Green WhiteCollarCrime Fall 2015

7/24/2019 Green WhiteCollarCrime Fall 2015

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Professor Green

White Collar Crime

Fall 2015

White Collar Crime - Green Fall 2015

Basic Principles

Class #1: What is White Collar Crime and Who Commits It?

I. Defining White Collar CrimeA. Its a class term white collarB. Sutherland: White Collar Criminality. Crime isnt !ust "etty crime on the street. #heres a whole area that can $e studied.

Criminologists focused too narrowly on crime in the streets% and they should also $e loo&ing at

crime in the suites.'. #he financial cost of white collar crimea( Se)eral times a great of all the crimes regarded as the crime "ro$lem.*. Sutherland is saying that its not !ust that "eo"le who are of higher economic standing are

committing crimes. #he $eha)ior that they are engaging in is not treated as a crime.C. +reen: #he Conce"t of White Collar Crime in ,aw and ,egal #heory. Criminal law is the "roduct of our class system. -eo"le who wor& in $ig cor"orations and

"owerful institutions are going to $e treated more leniently. In the cases where they get caught%

theyll ha)e the $est lawyers to re"resent them and then theyll go to highsecurity "risons. #he

whole system is rigged who are "art of the higher social economic standing.'. #he most interesting thing a$out white collar crime is that theres a certain moral am$iguity in

white collar crime. #he line $etween criminal $eha)ior and merely aggressi)e $usiness $eha)ior

is )ery fine. #he same &inds of $eha)ior that we reward /aggressi)e $usiness "ractices% "eo"le

who are sa))y in)estors% wall street titans(% ma&e a fine line $etween what is legal and whats not

legal.*. #here is a difficulty in identifying the )ictim and the harm0. #here is a difficulty in identifying the "er"etrator1. #he "ro$lem of codifying white collar crimea( -utting all the federal crimes in a single codified $ody of law. 2e)er enacted% and no interest in

trying to do it.Class #2: Corporate Criminal ia!ilit"

I. Why ha)e Cor"orate Criminal ,ia$ility3A. Cor"orations can $e so com"le4 in their structure that identifying let alone "ro)ing the mens rea

of the agents res"onsi$le for its unlawful conduct may $e wellnigh im"ossi$le. By ma&ing the


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entity itself criminally lia$le% each le)el of the cor"orate hierarchy is deterred from $eing

willfully $lind to the unlawful $ut $eneficial acts of those for whom they are res"onsi$le.

Cor"orate Criminal ,ia$ility

II. 2ew 5or& Central 6 7udson 8i)er 8ailroad ). 9nited StatesA. +eneral 8ule. A cor"oration can $e held criminally lia$le for the acts of an agent within the sco"e of

em"loyment.'. Cor"orations may $e held criminally lia$le for the unlawful conduct of their agents acting within

the sco"e of their designated authority.New York Central & Hudson River Railroad. If the

unlawful conduct is donefor the cor"oration /to wit% for its $enefit(% then criminal lia$ility

should attach no different than tort lia$ility would /"ro)ided that "ositi)e law so "rescri$es that

lia$ility(.B. acts. #he Defendant cor"oration% 2ew 5or& Central 6 7udson 8i)er 8ailroad Co. /Defendant(%

together with a managing agent within the cor"oration% were con)icted of )iolating a federal law

"rohi$iting the "ayment of re$ates. S"ecifically% the cor"oration was "rosecuted for the "ayment

of re$ates to the American Sugar 8efining Com"any arising out of shi"ments of sugar from 2ew

5or& to Detroit. #he Defendant was "rosecuted under the ;l&ins Act% *' Stat.


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A. -ages ' 1 of the $oo& list factors that are considered when wanting to federally "rosecute a

$usiness /general considerations% "er)asi)eness of wrongdoing% cor"orations "ast history% etc.(.

#he 8es"ondeat Su"erior 8ule

I. Criminal Acts

A. A considera$le $ody of case law allows im"osition of cor"orate lia$ility for criminal acts"erformed $y officers and agents in the course of their em"loyment% without regard to their status

in the cor"orate hierarchy.B. #he only general limitation on cor"orate lia$ility under the res"ondeat su"erior rule is that the

agent who commits the crime must $e acting within the sco"e of his or her authority and on

$ehalf of the cor"oration.C. 8es"ondeat su"erior lia$ility is not limited to when the unlawful conduct of an organiation is

done $y its managerial agentsit a""lies !ust the same for nonmanagerial agents% so long as

they are acting within the sco"e of their designated authority.Beneficial Finance. #his is !ust

criminal respondeat superior lia$ility.

. Commonwealth ). Beneficial inance Co.A. acts. Beneficial inance Com"any /Beneficial( /defendant(% and se)eral other cor"orations% were

con)icted of $ri$ing% and cons"iring to $ri$e% state $an&ing officials with the intent of o$taining

fa)ora$le treatment from the states Small ,oans 8egulatory Board. Beneficials con)iction was

$ased on the actions of em"loyees who were neither officers nor directors of the cor"oration.

ne of the em"loyees% arrell% was an officer and director of a whollyowned su$sidiary of

Beneficial. Another em"loyee% +lynn% re"orted to arrell $ut was "aid $y a se"arate wholly

owned Beneficial su$sidiary. Beneficial a""ealed the con)iction% arguing that the court a""lied

an im"ro"er standard for determining the criminal res"onsi$ility of a cor"oration. Cor"oration

argues that a cor"oration should not $e held criminally lia$le for the conduct of its ser)ants or

agents unless such conduct was "erformed% authoried% ratified% ado"ted or tolerated $y the

cor"orations directors% officers or other high managerial agents. EDefendant wants ?-C F

'.G= standardH'. Who is a high ?anagerial Agent: 7a)ing a title is not enough . . . must "ro)e that the indi)idual

was "laced in a "osition $y the cor"oration where he had enough "ower% duty% res"onsi$ility and

authority to act for and in $ehalf of the cor"oration to handle the "articular $usiness.B. Issue. Is a cor"oration criminally lia$le for the unlawful actions of its em"loyees acting within the

sco"e of authority delegated to them $y the cor"oration3

C. 7olding. 5es.D. 8easoning. Where a cor"oration has "laced an em"loyee in a "osition where he has authority to act for the

cor"oration in the "articular cor"orate $usiness that is the su$!ect of criminal "rosecution% the

cor"oration is itself lia$le for the )iolation of law. #he title of an indi)idual within a cor"oration

should not $e determinati)e of criminal res"onsi$ility. In fact% many lowle)el em"loyees are


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entrusted with the res"onsi$ility of the e)eryday o"erations of the cor"oration. In this "articular

case% the dis$ursal of funds from the cor"oration to a state $an&ing officials can $e "resumed to

$e a cor"orate act% as the indi)iduals em"loyees themsel)es could not $e e4"ected to $ri$e the

officials out of their own "oc&et.'. #his case $roadens the am$it of criminal res"onsi$ility for cor"orations to include lia$ility for

actions ta&en $y nonmanagerial agents within the cor"oration. It recognies the reality that

many lowle)el em"loyees ha)e $road res"onsi$ilities to act on $ehalf of the cor"oration on a

daily $asis% while officers and directors are freuently less engaged in the cor"orations dayto

day acti)ities.;. 8ule. #he uantum of "roof necessary to sustain the con)iction of a cor"oration for the acts of its

agents is sufficiently met if it is shown that the corporation has placed the agent in a position

where he has enough authority and responsibility to act for and in behalf of the corporationin

handling the "articular cor"orate $usiness% o"eration or "ro!ect in which he was engaged at the

time he committed a criminal act.

