WHITE COLLAR CRIME PREP TREVOR GRANBERG

MIDTERM OUTLINE

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Table of Contents
ASSIGNMENT 1 ...................................................................................................................... 3
A. READING NOTES 1: INTRODUCTION ............................................................................................3
B. CASE BRIEFS FROM HANDOUTS ..................................................................................................7
C. STATUTES FROM HANDOUTS .................................................................................................... 11
D. CLASS 1 NOTES INTRODUCTION TO WC - 8/23/17 .................................................................. 15
WHERE DOES FEDERAL WHITE-COLLAR CRIME COME FROM? (QUESTION ON MIDTERM) .............. 15
ASSIGNMENT 2 .................................................................................................................... 17
A. READING NOTES 2:................................................................................................................... 17
B. CASE BRIEFS FROM HANDOUTS ................................................................................................ 20

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ASSIGNMENT 1

A. READING NOTES 1: INTRODUCTION

Why study White Collar Crime?

- Most estimates indicate that the dollar loss caused from white collar crime dwarfs the
monetary harms caused by all other types of offenses combined.
- Environmental crimes also threaten the physical well-being of individuals and the public
- Even how great the financial loss is, the danger to social relations is greater.

A. Definition: Selecting Statutes for Study in Substantive Portion of the Course

- What is White-Collar Crime?

o White collar prosecutions include false statements, false claims, mail and wire
fraud, conspiracy, racketeer influenced and corrupt organizations act (RICO) and
tax violations, securities fraud, tax and anti-trust offenses, environmental and
money laundering offenses, foreign corrupt practices act violations, perjury, many
types of obstruction, bribery and gratuity, offenses, and non-forcible extortion.
o Sociologist Sutherland Definition:
Wrong doing (whether or not technically a crime) committed by a person
of respectability and high social status in the course of his occupation
o Justice Departments Adapted Definition:
White-collar offenses shall constitute those classes of non-violent illegal
activities which principally involve traditional notions of deceit, deception,
concealment, manipulation, breach of trust, subterfuge or illegal
circumvention.
o Most white-collar crimes are committed for monetary gain.
- What White-Collar Crime Does NOT include:
o Organized crime or street crimes (includes drug, immigration, and gun
violations, forcible extortion, terrorism, murder, rape, burglary, robbery, and
commonplace thefts or penny ante frauds.
o White-collar crime is not considered as violent crime, however, crimes involving
environmental, food, drug and cosmetic act could threaten public safety and
health.

B. Recurring Themes in Examining Substantive Federal Law

1. Criminalization
- Question to always ask: should this be pursued criminally?
- 18 U.S.C. Sec. 3553:
o Court shall impose a sentence sufficient, but not greater than necessary...the
court in determining what sentence to impose should consider:
(2) need for sentence imposed-

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(A) to reflect seriousness of offense, to promote respect for the

law, and provide just punishment;
(B) to afford adequate deterrence to criminal conduct
(C) to protect public from further crimes from Defendant
(D) To provide Defendant with needed educational and vocational
training, medical care, or other correctional treatment in most
effective manner.

2. Overcriminalization; Federalization; Judicial Role; Prosecutorial Function

- There is no actual federal criminal Code
- U.S. Sentencing Guidelines should be considered in formulating criminal sentences, but
they would be advisory only.
o Booker v. U.S. held mandatory sentencing violated Defendants Jury Trial rights.
- The effect of overcriminalization is primarily to empower law enforcement officials.
- The code is redundantly repetitive, thereby increasing the power of prosecutors in
charging, plea-bargaining, and determining the actual scope of federal criminal law.
o The reason for redundancies can be traced largely to the political desire to react
to a given scandal
- Much of the code consists of vague, overbroad, or internally inconsistent laws.
o Mens Rea:
Congressional drafting has been deficient in specifying the mental element
necessary to support a conviction.
Part of the difficulty is because there are so many different meanings of
Mens Rea.
- The penal laws of the U.S. may be nominally public, but they are not accessible, do not
provide fair notice, and invite arbitrary or discriminatory enforcement.
- The above characteristics have fundamentally changed the traditional understanding of
the appropriate roles of judges and prosecutors.
o Judges:
Because of the lack of definition in some important federal statutes, courts
are engaging in lawmaking in determining that such statutes in fact apply
to various fact situations.
Example: there is no statute in the federal criminal code that
defines when corporations can be held liable for crimes.
If judges required congress to fix what is wrong with many statutes,
perhaps congress would be more willing to address the morass through
comprehensive code reform.
o Prosecutors:
Prosecutors exercise a very broad unreviewable discretion in selecting
cases and charges.
A fundamental concern with plea bargaining is that prosecutors have a
wide range of leverage. A prosecutor could offer a lenient plea offer, but if
rejected could threaten harsh charges with a longer sentence.

