White Collar Crime

Question	Answer
What is the difference between criminal law and white collar crime?	1. Non-violent offenses of deceit, manipulation, and concealment. 2. Battle is won or lost at indictment stage typically. 3. Rule of Lenity has a large role due to vague statutes. 4. Redress can be civil or criminal.
What is conspiracy?	18 USC §371 Agreement between two or more people to achieve an unlawful objective.
What are the elements of conspiracy?	1. Requires an agreement 2. Must be between two or more people, and 3. Must be an overt act in furtherance of the conspiracy.
What are the governing precedent regarding conspiracy?	1. Stevens -- Must involve two or more actual people, not an individual and the corporation which he controls. 2. Hartley -- Group of conspirators cannot escape liability because they act on behalf of corporation. Liability itself may be imputed to corporation on a theory of respndeat superior. 3. Licciardi -- Looks at the intent of the actor; do not have to have the intent to defraud US as long as there is an impact on the government.
Define duplicitous v. multiplicitous.	Duplicitous -- Charging one conspiracy when there are many. Multiplicitous-- Charging multiple conspiracies when only one exits.
How does one evade or terminate conspiracy?	Recio -- Affirmative evidence that defendant abandoned, withdrew from, or disavowed the conspiracy or defeated its purpose.
What is the punishment for conspiracy?	Capped at whatever the punishment is for the offense to which the individuals were conspiring to commit. Can be a misdemeanor or felony
What is are the elements of mail fraud?1	18 USC §1341 1. Existence of a scheme to defraud 2. Intent to defraud someone of "something", and 3. Use of the mail system for the purpose of executing the scheme
What is the punishment for mail fraud?	Fine and/or up to 20 years imprisonment
What are the elements of wire fraud?	18 USC §1343 1. existence of a scheme to defaud 2. intent to defraud someone of "something", and 3. use of the wire, radio, or television for the purpose of execution the scheme Requires transmission of a sign, signal, picture or sound for purpose of executing fraudulent scheme.
What are the governing precedent for mail fraud?	1. Hawkey -- scheme need not be fraudulent on its face but must involve fraudulent and material misrepresentation of omission. 2. Svete -- deception need not actually come to fruition; criminal intent is the sole question. 3. Maze -- innocent mailings, which contain no false information, may supply the mailing element question in the offense depending on whether the mailing is part of the execution of the scheme as conceived by the perpetrator at the time. 4. Licenses are not material property but lost tax revenue is.
What is materiality?	Statement is material if it would cause a reasonable person to be influenced or act a certain way.
What is the distinction between mail fraud and wire fraud?	1. Different jurisdictional requirements. 2. The wire, sign/signal being transmitted, must in fact travel in interstate commerce.
What is deprivation of honest services ?	Exists where corruption occurs and the offender profits, the betrayed party suffers no deprivation of money of property, and a third-party that had not been deceived provides the enrichment. Acceptance of bribes, kickbacks, etc.
What is the punishment for wire fraud?	Fine up to $1mil and/or up to 20 years imprisonment
What are the elements of bank fraud?	1. Defendant knowingly executed, or attempted to execute, a scheme to defraud a financial institution 2. Defendant did so with an intent to defraud (the bank or a third party), and 3. The financial institution is insured by the FDIC.
What is the governing case law for bank fraud?	1. Crisci -- It is not duplicitous to charge bank fraud multiple times if committed in different ways. 2. Reaume citing Everett -- The intent to defraud must not be specifically aimed at the bank, but rather a bank can be used by an individual to defraud another individual, which still satisfies the requirement. 3. Rigas -- The scheme to defraud clause requires the defendant engage in a pattern of conduct designed to deceive a FDIC insured bank into releasing property, with the intent to victimize the institution by exposing it to actual or potential loss.
What are material misrepresentations?	Statements or claims by an individual that would cause the bank to act a certain way, or "have natural tendency to influence, or is capable of influencing, the bank's decision making."
What is the punishment for bank fraud?	Fine up to $1mil and/or 30 years imprisonment
What is securities and commodities fraud?	18 USC §1348
What are the elements of securities and commandoes fraud?	1. Defendant knowingly execute, or attempted to execute, 2a. A scheme to defraud any person in connection with a commodity, or 2b. A scheme to obtain by means of fraud any option in a commodity.
