DOCSLIB.ORG

A Resource Guide to the U.S. Foreign Corrupt Practices Act Second Edition

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
A Resource Guide to the U.S. Foreign Corrupt Practices Act Second Edition REDLINE A Resource Guide to the U.S. Foreign Corrupt Practices Act Second Edition By the Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission A Resource Guide to the U.S. Foreign Corrupt Practices Act Second Edition By the Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission This guide is intended to provide information for businesses and individuals regarding the U.S. Foreign Corrupt Practices Act (FCPA). The guide has been prepared by the staff of the Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission. This guidance reflects the views of the Division of Enforcement, but it is not a statement by the Commission and the Commission has neither approved nor disapproved its content. It is non-binding, informal, and summary in nature, and the information contained herein does not constitute rules or regulations. As such, it is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, that are enforceable at law by any party, in any criminal, civil, or administrative matter. It is not intended to substitute for the advice of legal counsel on specific issues related to the FCPA. It does not in any way limit the enforcement intentions or litigating positions of the U.S. Department of Justice, the U.S. Securities and Exchange Commission, or any other U.S. government agency. Companies or individuals seeking an opinion concerning specific prospective conduct are encouraged to use the U.S. Department of Justice’s opinion procedure discussed in Chapter 9 of this guide. This guide is United States Government property. It is available to the public free of charge online at https://www.justice. gov/ criminal/fraud/fcpa andcriminal-fraud/fcpa- resource-guide and https://www.sec.gov/spotlight/fcpa.shtml/fcpa-resource-guide.pdf. A RESOURCE GUIDE TO THE U.S. FOREIGN CORRUPT PRACTICES ACT SECOND EDITION By the Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission FOREWORD We are pleased to announce the publication of the Second Edition of A Resource Guide to the U.S. Foreign Corrupt Practices Act. The Foreign Corrupt Practices Act (FCPA) is a critically important statute for combating corruption around the globe. Corruption has corrosive effects on democratic institutions, undermining public accountability and diverting public resources from important priorities such as health, education, and infrastructure. When business is won or lost based on how much a company is willing to pay in bribes rather than on the quality of its products and services, law-abiding companies are placed at a competitive disadvantage—and consumers lose. For these and other reasons, enforcing the FCPA is a continuing priority atGuide was originally published by the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC). in November 2012 The Guide is the product of extensive efforts by experts at DOJ and SEC, and has benefited from valuable input from the Departments of Commerce and State. It endeavors to provide helpful information to enterprises of all shapes and sizes— from small businesses doing their first transactions abroad to multi-national corporations with subsidiaries around the world. The Guide addresses a wide variety of topics, including who and what is covered by the FCPA’s anti-bribery and accounting provisions; the definition of a “foreign official”; what constitute proper and improper gifts, travel and entertainment expenses; the nature of facilitating payments; how successor liability applies in the mergers and acquisitions context; the hallmarks of an effective corporate compliance program; and the different types of civil and criminal resolutions available in the FCPA context. On these and other topics, the Guide takes a multi-faceted approach, setting forth in detailto provide companies, practitioners, and the public with detailed information about the statutory requirements of the Foreign Corrupt Practices Act (FCPA) while also providing insight into DOJ and SEC enforcement practices through hypotheticals, examples of enforcement actions and anonymized declinations, and summaries of applicable case law and DOJ opinion releases. Then and now, the Guide represents one of the most thorough compilations of information about any criminal statute, and remains relevant to this day. The Guide is an unprecedented undertaking by DOJ and SEC to provide the public with detailed information about our FCPA enforcement approach and priorities. We are proud of the many lawyers and staff who worked on this project, and hope that it will be a useful reference for companies, individuals, and others interested in our enforcement of the Act. Although many aspects of the Guide continue to hold true today, the last eight years have also brought new