August 24, 2015 GENERAL PRINCIPLES OF WCC & FEDERAL ROLE
RICO is an important statute for use to know. It can also be used in the civil sphere.
Perjury, obstruction of justice, false statements, and false declarations (the Cover-up offenses)
White Collar Crime as a term originated in 1939 by a Sociologist.
Petite Policy dual sovereignty rule, two jurisdictions prosecuting crime
When looking at Prosecutorial Discretion
1. Is it something covered by federal statute?
2. Is it something the state should prosecute?
3. Should this be civil or criminal?
Rule of lenity means when there is more than one possible interpretation of a statute then it should be interpreted to benefit the defendant.
U.S. v. Castle
18 U.S.C. § 371 General Conspiracy Statute is divided into two parts:
1. conspiracy of specific offense
2. conspiracy to defraud
This case deals with conspiracy of specific offense. The offense here is a violation of the FCPA.
U.S. v Kay
U.S. v Nippon Paper Industries
Empty Chair doctrine is blaming who isn’t there
Objective territoriality means that it isn’t occurring here, but it has a substantial effect here.
How do we decide if something applies extraterritorially?
1. Statute focused on conduct outside the U.S.
2. Specific provision that indicates such
3. Intent of Congress (legislative intent)
Harvard Principles of Extraterritoriality
1. Territorial, wherein jurisdiction is based on where the offense is committed
2. Protective, wherein jurisdiction is based on whether the national interest is injured
3. Nationality, wherein jurisdiction is based on the nationality or national character of the offender
4. Passive Personality, wherein jurisdiction is based on the nationality or national character of the victim
5. Universality, which amounts to physical custody of the offender
Pasquantino v. U.S.
The takeaway is that it makes a big deal what the prosecutor charges with. Prosecutors have discretion, but because they pick and choose means we lose some consistency in what crimes are charged.
August 31, 2015 CORPORATE CRIMINAL LIABILTY
Review of last class
If we have limited resources to prosecuting white collar crime, what should be our priorities?
In studying White Collar Crime, we focus on the federal role in local activity
Dual sovereignty rule
DOJ-Petite Policy
International prosecutions – Foreign Corrupt Practices Act (FCPA)
3 Levels of Extraterritorial Jurisdiction
1. Statute focused on extraterritorial conduct
2. Specific provisions within a statute
3. Judicial interpretation (this one gets a little sticky, it can cause some problems, see Nippon case)
Key questions are: What did congress intend?
Harvard International Principles for Extraterritoriality
1. Territoriality
2. Nationality
3. Passive personality
4. Protective
5. Universality
Current Class
Corporate Criminal Liability
New York Central & Hudson River RR Company v. U.S.
Can a corporation be criminally responsible by imputation of one of its agents
nefit, than there is no intent.
Simple function test –
U.S. v. Hilton Hotels Corp.
Violation of the Sherman Antitrust act in this case was a strict liability crime
U.S. v. Bank of New England
Currency Transaction Reporting Act and Bank Secrecy Act
Structuring
The financial institution had to act willfully (intent)
Willful blindness (ostrich defense) means you can still be held liable
They find that willful blindness here through collective knowledge (really only one person need know) within the entity/corporation. This collective knowledge places an added responsibility on corporations.
Rule – A corporation is considered to have acquired the collective knowledge of its employees and is held responsible for their failure to act accordingly.
The Corporation’s knowledge is the sum of all the knowledge of its employees.
On appeal, we look at the evidence in the light most favorable to the prosecution. Why?
4 Government Responses to Corporate Misconduct [1-3 are most common]
1. Non-prosecution agreement (NPA) means no charges filed
2. Deferred prosecution agreement (DPA)
3. Charged – enter a guilty plea
4. Trial
Companies cannot risk going to trial.
Corporations must have compliance programs in place.
