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164 Cards in this Set
- Front
- Back
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Depletion of Assets Theory:
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• The idea here is that if you rob someone or a business and take assets away from them - this is money that could have been used for the purchase of goods in interstate commerce. So, you’ve depleted their ability to purchase interstate goods. Therefore, a defendant has a de minimus effect on interstate commerce when they do this crime.
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United States v. Perez:
Perez was a loan shark |
• Congress has the constitutional right to regulate an entire class of activities that affect interstate commerce even though a specific instance of that activity may in and of itself not have an affect on interstate commerce
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United States v. Morrison:• Congress made congressional findings that violence on women does produce an economic impact.
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while congressional findings are important just finding an economic impact does not mean the law is constitutional. Findings alone are not sufficient to justify a law constitutionally.
non-economic consequences of crime cannot be aggregated to reach a class of activities under the commerce clause. |
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Gonzales v. Raich:
• Respondent attacked legality of federal drug laws regarding possession of MJ based on the Lopez/Morrison cases. |
• Supreme Court finds that the drug industry is economic in nature and substantially affects interstate commerce. Court said the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety.
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Wickard V. Filburn:Intra-state activity
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regulate purely intrastate activity that itself is not “commercial” in that it is not produced for sale, if it concludes the failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.
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United States v. McFarland (5th Cir):
• Defendant was charged with Hobbes Act violation - judge gave instruction that the jury only needs to find a “de minimus effect on interstate commerce |
• The substantial effect on interstate commerce only applies to the CLASS of activities. The individual only needs to make a de minimus effect on interstate commerce.
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United States v. Ballinger:
• Ballinger challenged a statute facially as unconstitutional extension of commerce clause (also claimed insuff. evidence to show offenses were in or affecting commerce) Ballinger burnt down churches in 4 states |
that if his conduct does not meet the commerce clause, then practically nothing does.
• This activity is really neither economic nor commercial - so it really does not differ from Morrison. • Courts often stretch jurisdictional boundaries because if it were left to the state to deal with these arsons it would get too complicated for everyone. |
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United States v. MacEwan:(Internet)
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• The internet is both a channel and instrumentality of interstate commerce
• This is huge for prosecutors because they can argue that if the internet played any role in a crime, they are home free on the burden of proof on the jurisdictional element. |
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• Double Jeopardy (when the same sovereign is prosecuting you twice)
• Blockburger Test |
• If each offense had an element which is different from the other offense, then double jeopardy did not occur. There must be a unique element to each offense present.
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Petit Policy of the Federal Government:
• After a state prosecution, there will be no federal prosecution unless there is a compelling reason |
• A defendant cannot raise claims that the DOJ violated their Petit Policy because a defendant does not have standing.
• UNLESS, you can demonstrate that the decision to violate the policy was the result of intentional discrimination on the basis of a protected category under the EP clause or some other constitutional status. |
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Rule 3 - Complaints:
• A written statement of the facts alleged to be charged |
• NOT an actual charge here - but the complaint allows law enforcement to take somebody into custody and keep them there.
• A complaint may be used to keep someone in custody while waiting on an indictment. • Must show magistrate judge PC for the offense and PC this defendant completed offense • Once arrested, must be taken before a magistrate within 72 hours. |
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Rule 5 - Initial Appearance:
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1) determination of whether a defendant will get bail 2) determination about whether defendant will get appointed counsel
• Bail Reform Act of 1984: • Judge shall order pre-trial release of a person on personal recognizance subject to conditions UNLESS • Charged with a crime of violence • Charged with a drug crime for which the max. sentence is 10 years or more • every drug crime on the books except simple possession • Charged with a crime where the max. sentence is life in prison or death • Charged with 3rd lifetime felony • If prosecution can show defendant is a flight risk or there is potential to obstruct justice. • If you meet one of the 5 criteria, the presumption flips and defense counsel must show a combination of conditions that will protect the community and ensure defendant’s presence |
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Subpeonas Duces Tecum to get documents.
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• • You do not have a 5A privilege to the contents of documents, but if the act of producing the document will incriminate you, you have a right not to produce it (i.e. being indicted for tax fraud based on you knowingly failed to report income you knew you had - being asked to produce your 1099 interest statement would incriminate you)
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Rule 7 - The Indictment/Information
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can move to strike surplussage (things in the indictment that don’t add to it but are there for propaganda purposes) and also ask for a bill of particulars which is saying the indictment is not enough to protect your client from double jeopardy - also need this to help build the defense
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Rule 16 - Discovery:
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• Rule 16 allows defendant to obtain:
• Defendant’s statements made to a government agent if at the time they were made, defendant knew they were made in response to interrogation (confessions) • Client’s rap sheet • Tangible items (documents, etc.) but with limitations under (a)(1)(E) • Expert reports (coroner, ballistics, etc.) |
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Brady v. Maryland
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• Prosecution had set up a deal with a witness to drop some charges if they testify
• Court held since this case was almost entirely based on witness testimony, it was a violation of DP to not disclose this deal to the defense. • Upon defense’s request - it is prosecutor’s duty to disclose deals. • Must file separate Giglio motion to request prosecution to set out the parameters of any deals arranged. • Should also file a 404(b) motion - and MUST do before trial - this is for similar acts evidence. You want to know if there is any so you can try to suppress it. |
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Rule 18 - Place of Trial:
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• If a witness whom the prosecutor used at the grand jury is also called at trial - the government must produce their previous statements to defense counsel.
• They do not have to produce the statement until after the witness has testified. • Sometimes there is pre-production of statements to cut down on delay, especially when the material will be lengthy. |
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Rule 29 - Motion for Judgement of Acquittal:
• Jackson v. Virginia standard: |
The evidence at trial has to be such that a reasonable juror could not find the defendant was guilty beyond a reasonable doubt.
• The state must offer evidence on every element of the crime, if they don’t there is no way a reasonable juror could have found defendant guilty beyond a reasonable doubt - so you file a motion of acquittal. |
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18 USC 2 - Principals:
C A P |
1. Whoever commits an offense against the US or
2. aids, abets, counsels, commands, or induces or procures its commission 3. is punishable as a principal. Whoever wilfully causes an act to be done which if directly performed by him would be an offense against the US, is punishable as a principal. |
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18 USC 371 - Conspiracy
A 2CO A |
1. An agreement
2. by two or more persons to commit an offense against the US or attempt to defraud the US, and 3. one of more persons does any act to affect the object of the conspiracy, |
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Mens Rea Conspiracy
A S CI |
• If two or more people agree to commit a crime and are serious and have the criminal intention to complete the act - the crime is complete at this time.
