Term
| What is white collar crime? |
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Definition
| nonviolent, deception, $-related, professionals, abuse of position of power, institution involved (e.g. govt), environmental included |
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Term
| standard for inditing a corporation |
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Definition
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Term
| Issues related to representing both corporation and individuals |
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Definition
1. may be conflict of interest
2. can't approach represented individuals once they get own counsel
3. joint approach stops cooperation
4. joint approach is more cost effective |
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Term
| Possible Harms of White Collar Crime |
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Definition
1. money
2. loss of trust in institutions
3. public health and safety harmed |
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Term
| Differences between White Collar and Regular Criminal Cases |
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Definition
1. Prosecutor gets involved at beginning in WCC
2. Just getting indicted is death in WCC
3. Goal in WCC is a declination, getting them to go civil
4. most cases brought in by agencies in WCC
5. almost no caselaw b/c everything pleads
6. corporations have no 5th
7. parallel criminal and civil proceedings |
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Term
| Can government force immunity on a witness who doesn't want it? |
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Definition
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Term
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Definition
1. Redundant
2. Overbroad leaving too much discretion to Pros.
3. Scattered and Disorganized
4. Congress turns agencies regulations into criminal laws by criminalizing not following them
5. May not mention mens rea or be very low
6. Code is vague and elastic (results in policy args)
7. B/c vague--is there fair notice? |
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Term
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Definition
1. concealment when duty to disclose
2. deceit: lying or misrepresentation |
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Term
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Definition
| 18 USC § 1346: “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services” |
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Term
| Concerns about Federalization |
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Definition
-concerns that cases are political ploys
-dual sovereignty doctrine—state and feds can go after same crime b/c each different sovereignty w/o running into double jeopardy problems
-resource constraints make the decision about what feds should take on v. states |
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Term
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Definition
| 1. are people buying their way out of criminal charges? |
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Term
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Definition
| almost like strict liability, rule exists to protect public so very low level of mens rea appropriate, ignorance or reasonable mistakes are no defense |
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Term
| United States v. International Minerals & Chemical Corp |
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Definition
F: shipping sulfuric acid case
I: law doesn't have mens rea, what shd it be?
H: need to know “dangerous or deleterious device” |
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Term
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Definition
1. Oath
2. Material
3. Falsity
4. Knowledge (that statement was false) |
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Term
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Definition
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Term
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Definition
| correcting problems w/ 1621 perjury statue, but didn't revoke 1621, just added on |
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Term
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Definition
| F: Ct held that individual only violates the statute if he knows that he has acquired or possessed food stamps and if he also knows that he has done so in an unauthorized way |
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Term
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Definition
F: guy argued didn't know automatic weapon
H: not w/in public welfare doctrine, must prove he knew weapon was machine gun, knowing standard |
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Term
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Definition
-i.e. Weitzenhoff and Int’l Materials: just need to know it is dangerous, environmental cases
-“know” sufficient facts to put D on notice of likely regulation
-really important in environmental practice, environmental criminal statutes often have complicated elements
-usually “knowing” |
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Term
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Definition
| puts D on notice about consequences of perjury |
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Term
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Definition
-usually "knowing" language
-Staples
-“know specific facts giving rise to liability" |
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Term
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Definition
-mixed
-have to know something that pertains to law but not criminal law
-had to know the content of the regulations even if not inherently criminal prohibitions
-these first three have to do w/ “knowing”
-Liporata (food stamp case: needed to know in possession of food stamps and needed to know you acquired them in unauthorized way |
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Term
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Definition
-usually “willing”
-had to know what you were doing was wrong and illegal
-willfully violate the law because the D knew that his conduct was unlawful
-that his conduct was generally “bad” or unlawful, but not that his conduct violated a specific criminal law
-Bryan case |
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Term
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Definition
-tax statutes and Ratzloff
-usually “willing”
-willfully violate the law because the D knew that his conduct violated a specific licensing requirement (e.g. that structuring to evade currency requirement violated currency transaction reporting law) |
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Term
| When does public welfare doctrine apply? |
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Definition
-normally we look to nature of statute and particular characterization of items regulated
-real question=would this impose criminal sanctions persons whose actions were innocent
-pervasiveness is key
-innocent means regulable in this context
-about whether inherently regulated, likely to be regulated and can the people afford legal advice?
