White Collar Crime in a Nutshell
Authors:
Podgor, Ellen S. / Israel, Jerold H.
Edition:
5th
Copyright Date:
2015
24 chapters
have results for white collar
Chapter 1. Scope of White Collar Crime 23 results (showing 5 best matches)
- Defenses available to white collar defendants are, likewise, no different from those available to the nonwhite collar defendants. Limitations to responsibility premised upon infancy, insanity, or intoxication have equal applicability in white collar crime cases as in other types of crime. Principles relating to duress and necessity remain unmodified when applied to white collar offenses. Defenses such as alibi, self defense, or defense of property, although available, seldom constitute an issue in the white collar case.
- Although there are no set categories of offenses that make up white collar crime, there are several federal statutes that continually appear in this context. Some of these federal offenses are not limited solely to white collar crime, but have been used to prosecute street and property crimes as well. These statutes are often used for white collar criminality due to the broad interpretation given to them by the courts. For example, many white collar offenses are prosecuted as mail fraud (18 U.S.C. § 1341), wire fraud (18 U.S.C. § 1343), conspiracy (18 U.S.C. § 371), racketeering (18 U.S.C. §§ 1961–1963), bribery (18 U.S.C. § 201), false statements (18 U.S.C. § 1001), obstruction of justice (18 U.S.C. §§ 1501–1521) and tax crimes (26 U.S.C. §§ 7201–7217). There are other statutes that are used almost exclusively for white collar offenses. For example, criminal acts involving bank fraud (18 U.S.C. § 1344) and false claims (18 U.S.C. § 287) usually fit the white collar crime category.
- White Collar Crime
- Although white collar crime has been subject to varying definitions, a definition that focuses on the offense rather than the offender is prevalent today. In the 1983 Annual Report of the Attorney General, white collar crimes were defined as:
- These lists of offenses are by no means exhaustive. White collar crime includes corporate offenses and most offenses involving public corruption. Many white collar crime prosecutions have employed statutes relating to securities fraud and antitrust violations. Encompassed by the term in recent years are criminal acts prohibited by environmental, health, and computer laws.
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Preface 5 results
- It is important to note that the study of white collar crime is a continuing study, with ever changing rules and precedent. Many of the issues within white collar crime, as noted throughout this book, have yet to be resolved.
- White collar crime is a relatively new concept, having first achieved recognition in 1939. Despite its short life, white collar crime has quickly grown to its present status of being a major focus of the Department of Justice. This nutshell is intended to provide to students a general overview of this growing area. It is hoped that this book will assist in providing a structure to a basically unstructured body of law.
- The second edition added the expertise of Jerold Israel, resulting in its substantial expansion of the coverage of procedural issues that impact white collar crime. The third, fourth, and fifth editions update materials by adding new cases and statutory developments that occurred since the prior editions.
- Because of the general focus of this book, it is not recommended as a source for deciding a specific legal issue. Cases were selected for this book to be illustrative, rather than comprehensive of each area being discussed. Specific crimes were selected to provide a sampling of the wide array of crimes encompassed within this enormous body of law. This book focuses on white collar crime in the federal criminal context, and does not delve into developments at the state and local level. References to one gender includes the other unless the context otherwise indicates.
- Following the fourth edition, the authors of this book, along with Peter J. Henning and Nancy J. King authored the Hornbook on White Collar Crime (2013). Throughout this new edition there are references to the Hornbook and they appear using the letters WCH. Thanks go to those who assisted with this updated fifth edition, specifically Paul Borman, Peter J. Henning, and Nancy J. King.
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Chapter 3. Conspiracy 1 result
- , 7 F.2d 259 (2d Cir.1925). This is especially true when placed in the context of white collar crime. Although individual acts of white collar crime are abundant, an overwhelming number of white collar criminal acts are group related. Conspiracy charges have sometimes resulted in megatrials that involve many defendants and lengthy trials.