I. -eo"le ). ,essoff 6 BergerA. +eneral 8ule. rganiational criminal lia$ility e4tends to entities other than cor"orations% including law

"artnershi"s.essoff & Berger. If other "artners stood to $enefit from rogue "artners unlawful

conduct% the entity may $e held lia$le as a whole. Justification is to com"el self "olicing

amongst "artners.B. acts. ,essoff% a lawyer% referred clients in "ersonalin!ury accident cases to a radiologist in Broo&lyn

for e4amination and re"ort. ,essoff instructed the radiologist to change ?8I re"orts to delete

references to nontrautmatic damage and to a$normalities or in!uries "redating the accident.

'. At the time of the crimes charged in the indictment% the doctor was wor&ing underco)er with theDAs office during the +rand Jury in)estigation and was secretly recording his tele"hone

con)ersations with ,essoff.*. #he codefendant in this case is the law "artnershi" in which the defendant ,essoff is a "artner.C. Issue. Whether a law "artnershi" may $e indicted for crimes of fraud% and if so% whether a "artnershi"

may $e indicted if only one "artner is in)ol)ed in the alleged crimes.D. 7olding. Criminal lia$ility for ones "artners fraud is "articularly a""ro"riate in the case of a law

"artnershi". 2ot only do law "artners $enefit financially from the fruits of one "artners

fraudulent conduct committed in the name of the firm% $ut there is a strong "u$lic interest inregulating the ethics of the legal "rofession.;. 8easoning. #he -enal ,aw a""lies to a law firm% whether it $e a "artnershi" or a "rofessional cor"oration%

and the law firm may $e charged if one "artner has committed a crime in the name of the law

firm. #he "lain language of -enal ,aw Section G.GG/=( authories an indictment of the

"artnershi" on such facts. It "ro)ides that a "erson which includes a "erson charged with a

crime means% where a""ro"riate% a "artnershi". Similarly% the section defining the crime of


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insurance fraud% section =K.GG% "ro)ides that a "erson chargea$le with the crime of insurance

fraud includes any firm% association or cor"orationL under the -artnershi" ,aw% a "artnershi" is

an association of two or more "ersons to carry as coowners of a $usiness for "rofit. Section

G/(.II. 9nited States ). 7ilton 7otels Cor".

A. +eneral 7oldingM8ule. A cor"oration is lia$le under the Sherman Act for the acts of its agents in the sco"e of their

em"loyment% e)en though contrary to general cor"orate "olicy and e4"ress instructions to the

agent.'. Criminal lia$ility may e4tend to a cor"oration e)en where its agent acts contrary to an e4"ress

"olicy of the cor"oration% as long as he does so within the sco"e of the authority delegated to him

$y the cor"oration and the cor"oration stands to $enefit from his act/s(.Hilton Hotels.

Cor"orations may not insulate themsel)es from criminal lia$ility $y ha)ing a $ullshit written

"olicy while encouraging or $eing willfully $lind to their agents to contrary conduct.B. acts

. In -ortland% regon% hotels% restaurants% hotel and restaurant su""ly com"anies and other$usinesses organied an association to attract con)entions to the city. #o finance the association%

association mem$ers were as&ed to ma&e "redetermined monetary contri$utions. #o aid the

collections% 7ilton 7otels Cor". /7ilton( /defendant( agreed to gi)e "referential treatment to

su""liers who "aid their contri$utions and $oycotted those su""liers who did not. 7ilton was

charged with )iolating F of the Sherman Antitrust Act which "rohi$its actions in restraint of

trade. 7iltons -resident testified that it was against cor"orate "olicy for a s"ecific hotel to

condition "urchases of su""lies u"on "ayment of a contri$ution to an association. urther%

7iltons -ortland hotel and his assistant testified that it was the hotels "olicy to "urchase

su""lies solely on the $asis of "rice% uality% and ser)ice. Although the -ortland 7iltons

"urchasing agent was instructed not to ta&e "art in the $oycott% the "urchasing agent ignored the

order and threatened a su""lier with loss of the hotels $usiness unless the su""lier financially

contri$uted to the association. #he district !udge instructed the !ury that a cor"oration is

res"onsi$le for the acts and statements of its agents within the sco"e of their em"loyment e)en if

the em"loyees disregard official instructions or the cor"orations "olicies. 7ilton was found

guilty and it a""ealed.C. Issue. Is a cor"oration criminally lia$le under the Sherman Act% 1 9.S.C. Section: /the Act(% for

actions ta&en $y its agents in the sco"e of their authority% $ut counter to cor"orate "olicy3D. 7olding

. 5es. Judgement Affirmed.;. 8easoning. It is a""ro"riate to hold the cor"oration lia$le for the acts of the indi)idual agent $ecause

insomuch as the Act )iolations are commercial offenses% it is the cor"oration that will "rofit from

the illegal acti)ity and not the agent himself. iolation of the Act are in fact ty"ically the result of

"ressure to ma4imie "rofits% leading indi)idual agents to go against a general cor"orate "olicy

for the sa&e of enhancing the "rofits of the cor"oration.


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'. Cor"orate lia$ility for )iolation of the Act is a""ro"riate on account of the generally com"le4

$usiness structures through which a )iolation occurs% ma&ing it difficult to identify the "articular

agents that were in)ol)ed in the unlawful acti)ity. ;)en where the agents are identified and

"rosecuted% it is ineffecti)e as a deterrent as no conseuences would $efall the cor"oration itself.*. #his case re"resents a further ste" ta&en in law to hold cor"orations accounta$le for their

unlawful actions% e)en when done $y an agent acting against cor"orate "olicy and "rocedures. It

attem"ts to ma4imie the deterrent effect $y encouraging cor"orations to $e more diligent in

su"er)ising the $usiness acti)ities of its agents done on $ehalf of the cor"oration.

Criminal Intent 9nder 8es"ondeat Su"erior

III. 2ote that common law !urisdictions ha)e )arious theories of criminal res"ondeat su"erior

lia$ility: some reuire a "ositi)e actMauthoriation of a managerial officer /clear demonstration of

intent(% some where the act committed within the sco"e of the actors em"loyment /im"uta$le

intent(% some where the unlawful act done $enefits the cor"oration /im"lied intent(.IN. 9nited States ). Ban& of 2ew ;ngland% 2.A.

A. acts. De"artment of #reasury regulations "romulgated $y the Currency #ransaction 8e"orting Act

reuire $an&s to file Currency #ransaction 8e"orts /C#8s( within fifteen days of customer

currency transactions e4ceeding OG%GGG dollars. #he Act im"oses felony lia$ility when a $an&

willfullyfails to file such re"orts as "art of a "attern of illegal acti)ity in)ol)ing transactions of

more than OGG%GGG in a twel)emonth "eriodP'. n thirtyone se"arate occasions% ?cDonough withdrew from the -rudential Branch of the Ban&

of 2ew ;ngland more than OG%GGG in cash $y using multi"le chec&s each one indi)idually

under OG%GGG "resented simultaneously to a single $an& teller.

