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Spring 15 > WCC > Flashcards

WCC Flashcards

1
Q

False Statement to a Bank (1014)- Elements

A
  1. false stmt/report
  2. to a federally insured institution
  3. knowing it was false; and
  4. for the purpose of influencing in any way the action of the institution
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2
Q

what is and is not a statement? (1014)

A 
not:
• forging a signature
• writing a bad check
Is:
• guaranty b/c language "I so and so..."
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3
Q

“for the purpose of influencing in any way the action of the institution” (1014)

A
  • subjective intent - focus on what D did, not his success (bank does not actually have to be influenced)
  • SCOTUS: materiality NOT an element, but for all intensive purposes materiality/intent to influence are same under this statute
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4
Q

Bank Fraud (1344) - Elements

A
  1. Scheme or Artifice
  2. to defraud (by means of false or fraudulent pretenses/reps/promises)
  3. a bank
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5
Q

what is a “scheme or artifice”

A

any deliberate plan of action or course of conduct by which someone intends to
• deceive or to cheat another or
• deprive another of something of value

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6
Q

is a bad check a scheme to defraud (bank fraud)?

A

yes bc depositor intentionally deceiving bank about availability of funds/validity of the check

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7
Q

what is a defense to bank fraud (1344)?

A

D did not know what he was doing was an act to deceive.

• may not be successful; but gov has burden to prove BRD that he DID know what he was doing was fraud

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8
Q

by means of false or fraudulent pretenses/reps/promises (1344)

A
  • stmts/promises were material

* need not be made directly to bank

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9
Q

meaning of “material” (1344)

A
  • natural tendency to influence/capable of influencing, a fin institution to part w/ $/prop
  • Q of fact for jury
  • not an element in statute - comes from CL meaning of “representation”
  • when u defraud someone this element is implied (if u fool some1 out of something tht doesn’t matter u haven’t defrauded them)
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10
Q

Prof. Gluck’s definition of “fraud”

A

intentionally taking advantage of an information asymmetry

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11
Q

All tax offenses:

A
  • each filing constitutes a separate crime

* each offense requires D “acted willfully”

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12
Q

Tax Evasion - 7201

A
  1. Underpaid taxes;
    (some cts require proof of “substantial” underpayment)
  2. Engaged in an affirmative act of evasion or attempt to evade; and
  3. Acted willfully
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13
Q

Filing False Tax Returns (Tax Perjury) - §7206(1)

A
  1. ∆ signed return/related doc
  2. under penalty of perjury
  3. doc was false
  4. falsity was material
  5. ∆ acted willfully (cannot lie by accident so cannot argue u didn’t know here)
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14
Q

“material” - tax

A

matter is material if it had a natural tendency to influence, or was capable of influencing, the decisions or activities of the IRS

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15
Q

Failure to File - §7203 (misdemeanor)

A
  1. Acted willfully;
  2. Failed to
    a. File a req’d return;
    b. Pay a req’d tax;
    c. Keep req’d records; or
    d. Supply req’d info; and
  3. Failed to act at time law specified
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16
Q

Mens Rea – “Willfulness” in Tax Cases – Cheeks v. U.S

A

To prove ∆ acted willfully: gov must prove BRD
1. ∆ knew fed tax law imposed a duty on him, and
2. he intentionally and voluntarily violated that duty
Ct imposes specific intent bc tax law is hard and actions not inherently evil

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17
Q

Defenses to Tax crimes

A
  1. GF misunderstanding
  2. GF reliance of professional
  3. Gov fails to prove bad faith
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18
Q

Defense to Tax crimes: GF misunderstanding

A
  • GF misunderstanding as to req’ts of law = not willful, even if wrong/unreasonable.
  • Must be actual GF belief that you’re NOT req’d/obligated to file taxes (not same as believing tax system itself is invalid)
  • More unreasonable belief = more likely jury find it’s just disagreement w/ known duties imposed by tax law
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19
Q

Defense to Tax crimes: GF reliance of professional

A

∆ must show:

  1. ∆ relied in GF on a professional, and
  2. ∆ made complete disclosure of all relevant facts.
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20
Q

