years)." "Enforcement efforts would benefit from increasing the statutory maximum sentence to 10 years (from five) and by adding an enhanced penalties provision, under which individual criminal fines would double—and corporate criminal fines would triple  for violations involving a money transmitter’s business of more than $1 million in a 12-month period to reflect the seriousness of the conduct at issue and allow for sentences more in line with the Guidelines range called for by the Sentencing Commission."

“In November 2021, Law Enforcement Seized Over 50,676 Bitcoin Hidden in Devices in Defendant JAMES ZHONG’s Home; ZHONG Has Now Pled Guilty to Unlawfully Obtaining that Bitcoin From the Silk Road Dark Web in 2012.” “On November 9, 2021, pursuant to a judicially authorized premises search warrant of ZHONG’s Gainesville, Georgia, house, law enforcement seized approximately 50,676.17851897 Bitcoin, then valued at over $3.36 billion.  Department’s second largest financial seizure ever.” “Today, in United States v. Ross Ulbricht, S1 14 Cr. 68 (LGS), the Government filed a motion for entry of an Amended Preliminary Order of Forfeiture, … seeking to forfeit approximately 51,351.89785803 Bitcoin traceable to Silk Road, valued at approximately $3,388,817,011.90 at the time of seizure”DOJ Press Release

Deripaska’s Property Manager Arrested in U.K. for Funding U.S. Properties for Deripaska’s Benefit and for Attempting to Expatriate Deripaska’s Artwork from U.S. through Deception. 

“As alleged, Graham Bonham-Carter provided property management and other services to his employer, sanctioned Russian oligarch Oleg Deripaska.  Bonham-Carter obscured the origin of funding for upkeep and management of Deripaska’s lavish U.S. assets, in violation of the international sanctions.  OFAC sanctions preclude supporters of the brutal and unjust Russian war regime from using U.S. dollars in any financial transactions, and we thank our international partners for their continued partnership in enforcing this critical sanctions program.”DOJ Press Release

Defendants Allegedly Defrauded Victims of Almost $18 Million as Part of “Pig Butchering” Investment Fraud and Money Laundering Schemes and Illegally Converted More Than $52 Million of Cash to Cashier’s Checks. “For once the name of a scam - pig butchering - reflects the grotesque nature of the harm it causes victims. We allege these fraudsters bled dry each of their victims and then used the money to set up fake cryptocurrency accounts."

"We know there are many more victims of these types of scams, and we urge those people to report it to the FBI. We will do all we can to bring each and every criminal to justice,” stated FBI Assistant Director-in-Charge Driscoll." “These defendants betrayed the trust of hundreds of people for profit, stealing millions of dollars through their brazenly callous investment scheme,” said NYPD Commissioner Sewell."

"Through this scam, more than 200 victims were contacted through messaging applications and convinced to invest almost $18 million in trading platforms by sending funds to purported money manager bank accounts that were later stolen." "The defendants also operated an unlicensed money transmitting business in which they converted approximately $52 million in cash into cashier’s checks on behalf of customers."

"As payment for their services, the defendants received a fee, which was generally a portion of the fee that the business received."
 
 
 

Federal jury returned a guilt verdict against defendant for "money laundering and operating an unlicensed money transmitting business as part of a scheme to launder the purported Bitcoin proceeds of drug trafficking." "The verdict followed a four-day trial before United States District Judge Pamela K. Chen. When sentenced, Goklu faces up to 25 years in prison." “The defendant offered his customers the ability to launder their criminal proceeds, remain anonymous and conceal where their Bitcoin was coming from so they could continue to engage in drug trafficking and other crimes while avoiding law enforcement detection,” 

"As proven at trial, in July 2018, DEA special agents identified an advertisement posted on localbitcoins.com where an individual with the username “Mustangy” offered to purchase up to $99,999 worth of bitcoins (“BTC”), ... [and] convert them into U.S. currency for a fee. "A DEA Special Agent acting in an undercover capacity (the “UC”) began exchanging encrypted text messages with defendant to arrange in-person exchanges of BTC to U.S. currency."

"The UC and the defendant subsequently met and engaged in seven transactions or attempted exchanges of BTC to cash over a nine-month period"

OpenSea announced yesterday their new system that "proactively scans URLs shared on OpenSea to identify if they may be malicious. It starts by cross checking a given URL against a blocklist of known malicious sites." OS noted that "scammers ... try to spread these URLs on OpenSea through fraudulent collection listings and unwanted NFT transfers." According to OS, the new system also "analyzes interactions and transactions to identify malicious behaviors like signature farming and wallet draining"OS will "simulate interactions and transactions with new URLs to identify malicious behaviors like signature farming and wallet draining ... Scammers that attempt to spread detected malicious links will have their accounts banned, their collections delisted, and their transfer requests blocked when using OpenSea." Under this new pilot program, OS will try to "detect NFT theft in REAL-TIME and prevent further resales of suspected stolen items to unsuspecting buyers." OS will then display a new yellow “under review” module on those items. According to OS, this move is to better address the ongoing problem of thieves reselling NFTs before victims have an opportunity to file a theft report. 

