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CONSPIRACIES AND VICARIOUS LIABILITY IN WHITE COLLAR CASES
Conspiracy charges add layers of complexity to criminal cases because the illegal act is the agreement to violate the law by two or more persons.   The agreement need not be formal or memorialized,          the conspirator need not possess complete knowledge of the plan or an awareness of other participants,[1] and participants that join a conspiracy are liable for the reasonably foreseeable acts of their co-conspirators (also known as vicarious liability).  See 9th Cir. Model Crim. Jury Inst. Nos. 8.20- 8.21, 8.122 (2010); see also United States v. Green, 592 F.3d 1057, 1070-1071 (9th Cir. 2010) (clarifying that the offense must be reasonably foreseeable to the defendant and not merely one of the coconspirators).   In defending white collar conspiracy charges, it is essential to understand the interactions and roles of the alleged co-conspirators.

The instructions for a conspiracy to defraud the United States (18 U.S.C. § 371), which is often charged in white collar cases, are as follows:

First, beginning on or about [date], and ending on or about [date], there was an agreement between two or more persons to defraud the United States by obstructing the lawful functions of [specify government agency] by deceitful or dishonest means as charged in the indictment; Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it; and Third, one of the members of the conspiracy performed at least one overt act [on or after [date] for the purpose of carrying out the conspiracy, with all of you agreeing on a particular overt act that you find was committed.
An agreement to defraud is an agreement to deceive or to cheat.

9th Cir. Inst. No. 8.21.  The Ninth Circuit interpreted 18 U.S.C. § 371 to require, “deceit, craft or trickery, or at least by means that are dishonest.” United States v. Caldwell, 989 F.2d 1056, 1058-1059 (9th Cir. 1993), quotingHammerschmidt v. United States, 265 U.S. 182, 188 (1924).  The Ninth Circuit reversed the conviction in Caldwell because the instructional error permitted the jury to convict without finding an essential element: agreement with a deceitful or dishonest means.  989 F.2d at 1061.

Conspiracies in white collar cases add additional challenges––particularly in the corporate setting––because the number of actors often involved and because of the presence of voluminous documentation and other record keeping must be reviewed by the defense and often serves as the basis for false statement charges.  Document-rich cases require significant expenditure of time and resources to defend because the records, policies, and regulations must be pored over in search of damaging and mitigating evidence.  Investigation in white collar cases has been described as “the assembly of a ‘paper puzzle’ from a large number of seemingly innocuous pieces of individual evidence”.  United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982).   Additionally, joint and several restitution awards for financial harm caused in white collar conspiracies involve complex issues and tedious accounting.  Finally, conspiracies often cause the government to delay in filing charges to expand the investigation and cast a wider net.  See generally, United States v. Lovasco, 431 U.S. 783, 796 (1977); United States v. Sherlock, 962 F.2d 1349, 1354-1355 (9th Cir. 1989).  The potential harm to the accused caused by a delay in filing charges includes the increased criminal liability that may be incurred as the scheme expands, which affects the potential sentencing range and any restitution calculation.    See, e.g., United States v. Barken, 412 F.3d 1131, 1136 (9th Cir. 2005) (denying motion to dismiss for pretrial delay for charges filed days before the 5-year statute of limitations ran on RCRA hazardous waste violations).[1]Blumenthal v. United States, 332 U.S. 539, 557 (1947) (“Hence the law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connections with it, without requiring evidence of knowledge of all its details or of the participation of others.”).

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