Thursday, April 25, 2019
Our federal criminal code defines crimes, but declines to sort its fraud offenses according to degrees of harm or culpability. Although state prosecutors routinely charge crimes such as homicide or robbery in varying degrees, the federal code’s core fraud statutes are noticeably flat. There is no such thing as first- or second-degree fraud in the federal code.
Amidst a roiling debate as to whether the federal government overcriminalizes or underenforces white-collar crime, scholars have lost sight of the federal code’s lack of gradation. This Article seeks to remedy this neglect, particularly in regard to fraud crimes. Drawing examples from federal and state criminal codes, the Article analyzes the ways in which ungraded statutory regimes generate problematic and self-destructive expressive gaps. By lumping so much conduct under a single statutory umbrella, the federal code deprives the public of the ability to gauge the seriousness of a specific offense and of the will to discern those factors that separate the worst frauds from the merely bad ones.
If criminal law’s function is to distinguish wrongdoing and not solely to prohibit it, then our federal fraud statutes leave much to be desired. Reasonable people can debate the proper methodology for distinguishing bad from worse offenses, but it is quite another matter to abandon statutory sorting altogether. Accordingly, the Article closes by advocating the use of misdemeanor and low-level felony statutes to improve—and sort—the federal code’s fraud crimes.
Wednesday, April 10, 2019
Prosecutors have enormous discretion. They decide who to charge, who will receive a plea, who gets cooperation credit, and now we see even more of that discretion being used - tacking on additional charges (money laundering) and adding defendants to existing indictments.
In Operation Varsity Blues, prosecutors initially had some Indictments, some Informations (individuals typically cooperating or at least pleading) and some Complaints brought against parents who were alleged to have conspired to be "involved [in] 1) bribing SAT and ACT exam administrators to allow a test taker, typically XXX, to secretly take college entrance exams in place of students or to correct the students’ answers after they had taken the exam; 2) bribing university athletic coaches and administrators—[at a variety of schools]—to facilitate the admission of students to elite universities under the guise of being recruited as athletes; and (3) using the façade of XXX’s charitable organization to conceal the nature and source of the bribes." (XXX's inserted here)(See DOJ Press Release here). Some of the parents came forward quickly and pleaded guilty (see Bloomberg here). This included a former partner in a law firm and an actress.
Others, however, did not accept the government invitation for a quick plea (not that one is ever directly offered). And now they find themselves indicted, but with an additional charge tacked onto the fraud charges - money laundering. Is this unusual? Not really for some government prosecutors. Some prosecutors use their discretion to add charges such as money laundering when an initial plea is not quickly reached. The addition of charges when a plea is not taken has been found not to carry a presumption of prosecutorial vindictiveness (U.S. v. Goodwin). But wait there's more....
We also see all the cases coming from the US Attorneys Office in Massachusetts, although many are not from this area and their acts did not occur in this district. Conspiracy is another way that prosecutorial discretion is used to allow the government to choose the place they want to proceed. Conspiracy allows them to choose the forum where there was either an agreement or where one of the acts took place. Coupling everyone together gives the government a wider breadth of possible jurisdictions. Is this unusual? Not really, the government has been using conspiracy to choose their forum for many years. And there may be challenges here on whether this is a conspiracy case that warrants severance. But wait there's more...
The government has also brought recent Indictments via a Second Superceding Indictment of an existing case (see here). And yes, this new revised Indictment includes the charge of Conspiracy to Commit Money Laundering. And it allows the government to go with a judge who may already have been assigned one of the cases. (see Jack Newsham, NLJ, College Scandal Defense Teams Accuse Feds of Judge-Shopping). Is this unusual? Not really, superceding Indictments happen all the time.
But putting all three of the above prosecutorial decisions together and looking at them cumulatively, one has to ask whether these prosecutorial practices are really beginning to seem too aggressive. Keep in mind that we are only at the preliminary pre-trial stage. If the individuals decide not to enter a plea, one can anticipate some important legal challenges.