OS tweeted that "items involved in detected suspicious behavior will be temporarily disabled on OpenSea, and the previous owner will immediately be notified via email. The previous owner can then share feedback with us to reinstate the item and enable it to be sold again." Most importantly, OS announced that they are "working closely with other marketplaces, wallet providers, analytics organizations, and others, to develop holistic scam detection and prevention systems."
These measures by OS look like a good step in the direction of trying to address the issue of stolen and flagged NFTs. But, without cross-platform adoption of these measures, flagged NFTs continue to be bought and sold on other NFT secondary trading marketplaces. 
It will be interesting to see how this program works in real-time, whether it will curb the continued market for flagged NFTs and whether other platforms will agree to adopt similar measures.

To ensure that the Department continues to meet the challenge posed by the illicit use of digital assets, the Criminal Division recently launched the nationwide Digital Asset Coordinators (DAC) Network. The DAC Network is composed of designated federal prosecutors from U.S. Attorneys’ Offices nationwide and the Department’s litigating components. Led by the NCET, and in close coordination with CCIPS and the MLARS Digital Currency Initiative, the DAC Network serves as a forum for prosecutors to obtain and disseminate training, technical expertise, and guidance about the investigation and prosecution of digital asset crimes. Each DAC acts as their district’s or litigating component’s subject-matter expert on digital assets, serving as a first-line source of information and guidance about legal and technical matters related to these technologies. 

As members of the DAC Network, prosecutors will learn about the application of existing authorities and laws to digital assets and best practices for investigating digital assets-related crimes, including for drafting search and seizure warrants, restraining orders, criminal and civil forfeiture actions, indictments, and other pleadings. The DAC Network will also serve as a source of information and discussion addressing new digital asset forms, such as DeFi, smart contracts, and token-based platforms. In addition, the DAC Network will raise awareness of the unique international considerations of the crypto ecosystem, including the benefits of leveraging foreign relationships and the challenges of cross-border digital asset investigations. 

The DAC Network will be a crucial part of the Department’s efforts to continue to address the ever-evolving challenges posed by the illicit use of digital assets, by ensuring that prosecutors receive training, technical expertise, investigative resources, and direct legal guidance for investigations and prosecutions in this area. The DAC Network is modeled on the success of two previously established coordinator programs: the Computer Hacking and Intellectual Property (CHIP) Network and the National Security Cyber Specialist (NSCS) Network. The Criminal Division established the CHIP coordinator program in 1995 to ensure that each U.S. Attorney’s Office and litigating division has at least one prosecutor who is specially trained on cyber threats, electronic evidence collection, and technological trends that criminals exploit.58 The National Security Division similarly launched the NSCS 

Network in 2012 to equip U.S. Attorneys’ Offices “around the Nation with prosecutors trained on national security cyber threats, such as nation-state cyber espionage.”

On January 27, 2020, the USDA approved the Texas Department of Agriculture (“TDA”) plan to regulate hemp. Before licenses can be issued, however, the TDA must adopt rules for the regulation of hemp cultivation and manufacturing. These proposed rules were published on January 10, 2020 and are open for public comment until February 10, 2020. Comments can be directed to the TDA at This email address is being protected from spambots. You need JavaScript enabled to view it..

Here are some key provisions of the proposed rules that anyone interested in farming hemp should carefully consider. 

4 TAC § 24.1 defines an acceptable THC level in hemp as having “a result of 0.3% or less. For example, if the reported delta-9 tetrahydrocannabinol content concentration level on a dry weight basis is 0.35% and the measurement of uncertainty is +/- 0.06%, the measured delta-9 tetrahydrocannabinol content concentration level on a dry weight basis for this sample ranges from 0.29% to 0.41%.”

4 TAC § 24.5 states that the initial application fee for a hemp growing license is “at least $100 for each license application.”

4 TAC § 24.6 addresses hemp sampling, collection and testing fees and states that the “fee for sampling and collection conducted by the Department shall be $300.”

