White Collar Crimes

The Comfort of Declining Numbers

Federal white collar prosecutions are declining, and the decline is accelerating. In the first half of fiscal year 2025, new cases fell more than ten percent from the prior year. FBI field offices have redirected agents toward immigration enforcement. The numbers, taken alone, suggest a federal government retreating from financial crime.

What the prosecution data conceals is a restructuring. The Department of Justice, under the Galeotti Memorandum issued in May 2025, identified ten high-impact areas where enforcement resources would concentrate: healthcare fraud, procurement fraud, trade and customs violations, sanctions offenses, digital asset crimes. Everything outside those categories received less attention. Everything inside them received more.

For the business owner who reads a headline about declining prosecution rates and concludes that risk has diminished, the conclusion is understandable. It is also wrong.

The Galeotti Memorandum and Its Consequences

On May 12, 2025, Matthew Galeotti, then heading the Criminal Division, addressed a financial crimes conference and laid out what he described as a recalibrated approach to white collar enforcement. The memorandum he issued the same day carried the title “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime.” Each word in that title does specific work.

“Focus” means the Criminal Division will concentrate on what it considers the most urgent criminal threats. The ten priority areas are not new categories of crime. They are selections from existing ones, chosen to align with the administration’s stated objectives. Trade and customs fraud, including tariff evasion, is a priority. So is fraud in federal programs and procurement. Healthcare fraud remains on the list, as do sanctions violations involving cartels and transnational criminal organizations, and crimes involving digital assets. Bribery and associated money laundering remain priorities, though the administration’s parallel pause on certain Foreign Corrupt Practices Act enforcement complicates that category in ways that have not been entirely resolved.

“Fairness,” in the memorandum’s usage, means that the Department’s first priority is to prosecute individuals. Executives, officers, employees. The memorandum states that not all corporate misconduct warrants federal criminal prosecution, and it directs prosecutors to consider civil and administrative remedies for the entity. This sounds like restraint. In practice, it means the individual is more exposed than the corporation. A company may receive a non-prosecution agreement. The officer who signed the filing may not.

“Efficiency” is the word that should concern the person reading this article. The memorandum acknowledges that federal investigations can linger for years with little progress, and it directs prosecutors to accelerate charging decisions and reduce the burden on compliant businesses. The acceleration benefits cooperating targets. For those who have not cooperated, the same acceleration compresses the window in which a defense can be constructed. What once took three years of investigation now arrives, if the memorandum’s directives hold, in a fraction of that timeline.

In January 2026, the White House announced a new Division for National Fraud Enforcement, a body designed to coordinate criminal and civil fraud enforcement targeting federal programs and federally funded benefits. The announcement arrived alongside the Criminal Division Fraud Section’s year in review, which reported more than two hundred fifty individuals charged in 2025, two dozen trials across seventeen districts, and fifteen corporate enforcement actions. The apparatus is not retreating. It is reorganizing.

The subpoena arrives on a Friday. It always arrives on a Friday.

Whether the court system intended to signal that individual accountability would survive the administration’s pivot toward corporate leniency is a question the memorandum does not answer. The whistleblower program expansion, which now covers procurement fraud, trade fraud, immigration violations, and sanctions offenses, suggests the answer.

Wire Fraud and the Universal Charge

Wire fraud is the statute that holds the federal government’s white collar enforcement together. Under 18 U.S.C. § 1343, anyone who uses interstate electronic communication to execute a scheme to defraud faces up to twenty years per count. If the scheme involves a financial institution, the ceiling rises to thirty.

The breadth of the statute is, if we are being precise, its function. An email, a phone call, a wire transfer, a text message: each constitutes a separate act of wire fraud if connected to a fraudulent scheme. A business that sent forty emails in connection with a questionable transaction has exposed itself to forty counts. The math is punitive by design.

In our practice, wire fraud is the charge we see most often not because it describes the most common form of criminal conduct, but because it describes the most available form of federal jurisdiction. Prosecutors reach for it the way a carpenter reaches for a hammer. It is the charge prosecutors default to when jurisdiction is uncertain.

What Happens Before You Know

Before the target is aware of it, the investigation has already begun. In most white collar matters, the FBI or the relevant agency has been accumulating records, interviewing peripheral witnesses, and constructing a chronology for months before the first subpoena is served. Grand jury proceedings, conducted in secret, may produce testimony from the target’s own employees. By the time the business owner receives the letter or the visit, the government has assembled something that resembles a case.

The instinct, at that moment, is to explain. To return the call, to answer the agent’s questions, to demonstrate that the situation is a misunderstanding. I understand the instinct. In something like forty cases involving early government contact, I have seen the unsolicited explanation help the target exactly once. Every other instance produced a statement that appeared in a sentencing memorandum.

There is a particular silence in a conference room when a client realizes that the conversation they had with the agent last month, the one they believed was informal, was recorded, transcribed, and incorporated into the government’s filing. That silence has a weight to it that no description of legal process can approximate.