*. #here is e)idence that a $an& auditor discussed the re"orting reuirements with the $an&stellers% there is su""ort to the conclusion that the $an& was well aware that ?cDonoughs

transactions should ha)e $een re"orted.0. #he 7ead teller -atricia ?ur"hy &new that ?cDonoughs transactions were re"orta$le% $ut on

one occasion% deli$erately chose not to file a C#8 on him $ecause he was a good customer.a( #he Jury heard testimony that the $an& em"loyees regarded ?cDonoughs transactions as

unusual% s"eculated that he was a $oo&ie% and sus"ected that he was structuring his transactions

to a)oid the ACts re"orting reuirements.1. Ban& argues that the e)idence did not suffice to show that it willfully failed to file C#8s on

?cDonoughs transactions and that the trial courts instructions on &nowledge and s"ecific intent

effecti)ely relie)ed the go)ernments res"onsi$ility of "ro)ing that the $an& acted wilfully.B. Issue. Whether the trial courts instructions on &nowledge and s"ecific intent effecti)ely relie)ed the

go)ernment of its res"onsi$ility of "ro)ing that the $an& acting willfully3C. 7olding. 2o.D. 8easoning. Willfulness is defined as a )oluntary% intentional% and $ad "ur"ose to diso$ey the law.


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'. #he trial court "ro"erly instructed that the !ury could infer &nowledge if the Ban& consciously

a)oided learning a$out the re"orting reuirementsL indi)idual em"loyees acting within the sco"e

of their em"loyment is im"uted to the Ban&L and if any em"loyee &new that multi"le chec&s

would reuire the filing of re"orts% the $an& &new it% "ro)ided that the em"loyee &new it within

the sco"e of his em"loyment.

*. A cor"oration cannot "lead innocence $y asserting that the information o$tained $y se)eral

em"loyees was not acuired $y any one indi)idual who then would ha)e com"rehended its full

im"ort. 8ather the cor"oration is considered to ha)e acuired the collecti)e &nowledge of its

em"loyees and is held res"onsi$le for their failure to act accordingly.a( Since the Ban& had the com"artmentalied structure common to all large cor"orations% the

courts collecti)e &nowledge instruction was not only "ro"er $ut necessary.0. +i)en the fact that many em"loyees &new a$out ?cDonoughs transactions% the !ury could ha)e

concluded that the failure $y Ban& "ersonnel to% at least inuire a$out the re"orta$ility of

?cDonoughs transactions constituted flagrant indifference to the o$ligations $y the act.

#herefore% the e)idence was sufficient for a finding of willfulness.

#he ?odel -enal Code 8ule

N. Im"ortant 2ote: ,i&e inBeneficial Finance% modern cor"orate lia$ility "ermits the acts and

intent of lowle)el o"erati)es to $e im"uted to the cor"oration. 7W;;8% the ?-C reuires

the "artici"ation or a""ro)al of a high managerial agent as a "rereuisite to cor"orate lia$ility for

nonregulatory crimes.NI. ?odel -enal Code Section '.G=: ,ia$ility of Cor"orate fficers and Agents /"g. '= in su""(.

A. +enerally. Section '.G= creates a trifurcated scheme of cor"orate lia$ility that draws intersecting lines

$etween acts and omissions% $etween true crimes and regulatory offenses% and $etween theo"erati)es who are the Qhands of the cor"oration and the "olicy ma&ers who constitute its

Qmind.B. Section '.G=/(/a(. Ado"ts a $road res"ondeat su"erior theory of lia$ility.'. A cor"oration may incur lia$ility for minor infractions and for nonCode "enal offenses when a

legislati)e "ur"ose to im"ose lia$ility on cor"orations "lainly a""ears% "ro)ided that the

conduct constituting the offense is "erformed $y a cor"orate agent acting within the sco"e of his

em"loyment and on $ehalf of the cor"oration.*. #he "otential reach of /(/a( lia$ility rule is limited $y the a)aila$ility of a due diligence defense.

a( -roof that the high managerial agent ha)ing su"er)isory res"onsi$ility o)er the su$!ect matterof the offense em"loyed due diligence to "re)ent its commission e4onerates the cor"oration

from criminal lia$ility.0. Su$section /(/a( see&s to limit res"ondeat su"erior lia$ility to instances in which the high

managerial agent ha)ing su"er)isory authority has not done due diligence to "re)ent the

commission of the unlawful act/s(.C. Section '.G=/(/$(


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. -ertains to omissions as o""osed to acts. Su$section /(/$( allows for criminal lia$ility for

omissions of cor"orate duties im"osed $y law.'. -ro)ides that a cor"oration is accounta$le for failure to discharge s"ecific duties im"osed on

cor"orations $y law.*. 2either the te4t of this "ro)ision nor the comments address the uestion of whose omission may

lead to lia$ility.D. Section '.G=/(/c(. By far the most restricti)e.'. A cor"oration will incur lia$ility for true crimes that is% for an offense defined in the -enal

Code only if the conduct constituting the offense is authoried% commanded% solicited%

"erformed% or rec&lessly tolerated $y the $oard of directors or a high managerial agent whose

acuiescence to the wrongdoing $y )irtue of his "osition of authority may fairly $e regarded

as reflecting cor"orate "olicy.a( #he ?-C defines hi$h mana$erial a$ent%as an officer of a cor"oration or an unincor"orated

association% or% in case of a "artnershi"% a "artner% or any other agent of a cor"oration or

associationhaving duties of such responsibility that his conduct may fairly be assumed torepresent the policy of the corporation or association!

*. Su$section /(/c( "rescri$es criminal lia$ility for offenses defined in the ?-C /true crimes( if

that conduct is authoried% commanded% solicited% "erformed% or rec&lessly tolerated $y the $oard

of directors of a high managerial agent whose acuiescence may $e regarded as reflecting

cor"orate "olicy.NII. State ). Cha"man Dodge Center% Inc.

A. +eneral 7oldingM8ule. Where e)idence other than a written "olicy suggests that the cor"orations intent /i.e.% the intent

of its officer/s(( is contrary the unlawful act/s( committed $y its agent acting within the sco"e of

his em"loyment% the theories of res"ondeat su"erior lia$ility are ina""osite and thereforecriminal lia$ility should not attach. Chapman "odge Center.

B. acts. In this case% car dealershi" owned $y close cor" owned $y one "erson. +eneral manager

committed license fraud not &nown to the owner. Court held that general manager was not a

high managerial agent.'. Dealershi" and owner were charged with 'G counts of theft related to the dealershi"s failure to

"ay sales ta4 on more than GG cars.*. Defendant owner only went to dealershi" a$out twice a month% the daily o"erations were done $y

general manager. +? and accountant made decisions a$out "ayments of $ills.0. wner told +eneral ?anager to "ay all the ta4es% and +eneral ?anager said that he did.C. Issue. What criminal lia$ility should a cor"oration $ear for the unauthoried acts of its officers and

managers3 Should a cor"oration $e criminally res"onsi$le in the a$sence of a s"ecific statute

which defines and descri$es the cor"orate act% "rohi$its that act% and esta$lishes a s"ecific

"unishment therfor3D. 7olding


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. Court held that owner did not ha)e the necessary intent and the actions of the manager was not

enough for cor"orate lia$ilitya( ?anager was not on $oard of directors or "resident or officer of cor"oration /not high managerial

officer( so it wasnt enough for cor"orate lia$ility;. 8easoning

. When a cor"oration is accused of committing a crime which reuires intent% it must $edetermined who within the cor"orate structure had the intent to commit the crime. If the crime

was the "roduct of a $oard of directors resolution authoriing its em"loyees to commit s"ecific

criminal acts% then the intent on the "art of the cor"oration is manifest. 7owe)er% holding a

cor"oration criminally res"onsi$le for the acts of an em"loyee that is not authoried to "erform

such an act may $e inconsistent with $asic notions of criminal intent% since such a "osture would

render a cor"orate entity res"onsi$le for actions which it theoretically had no intention of

committing.

