WHITE COLLAR CRIME WINTER 2011
I. FEDERAL CRIMINAL LAW PRINCIPLES
A. INTRODUCTION TO WHITE COLLAR CRIME (1-22; 29-38)
· Background for WCC:
§ Fiduciary duty
§ Agency relationship
§ Capacity to act
o Criminal Procedure:
§ 5th Amendment privilege and immunity
§ Warrant requirements (classic 4th Amendment Miranda and search exceptions are largely irrelevant aside from plain view)
§ Right to counsel
o Professional Responsibility:
§ Attorney-client privilege and work product doctrine
§ Assisting client misconduct
§ Candor to the tribunal
§ Prosecutorial misconduct
§ Coconspirator statements
§ Party admissions
§ Business records
· What is a “White Collar” Crime?
o “White collar crimes are illegal acts that use deceit and concealment-rather than the application or threat of physical force or violence-to obtain money, property, or service[s]; to avoid the payment or loss of money; or to secure a business or personal advantage.”
· The Federal Role
o United States v. Morrison:
§ “The Constitution requires a distinction between what is truly national and what is truly local.” (15)
o Principles of Federal Prosecution (supp. 329):
§ Federal law enforcement priorities
§ Nature and seriousness of the offense
§ Deterrent effect of prosection
§ Person’s culpability
§ Criminal history
§ Willingness to cooperate
§ Probable sentence or other collateral consequences
§ “It is important that limited Federal resources not be wasted in prosecuting inconsequential cases or cases in which the violation is only technical.” (supp. 330)
· How Far Can Congress Go?
o United States v. Castle:
§ Payment of bribes to Canadian officials to obtain contracts to furnish buses. Charged with conspiracy.
§ Foreign Corrupt Practices Act:
· Companies and individuals who pay bribes to foreign officials can be prosecuted in the United States if the payment is made to “assist in obtaining… or retaining business” in the country.
§ Could Congress Reach These Officials?
· The House report on the FCPA “does not refute the overwhelming evidence of a Congressional intent to exempt foreign officials from prosecution for receiving bribes, especially since Congress knew it had the power to reach foreign officials in many cases, and yet declines to exercise that power.” (31)
o Is Every Foreign Bribe a Crime?
§ Business Nexus:
· Payments made to “assist…in obtaining or retaining business”
o What does “retaining business” mean?
§ U.S. v. Kay:
· Payments to Haitian customs officials to reduce taxes owed on imported rice.
· “Congress sought to prohibit the type of bribery that:
o (1) prompts officials to misuse their discretionary authority and
o (2) disrupts market efficiency and United States foreign relations, at the same time recognizing that smaller payments intended to expedite ministerial actions should remain outside the scope of the statute.” (35)
· Role of The Defense Lawyer
o Unlike street crimes, a white collar defense lawyer will usually arrive before charges
vidence, for instance individual documents in complex filing system. And witnesses are not readily exposed because the location of the occurrence of the crime in not apparent, as in a bankruptcy of a multistate company
· (1) can the statute’s intent be raised to make proof of the crime more difficult
o Criminal Intent:
§ Common Law:
· Specific Intent: need circumstantial evidence proving that must have known was committing crime, i.e. docs, correspondence, etc.
· Malice Aforethought
· General Intent: intended to engage in the conduct resulting in a crime
· Purposely: specific intent, need circumstantial evidence
· Knowingly-specific intent, need circumstantial evidence
· Recklessly-general intent, just that they did the act
· Negligently-general intent, just that they did the act
· Any proof of a mistake/accident helps D negate criminal intent
o No Specific Intent (Purpose/Know) if any mistake
o No General Intent (Reck/Neg) if reasonable mistake
o Does NOT matter if a Strict Liability Crime
§ Ratzlaf v. United States:
· D owes $$ to a casino and they want to be under the radar, so casino aids D in structuring payments in