white collar crime compiled notes

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WEEK 1INTRODUCTION TO FEDERAL WHITE COLLAR CRIME

Federal White Collar Crime p 1 52

A.DEFINITION

Elements of significant white-collar crime cases: White collar violationsinvolve the use of a violators position of significant power, influence, or trust in the legitimateorder for the purpose of illegal gain, or to commit an illegal act for personal or organisational gain

B.WHITE COLLAR TRIAL PROCESS

Complaint There is an incredible fraud going on against the State of Illinois! They got all these money because of political connection! Evidence gathering FBI agents out in the field interviewing people and getting documentary evidence. Tell your clients to tell the truth an omission can even be a lie. If you have a target, there is no reason for him to talk to the FBI . You can always talk to them later but with the lawyer present. Parallel investigation to what the government is doing you are building your file just as they are building their file You have to tell your client what they are being charged for, give them an overview of the processes, plea bargaining, fees Grand jury convenes the witnesses who refused to talk to the FBI get called to the grand jury. They are told by the prosecutors that they are not the targets. If you are to testify to the grand jury, tell the 100% truth or else they would use perjury charges Sword and a shield! Proceedings are kept secret Disadvantage to D: Defendants office not entitled to pre-indictment information Joint Defence and Common Interest Agreement attorney-client privilege would be preserved Detention hearing confined to the district, not allowed to have any weapons. Even though there is this presumption of innocence, there isnt really such a presumption! Because of this indictment and the courts power to release/detain you he is not released as a full member of the society! The only way the court would let someone out of custody would be to place a bracelet on him! Violating one of these conditions is a separate federal offence. Discovery in Federal Court is not exactly that way required disclosure is limited. You do have to disclose physical evidence, admission or confession, a list of witnessesbut you are not required to turnover the statements of the witnesses who are going to testify in trial, until they have testified! Surprise in trial! Fortunately, most prosecutors recognise that as a problem. The judge in a way to control this is to grant a recess. But you can imagine what will happen to the length of trial time delay, etc. Discovery request which required the prosecution to disclose any at all, co-conspirator statements. US v San Diego not only must the prosecution disclose the co-conspirator statements, but must establish probable cause and the co-conspirator statements were made in furtherance of the conspiracy. It became so routine that it became part of the local rules. That would put an agent on the stand and testify it and the defence would get to cross-examine the defence on it Pre-trial motions rulings made by the court to dismiss the indictment because of lack of elements (i.e. mens rea, lack of fraud, etc) Motions to suppress suppressed evidence that were taken out of seizures You can get governmental witnesses to testify and know more about the case, by having hearings on the motions. Power to have subpoena as a defence lawyer significant! You can use that case to subpoena documents that may be favourable to you! Motion to eliminate Pre-trial ruling on the evidence before the judge Jury instruction the lawyers prepare those instructions early. If you can set up a pre-trial hearing where you can get a defence witness under oath, you should do that. You should try to anticipate the prosecution / defence theories The judge would want to know how long is the trial find out how the judge handles jury instruction. In state courts, the counsels participate in jury selection. In federal courts, really rare. Final trial preparation stage the first thing you should do is to prepare your closing arguments. That trial ought to be about getting evidence to address the themes of the trial, and the closing arguments. We already ought to know the truth! You have to call witnesses you need to meet those witnesses in person. But note that no matter how much you prepare the witnesses, everything goes out of the head. Prepare Opening Statements There is no such thing as one-person case. You need someone to help you to take notes, remember things. Opening Statements + go through governmental witnesses (Show time). If you have done your homework, and the prosecution did not do their proper work you can get the case dismissed (though it is really rare) Into the defendants case same routine just that the role is reversed. There is an opportunity for rebuttal but there is also an opportunity for sur-rebuttal. But it is very rare that those situations happen but it could. Closing arguments can take up an entire day. Thereafter, the jury is instructed and goes back to do their deliberation Post-trial motion Most of the time in trial is spent on sentencing! Notice of Appeal State law and federal law overlap more often than not! The investigator may more often than not choose to go to the federal court if he has a strong case