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Chapter 24. Sanctions 5 results
- In addition to sentences pursuant to federal sentencing guidelines, white collar criminals often are subject to collateral proceedings in the civil arena. One finds parallel proceedings in areas such a tax and securities. See chap. 18. Some white collar offenders have faced a loss of license or exclusion
- Courts in white collar cases may issue a sentence closely aligned to the sentencing guidelines or far removed. Additionally, the sentence may be stiffer than white collar sentences seen in pre-guidelines days. For example, the former CEO of WorldCom received a sentence of 25 years, an unlikely sentence for a white collar offender prior to the enactment of the federal sentencing guidelines. In contrast, two defendants who faced guideline sentences of 360 months to life in a securities fraud prosecution, were sentenced to 60 months by a judge who stated “if not for the wisdom of the Supreme Court in recognizing the need to free district courts from the shackles of the mandatory guidelines regime, I would have been confronted with the prospect of having to impose what I believe any rational jurist would consider to be a draconian sentence.”
- An attorney representing an individual charged with a white collar offense needs to be particularly aware of the collateral consequences to the individual. Considerations such as civil suits, license suspensions, program debarment, and benefit exclusions, may impact the course taken in the litigation.
- An aggravating role in the offense, as specified in the guidelines, can increase the offense level. (3B1.1). Likewise, a mitigating role serves to decrease the offense level. (3B1.2). “If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense,” there is an increase by two levels. (3B1.3). White collar cases can involve the abuse of trust when the defendant has professional or managerial discretion. An increase by two levels is also provided when a defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the
- trustworthiness or fitness as a lawyer in other respects.” (Rule 8.4 (b)). In the Comments to this Rule, it is noted that illegal conduct “such as offenses involving fraud and the offense of willful failure to file an income tax return,” reflect adversely on one’s fitness to practice law. Thus, white collar offenses committed by attorneys may subject the attorney to disciplinary action by the bar, court, or the state agency charged with the enforcement of the disciplinary rules.
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Chapter 23. Work Product Protection 1 result
- , 422 U.S. 225 (1975) (White, J., concurring) (questioning whether work product protection applied as a barrier to the evidentiary use at trial of non-opinion work product). Characterization of work product protection as an “immunity” is usually associated with its origin as an exemption from pretrial discovery (recognized in both civil and criminal cases). However, work product protection extends beyond that limited setting. It is available, for example, as an objection to a subpoena in the contexts most relevant to the investigation of white collar crime—grand jury and regulatory agency investigations. Indeed, the discussion that follows focuses on those work-product issues most likely to arise in white collar investigations.
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Chapter 16. Grand Jury Investigations 5 results
- More than two-dozen federal “privacy statutes” address the disclosure to federal enforcement agencies of particular types of third-party records. The most significant, in the field of white collar investigations, are: (1) the Right to Financial Privacy Act (RFPA) (governing disclosure of the records of individuals and small partnerships by a variety of financial institutions, including banks and credit card companies); (2) the Stored Communications Act (SCA) (governing disclosures of information by providers of electronic communication services and public providers of remote computing services, which covers most internet service providers and “cloud computing” providers); and (3) the “confidentiality” provisions of the Internal Revenue Code (governing disclosure of “tax returns” and “tax return information,” which goes beyond information furnished by the taxpayer). Several other privacy statutes address the disclosure of records that may become relevant in investigating a limited...
- showing of probable cause that a crime has been committed and that evidence of the crime will be found in the place searched. See § 21.03. The subpoena duces tecum does not require even a lesser showing of probability, such as “reasonable suspicion.” It allows for what constitutes, in effect, a “fishing expedition” for documents that will hopefully explain whether particular transactions did or did not involve criminal activity. Moreover, as discussed in § 21.01, even where probable cause exists and a search warrant could be obtained, the subpoena duces tecum often offers various advantages, both as to administrative efficiency and effectiveness in securing all relevant documents, in the typical white collar setting.