EXTORTION – The Hobbs Act, codified, 1951

A
  1. ∆’s act affected interstate
  2. ∆ obtained, or attempted, prop of another
  3. prop obtained w/ other persons consent by:
    a) fear of econ harm; and/or
    b) under color of official right
  4. ∆ acted w/ req’d MR
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21
Q

Extortion - “∆’s acts affected interstate commerce”

A
  • very low bar - “in any way or degree”

* this confers fed jdx; but not limited to extortion by fed public officials or relating to fed programs

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22
Q

Extortion - Prop requirement

A
  • Scheidler: impeding one’s right to use/control/dispose of buss asset does not = prop
  • “obtain” = gain possession of; must deprive victim
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23
Q

Obstruction - 1503 - Fed Judicial Proceedings

A
  1. ∆ corruptly (by threats/force)
  2. Obstructs
  3. Judicial Proceeding
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24
Q

Obstruction - 1503 - Fed Judicial Proceedings “Corruptly”

A
  • requires materiality (objectively would’ve influenced decision maker)
  • act voluntarily/delib for purpose of improperly influencing/obstructing/interfering w admin of justice (objective)
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25
Q

Obstruction - 1503 - Fed Judicial Proceedings “Judicial Proceeding”

A
  • requires pending proceeding and ∆ knew it was pending

* close connection (lying to an agent who may/may not testify for grand jury is not enough)

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26
Q

Obstruction - 1505 - Fed Admin or Legislative Proceeding

A
  1. there was a proceeding
  2. ∆ knew of it
  3. ∆ intentionally endeavored to corruptly impede/obstruct/interfere the proceeding
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27
Q

1512(c) - Obstruction - Catch All

A
  1. ∆ acted corruptly (no knowledge req’t)
  2. ∆ altered/ a record/, or attempted to; and
    a) acted w/ intent to impair for use at proceeding; or
    b) ∆ otherwise obstructed/ any official proceeding, or attempted to
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28
Q

1512(e) - affirmative defense - obstruction

A

∆ must prove by preponderance:

  1. conduct solely lawful
  2. ∆’s sole intention was to encourage, induce, or cause another person to testify truthfully
29
Q

1519 - Obstruction - in Fed Investigations

A
  1. ∆ knowingly alters/ any record/tangible object
  2. w/ intent to impede/ investigation or contemplation of
    Yates: “tangible object” = docs/records. not an evidence keeping act.
30
Q

Mail & Wire Fraud - Elements

A
  1. engaged in scheme to defraud
  2. acted w specific intent/purpose to defraud
  3. scheme resulted in/would’ve upon completion, in loss of $/prop/HOST; and
  4. U.S. mail, private courier, or interstate commercial wires
    a) were used in furtherance of scheme to defraud, AND
    b) ∆ used or caused use of mail, courier or wires
31
Q

Mail & Wire Fraud - “scheme to defraud”

A
  • it will be
  • consider circumstances in which stmts were used
  • stmts made/facts omitted as part of scheme were MATERIAL (must be est, but jury doesn’t have to agree on specific stmt)
  • 9th cir: Q of fact for jury; usually judge + intent for jury
32
Q

Mail & Wire Fraud - “material”

A

natural tendency to influence, or capable of influencing, a person to part with money or property

33
Q

Mail & Wire Fraud - “intent to defraud”

A
  • intent to deceive/cheat
  • fraud goes to transaction (quality, price, actual goods) or
  • fraud going to the “benefits reasonably associated with the transaction”
34
Q

Mail & Wire Fraud - “intent to defraud” - is there an element of reasonable reliance?

A

No; even if reasonable person would know they’re being lied to, you’re still guilty bc we want to protect good people

35
Q

Mail & Wire Fraud - does deception of tangential issues count for “intent to defraud”?

A

No; Regent Office Supply case: salesman didn’t lie re: price, quality or material benefit. No discrepancy between benefits reasonably anticipated bc of misleading stmts and actual benefits delivered

36
Q

Mail & Wire Fraud - “intent to defraud” - fraud going to the “benefits reasonably associated with the transaction”

A
  • deception is enough (info asymmetry); doesn’t always have to be false stmts
  • can be achieved when victim doesn’t know something material, even though what was said was completely true (lake house for sale ex)
37
Q

Mail & Wire Fraud - Deprive Someone of Property - what counts as property?