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Prosecutors use ad hoc personal judgments when charging crimes because

there is no objective rules for how prosecutors make their decisions.
- The final cost of code irrationality is loss of public respect for, and voluntary compliance
with, criminal norms
o the main goal of penal reform is to promote respect for the law by making law
respectable

C. Practice: selecting procedural topics relevant to White-Collar Crime

- White-collar crime will be a growth industry, even if white-collar criminal enforcement is

not a consistent priority
o These are not crimes that one need be wealthy, socially well placed particularly
skilled, r even highly educated to perpetrate.
- (1) Complexity, Scope, & Magnitude:
o crimes are bigger, can be committed across state lines and affect multiple people.
- (2) Investigation:
o the bulk of investigative work is done by agents and takes place outside the grand
jury.
- (3) Defense Counsel Role:
o Critical stages of a white-collar case from defense perspective are often the pre-
charge and, if the case goes forward, the sentencing phases.
o Defense counsel will often be hired when first subpoenas fly, or when an agent
appears asking for a few words with a witness.
o The battle in many white-collar cases is perceived as cost or won at the indictment
stage
o Defense counsel works to keep potential evidence ut of government reach by
controlling access to information.
o The earlier a deal is struck, the more advantageous it is likely to be from the
defenses perspective.
o The length or type of criminal sentence is often a cardinal factor in the bargaining
process, both sides must know how to use (or abuse) the federal sentencing
guidelines.
- (4) Organizational Presence
o Nearly all of our white-collar crimes involve some form of organizational
victimization.
o For defense counsel, the involvement of an organization, usually a corporation, in
the mix mean that representation issues are a virtual certainty.
o Deferred prosecution agreements (DPAs) or non-prosecution agreements = in
return for corporate cooperation in the investigation and prosecution of the
individual wrongdoers within an organization the government will, after a
probationary period, dismiss or forego criminal charges against the organization.
- (5) Parallel Proceedings

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o In many white-collar cases there may be a variety of governmental and private

actors seeking to hold the subject of an ongoing criminal investigation
accountable.
o A number of proceedings brought by state, local, or federal regulatory agencies,
shareholders, qui tam relators, or alleged victims may therefore proceed at
the same time as the federal criminal case, or before or after it.
o Possibility of parallel proceedings creates enormous challenges for the criminal
lawyer.
They create difficult strategic issues, particularly where the imperatives of
an effective criminal defense conflict with what may be the best strategy
in the collateral cases.
- (6) Multiple Actors
o assigning criminal responsibility to a single actor or even a discrete group of actors
may be difficult.
o Practitioners must wrestle with issues of causation, vicarious liability, and the
applicability of traditional requirements of criminal mens rea (an evil mind or
criminal intent) and actus reus (a culpable act).
- (7) Centrality of Mens Rea
o Many white-collar cases come down to one question: whether the defendant
possessed the requisite evil intent
o Intent can be proved directly for example, by a co-conspirators testimony that
defendant told witness he was attempting to evade his tax obligations.
- (8) Number and vagueness of statutory standards
o in a white-collar investigation, defense counsel is more often able to argue that
the uncontested facts do not constitute a crime.
- (9) Alternative Avenues of Redress
o White-collar crimes can be redressed by civil as well as criminal remedies. So it is
not always necessary to be charged criminally for the misconduct
- (10) Breadth of Prosecutorial Discretion

D. Professional Responsibility

- There are 94 US Attorney Offices, one in each of the federal judicial districts.
- Attorney General and DOJ are part of executive branch and supposed to be about partisan
politics

1. Prosecutorial Role
- (A) Federal Prosecutors Duty to Do Justice
o the Do Justice requirement is an integral part of the self-definition of most
federal prosecutors
o the minimum that the prosecutor needs before bringing a criminal case is
PROBABLE CAUSE.
- (B) Applicable Ethical Standards
o The McCade Amendment (42)

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2. Defense Challenges
- How far can a defense attorney go in efforts to keep facts from being revealed to
opponent?

B. CASE BRIEFS FROM HANDOUTS

Marbury v. Madison, 5 US 137 (1803)

- Facts:
o In the last days of President John Adams presidency, he nominated a number of
people to serve as justices of the peace for the District of Columbia. The Senate
confirmed the nominations, and the commissions were prepared. President
Adams Secretary of State, John Mashall, did not deliver all of the commissions
before President Thomas Jefferson took office. President Jefferson then ordered
his Secretary of State, James Madison, not to deliver the commissions. The
plaintiffs, men whose commissions were not delivered, sued Madison in the
Supreme Court and argued that, in refusing to deliver the commissions, the
Secretary of State was neglecting his Constitutional duty.
- Issues:
o (1) do the plaintiffs have a right to receive their commissions?
o (2) Can they sue for their commissions in court?
o (3) does the Supreme Court have the authority to order the delivery of their
commissions?
- Holding and Decision:
o Yes, yes, no. Chief Justice John Marshall delivered the unanimous opinion. (1) The
Supreme Court held that the Constitution grants the president the power to
appoint and commission officers of the United States. Because the only evidence
of the appointment is the commission, the two actions are tied together. Without
the commission, the appointment is not complete, and so the presidents
signature on the commission is the final step in the appointment process. (2) The
Court also held that, upon appointment, the officers have acquired rights to their
positions under the law. If those rights are denied, then they may seek redress in
the courts. (3) Marbury and others sought an original action for their commissions
in the Supreme Court. But the congressional act conferring that authority conflicts
with Article III Section 2 of the Constitution. The judicial power in the United States
extends to all cases under the Constitution and the Supreme Court is bound to
decide cases according to the Constitution rather than the law when the two
conflict. So if a law is found to be in conflict with the Constitution, then the law is
invalid. In this case, Section 13 of the Judiciary Act ran counter to the Constitution
and is therefore void. Thus, lacking authority, the Supreme Court canceled
Marbury's claim.

