Ch 13 Flashcards
Civil law
Allows individuals to bring actions for damages
Sherman antitrust act 1890
Made price fixing illegal
Criminal law
Allows society to punish wrongdoers
White collar crime
Applies to criminals of high socioeconomic status
Ex. Corporate executives who commit fraud
What are white collar crimes not dependent on?
2) what is the goal of the crime?
Not dependent on threat of physical force or violence
2) goal: obtain resources, services, avoid payment or loss for
Personal or business advantage
Common examples of white collar crime
Embezzling money, making electronic advances to fictitious
Employees,
accepting kickbacks from suppliers in exchange
For orders, rigging bids, selling trade secrets, falsifying
Inventories to conceal theft, paying false invoices
Penalties for white collar crimes
Jail time for guilty parties, fines paid by company
Crime classification: felony
Felonies punishable by fine or imprisonment for period
Of 1 year or more
Classifications of crime: Misdemeanors
Punishable by fine or jail sentence of less than 1 year
Grand jury Indictment
Felony cases are commenced by grand jury indictment
Charge: information
Misdemeanor cases are commenced when government
Files charge called an information
Grand juries vs. Petit juries
Grand juries determine there is sufficient evidence to warrant
Trial (investigatory role)
Petit Jury determines guilt or innocence of accused
Intent
Important element of criminal laws
What 2 terms may be used to define criminal intent?
1 willfully
2 knowingly
Willfully
Act is committed voluntarily and purposefully with specific
Intent to do something
When does a person not act willfully?
If there’s good faith misunderstanding of requirements
Of law
Knowingly
Voluntary and intentional, not because of mistake or accident
In criminal case what 3 possible pleas can a defendant enter
1 guilty
2 not guilty
3 nolo contendere
Nolo contendere
Equivalent of pleading guilty but avoiding costs of trial
Fifth Amendement of US Constitution
Before anyone can be tried for capital or infamous crime
There must be presentment or indictment by grand jury
What does the 5th Ammendment protection prevent
Political trials and unjustified prosecutions by placing group
Of citizens btw prosecutors and persons accused of crimes
Probable cause
Determination where majority of grand jury must find crime
Has been committed
and evidence is sufficient to warrant the accused’s standing
Trial
Presumption of innocence
Presumed innocent until found guilty by petit jury
What an indicted person is entitled too
Civil liberties
Rights protect individuals from power of government
including individuals accused of crimes
The Bill of Rights protects businesses from…
Excessive regulation
Fourth Ammendment protection of: unreasonable searches and seizures by government
Primarily protects persons from unwarranted intrusions
On their privacy
Requires police to obtain search warrant
Search warrant, general rule
Court order, where police offer evidence crime has been
Committed to obtain and it will assist investigation
Must be obtained by police prior to search of person,
Any premises or property (such as trunk of automobile
Businesses that don’t have expectation of privacy, examples
Nursing homes that receive Medicaid funds have voluntarily
Consented to warrantless searches
Also searches at airports
Fourth Ammendment: drug testing
Not protected by fourth amendment in most work places
Fifth Ammendment: protection against incrimination
Protects accused from being compelled to testify against
Himself or herself
By invoking their Miranda Rights
Fifth Ammendment: corporations and professional partnerships
2) what business is protected under the fifth amendment privilege against compulsory self incrimination
These entities have no 5th Ammendment right to refuse to
Submit their books and records in response to subpoena
2) sole proprietorship
5th Ammendment: double jeopardy
Courts don’t allow individuals to be tried twice by same governmental entity for same crime based on same factual
Situation
6 protections provided by the 6th Ammendment, right to:
1 speedy and public trial 2 trial by jury 3 be informed of charge against you 4 confront your accuser 5 subpoena witnesses in your favor 6 have assistance of an attorney
The right to an attorney exists in any cases where…
Incarceration is a possible punishment
What Fraud can lead to?
Can be a defense to a contract
Can also form basis for civil tort action , can also create
Criminal liability
When is fraud committed?