The correct response to government contact is also the most counterintuitive: say nothing. Retain counsel. Allow counsel to assess the scope and posture of the investigation before any communication occurs. The Fifth Amendment right against self-incrimination exists for reasons the founders understood and that the silence in that conference room teaches every generation since.

The Question of Intent

Most federal white collar statutes require the government to prove that the defendant acted with intent to defraud or with knowledge that the conduct was unlawful. Wire fraud requires a scheme to defraud. Securities fraud under Section 10(b) requires scienter. Tax evasion under 26 U.S.C. § 7201 requires willfulness. The intent requirement is the load-bearing wall of white collar criminal law, and it is the element most frequently contested at trial.

The challenge, from the defense perspective, is that intent is rarely established through a single piece of evidence. Prosecutors construct it from a mosaic: emails that suggest awareness, financial records that indicate concealment, testimony from cooperating witnesses who describe conversations that occurred years before the charges were filed. The mosaic is persuasive not because any individual piece proves knowledge, but because the cumulative weight of the pattern creates an inference that is difficult to displace.

Our approach to the intent question begins earlier than most firms consider appropriate. Where standard practice involves reviewing the government’s evidence after disclosure and then constructing a narrative around what the evidence permits, we begin constructing the counter-narrative during the investigation phase. The reason is procedural but consequential: the Sentencing Guidelines reward acceptance of responsibility and cooperation, which means that the client’s posture in the early stages of an investigation shapes the sentencing exposure in ways that cannot be remedied at trial. By the time evidence is disclosed, the government has formed its view of the defendant’s state of mind. Changing that view requires a counter-narrative that predates the indictment.

Intent is also where the Galeotti Memorandum’s emphasis on individual prosecution creates a structural asymmetry in the defense. The corporation can self-disclose, cooperate, remediate, and receive lenient treatment under the revised Corporate Enforcement Policy. The individual officer whose signature appears on the relevant filings does not have access to those mechanisms in the same way. Voluntary self-disclosure by the company may strengthen the government’s case against the individual by providing the documents and testimony that establish the mosaic of intent. We have seen this in healthcare fraud matters where corporate cooperation agreements carved out individual liability. The corporation resolved its exposure on favorable terms.

The May 2025 Executive Order on overcriminalization, which directed agencies to disfavor criminal enforcement of regulatory offenses and strict liability crimes, appears to narrow the field. For offenses that require willful violation of a known prohibition, the government must prove not only that the defendant acted, but that the defendant knew the act was prohibited and chose to proceed. That is a higher bar. Prosecutors have decades of practice constructing the inference of willfulness from circumstantial evidence, and the juries that hear these cases are composed of citizens who understand, even without legal training, what it means to know something is wrong and to do it regardless.

There are cases where intent is genuinely absent, though I am less certain than the preceding paragraph may suggest about how often that absence survives the government’s presentation. A compliance failure, a misunderstanding of a regulatory requirement, a transaction structured by outside counsel on terms the client believed were lawful. In these matters, the defense is strongest when it can produce contemporaneous documentation of good faith: the compliance memo, the outside counsel opinion letter, the internal training record that shows the defendant sought to conform. The absence of such documentation is not evidence of guilt. What a person did not write down reveals as much as what they did.

Sentencing and the Arithmetic of Loss

Federal sentencing in white collar cases is governed by the United States Sentencing Guidelines, which calculate an offense level based on a series of factors. The most consequential factor is the loss amount. The Guidelines assign progressively higher offense levels as the loss figure increases, and the resulting sentencing ranges can be severe.

Loss calculations are contested in nearly every white collar case, and they should be. The government’s method tends toward the expansive: intended loss rather than actual loss, gross revenue rather than net, total scheme value rather than the amount attributable to the individual defendant. A forensic accountant retained by the defense will often produce a figure that is a fraction of the government’s number. The difference between those two figures can mean years.

The median sentence for white collar offenses has been lower than the public assumes. Recent trends, though, point upward. The average sentence in the first half of fiscal year 2025 was higher than in prior comparable periods. The smaller sample size complicates the interpretation.

Restitution follows conviction. The court orders the defendant to repay the loss, a figure that for many defendants represents a sum they will never possess. The restitution order survives bankruptcy, and it follows the defendant for the remainder of their financial life.

The Shape of What Follows

White collar criminal defense is, at its foundation, the defense of a version of events. The government presents one narrative. The defense presents another. The jury, or the judge, or the prosecutor weighing whether to extend a plea offer, selects the narrative that accounts for the evidence with the least remainder. The work of defense counsel is to ensure that the client’s narrative is constructed before the government’s becomes the only one in the room.

The current enforcement posture, with its emphasis on individual accountability, its expanded whistleblower incentives, and its concentration of resources on selected categories of fraud, does not reduce the need for early and competent representation. It amplifies that need. The investigation that does not become a prosecution is not a matter of fortune. It is a matter of preparation, of positioning, and of understanding what the government requires and what it will accept.

A consultation is where that understanding begins, and it assumes nothing beyond the willingness to have the conversation. The absence of that conversation is where cost begins.