McCulloch v. Maryland, 17 US 316 (1819)

- Facts:

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o In 1816, Congress chartered The Second Bank of the United States. In 1818, the
state of Maryland passed legislation to impose taxes on the bank. James W.
McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the
tax.
- Issues:
o Did Congress have the authority to establish the bank?
o Did the Maryland law unconstitutionally interfere with congressional powers?
- Holding and Decision:
o In a unanimous decision, the Court held that Congress had the power to
incorporate the bank and that Maryland could not tax instruments of the national
government employed in the execution of constitutional powers. Writing for the
Court, Chief Justice Marshall noted that Congress possessed unenumerated
powers not explicitly outlined in the Constitution. Marshall also held that while
the states retained the power of taxation, "the Constitution and the laws made in
pursuance thereof are supreme. . .they control the Constitution and laws of the
respective states, and cannot be controlled by them.

Morissette v. U.S., 342 U.S. 246 (1952

- Facts:
o Defendant was a junk dealer who took old bomb casings that had been lying
unused at an Air Force practice bombing range and sold them for a profit.
Defendant was subsequently indicted and convicted of violating a statute that
made it a crime to knowingly convert government property but that made no
mention of intent.
- Issue:
o Did the court err in instructing the jury that the statute required a showing of
intent to take the property rather than a showing that Defendant had knowledge
of the fact that the property had not been abandoned by its owner?
- Holding and Decision:
o Yes. Judgment reversed. Defendant must be proven to have had knowledge of the
fact that the property had not been abandoned by the owner in order to establish
the requisite intent. The mere omission from the statute of any mention of intent
will not be construed as eliminating intent as one of the elements of the crime.
Intent is inherent in the class of offenses in which stealing and its equivalents are
included, regardless of whether a requirement of intent is expressed in a statute.
Larceny type offences are well rooted and defined in early common law and, the
congressional laws merely adopt these offenses into statutory law. Therefore
Congressional silence, with regard to mental elements in the Act, warrant a
different interpretation than congressional silence in creating new offences
where the courts only guidance is the statutory language. The Supreme Court
also distinguishes the limited class of public welfare offenses in which courts have
discontinued inquiry into intent from the case at bar.

Skilling v. US, 561 US 358 (2010)

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- Facts:
o A Texas federal district court convicted Jeffrey Skilling of conspiracy, securities
fraud, making false representations to auditors, and insider trading. Mr. Skilling
was the former C.E.O. of Enron Corp. On appeal, he argued that the government
prosecuted him under an invalid legal theory and that the jury was biased.
o The United States Court of Appeals for the Fifth Circuit affirmed the conviction,
but vacated Mr. Skilling's sentence and remanded the case for resentencing. The
court first held that the government's theory under the "Honest Services" fraud
statute was valid. It reasoned that it was immaterial whether Enron's board of
directors knew or even tacitly approved of Mr. Skilling's fraudulent conduct when
he withheld information that would lead a reasonable employer to change its
conduct. Moreover, the court held that while Mr. Skilling proved that there was
sufficient inflammatory and pervasive pretrial publicity to require a presumption
that prejudice tainted the jury, the government met its burden to show that jury
screening was adequate, and that the district court did not empanel any juror who
was unconstitutionally prejudiced.
- Issues:
o (1) Does the "Honest Services" fraud statute, 18 U.S.C. Section 1346, require the
government to prove that defendant's conduct was intended to achieve "private
gain", and, if not, is Section 1346 unconstitutionally vague?
o (2) When the presumption of jury prejudice arises because of widespread
community impact of the defendant's alleged conduct and widespread
inflammatory pretrial publicity, may the government rebut the presumption of
prejudice, and, if so, must the government prove beyond a reasonable doubt that
no juror was actually prejudiced?
- Holding and Decision:
o The Honest Services provision only entails bribes and kickbacks, therefore Mr.
Skillings alleged misconduct does not fall within its coverage.
o Not answered, Not answered. The Supreme Court held that pretrial publicity and
community prejudice did not prevent Mr. Skilling from obtaining a fair trial. He did
not establish that a presumption of juror prejudice arose or that actual bias
infected the jury that tried him. With Justice Ruth Bader Ginsburg writing for the
majority, the Court noted substantial differences between Mr. Skilling's case and
in those where a presumption of juror prejudice arose. Most notably, the Court
recognized that Mr. Skilling's trial took place in Houston, the fourth most populous
city in the United States, as opposed to a local hamlet where it would more
difficult to weed out biased jurors. The Court also recognized that the jury that
convicted Mr. Skilling acquitted him of nine other counts. The Court further held
that Section 1346, which proscribes fraudulent deprivations of "the intangible
right of honest services," is properly confined to cover only bribery and kickback
schemes. Here, Mr. Skilling's alleged misconduct entailed no bribe or kickback, and
thus did not fall within Section 1346's coverage.
o Justice Antonin Scalia, joined by Justices Clarence Thomas and Anthony M.
Kennedy, concurred in part and concurred in the judgment. He agreed with the

