Ch. 13 Criminal Law and Business Pt.1

What is a crime?

wrong against society

How is a criminal case brought to court?

government coming after an individual

Elements of a Crime

Mens Rea and Actus Rea

Mens Rea

A person’s mental state at the time the crime was committed. Did they have a guilty mind?

Actus Rea

physical act of committing the crime

the person has to voluntarily commit the crime + has to be conscious when it happened

General Intent

intention to do the act that constitutes the crime

Specific Intent

intention to achieve the harmful result

EX: willfully, knowingly

Reckless Conduct

drinking and driving: did not intend to cause an accident or harm, but were being reckless → can be charged with a crime

Felony

• commenced by a Grand Jury Indictment

• fine or imprisonment of 1 year or more

Misdeameanor

• commenced when the government files a charge called an information

• fine or imprisonment of less than a year

Please

nolo contendere, guilty, not guilty

Nolo Contendere

1. Stands for no contest

2. Allows for sentencing as if there had been a guilty plea

3. Allows you to avoid the cost of trial

4. Can only plead Nolo once every 5 years and for certain situations

5. For traffic violations: No points added to your license

White Collar Crime

any illegal offense that occurs in a business or professional setting that is committed to harm the business or for personal gains

Fraud

defendant made a false statement purposefully or was recklessly indifferent regarding its truth, and intended for the other party to rely on the false statement

Key Difference between civil and criminal fraud

civil fraud: the person has to have relied on it

criminal fraud: it does not matter if the person relied on the statement, because what you did is significant enough to hold you responsible

Fraud creates

criminal liability, and is actionable under state criminal codes

fines/imprisonment is exerted on individuals who knowingly and willfully:

• conceal/falsify any trick, scheme, or device a material fact

• make materially false, fictitious, or fraudulent statements or representation

• make or use any false writing knowingly to contain any materially false, fictitious, or fraudulent statement

Scheme to defraud

plan designed to take from a person the tangible right of honest cervices (my right to receiving honest services is being taken away)

Theft by Deception

• a person intentionally creates or supports a false impression

• a person fails to correct a false impression if there is a confidential or fiduciary relationship between parties

• a person prevents another from acquiring information that is relevant to a transaction

• a person fails to disclose a known lien or legal impediment to property being transferred

Mail Fraud

unlawful to use the US Postal Service or any other interstate carrier to defraud someone

Wire Fraud

unlawful to use any electronic means of interstate communication to defraud someone

False

known to be untrue or made with reckless indifference to its truth or falsity

Defraud

the material fact is vital to a reasonable person in determining whether to engage in a particular transaction

Defenses for Mail and Wire Fraud

acting in good faith, cannot sue for fraud

Securities Fraud

rule 10b of the SEC and Securities Exchange Act of 1934 make fraud in the purchase or sale of a security a federal crime

Health Care Fraud

prosecution of false claims under the False Claims Act

• investigations are aided by information revealed by whistleblower suits suits

Uncoding

billing for a more costly procedure than the one actually performed

Unbundling

billing each state of a procedure as if it were a separate procedure

ABC Hospital charges $100 for IVs and $10,000 for delivering a baby (includes all IV’s). Tonya goes to the Hospital to deliver her baby and receives an IV. She then gets a bill for $10,100. Is this legal?

NO, Unbundling, IV should be included

Counterfeiting

use of counterfeit access devices including bank cards, plates, codes, account numbers, or other means to initiate a transfer of funds is outlawed

• use of unauthorized access device is prohibited

unauthorized access device

lost, stolen, expired, revoked, cancelled, or fraudulently obtained bank card

Counterfeit must result in:

atleast $1000 being fraudulently obtained within a 1 year period

Don’t get confused between Wire Fraud and Counterfeiting

Wire Fraud = Focus on the COMMUNICATION

Counterfeiting = Communication did not occur, information was obtained some other way

Bankruptcy Fraud

certain conduct by the debtors, creditors, and others that are said to be a federal crime as per the US Code

Concealment

even if you are not successful in concealing, we can still hold you responsible

Conspiracy

two or more individuals knowingly agree on a plan or scheme or method for carrying out an illegal act

• requires intent

Conspiracy is separate from

the underlying charge

Overt Act

any act knowingly committed by at least one of the conspirators in an effort to carry out or accomplish some objective of the conspiracy

Is agreement enough to charge for conspiracy?

no, requires overt act