· Hennings Rules of WCC
o #1: Always get the money up front!
o #2: If it can go criminal, it will!
o *Don’t recite fact pattern/rules
§ Instead: e.g., “The gov’t will argue it is within the GJ power because …”
§ Exception: In Re GJ cases – just use the rule
o Questions are targeted, they ask a specific thing
§ *Be careful with this, don’t get creative in the focus of your answer
o Statutes that we haven’t covered – Statutory Interpretation: Always start with intent level
o Think about how the problems can be resolved based on the cases, and what gray areas exis. View the problems from both the PA’s and the Df’s perspectives.
o *Give practical answers, not extended policy discussions. “Think Concretely.”
· Background Information
o Some definitions have included an organizational or business requirement component.
o Other definitions have focused more on the type of crime involved.
o Legal arena has focused on type of crime involved.
o Corporate crime predates white-collar crime.
o General Definition of a WCC
§ Non-violent crimes for financial or personal gain, typically committed by means of deception in the course and under color of legitimate economic activity.
o DoJ priorities tend to change as public sentiment changes.
o What should be the limit of fed govt prosecution and what should be the province of the states.
o Most WCC is constitutionally based in
§ Commerce clause / Postal powers / Tax powers
o Prosecutorial Discretion
§ Prosecutors have to decide who to prosecute and which offenses are prosecuted.
§ Have great discretion as long as there has not been discrimination.
§ Who should prosecute when there are both federal and state offenses.
· No constitutional problem with both sovereigns (dual sovereignty rule) prosecuting same offense.
o Resources /Experience
· Federal government uses a rule called the Petite Policy
o If the state prosecutes, then the fed does not prosecute.
o Some excpts, particularly civ rights cases or local corruption cases.
o This is just a guideline, it is not a requirement
· All WCC must be based on a federal statute
· 2 things to focus on
· (1) What is the intent level – can it be raised/lowered
o What is the object of that intent
§ For Δ: (1) Can the statute’s intent be raised to make proof of the crime more difficult?
· More grounds to defend client
· Government wants lowest level
o Always specific intent but specific intent to do what?
· Δ wants it more narrow, govt wants it broader
· (2) Can the actus reus (defining what constitutes the crime) be narrowed so conduct is outside scope
o Δ wants narrowing so that the conduct falls outside the scope of the statute?
o Government wants encompassing of broader array
· Have to look at Statutory Language to determine what intent govt has to prove
· Anti-structuring case
· SC interpreted WILLFULLY to require govt to prove that Δ engaged in a voluntary intentional violation of a known legal duty
o Also requirement for tax evasion under Cheek
o “willfully” requires proof that the Δ “knew the structuring in which he engaged was unlawful” because “currency structuring is not inevitably nefarious.”
o HIGHEST intent possible
§ Δ not only intended actions but also knew they were in violation of the law and intended to violate the law
o Willfully for defense (want interpreted at high level), cite Ratzlaf and Cheek so Δ can offer defense of mistake or lack of knowledge or simply lack of intent
· “willfully” requires proof of a “voluntary, intentional violation of a known legal duty,” the highest standard of proof of intent that is due to the complexity of the tax laws.
o Δ had sufficient knowledge of the conduct and underlying conduct invo
· Government has to establish a quid pro quo….an EXPLICIT promise…not campaign contribution in normal sense of the term
· “The receipt of [campaign] contributions is also vulnerable under the Act as having been taken under color of official right, but only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.”
· Issue: does this quid pro quo requirement apply to all Hobbs Act under color of official right prosecutions?
o Quid pro quo must be shown but how much evidence is the next question
o Government must have strong evidence
· Public official need not induce the bribe…the payment in exchange for something is enough for extortion…even if payor approaches the official
· “We hold today that the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.”
· § 201 (federal officers) & Sun Diamond (must have a specific act) for gratuities:
· Covers offeror and public official
o Can get offeror and offeree
· Gratuity is a gift (no quid pro quo) for or b/c of any official act
· “[T]he government must prove a link between a thing of value conferred upon a public official and a specific ‘official act’ for or because of which it was given.”
· Gratuity can be a reward and does not have to occur before the act
· After the fact payments cannot be bribes…before the fact you could establish a bribe and then the lesser included offense of an unlawful gratuity