• Agreement can be direct or circumstantial |
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US. V. Evans (Conspiracy Agreement)
SI KO ICO MC |
Agreement - must have specific intent
• Knowledge of the objective - defendant shared a common purpose or design with his alleged coconspirators • Intent is not just the intent to conspire, but the intent to commit the offense and the means of doing that is through the conspiracy. • You do NOT have to know all the members of the conspiracy to be charged • You also do not have to know all of the conspiracy’s objectives - it is enough to have joined the conspiracy for just one objective. |
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Conspiracy-Actus Reus
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• The overt act can be a very small act in furtherance of the conspiracy and only needs to be completed by one defendant.
• Do not need overt acts in money laundering or drug conspiracies. |
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Duration of the Conspiracy:
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• There is no automatic termination of conspiracies just because the government unbeknownst to some coconspirators has defeated the conspiracy’s object (US v. Jiminez-Recio)
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• Multiple Conspiracies:
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Multiple Conspiracies:
• When conspiracies have multiple objectives, you must ascertain whether it is one conspiracy with multiple objectives or multiple conspiracies • Fatal Variance - when the evidence at trial begins to deviate so greatly compared to what was charged in the indictment, the case will be dismissed. |
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• Evidentiary Requirement of Conspiracies(Pinkerton Doctrine):
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Each defendant must be tied to a member of the conspiracy or they cannot be labeled a co-conspirator.
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• FRE 801(d)(3)(E) co-conspirator statements
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allows co-conspirator statements to be used against each other as an exception to the hearsay rule.
• This rule also applies where the substantive offense differs from the precise nature of the ongoing conspiracy, but facilities the implementation of the conspiracy (i.e. co-conspirator found guilty of conspiring to distribute drugs but held liable for the substantive violation of possession of a firearm) • Has been used to uphold a murder conviction based on drug conspiracy - reasonably foreseeable consequence of the conspiracy. An unreasonable consequence would not be imputed to co-conspirators. • The statement MUST be by a co-conspirator during the course and in furtherance of the conspiracy |
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Jurisdiction Mail and Wire Fraud
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: Interstate commerce. Need not prove mens rea on this element. Some courts have even upheld cases where a government agent was responsible for the mailing or wire.
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Mail and Wire Fraud Elements
S2D by FFP MM SI LM M,PC, IW |
1. Scheme to defraud or obtaining money or property by means of fales of fraudlent pretenses
2. By mean of means of material involving marterial misstatement 3. Specific Intent to defraud (mens rea) 4. Resulted or would have resulted in the loss of money, property 5.US Mail, private courier, or interstate wires. |
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What is "Property" for Wire/Mail Fraud
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Cleveland - a license is not property
-object of the fraud must be “property” in the victim’s hands - sometimes said. Carpenter Proprietary Information |
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Schemes to Defraud
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essentially taking victim’s money for something that does not exist. Different from puffery which is just expanding a characteristic that an item does possess and stretching it. Fraud emphasizes a characteristic that does not exist at all.
breach of a fiduciary duty coupled with mailings was treated as a scheme to defraud the client because they were deprived of honest services of the attorney. |
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Materiality of Misrepresentation (Durland)
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breach of a fiduciary duty coupled with mailings was treated as a scheme to defraud the client because they were deprived of honest services of the attorney.
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Right to Honest Services (McNally)
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Supreme Court ruled that deprivation of the intangible right to honest services was NOT within the scope of the mail fraud statute - but invited Congress to revise if thats what they truly intended.
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Right to Honest Services Post McNalley
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deprived of honest services of an individual to which they have the right to expect honest services. If there was a deprivation as a result of a scheme or artifice to defraud and mailings in furtherance, courts were recognizing the right to prosecute under mail fraud.
18 USC 1346 - to fix this gap (defining scheme or artifice to defraud as including the right to honest services) |
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Right to Honest Services - Private Citizen (Hausmann)
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• Lawyer paid a doctor and 20% of it went to 3rd parties
• Breach of fiduciary duty is that the client does not know the details of the arrangement and they should - failure to disclose a particular act. • Conviction affirmed. |
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Use of the Mails:
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: mail to victim to aid fraud, among schemers, mailings of proceeds from victims, transfer of proceeds, “lulling” letters trying to coerce victims to send in money quickly.
Schmuck v. United States:If the scheme would not have been effectuated without the mailing, then it was a necessary component of the scheme and is sufficient. |
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Defenses to Mail Fraud
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Advice of Counsel If followed
Justice Scalia• Arguing vagueness on the constitutional level could possibly be effective - some question as to whether the statute gives fair warning to those potentially subject to its penalties and whether its susceptible to abuse by arbitrary and discriminatory enforcement. |
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Hobbs Act
OIC RE or TVPP FPP |
1.Whoever in any way or degree obstructs, delays, of affects commerce or the movement of any article or commodity in commerce,
2. by robbery or extortion or attempts or conspires to do so, or commits or threatens physical violence to any person or property 3. in furtherance of a plan or purpose to do anything in violation of this section |
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Crimes Covered by Hobbs Acts
RF EF ECOR |
1) robbery by force (standard common law definition of robbery here), 2) extortion by force, 3) extortion under color of official right.
- attempts and conspiracies also fall under the statute. - the Hobbs Act tends to be the statute of choice for the acceptance of gratuities by state and local officials. |
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Jurisdiction Hobbs Act
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Commerce clause, need only show de minimus effect on commerce. Depletion of assets theory available to businesses, but not individuals (See Wilkerson)
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Elements of Extortion (AOPS)
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1. Affects Interstate Commerce
2. Obtain, Attempt or Conspire to gain another properties (Actus Reus) 3. Property was or would have been obtained by use of fear and/or official Right. 4. Specific Intent to Commit the Extortion |
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When D Robbs an Indivdual Hobbs Act
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• The victim directly participates in interstate commerce
• victim “because of her status as an employee at a company participating in interstate commerce” • Where the assets of the company engaged in interstate commerce were, or would have been, depleted as a result of the harm or potential harm,, to the individual victim. • targeted the assets of a business engaged in interstate commerce rather than the individual |
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U.S. v. Fabian-D believed retired taxi driver was a loan shark and broke into house and stole money
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Upheld conviction where D believed retired taxi driver was a loan shark and broke into house and stole money. What is key is whether at the time of the crime the D believed he was robbing a loan shark, not whether he actually robbed a loan shark.