Class #&: Personal ia!ilit" in an 'r$ani(ational )ettin$

Direct -artici"ants

I. A$sent a clear legislati)e intent to e4clude cor"orate agents from "ersonal res"onsi$ility for

crimes they commit% they cannot use the cor"orate entity as a shield against lia$ility for EtheirH

own misdeeds.

8es"onsi$le Cor"orate fficers

II. #he recent con)ictions of ;nrons to" officials ma&e it a$undantly clear that cor"orate officers

are "ersonally lia$le for crimes they commit during the course of their em"loyment.

III. 9nited States ). Dotterweich /Case discussed $riefly in te4t$oo&(A. Summary. Defendant Dotterweich was the "resident and general manager of a com"any that "urchased

drugs from a manufacturer% re"ac&aged them% and shi""ed them with a new la$el. Dotterweich

was con)icted of amisdemeanorunder theood and Drugs Act of @GK%which "rohi$ited the

shi"ment of adulterated and mis$randed drugs ininterstate commerce. #he Su"reme Court

u"held DotterweichRs con)iction e)en though he did not directly "artici"ate in the "roscri$ed

shi"ments. #he Court reasoned that this was a "u$lic welfare offense where strict% )icarious

lia$ility was a""ro"riate $ecause the president of a company ought to be aware of the regulations

associated with their business# and that the president was in a much better position than

members of the public to protect against the possible dangers of the product.'. As long as he shared res"onsi$ility in the $usiness "rocess resulting in unlawful distri$ution% he

would $e "ersonally lia$le.I. 9nited States ). -ar& /case ha""ened shortly after"otterweich(.

A. +eneral 7oldingM8ule
https://en.wikipedia.org/wiki/Misdemeanorhttps://en.wikipedia.org/wiki/Misdemeanorhttps://en.wikipedia.org/wiki/Food_and_Drugs_Act_of_1906https://en.wikipedia.org/wiki/Food_and_Drugs_Act_of_1906https://en.wikipedia.org/wiki/Interstate_commercehttps://en.wikipedia.org/wiki/Misdemeanorhttps://en.wikipedia.org/wiki/Food_and_Drugs_Act_of_1906https://en.wikipedia.org/wiki/Interstate_commerce


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. A C; is lia$le as the res"onsi$le cor"orate officer for )iolations of law committed $y the

cor"oration% which he either had the a$ility to "re)ent $efore the fact% or the o""ortunity to

"rom"tly correct after the fact.'. Cor"orate officers may $e held strictly lia$le for their cor"orations "u$lic welfare offenses

unless the conductMcircumstance gi)ing rise to the offense was im"ossi$le to fi4% e)en when their

indi)idual wrongdoing at most amounted to an omission.$ark. -u$lic welfare offenses are $y

definition deterrent measures deli$erately ta&en $y the legislature /or% as it were% regulatory

agency( that enacted them. Strict lia$ility allows for ma4imum deterrence.B. acts. #he defendant C; of food cor"oration contested his con)iction for )iolating federal regulations

regarding unsanitary conditions in which the cor"oration warehoused its goods. After ins"ecting

the cor"orations warehouses% federal ins"ectors notified the defendant C; $y letter of the

rodent infestation at the warehouses. #wo years later% they returned and noticed that the

warehouses continued to $e occu"ied $y rodents.C. Issue

. Is C; of cor"oration criminally res"onsi$le for unlawful actions of the cor"oration3D. 7olding. 5es. 8e)ersed.;. 8easoning. #he +o)ernment esta$lished a "rima facie case against the defendant C; with e)idence that the

defendant was "ut on notice of a )iolation of law committed $y the cor"oration and that he $oth

failed to "re)ent the )iolation of law in the first "lace and su$seuently failed to "rom"tly correct

the unlawful acti)ity. #he defendant could only ha)e a)oided lia$ility $y demonstrating that he

was "owerless to "re)ent or correct the )iolation of law% $ut he failed to do so.'. #he theory of lia$ility announced $y the ma!ority in this case is &nown as the responsi!le

corporate officer% doctrine. 9nder the doctrine% there must $e e)idence that defendant had% $y)irtue of his "osition in the cor"oration% the res"onsi$ility and authority to "re)ent a cor"orate

)iolation of law% or to "rom"tly correct a )iolation.. Dissent. #he standard for con)iction articulated $y the ma!ority is that of negligence > that defendant had

a duty to maintain the sanitary uality of the food warehoused $y the cor"oration and that% in

light of e)idence that the food was in unsanitary conditions% the duty was $reached and defendant

was criminally res"onsi$le. 7owe)er% the instructions to the !ury were much $roader and

"ermitted a )erdict of guilty u"on a finding that defendant was res"onsi$le for the condition of

the food insomuch as he was the C; of the cor"oration% while cautioning that that fact alone

did not reuire a finding of guilt. In the end% the instructions failed to counsel !urors with res"ectto negligence% $ut instead left it to them to determine under what rationale defendant might $e

res"onsi$le.. 9nited States ). Jorgensen

A. +eneral 7oldingM8ule


11/56

. Where a cor"oration is guilty of a s"ecific intent offense /e.g.% fraud(% that intent may $e im"uted

to the cor"orations officers in their indi)idual ca"acities forat leastsu$orning the criminal

conduct.%orgensen.B. acts. Beef case. 8aised their own cows until su""ly was too much% and then $ought $eef trim to mi4 in

with their meat /$ut did not disclose this and falsely ad)ertised it as their "ure $rief(.'. +regory Jorgensen &new a$out the mi4ing and ga)e the final order to "urchase outside $eef trim.

