The Annual Survey of White Collar Crime
The Annual Survey of White Collar Crime (ASWCC) is a comprehensive topic-by-topic summary of white collar crime. The goal of the ASWCC—which is written, updated, and edited by members of The American Criminal Law Review—is to provide practitioners with a point of reference when they find themselves in an unfamiliar area of law. The current edition of the Annual Survey, published in August 2014, represents the twenty-ninth year in which the editors and staff of The American Criminal Law Review have provided this valuable service to the legal community.
This Article focuses on criminal antitrust law. Section II outlines the four elements of a criminal antitrust violation under § 1 of the Act. Section III enumerates several defenses to antitrust claims. Section IV discusses federal, state, and international enforcement. Finally, Section V explains the penalties for criminal violations.
Molly Wilcox; Jason Yan
This Article discusses federal, state, and international approaches to computer-related criminal law. Section I defines computer crimes, Section II covers the constitutional and jurisdictional issues concerning computer crimes, Section III describes the federal approaches used for prosecuting computer crime and analyzes enforcement strategies, Section IV examines state approaches to battling computer crimes, and Section V addresses international approaches to regulating computer crimes.
Alexander Galicki; Drew Havens; Alden Pelker
A broad range of principles guides the law of corporate criminal liability. These principles are outlined in this Article. Section II of this Article describes the three elements required to incur corporate criminal liability. Section III addresses federal prosecutorial discretion and the government's increasing use of deferred prosecution agreements (“DPAs”) and non-prosecution agreements (“NPAs”). Section IV addresses the United States Sentencing Guidelines' (“Guidelines”) mechanism for sentencing organizations, including the requirements of Dodd-Frank and Sarbanes-Oxley, and the effect of the Supreme Court's decision in United States v. Booker.
Brian Lewis; Steven Woodward
This Article focuses on conduct deemed criminal by Congress and prosecutable by the DOJ. Election law issues pertaining to how federal campaigns are financed, and who finances them, have recently gained a high profile due to several landmark judicial decisions. Section II discusses these recent opinions and explores campaign finance crimes in general. Election fraud involves “substantive irregularities” including bribery, intimidation, or forgery which have the potential to “taint the election itself.” Section III of this Article examines election fraud offenses.
Amelia Bell; Sarah Bell
This Article analyzes criminal statutes that punish employers for violations of occupational safety and employment standards. The pertinent regulatory scheme was enacted to ensure worker safety, eliminate labor conditions detrimental to the nation's commerce and the general welfare of workers, and provide labor unions with greater protection from corrupt union and management officials. Section II of this Article discusses criminal sanctions relevant to worker safety under the Occupational Safety and Health Act (“OSH Act”) and the Federal Mine Safety and Health Act (“FMSHA”). Section III analyzes criminal sanctions applicable to employment practices under the Fair Labor Standards Act (“FLSA”). Section IV discusses the Labor Management Relations Act (“LMRA”), which prohibits employers from making payments and loans to employees or labor organizations. Finally, Section V reviews § 501(c) of the Labor-Management Reporting and Disclosure Act (“LMRDA”), which prevents appropriations of union funds for non-union purposes.
Christopher Dioguardi; Adria Lamba
Nine principal statutes (the “statutes”) govern the enforcement of federal environmental regulations through criminal prosecution. Section II of this article discusses issues these statutes have in common, including theories of liability, defenses, and sentencing. Section III examines the Clean Air Act (“CAA”), which imposes penalties on violators of federal and state laws and regulations on air pollution control. Section IV discusses the Federal Water Pollution Control Act (“Clean Water Act” or “CWA”). Sections V and VI address additional water pollution issues discussing, respectively, the Rivers and Harbors Act of 1899 (“RHA”) and the Safe Drinking Water Act (“SDWA”), which, together with the CWA, restore and protect the quality of the nation's surface and ground waters. Section VII examines the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), which authorizes the cleanup of hazardous substances at contaminated sites and imposes criminal penalties on those who violate its provisions. Section VIII addresses the Resource Conservation and Recovery Act (“RCRA”), which is a set of amendments reinforcing the Federal Solid Waste Disposal Act (“SWDA”). Section IX reviews the Toxic Substances Control Act (“TSCA”), which governs the manufacture, processing, and distribution or disposal of chemicals that pose a danger to the public or the environment. Section X discusses the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), which regulates the manufacture, registration, transportation, sale, and use of toxic pesticides. Lastly, Section XI examines the efforts of the Endangered Species Act (“ESA”) to regulate crimes against wildlife.