cases, new law, and new policies. The Second Edition of the Guide reflects these updates, including new case law on the definition of the term “foreign official” under the FCPA, the jurisdictional reach of the FCPA, and the FCPA’s foreign written laws affirmative defense. It addresses certain legal standards, including the mens rea requirement and statute of limitations for criminal violations of the accounting provisions. It reflects updated data, statistics, and case examples. And it summarizes new policies applicable to the FCPA that have been announced in the DOJ’s and SEC’s continuing efforts to provide increased transparency, including the DOJ’s FCPA Corporate Enforcement Policy, Selection of Monitors in Criminal Division Matters, Coordination of Corporate Resolution Penalties (or Anti-Piling On Policy), and the Criminal Division’s Evaluation of Corporate Compliance Programs. Foreign bribery is a scourge that must be eradicated. It undermines the rule of law, empowers authoritarian rulers, distorts free and fair markets, disadvantages honest and ethical companies, and threatens national security and sustainable development. This updated Guide is meant not only to summarize the product of the dedicated and hardworking individuals who combat foreign bribery as part of their work for the U.S. government, but also to help companies, practitioners, and the public— many of whom find themselves on the front lines of this fight—prevent corruption in the first instance. We hope that the Guide will continue to be an invaluable resource in those efforts. LannyBrian A. BreuerRobert S. KhuzamiBenczkowski Stephanie Avakian & Steven Peikin Assistant Attorney General Director of EnforcementCo-Directors Criminal Division Division of Enforcement Criminal DivisionDepartment of Justice Securities and Exchange Commission Department of Justice July 2020 November 14, 2012 CONTENTS Chapter 1: INTRODUCTION . 2 1 The Costs of Corruption . .......................................... 2 Historical Background . ............................................ 3 National Landscape: Interagency Efforts . ................................. 4 Department of Justice . .. .. .. .. .. .. .. .. 4 Securities and Exchange Commission . .. .. .. .. .. .. .. 4 Law Enforcement Partners . .. .. .. .. .. .. .. .. 5 Departments of Commerce and State . .. .. .. .. .. .. .. 5 International Landscape: Global Anti-Corruption Efforts . .......................7 OECD Working Group on Bribery and the Anti-Bribery Convention . 7 U .N . Convention Against Corruption . 8 Other Anti-Corruption Conventions . .. .. .. .. .. .. .. 8 1 Historical Background 2 10 Chapter 2: THE FCPA: ANTI-BRIBERY PROVISIONS . 10 Who Is Covered by the Anti-Bribery Provisions? ........................ Who Is Covered by the Anti-Bribery Provisions? . ........................... 10 Issuers—15 U.S.C. § 78dd-1 .............. .. .. .. .. .. .. .. 10 Domestic Concerns—15 U.S.C. § 78dd-2 . .. .. .. .. .. .. 11 Territorial Jurisdiction—15 U.S.C. § 78dd-3 . 11 What Jurisdictional Conduct Triggers the Anti-Bribery Provisions? . ................ 11 10 What Is Covered? 11 9 9 13 13 What Is Covered?—The Business Purpose TestNational Landscape: Interagency Efforts Department of Justice .................. Securities and Exchange Commission Law Enforcement Partners..................... 12 Departments of Commerce and State What Does “Corruptly” Mean? ................................................. 14 What Does “Willfully” Mean and When Does It Apply? . ....................... 14 What Does “Anything of Value” Mean?............................................ 14 Cash. .................................................. 15 Cash Gifts, Travel, Entertainment, and Other Things of Value . .. .. .. .. .. 15 Charitable Contributions . .. .. .. .. .. .. .. .. 16 Charitable Contributions Who Is a Foreign Official? Who Is a Foreign Official? . ........................................ 19 Department, Agency, or Instrumentality of a Foreign Government . 20 Public International Organizations . 14 14 14 16 21 3 3 4 5 5 How Are Payments to Third Parties Treated? . ............................. 21 What Affirmative Defenses Are Available?.. ............................... 23 The Local Law Defense . .. .. .. .. .. .. .. .. 23 The Local Law Defense Reasonable and Bona Fide Expenditures . .. .. .. .. .. .. 24 What Are Facilitating or Expediting Payments? ....... ............................ 25 Does the FCPA Apply to Cases of Extortion or Duress? . ....................... 27 22 25
Load more

Recommended publications
  • Pattern Criminal Jury Instructions for the District Courts of the First Circuit)
