Specic Offenses

I. Conspiracy! A. 18 USC 371! 1. an agreement! 2. an unlawful object! 3. knowledge and intent! 4. an overt act! Mail & Wire Fraud! A. 18 USC 1341 (Mail), 1342 (Wire)! 1. a scheme devised or intending to defraud money or property (deprive intangible right of honest services)! 2. intent! a) Does not require actual defrauding, only that some actual harm or injury was contemplated by the schemer! 3. materiality! 4. in furtherance of the scheme! a) a mailing! b) by the " or caused to be mailed by the "! c) in furtherance of a scheme to defraud! (1) To be in furtherance focus on persons intent, must be nexus between scheme to defraud and mailingSchmuck! B. Limitations to in furtherance! 1. imperative duty imposed by state! 2. mailing prior to commencement of the scheme to defraud! 3. mailing after fruition of scheme to defraud! C. 1346 (Honest Services)! 1. only applies to bribes or kickback schemes- Skilling v US! D. Intangible Property! 1. There is no requirement that property rights be tangible ! a) Condential information is considered intangible property- Carpenter v US! 2. State and municipal licenses have been found not to constitute property- Cleveland v US! 3. Browsing on computer is not mail fraud- Czubinski! Obstruction of Justice! A. 18 USC 1503! 1. corruptly or by threats or force! a) showing of any attempt to inuence a juror or court ofcer! 2. endeavored! a) only necessary that the accused endeavored to obstruct justice! (1) " should have reasonably foreseen that the natural and probable consequence of the success of his scheme would achieve obstruction! 3. to inuence, obstruct, or impede, the due administration of justice! a) a pending proceeding! b) accused had notice of! c) that the accused intended to inuence, obstruct, or impede! (1) natural and probable effect would be the interference! 4. Nexus! a) Ex. establish a nexus between the false statement and the obstruction of justice! Bribery & Extortion! A. 18 USC 201 Bribery of Public Ofcials & Witnesses! 1. 201(b)(1) Bribery! a) Something of value was given, offered, or promised ! (1) actual value not necessary value which the " subjectively attaches to the item received"! b) to a fed public ofcial! c) corruptly to inuence an ofcial act! 2. 201(c) Gratuities! a) does not require proof of quid pro quo! 3. Foreign Corrupt Practices Act! a) criminalizes payments to foreign ofcials if! (1) Inuences a foreign ofcial to act or in a ofcial capacity! (2) induce act or omission in violation of ofcial duties! (3) or secure some wrongful advantage! (4) nexus if the result is or intended to gain some business! b) Prosecution of only those who bribe foreign ofcials- US v Castle! B. Hobbs Act! 1. 18 USC 1951! a) interference with commerce! b) robbery or extortion! 2. Under color of ofcial right (alternative basis to claim extortion)! a) quid pro quo is necessary for a conviction that is predicated upon receiving campaign contributions- McCormick! b) Public ofcial has obtained a payment to which he was not entitled, knowing that the payment was made in return for ofcial acts- Evans v US! RICO! A. 18 USC 1961 - 1968! B. Essence! 1. pattern of prohibited activities! 2. an enterprise! 3. engaged in or the activities of which affect commerce! C. 1962 Prohibited Activities! 1. invested in! 2. maintained an interest in! 3. participated in the affairs of an enterprise! a) Inuenced the conduct of the enterprise! 