C.RECURRING THEMES

(1) Criminalisation (i.e. where should the line be drawn between criminal and tortious (or simply immoral) conduct?)(2) Federalisation (i.e. if one is satisfied that the conduct at issue should be pursued criminally, what principles should control the allocation of cases between federal and state enforcement authorities?)(3) Judicial role (i.e. where the content of the criminal prohibition at issue is uncertain, how should courts respond?)(4) Prosecutorial discretion (i.e. what is the value of prosecutorial discretion and how should it be exercised or, where necessary, constrained?)

(1)Criminalisation

Notwithstanding modern blurring of civil and criminal law, criminal law retains certain distinguishing core features: Sanctions: Criminal laws uniqueness derives from its invocation of societys harshest sanctions, including the loss of liberty that results from incarceration, death, and the moral stigma associated with a criminal conviction Justification: Virtually all of criminal laws distinguishing features derive from the need to identify the circumstances that justify the use of criminal sanctions entailing both carefully defining the human behaviour warranting the sanction, as well as attaching procedural safeguards to the criminal proceeding to ensure a fair and accurate adjudication of culpability Moral stigma: The moral stigma of the criminal sanction will attach in the long term only if the public is persuaded both of the moral culpability of the proscribed conduct and of the reliability of the adjudication of the defendants guilt. One of the features that makes criminal law unique the moral stigma associated with a criminal conviction is not self-executing. It can be lost over time by overreaching Moral culpability: The more culpable the state of mind, the harsher the corresponding punishment ought to be. Culpability in this context turns on Ds purpose, the extent of Ds knowledge of the circumstances surrounding her conduct, the conduct itself, its results, and the reasons for Ds behaviour More exacting burden of proof on the government and otherwise provides D with significant additional procedural guarantees: The govt must establish Ds guilt beyond a reasonable doubt and not, as in civil enforcement actions, by a mere preponderance of the evidence. Moreover, there are a host of evidentiary and procedural rules applicable only to criminal proceedings that are intended to enhance the reliability of the evidence before the factfinder and to preclude consideration of unduly prejudicial information

(2)Overcriminalisation; Federalisation; Judicial Role; Prosecutorial Function

Failure to have in place even a modestly coherent code makes a mockery of the United States much-vaunted commitments to justice, the rule of law, and human rights An effective and just system of penal laws should be: drafted by elected representatives to be as clear and explicit as possible so that citizens have fair notice of that which will subject them to criminal sanction; public; accessible; comprehensive; internally consistent; reasonably stable; rationally organised to avoid redundancy and ensure appropriate grading of offence seriousness; prospective only in application; and capable of uniform, nonarbitrary, and non-discriminatory enforcement Saving grace: US Sentencing Guidelines. Classify conduct and offences apply those characteristics to the nature of the case. We will end up with a lack of sentencing disparity. But it violated the separation of power as Congress was telling the courts what to do until fairly recently! Provided sentencing formulas to be applied to the facts of offenders cases and required judges to sentence offenders within the narrow sentencing range (e.g. 15-21 months) dictated by those formulas absent extraordinary circumstances Statutory maximums still operated to cap defendants sentencing exposure, but in most cases the maximums were sufficiently generous that they did not impose a significant limitation on Guidelines sentencing In 2005, however, the Supreme Court held the mandatory Sentencing Guideline unconstitutional in Booker v US. It reasoned that augmentation of a defendants sentence by mandatory judicial determination of the real facts of the case at sentencing violated Ds jury trial rights. The Court ruled, however, that augmentation of sentences based on judicial findings in a discretionary system did not offend the Sixth Amendment Once again, judges have enormous sentencing power because their discretion, though informed by the Guidelines, is limited only by the applicable statutory maxim

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