Fed Crim Law - Outline PDF

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Federal Criminal Law

I.

Ego Nwafili Fall 2020

Default state of mind proof requirement in federal criminal cases

If no state of mind is required by law for a federal criminal offense: -state of mind government must prove is knowing AND -if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe was unlawful, the government must prove that the defendant knew, or had reason to believe the conduct was unlawful II.

Federal interest

Direct federal interest involves protection of these areas: 1. Federally owned property 2. Persons employed by the federal government 3. Federal programs 4. The federal purse 5. Immigration policy 6. Piracies 7. Offense against the law of nations Congress has authority to enact criminal statutes aimed at the protecting the direct federal interest. Power comes from Art 1 sec. 8. Or through the necessary and proper clause if not enumerated. III.

Commerce

Lopez: Congress may only regulate three broad activities in commerce: 1. Channels 2. Instrumentalities, person or things 3. Substantially affect or relating activates *internet can be channel just like brides, railroads etc. IV.

Petite policy

The petite policy establishes guidelines for the exercise of discretion by DOJ for determining whether to bring federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding. Congress expressly provides state judgement of conviction or acquittal on the merits is a bar to any subsequent federal prosecution for the same act or acts.

Federal Criminal Law

Ego Nwafili Fall 2020

Precludes nitiation or continuation of a federal prosecution following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three prerequisites: 1. Involves federal interest 2. Prior prosecution left that interest demonstrably unvindictated 3. Applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes federal offense and that admissible evidence prob will be sufficient to obtain and sustain a conviction by an unbiased trier of facts If all this is satisfied, permission from assistant AG is needed. Policy only applies to charging decisions.

V. HOBBS ACT *Criminalizes: 1)robbery 2)extortion by force, threat or fear 3)extortion under color of official right ( quid pro quo) Evans v. United States: A public official who obtains a payment in exchange for an exercise of his or her official power is guilty of extortion even if the public official did not induce the offering of the payment.(acceptance of bribe constituted an implicit promise to use his official position to serve the interest of the bribe-giver How to prove: proof of a promise or undertaking in return for something of value(essential element), explicit agreement doesn’t need to be shown, only payment was made in return for official act that the public official understood that as a result of payment they were Must affect/delay/obstruct commerce or move something in commerce through robbery, extortion or attempts/conspires of both those. Also committing or threatening physical violence to any person or property in furtherance of plan/ purpose of violation; VI.

Mail Fraud

*conduct amounting to obtaining property in false pretenses, and also used to prosecute not traditional fraud too- bribery or extortion for example, also stuff that does not violate state or federal laws, corporate and commercial settings, commercial bribery and political corruption* Need: 1. A mail or wire communication 2. A scheme and intent to defraud someone 3. A material deception

Federal Criminal Law

Ego Nwafili Fall 2020

. Use of postal service or authorized mail depository for mail matter to or intend to fraudulently obtain money Scheme or artifice= includes depriving another of intangible right of honest services Cases Carpenter: The mail-fraud statute is not limited to protecting tangible property rights. Cleveland: State licenses do not constitute property for purposes of a federal mail-fraud prosecution Durland: To violate the federal mail fraud statute, it is not necessary that the intent to defraud be comprised of a representation of existing fact.

VII. BANK FRAUD Loughrin: petitioner’s argument that he only wanted to deceive target and not bank regretted, accepting this would exclude common bank fraud cases like deceiving a non bank custodian of foreclosed property into giving up bank property; reaches only cases where the defendant’s false statement is the mechanism naturally inducing a bank or custodian of bank property to part with money in its control

VIII.

WIRE FRAUD

Need: 1. A mail or wire communication 2. A scheme and intent to defraud someone 3. A material deception making it illegal to defraud others by means of wire or other electronic communications in interstate or foreign commerce. IX. FEDERAL BRIBERY PROGRAM/BRIBERY Official acts: only applies to federal officials and other exercise of federal responsibilities *both bribery and the gratuities offense require proof that something of value was requested, offered or given Subjective value to person Public official: federal officers or employees/ any person acting for or on behalf of the united states, any department, agency or branch of government in any official function or under or by authority of any such department, agency or branch of government 1. something of value was requested, offered or given 2. to a federal public official 3. with illicit intent

