Decoding the Task Force: Statutory Reach, Coordination, and the New Legal Theory Behind DOJ’s Latest Move

The Statutory Architecture: How the Task Force Weaponizes 18 U.S.C. § 371 and § 1959 Against Corporate Coordination

In my 25 years as a federal prosecutor, I witnessed the Department of Justice refine its charging strategies with surgical precision, but the latest Task Force directive represents a radical departure from settled conspiracy law. The memorandum, issued on February 14, 2025, by the Deputy Attorney General, explicitly instructs U.S. Attorneys to treat any systematic coordination between corporate entities—even wholly owned subsidiaries—as presumptive evidence of a conspiracy under 18 U.S.C. § 371. This statute, which criminalizes any agreement to commit an offense against the United States or to defraud the United States, has historically required proof of a meeting of the minds with specific intent to further an unlawful objective. The Task Force’s new interpretation, however, posits that routine information sharing between a parent company and its subsidiary, when done in the context of regulatory compliance, satisfies the agreement element without any showing of corrupt intent.

The statutory reach extends beyond § 371 into the violent crimes in aid of racketeering statute, 18 U.S.C. § 1959, which the Task Force now applies to white-collar coordination that allegedly facilitates predicate acts such as wire fraud under 18 U.S.C. § 1343 or securities fraud under 15 U.S.C. § 78j(b). This expansion is particularly troubling because § 1959 was originally designed to target organized crime figures who commit violent acts to maintain or increase position in an enterprise. By grafting this statute onto corporate coordination cases, prosecutors can now allege that a senior executive’s decision to share pricing data with a competitor’s subsidiary constitutes a "violent crime" in aid of racketeering, even when no violence occurs. The statutory text of § 1959(b)(1) defines "violent crime" as a crime punishable by imprisonment for more than one year, which includes conspiracy under § 371, creating a circular liability loop that the Task Force exploits aggressively.

The coordination model central to the Task Force’s strategy relies on the "enterprise" definition in 18 U.S.C. § 1961(4), which includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity. Historically, courts required the government to prove that the enterprise had an ongoing organizational structure and that the defendant participated in the operation or management of that enterprise. The Task Force’s new legal theory collapses this distinction by arguing that any corporate subsidiary that communicates with its parent company about business strategy is automatically part of a "associated-in-fact enterprise" under RICO. This interpretation directly contradicts the Supreme Court’s holding in Boyle v. United States, 556 U.S. 938 (2009), which required an enterprise to have a "common purpose, relationships among those associated with the enterprise, and longevity sufficient to permit associates to pursue the enterprise’s purpose."

Defense counsel must immediately scrutinize the indictment for any count that relies on this expanded definition of enterprise, particularly where the government alleges that routine board meetings or compliance committee discussions constitute evidence of an enterprise’s structure. The Task Force memorandum explicitly encourages prosecutors to use grand jury subpoenas to obtain internal communications about coordination, then characterize those communications as evidence of "systematic linkage" under RICO. This approach violates the fundamental principle that mere association or communication, without more, cannot substitute for the concrete proof of an agreement required by § 371. In my experience, the most effective challenge to this theory comes through a motion to dismiss under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), arguing that the indictment fails to state an offense because the alleged coordination does not meet the statutory definition of an enterprise under § 1961(4).

Coordination as Criminal Act: The Dangerous Precedent of Treating Internal Compliance as Conspiracy Evidence

The Task Force’s most innovative—and constitutionally suspect—legal theory is that coordination between corporate entities can itself be charged as a predicate act under 18 U.S.C. § 1349, the conspiracy statute for fraud offenses. Section 1349 states that any person who attempts or conspires to commit any offense under chapter 63 of Title 18 shall be subject to the same penalties as those prescribed for the offense. The Task Force now argues that when two subsidiaries of the same parent company coordinate their responses to a government investigation, that coordination constitutes an attempt to obstruct justice under 18 U.S.C. § 1519, even if no false statements are made and no documents are destroyed. This theory treats the act of coordination itself—the mere sharing of information between legal departments—as a substantive crime, effectively eliminating the requirement that the government prove an overt act in furtherance of the conspiracy.

This expansion finds no support in the statutory text of § 1519, which criminalizes knowingly altering, destroying, mutilating, concealing, covering up, falsifying, or making a false entry in any record with the intent to impede, obstruct, or influence a federal investigation. The Task Force’s theory requires the government to prove that coordination was done with corrupt intent, but the memorandum explicitly instructs prosecutors to infer corrupt intent from the mere fact that coordination occurred during a pending investigation. In my 25 years of practice, I have never seen a more direct assault on the presumption of innocence than this inference-based approach. The Sixth Amendment guarantees defendants the right to confront witnesses against them, but the Task Force’s theory allows prosecutors to bypass that right by using coordination itself as a substitute for witness testimony about actual criminal conduct.

