Federal White Collar Crime: Cases and Materials

Julie R. O'Sullivan, Georgetown University Law Center

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Table of Contents

Teacher's Manual

Throughout the book, statistics have been updated (e.g., on sentencing, corporate cases v. PDAs, recoveries in FCA cases, FCPA prosecutions and recoveries, etc.), relevant caselaw added, and current scholarship cited or quoted. With respect to larger, specific changes:

Chapter 1 (Introduction): I have included more data on the damage done by white-collar crime, and raised questions regarding why more enforcement resources are not devoted to it. It also seemed appropriate to raise the question whether white-collar defendants are more privileged than “white powder” defendants (with reference to Sam Buell’s work and Jennifer Taub’s book Big Dirty Money), and to discuss issues of race, ethnicity, and class in the allocation of enforcement resources. I have also included data from Brandon Garrett’s latest work that demonstrates a dip in white-collar enforcement and presented newly available data regarding the nature of white-collar defendants in federal court. I have added some additional quotations in the ethics section, and have cut down David Luban’s article to keep the chapter to a reasonable length.

Chapter 2 (Mens Rea): This chapter has changed more than any other because I have found that students struggle with it and may require additional explanation of basic concepts. I start in the Introduction with a discussion of what an “element” is, describing the various kinds of elements. In a new section, (A)(2) “Core Principles,” I discuss the interpretive rules that are the foundation upon which we rely; this covers the rule of lenity, the presumption of mens rea (and exceptions), public welfare offenses, jurisdictional elements, and “ignorance of the law is no excuse.” The Supreme Court’s 2019 decision in Rehaif v. United States was helpful here. I elected to proceed in this manner—rather than, as in prior editions, scattering discussion of these concepts throughout the notes following cases—in hopes that students will find this centralized introduction more comprehensible. I included a problem that is designed to help them understand the concepts presented.

In the same section, I provided additional guidance on how to categorize the cases on what I think of as the “knowing” and “willful” spectrums. And I try to explain my objective in this chapter: showing students how to identify potential litigation positions and giving them a tool kit of interpretive devices to get their clients where they need to be. The new introductory section permitted me to winnow the notes following cases and to relegate some of the case discussions to footnotes (e.g., Flores-Figueroa v. United States and Dean v. United States).

I moved United States v. Weitzenhoff from the primary text (although it is still attached to the chapter in a new section for who still want to teach it). I did this because (a) devoting three cases to the public welfare doctrine (International Minerals, Staples, and Weitzenhoff) seemed excessive; (b) I have found that in my zoom classes students enjoyed and profited from problem-based learning, and (c) Weitzenhoff makes a good case study. So I have posed the facts of Weitzenhoff as a problem (students can read the case appended to the chapter to evaluate how they did in responding to the problem).

In the “willfulness” section, I added a discussion of the three meanings of “willfulness” where I had previously focused on just the two most demanding definitions (that embraced in Bryan v. United States and that required by the Court in Ratzlaf v. United States). In this regard, I put in a discussion of United States v. Russell, in which the Solicitor General conceded error, acknowledging that the least demanding meaning of “willful”—that is, non-accidental—was inappropriate in a false statement case. I included a third problem for use in discussing what “willful” means.

Finally, in discussing “willful blindness,” I referenced more recent jury instructions and included a problem for student discussion.

Chapter 3 (Sentencing): I added a reference to United States v. Hammond (statute governing revocation of supervised release and authorizing a new mandatory minimum sentence based on judge’s findings by a preponderance of the evidence violated Due Process and Sixth Amendment jury trial right).

Chapter 4 (Entity Liability): I inserted the updated Principles of Federal Prosecution of Business Organizations; referenced the amendment to Yates memo; updated the guidance on evaluation of corporate compliance programs; included data from Brandon Garrett on corporate dispositions and individual prosecutions; put in additional information on the FCPA policy and new declinations; and added reference to the anti-piling on policy. I cut my lengthy piece on DPs because it was dated. I also cut the length of the Ionia amicus brief because it repeated itself. I cut the extended discussion of the district court cases asserting a right to review DPs because they were overturned and this seems a dead issue. Finally, I indicated that the Bank of New England theory of collective knowledge is more controversial than I had previously noted.