4 TAC § 24.8 designates TDA as the lead agency for the “administration, implementation, and enforcement of hemp production, and authorizes the Department to adopt rules to coordinate, implement and enforce the hemp program” in Texas. To be clear, “a person who does not hold a valid [hemp production] license from the Department shall not produce, handle, or sample and collect hemp within the State of Texas.”

4 TAC § 24.8(6) prohibits any person has in the last 10 years, been convicted of a felony, under state or federal law, relating to a controlled substance from holding a license. This provision also applies to “all key participants covered by the license.” All applicants must be subjected to a criminal background check.

4 TAC § 24.14 prohibits any license holder from producing or handling any cannabis that is not hemp and hemp shall be physically segregated from other crops unless prior approval is obtained in writing from TDA. 

4 TAC § 24.19 mandates that “all persons who intend to process non-consumable hemp products shall register with Department.”

4 TAC § 24.20 provides that TDA, the DEA, DPS and local law enforcement agencies shall be “provided with complete and unrestricted access to all hemp plants … and all facilities used for the production and storage of all hemp in all locations where hemp is produced or handled.”

4 TAC § 24.21 states that 15 days before a hemp crop can be harvested, the license holder must submit a sample test request form to TDA. 

4 TAC § 24.23 notes that “a license holder shall not harvest a cannabis crop prior to samples being collected.”

4 TAC § 24.28 provides that the approved State laboratory “shall send the test results electronically to the Department and the license holder no later than the 14thbusiness day from the sample collection date.” If any tested sample comes back with at least a 95% confidence level that the THC level exceeds the hemp THC limit, then the lab shall promptly notify the producer and the Department of the failed test result. A retest may be requested of the original sample, but the results of the retest are final. If the sample fails to pass testing, then the entire lot of hemp associated with that test sample must be destroyed. 

4 TAC § 24.30 mandates that a license holder submit a disposal report to the Department no later than 7 days after the license holder receives a final test result that exceeds the hemp THC level. Non-compliant plants from that lot may not be handled, processed, or enter into the stream of commerce and must be disposed of in strict compliance with the federal Controlled Substances Act and DEA regulations. Within 5 days of receiving notice of disposal from the Department, the license holder shall pay all costs and fees required for the destruction of the non-compliant plants and surrender the plants to a DEA regulated disposal site. License holder must keep  detailed records of all disposed of plants. 

4 TAC § 24.32 creates a complaint procedure in which the public can report any license holder who is suspected of being in violation of these rules. 

4 TAC § 24.33 provides that any licensed hemp producer is subject to non-criminal enforcement action for any act that is proven to amount to negligent production of non-compliant hemp in excess of the THC level. Notice of a violation requires the license holder to submit to a “corrective action plan.” Failure to follow through on a two-year corrective action plan can result in revocation of a license. 

4 TAC § 24.34 provides possible referral to law enforcement of any licensed producer who violates these rules with a “culpable mental state greater than negligence.”

4 TAC § 24.35 states that the Department “may issue a notice of suspension to a license holder if the Department or its representative receives credible evidence establishing that a license holder has: 1) engaged in conduct, being either an act or omission, violating a provision of this chapter; or (2) failed to comply with a written order from the Department related to negligence as defined in this chapter.”

4 TAC § 24.36 mandates that the Department shall “immediately revoke” the license of a person who “pleads guilty to, or is convicted of, any felony related to a controlled substance under Texas law, federal law or the law of any other state” or “made a false statement or provided false information or documentation to the Department … with a culpable mental state greater than negligence.”

4 TAC § 24.39 requires that a department issued manifest must accompany any transport of hemp outside a facility where hemp is produced and that manifest “shall accompany all samples collected and transported to laboratory testing.” It is also important to note that unless prior approval is granted, hemp plant materials may not be transported along with any other cargo that is not hemp material. 

4 TAC § 24.44 requires that “a person may not sell, offer for sale, distribute or use hemp seeds in the State of Texas unless the seed is certified or approved by the Department.”

On January 27, 2020, the USDA approved the Texas Department of Agriculture (“TDA”) plan to regulate hemp. Before licenses can be issued, however, the TDA must adopt rules for the regulation of hemp cultivation and manufacturing. These proposed rules were published on January 10, 2020 and are open for public comment until February 10, 2020. Comments can be directed to the TDA at This email address is being protected from spambots. You need JavaScript enabled to view it..

Here are some key provisions of the proposed rules that anyone interested in farming hemp should carefully consider. 

4 TAC § 24.1 defines an acceptable THC level in hemp as having “a result of 0.3% or less. For example, if the reported delta-9 tetrahydrocannabinol content concentration level on a dry weight basis is 0.35% and the measurement of uncertainty is +/- 0.06%, the measured delta-9 tetrahydrocannabinol content concentration level on a dry weight basis for this sample ranges from 0.29% to 0.41%.”

