Corporate Criminal Liability: An Overview of Federal Law

United States v. Agosto-Vega, 617 F.3d 541, 552-53 (1^st Cir. 2010); United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1118-119 (D.C.Cir. 2009); United States v. Singh, 518 F.3d 236, 249 (4^th Cir. 2008); accord, United States v. Jorgensen, 144 F.3d 550, 560 (8^th Cir. 1998); United States v. Investment Enterprises, Inc., 10 F.3d 263, 266 (5^th Cir. 1994); United States v. Twentieth Century Fox Film Corp., 882 F.2d 656, 660 (2d Cir. 1989); United States v. Gold, 743 F.2d 800, 822-23 (11^th Cir. 1984); United States v. Beusch, 596 F.2d 871, 877-78 (9^th Cir. 1979); United States v. Carter, 311 F.2d 934, 941-42 (6^th Cir. 1963).

1 Blackstone, Commentaries on the Laws of England 464 (1765) (transliteration provided).

Wharton, Treatise on the Criminal Law of the United States 58 (2d ed. 1852)("[A] corporation may be indicted for a breach of duty imposed on it by law ... Whether this criminal liability extends to acts of misfeasance is more doubtful").

1 Bishop, Commentaries on the Criminal Law §420 (7^th ed. 1882)("But while the courts everywhere hold corporations to be thus indictable for non-feasance, it is by some denied that they are for misfeasance.... But the contrary is established in England ... This English doctrine ... is the better doctrine in principle").

New York Central & Hudson River Railroad Co. v. United States, 212 U.S. 481, 494-95 (1909).

Brickley, Corporate Criminal Accountability: A Brief History and an Observation, 60 Washington University Law Quarterly 393, 411 (1982), quoting, State v. First National Bank, 2 S.D. 568, 571, 51 N.W. 587, 587 (1892); see also, Perkins, Criminal Law 640-41 (2d ed. 1969)("If a corporation had such a duty which it neglected to perform no sound reason against its conviction was available, and it was but a short step from recognition of corporate guilt for a civil offense based upon nonfeasance to such guilt based upon affirmative misconduct. Since such an offense does not have the normal mens-rea requirement for criminal guilty, and conviction may be supported on the basis of respondeat superior, the possibility of convicting a corporation of a civil offense became firmly established. For years it seemed the change from the original position would stop at this point and that a corporation would be held incapable of committing a true crime on the ground that it could not have means rea.... Gradually, however, the change moved over into the area of true crime").

Clinton v. City of New York, 524 U.S. 417, 428 n.13 (1998).

1 U.S.C. 1.

E.g., United States v. A & P Trucking Co., 358 U.S. 121, 123 (1958)(violation of Interstate Commerce Commission safety regulations, former 18 U.S.C. 835 (1958 ed.)); United States v. Polizzi, 500 F.2d 856, 907 (9^th Cir. 1974) (violation of the Travel Act, 18 U.S.C. 1952); Western Laundry and Linen Rental Co. v. United States, 424 F.2d 441, 443 (9^th Cir. 1970)(antitrust violations under the Sherman Act, 15 U.S.C. 1); United States v. Hougland Barge Line, Inc., 387 F.Supp. 1110, 1114 (W.D.Pa. 1974) (conspiracy, 18 U.S.C. 371).

18 U.S.C. 1961(3).

26 U.S.C. 7701(a)(1)-(3).

E.g., 42 U.S.C. 6903(15) for purposes of the Resource Conservation and Recovery Act (RCRA), "the term 'person' means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body and shall include each department, agency, and instrumentality of the United States."

Newport v. Fast Concerts, Inc., 453 U.S. 247, 258-71 (1981)(municipalities are immune from punitive damages under 42 U.S.C. 1983, for civil rights violations); Gentry v. Resolution Trust Corp., 937 F.2d 899, 914 (3d Cir. 1991)("the prevailing punitive nature of section 1964(c)'s compulsory award of treble damages convinces us that Congress, in keeping with the common law, did not intend to subject municipal corporations to RICO liability").