-guns are so commonplace, regularly found in people’s homes, don’t make people think I should check if there are regs
-that’s the point of the car example, we all know that cars are dangerous but wouldn’t check if there are criminal regulations |
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Term
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Definition
| D realized what she was doing and was aware of the nature of her conduct and did not act through ignorance, mistake or accident |
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Term
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Definition
| if he acts intentionally and purposely and with the intent to do something the law forbids, with the bad purpose to disregard the law, need not be aware of the specific law that his conduct may be violating |
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Term
| Good Faith Reliance on Counsel Defense--when? what for? |
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Definition
-for specific intent crimes
-you have to make full disclosure to attorney in order to get it
-so lawyer in hypo above didn’t get it b/c didn’t tell what CEO said
-don’t want to allow person to create plausible deniability by telling lawyer half truth
-can’t use privilege as sword and shield, if you use this defense you lose privilege |
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Term
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Definition
-Govt only needs to show one red flag to get the instruction
-very dangerous for defense, juries confuse it w/ negligence, argue not suff. red flags |
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Term
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Definition
F: accused of selling firearms w/o license
H: willfully means you know conduct is unlawful, not that you know licensing requirement; general law mens rea |
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Term
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Definition
| purposeful; like "willing" |
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Term
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Definition
| like "knowing"; know results could follow |
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Term
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Definition
| can infer knowledge from deliberate closing of eyes |
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Term
| New York Central and Hudson RR case |
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Definition
case cited for respondeat superior initiation in CRIMINAL law
F: RR charging sugar company less and getting kickbacks
H: corporation responsible for acts of agents, can prove specific intent against corporations because of the knowledge and intent of its agents to whom it has entrusted authority |
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Term
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Definition
| corp. liable for actions of any employee or agent acting w/in real or apparent scope of employment or agency with the intention to benefit the corporation at least in small part |
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Term
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Definition
-Retribution/Just Desserts (don’t use human beings for policy reasons)
-Rehabilitation
-Incapacitation (so can’t do it again)
-Educational: Law Promotes Law Abiding Conduct by providing example
-Deterrence: law scares people into stopping crime
>>specific—deter the individual
>>general—deter all of society through one example |
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Term
| 10 Factors DOJ uses to determine when to indict |
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Definition
-nature and seriousness of offense
-pervasiveness of wrongdoing
-history of similar misconduct
-timely and voluntary disclosure and cooperation
-pre-existing compliance
-remedial actions
-collateral consequences (harm to shareholders, employees ect)
-adequacy of prosecution of individuals responsible
-adequacy of remedies such as civil or regulatory enforcement actions |
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Term
| Arguments For Corporate Criminal Liability |
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Definition
-presumes criminals are rational actors
-gain from offense > criminal penalty minus likelihood of apprehension
-likelihood of apprehension is much more important in the calculus
-30% of apprehension is what would deter, the actual rate of apprehension for most crimes besides murder is far less |
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Term
| Intention to benefit the Corporation Requirement |
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Definition
| mens rea of criminal actor imputed to company but this leads to over-inclusiveness of the “rogue agent” scenario, thus law requires the agent act w/ intent to benefit her principal to solve that; supposed to prevent sweeping victims in |
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Term
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Definition
F: multiple deposits in one day over 10,000 in aggregate, bank thinks he’s a bookie, red flag, didn’t file b/c thought he was a good customer
I: does bank have knowledge?