- A common feature of grand jury investigations of white collar crime is obtaining from third parties records that provide information on the activities of the target. Those third-parties typically are commercial entities that provide services to the target (e.g., financial institutions and internet service providers) and government agencies that receive information from the target in the course of enforcing regulations, imposing taxes, or distributing benefits. In some instances, the records were created by the third-party entity based on information provided by the target and others (sometimes unknowingly provided, as in the case of historic cell-phone location data). Here, the records often provide information that could not readily be obtained from any other single source.
- Federal investigations of white collar crime commonly involve use of the powers of the grand jury in addition to (or often, in lieu of) traditional police investigative authority. The grand jury offers various advantages over police investigations as a result of seven structural features of the grand jury process: (1) the availability of the
- may view the investigation as potentially “white-washing” misconduct by officials seen as having close ties to the U.S. Attorney or the Department of Justice.
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Chapter 11. Tax Crimes 2 results
- White collar crime prosecutions commonly include tax charges. Title 26 of the United States Code provides an array of available offenses. Additionally, tax offenses can sometimes be prosecuted through general criminal statutes found in Title 18.
- The Supreme Court granted certiorari and thereafter vacated the judgment of the Court of Appeals and remanded the case for further proceedings consistent with its opinion. Justice White, writing the majority opinion, commenced by noting that the term “willfully” as used in federal
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Chapter 5. Securities Fraud 2 results
- Insider trading prosecutions have been at the forefront of white collar crime cases. Investment bankers, lawyers, arbitragers, and financial executives have been among the many that have been indicted and convicted for violations of securities laws. In many instances the individuals reached plea agreements that required government
- U.S. v. White
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Chapter 21. Searches 5 results
- Thus, the searches utilized in white collar investigations typically will be governed by the second clause of the Fourth Amendment (the warrant clause), which states that “no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” As applied to searches to obtain documents constituting evidence of a crime (the usual objective of searches in white collar investigations), the primary stumbling blocks under this clause are: (1) establishing probable cause as to the different types
- Fifth, the search has a certain symbolic significance. The disruptive impact of the search can convey a special sense of urgency to those involved. It also conveys to the public the message that prosecutors are adopting an aggressive stance towards white collar crime by subjecting suspects to the same procedures applied to street crimes. In this regard, the absence of the secrecy requirements that attach to a grand jury investigation may be a distinct advantage.
- The Fourth Amendment to the United States Constitution provides that, “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Almost all of the searches involved in white collar cases will require a warrant. The searches here are of business premises or residences, and they are not likely to present any of the narrow exceptions to the warrant requirement that occasionally apply to the search of such buildings. Similarly, computers are treated as closed containers, so even when they are seized without a warrant, a warrant usually will be required to examine the data stored on the computer.
- Only the third and fourth exceptions have frequently been at issue in white collar cases. In applying both exceptions, but the fourth in particular, courts emphasize that the “reasonably
- Unconstitutional searches typically are challenged through a Rule 12 motion to suppress, which is made after the defendant has been charged. In white collar cases, there often is a considerable time gap between the search and the indictment, so the challenge to the search often is first presented in a Rule 41(g) motion for return of the seized property. That motion authorizes the return of property if it was obtained by an “unlawful search and seizure” or the moving party is “aggrieved * * * by the deprivation of the property.” Since the issue before the court is not suppression,
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Half Title 1 result
Chapter 22. Attorney-Client Privilege 5 results
- The privilege can be lost through a variety of actions by the client (or the attorney, acting on behalf of the client). Sections 22.08–22.11 consider those actions producing a waiver or forfeiture of the privilege that are most likely to be at issue in white collar investigations. Section 22.12 considers the crime-fraud exception which also makes the privilege inapplicable, here because of the client’s improper purpose in making the communication.
- to impose a broad range of limitations upon the scope of the privilege. Sections 22.04–22.07 discuss the aspects of those limitations that bear particularly upon the investigation of white collar crime. Initially, however, § 22.03 explores derivative protections that take the privilege beyond the core protection of client communications.
- white collar investigations, a participating-client decides to withdraw from the agreement and cooperate with the government.