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Court's holding and reasoning as to Mr. Skilling's jury impartiality challenge. He

also agreed that the Fifth Circuit's decision with respect to the "honest services
fraud" claim warranted reversal, but on different grounds. He reasoned that
Section 1346 is impermissibly vague and therefore violates the constitution.
Justice Samuel A. Alito also concurred in part and concurred in the judgment. He
clarified that his understanding of the "impartial jury" requirement dictated by the
Sixth Amendment requires only that "no biased juror is actually seated at trial."
Justice Sonia Sotomayor, joined by Justices John Paul Stevens and Stephen G.
Breyer, concurred in part and dissented in part. She agreed with the Court's
resolution of the "honest services fraud" claim. However, she disagreed that Mr.
Skilling received a fair trial considering the hostility that emerged in Houston after
the collapse of Enron.

United States v. Comstock, 560 US 126 (2010)

- Facts:
o Convicted sex offenders moved to dismiss petitions requesting their indefinite
civil commitment under the Adam Walsh Child Protection and Safety Act. A
North Carolina federal district court dismissed the petitions. On appeal, the U.S.
Court of Appeals for the Fourth Circuit affirmed. It held that the Protection and
Safety Act exceeded the scope of Congress' authority when it enacted a law that
could confine a person solely because of "sexual dangerousness," and the
government need not even allege that this "dangerousness" violated any federal
law.
- Issue:
o Did Congress have the constitutional authority to enact the Adam Walsh
Protection and Safety Act?
- Holding and Decision:
o Yes. The Supreme Court held that the Necessary and Proper Clause grants
Congress authority sufficient to enact the Adam Walsh Protection and Safety Act.
With Justice Stephen G. Breyer writing for the majority, the Court pointed to five
considerations that compelled its holding. (1) the Necessary and Proper Clause
grants broad authority. (2) The Court recognized that Congress has long delivered
mental health care to federal prisoners. (3) Congress had good reason to pass the
statute as it has the power to protect nearby communities from the danger
prisoners may pose. (4) The Tenth Amendment does not reserve a zone of
authority to the states in this context. (5) The Court recognized that the statute
was narrow in scope and did not confer on Congress a general police power, which
is reserved to the states.
o Justice Anthony M. Kennedy wrote separately, concurring in the judgment. He
maintained that authority under the Necessary and Proper Clause is dependent
upon the "strength of the chain" from Congressional action and its enumerated
power, not on the number of "links in the chain." Justice Samuel A. Alito also wrote
separately, concurring in the judgment. He cautioned that the majority opinion

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should not be construed as granting an unlimited ability by Congress to extend its

power.
o Justice Clarence Thomas, joined in part by Justice Antonin G. Scalia, dissented.
Justice Thomas argued that the Necessary and Proper Clause empowers Congress
only to enact laws that carry into execution one or more enumerated powers.
Here, he argued that the Adam Walsh Protection and Safety Act did not carry into
execution an enumerated power.

US v. Costello, 666 F.3d 1040 (2012)

- Holding Summary:
o Defendant, a U.S. citizen, had a romantic relationship and lived with an illegal
alien, who was later arrested on drug charges. After being deported to Mexico, he
returned illegally and again lived with defendant. When he was again arrested on
drug charges, defendant was convicted under 8 U.S.C. 1324(a)(1)(A), (iii), as one
who knowingly or in reckless disregard of the fact that an alien was in the U.S. in
violation of law, concealed, harbored or shielded such alien. The statute also
covers attempts and transportation. The district judge sentenced her to two years'
probation and to pay a $200 fine. The Seventh Circuit reversed, distinguishing
between "harboring" and providing shelter, without concealing or shielding from
detection.

US v. Baylor (6th Cir. 2008)

- Facts:
o Following jury trial, defendant was convicted in the US District Court for the
Northern District of Ohio, of Hobbs act Robbery and using firearm in relation to
crime of violence. Defendant appealed.
- Holdings:
o (1) de minimis effect on interstate commerce was constitutionally sufficient to
satisfy jurisdictional requirement of Hobbs Act, and
o (2) evidence that robbed pizzeria received its ingredients from various states was
sufficient to satisfy requirement.

C. STATUTES FROM HANDOUTS

18 U.S.C. 3231 3244 Jurisdiction and Venue

- 3231. District Courts
o the district courts of the US shall have original jurisdiction, exclusive of the courts
of the States, of all offenses against the laws of the United States
o Nothing in this title shall be held to take away or impair the jurisdiction of the
courts of the several states under the laws thereof.
- 3232. District of offense (Rule)
o See Federal Rules of Criminal Procedure

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o Proceedings to be in district and division in which offense committed, Rule 18.