H: bank convicted, others acquitted, collective knowledge of employees used to prove mens rea |
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Term
| Flagrant Organizational Indifference |
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Definition
-a way to prove willfulness
-proving that entity acted w/ indifference to the requirements of the law, sounds like lack of compliance programs
-examples: lack of training, no rules, review, audit to make sure employees doing it, employee discipline for those who break rules, compliance relevant to compensation |
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Term
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Definition
F: hotel manager boycotted supplier who didn’t pay local association fee despite express instructions of corp not to do it
I: can be liable where agent acted against corporate policy?
H: Sherman antitrust violations are result of the upward pressure to maximize profits plus corp is the one that gets the profit
• general rule corp is liable under the Sherman Act for acts of agents w/in scope of employment even tho contrary to general corpo policy or express instructions
• too hard to identify the particular corp agents responsible for Sherman violations
• this now applies beyond antitrust context to any law where mens rea is stated |
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Term
| How to prove mens rea in cases of diffuse responsibility? |
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Definition
1. don’t need to identify the person who did it under the new standard
2. can be more than one person
3. inconsistent verdicts allowed (i.e. all individuals acquitted but corp till can be found guilty)
4. theory of collective knowledge (bank of New England) |
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Term
| United States v. Sun-Diamond Growers of California |
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Definition
F: guy made illegal contribution to campaign in names of himself and 3 employees, reimbursed them by billing a client for fictitious dinner tix
I: not benefitting, actually defrauding co? can still hold liable?
H: yes, he acted to benefit co in long term by maintaining relationship w/ ag dude
• imputation need not be same in both the perpetrator and victim sides
• company of ag dude can still be a victim
• corp need not receive the benefit under this doctrine, need not be acting solely to benefit the company |
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Term
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Definition
(1) Testimony under oath
(2) False
(3) D knew his testimony was false
(4) Material |
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Term
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Definition
“has a natural tendency to influence, or be capable of influencing, the decision of the decision-making body to which it is addressed.”
-jury question |
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Term
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Definition
(1) Recantation
Not available under 1621
Available under 1623, but very limited
(2) Literal truth (deals w/ answer)
(3) Ambiguity (deals w/ question) |
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Term
| bronston v. u.s.--what's the rule? |
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Definition
| It's not a crime to mis-lead by negative implication, where the answer given is literally true; leave it to lawyer to Xexam |
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Term
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Definition
• false statement or omission w/ duty to disclose
• knowing and willing
• materiality
• within the jurisdiction of the executive, legislative, or judicial branches w/ certain exceptions (this is new, used to include agencies) |
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Term
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Definition
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Term
| Affirmative Concealment of a Material Fact |
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Definition
(a type of false statement offense under 1001)
-duty to disclose (may arise out of legal obligations or relationships)
-act by “trick, scheme, or device”
-must be based on “affirmative act of concealment” |
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Term
| Perjury or False Statement Traps |
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Definition
| when govt sends an agent to question a suspect then flip him using threat of 5 year false statement count |
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Term
| Examples of Things you DON"T have to show for materiality to be met |
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Definition
-that false statement was credible or believed
-that the false statement was relied on by the govt agency
- that there was intended financial loss to govt- that statements were required to be filed
-that the statement was read or even received by the govt |
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Term
| U.S. v. Rodgers: What's the rule? |
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Definition
| SC said most rational definition of jurisdiction is all matters confided to the authority of the agency or department |
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Term
| United States v. Bramblett |
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Definition
| doesn’t need to be executive, department means to describe executive, legislative and judicial, eventually changed language to that |
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Term
| Judicial Function Exception |
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Definition
| • if you make a false statement while testifying in Court you can’t be persecuted for false statement b/c that is left to perjury (for false statements) |
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Term
| differences between 1001 and 287? |
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Definition
1. statement v. claim
2. judicial, exec, leg v. dept or agency
3. knowing & willful v. just knowing
4. materiality v. no materiality req'ment |
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Term
| What is qui tam litigation? |
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Definition
-private person launches the case, known as the relator
-used under False Claims act |
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Term
| Successive Double Jeopardy and Its Test |
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Definition
-if there are two separate indictments
-Blockburger is King; congressional intent doesn’t matter |
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Term
| Multiple Double Jeopardy and Its Test |
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Definition
-if there are multiple punishment cases for one indictment but multiple charges w/ in the indictment
-congressional intent and blockburger only a rule of construction where congressional intent is not otherwise clear |
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Term
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Definition
-they are different crimes if each requires proof of an element that the other does not
-i.e. conspiracy (agreement and overt act) and mail fraud (scheme to defraud and wiring) so can charge both b/c all different elements |
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Term
| Brogan v. US: What's the rule? |
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Definition
| no exculpatory no defense |
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Term
| Criminal False Claims § 287 Elements |
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Definition
(1) D presented a claim to the U.S. or an agency of the U.S.,
(2) the claim was false, fictitious, or fraudulent, and
(3) the D knew that the claim was false, fictitious, or fraudulent. |
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Term
| What is the difference b/t multiplicity and duplicity? |
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Definition
indictment charges multiple crimes, when in fact and law, only one crime has been committed.