- .... At its core, the privilege protects the confidentiality of communications between the client and the client’s attorney, but as explained in § 22.03 and § 22.15, the privilege can provide protection of related communications of other persons whose functions bring them within the scope of the privilege. In the federal courts, the privilege is recognized pursuant to Rule 501 of the Federal Rules of Evidence. Rule 501 provides that, in proceedings relating to a federal-law cause of action (which includes the enforcement of federal criminal and regulatory law), evidentiary privileges “shall be governed by the principles of the common law as they may be interpreted by the courts of the United States [i.e., the federal courts] in light of reason and experience.” The attorney-client privilege is a well-established part of the federal common law of privileges, although federal courts are divided on certain aspects of the privilege that bear particularly upon the investigation of white...
- 22.13 and 22.14 discuss two exceptions of particular significance in the white collar area (the “fiduciary exception” and the “government attorney” exception). Section 22.15 discusses a different type of “exception”, the joint defense agreement which works to expand rather than limit the privilege.
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- Both sections 1956 and 1957 focus on transactions involving tainted funds. Often drug related activity is prosecuted through the use of these money laundering offenses. In recent years, white collar criminality has also produced charges under sections 1956 and 1957. This is perhaps in part a result of the simplicity in proving a section 1956 and 1957 offense and the severe penalty accompanying these charges. A case that may have been limited to fraud charges may now find money laundering charges added to the indictment.
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Chapter 2. Corporate Criminal Liability 2 results
- Prosecutors have enormous, although not “unfettered,” discretion in deciding who to charge and for what crimes. They cannot exceed the scope of the law, but often in white collar cases they can select to proceed criminally, civilly, or decline prosecution. A President’s Corporate Fraud Task Force was established in 2002 “in response to a number of high-profile acts of fraud and dishonesty” within corporations. In 2009 it was renamed the Financial Fraud Enforcement Task Force with a focus on financial institution fraud. See WCH § 2.1(F).
- , 541 F.3d 130 (2d Cir.2008), the Second Circuit considered whether government pressure had influenced a company, KPMG, from paying the attorney fees of indicted employees. The court highlighted the complexity of this white collar case and noted that the “[d]efendants were indicted based on a fairly novel theory of criminal liability; they faced substantial penalties; [and] the relevant facts [were] scattered throughout over 22 million documents.” This complexity, as well as the number of documents, would result in an exceptional legal expense which made reimbursement important. The court found “that KPMG’s adoption and enforcement of a policy under which it conditioned, capped and ultimately ceased advancing legal fees to defendants followed as a direct consequence of the government’s overwhelming influence, and that KPMG’s conduct therefore amounted to state action.” The Second Circuit upheld the dismissal of some of the indictments, finding that it was a Sixth Amendment violation...
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Chapter 14. Environmental Crimes 3 results
- Like so many of the white collar crime areas, the environmental sector also demonstrates an overlap between civil and criminal law. A person violating a federal environmental statute is often subject to civil proceedings, criminal prosecution, or dual civil and criminal actions (see chap. 18). There may also be violations of state environmental statutes. There can also be prosecutions for conduct occurring extraterritorially, such as those being prosecuted under the Lacey Act for violations that involve a violation of foreign law.
- U.S. v. White
- U.S. v. White Fuel Corp.
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Chapter 17. Administrative Agency 1 result
- Most federal administrative agencies have been authorized by Congress to issue administrative subpoenas (also called “summonses”) to compel testimony and the production of documents. While that authority has been given to the agencies only to facilitate their investigation of activities that may violate the various regulatory statutes that are within their enforcement domain, its use for that purpose can readily have a direct bearing on criminal prosecutions, particularly as to white collar crime. Violations of those regulatory statutes may constitute crimes as well as civil wrongs, and even when that is not the case, the circumstances surrounding a violation may suggest that a non-regulatory crime has been committed. Of course, the agency may not itself initiate criminal enforcement, but it may deliver the evidence it has collected to the appropriate prosecuting official, along with the agency recommendation for prosecution (see § 18.02). Should further investigation be desired,...
