Statutory Elements
Conduct
Statute
Jurisdictional
Mens Rea
Mail/wire fraud §1341,
43
Use of mail, wires,
interstate carriers
Intended deceit something that relying
pty didn’t expect
Hawkey
Bank Fraud §1344
Financial institution
Specific intent to
defraud financial
institution
Computer fraud §1031
Protected computer –
used by gov’t or in
interstate comm.
Procurement fraud
D is part of a K w/ US
for >$1mil.
Must be directed against
US
Insider trading 10b-5 &
§78ff
Purchase or sale of
securities
1. “Knowing”
possession of inside info
2. “Wilfully”magnitude, duration,
deviation from gen’l
standards, turning a
blind eye to red flags
Weiner
For purpose of causing
harm to protected
interests
- deprivation of property
in vic’s hands
- deprivation of honest
services §1364
Shielding economic
substance of transaction,
putting bank at risk of
loss
1. Unauthorized access
to computer that causes
2. Damage to individual
- >$5K or D gets a
benefit
Same
Materiality
Other elements
Deceit goes to the heart
of the bargain – puffery
not enough
If “affects a financial
institution” the
penalities/SOL increase
- expose to risk of loss
or liability
Same
Same
1. D purchased/sold and Inside info must “alter
was either insider or
the total mix”
missappropriator
2. D tipped and received
something fo value for
tip
3. D received tip and
knew tipper was
breaching fid. duty by
making tip.
Each count must be
chronologically and
substantive independent
from overall scheme
1. Must be an existence
and breach of a fiduciary
duty
2. Two defenses
- No knowledge proviso
is defense to avoid jail
time
- 10b-1: action taken
pursuant to written plan
that D couldn’t alter
False/Misleading
statements in connection
with…
False statements §1001
Purchase or sale of
securities
At least reckless
D makes false or
misleading statement
It “alters the total mix”
1. Made w/ the
jurisdiction of…
2. Executive branch,
Judicial branch, or
ongoing invest. auth. by
Congress
Knowingly and willfully
– D knows the statement
is false
Makes a false statement
- concealing conduct
(switching stamps)
- false promises w/ no
intent to perform
- exculpatory “No’s”
Capacity to influence the
investigation, but not
whether it actually does
influence
False claims §287
Claim presented to US
gov’t
1. Under oath b/f a
competent tribunal OR
2. In a declaration under
penalty of perjury
Under oath in
proceeding b/f or
ancillary to court
Same
Claim is for money or
property and is false
Makes an untrue
statement
- misleading but nonresponsive not enough
Same
Same
Pending judicial
proceeding
- Criminal: subpoena
issued for purpose of
presenting facts to GJ
- Civil: anticipation of
subpoena
Corruptly – specific
intent to
influence/impede due
admin. of justice (selfish
motive)
Endevour to
influence/impede due
admin. of justice
- document destruction
- false statements that
cut off further inquiry
- encourage witness to
assert 5th.
- noncoercive witness
tampering (bribes)
NONE!!! – need not
actually succeed
Perjury §1621
False Declaration §1623
Obstruction §1503
Willfully
Knowingly
Capacity to affect
Capacity to affect
1. Jurisdiction =
statutory auth. to
conduct invest, fed.
gov’t retains ult.
enforcement auth.
2. Exception for
statements made to
judge in judicial
proceeding
Must prove falsity
through 2 witness rule
- One witness and
corroborating evid. okay
1. Can prove falsity by
any mode of evid.
- irreconcilable
inconsistent statements
2. Recantation defense
1. Nexus – D must know
endeavor has “natural
and probable
consequence” of
influencing...
- must know likely affect
a proceeding Aguilar
2. Safe harbor for
lawyers providing bona
fide legal advice
Witness tampering
§1512(b)
Conduct is directed
towards a witness or
victim
Witness harassment
§1512(d)
Same
Witness retaliation
§1512(e)
Conduct direct towards
someone who reports
truthful info to law
enforcement about
potential crime
Federal public official
- elected or appointed
(position of trust to carry
out fed. objectives)
Same
Bribery of public
officials §201(b)
Gratuity of public
officials §201(c)
Bribery of witnesses
§201 (b), (c)
Federal Program Bribery
§666
Federal witness
D is agent of local
org/gov’t entity that
receives > $10K fed.
assistance in 1 yr.