7e told wor&ers that this info was not to lea)e the "lant.C. Issue. Was there an intent to defraud3D. 7olding. 5es;. 8easoning. #he defendants $elie)ed the !ury instructions should ha)e said that a "erson is not res"onsi$le

for the acts "erformed $y other "eo"le on $ehalf of a cor"oration% e)en if those "ersons are

officers% em"loyees or other agents of the cor"oration.'. #he court says here that a cor"orate officer who is in a res"onsi$le relationshi" to an acti)ity

within a com"any that )iolates "ro)isions of federal food laws% such as meat mis$randing% can

$e held criminally res"onsi$le e)en if those "ersons are officers% em"loyees or other agents of

the cor"oration.. 8ule. A defendant can $e held criminally res"onsi$le for the acts of other "eo"le who are officers%

em"loyees or other agents of the com"any if the defendant is in a res"onsi$le relationshi".I. 9nited States ). I)erson

A. acts. Defendant was a founder of C7'% Inc.% a com"any which $lends chemicals to create numerous

"roducts% including acid cleaners and hea)yduty al&aline com"ounds.'. 7e "ersonally discharged wastewater and ordered em"loyees of C7'G to discharge the

wastewater in three "laces: /( on the "lants "ro"erty /'( through a sewer drain at an a"artment

com"le4 that defendant owned% and /*( through a sewer drain at defendants home.*. #he District Court instructed the !ury that it could find defendant lia$le under the CWA as a

res"onsi$le cor"orate officer if it found% $eyond a reasona$le dou$t: /( #hat defendant had

&nowledge of the fact that "ollutants were $eing discharged to the sewer system $y em"loyees%

/'( #hat defendant had the authority and ca"acity to "re)ent the discharge% and /*( that defendant

failed to "re)ent the ongoing discharge of "ollutants to the sewer system.0. Defendant argues that the district court misinter"reted the sco"e of res"onsi$le cor"orate

officer lia$ility.B. Issue. Was the sco"e of res"onsi$le cor"orate officer lia$ility misinter"reted $y District Court3C. 7olding. 2o.D. 8easoning. #he uestion for the !ury is whether the cor"orate officer had authority with res"ect to the

conditions that formed the $asis of the alleged )iolations.


12/56

'. 9nder the CWA% a "erson is res"onsi$le cor"orate officer if the "erson has authority to

e4ercise control o)er the cor"orations acti)ity that is causing the discharges. #here is no

reuirement that the officer in fact e4ercise such authority or that the cor"oration e4"ressly )est a

duty in the officer to o)ersee the acti)ity.

Conspirac"

Class *: Pl+ralit" ,e+irement. '/ert ct. and noin$ Participation

I. < 9.S.C. F *=. Cons"iracy to Commit ffense or to Defraud 9nited StatesA. If two or more "ersons cons"ire either to commit any offense a$ainst the 3nited )tates% or to

defra+d the 3nited )tates% or any agency thereof in any manner or for any "ur"ose% and one or

more of such "ersons do any act to effect the o$!ect of the cons"iracy% each shall $e fined under

this title or im"risoned not more than 1 years% or $oth.B. If% howe)er% the offense% the commission of which is the o$!ect of the cons"iracy% is a

misdemeanor only% the "unishment for such cons"iracy shall not e4ceed the ma4imum

"unishment "ro)ided for such misdemeanor.C. If two or more "ersons cons"ire% either to commit any offense against the 9nited States or to

defraud the united states /it doesnt ha)e to $e one or the other% it can $e $oth(...D. )ert act doesnt ha)e to $e an illegal act% it !ust has to $e an assent into the agreement

/cons"iracy is an agreement(.;. -unishment is not more than fi)e years /doesnt matter if one offense is more serious than

another% the ma4imum is fi)e years(. If the cons"iracy is a misdemeanor% then the "unishment

will not e4ceed the ma4imum amount for that misdemeanor.. 7earsay e4ce"tion: can use a statement used $y a cons"irator against another. Its admissi$le.

#he -lurality 8euirement

I. #he theory of se"arately criminaliing cons"iracy to commit a crime is that the creation of a

criminal grou" ma&es it more li&ely that crimes will $e committed% and so the creation of that

grou" is itself a harm.II. Because cons"iracy lia$ility is "redicated on a grou" danger rationale% a "lurality of "arties is

reuired. #hus% at least two actors must "artici"ate in the unlawful scheme.III. #he go)ernment may "rosecute only one mem$er of the cons"iracy% "ro)ided that the e)idence

otherwise esta$lishes a "lurality of "arties acting in concert.

I. 9nited States ). Ste)ensA. +eneral 7oldingM8ule. Where there is com"lete identity $etween a cor"orate officer and a cor"oration /i.e.% he is the sole

officer and its his cor"oration(% there is no cons"iracy $ecause theres only a single human actor.

tevens. ?a&es sense: there must $e two or more autonomous human minds for their to $e a

cons"iracy.


13/56

'. #o esta$lish that a cons"iracy e4ists% the go)ernment must "ro)e that a "lurality of actors acted in

concert.B. acts. Ste)ens formed four se"arate cor"orations for the "ur"ose of "erforming go)ernment contract

wor&. #he cor"orations entered into a go)ernment contract with the 9.S. 2a)y to $uild an

automated storage and retrie)al system. #he contract "ro)ided for "eriodic "rogress "aymentsfrom the +o)ernment as designated as"ects of the "ro!ect were com"leted.

'. Ste)ens misre"resented that certain wor& had $een "erformed in se)er reuests for "rogress

"ayments.*. #he Jury focused on the issue concerning the alleged cons"iracy $etween Ste)ens and his

cor"orations.a( Can a "erson cons"ire with his own cor"oration% realiing that he is the "rimary /only( agent of

his own cor"oration3$( Can we ha)e a definition of cons"iracy as it a""lies to a wholly owned cor"oration.C. Issue

. Can a "erson cons"ire with his own cor"oration% realiing that he is the "rimary /only( agent ofhis own cor"oration3

'. Can we ha)e a definition of cons"iracy as it a""lies to a wholly owned cor"oration3D. 7olding. 2o'. 2o;. 8easoning. 'nited tates v! Hartleyma&es two im"ortant holdings:a( A grou" of cons"irators cannot esca"e cons"iracy res"onsi$ility merely $ecause they all act on

$ehalf of a cor"oration.$( ,ia$ility for a cons"iracy may $e im"uted to the cor"oration itself on a res"ondeat su"erior

theory.'. In this case there is only one human actor% acting for himself and for the cor"orate entity which

he controls. #he argument that a single human actor can $e con)icted of cons"iracy under

Section *= under the circumstances of this case flies in the face of the traditional !ustification of

criminal cons"iracies.*. #his case lac&s any interaction $etween multi"le autonomous actors.a( #he threat "osed to society $y in a cons"iracy charge arises from the creati)e interaction of two

autonomous minds. #he societal threat is of a different uality when one human sim"ly uses the

cor"orate mechanism to carry out his crime. #he danger from agreement does not arise.

#he $!ect ffense

I. Section *= defines two categories of cons"iracies that are distinguished $y their criminal

o$!ecti)es: /( cons"iracy to commit an offenseagainst the 9nited States /e.g. to )iolate a federal

criminal statute(L and /'( cons"iracy to defraudthe 9nited States in any manner or for any

"ur"ose /e.g. to cheat or tric& a go)ernment agency(.II. 9nited States ). Arch #rading Co.


14/56

A. +eneral 7oldingM8ule. #he defraud clause: #o cons"ire to defraud the 9nited States means to cheat the $o/ernment

o+t of propert" or mone"% $ut it also means to interfere ith or o!str+ct one of its laf+l

f+nctions !" deceit. craft or tric4er". or at least !" means that are dishonest . It is not

necessar" that the $o/ernment shall !e s+!ected to propert" or pec+niar" loss$y the fraud%

$ut only that its le$itimate official actions and p+rpose shall !e defeated$y misre"resentation%

chicane% or the o)erreaching of those charged with carrying out the go)ernmental intention.