- 3233. Transfer within District (Rule)
o See Federal Rules of Criminal Procedure
o Arraignment, plea, trial, sentence in district of more than one division, Rule 19.
- 3234. Change of Venue to Another District (Rule)
o See Federal Rules of Criminal Procedure
o Pleas or disposal of case in district other than that in which defendant was
arrested, Rule 20.
- 3235. Venue in Capital Cases
o the trial of offenses punishable with death shall be had in the county where the
offense was committed, where that can be done without great inconvenience.
- 3236. Murder or Manslaughter
o in all cases of murder or manslaughter, the offense shall be deemed to have been
committed at the place where the injury was inflicted, or the poison administered
or other means employed which caused the death, without regard to the place
where the death occurs.
- 3237. Offenses begun in one district and completed in another
o (a)Except as otherwise expressly provided by enactment of Congress, any offense
against the United States begun in one district and completed in another, or
committed in more than one district, may be inquired of and prosecuted in any
district in which such offense was begun, continued, or completed.
o Any offense involving the use of the mails, transportation in interstate or foreign
commerce, or the importation of an object or person into the United States is a
continuing offense and, except as otherwise expressly provided by enactment of
Congress, may be inquired of and prosecuted in any district from, through, or into
which such commerce, mail matter, or imported object or person moves.
o (b)Notwithstanding subsection (a), where an offense is described in section 7203
of the Internal Revenue Code of 1986, or where venue for prosecution of an
offense described in section 7201 or 7206(1), (2), or (5) of such Code (whether or
not the offense is also described in another provision of law) is based solely on a
mailing to the Internal Revenue Service, and prosecution is begun in a judicial
district other than the judicial district in which the defendant resides, he may upon
motion filed in the district in which the prosecution is begun, elect to be tried in
the district in which he was residing at the time the alleged offense was
committed: Provided, That the motion is filed within twenty days after
arraignment of the defendant upon indictment or information.
- 3238. Offenses not committed in any district
o The trial of all offenses begun or committed upon the high seas, or elsewhere out
of the jurisdiction of any particular State or district, shall be in the district in which
the offender, or any one of two or more joint offenders, is arrested or is first
brought; but if such offender or offenders are not so arrested or brought into any
district, an indictment or information may be filed in the district of the last known
residence of the offender or of any one of two or more joint offenders, or if no

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such residence is known the indictment or information may be filed in the District
of Columbia.
- 3239. Optional venue for espionage and related offenses
o The trial for any offense involving a violation, begun or committed upon the high
seas or elsewhere out of the jurisdiction of any particular state or district, of-
(1) section 793, 794, 798, or section 1030(a)(1) of this title;
(2) section 601 of the National Security Act of 1947; or
(3) section 4(b) or 4(c) of the subversive activities Control Act of 1950
o May be in DC or in any other district authorized by law.
- 3240. Creation of new District or Division
o Whenever any new district or division is established, or any county or territory is
transferred from one district or division to another district or division,
prosecutions for offenses committed within such district, division, county, or
territory prior to such transfer, shall be commenced and proceeded with the same
as if such new district or division had not been created, or such county or territory
had not been transferred, unless the court, upon the application of the defendant,
shall order the case to be removed to the new district or division for trial.
- 3241. Jurisdiction of offenses under certain sections
o The District Court of the Virgin Islands shall have jurisdiction of offenses under the
laws of the US, not locally inapplicable, committed within the territorial
jurisdiction of such courts, and jurisdiction, concurrently with the district courts of
the US committed upon the high seas.
- 3242. Indians committing certain offenses; acts on reservations
o All Indians committing any offense listed in the first paragraph of and punishable
under Section 1153 of this tile shall be tried in the same courts and in the same
manner as are all other persons committing such offense within the exclusive
jurisdiction of the US.
- 3243. Jurisdiction of State of Kansas over offenses committed by or against Indians on
Indian Reservations.
o Jurisdiction is conferred on the State of Kansas over offenses committed by or
against Indians on Indian reservations, including trust or restricted allotments,
within the State of Kansas, to the same extent as its courts have jurisdiction over
offenses committed elsewhere within the State in accordance with the laws of the
State.
o This section shall not deprive the courts of the United States of jurisdiction over
offenses defined by the laws of the United States committed by or against Indians
on Indian reservations.
- 3244. Jurisdiction of proceedings relating to transferred offenders.
o When a treaty is in effect between the United States and a foreign country
providing for the transfer of convicted offenders
(1) the country in which the offender was convicted shall have exclusive
jurisdiction and competence over proceedings seeking to challenge,

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modify, or set aside convictions or sentences handed down by a court of

such country;
(2) all proceedings instituted by or on behalf of an offender transferred
from the United States to a foreign country seeking to challenge, modify,
or set aside the conviction or sentence upon which the transfer was based
shall be brought in the court which would have jurisdiction and
competence if the offender had not been transferred;
(3) all proceedings instituted by or on behalf of an offender transferred to
the United States pertaining to the manner of execution in the United
States of the sentence imposed by a foreign court shall be brought in the
United States district court for the district in which the offender is confined
or in which supervision is exercised and shall name the Attorney General
and the official having immediate custody or exercising immediate
supervision of the offender as respondents. The Attorney General shall
defend against such proceedings;
(4) all proceedings instituted by or on behalf of an offender seeking to
challenge the validity or legality of the offenders transfer from the United
States shall be brought in the United States district court of the district in
which the proceedings to determine the validity of the offenders consent
were held and shall name the Attorney General as respondent; and
(5) all proceedings instituted by or on behalf of an offender seeking to
challenge the validity or legality of the offenders transfer to the United
States shall be brought in the United States district court of the district in
which the offender is confined or of the district in which supervision is
exercised and shall name the Attorney General and the official having
immediate custody or exercising immediate supervision of the offender as
respondents. The Attorney General shall defend against such proceedings.