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Chapter 19. The Self-Incrimination 3 results
- The Supreme Court has established three exceptions to what it has described as the “general rule” that the privilege is not “self-executing” (and therefore requires an affirmative assertion at the point of compulsion). These exceptions are: (1) “confessions obtained from suspects in police custody”; (2) situations in which the government threatens to impose a penalty if the individual asserts the privilege and thereby “forecloses a free-choice to remain silent”; and (3) instances in which “the assertion of privilege itself would lend to incriminate.” See WCH § 19.2(H). The second and third exceptions often arise in the context of white collar investigations. The second exception involves penalties of the type discussed in § 19.09—the automatic imposition of regulatory sanctions or the automatic denial of a government benefit if the individual asserts the privilege. In the cases discussed in § 19.09, the individual responded to the threat by challenging the imposition of the penalty....
- , 385 U.S. 511 (1967), and its progeny provide a line of “penalty” cases of special relevance to the field of white collar crime.
- Chapter 601 of the Federal Criminal Code (18 U.S.C. §§ 6000–6005) sets forth the immunity provisions commonly relied upon in federal white collar cases. Section 6002 defines the scope of the immunity. The immunity is restricted to a witness who refuses, “on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to” (1) a federal court, (2) a federal grand jury, (3) an “agency of the United States”, (which covers a series of agencies, e.g., the S.E.C., specified in the definitions section, § 6001), and (4) Congressional Committees. Once immunity is granted pursuant to court order, the witness is compelled to testify and
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Chapter 18. Parallel Proceedings 1 result
- With violations of regulatory statutes and administrative rules so often also creating criminal liability, administrative agency proceedings (both investigations and enforcement actions) may readily overlap in subject matter with criminal proceedings (both investigations and prosecutions). So too, with white collar offenses frequently also constituting common law torts and violations of statutes creating private causes of action (e.g. civil RICO), civil actions may readily overlap in subject matter with criminal proceedings. Where the civil or administrative proceedings and the criminal proceedings appear likely to produce such an overlap, they are commonly described as “parallel proceedings.” Whether brought simultaneously or seriatim, parallel criminal and civil/administrative proceedings require the participants in those proceedings to give consideration to the bearing of one proceeding upon the other. That is especially true for the “dual target”—i.e., the person who is or...
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Chapter 20. The Self-Incrimination 4 results
- rule otherwise, as the Court had noted in its earlier rulings, would “largely frustrate legitimate government regulation of such organizations” and have a “detrimental impact,” in particular, on “the Government’s efforts to prosecute ‘white collar crime’ * * * as the greater portion of evidence of wrongdoing by an organization or its representatives is usually found in the official records of that organization.”
- U.S. v. White
- The White Court characterized the labor union as an organization with “a character so impersonal in scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents, but rather to embody their common or group interests only.” In
- U.S. v. White
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Advisory Board 1 result
Table of Cases 2 results
Chapter 4. Mail, Wire, and Bank Fraud 3 results
- In reversing the convictions, Justice White stated that while the mail fraud statute protected property rights, it did not encompass the intangible right of the citizenry to good government. Absent congressional clarification, allegations of a deprivation of money or property would be required to meet the scheme to defraud element of the mail fraud statute.
- In 1988, Congress accepted Justice White’s invitation in the
- The Supreme Court unanimously affirmed the mail fraud and wire fraud convictions. Justice White, the author of the opinion, commenced his legal analysis of the case by reaffirming the
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- Publication Date: June 30th, 2015
- ISBN: 9780314291530
- Subject: White Collar Crime
- Series: Nutshells
- Type: Overviews
- Description: This text provides a broad overview of white collar crime, including procedural and evidentiary issues. It covers specific offenses such as mail and bank fraud, securities fraud, obstruction of justice, bribery, the Racketeer Influenced and Corrupt Organizations Act (RICO), and computer crimes. It covers procedural topics such as those related to grand jury and administrative agency investigations, self-incrimination, and parallel proceedings. Also discussed are punishment and sanctions for white collar crimes.