United States v. Singh, 518 F.3d 236, 249-50 (4^th Cir. 2008)("a corporation accused is liable for the criminal acts of its employees and agents acting within the scope of their employment for the benefit of the corporation and such liability arises if the employee or agent acted for his own benefit as well as that of his employer"); United States v. Potter, 463 F.3d 9, 25 (1^st Cir. 2006); United States v. Jorgensen, 144 F.3d 550, 560 (8^th Cir. 1998); United States v. Sun Diamond Growers, 138 F.3d 961 (D.C.Cir. 1998).

United States v. Agosto-Vega, 617 F.3d 541, 25 (1^st Cir. 2010) ("[t]he test is whether the agent is performing acts of the kind which he is authorized to perform and those acts are motivated—at least in part—by an intent to benefit the corporation"); United States v. Singh, 518 F.3d at 250-51; United States v. Gold, 743 F.2d 800, 823 (11^th Cir. 1984)("the servant's conduct is within the scope of his employment if it is of the kind he is employed to perform, occurs substantially within the authorized limits of time and space, and is actuated, at least in part by a purpose to serve the master").

United States v. Potter, 463 F.3d 9, 26 (1^st Cir. 2006); United States v. Automated Medical Laboratories, 770 F.2d 399, 406 (4^th Cir. 1985); United States v. Ionia Management S.A., 525 F.Supp.2d 319, 324 (D. Conn. 2007).

Model Penal Code §2.07 (1985)("A corporation may be convicted of the commission of an offense if (a) the offense is a violation ... in which a legislative purpose to impose liability on corporations plainly appears ... or (b) the offense consists of an omission to discharge a specific duty or affirmative performance imposed on corporations by law; or (c) the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment. (2) When absolute liability is imposed for the commission of an offense, a legislative purpose to impose liability on a corporation shall be assumed, unless the contrary plainly appears ... (5) In any prosecution of a corporation ... for the commission of an offense included within the terms of Subsection (1)(a) ... it shall be a defense ... that the high managerial agent having supervisory responsibility over the subject matter of the offense employed due diligence to prevent it commission ... ").

E.g., Ariz. Rev. Stat. Ann. §13-305 ("A. Notwithstanding any other provisions of law, an enterprise commits an offense if: 1. The conduct constituting the offense consists of a failure to discharge a specific duty imposed by law; or 2. The conduct undertaken in behalf of the enterprise and constituting the offense, is engaged in, authorized, solicited, commanded or recklessly tolerated by the directors of the enterprise in any manner or by a high managerial agent acting within the scope of employment; or 3. The conduct constituting the offense is engaged in by an agent of the enterprise while acting within the scope of employment and in behalf of the enterprise; and (a) the offense is a misdemeanor or petty offense; or (b) The offense is defined by a statute which imposed criminal liability on an enterprise").

United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1118 (D.C.Cir. 2009), citing, N.Y. Central & Hudson River R.R. Co. v. United States, 212 U.S. 481, 495 (1909), and United States v. A & P Trucking Co., 358 U.S. 121, 125 (1958); see also, United States v. LaGrou Distribution Systems, 466 F.3d 585, 591 (7^th Cir. 2006).

United States v. LaGrou Distribution Systems, 466 F.3d at 591; United States v. Route, 2 Box 472, 136 Acres More or Less (Dyer's Trout Farms, Inc.), 60 F.3d 1523, 1527 (11^th Cir. 1995); United States v. Bank of New England, 821 F.2d 844, 855 (1^st Cir. 1987).