1 U.S. 1 Words denoting number, gender, and so forth

- in determining the meaning of any Act of Congress, unless the context indicates
otherwise-
o words importing the singular include and apply to several persons, parties, or
things;
o words importing the plural include the singular;
o words importing the masculine gender include the feminine as well;
o words used in the present tense include the future as the present;
o the words insane and insane person shall include every idiot, insane person,
and person non compos mentis;
o the words person and whoever include corporations, companies,
associations, firms, partnerships, societies, and joint stock companies, as well as
individuals;
o officer includes any person authorized by law to perform the duties of the office;
o signature or subscription includes a mark when the person making the same
intended it as such;

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o oath includes affirmation, and sworn includes affirmed;

o writing includes printing and typewriting and reproductions of visual symbols by
photographing, multigraphing, mimeographing, manifolding, or otherwise.

18 U.S.C. 18 Organization defined

- As used in this title, the term organization means a person other than an individual.

D. CLASS 1 NOTES INTRODUCTION TO WC - 8/23/17

WHATS WHITE-COLLAR CRIME?

- Generally nonviolent but could be through organized crime (could be violent)
- Explosion of the internet has made more white-collar crime; such as identity
fraud/internet fraud
- Supreme Court says one of the most serious problems involving law enforcement
today
o Is this true?
In certain ways b/c of the massive scale could defraud thousands of
people
Enron lost jobs and lost pensions
- INTENT:
o Turns on criminal intent with white-collar crime
o Example: proving that the state of mind was to defraud you when entering into a
contract
o Intent to commit a wrongful act
o Question is if what was done was a crime?
o Just because you are gullible, doesnt mean its not a crime for someone to take
your money
o Abuse of power; abuse of fiduciary duty
o Concealment; money laundering
Cover-up is always the thing that screws up the crime.

WHERE DOES FEDERAL WHITE-COLLAR CRIME COME FROM? (QUESTION ON MIDTERM)

- Comes from CONGRESS
- all statutory comes from legislature as a rule of law
o no common law crimes
o look to definitional statutes [in handouts folder]
- Many crimes are duplicative this can be bad!
o Prosecutors can charge the crime with the highest sentence
- What if they dont define a term?
o Judiciary has the ability to interpret these gaps.
Ex: mail fraud statute: didnt define what a scheme artifice to defraud
gave the courts the ability to define it as honest and faithful services.
Supreme Court says no never intended to include services...

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After this, congress passed statute to include honest and faithful services
This is where Skilling happened and limited it.

FEDERALISM VS. STATES RIGHTS

- Federal government does not have police power; the states have police power
- Congress does not have police power they have to work in the scope of the
constitution. In order to make a federal crime.
o Art. 1 Sec. 8 authority to spend money, make money
o Commerce Clause
- State crimes has to be in the boundaries through the state.
- Many cases from federal level will be fought trying to prove it was in federal jurisdiction
- Necessary and proper clause gives congress authority to make these laws
- Big Problem where there is overlapping (concurrent) jurisdiction.

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ASSIGNMENT 2

A. READING NOTES 2:
A. PROSECUTORIAL DISCRETION, CHARGING DECISIONS, POLICIES, PROMISES, &
VINDICITIVENESS

DEPARTMENT OF JUSTICE CHARGING POLICIES

- Legislation entitled Attorney Client Privilege Protection Act was introduced that would
bar federal prosecutors from asking organizations to disclose info protected by the
attorney-client privilege or the work product doctrine as a condition for cooperation
credit or declination of criminal charges
- Principles of Federal Prosecution of Business Organizations
o By indicting a corporation for criminal conduct, corporations are likely to take
immediate remedial steps when one is indicted for criminal misconduct that is
pervasive throughout a particular industry, thus an indictment can act as
deterrence on a broad scale.
o Nonprosecution and deferred prosecution agreements may be appropriate as
well.
o Civil and regulatory alternatives may be better than indicting
o Under RESPONDEAT SUPERIOR, a corporation can be liable through the illegal
acts of the directors, officers, employees, and agents
TEST: Corporations agents actions were:
(1) within the scope of his duties and
(2) were intended, at least in part to benefit the corporation.
o Corporations need not even necessarily benefit from its agents actions for it to
be held liable.
o 9-28.300. Factors to be Considered
the prosecutor must weigh all of the factors normally considered in
prosecutorial judgment: the sufficiency of the evidence; the likelihood of
success at trial; the probable deterrent, rehabilitative, and other
consequences of conviction; and the adequacy of noncriminal approaches.
Prosecutor has wide latitude to determine who, when how, and whether
to prosecute at all.
o 9-28.400. Special Policy Concerns
prosecutors must be aware of the specific policy goals and incentive
programs established by the respective divisions and regulatory agencies.
o 9-28.500. Pervasiveness of Wrongdoing Within the Corporation
Although acts of low-level employees may result in criminal liability, a
corporation is directed by its management and management is responsible
for a corporations culture in which criminal conduct is either discouraged
or tacitly encouraged....
o Rest of act starts at page 187 in book...