Federal Criminal Law

Ego Nwafili Fall 2020

Main difference between two is presence or absence of quid pro quo. bribery requires quid pro quo and gratuities require that the thing of value was offered or solicited “otherwise than as provided by law for the proper discharge of official duty for or because of any official act performed or to be performed by such public official. Both require a nexus between the offer and receipt of something of value and some particular official act for or because of which it was given Section 201 is aimed at the bribery of federal officials, the federal interest in such offense is substantial and direct: bribery of federal officials is punishable under the necessary and proper clause because it interferes with the conduct of the federal program in question. Federal bribery program involves employees of state and local governments as a well as private orgs participating in federally funded programs: the exercise of federal jurisdiction over the federal official ( or the agent of an entity receiving federal funds) is part and parcel of the exercise of jurisdiction over the program in question. Federal bribery program Essentially, outlaws federally giving and getting bribes for the local peeps when 5k+ FCPA Outlaws foreign bribes X. TRAVEL ACT Traveling in interstate or foreign commerce or use of mail or any facility in interstate or foreign commerce with intent to: Distribute proceeds of any unlawful activity Commit any crime of violence to further any unlawful activity Otherwise promote, manage, establish, carry on or facilitate the promotion, management, Establishment or carrying on of any unlawful activity Unlawful activity: any business enterprise involving gambling, liquor on which the federal excise tax has not been paid, narcotics or controlled substances or prostitution offenses in violation of the state laws in which they are committed or of united states. Extortion, bribery or arson in violation of the laws of state which they were committed or of united states. Any act which is indictable under subchapter II of chapter 53 of title 31 Does not apply to saving promotions raffles conducted by an insured depository or an insured credit union Offense is complete when person engages in travels or use of mail with intent to committing any of the aforementioned acts and then goes on to commit or attempt to commit one of the prohibited acts Separately indictable offense from the underlying crime committed

Federal Criminal Law

XI.

Ego Nwafili Fall 2020

CURRENCY REPORTING/MONEY LAUNDERING The Bank Secrecy act of 1970 required the reporting of large cash transactions. Financial institutions are required to report cash transactions over 10k to government, failure to report constitute a crime Persons transporting 5k out or into the united states are required to file a report Money laundering is the process in which one conceals the existence, illegal source or illegal application of income and disguises that income to appear legit cleaning money Structuring offense: Knowledge of reporting requirements Action intended to evade the requirements Government did not have to prove knowledge of structuring transaction was unlawful but had to prove that he acted with a purpose to evade requirements *Can structure to avoid taxes

Laundering of money instruments Requires engaging in financial transaction/ unlawful activity proceeds needed Financial transaction undertaking With intent to promote specified unlawful activity With intent to evade taxes or With knowledge that the transaction is intended to conceal information about proceeds of unlawful activity With knowledge that transaction is intended to evade currency reporting requirements Conspiracies held to the same penalties as completed offense Concealment and promotion prongs are most common How to improve intent: two levels of mens rea: knew or intended to promote the carrying on of specified unlawful activity and intended or knew the transaction were designed to conceal or disguise the proceeds government mut prove only one of the four specific intents international transport: same four but can use clean money meaning no illegal activity required conspiracy doesn’t require overt act

Federal Criminal Law

Ego Nwafili Fall 2020

money laundering only requires knowingly, no intent requirement like previous section money transactions: deposits, withdrawals, transfers, and exchanges of funds through a financial institution engaged in interstate commerce, 10k+ XII.

CORPORATE CRIMINAL LIABILITY

Corporations, banks, unions and any other association exist as “persons” Respondeat Superior: corporate responsibility for crimes committed by agents, under the doctrine, an entity may be held liable for the acts of it agents only where the agents are: 1) acting within the actual or apparent scope of their employment; and 2) acting with the intent, at least in part, to benefit the entity An agent’s job description will never expressly include illegal conduct. Corporation is legally bound by the acts and statement of it agents done or made within the scope of their employment or their apparent authority. Acts within the scope of employment are acts done on behalf of the corporation and directly related to the performance of the type of duties the employee has general authority to perform. Apparent authority is the authority which outsiders could reasonably assume that the agent would have judging from his position with the company, the responsibilities previously entrusted to him, and the circumstances surrounding his past conduct. Limited to high ranking officials Acts benefiting corporation can be imputed to the corporation In certain circumstances the knowledge of non-employees may be attributed to corporation Persons knowledge who is imputed must have relationship to the company in some capacity....