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

Author’s Notes Regarding the Changes in New Edition:

Throughout the Ninth Edition, I tried to prune. Significant deletions (and additions) are mentioned below.

Chapter 1 (Introduction): I added a note on the potential applicability of the nondelegation doctrine to regulatory crimes. I removed the case study under professional responsibility (David Luban’s The Conscience of a Prosecutor) in the interests of making the book shorter (and thus cheaper for students).

Chapter 2 (Mens Rea): I changed a fair amount in this chapter for clarity’s sake. I have substituted the Supreme Court’s hierarchy of mens rea for that of the Model Penal Code. I tried to be clearer in laying out the tools of statutory construction. I also eliminated the discussion of the spectrum of issues as to which “knowingly” can relate—described in past editions as general fact, specific fact, and legal fact—because students seem to find it confusing. Instead, I came up with a taxonomy of the issues raised—silent statutes, statutory ambiguity, and definitional ambiguity—which I think should help readers. I created problems designed to illustrate these issues. I have deleted United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993) (en banc), because students can easily look it up if they are interested.

Chapter 3 (Sentencing): I added to the discussion the new “zero-point offender” adjustment in § 4C1.1 (effective Nov. 2023) and the new rule, § 1B1.3(c), barring most consideration of acquitted conduct (to become effective Nov. 2024).

Chapter 4 (Entity Liability): I included the latest iteration of Justice Manual § 9-28.000, “Principles of Federal Prosecution of Business Organizations” and mentioned two new pilot problems in the notes.

Chapter 5 (False Statements): I shortened the discussion of double jeopardy in successive prosecution cases to eliminate the exceptions; my rationale was this is too in the weeds. I also removed Riley v. St. Luke’s Episcopal Hospital, 252 F.3d 749 (5th Cir. 2001) (en banc), which, although it raises a fascinating issue, I have never gotten to in teaching the course.

Chapter 6 (Obstruction): The obstruction provisions of the code is incredibly redundant, complex, nit-picky, and disorganized. I thought that I could do a better job of organizing my discussion and thus substantially reorganized and re-wrote the chapter, although the principal case readings remain the same. I slimmed it down by eliminating, for example, the extended discussion of the Barry Bonds case, United States v. Bonds, 784 F.3d 582 (9th Cir. 2015) (en banc the separate section on § 1505, and the extended discussion of United States v. Poindexter, 951 F.2d 369, 279 (D.C. Cir. 1991), which has been reversed in 18 U.S.C. § 1515(b). I eliminated the case study appended to the chapter because former President Trump’s alleged obstruction in the Russia investigation has both been overtaken by his obstruction indictment by the Special Counsel. And, in any case, it was clearly rendered moot by Trump v. United States, 144 S.Ct. 2312 (2024), a case I mention but do not go into at any length. I have included reference to Mueller’s conclusions regarding the alleged obstruction of the Russia investigation, and the reason Attorney General Barr gave for declining the case, in relevant notes. I have included a discussion of the prosecutions of the Jan. 6 rioters and Fischer v. United States, 144 S.Ct. 2176 (2024). I also cover the Special Counsel’s amended indictment of Trump under § 1512(c)(2) and how it is responsive to the Fischer and Trump decisions.

Chapter 7 (Fraud): I cut back on and reorganized the notes following Schmuck; I omitted an article I wrote that outlined the confused state of the law before Skilling because enough time has passed that these precedents are rarely invoked. For the same reason the note concerning United States v. Bronston, 658 F.2d 920 (2d Cir. 1981) was omitted. The outcome of the Blaszczak saga—concerning whether confidential government information is property—in United States v. Blaszczak, 56 F.4th 230, 236 (2d Cir. 2022) is covered. The discussion of the “right to control” theory of intangible property has been amended to take account of the Supreme Court’s rejection of the theory in Ciminelli v. United States, 598 U.S. 306 (2023). The chapter has also been amended to reflect the Supreme Court’s decision in Percoco v. United States, 598 U.S. 319 (2023), holding that a person nominally outside public employment can owe a duty of honest services to the public but declining to articulate when that is so. A note discussing random property theories was omitted in favor of discussion of the Supreme Court’s cert grant in June 2024 to decide the viability of the fraudulent inducement cases in United States v. Kousisis, 82 F.4th 230 (3d Cir. 2023). I also deleted the long note regarding the possibility that the Hobbs Act interpretation of “obtainable” property would be transferred to the mail/wire fraud context because this theory has not prevailed in the courts.

Chapter 8 (Corruption): The notes are amended to take account of the Supreme Court’s decision in Snyder v. United States, 144 S.Ct. 1947 (2024), holding that § 666 applies only to bribes, not gratuities, paid to state and local officials. A note was added to take account of the Foreign Extortion Prevention Act, enacted in 2023, which includes a new provision—tucked into the federal bribery statute (18 U.S.C. § 201) rather than the FCPA—that authorizes prosecutions of foreign public officials where there has been a violation of the FCPA. I took out the note on honest services as unnecessary in light of this new statute.

I omitted the FCPA enforcement policy because these policies are evolving so quickly it is better to direct students to a website for the latest version if one wishes to cover such policy.

Chapter 9 (Securities): I included the latest amendments to the SEC Whistleblower Program.

Chapter 10 (Conspiracy): I included discussion of the indictment of former President Trump under the defraud clause of § 371.

Chapter 11 (RICO): I added a discussion of each subsection of § 1962. The note regarding the use of § 1962(d) to avoid Reves’ strictures has been updated to reflect that the circuits appear to be in accord in holding that the Reves operations or control requirement does not apply to a RICO conspiracy charge. See, e.g., Smith v. Berg, 247 F.3d 532, 534 (3d Cir. 2001).

Chapter 12 (Money Laundering): I took the temporal issues out and made them their own section; I hope this makes these questions easier to master. I also omitted the tracing discussion and added discussion of sting transportation cases. Finally, I added a discussion of the use of electronic funds transfers and transfers relating to the use of correspondent accounts to justify extraterritorial jurisdiction under § 1956.

Chapter 13 (Grand Jury): I took out the note about warrant specification. I expanded and clarified the discussion on applicable Fourth Amendment analysis, the content of the SCA, and the exception the Court made to the general Fourth Amendment rules in Carpenter v. United States, 585 U.S. 296 (2018). I also inserted some information about the DOJ’s ephemeral communications policy.

Chapter 17 (Attorney-Client/Work Product): I eliminated the note regarding the Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), case. I deleted the compelled-voluntary waiver section because it has been rendered moot by changes in DOJ policy.

Chapter 18 (Representation Issues): I removed reference to the outdated Model Code of Professional Responsibility.

Chapter 21 (Extraterritorial Application of U.S. law): I included a discussion of the Court’s latest extraterritoriality case, Abitron Austria GmbH v. Hetronic International Inc., 600 U.S. 412 (2023). I omitted discussion of the case involving the extraterritoriality of the Stored Communications Act because it was preempted by legislation and is thus not terribly helpful.

Learn more about this series.