Hammerschmidt.'. #he offense and defraud clauses are not mutually e4clusi)e and the go)ernment is not reuired to

choose only one theory on which to "rosecute. In fact% e)en if the indictment only charges one

the go)ernment remains free to "rosecute for the other.(rch )rading.B. acts. Arch #rading entered into a contract with Ira to shi" eui"ment "ur"ortedly for )eterinary use.'. In August% -resident Bush in)o&ed the emergency "owers "ro)ided to him $y Congress% and

issued e4ecuti)e orders "rohi$iting 9S "ersons from tra)eling to Ira and dealing with the

go)ernment of Ira and its agents% in res"onse to Ira in)ading uwait.*. Arch trading immediately attem"ted to enter Ira to install the la$roatory eui"ment that had

already $een deli)ered. #he Installation was accom"lished.0. Arch #rading was con)icted of cons"iracy to commit an offense against the 9S in )iolation of o-Witness ,+le

X ;)identiary rule that "rohi$its $asing a "er!ury con)iction solely on an oath against an oatho ;ually honest witnesses may ha)e different recollections of an e)ent

o Something more than one "ersons word against another is reuired

X ?eant to "rotect a truthful witness from unfounded charges raised $y someone aggrie)ed $ythe witness testimony

X 7owe)er% the false declarations statute E1


41/56

V unres"onsi)e in that D here did not answer the uestion of whether hehad $an& accounts% heanswered whether the com"any had a $an& account% a different uestionX Willful falsity reuires D to &now that the statements are false and say them anyway

o If D did not understand the uestion% cannot $e con)icted for "er!ury

o But he can $e con)icted for an answer that is not literallyfalse $ut when considered in

the conte4t in which it was gi)en ne)ertheless constituted a false statementX Court finds that there are not adeuate grounds for a "er!ury con)iction $ased on Ds answers%D must willfully state any material matter that he does not $elie)e to $e true

o It was not Congress intent to reach unres"onsi)e answers% which can easily $e mended

$y as&ing more inde"th uestionso It was merely a testimonial misha"% under the "ressure sometimes a witness gi)es an

unres"onsi)e answerV DonRt want to discourage witnessing from testifying

o State of mind of the witness is only "ertinent to whether he &new it was true or not% not

regarding whether he meant to decei)e the uestionerX As long as the witness s"ea&s the literal truth they are fine% and the $urden is on the uestioner

to "in the witness down to the s"ecific o$!ect of their inuiry if they recei)e an e)asi)e answero Creating a higher $ar for the "rosecution% $ased on the notion of it $eing an ad)ersarial

systemo ?ore stringent than the falsehoods are treated in the "receding statutes such as FGG

'nited tates v! -alser /@@*(X Can one who intentionally causes an unwitting innocent "arty to commit "er!ury $e held lia$leas a "rinci"al under 1@ 3)C E1


42/56

V Because of the discre"ancies D was charged with and con)icted of "er!ury in the lower courtunder E1


43/56

o D contends that it is allowa$le due to the or% $ut court finds that% that runs afoul of

Congress intent and allows "er!ury with im"unity% to continue to lie until your "er!ury isa$out to $e e4"osed% and then recant

V D says that under this rationale% he would ha)e $een gi)en the defense $ecause the falsity has notsu$stantially affected the "roceeding /e)en though the second "rong would not ha)e $een

satisfied since the falsity was e4"osed already(o Court holds there must $e a con!uncti)e% not dis!uncti)e% reading of the statute% $oth

statutory conditions must e4ist when recantation occurs > or is really an andX Court sides with go)ernment% $oth "rongs were not met when recantation occurred and Dsconstruction of the statute was literally correct $ut against congressional intent

o Strange% since rule of lenity "ro)ides that there should $e a common sense% "lain

language reading of the statute where it is unam$iguous

'nited tates v! (pfelbaum /@ it is a $lan&et e4em"tion for immunity forfalse statements

X D also contends that 1thAmendment /selfincrimination( $ars introduction of the truthfulstatements% only "ermitting the core of the false swearing indictment

o Court disagrees% immunity is not a license to commit "er!ury% "er!ury is the narrow

e4ce"tion to the immunity statute and does not "rotect from false statements

'!str+ction of H+stice

X $struction statutes are meant to "reser)e the integrity of !udicial "roceedings% and"rotect the indi)iduals engaged in the !udicial "roceedings from coercion or intimidation

X 1@ 3)C E150&: A""lies to "artici"ants in ci)il and criminal !udicial "roceedings%im"osing sanctions for corru"tly...influencing% o$structing or im"eding% or endea)oringto influence% o$struct% or im"ede the due administration of !ustice

o or$ids s"ecific acts such as threatening !urors or officers of the court

o mni$us clause "rohi$its corru"tly endea)oring to influence% o$struct% or

im"ede the due administration of !usticeo ?eant to "rotect the legitimacy of "roceedings% ensuring the arri)al at an

a""ro"riate !udgment


44/56

X 1@ 3)C E1505: A""lies to "artici"ants in administrati)e agency or congressional"roceedingsX 1@ 3)C E1510: A""lies to "artici"ants in federal criminal in)estigationsX 1@ 3)C E1512: 2ew statute dealing s"ecifically with tam"ering with witnesses% sand informants

X 1@ 3)C E151&: 8etaliating against witnesses% s and informants

Pendin$ H+dicial Proceedin$s%'nited tates v! immons /@=@(X Whether a grand !ury in)estigation is "ending for "ur"oses of the o$struction statute E150&when a su$"oena to "roduce records and testify has $een issued u"on a""lication of an A9SA/not $y order of the grand !ury( $ut when at the time of the o$struction the grand !ury itself hadno &nowledge of the su$"oena or the matters under in)estigationX D was in)ol)ed in a scheme of changing dates on writs $eing sent out to satisfy the S,

o Su$"oenas were issued to him and others in his office to a""ear and "roduce docs

V In res"onse to su$"oena% D destroyed reuested documents and coached his em"loyees on whatto say to in)estigators

o #here is a "rereuisite in the statute for there to $e a !udicial "roceeding that ualifies

as an administration of !ustice "er E150&V $structing an BI in)estigation is not a )iolation $ecause these agencies are not !udicial arms

of the go)ernment% li&e a grand !ury "roceeding is% $ut when does an in)estigation turn into a"ending grand !ury "roceeding to $e actiona$le under the statute3X A formal act $y the grand !ury need not lead to the su$"oena for the grand !ury "roceedings to$e "ending

o As long as D had the s"ecific intent of im"eding the administration of !ustice% need not

loo& at technicalitieso

Court holds that an in)estigation $y law enforcement ri"ens into a "ending grand !ury"roceeding for "ur"oses of E150&when officials of the agency a""ly for and issuesu$"oenas to testify $efore the sitting grand !ury

V When cons"irators ha)e the intent to o$struct !ustice for a "roceeding that they &now will occurin the future% it satisfies the statute

'nited tates v! undwall /@@


45/56

o Concealment or destruction of documents li&ely to $e sought is enough% with the

intention of hindering the in)estigationX Sometimes ci)il remedies are not enough and you may need $oth ci)il and criminal remedies

ndea/orin$ to Infl+ence or Impede%

X 8ather than attem"t% E150&includes endea)ors to influence the administration of !usticeX Conduct must ha)e at least a reasona$le tendency to corru"t a legal "roceeding /may e)en $econduct that falls short of an attem"t('nited tates v! Collis /@@=(X $struction of !ustice charge for "resenting forged letters to !udge on com"anys letterhead

o ,etter is su""osed to $e from his em"loyer tal&ing a$out how great he is% contained a

lot of false statements while D was on trial for )iolation of his "aroleo #o satisfy E150&% need:

V /( !udicial "roceeding% /'( D had &nowledge of the "roceeding% /*( D acted corru"tly with theintent of influencing% o$structing% or im"eding the "roceeding in the due administration of !ustice

o +o). need not show that the false statements actuallysucceeded in o$structing !usticenor changed how the !udge was going to rule

V 2eed not ha)e a natural and "ro$a$le effect of im"eding !ustice to constitute a statutory )iolation'nited tates v! .riffin /@=@(X -lane crashed% $ag with money found in wrec&age and some indi)iduals were wire ta""ed inconnection with in)estigating loan shar& "ractices associated with the money $ag

o D was heard tal&ing on the "hone with one of the wire ta""ed "eo"le% and was called

to testify $efore a grand !uryo D claimed that he either could not remem$er% or did not &now anything a$out the

money and the "lane crash% $ut later asserted that the statements were correct and the

"hone con)ersations were fa$ricatedX D urges the court to recognie a distinction $etween one who induces a witness to commit"er!ury /for$idden $y E150&( and one who "er!ures himself

o $struction of !ustice statute was not meant to only co)er inducing another to commit

"er!ury or destroying e)idence% it can also include false statements as long with thes"ecific intent to o$struct !ustice

X D also contends that since he withheld the truth% that is different from an outright lieo Court disagrees% more concerned with whether the conduct has the "ur"ose of

im"eding the fair administration of !usticeo 2o I dont &now I cannot recall is a false statement according to the court% an

e)asi)e answer of falsely denying &nowledge of e)ents

X +o)ernment must "ro)e that the statement had the effect of im"eding !ustice% where Dscontention that he had no &nowledge hindered the loan shar& in)estigation more than had hemerely in)o&ed his 1thAmendment right

o Ds denial of &nowledge had the effect of closing off all a)enues of inuiry into sorting

through contradictory e)idenceo Also it was material $ecause it dissuaded the grand !ury from in)estigating the loan

shar&ing $y those indi)iduals


46/56

V 2eed not $e related to the "rimary su$!ect of in)estigation% it is material if it is rele)ant to anysu$sidiary issue or is ca"a$le of su""lying a lin& to the main issue'nited tates v! (guilar /@@1(X D was a !udge and &new a #eamster through the gra"e)ine% was as&ed to discuss the case with

another !udge and disclosed that there was a wireta" u" concerning the caseo +rand !ury "roceeding followed and D lied a$out "artici"ation in the case or

&nowledge of the wireta"% con)icted of o$struction of !usticeX #he actions ta&en must ha)e the intent of influencing !udicial or grand !ury "roceedings% it isnot enough for them to influence some ancillary "roceedings

o #here must $e a time com"onent% a ne4us with the "roceedings% with the natural

and "ro$a$le effect of interfering with the due administration of !usticeo2eed not $e successful% an endea)or suffices

X Court finds that ma&ing a false statement to an in)estigating agent who may or may not testifyis not sufficient to )iolate E150&

o #here was no indication that the in)estigators were acting as an arm of the grand !ury

o #he fact that there is some grand !ury "roceeding going on is not enough% otherwise itwould criminalie too much conduct

V ?ust $e some narrow inter"retation of who E150&a""lies to% not !ust any acts that ha)e theintent of im"eding due administration of !ustice

o D must ha)e &nowledge that his statements are going to the grand !ury not !ust that

they could'nited tates v! Cintolo /@


47/56

X Congress attem"ted to reconcile the "ro$lem that defense counsel faced $etween ealousad)ocacy and o$struction of !ustice

o -rotects the "ro)iding of lawful% $ona fide% legal re"resentation ser)ices in connection

with or antici"ation of official "roceedingsX 8loess esta$lished that E1515 ser)es as an affirmati)e defense for counsel% who will ha)e the

$urden of showing some legitimate $ona fide reasoning /therefore negating mens rea(% and +o).must dis"ro)e that $eyond a reasona$le dou$tX 1512!&D must &nowingly act with s"ecific intent to hinder or delay the communication tothe court of the commission of a federal offense or "ro$ation )iolation

o +o). must "ro)e im"ro"er "ur"ose

o Can $e re$utted $y lawyer "ro)ing that he is legitimate a""ointed counsel who was

loo&ing into clients $est interest in good faith

>he ictim and Witness Protection ct

X 2ew o$struction statute% E1512% "rohi$iting tam"ering with a witness% or informanto Whoe)er &nowingly uses intimidation or "hysical force% threatens or corruptly

persuades another/added in @amperin$

'nited tates v! ester /@


48/56

o -ro$lem with E1512is that D would ha)e to ha)e used certain conduct /intimidation%

"hysical force% threats% harassment% misleading conduct( and if he did not% without use ofE150&there would $e no redress

X F1' is su$seuently changed to include corru"tly "ersuade $y Congress so that it is $roadenough to include this conduct too

E1512: Corr+pt Pers+asion(rthur (ndersen $ v! 'nited tates/'GG1(X D filed financial statements and did an internal audit of ;nron

o Amid $eginning of accounting scandal D com"any hired inhouse counsel

o D stated that if they destroy a document in the ordinary course of $usiness its fine% and

they will $e sa)ed if an in)estigation as&s for something the ne4t day% a documentretention "olicyo When S;C o"ened its in)estigation documents were reuested $ut documents had

$een continuously destroyed in the interim

X D charged with E1512!2 and B for &nowingly and intentionally and corru"tly"ersuading other "ersons /em"loyees( with intent to cause them to withhold documents from andalter documents for use in regulatory and criminal "roceedingsMin)estigations

o -ersuading another to withhold information can $e $enign% such as $y telling someone

to in)o&e their 1thAmendment right% or an attorney withholding "ri)ileged documents.Similarly% a document retention "olicy may also $e $enign

X #here must $e consciousness of wrongdoing% and here the !ury instruction was wrongregarding &nowingly

o Although the "roceedings need not ha)e $egun nor "ending% "roceeding has to $e at

least foreseen or li&ely "er E1512fo In(guilarF1G* reuired a ne4us% something more% $etween the o$structi)e act and

the "roceedingsE1512: 6isleadin$ Cond+ct

X Co)ers misleading conduct that is intended to affect anothers "artici"ation in official"roceedings% im"air a)aila$ility of e)idence or im"ede the re"orting of information relating tothe commission of a federal crime to law enforcement or a !udgeo ?isleading conduct includes ma&ing false or misleading statements or in)iting reliance on

false or misleading e)idence'nited tates v! .abriel /@@=(X D was an e4ecuti)e for a !et engine com"any under in)estigation $y AA for

misre"resentations related to re"airso #oo& a from \uantas for a !et engine casing% and misre"resented that it would $e

re"aired $y them when really it was re"aired elsewhereo #he lorida facility certified that that it was ser)icea$le when in reality it was not

X D sent a fa4 to \uantas re"resentati)e in order to su""ort his false story that he disclosed thatthe "art was not ser)icea$le

o D charged with witness tam"ering% $ecause it was an attem"t to mislead ?ealing% and

