Jana C. Volante writes: In Part I of an analysis of the recent Third Circuit case of United States v. Munchak, 2013 WL 2382618 (3d Cir. May 31, 2013), we discussed the court’s treatment of the issue of restitution for tax offenses under Title 26 — none is available — as contrasted with offenses under Title… Continue Reading
In a recent case, the Seventh Circuit held that deliberate ignorance is sufficient to prove fraudulent intent on the part of an title company attorney, supporting her conviction for mortgage fraud based on a jury instruction as to the “ostrich” defense.
Supreme Court reaffirms that defendant bears the burden of proving his withdrawal from a drug-distribution conspiracy.
A defendant’s rights under the Grand Jury Clause of the Fifth Amendment of the U.S. Constitution can be violated if the Government’s evidence at trial and/or the instructions given to the jury at trial constructively amend the defendant’s grand jury indictment to include conduct that is beyond the language and the scope of the indictment itself. However, as shown by the Seventh Circuit’s decision in United States v. Natour, it is not easy for a defendant to prove that the Government has constructively amended his indictment.
The Seventh Circuit has extended the reach of the federal-program bribery statute to noncommercial policing activity, expanding greatly the variety and number of local government activities now within the statute.
The Fourth Circuit’s recent and divided interpretation of a money laundering safe harbor provision, contrary to the plain words of the statute and to the holding of another court of appeals, threatens the prosecution of defense attorneys for accepting payment out of criminal proceeds.
The Eighth Circuit has set a particularly low bar for the government to hurdle in proving mail fraud, by holding that even routine discovery requests in a civil case qualify as mailings “in furtherance” of a scheme largely accomplished prior to the filing of that action.
A consultant assisting local schools in obtaining federally-distributed funds intended to facilitate Internet connectivity at the schools was charged with defrauding the program, even though the funding applications which she prepared did not violate any of the regulations of the program. The jury rejected this defense and so, on appeal, did the Ninth Circuit. United… Continue Reading
Prior to the expansion in the last several years of the list of federal offenses for which forfeiture is available as a penalty upon conviction, now including health care offenses and telemarketing schemes for example, prosecutors frequently charged money laundering in order to wield the threat of forfeiture which followed conviction on those charges. Even… Continue Reading
In a series of insider trading cases, the Second Circuit has appeared to hike the government’s burden of proof in showing the “willfulness” of conduct needed for conviction by requiring evidence that a defendant acted with the knowledge that he was violating the securities laws. This additional layer of proof, common to prosecutions of many… Continue Reading
Defending a securities fraud prosecution brought under 15 U.S.C. § 78j and Rule 10b-5 on the theory of undisclosed material information can be enormously challenging because the standard for judging whether particular information would have been material to a reasonable investor is so elastic and unpredictable. Just how immaterial the supposedly “material” information may be… Continue Reading
We have noted in these electronic pages the first stirrings of what may be a trend in the courts of appeal to limit the reach of 18 U.S.C. § 666 – which prohibits theft and bribery in local government programs which receive federal funds – to true agents of state government. The Eleventh and Fifth Circuits… Continue Reading
We noted here recently the first signs of an effort among courts of appeal to temper the reach of 18 U.S.C. § 666, long a favorite tool of prosecutors seeking to federalize misdeeds by local and state officials. Now the Eleventh Circuit has joined in, acting to limit the scope of the statute by strictly… Continue Reading
Long a favorite weapon of federal prosecutors, Section 666 of Title 18 makes it a crime for an agent of a state or local organization or agency to corruptly demand, offer, or accept anything of value of $5,000 or more in connection with any business or transaction of the organization or agency, where the organization… Continue Reading
Lawyers know reflexively that, in order to convict, a criminal jury must be unanimous in agreeing that the government has proven all essential elements beyond a reasonable doubt. They also know that the crime of conspiracy under Section 371 of Title 18 includes among its elements the requirement of proof of the commission of an overt act,… Continue Reading
The Supreme Court last week in Boyle v. United States, No. 07-1309 (June 8, 2009) declined to limit association in fact enterprises under RICO to those having the characteristics of "business-like" entities. In so doing, the Court made it easier for the government to charge RICO against looser confederations of criminal groups, like drug and bank robbery… Continue Reading
A public official who accepts a bribe from a developer, both cash and a plot of land, but does not explicitly reach agreement with the bribor on an official act to be performed by the recipient may still be convicted of violating the Hobbs Act, 18 U.S.C. § 1951 and 18 U.S.C. § 666, according… Continue Reading
The Ninth Circuit recently reversed wire fraud convictions on the ground that the wire transfers upon which the 18 U.S.C. § 1343 charges were based occurred so long after the underlying activity was completed that the transfers could not be said to be "in furtherance" of a fraud. United States v. Lazarenko, No. 06-10592 (9th… Continue Reading