    UNITED STATES DISTRICT COURT DISTRICT OF MAINE 2019 REVISIONS TO PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT DISTRICT OF MAINE INTERNET SITE EDITION Updated 6/24/19 by Chief District Judge Nancy Torresen PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE FIRST CIRCUIT Preface to 1998 Edition Citations to Other Pattern Instructions How to Use the Pattern Instructions Part 1—Preliminary Instructions 1.01 Duties of the Jury 1.02 Nature of Indictment; Presumption of Innocence 1.03 Previous Trial 1.04 Preliminary Statement of Elements of Crime 1.05 Evidence; Objections; Rulings; Bench Conferences 1.06 Credibility of Witnesses 1.07 Conduct of the Jury 1.08 Notetaking 1.09 Outline of the Trial Part 2—Instructions Concerning Certain Matters of Evidence 2.01 Stipulations 2.02 Judicial Notice 2.03 Impeachment by Prior Inconsistent Statement 2.04 Impeachment of Witness Testimony by Prior Conviction 2.05 Impeachment of Defendant's Testimony by Prior Conviction 2.06 Evidence of Defendant's Prior Similar Acts 2.07 Weighing the Testimony of an Expert Witness 2.08 Caution as to Cooperating Witness/Accomplice/Paid Informant 2.09 Use of Tapes and Transcripts 2.10 Flight After Accusation/Consciousness of Guilt 2.11 Statements by Defendant 2.12 Missing Witness 2.13 Spoliation 2.14 Witness (Not the Defendant) Who Takes the Fifth Amendment 2.15 Definition of “Knowingly” 2.16 “Willful Blindness” As a Way of Satisfying “Knowingly” 2.17 Definition of “Willfully” 2.18 Taking a View 2.19 Character Evidence 2.20 Testimony by Defendant
    [Show full text]
  • Violent Crimes in Aid of Racketeering 18 U.S.C. § 1959 a Manual for Federal Prosecutors
    Violent Crimes in Aid of Racketeering 18 U.S.C. § 1959 A Manual for Federal Prosecutors December 2006 Prepared by the Staff of the Organized Crime and Racketeering Section U.S. Department of Justice, Washington, DC 20005 (202) 514-3594 Frank J. Marine, Consultant Douglas E. Crow, Principal Deputy Chief Amy Chang Lee, Assistant Chief Robert C. Dalton Merv Hamburg Gregory C.J. Lisa Melissa Marquez-Oliver David J. Stander Catherine M. Weinstock Cover Design by Linda M. Baer PREFACE This manual is intended to assist federal prosecutors in the preparation and litigation of cases involving the Violent Crimes in Aid of Racketeering Statute, 18 U.S.C. § 1959. Prosecutors are encouraged to contact the Organized Crime and Racketeering Section (OCRS) early in the preparation of their case for advice and assistance. All pleadings alleging a violation of 18 U.S.C. § 1959 including any indictment, information, or criminal complaint, and a prosecution memorandum must be submitted to OCRS for review and approval before being filed with the court. The submission should be approved by the prosecutor’s office before being submitted to OCRS. Due to the volume of submissions received by OCRS, prosecutors should submit the proposal three weeks prior to the date final approval is needed. Prosecutors should contact OCRS regarding the status of the proposed submission before finally scheduling arrests or other time-sensitive actions relating to the submission. Moreover, prosecutors should refrain from finalizing any guilty plea agreement containing a Section 1959 charge until final approval has been obtained from OCRS. The policies and procedures set forth in this manual and elsewhere relating to 18 U.S.C.
    [Show full text]
  • In the Supreme Court of the United States
    No. 16-1307 In the Supreme Court of the United States ALI HAMZA AHMAD SULIMAN AL BAHLUL, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION JEFFREY B. WALL Acting Solicitor General Counsel of Record DANA J. BOENTE Acting Assistant Attorney General JOSEPH F. PALMER DANIELLE S. TARIN Attorneys Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217 QUESTIONS PRESENTED 1. Whether the military commission plainly erred in not sua sponte dismissing the charge against petitioner of conspiracy to commit war crimes on the ground that Congress violated Article III by making that offense triable by military commission. 2. Whether the Military Commissions Act of 2006 (2006 MCA), 10 U.S.C. 948a et seq. (2006), authorizes prosecutions for conspiracy to commit war crimes based on conduct committed before its enactment. 3. Whether petitioner’s conspiracy conviction based on conduct that pre-dated enactment of the 2006 MCA plainly violated the Ex Post Facto Clause. 4. Whether the 2006 MCA plainly violated the equal protection component of the Due Process Clause because it limited the jurisdiction of military commissions to of- fenses committed by alien unlawful enemy combatants. (I) TABLE OF CONTENTS Page Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Statement ...................................................................................... 2 Argument ..................................................................................... 15 Conclusion ................................................................................... 33 TABLE OF AUTHORITIES Cases: Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), cert. denied, 563 U.S. 929 (2011) ....................................... 32 B&B Hardware, Inc.
