In a December 2020 article, we highlighted in this blog the amendment of Federal Rule of Criminal Procedure 5(f) in the new Due Process Protections Act (“DPPA” or “the Act”). The Act requires federal courts to enter a Brady order at the outset of all criminal cases and may prompt courts to enter orders setting specific disclosure rules, making it easier to hold prosecutors in contempt for violating such orders. In the five months since the Act went into effect, Courts have varied in their implementation of Rule 5(f), suggesting that discovery orders under the new rule will vary based on the leanings of each particular judge, district, or circuit, and the requirements of each individual case. To date, some courts have decided to succinctly recite the language of Rule 5(f) in their initial orders, essentially reminding the prosecution of its pre-existing discovery obligations. Others are taking a more expansive view in implementing the revised rule, issuing specific and detailed orders addressing the timing, order, and scope of the prosecution’s discovery obligations.

While the spread of COVID-19 may finally be slowing, government enforcement of pandemic-related fraud is not. It is surging. And that may explain why you are hearing from the government more than usual, or will soon.

The U.S. Department of Justice (DOJ) announced last week that it has now charged nearly 500 defendants with crimes involving COVID-19 related fraud, warning that its coordinated enforcement efforts are moving at an “unprecedented pace and tempo.”

“The Department of Justice has led an historic enforcement initiative to detect and disrupt COVID-19 related fraud schemes,” said Attorney General Merrick B. Garland. “The impact of the department’s work to date sends a clear and unmistakable message to those who would exploit a national emergency to steal taxpayer-funded resources from vulnerable individuals and small businesses.”