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CHARGING CONSIDERATIONS: DOUBLE JEOPARDY

- One important constrain on prosecutorial charging choices is the double jeopardy clause
of the Fifth Amendment, which provides that no person shall be subject for the same
offense to be twice put in Jeopardy of life or limb

1. Multiple Punishments for the Same Offense

United States v. Woodward, 469 US 105 (1985) (p. 320)

- Facts:
o Woodward was carrying over 20,000 dollars in cash coming from Brazil to LAX and
lied about it.
o Was indicted for making a false statement to an agency of US and willfully failing
to report he was carrying over 5k
o Was convicted on both charges 6 months for false statements and 3 years of
probation on currency reporting court.
- Holding:
o Court of Appeals misapplied Blackburger because proof of currency reporting
violation does not necessarily include proof of a statement offense.
A person could without employing a trick, scheme, or device, simply and
willfully fail to file a currency disclosure report.
Congresss intent to allow punishment under both statutes is shown by the
fact that the statutes are directed to separate evils

Multiplicity
- A multiplicitous indictment...is one that charges in separate counts two or more crimes,
when in fact, and law, only one crime has been committed.
- Assures that the court doesnt exceed its legislating authorization by imposing multiple
punishments for the same offense.

Duplicity
- an indictment is duplicitous if it joins two or more distinct crimes in a single count
- a duplicity objection should be raised pre-trial or it may be deemed waived.

2. Successive prosecutions for the same offense

- Double Jeopardy Clause prevents prosecution from making repeated attempts to convict
a person for an offense thereby subjecting him to embarrassment, expense and
compelling him to live in a state of anxiety.

3. Dual Sovereignty
- Federal authorities may criminally punish a Defendant for conduct that was previously
prosecuted by state authorities (vise-versa) whether or not the first case ended in
conviction or acquittal.

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INFORMAL IMMUNITY AGREEMENTS

- Not statutory immunity grant but contractual in nature, their terms are subject to
negotiation.

1. DOJ Policy
- U.S.A.M. 9-27.600. Entering into non-prosecution agreements in return for
cooperation Generally
o Only when the persons timely cooperation cannot be obtained by other means,
or cannot be obtained effectively, should the attorney for the government
consider entering into a non-prosecution agreement.
- U.S.A.M. 9-27.620. Entering into non-prosecution agreements in return for
cooperation considerations to be weighed.
o Should consider whether the cooperation will be forthcoming, whether the
testimony will be credible, whether someone else could provide the info without
not prosecuting.

PLEA BARGAINING: CONSTITUTIONAL STANDARDS

Brady v. US (1970) (p. 981)

- Facts:
o Petitioner was charged with kidnapping and would be sentenced if jury brought
back that verdict.
o Petitioner first elected to plead not guilty
o Trial judge was unwilling to try case without jury
o Later, petitioner learned that the co-defendant confessed and changed his plea to
guilty.
o Petitioner was sentenced 50 years later reduced to 30.
o Later petitioner sought relief under 28 U.S.C. 2255 saying that his plea was not
voluntary b/c 1201(a) operated to coerce his plea.
- Analysis:
o Waivers of constitutional rights must be voluntary, knowing, intelligent
o The statute caused the plea in this sense does not necessarily prove that the plea
was coerced and invalid as an involuntary act
o Cannot hold that it is unconstitutional for the state to extend a benefit to a
Defendant who in turn extends a substantial benefit that demonstrates that he is
ready and willing to admit his crime and to enter the correctional system that
hopes to rehabilitate.
- Notes:
o Brady court states that it would have serious doubts if the encouragement of
pleading guilty for a lenient sentence substantially encouraged the likelihood of
Defendants condemning themselves
o If no plea bargaining then the justice system would be overrun with trial cases.

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Bordenkircher v. Hayes (1978) (p. 989)

- Issue:
o Whether the Due Process Clause of the 14th Amendment is violated when a state
prosecutor carries out a threat to re-indict the accused on more serious charges if
he does not plead guilty to the offense that was originally charged.
- Facts:
o Plead not guilty to a highered crime with a sentence of life b/c of his two prior
felonies; he was found guilty.
- Analysis:
o This case is no different than a grand jury indicting Hayes as a recidivist from the
outset and the prosecutor had offered to drop that charge as part of a plea
bargain.
- Holding:
o No violation.