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What is a Business for Hobbs Act?
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Some courts have held drug dealers are individual business making robbing a drug dealer a Hobbs Act violation of an individual. DOJ manual says only do this in instances of gang activity or organized crime or a wide-ranging scheme.
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Edwards (Extortion by Force, Fear, or Violence).
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Wrongful Fear Equals economic harm as well
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Bribery v. Extortion
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Extortion
paying money just to be treated fairly paying money to receive expected treatment - paying to preserve the status quo Bribery If you are paying for preferential treatment - this is probably bribery not extortion. |
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Scheiders Extortion Requirement
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1.no economic motive is required - can have other motives.
2. Under extortion, D must obtain the property. 3. statute links the violence to the robbery or to the extortion - not simply to violence that furthers a plan to affect commerce - this would broaden the statute too much. |
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Test for Theft of Intangible Property Hobbs Acts
US v. Gotti |
Court held that you must evaluate 1) the D carried out or attempted or conspired to carry out the deprivation of a property right from another, 2) the intent to exercise, sell, transfer, or take some other analogous action with respect to that right. If the motive is to profit from cashing out the value of the right, this will be strong evidence the goal was to obtain the right for himself, rather than merely deprive the victim of the right.
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Hobbs Act
United States v. Capo (2d Cir) - employees of Kodak were taking bribes in exchange for referring individuals to jobs within the company. |
Court clarified that there is a difference between bribery (which is buying a benefit) and extortion - the victim is buying off a thug. This court held that extortion only occurs when the victim is buying off a thug.
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Hobbs Act
US v. Tomblin- bankers fraudulently acquired interest in savings and loan and feared losing their interest in the S&L |
ourt said that this could be extortion if they feared they would lose their preferential treatment or a property interest that had been illicitly obtained. Other circuits will not hold extortion to exist when a victim is trying to preserve an illicitly gained interest.
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Test for Extortion under Color of Official Right: Evans v. United States
Evidentiary Requirement |
Government need only show that a public official has obtained a payment to which he was not entitled, knowing the payment was made in return for his official acts.
Victim need NOT have acted out of “fear” in the color of official right prosecutions. Passive Acceptance-Official need not take any action to induce the payment. |
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Extortion of Color of Official Right (Hobbs Act)
Quid Pro Quo |
United States v. McCormick: quid pro quo is needed for a prosecution under Hobbs Act. This is an essential element of the prosecution. In Evans, majority said that acceptance of a bribe constituted an implicit promise to use his official position to serve the interests of the bribe giver. (this case seems to imply an explicit quid pro quo is needed in campaign contribution cases. BUT, Evans seems to approve of an implicit quid pro quo)
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the quo is a stream of official act
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jury only need to find that the official accepted gifts in exchange for a promise to perform official acts to the giver, it need not find that the specific act to be performed was identified at the time of the promise, nor need it link each specific benefit to a specific act.
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Differences Between Bribery & Extortion under Color of Official Right:
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• A federal public official who receives a bribe can be liable for both extortion under color of official right and bribery. A STATE/LOCAL official can only be charged with extortion because the bribery statute requires them to be a federal public official.
• The payee could be liable for both bribery and extortion (if a federal official) - while the payer can be liable only for bribery since the fear requirement of extortion makes them truly a victim and should not subject them to criminal liability. |
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OFFICIAL BRIBERY & GRATUITIES/ FEDERAL PROGRAM BRIBERY-Definition of Public Official
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means member of Congress . . . officer or employee or person acting on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function or under the authority of any such department, agency or branch of Government, or of a JUROR.
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Fed Bribery-Official Act
DorA PorBB OC |
1. any decision or action on any question,
2.which may at the time be pending, or which may by law be brought before any public official, 3.in such official’s official capacity, or in such official’s place of trust or profit. |
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Elements of Giving or Offering to Give a Bribe
GSV FO CI D2I |
• D gave or offered to give something of value (see below);
• The recipient or offeree was (or was selected to be) a federal public official • The D acted with corrupt intent; and • The D’s scheme was designed to -- • (a) Influence the public official in an official act, or • (b) Influence the public official to commit a fraud on the US, or • (c) Induce the public official to act in violation of lawful duty. |
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Elements of Receiving or Agreeing to Receive a Bribe are:
RorA SV FO CI IOA |
• D received or agreed to receive something of value (see below)
• D was (or was selected to be) a federal public official • D acted with corrupt intent • The Scheme was designed to - • (a) influence the D in an official act, or • (b) influence the D to commit a fraud on the US, or • (c) induce the defendant to act in violation of a lawful duty. |
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, bribery is an inchoate crime
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It is complete when the payment is either offered or requested, even if the objective is never achieved. Payment need not actually influence the public official so long as it was offered or requested with the necessary intent.
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Elements of Giving or Offering to Give an Illegal Gratuity:
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• Defendant gave or offered to give something of value
• The recipient or offeree was (or was selected to be) a federal public official • The D intended that the thing of value be given as compensation for an official act already performed or to be performed otherwise than as provided b law for the proper discharge of the defendant’s official duty. |
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Elements of Receiving or Agreeing to Receive an Illegal Gratuity:
RoA SV FPO COA |
• D received or agreed to receive something of value
• D was (or was selected to be) a federal public official • D received or agreed to receive the thing of value as compensation for an official act already performed or to be performed, otherwise than as provided by law for the proper discharge of the defendant’s official duty. |
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Bribery v. Gratuity
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• Bribery REQUIRES a quid pro quo - gratuities do not. Direct proof of a quid pro quo is difficult to establish, which can also lead to charging gratuity instead.
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If the federal public official has already performed the act before the D gives him something of value
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only a gratuity charge is possible. Bribery is completely future oriented.