    [Show full text]
  • No. ___IN the SUPREME COURT of the UNITED STATES
    No. ______ IN THE SUPREME COURT OF THE UNITED STATES SAQUAWN HARRIS, Petitioner, v. UNITED STATES, Respondent. On Application for Extension of Time to File a Petition for a Writ of Certiorari to the District of Columbia Court of Appeals PETITIONER’S APPLICATION TO EXTEND TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI SAMIA FAM (Counsel of Record) JOSHUA DEAHL PUBLIC DEFENDER SERVICE 633 Indiana Avenue, NW Washington, DC 20004 (202) 628-1200 Counsel for Petitioner No. ______ IN THE SUPREME COURT OF THE UNITED STATES SAQUAWN HARRIS, Petitioner, v. UNITED STATES, Respondent. PETITIONER’S APPLICATION TO EXTEND TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI To the Honorable John G. Roberts, Jr., as Circuit Justice for the District of Columbia, covering the District of Columbia Court of Appeals. Petitioner Saquawn Harris, through undersigned counsel, respectfully requests that the time to file a Petition for a Writ of Certiorari in this matter be extended for sixty days to September 9, 2019. Mr. Harris’s motion for reconsideration of his petition for rehearing en banc with the D.C. Court of Appeals was denied on April 11, 2019, making his certiorari petition due to this Court on July 10, 2019. This extension motion is being filed more than 10 days in advance of the due date, per this Court’s rules. Sup. Ct. R. 13(4). This Court would have jurisdiction over the judgment under 28 U.S.C. § 1257(a).1 1 Mr. Harris previously filed a petition for a writ of certiorari after the initial denial of en banc rehearing, but the United States rejoined that the then-pending motion to reconsider en banc rehearing made this case “a particularly poor vehicle for review … [b]ecause the [D.C.
    [Show full text]
  • Wilson-Bey & Marbury V. US, on Rehearing En Banc
    Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS Nos. 01-CF-293 and 01-CF-633 LAKEISHA WILSON-BEY, APPELLANT, v. UNITED STATES, APPELLEE., and SCKEENA MARBURY, APPELLANT, v. UNITED STATES, APPELLEE. Appeals from the Superior Court of the District of Columbia (F-504-00 and F-505-00) (Hon. Russell F. Canan, Trial Judge) (Argued En Banc March 20, 2006 Decided July 20, 2006) John O. Iweanoge, Jr., for appellant Lakeisha Wilson-Bey. Matthew M. Hoffman, with whom John Moustakas and Stephen R. Galoob were on the brief, for appellant Sckeena Marbury. David B. Goodhand, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney, and Roy W. McLeese III and Lynn C. Holliday, Assistant United States Attorneys, were on the brief, for appellee. Andrea Roth, with whom James Klein and Samia Fam were on the brief, for Public Defender Service, amicus curiae. Before WASHINGTON, Chief Judge, FARRELL, RUIZ, REID, GLICKMAN, and KRAMER, Associate Judges, and WAGNER and SCHWELB,* Senior Judges. SCHWELB, Senior Judge: Following a jury trial, Lakeisha Wilson-Bey and * Judge Schwelb was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on June 24, 2006. 2 Sckeena Marbury, who are sisters, were both convicted of first-degree premeditated murder while armed, in violation of D.C.
    [Show full text]
  • Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton Alex Kreit [email protected]
    American University Law Review Volume 57 | Issue 3 Article 2 2008 Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton Alex Kreit [email protected] Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Constitutional Law Commons, and the Criminal Law Commons Recommended Citation Kreit, Alex. “Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton.” American University Law Review 57, no.3 (February, 2008): 585-639. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton Abstract This article considers what limits the constitution places on holding someone criminally liable for another's conduct. While vicarious criminal liability is often criticized, there is no doubt that it is constitutionally permissible as a general matter. Under the long-standing felony murder doctrine, for example, if A and B rob a bank and B shoots and kills a security guard, A can be held criminally liable for the murder. What if, however, A was not involved in the robbery but instead had a completely separate conspiracy with B to distribute cocaine? What relationship, if any, does the constitution require between A's conduct and B's crimes in order to hold A liable for them? It is clear A could not be punished for B's crimes simply because they are friends.