Ashley Crooks; Karri Ridgeway; Wendy Wineholt; Rosalie Winn
False Statements and False Claims
Sections 1001 and 287 of Title 18 of the U.S. Code make it a crime to (i) knowingly and willfully make a false statement in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States and to (ii) knowingly make a false claim upon or against the United States or to any department or agency thereof respectively. Section II of this Article discusses criminal prosecutions brought under § 1001, the False Statements Act. Section III of this Article addresses criminal prosecutions brought under § 287, the False Claims Act.
JessieLagoy; Eleanor Phillips
Federal Criminal Conspiracy
Under 18 U.S.C. § 371, it is a crime to conspire to commit any offense against the United States or to defraud the United States. Numerous federal statutes also identify specific conspiracy offenses, but this article focuses on § 371. Section II of this Article outlines the basic elements of a conspiracy offense under § 371. Section III discusses defenses available to challenge charges brought under the statute. Section IV presents evidentiary and constitutional guidelines governing admissibility of co-conspirator hearsay testimony at trials involving conspiracy charges. Section V surveys various procedural and substantive rules regarding enforcement amongst multiple parties. Finally, Section VI touches upon sentencing.
Emily Bolles; William Hornbeck
Financial Institutions Fraud
This Article reviews the development and application of three federal criminal statutes that govern offenses by or against financial institutions. Section II analyzes the Bank Fraud Statute (“BFS”), which concerns fraud against financial institutions. Section III reviews the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), which regulates the conduct of officers, directors, and third-party fiduciaries who fraudulently managed financial institutions. Section IV examines the Bank Secrecy Act (“BSA”), which prohibits deceptive financial transactions designed to evade certain reporting requirements.
Matthew Hofer; Madison Lichliter; Bridgette Makia
Foreign Corrupt Practices Act
This Article outlines the development of the FCPA, its elements, available defenses, and possible civil and criminal penalties. Additionally, the Article discusses effective FCPA corporate compliance programs and provides resources for in-house counsel seeking advisement from FCPA compliance consultants. Finally, the Article surveys recent and anticipated developments in FCPA enforcement.
Sarah Bartle; Chris Chamberlain; Brian Wohlberg
Health Care Fraud
This Article examines federal and state efforts to combat health care fraud. Section II of this Article discusses the statutes specifically enacted to address Medicare and Medicaid fraud and reviews the elements, defenses, penalties, and safe harbor provisions for each statute. Section III of this Article discusses general federal statutes used to prosecute health care fraud, including those regulating false claims, false statements, and mail and wire fraud. Section III describes the elements of the offenses, available defenses, and penalties applicable under each statute. Section IV provides an overview of federal and state government agencies' efforts to investigate and prosecute health care fraud.
Daniel Colbert; Steven Harrison; Irina Kotchach
Intellectual Property Crimes
This Article examines several areas of intellectual property law that provide the bases for criminal prosecutions. Section II examines the theft of trade secrets; Section III discusses trademark counterfeiting; Section IV addresses copyright infringement; Section V looks at patent violations; Section VI discusses cable television and satellite descrambling; and Section VII discusses sentencing for intellectual property crimes.
Lara Kasten; Jenna Przybylski
Mail and Wire Fraud
This Article provides an overview of the prosecution of offenses under the federal mail and wire fraud statutes. Because the character, language, and scope of the mail and wire fraud statutes are similar, legal analysis and case law on mail fraud are equally applicable to wire fraud, and vice versa. Section II of this Article lists and analyzes the elements of a mail or wire fraud offense. Section III examines the available defenses. Finally, Section IV addresses sentencing issues that relate to convictions under the mail and wire fraud statutes.
Money laundering is a financial transaction with property that “represents the proceeds of some form of unlawful activity.” A money launderer “conceals the existence, illegal source, or illegal application of income, and then disguises that income to make it appear legitimate.” Laundering criminally derived proceeds can be a lucrative and sophisticated enterprise, and it is an indispensable element of organized criminal activities. In recognition of this problem, Congress passed the Money Laundering Control Act of 1986 (the “Act”), which created liability for individuals who conduct monetary transactions knowing that the funds were derived through unlawful activity. Section II of this Article will provide an overview of the offenses covered under the Act. Section III will provide an analysis of the elements of the offenses. Section IV will provide an overview of the constitutional theories used to attack prosecutions under the Act. Section V will provide a discussion of criminal and civil penalties under the Act.
