White Collar Crime

5-Digit Exam Number: 27607
Course Title: Federal White Collar Crime

Professor Name: Cary/ Latcovich
Grade: _______
Notes:
Word Count: 3248
PART I
1.
Respondeat Superior: Acme is liable for Zimmerman and Williams acts
Acme is be liable for crimes Zimmerman and Williams committed as employees of
Acme. A corporation may be held liable for crimes committed by employees while acting
within the scope of their employment with intent to benefit the employer. (Sun Diamond). As
Acmes legal counsel, they are acting at minimum, within their apparent authority, where
Desmond could reasonable believe they had the power to make agreements on behalf of
Acme. Williams consulted with Acmes senior executives who wished to seek expedited FDA
approval, so it appears the acts at issue were within Williams and Zimmermans actual
authority. Intent to benefit Acme is evidenced where Williams emphasized to Zimmerman the
importance of FDA approval for the companys product (critically important for the
company). Williams, at least, intended to benefit the company. When you couple his mens
rea with Zimmermans actus reus of forming the agreement via Desmond, the company is
liable for their collective roles. (Bank of New England).
Acme Bribed Harper.
18 USC 201(b), bribery, requires that there was a quid pro quo agreement between a
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public official, where official corruptly, directly or indirectly sought accepted or agreed to
receive personally or for another entity, anything of subjective value to him, in where the
intent is to influence the official in the performance of any official act or to act or omit in
violation of his lawful duty.
Harper, as part of his job as a congressman and chair of the House health committee,
oversees government regulation in biomedical research. Although Harper himself did not
establish the agreement, his staffer, Ian Desmond was his agent who had at least apparent
authority to deal with Acme on Harpers behalf. Desmond represented to Acmes counsel,
Zimmerman, that Harper was well connected with the FDA and had influence over their
decisions (FDA always listened to his advice, good or bad), and that he wished for Acme to
check on his daughters application to Princeton. The FDA is a federal regulation program,
so it puts this A bribe need not be monetary, but need only be of subjective value to the
recipient. Checking on the application was of value to Desmond, as evidenced by the fact
that he requested it specifically, within the context of a business meeting with Acme whose
relationship with Princeton he also mentioned. Desmond agreed to set up a meeting with
Acme and the FDA to expedite the normal FDA approval timeline, in exchange for the
benefit of Acmes influence with Princeton, a school he wanted his daughter to go to. Harper
has an official duty to perform his job honestly, and even doing something that would
normally be within his job duties could be considered corrupt where Acme induced the act in
exchange for help with his daughters application. (Alfisi). The intent may be proved by the
circumstantial evidence of the FDA meeting Harper set up and Zimmerman, Acmes counsel
calling Princeton to check on the application. (Jennings). Because the crime is in the
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agreement, not the product, the fact that the FDA ultimately denied the application is
irrelevant in proving the bribe. Both Harper, the bribed, and Acme the briber, are liable under
this statute. Zimmerman, Desmond and Williams may be liable via conspiracy.
Following Sun Diamond, the quid pro quo element requires specific connection between
the act and the thing of value, not just that the two occurred. Here, there is more of a
connection because there was an agreement. The application and the meeting were discussed
in a way which clearly implied one was a condition of the other. However, Where the quid
pro quo element is not adequately satisfied in the bribery portion of the statute, the gratuities
portion of the statute 18 USC 201(c), maybe be satisfied because it does not require it.
The fundraiser Acme hosted on Harpers behalf would not be considered criminal, however,
because the money was raised for Harpers campaign. Gifts to public officials are not
necessarily illegal. Legitimate campaign fundraising is ok.
Harper, Desmond, Acme, Zimmerman and Williams Conspired.
18 U.S. Code 371, Conspiracy, requires an agreement by two or more actors, willingly
knowingly and voluntarily participating, to commit any offense against the US or defraud the
US or any agency thereof, and an overt act in furtherance of the conspiracy.
Harper conspired to receive a bribe, which is included as an offense for the purpose of the
conspiracy statute because it is a federal crime. There was an agreement between Harper,
through his staffer Desmond and Acme through its counsel, Zimmerman and Williams to
commit the bribery. Harper is liable through his agent Desmond for the acts he committed
under Harpers authority (see above). Conspiracy requires the intent to agree and the intent
for the object crime to be committed. Desmonds agreement on Harpers behalf is sufficient.
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Whether or not he or Harper knew that the acts amounted to bribery, it is sufficient that they
intended to commit acts which fell within the bribery statute. (Stavoroulakis). Harpers
unwillingness to speak directly with Acme on the topic may even indicate a willful blindness
which imputes the knowledge on him if he acted purposely to avoid knowledge and liability.
The phone calls between Desmond and Harper and Desmond and Zimmerman were overt
acts, which facilitated the conspiracy, as was Harper setting up the meeting and Zimmerman
calling to check on the application.
One can be convicted of the substantive offense of a conspiracy based upon acts of a coconspirator in furtherance of the conspiracy if the acts fall within the scope of the conspiracy
and could be reasonably foreseen as a natural or necessary consequence of the agreement.
Pinkerton. Therefore, all the co-conspirators may be liable for acts they each committed
within this scope.
False Statement
Liability under 18 U.S. Code 1001 requires a false statement or affirmative
concealment through trick or scheme of a fact that defendant had a legal duty to disclose; that
was material; the subject-matter involved was within the jurisdiction of the executive,
legislative, or judicial branches; where in so doing defendant acted knowingly & willfully.
When the FBI agent interviewed Zimmerman, he omitted the information about his
conversation with Williams in response to a specific conversation about his employer.
Although communications with Acme could normally be protected by privilege, the