Knowingly/willfully falsifies, conceals or covers up any
Trick, scheme or device
Makes any false statements, false documents or writing
Penalties for fraud
Fines and imprisonment
A prosecutor must establish presence of: scheme to defraud
Plan or program designed to take from a person, the
Tangible right of honest services
Common fraud schemes 6
1 telemarketing fraud 2 advance fee scheme 3 Nigerian letter 419 fraud 4 impersonation/identity fraud 5 ponzi schemes
Advance fee scheme
Victim pays money to someone in anticipation of more
money
Telemarketing fraud
Giving personal info over phone
Impersonation/identity fraud
Occurs when Simone assumes your identity to perform
Fraud or other criminal act
Mail and wire frauds penalties
Up to $1,000,000 and 30 years in prison
Mail fraud
Use of US postal service
Wire fraud
Ue of radio, television, telephone, Internet
Intent to defraud
Act knowingly and with specific intent to deceive someone
Cause victim financial loss, for personal gain
Good faith
Complete defense: defendant did not have intent to defraud
Securities exchange act. 1934 by SEC
Covers fraud on purchase or sale of security
And accounting fraud of financial statements
Common examples of healthcare fraud
1 billing for services not actually performed
2 falsifying patient diagnosis to have unnecessary tests and
Surgery performed
3 unfolding billing to perform more costly procedure
4 unbundling billing like each stage of procedure is separate
Procedure
5 accepting kickbacks for patient referrals
6 billing patient more than copay plan for services paid in
Full by benefit plan
Counterfeiting
Federal law outlaws use of stolen back cards, plates,
account #s, fund transfers and credit cards
Bankruptcy crimes
When debtor falsifies information filed in bankruptcy
proceedings (conceals property) it’s a felony
Also crime to present false claim in bankruptcy proceeding
Conspiracy
Agreement (kind of partnership) for criminal purposes
Where each member becomes agent or partner of every
Other member
Members plan all details of scheme
What 4 pieces of evidence must be shown beyond a reasonable doubt, to convict parties of conspiracy
1) 2 or more persons came to mutual understanding to try
To accomplish unlawful plan
2)defendant willfully became member of such conspiracy
3 during existence of conspiracy, at least 1 of the members
Committed at least 1 overt acts described in the indictment
4 overt act was knowingly committed in effort to carry out
Or accomplish some object of conspiracy
Overt act
Any transaction or event knowingly committed by
conspirator In effort to accomplish object of conspiracy
Obstruction of justice
Occurs when individual commits act with intent to obstruct
Legislative process or judicial process
False statement to federal agency, what’s the penalty
Federal crime for anyone willfully and knowingly to make
False statement to a department or agency of the US
Max penalty $10,000 and 5 years in prison
Exculpatory no exception
Narrow exception protected an individual from prosecution
For making false statement when person’s statement denies
Criminal wrong doing
Larceny
Unlawful taking of personal property with intent to deprive
Rightful owner permanently (theft)
Ex. Shoplifting, company buys luxury items yachts, seasontickets for personal use of executives
Robbery
Larceny done with violence or threat such as a gun
Burglary
Breaking into building with intent to commit felony
Embezzlement
Occurs when person entrusted with another’s money or
Property fraudulently appropriates it
Money laundering
Falsely reporting income that is obtained through criminal
“dirty” activity as income obtained through legitimate “clean”
Business enterprise
Racketeer Influenced and Corrupt Organizations Act (RICO)
Law imposes civil and criminal liability upon business
Persons who engage in certain prohibited activities
And who engage in interstate commerce
Ex. Acts or threats involving murder, kidnapping, robbery, bribery, extortion, dealing in obscene manner, controlled substances, counterfeiting, fraud, obstruction of justice, tampering with witnesses or evidence, prostituting, trafficking, loan sharking
Racketeer Influenced and Corrupt Organizations Act (RICO): specifically liability extends to any person who (3 things)
1 uses/invests income from prohibited activities to acquire
An interest in or operate enterprise
2 acquires or maintains an interest in or control of enterprise
3 conducts or participates in conduct of enterprise while
Being employed or associated with it
Pattern of racketeering
Activity or the collection of an unlawful debt
Requires at least 2 acts of racketeering activity within 2
Year period
Racketeering
Act or threat involving specified state law crimes, or act
Indictable under various federal statutes + certain fedl offenses
Racketeer Influenced and Corrupt Organizations Act (RICO) penalties
Large, compensation triples
Cyber crime: over Internet 4 examples
1 identity theft
2 unauthorized access
3 employees issuing corporate stock to themselves
4 stolen trade secrets and personal records
Reckless endangerment of workers charge
2) occupational safety and health administration
Occurs if worker is injured or accidental homicide (killed
On job)
2) can bring on actions if Worker is exposed to unsafe
standards (chemicals)
Aiding and abetting
When person acts under direction if someone accused of
Criminal activities they are held responsible
Accessory
State level charge equivalent to aiding and abetting (which is federal)
If a person is accused of being involved after the crime
Is committed, the charge is…
Accessory after the fact
Ex. Someone who helps perpetrator elude police
Kickbacks
Payments made to person who has facilitated transaction
Ex. Building contractor giving money back to government
Official in exchange for building contract
Sentencing guidelines
Rules for federal decisions of judges published in the late
80’s initially were mandatory for judges to follow when
Making decisions
They are currently not mandatory
Companies put on probation
Can’t sell stock or pay dividends