Carolyn L. Hart
Obstruction of Justice
Obstruction of justice is any “interference with the orderly administration of law and justice.” This area of federal law is governed by 18 U.S.C. §§ 1501-1521, which protect the integrity of proceedings before the federal judiciary and other governmental bodies. Because most provisions guarding against obstruction of justice address very particular behaviors, this Article will focus on the sections given the most expansive treatment by courts: §§ 1503, 1505, 1510, 1512, 1513, 1519, and 1520. Section II of this Article examines § 1503, which governs obstruction of justice affecting jurors, officers of the court, and judges; § 1505, which governs obstruction of justice in proceedings before departments, agencies, and committees; and § 1510, which governs obstruction of federal criminal investigations. Section III examines prohibitions against witness tampering under §§ 1512 and 1513. Section IV discusses corporate accountability under §§ 1519 and 1520. Section V analyzes how obstruction of justice can affect penalties in other crimes where an obstruction occurred.
Matthew Harrington; Benjamin Schiffelbein
Perjury can subvert the fair administration of justice and the proper function of government. Because every branch and level of government relies upon sworn testimony, the integrity of governmental processes depends in large part on the truthfulness of statements made under oath. To free courts of the “pollution of perjury” by deterring and punishing false testimony, Congress has enacted three statutes criminalizing perjury: 18 U.S.C. §§ 1621, which is the general perjury statute; 1622, which criminalizes the subornation of perjury; and 1623, which relates to perjury before a grand jury. In many of the past century's most famous criminal cases, the government has secured a conviction for perjury rather than for the crime that gained the defendant notoriety. The remainder of this Section provides an overview of the three offenses. Section II discusses the elements of §§ 1621 and 1623. Section III discusses defenses. Section IV discusses sentencing.
Congress has enacted a number of statutes designed to deter and punish acts of corruption involving public officials. The discussion that follows examines several of the crimes enumerated by those statutes. Section II of this Article examines the elements of, defenses to, and penalties for the federal bribery and illegal gratuity offenses. Section III explores the elements of and defenses to the unauthorized compensation offense and examines provisions limiting the activities of government officers and employees during and after their terms of employment. Section III also analyzes the statutory provisions governing participation by government officials in activities in which the official has a financial interest, as well as improper acceptance of certain outside compensation. Finally, Section IV addresses the honest-services doctrine and the Supreme Court's recent limitation of the doctrine's application to fraudulent deprivation of money or property.
Logan Dwyer; Kaitlyn Golden; Samuel Lehman
Racketeer Influenced and Corrupt Organizations
Congress designed the Racketeer Influenced and Corrupt Organizations Act (“RICO”), enacted as Title IX of the Organized Crime Control Act of 1970, to combat organized crime. RICO aims to eliminate organized crime by bringing the “highly diversified acts of a single organized crime enterprise under RICO's umbrella” and “to curb the infiltration of legitimate business organizations by racketeers.” This Article generally addresses RICO prosecutions for white collar crimes. Section II discusses the elements of a RICO offense. Section III addresses a variety of potential defenses to RICO prosecutions. Section IV addresses criminal penalties for RICO violations, including those under the United States Sentencing Guidelines(“Guidelines”). Section V provides a discussion of civil RICO. Section VI describes several recent developments in this area of the law.
Terence McCarrick; Francisco Nagel; Meredith Wood; Christopher Yeager
In the context of securities fraud, the key provisions utilized in criminal prosecutions are Rule 10b-5 and section 32(a) of the Securities Exchange Act of 1934 (“1934 Act”). Section II explores the elements of a securities fraud offense. Section III discusses the defenses to a securities fraud prosecution. Section IV examines the three categories of remedies for violations of federal securities law: administrative, civil, and criminal. Section V lays out the penalties for securities fraud. Section VI provides a discussion of recent developments.
Christopher A. Yeager; Meredith Wood; Pancho Nagel; Terence J. McCarrick, Jr.
This Article outlines the elements, defenses, and sentencing consequences of selected criminal tax violations under the United States Internal Revenue Code (“I.R.C.”) §§ 7201, 7202, 7203, 7206, and 7212(a). Section II of this Article examines the policies and procedures of Internal Revenue Service (“IRS”) investigations. Section II also addresses the basic elements of, defenses to, and sanctions for five principal tax crimes: tax evasion under § 7201, failure to collect tax under § 7202, willful failure to file taxes under § 7203, “tax perjury” and “aiding and assisting” tax fraud under § 7206, and interference with the administration of internal revenue laws under § 7212(a). Section III of this Article details criminal investigations of conspiracy to violate the tax laws under the defraud clause of 18 U.S.C. § 371.
Logan Brown; Aurash Jamali
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