Sunday, July 3, 2005

Justice O'Connor and White Collar Cases

Without doubt, Justice O'Connor's upcoming departure from the high court will be significant to areas related to social issues in society.  And depending on the replacement selected, it may change the course of the Court's jurisprudence in many areas, as she often served as a swing vote.  But will this departure be significant to white collar jurisprudence?  Most likely not, unless of course her replacement can sway others in new directions.  The two white collar areas where her influence may be consequential are sentencing cases and international white collar cases.

The following is a review, although by no means an exhaustive list, of her vote in some of the key white collar cases.  Omitted are cases where individual justices did not play a major role (although they all were of significance)  because of the unanimous or near unanimous decisions (Hubbell, Anderson, etc.).

1. Ratzlaf - Justice O'Connor was part of the 4-person dissent in a case that gave a heightened meaning to the word "willfully" in a complicated money laundering statute.

2.  McCormick -Justice O'Connor was part of the dissent in a Hobbs Act case that required a quid pro quo for a conviction under this statute. She concurred in the followup Evans case that held that "an affirmative act of inducement by a public official" is not required under the Hobbs Act.

3. McNally - Justice O'Connor dissented in this famed case that required "money or property" for a mail fraud conviction (pre- the 1346 amendment).

4.Neder - Justice O'Connor was part of the Rehnquist majority in holding that "materiality of falsehood is an element of the federal mail fraud, wire fraud, and bank fraud statutes." (but there were only 3 dissenting on this case).

5. Schmuck - Justice O'Connor was part of a 4-person dissent that stressed the importance of a mailing being in furtherance of the fraudulent act.

6. Reves - Justice O'Connor was part of a 7 person majority that created the famed "operation or management" test for a RICO count brought under sec, 1962(c).

7. R .Enterprises - Justice O'Connor authored the majority opinion in a case that decided "what standards apply when a party seeks to avoid compliance with a subpoena duces tecum issued in connection with a grand jury investigation." But the majority was strong here, with 2 concurrences.

8. Williams - Justice O'Connor was part of a 4-person dissent that dissented in part to a decision that failed to dismiss an indictment when the government failed to present "substantial exculpatory evidence" to the grand jury.

9. Sentencing Decisions -  Professor Doug Berman's sentencing blog states that "Justice O'Connor served as a key fifth vote in the 5-4 decisions that produced the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule."  (See here).  So her role in some sentencing decisions was consequential to the direction taken by the Court. How this will play out in the white collar area is less known.

10. Pasquantino - Justice O'Connor was part of a 5 person majority here, so her role in the future of cases that may have international implications is significant.  She voted here that a wire fraud case could include as its property the tax revenues of another country. But she also held in the Small case ( 5-3 decision-Rehnquist did not participate) that "convicted in any court" means domestic courts and not foreign courts. Since extraterritoriality was left open by the majority opinion in the Pasquantino case, (see here), but directly confronted in the Small decision, a non-white collar case, the future of extraterritoriality in white collar cases remains uncertain. It is here, that the departure of Justice O'Connor could be of enormous importance for future white collar crime cases.


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