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• If the gift is given before the action by public official takes place:
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A gratuity is probably a gift that was given with the expectation that the public official will more likely act in a specific way - an expectation of conduct, but not an agreement is more likely a gratuity.
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• If the official had already decided how to act before the gift, gratuity is appropriate
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If they were still undecided and the gift led to their decision, then a bribery charge is appropriate.
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Federal Bribery: Something of Value
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something of value is subjectively determined, it need not have an actual objective value (D here received worthless stock that he believed had value - conviction upheld)
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Federal Bribery Nexus Required B/T Offer & Official Act: Sun Diamond Growers
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illustrated that both gratuity and bribery charges require a nexus between the offer or receipt of something of value and a particular official act.
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Corrupt Intent Required: Alfsi
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Court defined corrupt intent as the intention to procure a quid pro quo agreement, to influence an official act.
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Federal Official Bribery-
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Statute is violated even if the official never performs the requested action, or has no authority to perform such action. Playacting, or never intending to perform the action is still a culpable activity.
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Elements of Federal Program Bribery:
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• Defendant solicited or received, or offered or gave, a thing of value;
• The thing of value was solicited or received, or offered or given, in order to benefit an agent of an organization, or a state, local, or Indian tribal government, or any agency thereof • The thing of value was given in connection with any business, transaction, or series of transactions of an organization, or of a state, local or Indian government, or any agency thereof, involving anything of value of $5,000 or more. • The defendant acted corruptly • The entity for which defendant acted as an agent received more than $10,000 a year in federal assistance. |
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Federal Program Bribery Connection Between Bribe & Federal Funds (Salinas):Prisoner paid bribes to Salinas (a prison guard) in return for “contact visits” with a prisoner’s girlfriend.
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• Court held that the government need NOT prove that federal funds were involved in the bribery transaction.
• Need not prove that the bribe in question had any particular influence on federal funds • Supreme Court later took up this issue in Sabri, and decided that through the necessary and proper clause, Congress had acted within its power by removing the nexus between the bribe and federal funds - this is intended to ensure the integrity of funds in federal programs. |
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FEDERAL DRUG CRIMES: Jurisidiction
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• Jurisdiction is based on findings of fact by Congress that determined that drugs frequently flow in interstate commerce and are a large industry - therefore it does not make sense to determine which drugs moved in interstate commerce or not - therefore all drugs fall in jurisdiction.
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General Drug Offense - 21 USC 841
AP KI or WB MDD CS |
• Any person
• Knowingly or intentionally (mens rea) OR through willful blindness • Manufactures, distributes, or dispenses (actus reus) OR possesses with intent to manufacture, distribute or defense • A controlled dangerous substance (as listed under 21 USC 812) • (being part of a class of activities that collectively affect interstate commerce - jurisdictional hook) |
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Willful blindness - not a defense to a drug charge
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- judge can permit jury o find that if D lacked knowledge but only lacked it because they willfully blinded themselves to the circumstances, this is the equivalent of knowledge itself.
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Distributon-
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does not have to be a sale, could be giving them away, trading for another object, etc.
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Dispensing
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covers those lawfully allowed to dispense drugs, but are doing so in an unlawful manner.
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United States v. Grant (sentencing)
• Issue: whether court must base the sentence on the weight of the pure drug, or on the combined weight and the water in which it was contained (LSD) |
Supreme Court had previously said the liquid weight in water should count toward sentencing, this court affirmed that - reasoning that dealers are free to choose the method in which they deliver their drugs so they can scrutinize its weight and minimize their sentences if they wish.
facts that trigger a mandatory minimum sentence do not have to be submitted to a jury and proved beyond a reasonable doubt |
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Drug Conspiracies - 21 USC 846:
AP KI AorI CO |
• Any person who
• knowingly or intentionally (mens rea) • Attempts OR inspires (actus) • To commit any offense defined in this subchapter (21 USC 841) • (incorporates jurisdictional element from above) |
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Overt Act Drug Conspiracies-
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NO OVERT ACT REQUIRED. If two or more people conspire with the proper mens rea, the crime is complete at that moment and in theory could prosecute it then. However, you usually need some act to show the intent was serious - and prosecutors drowning in drug cases so they typically only take the strong ones.
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Importing & Exporting Drugs - 21 USC 960:
AP KorI IorE CS |
• Any person who
• Knowingly or intentionally • Imports OR exports • A controlled dangerous substance (as listed in 21 USC 812) • (foreign commerce as jurisdictional hook) |
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Conspiracy to Import/Export - 21USC 963:
AP K or I A or C CO(I or E) |
• Any person who
• knowingly or intentionally • Attempts or Conspires • To commit any offense in this subchapter (import/export) • (incorporates the jurisdictional elements - foreign commerce) |
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Venue Drug Crimes:
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Can charge D’s anywhere the drugs ever moved, where conspiracy took place, etc. Generally, you want to charge case where the agent is and where the witnesses are - or most commonly, where the bust took place.
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Drug Forfeiture
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Important area of law - Drug D’s can have any object purchased with drug money or that contained drugs seized and sold - helps fund police depts.
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Domestic Money Laundering Elements - 18 USC 1956(a)(1) Basics
FT PUA IF |
• The D conducted or attempted to conduct a financial transaction; (actus)
• The D knew that the financial transaction involved the proceeds of some type of unlawful activity that constitutes a felony under state, federal, or foreign law. (Mes Reas) • The funds in fact were proceeds from specified unlawful activity, (factual element) Also Need Any of the of the "Hooks" |
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Domestic Money Laundering Elements - 18 USC 1956(a)(1)
Hooks Menu IFSPUA ICTF D or C CTR |
Knowingly...