1. Knowingly –
modifies corruptly to
require consciousness of
wrongdoing Anderson
2. Intent to:
- influence, delay,
prevent testimony
- cause person to
alter/destroy document
1. Intent to harass
2. Intent to dissuade
from testifying
1. Intimidation –
involves specific threats
(Willard God will get
you)
2. Corruptly persuades –
more like bribes but
requires higher mens rea
3. Misleads
Same
No pending proceeding
requirement, but
“knowingly” requires D
at least foresee a
proceeding Anderson
Harasses witness
- badger, pester, disturb
- not specific threats
Same
Intent to harass can be
inferred from D’s
demeanor/witness
reaction Wilson
1. Knowingly
2. Intent to retaliate
1. Takes any action
harmful to witness
Same
Corrupt intent to
influence an official act
– quid pro qua
1. Offers/accepts or
solicits
2. Thing of value (in D’s
mind)
Same
Pub. official needs to
only give offering party
impression that will
perform official act
Same
See specific tests in
outlines for each
element
Same
Same
Same
1. Same as
bribery/gratuity
2. Transaction involves
>$5K
Same
Debate whether bribe
need affect fed. funds
- federalism concerns
- Nec. & Proper Clause,
$ fungible
“For or because of” an
official act - reward
Same but testimony
substitute for official act
Same as bribery and
gratuity
Same
Criminal RICO §1962(c) Predicate acts
- fed.: §§ 201, 1341-44,
1503, 1512
- state: bribery (generic)
& chargeable/punishable
under state law
Whatever the predicate
crimes require
Criminal RICO
conspiracy §1962(d)
Agreement to commit
the predicate acts
D agrees to further a
criminal objective
Civil RICO §1964(c)
Same as Criminal RICO
Same as Criminal RICO
CFTRA
Financial institution
Willfully
§6050 I
Person engaged in trade
or business
See increased penalties
1. Enterprise that affects interstate comm.
2. D engaged in pattern of racketeering activity
- relationship & continuity
3. D employed or associate /w enterprise and
conducted or participated in conduct of enterprise
though pattern…
- Operation or manage test (Reeves)
D conspires to violation §1962(a)-(c)
- agrees to facilitate a co-conspirator committing the
predicate acts (Salinas)
1. Every element of Criminal RICO
2. P sustained injury to “business or property by
reason of”
- 3 standing requirements Libertad, Comm.
Cleaning, Anza
3. D’s RICO “violation”
- failure to adhere to legal standards Sedima
1. Failure/cause to fail to
report transaction
involving >$10K
2. Structuring to avoid
reporting requirements
1. Person fails to report
transaction involving
>$10K in CASH
See outline for specific
tests of each element
Same
Same
Enhanced penalties if:
1. Violation occurred
while violating another
law of US
2. Violation was part of
“pattern” of illegal
activity involving
>$100K in 1 yr.
-patter = repeated &
related
Enhanced penalties if
violation due to
“intentional disregard”
-willfulness
- no good faith exception
Money Laundering
§1956
Financial transaction
Aiding and Abetting §2
D causes an act to be
done, which if done
directly by him would be
an offense against US
Blockburger test: Each statute must require proof of an element that the other one does not and no contrary Congressional intent
Examples:
Prosecution under
multiple statutes
1. Knowledge that
transaction involved
proceeds from unlawful
activity (willful
blindness)
2. Transaction intended
to:
- Promote unlawful
activity OR
- Commit tax fraud OR
avoid CFTRA oR
- Conceal nature of
source of proceeds
Willfully
D engaged in financial
transaction involving
proceeds from unlawful
activity
- financial transaction
interpreted very broadly