    [Show full text]
  • Individual Liability for Conduct by Criminal Organizations in the United States Peter J
    Wayne State University Law Faculty Research Publications Law School 1-1-1998 Individual Liability for Conduct by Criminal Organizations in the United States Peter J. Henning Wayne State University, [email protected] Recommended Citation Peter J. Henning, Individual Liability for Conduct by Criminal Organizations in the United States, 44 Wayne L. Rev. 1305 (1998). Available at: http://digitalcommons.wayne.edu/lawfrp/101 This Article is brought to you for free and open access by the Law School at DigitalCommons@WayneState. It has been accepted for inclusion in Law Faculty Research Publications by an authorized administrator of DigitalCommons@WayneState. INDIVIDUAL LIABILITY FOR CONDUCT BY CRIMINAL ORGANIZATIONS IN THE UNITED STATES XVI International Congress of Penal Law Report Submitted by the American National Section, AIDP Topic L"General Part PETERJ. HENNINGt Table of Contents I. INTRODUCTION ................................. 1306 HI. INDIVIDUAL LIABILITY FOR THE CONDUCT OF OTHERS ..................................... 1307 HI.EXPANDING INDIVn)UAL LIABILITY: THE SCOPE OF AMERIcAN CONSPIRACY LAW .................... 1315 A. Proofof the ConspiratorialAgreement ............. 1317 B. The Pinkerton Doctrineof ConspiratorLiability ..... 1320 IV. LIMTING THE REACH OF CRIMINAL ORGANIZATIONS BY CURTAILING THER USE OF LEGIMATE BUSINESSES TO DISPOSE OF ILL-GOTTEN GAINS ................... 1324 A. RICO ..................................... 1325 B. Money Laundering ............................ 1329 V. CRIMINAL AND CIVIL SANCTIONS .................
    [Show full text]
  • Pinkerton Short-Circuits the Model Penal Code
    Volume 64 Issue 1 Article 3 4-1-2019 Pinkerton Short-Circuits the Model Penal Code Andrew Ingram Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Criminal Law Commons Recommended Citation Andrew Ingram, Pinkerton Short-Circuits the Model Penal Code, 64 Vill. L. Rev. 71 (2019). Available at: https://digitalcommons.law.villanova.edu/vlr/vol64/iss1/3 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Ingram: Pinkerton Short-Circuits the Model Penal Code 2019] PINKERTON SHORT-CIRCUITS THE MODEL PENAL CODE ANDREW INGRAM* I. INTRODUCTION HIS is an article about unintended consequences. It is about what Tcriminals do not foresee when they join a conspiracy, and it is about what legislators do not anticipate when they make piecemeal amendments to the text of the Model Penal Code. Consider what Veronica failed to see coming. Her boyfriend Sam is visiting from out of town, and she helps him to arrange a meeting with an acquaintance of hers named Jake to buy some cocaine. At the meeting, Jake takes Sam’s money but does not give him the drugs. Sam is angry at everyone, including Veronica. He and his friend Pierce want Veronica to drive them around town to find Jake and get his money and the cocaine. Veronica wants to propitiate Sam and make up for her role in the loss of his money.
    [Show full text]
  • The Law of Conspiracy and Collective Reason Jens David Ohlin
    Journal of Criminal Law and Criminology Volume 98 Article 4 Issue 1 Fall Fall 2007 Group Think: The Law of Conspiracy and Collective Reason Jens David Ohlin Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Jens David Ohlin, Group Think: The Law of Conspiracy and Collective Reason, 98 J. Crim. L. & Criminology 147 (2007-2008) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/07/9801-0147 THE JOURNALOF CRIMINAL LAW & CRIMINOLOGY Vol. 98, No. I Copyright 0 2008 by Northwestern University, Schoolof Law Printed in U.S.A. GROUP THINK: THE LAW OF CONSPIRACY AND COLLECTIVE REASON JENS DAVID OHLIN* Although vicarious liability for the acts of co-conspirators is firmly entrenched in federal courts, no adequate theory explains how the act and intention of one conspiratorcan be attributed to another, simply by virtue of their criminal agreement. This Article argues that the most promising avenue for solving the Pinkerton paradox is an appeal to the collective intention of the conspiratorialgroup to commit the crime. Unfortunately, misplaced skepticism about the notion of a "group will" has prevented criminal scholars from embracing the notion of a conspiracy's collective intention to commit a crime. However, positing group intentions requires only that the criminal law recognize the rational relationships between individuals who decide to collectivize reason to pursue a common criminal goal; no burdensome theory of corporate animals with unified minds is required.