-the transaction done with the intent to further a specified unlawful activity - the intent to commit tax fraud in violation of 7201 of the IRC - the transaction is designed in whole or in part to disguise, conceal or hide the source of the money, -is designed in whole or in part to avoid the currency transaction reporting laws |
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International Money Laundering Elements - 1956(a)(20 (Basics)
M or A MI I or 0 |
• The D moved or attempted to move monetary instruments or funds;
• The movement or attempted movement was out of or into the United States, and any of the hooks |
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International Money Laundering Elements - 1956(Hooks)
IPSUA AK SPUA & CSF CTR |
-D acted with the intent to promote a specified unlawful activity;
-D acted with K that• The monetary instrument or funds were from some form of unlawful activity, which activity constitutes a felony under state, federal, or foreign law, AND • The movement of funds was designed in whole or part to either (see Cuellar below): • Conceal the source of the funds • Avoid a currency transaction reporting requirement |
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Sting Offenses - 1956(a)(3):
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• Elements:
• Whoever, with the intent • To promote the carrying on of specified unlawful activity; • To conceal or disguise the nature, location, source, ownership or control of property believed to be the proceeds of specified unlawful activity, or • To avoid a transaction reporting requirement under State or Federal Law • Conducts or attempt to conduct a financial transaction involving property represented (by law enforcement) to be the proceeds of specified unlawful activity; OR • Property used to conduct or facilitate the unlawful activities |
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Differences Between 1956(a)(1) and 1956(a)(2):
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• 1956(a)(1) deals with transactions occurring within the United States, 1956(a)(2) deals with movements of funds into and out of the United States
• 1956(a)(1) deals with broadly defined “financial transactions” while 1956(a)(2) deals with transactions involving “monetary instruments” • Only 1956(a)(1) encompasses an intent to commit tax fraud. |
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Mens Rea 1956
K-->SPUA & IK---CPUA |
• Threshold mens rea requirement: Whether or not she knew at the time that the money was derived from some form of unlawful activity. You CAN satisfy this element through willful blindness.
• Second Mens Rea Requirement: You must intend or know that the transactions were designed to conceal or disguise the proceeds. |
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Merger Money Laundering
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• You cannot charge someone under 4(a) and 4(c) of the money laundering statute as it would violate double jeopardy protections under the Constitution. You need to elect to proceed under one of the counts and dismiss the other count.
• This happens a lot with money laundering because prosecutor can allege multiple violations and prosecutors will lump them all into the same count. You are not supposed to charge multiple crimes in 1 count (this is duplicity) |
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Dupliticy Money Laundering
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• Putting two or more crimes in 1 count in the indictment - should not do this.
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Multiplicity
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• Charging the same count multiple times in the indictment. Blockburger says each crime must be a separate crime and have an element that other crimes do not have (i.e. can’t charge bank robber with 1 count of robbery for each teller he held up)
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18 USC 1956(a)(2) - Transport Charge - Cuellar v. United States:
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• Government must demonstrate that the defendant did more than just hide the money, but that the transmission was designed in whole or in part to avoid a transaction reporting requirement.
• Just concealing money not sufficient here, the transmission must be designed to conceal, not that while you are transmitting it, you conceal it. |
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Prohibited Monetary Transactions - 18 USC 1957:Monetary Transaction
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defined broadly to include an array of matters involving financial institutions - deposit, withdrawal, transfer, exchange, in or affecting interstate or foreign commerce, by or through a financial institution.
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Elements:18 USC 1957 - Engaging in Monetary Transactions in Property Derived from SUA
AorE-->MT VG> SPUA D and T=USA K-->UA & V> |
• Elements:
• The D engaged in or attempted to engage in a monetary transaction • The monetary transaction was of a value greater than $10,000 • The transaction was derived from specified unlawful activity • The transaction took place in the United States and the defendant is a “United States Person” • The D had knowledge that the transaction was derived from some form of unlawful activity and was of a value greater than $10,000 (direct knowledge or willful blindness) |
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Liability 1957
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• Imposes ABSOLUTE LIABILITY for doing anything with monetary instruments over 10K. But, still must know that the money is derived from SUA.
• Liability can also apply to third parties such as banks or employees who knowingly come into possession of criminally derived proceeds (Campbell - lawyer was willfully blind to fact client was a drug dealer and using criminally derived funds to purchase land) |
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Mens Rea 1956(a)(1) Money Laundering
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(1) knew the money constituted the proceeds of unlawful activity, AND (2) acted with further knowledge or intent under the various theories
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Scope 1956(a)(1):Scope Money Laundering
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Covers all “financial transactions” a broadly defined term that includes gifts and transfers of property titles
No specific dollar amount |
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Mens Rea 1957
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Requires proof that D “knowingly engaged ... in a monetary transaction in criminally derived property”
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Scope 1957 Money Laundering
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Covers only “monetary” transactions, which are limited to transactions through financial institutions.
Requires transaction to be of an amount greater than $10,000 |
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Timing Issues Under 1957:
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• When do the proceeds become “criminally derived?”
• Courts have reversed convictions under 1957 when at the time of the monetary transaction, the D had not actually completed the crime and received the illegally-obtained funds (i.e. funds had been wired to defendant but not deposited into his account yet) |
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Commingled Funds Under 1957:
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need not trace illegal proceeds under 1956 because the courts tend to look at it as if though there is money in an account that is dirty and you can’t identify which is the clean/dirty money - if there were transactions thereafter involving that money that promoted criminal conduct, they will treat this as sufficient proof on the theory that “proceeds” is a broader term.
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31 USC 5316 - Filing of CTR’s by Domestic Financial Institutions:
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• A “domestic financial institution” was involved in the transaction
• The transaction involved US Currency or specified monetary instruments • The transaction was for more than $10,000 • The domestic financial institution failed to file the required report; and • The D acted willfully (mens rea) |
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Financial institutions 31 USC 5316
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• “Financial institutions” defined broadly: includes banks, stock brokers, insurance brokers, pawn brokers, car dealers, etc.
• Multiple branches of 1 bank constitutes 1 financial institution - must watch for this! • Individuals who act as banks, etc. may also fall under this |
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31 USC 5324(a) - Structuring & Related Crimes in Connection with Financial Institution Transactions:
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D acted with the purpose of evading the CTR laws an regulations AND
1.Caused or attempted to cause a domestic financial institution to fail to file a CTR, or • Cause or attempted to cause a domestic financial institution to file a CTR that contained a material false statement or omission, or • Structured or attempted to structure any transaction with one or more domestic financial institutions. • Government must prove that the D knew of the reporting laws and intended to evade them - but does not need to prove D knew structuring is a crime. |
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21 USC 6050I - Cash Transactions Reporting by Businesses
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law expanded to all persons engaged in trade of business, must report all cash transactions over 10K by IRS form 8300.