Compare, United States v. Bank of New England, 821 F.2d at 856 (internal citations omitted)("A collective knowledge instruction is entirely appropriate in the context of corporate criminal liability. The acts of a corporation are, after all, simply the acts of all of its employees operating within the scope of their employment. The law on corporate criminal liability reflects this. Similarly, the knowledge obtained by corporate employees acting within the scope of their employment is imputed to the corporation. Corporations compartmentalize knowledge, subdividing the elements of specific duties and operations into smaller components. The aggregate of those components constitutes the corporation's knowledge of a particular operation. It is irrelevant whether employees administering one component of an operation know the specific activities of employees administering another aspect of the operation: A corporation cannot plead innocence by asserting that the information obtained by several employees was not acquired by any one individual who then would have comprehended its full import. Rather the corporation is considered to have acquired the collective knowledge of its employees and is held responsible for their failure to act accordingly"), with, United States v. Philip Morris USA, Inc., 566 F.3d at 1122 ("Like Defendants and other courts, we are dubious of the legal soundness of the "collective intent" theory. Saba [v. Compagnie Nationale Air France, 78 F.3d 664, 670 n.6 (D.C. Cir. 1996)('corporate knowledge of certain facts [can be] accumulated from the knowledge of various individuals, but the proscribed intent (willfulness) depends[s] on the wrongful intent of specific employees')" and Southland Securities v. Inspire Insurance Solutions, 365 F.3d 353, 366 (5^th Cir. 2004)("For purposes of determining whether a statement made by the corporation was made by it with the requisite Rule 10(b) scienter we believe it appropriate to look to the state of mind of the individual corporate official or officials who make or issue the statement (or order or approve it or its making or issuance, or who furnish information or language for inclusion therein, or the like) rather than generally to the collective knowledge of all the corporation's officers and employees acquired in the course of their employment").

United States v. Wise, 370 U.S. 405, 407 (1962).

Id. at 409, citing, United States v. Dotterweich, 320 U.S. 277 (1943).

18 U.S.C. 371.

United States v. Sain, 141 F.3d 463, 475 (3d Cir. 1998); United States v. Hughes Aircraft Co., 20 F.3d 974, 979 (9^th Cir. 1994); United States v. Ames Sintering Co., 927 F.2d 236-37 (6^th Cir. 1990); United States v. Hugh Chalmers Chevrolet-Toyota, Inc., 800 F.2d 737, 738 (8^th Cir. 1986).

United States v. Stevens, 909 F.2d 431, 432-34 (11^th Cir. 1990); United States v. Peters, 732 F.2d 1004, 1008 n.6 (1^st Cir. 1984).

Pinkerton v. United States, 328 U.S. 640, 647-48 (1946); United States v. Singh, 518 F.3d 236, 252-53 (4^th Cir. 2008); United States v. Skilling, 554 F.3d 529, 547 (5^th Cir. 2009), aff'd in part and vac'd in part on other grounds, 130 S.Ct. 2896 (2010); United States v. Sklena, 692 F.3d 725, 729-30 (7^th Cir. 2012); United States v. Clark, 717 F.3d 790, 808-809 (10^th Cir. 2013).

18 U.S.C. 2(a); see e.g., United States v. Sain, 141 F.3d 463, (3d Cir. 1998)("an individual who causes a corporation to commit a crime is criminally liable for the corporations' criminal conduct as an aider and abettor ... "); United States v. Cohen, 260 F.3d 68, 77-8 (2d Cir. 2001)(the president of a company which operated an off-shore internet gambling site was in a position to cause the company's continued violation of the Wire Act (18 U.S.C. 1084)).

Nye & Nissen v. United States, 336 U.S. 613, 619 (1949); see also, United States v. Davis, 717 F.3d 28, 33 (1^st Cir. 2013)("Aiding and abetting requires proof that: 1) the substantive offense was actually committed; 2) the defendant assisted in the commission of that crime or caused it to be committed; and 3) the defendant intended to assist in the commission of that crime and or to cause it to be committed. Moreover ... a culpable aider and abetter need not perform the substantive offense, be present when it is performed, or be aware of the details of its execution" ); United States v. Joseph, 709 F.3d 1082, 1102 (11^th Cir. 2013).