Chapter 5 (False Statements): I cut down the excerpt from the United States v. Libby case regarding expert witnesses on memory issues and the discussion of Hubbard v. United States. I made a note that the Hubbard Court’s overruling of United States v. Bramblett and its reading of the pre-amendment statutory language has continuing relevance in that the language “matters within the jurisdiction of any department or agency” is found in an obstruction statute, 18 U.S.C. § 1519, and its meaning was the subject of some dispute in dicta in Yates v. United States. I added a note regarding the DOJ’s position on materiality in the context of § 1001 in the Flynn case. And I added cites regarding splits in the circuits on certain elements of criminal False Claims cases.

Chapter 6 (Obstruction): I cut down the discussion of the Bonds obstruction case and added a discussion of the Second Circuit’s latest decision bringing it into alignment with the other circuits in holding that prosecutors can pursue witness tampering under § 1503 as well as § 1512. I added summary notes on issues relating to the investigation of former President Trump for obstruction: one deals with whether one can indict a President for “corrupt” but otherwise legal obstructive acts, and one concerns the question whether some of President Trump’s tweets could constitute witness tampering. I also added a new section with a longer and more detailed case study concerning these allegations, including sections from the Mueller report.

Chapter 7 (Fraud): I added a note on Kelly v. United States and referenced Blaszczak v. United States. Because the majority of circuits seem to believe that an intent to defraud includes an intent to injure in money and property cases, I omitted the lengthy quotation from the First Circuit’s contrary decision in United States v. Kendrick. I omitted the lengthy discussion of United States v. Welch (Salt Lake City Olympics case) and note 4 after Regent Office Supply as unnecessary. I changed the charging policy discussion to take into account the Biden administration’s overruling of A.G. Sessions’s charging and sentencing policy.

Chapter 8 (Corruption): I updated all cites to the DOJ/SEC Resource Manual’s Second Edition. I added problems at the end of the chapter to help students work through the FCPA; these were largely derived from the Resource Manual. As an organizational matter, I took discussion of the U.K. statute out of notes and put it in a discrete section.

Chapter 9 (Securities): I omitted the note discussion of United States v. Chestman, 947 F.2d 551 (2d Cir. 1991) in light of Rule 10b5-2, 17 C.F.R. § 240.10b5-2. I added additional discussion of the status of the personal benefit requirement under the securities laws and included a discussion of United States v. Blaszczak to the section on § 1348.

Chapter 10 (Conspiracy): I added reference to the Volkswagen indictment under a defraud clause theory. I also created a new section for aiding and abetting liability.

Chapter 12 (Money Laundering): I added notes and text regarding the Anti-Money Laundering Act of 2020, and in particular its new BSA criminal violations and subpoena power regarding foreign banks. I added a new subsection under emerging threats to reproduce FinCEN’s advisory on cryptocurrency. I deleted section D’s discussion of the interplay between Congress and the Sentencing Commission because it is dated.

Chapter 13 (Grand Jury): I cut down the United States v. Williams case.

Chapter 14 (Discovery): I added references to those who contend that there is a widespread prosecutorial failure to abide by Brady obligations.

Chapter 15 (Fifth Amendment, testimony): I included a note regarding United States v. Connolly and the issue of when an employer’s threat to terminate an employee who takes the Fifth during an internal investigation is fairly attributable to the government for constitutional purposes.

Chapter 19 (Plea Bargaining): I updated some of the references to DOJ charging policy and changed the discussion to take into account the Biden administration’s overruling of A.G. Sessions’s charging and sentencing policy. I inserted additional data regarding the percentage of exonerations that have involved guilty pleas and cut down the quotation from Stephanos Bibas.

Chapter 20 (Parallel Proceedings): I added a section reproducing the DOJ’s policy on the coordination of parallel proceedings and its anti-piling on policy, noting the problems such concurrent investigations can pose with respect to issues like discovery. I also referenced United States v. Connolly after the discussion of Stein.

Chapter 21 (Transnational): I cited to Fourth Restatement of the Foreign Relations Law of the United States where appropriate. I added brief mention of the Supreme Court’s decision in Nestle USA v. Doe. I replaced Lucian Dervan’s article on international internal investigations with an excerpt for Jennifer Arlen’s and Sam Buell’s piece on the same subject because their article was more concise, comprehensive, and current. I added a note on a new section, 31 U.S.C. § 5318(k)(3) (added in the Anti-Money Laundering Act of 2020) expanding prosecutor’s ability to directly subpoena foreign banks. I moved United States v. Allen and the subsequent discussion of relevant Fourth and Fifth Amendment issues to a separate section.

Learn more about this series.