4 TAC § 24.5 states that the initial application fee for a hemp growing license is “at least $100 for each license application.”

4 TAC § 24.6 addresses hemp sampling, collection and testing fees and states that the “fee for sampling and collection conducted by the Department shall be $300.”

4 TAC § 24.8 designates TDA as the lead agency for the “administration, implementation, and enforcement of hemp production, and authorizes the Department to adopt rules to coordinate, implement and enforce the hemp program” in Texas. To be clear, “a person who does not hold a valid [hemp production] license from the Department shall not produce, handle, or sample and collect hemp within the State of Texas.”

4 TAC § 24.8(6) prohibits any person has in the last 10 years, been convicted of a felony, under state or federal law, relating to a controlled substance from holding a license. This provision also applies to “all key participants covered by the license.” All applicants must be subjected to a criminal background check.

4 TAC § 24.14 prohibits any license holder from producing or handling any cannabis that is not hemp and hemp shall be physically segregated from other crops unless prior approval is obtained in writing from TDA. 

4 TAC § 24.19 mandates that “all persons who intend to process non-consumable hemp products shall register with Department.”

4 TAC § 24.20 provides that TDA, the DEA, DPS and local law enforcement agencies shall be “provided with complete and unrestricted access to all hemp plants … and all facilities used for the production and storage of all hemp in all locations where hemp is produced or handled.”

4 TAC § 24.21 states that 15 days before a hemp crop can be harvested, the license holder must submit a sample test request form to TDA. 

4 TAC § 24.23 notes that “a license holder shall not harvest a cannabis crop prior to samples being collected.”

4 TAC § 24.28 provides that the approved State laboratory “shall send the test results electronically to the Department and the license holder no later than the 14thbusiness day from the sample collection date.” If any tested sample comes back with at least a 95% confidence level that the THC level exceeds the hemp THC limit, then the lab shall promptly notify the producer and the Department of the failed test result. A retest may be requested of the original sample, but the results of the retest are final. If the sample fails to pass testing, then the entire lot of hemp associated with that test sample must be destroyed. 

4 TAC § 24.30 mandates that a license holder submit a disposal report to the Department no later than 7 days after the license holder receives a final test result that exceeds the hemp THC level. Non-compliant plants from that lot may not be handled, processed, or enter into the stream of commerce and must be disposed of in strict compliance with the federal Controlled Substances Act and DEA regulations. Within 5 days of receiving notice of disposal from the Department, the license holder shall pay all costs and fees required for the destruction of the non-compliant plants and surrender the plants to a DEA regulated disposal site. License holder must keep  detailed records of all disposed of plants. 

4 TAC § 24.32 creates a complaint procedure in which the public can report any license holder who is suspected of being in violation of these rules. 

4 TAC § 24.33 provides that any licensed hemp producer is subject to non-criminal enforcement action for any act that is proven to amount to negligent production of non-compliant hemp in excess of the THC level. Notice of a violation requires the license holder to submit to a “corrective action plan.” Failure to follow through on a two-year corrective action plan can result in revocation of a license. 

4 TAC § 24.34 provides possible referral to law enforcement of any licensed producer who violates these rules with a “culpable mental state greater than negligence.”

4 TAC § 24.35 states that the Department “may issue a notice of suspension to a license holder if the Department or its representative receives credible evidence establishing that a license holder has: 1) engaged in conduct, being either an act or omission, violating a provision of this chapter; or (2) failed to comply with a written order from the Department related to negligence as defined in this chapter.”

4 TAC § 24.36 mandates that the Department shall “immediately revoke” the license of a person who “pleads guilty to, or is convicted of, any felony related to a controlled substance under Texas law, federal law or the law of any other state” or “made a false statement or provided false information or documentation to the Department … with a culpable mental state greater than negligence.”

4 TAC § 24.39 requires that a department issued manifest must accompany any transport of hemp outside a facility where hemp is produced and that manifest “shall accompany all samples collected and transported to laboratory testing.” It is also important to note that unless prior approval is granted, hemp plant materials may not be transported along with any other cargo that is not hemp material. 

4 TAC § 24.44 requires that “a person may not sell, offer for sale, distribute or use hemp seeds in the State of Texas unless the seed is certified or approved by the Department.”

  1. USDA Approves Proposed Texas Hemp Production Rules
  2. USDA Approves Proposed Texas Hemp Production Rules
  3. USDA Releases Hemp Rules
  4. House Approves Marijuana Banking Bill
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