Ricketts v. Adamson (1987) (p. 994)

- Adamson agreed to plead guilty for second degree murder and testify against his
accomplices.
- Upon reversal of those convictions Adamson refused to testify against because his
obligation had terminated
- Adamson was then charged for first degree murder and convicted and sentenced to death
- The respondents breach of the plea arrangement removed the double jeopardy bar to
prosecution of respondent on the first-degree murder charge.

B. CASE BRIEFS FROM HANDOUTS

Haywood v. Drown, 556 U.S. 729 (2009)

- Facts:
o Keith Haywood, while incarcerated at the Attica Correctional Facility in Attica,
New York, was charged with several misbehavior reports in 2003 and 2004,
including assaulting a corrections officer, failing a urinalysis test, and improperly
soliciting mail. After being found guilty of these charges, Haywood commenced
actions in state court against two of the corrections officers responsible for
reviewing the claims under 42 U.S.C. 1983 (Section 1983), a federal statute
protecting civil rights. He asserted that the guilty verdicts had been handed down
without sufficient evidence, that the officers had tampered with the urinalysis
test, and that they had conspired to fabricate the facts set forth in the misbehavior
reports. The defendants moved to dismiss Haywood's claims, basing their
argument on a New York law prohibiting civil claims such as Haywood's brought
against corrections officers in their official capacities. Haywood responded by
arguing that when Congress created Section 1983 it intended the statute to
supersede any state laws contradicting it. Because Section 1983 allowed these
claims, Haywood argued, the New York law prohibiting them violated the
Supremacy Clause of the U.S. Constitution. The Supreme Court of New York (the

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state's lowest-level court) agreed with the defendants and dismissed Haywood's
claim based on the New York law.
o The Court of Appeals of New York affirmed the Supreme Court's decision, finding
that the Supremacy Clause permits states to deny enforcement of a federal right
in a case where a state court lacks jurisdiction due to a neutral state rule regarding
the courts' administration. Because Haywood's claim would be barred if brought
under either Section 1983 or an applicable state law, the New York law barring the
claim was valid and neutral and did not violate the Supremacy Clause.
- Issue:
o Does a state law barring civil claims against corrections officers violate the
Supremacy Clause of the US Constitution when it prohibits an inmate from
bringing a claim for a violation of his civil rights under 42 U.S.C. 1983?
- Holding and Decision:
o Yes. The Supreme Court held that New York's Correction Law Section 24,
prohibiting civil claims brought against corrections officers in their official
capacities, as applied in Mr. Haywood's case, violated the Supremacy Clause and
thus was unconstitutional. With Justice John Paul Stevens writing for the majority
and joined by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg,
and Stephen G. Breyer, the Court noted that New York had passed Section 24 after
determining most damages suits filed by prisoners against state corrections
officers were frivolous. However, the Court reasoned that states may not relieve
whole categories of federal claims from their courts merely to avoid congestion.
o Justice Clarence Thomas dissented and was joined in part by Chief Justice John G.
Roberts, and Justices Antonin G. Scalia, and Samuel A. Alito. He argued that
neither the Constitution nor Supreme Court precedent requires that states open
their courts to Section 1983 claims. Thus, New York's law was not unconstitutional.

Sprietsma v. Mercury Marine, a Div. of Brunswick Corp.,

- 312 Ill.App.3d 1040 (2000)
o Held the Act preempted
- 537 US 51 (2002)
o Facts:
Rex Sprietsma's wife was killed in a boating accident when she was struck
by the propeller of a motor made by Mercury Marine. Sprietsma sued
Mercury Marine under Illinois common law, alleging that his wife's injuries
were caused by an unreasonably dangerous motor. The trial court, the
intermediate court, and the Illinois Supreme Court all dismissed the
complaint, finding the Federal Boat Safety Act of 1971 (FBSA) preempted
such state common-law claims.
o Issue:
Does the Federal Boat Safety Act of 1971 preempt state common-law
claims related to propeller safety?
o Holding and Decision:

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No. In an opinion delivered by Justice John Paul Stevens, the Court

held 8-0 that neither the text nor the intent of the FBSA preempts
Sprietsma's common law claims, either explicitly or implicitly.
Justice Stevens wrote, "Absent a contrary decision by the Coast
Guard" - the agency in charge of propeller-safety regulations - "the
concern with uniformity does not justify the displacement of state
common-law remedies that compensate accident victims..."

McKim v. S.I. Hosp. Services

- Case Summary:
o McKim v. Southern Illinois Hospital Services, 2016 IL App (5th) 140405 The fifth
district reversed the trial courts ruling and held that Medicare, Medicare Part D
and Medicaid should not be included in the 40 percent limit imposed by the
Health Care Services Lien Act (the Act) because the Act was preempted by the
Medicare Secondary Payer Act and conflicted with the Public Aid Code. Besides
preemption by federal statutes and regulations, the court also noted that the Act
prohibits the total amount of medical liens from any health care professional and
health care provider from exceeding 40 percent of the total settlement or verdict
amount. Medicare and Medicaid are public agencies that do not provide medical
care, but instead, reimburse health care professionals and providers. Thus, given
the plain language of the Act, the court held that Medicare and Medicaid are not
health care providers or professionals within the meaning of the Act.

C. STATUTES FROM HANDOUTS

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