United States v. Rodriguez-Lozada, 558 F.3d 29, 41 (1^st Cir. 2009); United States v. Dearing, 504 F.3d 897, 901 (9^th Cir. 2007); United States v. Kemp, 500 F.3d 257, 293 (3d Cir. 2007).

United States v. Sain, 141 F.3d 463, 474-75 (3d Cir. 1998)("AEC, because it is a corporation, is a separate legal entity, even though Sain owned all the stock. Thus, it has the capacity of being aided and abetted. To hold otherwise would allow the controlling stockholder of a corporation to enjoy the benefits of the corporate form, protection from personal liability for corporation's debts, without accepting the burden of assuming criminal responsibility when the individual causes the corporation to commit a crime.... Even assuming that Sain is correct that it was impossible for him to conspire with AEC, that conclusion does not preclude imposition of aiding and abetting responsibility. Arguably, Sain could not conspire with AEC because AEC could not form the mental state required to conspire with another. This is because a corporation is a conspirator only pursuant to respondeat superior liability. If an agent of the corporation conspires with another individual, the corporation for which the individual is the agent may be criminally liable. However, there must be at least two natural individuals for a conspiracy involving a corporation to exist because two entities must have the required mental state to form a conspiracy. The aiding and abetting statute allows for broader liability and does not require proof that an unwitting entity being used to commit the crime possessed any mental state. 18 U.S.C. §2(b) ('Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.'). Only the person causing the unwitting entity to act must possess the knowing mental state. Therefore, an individual who causes a corporation to commit a crime is criminally liable for the corporation's criminal conduct as an aider and abettor even if the corporation does not act with a knowing mental state.. For that reason, conviction of Sain was proper even assuming arguendo that Sain caused AEC to unwittingly commit the crime. Thus, the district court committed no error in sustaining Sain's conviction as an aider and abettor").

18 U.S.C. 3, 4.

United States v. White Eagle, 721 F.3d 1108, 1119 (9^th Cir. 2013)("Misprision of a felony in violation of 18 U.S.C. §4 requires the government to establish: (1) the commission and completion of a felony by a third party, (2) the defendant's knowledge of the felony, 3) the defendant's failure to notify the authorities, and (4) that the defendant took an affirmative step to conceal the crime"); United States v. Boyd, 640 F.3d 657, 662 (6^th Cir. 2011); United States v. Gebbie, 294 F.3d 540, 544 (3d Cir. 2002); United States v. Cefalu, 85 F.3d 964, 868 (2d Cir. 1996).

United States v. Boyd, 640 F.3d at 662; United States v. Gerrhard, 615 F.3d 7, 23-4 (1^st Cir. 2010); United States v. Gianakos, 415 F.3d 912, 919 n.4 (8^th Cir. 2005); United States v. DeLaRose, 171 F.3d 215, 221 (5^th Cir. 1999); United States v. Osborn, 120 F.3d 59, 63 (7^th Cir. 1997).

E.g., 18 U.S.C. 1001 (false material statements relating to a matter with the jurisdiction of a federal department or agency), 1512 (witness tampering or destruction of evidence), 1520 (destruction of federal audit records).

United States v. Dotterweich, 320 U.S. 277 (1943); United States v. Park, 421 U.S. 658 (1975).

United States v. Park, 421 U.S. at 669, quoting, United States v. Dotterweich, 320 U.S. at 280-81.

Staples v. United States, 511 U.S. 600, 607 (1994).

Id.

Id., quoting, United States v. Balint, 258 U.S. 250, 254 (1922).

Staples v. United States, 511 U.S. at 607. See e.g., United States v. Jorgensen, 144 F.3d 550, 560 (8^th Cir. 1998)(internal citations omitted)("A corporate officer who is in a 'responsible relationship' to an activity within a company that violates provisions of the federal food laws, such as meat misbranding, can be held criminally responsible even though that officer did not personally engage in that activity. As previously noted, the misbranding provisions of which the corporate officers were convicted required the officer to act with an intent to defraud. Thus, the jury could convict a defendant corporate officer if it found a defendant: (1) had an intent to defraud; and (2) either personally participated in the misbranding or was in a responsible relationship within the company regarding the misbranding of meat").

