White Collar Crime Outline – Don’t have lulling rule
I. Introduction
a. Rule of Lenity
i. “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity
II. Mail/Wire Fraud
a. Statutory Definition (both)
i. Mail Fraud
1. 18 USC 1341
a. Whoever having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations or promises
ii. Wire Fraud
1. Virtually identical statutory, but wire fraud requires transmission by wire interstate
b. Elements
i. Elements of Mail Fraud
1. The defendant devised (or participated in) a scheme to defraud or for obtaining money or property
a. Scheme to defraud
b. What is “Scheme to defraud”
i. A plan
ii. An object
1. to deprive someone of money or property or “honest services”
2. The scheme employed false pretenses, representation or promises
a. A prohibited means
i. false or fraudulent pretenses, representations or promises
3. The false pretenses, representations or promises were “Material”
4. The defendant acted with an intent to defraud
a. A culpable mental state
i. “intent to defraud”
5. The defendant used the postal service or a private interstate carrier
c. Intent to defraud
i. Intent was to defraud
1. “intent to defraud” means intent to injure or merely an intent to induce negotiations
2. It appears that the injury must be pecuniary (at least in cases that don’t involve “honest services”.
3. Falsehood must be one that goes to the nature of the proposed bargain
4. Some courts take a different view:
a. They say the intent to defraud might be an intent to induce action on the part of the victim
ii. Regent
d. False pretenses, representation or promises
i. False pretenses, Representations or promises were:
1. Material
a. Even though no reference to materiality explicitly in 1341 court says materiality an issue in mail fraud.
b. Court derives materiality from requirement of common law civil fraud
c. For purposes of 1341 and 1342 false pretenses and misrepresentations must be material
2. Omissions
a. Sometimes omissions can be considered to be a misrepresentation
i. sometimes if omission is material
ii. sometimes fiduciary omissions are misrepresentation
1. i.e., public officials
e. Depriv
law.
e. Standard or what’s owed
i. Legal obligation
ii. Deprived of honest services which they were owed
f. Federalism Concern
i. Concern is that we should be leaving it for the state
ii. Counter argument that the federal government should be involved that if there is corruption at the state level or in state or local entities it may be structurally difficult for state to clean themselves up and so might be better to have outside (federal) come in and clean it up.
iii. Also the anti big brother view that this isn’t federal business and leave the state’s to take care of their own problems.
g. Dissent in Brumley
i. If they would have won then they would have sent it back to Congress and told them to make it more definite otherwise there isn’t going to be honest services prosecution in mail/wire fraud cases
h. 1346 has reinstituted “Honest Services”
i. “Honest Services” Fraud Case ***NOW***
Has to involve 3 things