What is the Securities and Exchange Act of 1934 say in connect to WCC?	1. §32 of the SEA Criminalizes “willful” violations 2. “A person can willfully violate an SEC rule even if they do not know of its existence.” 3. Most violations are from § 10 of the SEA
What are the elements of §10 of the SEA?	1. Made and untrue statement or omitted a material fact which made statements misleading 2. Was done so in connection with purchase or sale of a security 3. With scienter, and 4. Caused plaintiff’s losses
What is willful blindness/conscious avoidance?	Weiner -- Deliberate avoidance and failure to rectify false statements of revenue are sufficient to show requisite intent
What is the good faith exception?	Wenger -- Acting in good faith and reliance upon advice of counsel is something the jury can look at as a defense to the willfulness requirement, but it is not a complete defense and will be weighed with all of the other factors.
What is the "no knowledge proviso"?	Knueppel -- May protect individuals from incarceration for violations of the Securities and Exchange Act; however that provision is not applicable to other violations of federal law. When the defendants were charged here for conspiracy
What are the theories of securities fraud?	Misrepresentation/Concealment and Insider Trading
What are the governing precedent regarding misrepresentation/concealment?	Martha Stewart -- Government did not prove beyond a reasonable doubt that Martha Stewart lied with the intent to influence the market for her own company’s stock. Berger -- Defendant falsified financial statements to increase lending potential. Defendant argues that the statements were not material, however the standard of looking at the “natural tendency to influence, or is capable of influencing, the decision-making of the body to which it was addressed.” Central Bank of Denver -- There is no private aiding and abetting liability under §10 of the SEC Act.
What are the governing precedent regarding insider trading?	Chiarella -- Requires that the offender must be a corporate insider with an affirmative duty to disclose all material information known to him. Silence doesn’t amount to fraud if the individual has no duty to speak.
What is the misappropriate theory?	O’Hagan -- When an individual misappropriates information in connection with trading of securities they have committed securities fraud. They have breached fiduciary duties in using insider information for self-serving purposes.
What is the tippee liability?	Dirks -- When a tippee has received undisclosed information from an insider they adopt the fiduciary duties that insider owed. Tippee knows, or should know, that the information is undisclosed and there’s been a breach. Smith -- Requires a showing that privileged information was in fact used in the consummation of a transaction.
What is the punishment for securities and commodities fraud?	Fined and/or up to 25 years of imprisonment
What are the elements of false statements?	18 USC §1001 1. A statement 2. That is false 3. Material 4. Made with specific intent, and 5. Within the purview of government agency jurisdiction D acted knowingly or willingly
What are the governing precedent regarding false statements?	Hildebrandt -- § 1001 is concerned with the willful doing of a prohibited act, not a failure to act. A violation of § 1001 must be “willful.” Shah -- A promise can be a “false, fictitious, or fraudulent” statement under the authority of § 1001 when there is no intention of performance nor any intent to perform. Yermian -- Required showing by government is that defendant “knew, or should have known,” that his statements would be submitted to the government. Brogan -- The Exculpatory “No” Doctrine: Saying “no” and invoking right to remain silent are not the same thing! Guilty!
What is the judicial function exception?	At the point a case turns into a judicial proceeding, the use of the perjury statute will become more appropriate. Must include: (1) defendant was party to judicial proceeding, (2) statements were submitted to a judge or magistrate, and (3) statements were made “in a proceeding.”
What is the legislative function exception?	§ 1001 charges are not appropriate when the statements are made in a legislative setting, unless the statements are made in administrative matters, investigations, or reviews.
What are false claims?	18 USC §267 1. Willful (does not mean knowing) 2. Makes claim, and 3. Claim is made to an agent of the government
What are the three types of immunity?	18 USC §6002 and 6003 1. Use Immunity 2. Use and Derivative 3. Transactional Immunity 2. Use and Derivative Use Immunity: prosecutors cannot use testimony, or any leads derived from testimony, to pursue criminal charges against witness. If prosecutors already have evidence to charge you they can still do it, so long as the evidence was obtained independently of the witness’s testimony. 3. Transactional Immunity: the broadest form of immunity, you cannot be prosecuted for anything you testify about.
What is use immunity?	You can be prosecuted for the stuff you testify about, but the testimony itself can’t be used against you. SCOTUS said that use immunity isn’t perfect for defendants.