United States v. Park, 421 U.S. at 673-74.

Wayte v. United States, 470 U.S. 598, 607 (1985)(internal citations and quotation marks omitted)("In our criminal justice system, the Government retains broad discretion as to whom to prosecute. So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion"); United States v. Nixon, 418 U.S. 683, 693 (1974)("[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case"). United States v. Armstrong, 517 U.S. 456, 464 (1996)("The Attorney General and United States Attorneys retain broad discretion to enforce the Nation's criminal laws. They have this latitude because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to take Care that the Laws be Faithfully executed"), citing inter alia, U.S. Const. Art. II, §3, and 28 U.S.C. 516, 547.

Wayte v. United States, 470 U.S. at 608 (internal citations and quotation marks omitted) ("[A]lthough prosecutorial discretion is broad, it is not unfettered ... In particular, the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification including the exercise of protected statutory and constitutional rights"); United States v. Armstrong, 517 U.S. at 464 ("Of course, a prosecutor's discretion is subject to constitutional constraints").

U.S. Attorneys' Manual (USAM), §§9-27.000 et seq., and §§9-28.000 et seq., respectively, available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9. Although they refer to "business organizations" and "corporations," the business organization principles construe those terms broadly, USAM §9-28.000 n.1 ("While these guidelines refer to corporations, they apply to the consideration of the prosecution of all types of business organizations, including partnerships, sole proprietorships, government entities, and unincorporated associations")

USAM, §9-27.200[B]. Grounds for suspicion, short of probable cause, may justify further investigation, id.

USAM, §9-27.220[A].

Id.

USAM §9-28.500.

USAM §9-28.600.

USAM §9-28.800.

USAM §9-28.720, 9-28.750.

USAM §§9-28.700, 9-28.710, 9-28.740, 9-28.760.

USAM §9-28.730.

USAM §9-28.1000.

USAM §9-28.900.

USAM §9-28.500[A].

Id.

USAM §9-28.600[B]("Criminal prosecution of a corporation may be particularly appropriate where the corporation previously had been subject to non-criminal guidance, warnings, or sanctions, or previous criminal charges, and it either had not taken adequate action to prevent future unlawful conduct or had continued to engage in the misconduct in spite of the warnings or enforcement actions taken against it").

Id.

United States v. Potter, 463 F.3d 9, 26 (1^st Cir. 2006); United States v. Automated Medical Laboratories, 770 F.2d 399, 406 (4^th Cir. 1985); United States v. Ionia Management S.A., 525 F.Supp.2d 319, 324 (D. Conn. 2007).

USAM §9-28.800[A]; U.S.S.G. §§8C2.5(f), 8B2.1.

USAM §9-28.800[B]("[A] truly effective compliance program ... may result in a decision to charge only the corporation's employees and agents or to mitigate charges or sanctions against the corporation"). An effective compliance program will reduce a convicted corporation's "culpability score" under the Sentencing Guidelines and consequently lower the corporation's ultimate sentencing range, U.S.S.G. §§8C2.5(f), 8A1.2.

USAM §9-28.750.

USAM §9-28.740 (emphasis added)("A corporation should not be able to escape liability merely by offering up its directors, officers, employees, or agents").

See e.g., The McNulty Memorandum's Effect on the Right to Counsel in Corporate Investigations: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary, 110^th Cong., 1^st Sess. (2007); Examining Approaches to Corporate Fraud Prosecutions and the Attorney-Client Privilege Under the McNulty Memorandum: Hearing Before the Senate Comm. on the Judiciary, 110^th Cong., 1^st Sess. (2007); CRS Report RL33842, Prosecutorial Discretion in the Context of Corporate Attorney-Client Relations.