communication here was in furtherance of a crime, and therefore not protected. Zimmerman
may invoke his 5th amendment right against self incrimination. However, he must invoke it.
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The willful element may be proved not just by making a false statement but by willful nondisclosure, concealment. However, actual truth of a statement, whether misleading or
ambiguous defeats willfulness. (Bronston) Therefore, the issue is whether Zimmerman
intended to conceal the conversation with Williams. If the question was not specific enough,
and Zimmerman answered it technically truthfully, then he has a defense. However, the
element of duty to disclose is not clearly met here, because as an individual Zimmerman has
the right not to disclose to the government, to remain silent. Therefore, there is no liability
under this claim.
Acme and Harper committed wire fraud.
18 U.S. Code 1343, Wire fraud requires a scheme to defraud and an interstate
transmission in furtherance. The scheme to defraud element may be satisfied by Harpers
position as a congressman, where there is a duty to provide honest service to his constituents.
( 1346) The undisclosed bribery itself is sufficient to make out the crime (Rybicki) The
jurisdictional element is met where there are emails that further it (Any update on
Princeton?). Although the emails were between Zimmerman and Williams not Harper, they
were sent in furtherance of the scheme and by co-conspirators, so they meet the requirement.
Both Harper and Acme may be liable for wire fraud.
2.
Under USAM 9-28.300, prosecutors apply factors when determining whether to charge a
corporation. Considering the collateral consequences, Acme should not be indicted. Acme
makes products that save lives. Their new product may potentially change the lives of those
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suffering from insulin dependent diabetes. Punishing Acme will also punish the shareholders,
who were innocent. This does not support the goal of retribution.
The risk of harm to the public for Acmes actions regarding bribery was minimal because
the FDA was doing everything they would have done in absence of Acmes acts. In addition,
there is a very tenuous connection between checking on the Princeton application and
meeting with the FDA, which will be difficult to prove successfully in court.
Conspiracy statutes are aimed at punishing dangerous criminal groups, but this is not a
dangerous group. Acme is a corporation that makes life saving medical advancements, not
the mafia.
It may be sufficient to impose sanctions or a compliance program in lei of criminal
prosecution, to keep an altruistic company like Acme from potentially going out of business,
and to prevent excess harm to the innocent shareholders and employees. The company might
benefit from more oversight, especially where it was not directly culpable, but for the acts of
employees within the company. The corporation did not itself do anything wrong. All the
charges are based on respondeat superior.
3.
Representing Acme and Zimmerman unethical.
An attorney may represent co-defendants if she reasonably believes the representation will
not be adversely affected and the client consents after consultation.
Representing both defendants would be beneficial because you would have a more
unified theory of the case, the information between you and your clients can be shared
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without waiver or privilege, and it is more efficient. If I wanted to represent both defendants,
I would need to get consent from Zimmerman and explain the possible issues that come up.
Representing both Acme and Zimmerman may cause serious conflicts of interest. It may be
in the best interest of the corporation to cooperate with the government against Zimmerman.
If I were able to represent Zimmerman in addition to Acme, I would have to tell Zimmerman
that, as counsel for Acme, my duty is to the corporation first. If any conflict came up,
Zimmerman might end up at a disadvantage. Therefore, representing Zimmerman would be
unethical.
4.
Zimmerman may fight the subpoena under Hubell.
MRPC 3.8(f) forbids prosecution from serving subpoena on lawyers unless the info is
unprivileged, is essential, and there is no feasible alternative to obtain it. There is a much
standard for subpoenas of documents for grand jury testimony than the probable cause
needed for a search warrant because it is in the courts interest to get all the evidence
relevant. (In re Grand Jury Subpoena)
Unfortunately, Zimmerman shelter himself with attorney-client privilege because the
privilege protects communications with his client, Acme, not Zimmerman personally. Even if
Acme were to attempt to invoke it, the records sought in the subpoena do not fall within
attorney client privilege, which covers communications where Acme sought legal advice
from Zimmerman. The records sought regarding Harper, his office and his family are
business records regarding business transactions that were not confidential. (Braswell). The
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business dealings with Harper were discussed with Desmond, a third party. Zimmerman also
shared this information with the FBI agent, which shows he didnt think it was privileged.
The documents were business related, not personal, so there is not an expectation of privacy.
Finally, they were made in the process of furthering Acmes unlawful agenda, which is not
protected by attorney client privilege. Rather the content may be incriminating, and that is
not covered by the 5th amendment. (Fisher) Zimmermans personal emails are probably
subject to the subpoena because he mixed his work and personal e-mails.
Zimmermans only possible defense against the subpoena is claiming that the act of
producing them is in itself incriminating and testimonial, as it must make extensive use of the
contents of his own mind. (Hubell). For example the parameter which requests documents
regarding Harpers office and any member of Harpers family requires that Zimmerman
know which documents relate to matters of Harpers office and that he identify members of
Harpers family. By acknowledging that has personal knowledge of Harpers family, he is
incriminating himself by in essence testifying that he knows Harper well enough to know his
family. It is not a far leap to say this concept implies he was involved with the Princeton
events with Harpers daughter.
5.
Mr. Zimmerman,
The DOJ has contacted me to inquire whether you are willing to cooperate in their
investigation. As someone who witnessed the majority of the incidents at issue, the
information you have may be invaluable, and can potentially benefit you in the long run.
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USAM 9-27.600 allows a prosecutor to enter into a non-prosecution agreement in exchange