    [Show full text]
  • Examining Dangers Posed by the Willful Blindness Doctrine in the War on Terror
    CAGING CARELESS BIRDS: EXAMINING DANGERS POSED BY THE WILLFUL BLINDNESS DOCTRINE IN THE WAR ON TERROR SHAWN D. RODRIGUEZ* TABLE OF CONTENTS 1. INTRODUCTION ............................................................................ 692 2. THE WAR ON TERROR ................................................................. 696 2.1. 9/11 as a Catalyst for Change in Policy .......................... 696 2.2. Detainment Centers and Extraordinary Rendition ........ 699 2.3. Military Commissions .................................................... 701 2.3.1. Prosecutions of Detainees Accused of Planning the 9/11 Attacks ..................................................... 709 2.4. Domestic Terror Trials .................................................... 711 2.5. Foreign Criminal Indictments and Domestic Civil Suits Involving U.S. Officials ......................................... 712 3. WILLFUL BLINDNESS AND KNOWLEDGE ................................... 713 3.1. Theory of Willful Blindness in U.S. Criminal Law ........ 714 3.1.1. Knowledge and Understanding ............................. 715 3.2. U.S. Legal Rule on Willful Blindness ............................. 717 3.2.1. Willfulness Versus Negligence .............................. 719 3.2.2. Increasingly Frequent Use and Expansion of the Doctrine in U.S. Law ............................................ 720 3.3. Willful Blindness in International Criminal Law: Joint Criminal Enterprise ............................................... 721 * J.D. Candidate, University of Pennsylvania Law School,
    [Show full text]
  • Weighing Two Western Modes of Justice
    Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice James Q. Whitman* American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminaljustice is, by international standards, extraordinarilyharsh. This Article addresses this troubling state of affairs. The Article contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorialjustice, it argues, has a less far-reachingpresumption of innocence than American justice does. Yet if continentaljustice puts less weight on the rights of the innocent, it puts more on the rights of the guilty: while its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy. The continental approach produces forms of criminal procedure that can shock Americans. Continental trial in particularoften seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox. Yet the continental approach has contributed to the making of a significantly more humane criminaljustice system than ours. Moreover, the continental approach is better suited to cope with the rise of new forms of scientific investigation. The Article pleads for a shift away from the American culture of rights for the innocent toward a greaterconcern with continental-style rightsfor the guilty. I. Introduction Imagine two contrasting ideas of how to build a just system of criminal justice. The first is oriented toward the presumption of innocence. It starts from the belief that the gravest danger we face in criminal justice is the danger that innocent persons will be arrested, prosecuted, and convicted.
    [Show full text]
  • Criminal Law Outline Rachel Barkow Spring 2014
    CRIMINAL LAW OUTLINE RACHEL BARKOW SPRING 2014 TABLE OF CONTENTS I. Introduction A. The Criminal Justice System in the US B. The Role of the Prosecutor C. The Role of the Jury D. What to Punish? E. The Justification of Punishment II. Building Blocks of Criminal Law A. Legality B. Culpability and Elements of the Offense 1. Actus Reus/Omissions 2. Mens Rea a) Basic Conceptions and Applications b) Mistake of Fact c) Strict Liability d) Mistake of Law and the Cultural Defense III. Substantive Offenses A. Homicide and the Grading of Offenses 1. Premeditation/Deliberation 2. Provocation 3. Unintentional Killing 4. Felony Murder 5. Causation B. Rape 1. Introduction 2. Actus Reus 3. Mens Rea C. Blackmail IV. Attempts A. Mens Rea B. Actus Reus/Preparation V. Group Criminality A. Accountability for the Acts of Others 1. Mens Rea 2. Natural and Probable Consequences Theory 3. Actus Reus B. Conspiracy 1. Actus Reus and Mens Rea 2. Conspiracy as Accessory Liability 3. Duration and Scope of a Conspiracy 4. Reassessing the Law of Conspiracy 1 C. Corporate Criminal Liability VI. General Defenses to Liability A. Overview B. Justifications 1. Self Defense 2. Defense of Property 3. Necessity C. Excuses 1. Insanity 2. Expansion of Excuses 3. Duress VII. The Imposition of Criminal Punishment A. Sentencing B. Proportionality 2 INTRODUCTION Criminal Justice System in the U.S. I. Mass Incarceration and its Causes and Consequences A. Mass incarceration • Massive in terms of total numbers • Massive in terms of disproportionate impact on people of color B. Causes
    [Show full text]