USAM §9-28.710; see also, USAM §9-28.720 ("Eligibility for cooperation credit is not predicated upon the waiver of attorney-client privilege or work product protection. Instead, the sort of cooperation that is most valuable to resolving allegations of misconduct by a corporation and its officers, directors, employees, or agents is disclosure of the relevant facts concerning such misconduct").

USAM §9-28.730.

USAM §9-28.760.

USAM §9-28.900.

USAM §9-28.1000.

USAM §9-27.240.

USAM §9-27.1100[B]. Prosecutors will sometimes agree to a combination of criminal and civil sanctions, see e.g., Johnson & Johnson Agrees to Pay 24.1 Million Criminal Penalty to Remedy Foreign Corrupt Practices Act and Oil for Food Investments, Department of Justice Press Release (April 8, 2011)(announcing corporate agreement to pay criminal fine of $21.4 million and a Securities Exchange Commission disgorgement penalty of $48.6 million).

Markoff, Arthur Andersen and the Myth of the Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-First Century, 15 University of Pennsylvania Journal of Business Law 797, 800 (2013)("For many commentators, it is now unquestioned dogma that a criminal indictment alone can easily destroy even a large, powerful corporation").

See generally, Accountability, Transparency, and Uniformity in Corporate Deferred and Non-Prosecution Agreements: Hearing Before the Subcomm. on Commercial and Administrative Law of the House Comm. on the Judiciary, 111^th Cong., 1^st Sess. (2009); Government Accountability Office, Corporate Crime: Preliminary Observations on DOJ's Use and Oversight of Deferred Prosecution and Non-Prosecution Agreements, GAO-09-636T (2009); Warin, 2013 Mid-Year Update on Corporate Deferred Prosecution and Non-Prosecution Agreements, Harvard Law School Forum on Corporate Governance and Financial Regulation, available at http://blogs.law.harvard.edu/corpgov/2013/07/24/2013-mid-year-update-on-corporate-deferred-prosecution-and-non-prosecution-agreements.

Criminal Resource Manual (CRM) §163 n.2 (Mar. 7, 2008). The distinction is not insignificant, because the courts serve as an additional guarantor of the public interest when they are involved, see e.g., United States v. Orthofix, Inc., ___ F.Supp.2d ___ (2013 WL 3835233)(July 26, 2013 D.Mass.)(rejecting a deferred prosecution agreement as insufficient to protect the public interest).

See e.g., United States v. Stein, 541 F.3d 130, 137 (2d Cir. 2008)(internal citations omitted)("KPMG retained Robert S. Bennett ... to formulate a cooperative approach for KPMG to use in dealing with federal authorities 's counsel. Bennett's strategy included a decision to clean house—a determination to ask Jeffrey Stein, Richard Smith, and Jeffrey Eischeid, all senior KPMG partners ... —to leave their positions as deputy chair and chief operating officer of the firm, vice chair-tax services, and a partner in personal financial planning, respectively"). The government subsequently announced a deferred prosecution agreement in which it noted that six former KPMG partners and a former deputy chairman were to be prosecuted, KPMG to Pay $456 Million for Criminal Violations in Relation to Largest-Ever Tax Shelter Fraud Case, Department of Justice Press Release (Aug. 29, 2005). Corporate agreements may coincide with individual plea agreements with corporate executives or former executives, see e.g., Internet Gambling Company PartyGaming PLC Enters Non-Prosecution Agreement with U.S. and Will Forfeit $105 Million, U.S. Attorney for the Southern District of New York Press Release (April 7, 2009)(noting that PartyGaming's founder and former executive had agreed to forfeit $300 million and plead guilty to gambling charge carrying a maximum term of imprisonment of two years).

See e.g., UBS AG Non-Prosecution Agreement ("UBS shall ... (b) truthfully and completely disclose non-privileged information with respect to the activities of UBS, its officers and employees, and other concerning all matters about which the Fraud Section inquires of it ... (c) bring to the Fraud Section's attention all potentially criminal conduct by UBS or any of its employees that relates to violations of U.S. laws (i) concerning fraud or (ii) governing securities and commodities markets.... "), available at http://www.justice.gov/iso/opa/resources/1392012121911745845757.pdf.