for cooperation, where it is necessary to the public interest, where other means of cooperation
are unavailable or ineffective and if there is supervisory approval. You have information vital
to the prosecution of several potential defendants, including congressman Harper who holds
several positions of power and Acme a large corporation. There is arguably more interest in
their prosecution, to set an example to other powerful people or entities, than to prosecute
you, one employee of the corporation. Information you have regarding their actions, the
phone calls you made on their behalf, and documents you have as Acmes legal counsel are
not readily available to anyone other than yourself and the other defendants. As a legal
professional, you are not only in possession of important information, but also have the skills
and experience to determine what pieces of information are useful to the prosecution and to
testify efficiently, should they request you to do so. You have access to emails and other
documents related to the incidents and you were personally present to witness other acts
which may be relevant to the prosecution.
The first step would be, ideally, to provide a proffer of proof to show you have something
to offer. I would preferably present this to the prosecution in your absence, to be safe. Then
there will be negotiations regarding immunity or some type of plea. If they require you plead
to something, we can negotiate the sentence. Under 5K1.1., we may work out a significantly
reduced sentence for your cooperation.
I advise you to consider this option and get back to me quickly because your bargaining
power may lessen if another defendant agrees to cooperate.
-Your Attorney
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6.
Constitution
The Fifth and Sixth Amendments require that a defendant receive exculpatory evidence at
trial. If the prosecution suppresses evidence that would be favorable to the defendant and is
material to the case pas the point where the defense can make use of it, this is a Brady
violation. Brady requires materiality, meaning that it prejudiced the outcome of the case.
Bagely defines it as sufficient to undermine confidence in the verdict. Either way it is a high
standard. In a jurisdiction following Justice Marshalls dissent in Bagely, all exculpatory
information must be disclosed before trial, whether material or not.
The information about Harper wanting his daughter to go to Harvard is not material, and
seems hardly relevant, so the lack of disclosure probably does not indicate a constitutional
issue. However, the information regarding Zimmermans criminal record may be material
because Zimmerman is likely a very important witness whose credibility is paramount to the
case and a criminal record is very influential impeachment evidence. However, the high
standard is tough to meet, so it will more likely be considered a violation in jurisdiction
following the Marshall dissent. (Safavian)
DOJ
The first statement may a be required disclosure, but the second is not. The DOJ requires
prosecutors to disclose when they are personally aware of substantial evidence that directly
negates the guilt of a subject of the investigation. The McDade Amendment, 28 U.S.C. 530B,
requires federal prosecutors to follow state and federal rules of professional responsibility in
effect in the states where they conduct their activities. They require disclosure, however,
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getting a conviction thrown out because of the lack of disclosure is not easy. The DOJ took
the position that its prosecutors could not be subject to sanctions by the bar in the jurisdiction
in which they tried the cases because state bar not apply to them, because sate bars cant
mandate disclosure in excess of what constitution requires. If constitution requires materiality
then that is all they are bound by. (Williams).
Ethical Standards
However, ABA Rule 3.8(d) says that a prosecutor is ethically bound to disclose all
exculpatory evidence regardless of materiality. The first statement is a required disclosure.
However the second statement is not really relevant, so probably not required here.
PART II
1.
First, you must start with the base level of the object offense, wire fraud. (2X1.1.) then
decrease by 3 levels for conspiracy, unless the object offense was complete.( 2X1.1. (b)(2)).
Here the offense was complete so we do not take away 3 because Ovechkin concluded the act
when he gave back the rest of the money.
To get the base level offense, we look up with the wire fraud statute in the guidelines
which references 2B1.1. 2B1.1 states that the base level is 7 points because the statute for
wire fraud prescribes a maximum of 20 years. Then, add 20 because the 13,000,000
Ovechkin used falls in the was over $7,000,000 category. Then, Increase by 2 because it
involved ten or more victims. Then add two points because (B) possession of a dangerous
weapon (including a firearm) in connection with the offense, prescribes it, where Greene
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carried a gun when looking for investors. That equals 31 total.