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General Theories under RICO:
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• 1962(a) - defendant uses racketeering money to invest in legitimate business
• 1962(b) - defendant uses racketeering activity to infiltrate or take control of a business or other entity - least charged • 1962(c) - defendant uses legitimate business as the vehicle for illegal activity - most charged • 1962(d) - conspiracy to violate either (a) (b) or (c) |
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Elements RICO-1962(a) Investing in Legitimate Business
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It shall be unlawful for any person
• Who has received any income • From a pattern of racketeering activity (PORA) • OR through a COAUD (collection of an unlawful debt - loan shark) • To use or invest directly such income • In acquisition of any interest in, or establish operation of • Any enterprise • Engaged in or otherwise affecting interstate commerce • Or conspire to violate this Act |
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RICO 1962(b) Taking Control of a Buisness
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It shall be unlawful for any person to
• Through a PORA OR through a COAUD • To acquire or maintain any interest/control of • Any enterprise • Which is engaged in other otherwise affecting interstate commerce • Or conspire to violate any of these provisions |
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1962(c)-Using Legitimate Business as Vehicle for Legal Activity
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18 USC 1962(c):
It shall be unlawful for any person: • Employed by or associated with • Any enterprise • Engaged in or the activities of which affect interstate or foreign commerce • To participate in the conduct of such enterprise’s affairs • Through a PORA or COAUD • Or conspire to violate these provisions. |
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RICO Person v. Enterprise
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must be separate and distinct from the enterprise - and enterprise itself must be engaged in activities that affect interstate commerce and the enterprise’s affairs are conducted through a PORA.
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1962 (C&D) Combo Punch
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Strong ability to bring in evidence through co-conspirator Pinkerton doctrine due to the conspiracy charge. NO OVERT ACT required in any of the conspiracies - just mens rea.
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RICO 1961: Person
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includes any person or individual or entity capable of holding a legal or beneficial interest in the property
• Both corporations and people included, with the primary target being people. Might want to go after an entity if state wants to modify the behavior of the entity or go after its assets. |
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RICO 1961 Pattern of Racketering Activity
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requires at least 2 acts of racketeering activity, the last of which occurred within 10 years of the prior activity.
• SOL measured after the LAST act of RA - therefore you can go back 15 years. • Do not need to have been convicted of any of the alleged RA |
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RICO 1961 Acts of Racketeerng
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state felonies and all major federal felonies fall under here - wire fraud, mail fraud, drug offenses
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Requirements for the Pattern of Racketeering Activity: Relatedness
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Relatedness - in terms of the acts themselves, they are looking for a relationship between and among the acts.
• Acts similar in terms, etc. • Not difficult to really show the relationship part - just need some kind of organization to these acts - but you can’t just throw random acts together. • Heller - if acts are too dissimilar, or had dissimilar results, or were committed differently they may not satisfy relatedness. |
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Requirements for the Pattern of Racketeering Activity: Continuity
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• Continuity - must show continuity or its threat simpliciter
• Arguing only 2 acts committed might be a defense, will put burden on prosecutor to prove that but for the fact the D’s were arrested, the acts would have been ongoing. • Can show acts occurred over a long period of time - acts occurring only during a few weeks or months and not threatening future acts would not satisfy this nor would sporadic acts or two isolated acts. • A distinct threat of future possible threat will surely satisfy this - looking for a long term association. |
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Racketering Acts
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• If a conspiracy is included in a statute, this could constitute a predicate offense
• Where a conspiracy qualifies as one of the predicate crimes, there is authority to support the fact that a single completed conspiracy could supply both predicate acts for a RICO charge. • Predicate offenses can be crimes that have been subject to prior prosecutions • Can even include acts for which D has been acquitted in state courts |
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The Enterprise Element under RICO:
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• Enterprise covers all logical things - corporations, partnerships, gangs, mafia families, etc.
• Enterprises can be legitimate (corporations, etc.) and illegitimate (mafia/gangs) |
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RICO Enterprise-United States v. Turkette - Legitimate vs. Illegitimate Purpose:
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illegal enterprises do fall under RICO as associations-in-fact. Does not need to be an actual legal entity.
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RICO Enterprise Economic Motive
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• The court noted that “affect” means to have a detrimental influence on interstate or foreign commerce, and this affect can affect commerce without having its own profit seeking motive.
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Assocation in Fact Enterprise: Structure
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\• Purpose:
• Relationships among those associated with the enterprise: • Longevity Sufficient to permit these associates to pursue the enterprise’s purpose: • Such a group need not have hierarchical structure or chain of command. |
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Association in Fact Enterprise: Ascertainable
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does not need a group with fixed roles or a set chain of commands - does not need a name, meetings, dues, rules or regs, etc. Simply follows Turkette - just needs to be a continuing unit that functions with a common purpose.
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Asociation in Fact: Must the structure go beyond that inherent in the parttern of racketering n which members engage.
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need not have any hierarchies, etc. Court says that using the definition of “beyond that inherent in the pattern of racketeering activity” to mean that of course a separate enterprise would be a correct way to view this, but inferring it from a pattern of racketeering activity may be okay because the evidence tends to coalesce.
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A Legal Entity as the Enterprise Under RICO:
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• Governmental units and states have been used as RICO enterprises
• These are really not an issue on proof. |
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Person Under RICO
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• Under 1962, criminal charges can’t be brought against the “enterprise” but rather against “any person” who has the necessary relationship with the enterprise- under (a) the person who invests income derived from the racketeering activity the enterprise, (b) a person who acquires or maintains an interest in an enterprise thru a pattern of racketeering activity, or (c) a person, who associated with an enterprise, conducts its affairs through a pattern of racketeering activity.
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Person Under RICO Limits
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• Same entity CAN be both the enterprise and “person” under 1962 (a) and (b)
• Same entity CANNOT be the enterprise and “person” under 1962(c) on the basis that one man cannot associate with oneself |
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RICO:Cedric Kushner Promotions, Inc. v. King (sole shareholder corporation):
• Plaintiff claimed both the President (and sole shareholder) conducted the corporation’s affairs through the pattern of racketeering acts. • Issue: Are there two separate entities, the “person” and “enterprise” |
• Holding: Here, they are two distinct entities - and therefore the RICO charge applies.