4. conspired to engage in conduct constituting a pattern of racketeering activity or collection of an unlawful debt! a) Does not require an overt act! Pattern! 1. requires two predicate acts! a) 9 state offenses! 2. pattern of racketeering requires continuity! a) substantial period of time or;! b) threat of continued! 3. Relatedness of act! a) same or similar results victims, purpose, or methods! E. Enterprise 1961(4)! 1. individual, partnership, corporation, association, or other legal entity! 2. Non-legal association in fact Boyle v US! a) purpose! b) relationship among those associated with the enterprise! c) longevity sufcient to permit these associates to pursue the enterprises purpose! d) ascertainable structure! 3. corporation separate from individual Kushner v King! 4. Enterprise doesn't need economic motive- NOW v Scheidler! F. Engaged in or substantially affect interstate commerce! 1. substantially affect could be as little as telephone calls across state lines! G. Nexus! 1. 1962(a)(b) no need for nexus! 2. 1962(c) operation or management test! VI. False Statements! A. 18 USC 1001! 1. a statement! 2. falsity! a) Literally true statements US v Hixon! 3. materiality! a) a natural tendency to inuence, or be capable of inuencing the decision! 4. made knowingly and willfully! a) Knowledge! (1) reckless disregard of truth or conscious avoidance! b) Willfully! (1) proof " intended to deceive! 5. Within Exec, Jud, Leg Gov! VII. Perjury and False Declarations! A. 18 USC 1621 (perjury)! 1. under oath! 2. before tribunal, ofcer, or person! 3. material statement! a) whether the statement was capable of inuencing! 4. with knowledge of its falsity! B. Perjury requires 2 witnesses or 1 + corroborating evd! C. 18 USC 1623 (fd)! 1. under oath! 2. before court or GJ! 3. made a false! 4. material statement! 5. with knowledge of its falsity! D. fd can use inconsistent statements! E. fd recantation defense! F. 18 USC 6002 Immunity! 1. specically exempts perjury or fd! VIII. Currency Reporting & Money Laundering! A. Bank Secrecy Act! 1. 31 USC 5313 ! a) structuring reporting $10,000! b) met when gov shows " intended to evade- Ratzlaf! 2. nancial institution 31 USC 5312! B. 26 USC 6050I & Form 8300! 1. 6050I is applicable to trades or businesses that receive $10,000 cash! a) Fee information is not privileged for the 8300 form- US v Sindel! b) Must disclose when not under exceptions of legal advice, last link, and condential communications! C. Money Laundering! 1. Simply because funds were procured lawfully does not mean that they cannot be converted into an unlawful use- Yusuf! IX. Regulatory! A. Strict Liability! 1. 33 USC 401 Rivers and Harbors Appropriations Act! a) Mens rea is not required to violate 33 USC 407 (strict liability offense)- White Fuel! B. Willfulness! 1. No knowledge proviso! 2. There is no requirement for the alleged act to include moral turpitude! C. Knowingly! 1. Willful blindness is equivalent to knowledge! 2. In order to use willful blindness individual had to perform afrmative act to be blind of conduct- Global Tech! 3. criminal liability provision in Clean Air Act 112(c) requires knowledge only of the emissions themselves, not knowledge of the statute or of the hazards the emissions pose.- US v Buckley! 4. Bronx Reptiles Inc! D. Negligently! 1. Ordinary negligence may be subject to criminal penalties- US v Hanousek! D.