v. indictment joins two or more distinct crimes in a single count |
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Term
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Definition
-Rule: state and federal authorities can bring separate prosecutions for the same crime w/out violating double jeopardy.
-Possible exception: where state and federal prosecutions are very intertwined. |
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Term
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Definition
F: guy didn't declare cash on immigration form
H: Congress intended D’s conduct to be punishable under both the false statement statute and the failure to report cash statute.
-Applying Blockburger (whether each crime requires proof of an element that the other does not)→proof of a currency reporting violation does not necessarily include proof of a false statement offense. |
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Term
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Definition
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Term
| What type of offense is mail/wire fraud? |
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Definition
| inchoate (meaning incomplete) |
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Term
| What intent is required for the "intent" element of mail/wire fraud? |
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Definition
intent to injure
(not just intent to deceive) |
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Term
| Elements and Sub-Elements of Mail/Wire Fraud |
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Definition
1. mailing/wiring
2. scheme to defraud
sub:
3. intent to defraud
4. materiality |
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Term
| What was the effect of McNally v. US? |
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Definition
| The Supreme Ct invalidated 40 years of honest services crime prosecution by saying honest services can't be the object of the fraud, need some sort of property/$ loss |
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Term
| Pros of the Feds stepping in on state territory |
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Definition
1. States often corrupt; need feds to step in
2. Resources: feds do a lot of these cases and know how to handle it |
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Term
Some of the Cons of Feds Stepping In:
Concerns Regarding Federalization |
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Definition
1. Feds overreaching for political purposes
2. Selective Prosecution
3. No notice
4. Better for State to Clean its Own House; Sets anti-corruption culture |
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Term
| Carpenter v. US: what was the effect? |
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Definition
| intangible property rights (proprietary information) is covered by honest services fraud; can be included under fraud |
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Term
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Definition
| to overrule McNally, reinstate honest services fraud |
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Term
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Definition
1. agreement
2. overt act
3. knowing, willful, voluntary participation, intent to further objective |
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Term
| for conspiracy what does the person have to agree to? |
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Definition
| only the essential nature of the plan |
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Term
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Definition
| must assess the D's state of mind, whether he was ready, willing or able to commit the charged offense |
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Term
| Turkette's 3 elements for proving an enterprise |
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Definition
o common purpose
o evidence of ongoing organization, formal or informal
o various associates acting as ongoing unit |
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Term
| When is distinctiveness required? |
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Definition
| when charging RICO under 1962(c) |
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Term
| What is money laundering? |
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Definition
o cleaning dirty money
o criminal financing
• using money to promote further criminal objectives
• can include dirty or clean money
• i.e. donations to entities w/ terrorist ties
o dirty money spending |
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Term
| How to prove a pattern of racketeering activity for RICO? |
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Definition
| at least 2 acts, one must have happened in the last 5 years and all must be within 10 years of last one; many eligible predicate acts |
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