Then we go to Chapter 3 for adjustments. Add 2 levels for 3B1.1.(c) Aggravating Role,
because the defendant was the leader. He started the plan, sought the investors and Greene.
Then, add 2 levels for abuse of position of trust, 3B1.3., because the investors trusted him to
use the money to buy a team, not for his personal expenses. That equals 35 total.
Then 3D requires aggregating multiple counts by putting them in groups of similar offenses
by using the highest level. Here conspiracy to commit wire fraud and wire fraud are closely
related. They each equaled 31, so that is the offense level for the group. Because there is one
Unit (group), we do not add anything under 3D1.4.
Afterwards, we consider acceptance of responsibility. Ovechkin voluntarily stopped
spending the money and gave the rest back to the investors which satisfies (C) voluntary
payment of restitution prior to adjudication of guilt and (B) voluntary termination or
withdrawal from criminal conduct or associations. He would qualify for the reduction of 2
levels.
Ovechkins history is not mentioned in the fact pattern so 4A1.1. cannot be calculated.
The final level is 29.
In Chapter Five, we look at the sentencing chart. Assuming no prior criminal history,
Ovechkin should be sentenced to approximately 87-108 months.
2.
Ovechkin could reduce his sentence by cooperating with the government. 5K1.1. states
that the government may reduce the sentence for substantial assistance to authorities.
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Ovechkin would have to come clean about what he did, but his cooperation should help him
reduce the sentence. Signing a plea in itself should reduce the sentence because Oveckin is
saving court resources and taking responsibility. Ovechkin could also negotiate to dismiss a
charge, to agree to a sentence, or to agree to a specific sentence with the condition that the
plea is withdrawn if the judge does not give that sentence.
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Question 1:
Start Here
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END OF EXAM
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5-Digit Exam Number: 27607

Course Title: Federal White Collar Crime

5-Digit Exam Number: 27607

5-Digit Exam Number: 27607

5-Digit Exam Number: 27607

5-Digit Exam Number: 27607

5-Digit Exam Number: 27607

5-Digit Exam Number: 27607

5-Digit Exam Number: 27607

5-Digit Exam Number: 27607

USAM 9-27.600 allows a prosecutor to enter into a non-prosecution agreement in exchange

5-Digit Exam Number: 27607

5-Digit Exam Number: 27607

5-Digit Exam Number: 27607

carried a gun when looking for investors. That equals 31 total.

5-Digit Exam Number: 27607

5-Digit Exam Number: 27607

5-Digit Exam Number: 27607

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