What is use and derivative use immunity?	Prosecutors cannot use testimony, or any leads derived from testimony, to pursue criminal charges against witness. If prosecutors already have evidence to charge you they can still do it, so long as the evidence was obtained independently of the witness’s testimony.
What is transactional immunity?	The broadest form of immunity. You cannot be prosecuted for anything you testify about.
What are other important things to remember about immunity?	For immunity to protect you, you must tell the truth! You can be prosecuted if you lie when you give immunized testimony! Corporate custodians cannot resist subpoenas just because the act of production would be self-incriminating. The production of documents is not testimonial, and the custodian acts purely in a representative capacity when delivering documents.
What are the governing precedent regarding search warrants?	Ford -- Search warrants must have a degree of specificity for what can be searched and seized, and if the warrant is too broad, the provisions that are determined to be too broad will be struck and evidence collected under the overly broad provisions will be suppressed.
What is inevitable discovery/good faith:	Look at the facts. If a search warrant allows a computer to be seized and searched, pretty much all content on the computer will be viewed as discovered under the inevitable discovery doctrine.
What are whistleblowers?	Corporate insiders that report illegal conduct of their corporations
What are undercover operations?	Use of informants and undercover officers who have been concensualized.
What are qualities of grand jury investigations/indictments?	1. Are called together/summoned by the USAO 2. Required by the 5th Amendment 3. Determine the existence of Probable Cause 4. Federal Grand Juries are able to subpoena witnesses from all over the country, but the power to subpoena comes from the Clerk of the Federal District Court where the Grand Jury has been convened. (Schofield II highlights the need for some minimal showing to be made in order to issue subpoenas, minimize appearance of it serving as a “fishing expedition”) 5. Court Reporters are present during the Grand Jury, and record all testimony/votes/etc.
What happens when the testimony sought from a witness in Grand Jury is incriminating? What are the remedies to allow such testimony?	An individual may not assert 5th Amendment privilege against self-incrimination when there has been a grant of use and derivative use immunity from criminal prosecution. Immunity grants under 18 USC § 6002 leave witnesses in the same position as if they had invoked the 5th Amendment privilege.
What are the types of grand jury witnesses?	Witness -- Innocent individuals who have information pertinent to the Grand Jury’s investigation. Target -- A person that the prosecutor or Grand Jury has substantial evidence linking him/her to the crime and could be a putative defendant. Targets, who have not received immunity, will receive an Advice of Rights form with their subpoena. Subject -- An individual whose conduct has come within the scope of the Grand Jury’s investigation.
What is prosecutorial misconduct?	There appears to be a relatively high burden in raising claims that the prosecutor has engaged in misconduct, and actions taken in Grand Jury proceedings appear to be almost entirely out of the scope with the Federal Courts are willing to extend their authority.
What is grand jury abuse?	Often a target of defense attorneys due to the secretive nature of how the Grand Jury is operated. Bank of Nova Scotia -- A District Court cannot dismiss an indictment when the argument of defendant is centered around harmless error. Williams -- There is no requirement for the prosecutor to present exculpatory evidence before the Grand Jury, and the District Court did not have supervisory power to dismiss the indictment when the Grand Jury is a separate entity from the Courts. Mechanik -- Prosecutor had two witnesses testify at the same time (two drug cops). Harmless error. SCOTUS overturned the Circuit Court and reinstated a vacated conspiracy charge.
What are discovery violations?	During trial prosecutors made knowing presentations of false evidence, and failing to correct testimony which it knew to be false. Failed to make required disclosures pursuant to Brady.
What is attorney-client privilege?	Corporations often use lawyers to investigate possibility of misconduct with the distinct objective of keeping that information secret pursuant to the privilege. When lawyers give non-legal advice, it is not privileged.
What is the governing precedent for attorney-client privilege?	Upjohn: the surveys disseminated to company employees were in the anticipation of litigation and were protected by attorney-client privilege. The employees were aware the surveys were being conducted to allow the corporation to obtain legal advice.
What is the crime-fraud exception?	Communications made to further a crime or fraud are not protected. The exception applies if the client was intending to seek information from the attorney to aid a future criminal act.
What are joint-defense agreements?	Allows for parties with common legal interests to share confidential information with each other without waiving the attorney-client privilege. Should be a written agreement to maximize the protections.