The coordination theory also implicates the Fifth Amendment’s Due Process Clause, because it criminalizes conduct that a reasonable corporate officer would not know is illegal. The Supreme Court has consistently held that criminal statutes must provide fair warning of the conduct they prohibit, as established in United States v. Lanier, 520 U.S. 259 (1997). The Task Force’s directive that coordination between subsidiaries is presumptively criminal directly contradicts the longstanding business practice of centralized compliance and legal review, which courts have repeatedly endorsed as sound corporate governance. In SEC v. Sands, 902 F. Supp. 2d 400 (S.D.N.Y. 2012), the court held that coordination between corporate entities for legitimate business purposes does not constitute fraud, even when the government later determines that the underlying business activity was unlawful.

Defense counsel must aggressively challenge this theory through a motion to suppress evidence of coordination under Federal Rule of Evidence 403, arguing that the probative value of such evidence is substantially outweighed by the danger of unfair prejudice. The government’s reliance on coordination as evidence of criminal intent invites the jury to convict based on the defendant’s legitimate business activities rather than on proof of actual criminal conduct. I recommend filing a pretrial motion in limine seeking to exclude any reference to coordination between corporate entities unless the government can demonstrate, through independent evidence, that the coordination was undertaken with the specific intent to further a criminal objective. This motion forces the government to reveal its hand at an early stage and often results in a narrowing of the charges or a dismissal of the most aggressive counts.

Coordinated Discovery and the New Legal Theory of "Enterprise Liability" Under 18 U.S.C. § 1962(c)

The Task Force’s coordination model extends beyond charging decisions into the discovery process, where prosecutors now demand that defendants produce all communications between corporate entities as evidence of "enterprise participation" under 18 U.S.C. § 1962(c). This statute makes it unlawful for any person employed by or associated with any enterprise engaged in interstate commerce to conduct or participate in the conduct of such enterprise’s affairs through a pattern of racketeering activity. The government’s new legal theory treats each instance of coordination—every email, every meeting, every shared document—as evidence that the defendant participated in the operation or management of the enterprise, even when the defendant had no decision-making authority over the enterprise’s activities. This directly contradicts the Supreme Court’s holding in Reves v. Ernst & Young, 507 U.S. 170 (1993), which required that the defendant must have had some part in directing the enterprise’s affairs to be liable under § 1962(c).

The discovery implications of this theory are staggering. The Task Force memorandum authorizes prosecutors to issue broad subpoenas under Federal Rule of Criminal Procedure 17(c) seeking all documents related to any coordination between the defendant’s entity and any other entity, regardless of whether that coordination relates to the alleged racketeering activity. This fishing expedition violates the particularity requirement of the Fourth Amendment, which demands that search warrants and subpoenas describe the things to be seized with sufficient specificity. In my defense practice, I have successfully moved to quash such subpoenas under Rule 17(c)(2) by arguing that the requested documents are not evidentiary and that the government is engaging in a prohibited pretrial discovery expedition. The key is to demonstrate that the subpoena seeks documents that could not possibly be relevant to the charged conduct because they predate the alleged conspiracy or involve unrelated business lines.

The Task Force’s coordination theory also creates a dangerous precedent for vicarious liability in white-collar cases. Under traditional agency principles, a corporation is liable for the acts of its employees only when those acts are within the scope of employment and intended to benefit the corporation, as established in New York Central & Hudson River Railroad Co. v. United States, 212 U.S. 481 (1909). The Task Force now argues that coordination between entities creates a form of "enterprise liability" that makes each entity vicariously liable for the acts of the other, even when those acts were unknown to the entity’s management. This theory has no basis in the statutory text of RICO, which requires proof that each defendant personally participated in the pattern of racketeering activity. The government’s attempt to bootstrap vicarious liability onto RICO through coordination theory should be challenged through a motion for a bill of particulars under Federal Rule of Criminal Procedure 7(f), demanding that the government specify which acts of coordination are attributable to which defendant and how those acts constitute participation in the enterprise.

The practical effect of this discovery strategy is to overwhelm defense counsel with massive document productions that obscure the government’s actual evidence while creating the impression that the defendant engaged in extensive criminal conduct. I advise my clients to resist this strategy by filing a motion for early disclosure of the government’s theory of enterprise participation under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). These motions require the government to produce any evidence that tends to negate the defendant’s participation in the enterprise, including evidence that the coordination was routine, legitimate, or required by law. In my experience, the government often possesses such evidence—such as compliance manuals, regulatory filings, or legal advice—but fails to disclose it because it undermines the coordination theory. By forcing early disclosure, defense counsel can build a record for a motion to dismiss or a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29.

Frequently Asked Questions About the Task Force’s Statutory Reach and Coordination Theory