A

can be tangible or intangible:
• exclusivity: WSJ prop right to keep article confidential/make exclusive use of contents.
• Pasquantino: right to collect taxes = prop interest

38
Q

Mail & Wire Fraud - Deprive Someone of Property - what does NOT count as property?

A
  • state licensing/regulatory agency issuing licenses.
  • even when tied to stream of revenue, state’s right to control does not create prop interest. just part of traditional police power to regulate
39
Q

Mail & Wire Fraud - HOST

A

Intangible RIGHT (not prop); MUST INCL bribery/kickback
• victim must lose something and ∆ gain. not enough to have multiple ppl engaged in scheme for $ if they didn’t deprive anyone by fraud
• requires more than just bad service

40
Q

What is a “kickback” for HOST?

A

anything of value or compensation of any kind provided, directly or not, to a certain person for purpose of improperly obtaining favorable treatment in connection w an enumerated circumstance

41
Q

Mail & Wire Fraud - Use of the Mails

A

Ask: was ∆ interested in mailing (furtherance) and was it objectively foreseeable there will be particular mailing, in furtherance.
Doesn’t matter is material mailed is false/not. Scheme doesn’t have to be successful.

42
Q

Mail & Wire Fraud - Use of the Wires

A

Wiring is caused when 1 knows a wire will be used in ordinary course of bus/ can reasonably foresee. Don’t have to foresee INTERSTATE use; only that wire would occur in furtherance of scheme and
it must have actually occurred in furtherance of the scheme

43
Q

Corp Crim Liability - Respondeat Superior (3-prong test imposing liability on corps for acts committed by corp agents acting:)

A
  1. on behalf of corp
  2. to benefit of corp; and
  3. w/in scope of agents authority
44
Q

corp crim liability - “to benefit corp”

A
  • met so long as agent in part intended to benefit corp (v broad)
  • if corp fostered conditions that created the prob: generally liable
45
Q

corp crim liability - “w/in scope of agents authority”

A
  • if someone was observing agent, they would think agent is acting in scope
  • can be met when agent is acting under actual and apparent authority
46
Q

corp crim liability - Hilton case

A

corp liable even if they have a policy against what agent did and agent goes against express instructions

47
Q

corp crim liability - MPC

A

MPC requires person who committed the act have a managerial, officer, director role but fed standard does not

48
Q

Domestic $ Laundering (1956) - Promotional

A
  1. ∆ conducted a fin transaction
  2. ∆ knew the transaction involved proceeds of some type of unlawful activity (felony)
  3. funds were in fact proceeds from SUA
  4. ∆ engaged in transaction w intent to further SUA
49
Q

Domestic $ Laundering (1956) - Tracing/Commingling

A
  • presumption: if dirty $ in acct, any transaction contained that $
  • do not need to be immediate proceeds (can be from 20yrs ago)
  • enough to know $ came from some (don’t have to exactly know which one) felony (willful blindness)
50
Q

Domestic $ Laundering (1956) - Promotion - Proceeds

A
  • cannot be using illegal $ to fund legit bus
  • SUA ur using proceeds for cant be same one just committed. needs to be completed offense that produced $ before you can promote an SUA
51
Q

Domestic $ Laundering (1956) - Concealment

A
  1. ∆ conducted fin transaction
  2. knew fin transaction involved proceeds of some type of unlawful activity (felony)
  3. funds were in fact proceeds from SUA
  4. ∆ engaged in transaction knowing trans is designed (in whole or part) to conceal the source of the $ or avoid trans reporting req’t
52
Q

Domestic $ Laundering (1956) - Transportation

A

∆ transports/transmits/transfers monetary instrument or funds from US to or thru place outside US (or into US from outside)

  1. w intent to promote carrying on of SUA; OR
  2. knowing monetary instrument/funds represent proceeds of SUA and knowing transportation is designed to
    a) conceal source of SUA; or
    b) avoid trans reporting req’t
53
Q

Money Laundering - “monetary instruments”