What are "queen for a day" letters?	Supposed to be a proffer, not a confession, and protects defendant and prosecutor in the case cooperation never results. After you confess, you lose the ability to argue factual innocence. You can still attack the burden of proof.
What are the two types of perjury?	18 USC §1621 and §1623 General Perjury and Judicial Perjury
What is general perjury?	Applies to individuals who have taken an oath before any competent tribunal, officer, or person, in any case where the law of the United States authorizes and oath to be administered. 1621 requires that the Government prove falsity of statements
What are the governing precedent regarding general perjury?	Bronston -- A witness cannot be found guilty of perjury when is responses to questions are literally true. It is up to the attorney questioning the witness to offer clarity. DeZarn -- Relies on looking at the context of the military investigation. The literal truth doctrine did not apply here because defendant was fully aware of the context behind his questioning and willfully misled the questioners. Bonds -- Lawyers need to get the answer from a witness when the answers are unresponsive initially.
What is judicial perjury?	Applies to any person testifying before a court or grand jury. *Prosecutor is not required to prove falsity, the defendant can make two irreconcilable statements that contradict each other
What are the governing precedent regarding judicial perjury?	Porter -- The content of the statements weren’t irreconcilably different, as it got into the specifics of the statements. Dunn -- The government must show that the statements are contradictory and irreconcilably different, but need not show which of the two statements are false.
What is recantation?	You can recant perjured testimony under § 1623 so long as you do so: 1. If at the time of recantation, the perjured testimony hasn’t substantially affected the proceeding, OR 2. It has not become manifest that the falsity has been or will be exposed. (You cant recant right when you are about to get caught!)
What are the elements of obstruction of justice?	1. Corruptly, or by threats 2. Endeavored, and 3. To influence, impede, or obstruct the due administration of justice.
What are the governing precedent regarding obstruction of justice?	Nelson -- Requires a pendency of some judicial proceeding as a necessary prerequisite. Not every Grand Jury investigation will be ripe enough to trigger the § 1503 violations. Thomas -- The government doesn’t have to prove that the defendant’s conduct impacted any members of the Grandy Jury, or the Trial Judge. Defendant’s attempt to manipulate is only requirement. “Corruptly” is specific intent for the offense, but generally will be analogous to knowing and intentional action or action taken with obstruction as a reasonably foreseeable result. False or evasive testimony can constitute obstruction, but will not always be that. (Requires a showing of a nexus between the false statements and the obstruction of the administration of justice.)
What are the governing precedent regarding obstruction of justice?	Aguilar -- If a defendant lacks the knowledge that his actions are likely to obstruct justice, he lacks the requisite intent to cause an obstruction. Uttering false statements to a law enforcement agent that might testify before a grand jury isn’t sufficient. There’s no foreseeable “natural or probable” effect. Fassnacht -- The obstructing act must have relationship in time, causation, or logic to the judicial proceeding. Cintolo -- Requires a showing of a motive on behalf of the person accused of the obstruction.
What is the punishment for obstruction of justice?	Offense dependent but a fine and/or anywhere from and up to 10-20 years
What are the elements of witness tampering?	1. Knowingly or corruptly persuades 2. Another person/persons 3. To withhold, alter, or destroy 4. Documents of testimony, and 5. From an official proceeding (or prevents the communication of the commission of a federal crime).
What are the governing precedent regarding witness tampering?	Arthur Anderson -- deleting documents in accordance with a pre-existing document retention policy did not amount to witness/evidence tampering. Official proceedings had not started at the time the policy was “ushered” to the employees, therefore the nexus was not met. Tampas -- Tricked employee into creating false record that hid his illegal scheme was sufficient to prove witness tampering. Ho -- Nexus requirement is not required for all sub-sections of witness tampering statute.
What is the punishment for witness tampering?	Vary from felony to misdemeanor 3 years/fines up to 20 years/fines
What is aiding and abetting?	18 USC § 2 If you direct someone else to do the act then you can be responsible for that act
What is the responsible corporate officer doctrine?	1. ∆ had knowledge 2. ∆ had the authority and capacity to prevent the violation 3. ∆ failed to prevent the on-going violation.
What is the advice of counsel defense?	1. Have to waive A/C if you want to use this 2. Don’t need to have crime fraud exception 3. Have to be sure you gave all relevant info 4. Have to actually follow the advice given

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	Created by Jada Ector over 5 years ago