?ealing would then re"eat that lie to the grand !ury


49/56

X E1512!1ma&ing it a crime to corru"tly "ersuade another "erson% or attem"t or do so% orengage in misleading conduct toward another "erson% with intent to influence the testimony ofthat "erson in official "roceedings

o D says on a""eal that +o). must show that his actions were li&ely to affect the

testimony% and since the guy was in Australia% it was not e)en li&ely that there would $e a

grand !ury "roceeding% so he was unli&ely to actually im"ede the hearingV Court agrees% no need to show li&ely to affect testimony% only that the endea)or was corru"tly to"ersuade or mislead with intent of influencing testimonyX D admits he wanted to interfere with the in)estigation% $ut not any grand !ury "roceedings >unli&ely since he &new grant !ury was a$out to ha""en and that ?ealing would $e a damagingwitness

V At odds with(guilarreuiring li&ely to affect% there is no need to incor"orate that here% $ecausethat was for the "ur"osing of narrowing the F1G* omni$us clause

V Would not e)en $e satisfied here since there is no "roceeding and he may not e)en testify/(guilarthere was a "roceeding $ut did not &now if he would testify and that was too attenuated(X E1512does not need "roceedings to ha)e $een instituted already

V E1512 is different in that it already has reuirements gi)ing fair notice of wrongdoing: D mustengage in misleading conduct or corru"tly "ersuade% and D must ha)e intent to influencetestimony at official "roceedings

E1512: =arassment

'nited tates v! -ilson /@


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o D went to $an& manager and said that if she s"o&e to BI he would sue her for

defamationX Is threat to sue actiona$le threat under E15123

o Court says yes% he had no right to file fri)olous litigation so his "rotected right was not

$eing infringed on

o Instituting $aseless legal "roceedings for "ur"oses of harassment is not "ermitted

Bri!er" of P+!lic 'fficials

X -u$lic officials include mem$ers of Congress% go)ernment officers and em"loyees% or anyoneacting for or on the $ehalf of the federal go)ernment in any official function under or $yauthority of a federal de"artment or agency% and !urorsX 1@ 3)C E201 deals with $ri$ery and gratuity% gi)ing or recei)ing something of )alue inconnection with an official act

o Bri$ery is corru"tly attem"ting to influence a "u$lic official in the "erformance of

official acts $y gi)ing )alua$le consideration% uid "ro uo% it is inchoate in that you needto ha)e the reuisite intent without any result actually ha""ening% and still $e cul"a$le

V E201!1"ertains to the gi)er% E201!2 to the recei)erV 8euires a showing that something of )alue was corru"tly gi)en% "romised to a "u$lic official

/gi)er(V r corru"tly demanded% sought% recei)ed% acce"ted% or agreed to $e recei)ed $y a "u$lic official

/recei)er( with intent to influence an official act or in return for $eing influencedo +ratuity is regarding a "u$lic official on account of an official act e)en with $enign

intent% off the $oo& com"ensation for an official act% no need for a uid "ro uo and cancome after the official act occurred

V E201c1"ertains to gi)er and E201c1B to recei)erV 8euires a showing that something of )alue was gi)en% offered% or "romised to a "u$lic official

/gi)er(

V r demanded% sought% recei)ed% acce"ted or agreed to $e recei)ed $y a "u$lic official /reci"ient(for or $ecause of any official act "erformed or to $e "erformed $y such "u$lic official

'fficial cts%

X fficial act: Any decision or action on any uestion% matter% cause% suit "roceeding orcontro)ersy% which may at any time $e "ending% or which may $y law $e $rought $efore any"u$lic official% in his official ca"acity% or in his "lace of trust or honor

'nited tates v! $arker /@@


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o Statute for$ids "u$lic officials from $eing induced to do or omit any act in )iolation of

their official dutyV ?eant to $e $road and encom"ass any decision made in official ca"acity e)en if they are not

within the rulesV #he "eo"le who were a""ealing denial had their a""eals in her "lace of trust or "rofit within

the statuteX Would gar$age man he cul"a$le or only someone who has some official res"onsi$ility3V 8richmenlater says that a $aggage "orter for a federal 88 does not fit into the statute unless he

is in)ol)ed in some decisionma&ing'nited tates v! (rroyo /@=


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o nly a $ri$e reuires "roof of a uid "ro uo

X Court does not agree with lower court !ury charge that +o). need only "ro)e that the gratuityreuired the reci"ient to at any time$e in a "osition to act fa)ora$ly for Do #here must $e a lin& $etween the thing of )alue conferred u"on a "u$lic official and a s"ecific

official act for or $ecause it was gi)en

X +o).s construction would criminalie any gift to any official if the "erson had $efore him% orcould "ros"ecti)ely ha)e $efore him% matters that deal with the gi)er of the gift > !ust $y way ofthe "ersons "ositiono If Congress intended this they would ha)e written it into the statute

'nited tates v! (nderson /@=0(X D was a lo$$yist for com"any S"iegel that had an interest in "ostage rates% and allegedly$ri$ed 9S Senator Brewster who was in the "ostal committee

o D con)icted for gi)ing monies in order to influence his "ostage "olicy

o D was tal&ing to Senator in a meeting with a witness /who later testified( that after

discussing "ostage rates% D ga)e the Senator an en)elo"e with O1 and Senator said he

would do all that he "ossi$ly could to $e of assistanceV ,ater made ' more "ayments when a $ill was introduced to u" "ostage rates

X Jury instructiono ,ower court /"ro"erly( re!ected Ds inter"retation of !ury instruction% that said that a

lo$$yist is meant to influence an elected officials actions% and there is nothing inherentlycorru"t in influencing an elected official or $eing influenced

V A gift or "romise with intent to influence is the definition of $ri$ery% reuested instructionswould ha)e $een misleading for a !uryX D was con)icted of $ri$ery $ut the Senator was only charged with recei)ing a gratuity%different intent reuires Y is that inconsistency with e)identiary o)erla" o&3

o Court says that the inconsistencies are o& $ecause the two "arties may ha)e different

intentso D ga)e the monies in order to influence /$ri$ery(% while the senator was not affected

$y the money in his decisionma&ing% he acce"ted the monies with &nowledge that it wasa gratuity for his )ote

>hin$ of al+e%

'nited tates v! -illiams /@


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ppointed 'fficials

"i9son v! 'nited tates /@


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'nited tates v! -are /@@


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X E leading to an im"act on "olice allocation of man"ower% to adetriment to o)erall "olice acti)ities

o -lus% the officer $eing "aid $y the federal funds was sent to calls at this $ar

o Court "arallels this case with alinas% dismissal re)ersed and cause remanded

abri v! 'nited tates /'GG0(X D was a real estate de)elo"er and offered $ri$es to councilman

o #he councilman was a mem$er of a community de)elo"ment agency set u" $y the citycouncil% which was recei)ing federal funding /O'*?(

X District court dismissed under theory that the law was in)alid for not reuiring a ne4us$etween the $ri$e and the federal funds

o 8e)ersed in court of a""eals% constitutional "er 26- Clause fro ser)ing the o$!ects of

congressional s"ending "owerX E


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o ?ust $e a federal assistance &% not !ust any commercial contractual relationshi"

Documents

Green WhiteCollarCrime Fall 2015