Thomas M. DiBiagio

74 Wash. & Lee L. Rev. Online 256 (2018)

March 2, 2018

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A fundamental principle of criminal law is that to hold a defendant accountable, the prosecution must prove that he culpably participated in the criminal activity. To prove culpable participation, the government can prove a defendant’s direct knowledge of and active participation in the criminal conduct. However, because of the nature of financial crimes and corporate misconduct, culpable targets often are able to insulate themselves from the underlying criminal conduct and thereby, frustrate the prosecution’s ability to meet this evidentiary standard. The resulting impunity undermines the public’s trust and confidence in the fundamental fairness of the enforcement of the criminal laws.

This Article asserts that the facilitation theory of prosecution can be used to extend the limits of the mail and wire fraud statute to capture culpable targets for financial crimes and corporate corruption. Under the facilitation theory, a defendant culpably participates in criminal conduct when he knowingly acts to influence, enable, further, or conceal the criminal conduct.

Although there are no legal barriers to bringing financial crimes and corporate corruption in full view, it is acknowledged that there are substantial factual challenges. These cases often involve complex fact patterns and shifting narratives. Nevertheless, the interest of justice compel a persistent effort by prosecutors to establish real consequences for facilitating corporate criminal conduct.