• The corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different different entity with different right rights and responsibilities due to its different legal status. • Court also reasoned that this comported with RICO’s goal of punishing hte use of an enterprise as a vehicle for illegal conduct. |
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RICO:Fitzgerald v. Chrysler Corporation:
• Plaintiffs alleged Chrysler sold consumers extended warranties promising all sorts of warranty protection that Chrysler had secretly determined not to provide, so that when a consumer brought a car into a dealer for repairs, Chrysler would refuse to pay. • Try to allege that the dealers and Chrysler are the RICO enterprise. |
• Courts don’t allow this because then every fraud case against a large corporation would allow the corporation to be the RICO person and the corporation plus employees its “enterprise”
• An employer and its employees CANNOT constitute a RICO enterprise. Just because Chrysler does business through its agents does not make it fall under RICO here. • BUT SEE - Bendzak - insurance licensed agents worked in tandem with Midland to perpetuate fraud by marketing annuities to seniors - gives agents high commissions for deferred annuities - allows the existence of a RICO corporation here. |
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Enterprise: Firm, Employment, Subsidiries, Parent Cop etc.
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A firm and its employees or a parent and its subsidiaries are not an enterprise separate from the firm itself (Bachman v. Bear Stearns).
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RICO Corporation Bendzak:
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insurance licensed agents worked in tandem with Midland to perpetuate fraud by marketing annuities to seniors - gives agents high commissions for deferred annuities - allows the existence of a RICO corporation here.
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The “Person’s Conduct” of the “Enterprise’s Affairs”: Operation/Management Test (Reeves v. Ernst & Young) under 1962(c):
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• Conduct: One must have at least SOME part in directing the affairs of the enterprise
• Participate: in order to participate one must have at least some part in directing those affairs • Thus, RICO liability is not just limited to those with a formal position within the enterprise, but some part in directing the enterprise is required. If you don’t participate in the operation or management, you are not liable. |
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Post Reeves Developments
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Reves analysis does not apply where a party is determined to be inside a RICO enterprise - only outsiders directing the enterprise from outside
• 2d Cir - taking directions and performance of tasks that are necessary or helpful to the enterprise, without more, are not enough to bring a D within 1962(c). While RICO can attach to lower rung participants sometimes, in some cases the D is not on the ladder at all (janitor who saw illegal acts, and left when ordered to) • LAWYERS - furnishing a client with ordinary professional assistance, even when the client happens to be a RICO enterprise, will not normally rise to the level of participation sufficient to satisfy Reves. • Cummings - Bribery alone is not sufficient to show operation or management test - even if employees are doing what you’re asking them to |
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Terrorism Definition
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) involve violent acts or acts dangerous to human life that are in violation of the US or any state that (b) appear to be intended to intimidate or coerce a population, intimidate a government, or affect the conduct of a government.
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Terrorism Elements
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• Perpetration of Violence
• Innocent Civilians • Intent to cause violence/or wanton disregard. • Coercing or intimidating the enemy. • Achieve a political, military, ideological, or religious goal. • Almost always a war crime because it targets innocent civilians. |
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International Jurisdiction Principles:Terrorism
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• Territorial - acts within the US or that have an affect on the US (pretty broad)
• Active Personality - the perp is a national of the US - sovereign has jurisdiction over nationals worldwide • Passive Personality - victim is American. sovereign can assert jurisdiction over a foreign perp • Protective Principles - US interests can be protected even if no US citizens are perps or victims and even if it does not affect territorial jurisdiction (regulation of currency, passports, etc. fall under this) • Universal jurisdiction - not used in this terrorism statute - b/c courts are not crazy about acknowledging this b/c it might subject american politicians to jurisdiction in international courts as war criminals. • Reach under the terrorism statute is tremendous |
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Substantive Offenses Under Terrorism Statute: 2332a - Use of Weapons of Mass Destruction
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• Any weapon listed under 18 USC 921 would be sufficient here 0 arguable even a flare gun might meet this definition.
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Substantive Offenses Under Terrorism Statute: 2332b - Acts Transcending National Boundaries -
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• Essentially crimes of violence that for whatever reason have jurisdictional consequences that transcend borders (interstate commerce - using facilities, obstructing or hindering interstate commerce, etc.)
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Substantive Offenses Under Terrorism Statute:2332d - Financial Transactions -
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• Also expanses - not to be confused with 2339 financial support.
• Does NOT require you actually intend to assist terrorist activity - strict liability statute! • Criminalizes anyone being a US citizen who has knowingly or has reasonable cause to know a country is designated under export administration act as supporting international terrorism - if you engage in a financial transaction with the government of that country, you are liable. |
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Substantive Offenses Under Terrorism Statute: ETC
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• 2332f - Bombings of Public Places
• 2332g - Missile Systems Designed to Destroy Aircraft • 2332h - Radiological Dispersal Devices (dirty bombs) - statute defines this very broadly, designed or intended to release radiation at a level dangerous to human life (this is a very low quantity) |
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Material Support Terrorism Statutes - 18 USC 2339:
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• 2339 - Harboring or Concealing Terrorists (classic harboring a fugitive statute)
• 2339A - providing material support to terrorists • 2339B - providing material support or resources for designated terrorist organizations • See definitions in this section for “material support” - broad definition |
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Mens Rea Terrorism 2339(a)&(b)
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• 2339A contains mens rea of “knowing or intending” that the material support being provided is to be used in the commission of a crime
• 2339B contains a mens rea of “knowingly” providing material support to an FTO. • Under both, knowledge is the mens rea - neither require a mens rea of purpose. |
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Providing Material Support to Terrorists Organizations 239(b) Requirements
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• Under 2339B - need to to show that D knew that (1) organization was an FTO or had committed unlawful activities that caused it to be so designated, (2) what he was furnishing was “material support”
• to avoid 5A problems, Al-Arian court said that government needs to prove D had the specific intent (knew) that the support would further the illegal activities of the FTO. • BUT, these seem to be the only opinions injecting this level of knowledge required. • Sending money to a subsidiary of an FTO would also violate 2339B but, the defnednat would at least need to know the groups to which they gave money were affiliated with FTO’s (hamas here) and that they provided support. |
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Designation as an FTO:
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• Only the FTO has standing to challenge its designation as an FTO
• A criminal defendant does NOT have the ability to challenge the FTO’s status at their trial |
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3 Goals of Federal Sentencing Guidelines:
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• Honesty - wanted defendants to serve the time they got. Only discount is for good time, 52 days a year. Other reductions may be available later.
