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White Collar Defense & Compliance Developments in Criminal Law, Federal Case Law and Statutory Developments

Category Archives: Offense elements

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The Seventh Circuit Reaffirms The High Bar Set For A Defendant Seeking Reversal Because An Indictment Was Constructively Amended At Trial

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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.

Has The Outer Limit Of Criminal Federalism Been Reached? “In Furtherance” Requirement Of Mail Fraud Statute Satisfied By The Routine Mailing Of Discovery Requests In Civil Lawsuit Against Victimized Homeowner

Posted in Offense elements

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.

Exploiting Government-Funded Schools Program Constitutes Fraud, Even Though No Regulations Were Violated

Posted in Offense elements

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

Concealment Money Laundering Requires That Animating Purpose, Not Simply Incidental Feature, Be Concealment Of Proceeds

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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

The Second Circuit Declines To Extend Rigorous “Willfulness” Standard From Insider Trading Cases To Plain Vanilla Securities Fraud Prosecutions

Posted in Offense elements

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

Ninth Circuit Holds that Securities Brokers Pumping House Stocks for Higher Commissions Committed Fraud in Failing to Disclose those Commissions to Clients

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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

Section 666 requires no quid pro quo in order to convict state official of bribery, the Eleventh Circuit holds

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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

Supreme Court makes it easier to bring RICO charges both criminally and civilly

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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

Temporal delay between underlying fraud and subsequent wire transfer dooms wire fraud theory

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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