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Procedural & Evidentiary Issues

I. Grand Jury Investigations! A. Advantages over Police Investigations! 1. subpoena dues tecum! a) obtain documents without probable cause! 2. subpoena ad testicandum! a) compel persons to attend and testify! b) under oath! 3. closed proceedings! 4. immunity grants! 5. grand jury secrecy! 6. lay participation! 7. prosecutor leading the investigation! B. Rule 17 Subpoenas! 1. Rule 17(c) order the witness to produce any books, papers, documents, or other objects! C. 4th Amendments Overbreadth Prohibition! 1. court order to produce a document constituted a search under 4th- Boyd v US! 2. whether the subpoena duces mecum was far too sweeping in its terms to be regarded as reasonable- Hale v Henkel! 3. Gov needs to make some showing of the need before it could justify an order for the production of such a mass of papers! 4. the search must not be over broad! D. Applying the Overbreadth Prohibition! 1. the subpoena may command only the production of things relevant to the investigation being pursued ! 2. specication of things to be produced must be made with reasonable particularity! a) particularity of description- subpoenaed party knows what is being asked to produce! b) particularity of breadth- not oppressed to the point that it experiences an unreasonable business detriment! 3. production of records covering only a reasonable period of time may be required! E. Rule 17(c) Objections! 1. may quash or modify the subpoena if compliance would be unreasonable or oppressive- US v R Enterprise! 2. cannot engage in arbitrary shing expeditions! 3. reveal the subject of the investigation to the trial court in camera, so the court may determine whether the motion to quash has a reasonable prospect for success! F. Challenges to the GJ Process! 1. Supervisory Power Over the Conduct of the Grand Jury! a) No requirement to present exculpatory evidence to the GJ- US v Williams! 2. Challenges to the use of GJ! a) Abuse of the grand jury process occurs only when the govs sole or dominant purpose in convening a grand jury is to gather evidence for an already pending litigation- US v Arthur Andersen ! 3. Secrecy Violations! a) Rule 6(e)(2)! (1) Whether the plaintiff has established a prima facie case! (2) If the court determines that a prima facie case has been established, the burden shifts to the government to attempt to explain its actions in a show cause hearing- US v Barry! b) Rule 6(e)(2) matters occurring before the GJ extends to anticipated testimony, matters likely to occur, and even a discussion of strategy and direction of the investigation. But that does not mean that any discussion of an investigation is a violation of Rule 6(e)- In re: Sealed Case No. 99-3091! II. Agency Investigations! A. While administrative actions may proceed alongside criminal investigations certain actions taken to further the criminal investigation may violate due process and therefore preclude the use of the fruits of the administrative investigation in the criminal proceeding- US v Kordel! B. the agency may not engage in an enforcement solely to obtain evidence for the criminal investigation! C. the agency may not make afrmative misrepresentations regarding a possible criminal investigation ! D. There is no due process violation where the agency relies on a printed form advising prospective witness that the commission often makes its les available to US Attorneys, while informing a witnesses counsel that its policy was not to respond to the question of whether it was working with the US Attorney in this specic case- Stringer v US! III. The Self Incrimination Privilege: Testimony! A. Forfeiture or waiver! 1. When a witness testies, they relinquish the privilege in that proceeding not only as to their testimony, but often also as to further information on the subject of their testimony- Rogers v US! 2. A witness would not be allowed to disclose a basic incriminating fact and then claim the privilege as to the details! B. Immunity! 1. 18 USC 6003! a) Discretion of prosecutor! (1) approved by high level DOJ ofcial specied in statute ! (2) in prosecutors judgement! (a) testimony necessary to the public interest! (b) witness refused or likely to refuse! b) 6002 Scope: The use immunity is restricted to a witness who refuses, on the basis of self-incrimination, to testify! (1) fed court! (2) fed GJ! (3) agency of the US! (4) Congressional committees! 2. Kastigar hearing: hearing to make a determination whether what the prosecution plans on asking is covered by the immunity! 3. Defense witness immunity! a) refusal to grant will signicantly reduce the potential to get the truth- Ebbers! (1) # has used immunity to unfair advantage ! (2) " must show witness will be material and is not obtainable from another source! IV. The Self Incrimination Privilege: Documents! A. Personal Papers! 1. Documents which were protected in a clients hands lose any Fifth Amendment constitutional protection when they have been transferred to an attorney because the potential compulsion to testify against oneself has been removed.