• Drug rehab, boot camps, shock incarceration programs, etc. might all reduce the sentence by a year or so each. Safety valve can also knock time off - if you’re a first time non-violent offender, you may be able to get a reduction under other provisions of the guidelines. • Abolished Parole • Uniformity in Sentencing - Equally situated offenders should be sentenced equally for crimes • There is still a 25% range to help reflect local attitudes on certain offenses. • This has not worked. • Proportionality - If we view a crime more seriously it should be punished more seriously • Always have the problem of a “moral” crime being punished too harshly. |
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Sentencing Factors:
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• Start with base offense level (every crime is keyed to a sentencing provision)
• You adjust the base level based on the notion of quantity especially for fraud/drugs - more serious the crime, the higher the base level. • Also, specific offense characteristics (D had a gun) that will increase the crime by certain levels. • I.e. committing fraud on elderly, lawyers abusing position of trust/using special skill in commission of an offense |
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Sentencing Mitigating Factors
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• Then you count up mitigating factors
• Acceptance of responsibility - generally 2 levels off for pleading • Super acceptance (early pleading) can get 3 levels off. • Prosecutors can give a 5K letter which is a recommendation by the US Attorney that the judge downwardly depart from the guidelines based on participation of the D in the investigation • With a 5K letter, judges can now ignore the mandatory min. • Rule 35 Motion can be used post-sentencing for a reduction in time for cooperation (snitching) |
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Scheme to Defraud1. Durland- D says only can be convicted if misrepresentation of present or past facts which is not case in this situation. Durland had scheme where he would give bonds and promise they’ll make money but really had no intention of returning the money
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Ct. expanded application to included promises (not just misrepresentation of facts). Previously promises were not enough b/c probably have to prove whether person intended to fulfill the promise
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materiality
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materiality: person has to be objectively relying on it (reasonably). However, if perpetrator knows or should know of person would take the misrepresented facts as important, then this works too (svete)
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Honest services fraud:
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1. Taking bribe or otherwise being paid for a decision while purporting to be exercising independent discretion
2. Nondisclosure of material information |
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Brown v. US (one issue in Enron scandal) – employees misstated earnings on bus. sheets.
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Ct decides honest services applies only to cases where an employee is conscious of the fact that his actions were something less than in the best interests of the employer.
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financial transaction requirement
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a. any way affects interstate or foreign commerce, using movement of funds by wire or other means, or monetary instrument, or transfer of title to real property, or vehicle, or involving use of bank
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Can a financial institution be charged w/ money laundering?
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banker could be charged. Filing a CTR has found to not be sufficient for protection, and some don’t think filing a criminal referral regarding a suspicious transaction is either. If there are other actions done that make it suspicious, then they could be liable.
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RICO Penalties Interaction
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1. in combo w/ prosecution for the RICo offense (substantive offense), the offense requires previous crimes committed
2. conspiracy to commit RICO also available. 3. So, can have substantive RICO crime (20 yrs), conspiracy to commit RICO (20 yrs) and predicate crime (e.g. Hobbs Act w/ penalty of 20 yrs) --- so can get Large penalty |
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The enterprise element
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1. can be an individual, corporation, union, etc. (see def.)
2. can be against mafia families, gangs, or even ad hoc small groups who have gotten together to commit a specific set of crimes or particular kind of crime – allowed for their primary purpose of getting organized crime 3. for (c) same person/entity cannot be both person and enterprise, but under (a) and (b) it can be. |
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Association in Fact Test
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TEST: must have 1) common purpose, 2) some longevity, 3) some structure (could just be continuing relationship between parties, all sufficient to permit these associates to pursue the enterprise’s purpose.
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can RICO be used to prosecute political groups that engage in criminal activities even though they have no economic motive?
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no economic motive is necessary. (c) doesn’t seems to require economic activity but only a vehicle through which unlawful pattern of racketeering activity is committed
v. Note: enterprise can be legitimate or illegitimate business |
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Closed-ended Continuity
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a. Closed period of repeated conduct w/ no prospect of future repetition
b. Temporal minimum or threshold – have to go on long enough to say it’s a pattern (in HJ case, says 6 years may be enough) |
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Open Ended Continuity
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a. Past conduct suggests or threatens repetition in the future – prospect of repetition
b. No real continuity requirement here. Richardson – 3 ½ months ok. c. Just need to show that they have plans to do it again. Even if they’re arrested, this can still be shown. d. Allow for punishing organized crime for not only what they did, but what they might have done. |
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Racketeering Activity (Act and Federal Crimes)
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c. (A) – “any act” is interpreted broadly. Includes attempt or conspiracy.
d. (B) federal crimes – for these, it has to be indictable under the appropriate section. So, if attempt or conspiracy is not in the statute itself, then doesn’t fall under this statute |
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conspiracy as predicate offense
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a. conspiracy to commit the act and being charged w/ the underlying act can constitute the necessary underlying 2 crimes, depending on the section we’re looking at. Under (a) it (d) it can be anything. Under (b) etc, it has to be indictable under the statute (meaning have a conspiracy clause). In fact, the crime which is object of conspiracy may be used as the other predicate crime even if stat doesn’t allow punishment for both crimes
b. 2 conspiracies that otherwise qualify as racketeering can be two predicate crimes if they’re sufficiently separate |
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RICO conspiracy
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vii. RICO conspiracy violation can be applied at the inchoate stage (just like a conspiracy to commit bank robbery could).
viii. Can also charge someone for RICO and for conspiracy to commit RICO if the object crime has been committed (can imply penalties for both) |
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Salinas – issue: what must a person have agreed to in order to be charged w/ RICO conspiracy?
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Ds in a RICO conspiracy charge case do not have to have agreed to commit the two predicate offenses themselves. Only have to have agreed to a course of conduct that would result in commission of two predicate crimes.
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