A

coin/currency (any country), any checks, money orders, securities or negotiable instruments where title passes upon delivery

54
Q

Money Laundering - “financial transaction”

A

A. transaction that in any way affects interstate or foreign commerce involving
1. movement of funds by wire or other means; or
2. 1 or more monetary instruments or
3. transfer of title to any real prop or
B. transaction using fin institution which is engaged in, or the activities which affect, interstate or foreign commerce in any way

55
Q

Transactional Money Laundering (1957)

A
  1. ∆ knowingly engaged in monetary transaction
  2. transaction value greater than $10k
  3. trans derived from SUA
  4. ∆ knew prop was criminally derived
  5. trans took place in US or ∆ is US person
    NO INTENT REQ’D
56
Q

Transactional Money Laundering (1957) - “monetary transaction”

A
  • fin transaction + fin institution

* MUST involve fin institution

57
Q

Transactional Money Laundering (1957) - Tracing

A

• gov must prove trans had tainted funds (show $ transferred was crim derived prop)
• gov doesnt get presumption that $ is derived from SUA
Rutgard: prove all funds were proceeds + prosecute deposit

58
Q

1956 Transportation - Promote

A
  1. intent to promote SUA
  2. any amount
    (no need to know where it came from)
59
Q

1956 Transportation - Conceal

A
  1. knowledge it came from crim source
  2. intent to conceal
  3. any amount
60
Q

666 Fed Program Bribery

A
  1. corruptly
  2. offered/gave or solicited/received
  3. anything of value
  4. w intent to influence any org
  5. in connection w any business worth $5k+
  6. org received more than $10k/yr in fed funds
61
Q

Conspiracy (371) - Elements

A
  1. Agt existed to:
    a) commit an offense against US and/or
    b) defraud US
  2. 2+ persons were parties to that agt
  3. ∆ intended
    a) to enter into agt AND
    b) tht object of offense or fraud come to pass AND
  4. a co-conspirator committed an “overt act” in furtherance of the offense (low bar)
62
Q

Conspiracy - MR - conscious avoidance

A

∆ can be found guilty if jury finds he consciously avoided learning the fact while aware of high probability of its existence
instruction given only if:
1. ∆ asserts lack of specific knowledge req’d
2. evidence such that rational juror would BRD ∆ was aware and consciously avoided confirming

63
Q

Conspiracy - Defraud Clause

A
  • limited to wrong done “by deceit, trickery, or at least by means that are dishonest”
  • obstructing gov function in other ways (violence, etc.) not defrauding
  • cheating gov out of $/prop by these ways
  • only applies where close connection between crim objective + gov
64
Q

Conspiracy - Withdrawal Test

A

effective w/drawal requires co-conspirator:

  1. commit affirmative act inconsistent w/ object of conspiracy
  2. communicated in some manner reasonably calculated to reach co-conspirators
    * gov must prove BRD this didnt happen*
65
Q

Conspiracy - Effects of Withdrawal

A
  • doesnt affect liability for crime of conspiracy
  • SoL begins as of w/drawal date for tht person
  • most cts say wont be held liable for crimes of other co-conspirators under Pinkerton
  • stmts made after are not admissible against them
66
Q

Conspiracy - Scope (Kottetakos)

A

to prevail, ∆ must prove:
1. gov failed to prove single conspiracy and
2. error was prejudicial
(look for hub and spoke w/o rim)

67
Q

Conspiracy - Vicarious liability (Pinkerton)

A
  • co-con responsible for each others acts during and in furtherance
  • doesnt reach back, makes∆ liable for a substantive offense in addition to 371
68
Q

Conspiracy - Vicarious liability (Pinkerton) - Gov must prove BRD

A
  1. ∆ was part of same conspiracy at time offense was committed
  2. offense fell w/in scope of unlawful agt
  3. could reasonably be foreseen to be a necessary or natural consequence to agt
69
Q

Conspiracy - Blankship

A
  • mere sellers/buyers not automatically conspirators
  • a supplier joins venture only when his fortunes rise/fall w it
  • cts ask: would this deter crime w/o adding unduly to costs of legit transactions

Spring 15 (3 decks)

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