- Fisher! 2. The act of production can be compelling, but not the document! B. Foregone Conclusion! 1. The act of production is not testimonial if there is a foregone conclusion! 2. Standard! a) Gov must demonstrate with reasonable particularity that it knows of the existence and location of subpoenaed documents- US v Hubbell ! (1) Availability of third persons who can establish that the docs have been prepared and delivered to the person under investigation (Fisher, the accountants)! (2) Unique: targets lawyer (in possession of doc) in order to establish attorney client privilege had to acknowledge that their client had possession of the docs and transferred them to attorney seeking advice! C. Entity Documents! 1. Collective Entity Documents! a) A custodian may not resist a subpoena for corporate records on 5th Amend grounds- Braswell! b) Since the agents act of production is an act of the entity and not the individual, the gov may make no evidentiary use of the individual act against the individual! 2. Scope of the Collective Entity Doctrine! a) one person corporation, where one individual is the sole shareholder, director, ofcer, and employee, falls within the collective entity doctrine and that the sole proprietor must comply with the subpoena- Amato v US! b) Former Employees! V. Searches! A. 4th Amendment Principals! 1. Good faith exception: a wide variety of docs were relevant to prove the scheme. Cases involving complex nancial fraud justify a more exible reading of the 4th amendment particularity requirement- US v Travers! a) Ofcers will not be expected to examine carefully each of the individual categories to determine whether a particular description might be over broad! 2. Exclusionary rule expression! a) whether gov had engaged in indiscriminate shing! b) evidence seized outside of the warrant! 3. Law ofce search! a) exclusionary rule applies to law rms, searches do not have to comply with ALI procedures- US v Mittelman! 4. Computers! a) A computer cannot be compared with a typical ling cabinet, as it likely will contain many more les, including some that can be repositories of innocent and deeply personal data- US v Adjani! VI. Role of Counsel ! A. Providing Client Information! 1. crime-fraud exception does not fall within the attorney client privilege- Impounded! B. Right to Counsel! 1. Prosecutors cannot create a DFA that removes corporate individuals right to counsel as a requirement of the DFA- Stein! C. McDade Act! 1. Federal Prosecutors are subject to the ethic rules in the jurisdiction in which they practice. ! VII. Sentencing ! A. Guidelines! 1. District courts use mitigating circumstances to lower sentence guidelines when appropriate- Parris! B. Reduce Sentence! 1. Responsibility, Cooperation, Compliance program, Self Reporting! C. Increase Sentence! 1. Special Skill, Sophisticated means, Taking advantage of duciary responsibility ! D. Licenses and Programs exclusion! 1. Punishment could be removal of licenses and exclusion of gov work! VIII.Corporate Criminal Liability! A. A corporations may be held criminally liable for the acts of its agents acting within the scope of their authority.- NY Central! B. Respondeat Superior v Model Penal Code! 1. Respondeat Superior theory of corp crim liability is used in the federal system! 2. Anyone in the corp has done a crim act for the benet of the corp! a) Corps are liable for Respondeat Superior when! (1) a purpose to benet the corp! (2) an act by an agent in line of their duties! 3. Model Penal Code is used in some states! a) Finding corp crim liability whether a high managerial agent in the corp has committed the offending act! C. Collective Knowledge! 1. a way that gov obtains mens rea for corp liability by collecting the knowledge of separate departments of a single corpBank of New England! D. Deferred Prosecution Agreements (DPA- Court like) & Non Prosecution Agreements (NPA- letter sent to corp)! 1. DPA/NPA Typically Includes! a) Agreement not to make statements! b) Agreement to not to commit further crimes! c) Agrees to investigations/checks for compliance! d) Admit to any criminal conduct that occurs immediately! e) If violation the gov can use all evidence it is suppressing in this DPA! 2. DPA/NPA Differences! a) DPA led in a court and is similar to plea agreement! b) NPA prosecutor agrees not to bring forth prosecution (never reaches court)! E. Dual Sovereignty! 1. When both state and federal charge an individual for the same crime (allowed via Dual Sovereignty)! 2. Petite Policy- Should not prosecute in fed if state has sufciently nalized the case! F. Extraterritoriality ! 1. Clearly extraterritorially statute (foreign corrupt practices)! 2. statute which authorizes gov to proceed in extraterritorially (false statements)! 3. Silent on extraterritorially! a) What was the intent of congress? ! b) Was it intended to be extraterritorial?! c) Nationality, victim, protective principle, objective extraterritorially (Nippon)