See e.g., United States v. BP America Inc. (Deferred Prosecution Agreement) (No. 07-cr-683)(N.D.Ill. Oct.27, 2007)(agreeing to establish a $53,503 million victim restitution fund), available at http://www.justice.gov/criminal/vns/docs/2007/oct/10-25-07bpamerica-dpa.pdf.

See e.g., United States v. The Royal Bank of Scotland plc (3:13-CR-74-MPS)/United States v. RBS Securities Japan Limited (3:13-CR-73-MPS), Department of Justice Press Release (Feb. 13, 2013)(announcing an agreement under which Royal Bank of Scotland and RBS Securities Japan agreed to pay $612 million in criminal penalties).

See e.g., United States v. Credit Suisse AG (Deferred Prosecution Agreement)(D.D.C. Dec. 16, 2009)(agreeing to a forfeiture settlement of $268 million), available at http://www.justice.gov/criminal/pr/documents/12-16-09-deferred-%20proseuction-%20agreement.pfd.

See e.g., United States v. Sigue Corp. (Deferred Prosecution Agreement)(No. 4:08-cr-00054-RWS) (E.D.Mo. Jan. 28, 2008) (in which Sigue agreed to develop and implement a compliance program which it estimated would cost it $9.7 million), available at http://www.justice.gov/opa/documents/sigue-deferred-prosecution-agreement.pdf.

See e.g., HSBC Deferred Prosecution Agreement, Attachment B, Corporate Compliance Monitor, available at http://www.justice.gov/opa/documents/hsbc/dpa-attachment-b.pdf. See also, United States v. HSBC Bank USA, NA (2013WL3306161) (No. 12-cr-00763-JG)(E.D.N.Y. July 1, 2013).

USAM §9-28.1300; see also, USAM §9-27.300 et seq.

USAM §9-28.1300[B].

Id.

Id.

CRM §§163 ("Morford Memorandum"), 166 ("Grindler Memorandum"). The recommendations cover selection of a monitor, the monitor's independence, his or her responsibility to oversee compliance with the agreement, development and weight of the monitor's recommendations, reporting newly discovered corporate misconduct, the monitor's tenure, and resolution of disputes between the monitor and the corporation.

U.S. Const. Art. I, §9, cl.3; Art. I, § 10. cl.1.

Peugh v. United States, 133 S.Ct. 2072, 2081 (2013), quoting, Calder v. Bull, 3 Dall. (U.S.) 386, 390 (1789).

E.g., Louis Vuitton S.A. v. Spencer Handbags Corp., 765 F.2d 966, 971-72 (2d Cir. 1985)(construing amendments to the Trademark Counterfeiting Act narrowly after noting the possibility of an ex post facto violation otherwise); United States ex rel. Baker v. Community Health Systems, 709 F.Supp.2d 1084, 1108-112 (D.N.Mex. 2010)(holding that retroactive application of False Claims Act amendments would constitute an ex post facto violation); United States ex rel. Sanders v. Allison Engine Co., Inc., 667 F.Supp.2d 747, 752-58 (S.D.Ohio 2009)(same).

Citizens United v. Federal Election Comm'n, 130 S.Ct. 876, 899-900 (2010)(citing two dozen cases for the proposition); see also, Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657 (1990)("The mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment"); First National Bank of Boston v. Belliotti, 435 U.S. 765, 779 n.14 (1978)("In cases where corporate speech has been denied the shelter of the First Amendment, there is no suggestion that the reason was because a corporation rather than an individual or association was involved").

Citizens United v. Federal Election Comm'n, 130 S.Ct. at 899.

Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 98 (1977).

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized," U.S. Const. Amend. IV.

United States v. Morton Salt Co., 338 U.S. 632, 652 (1950).

G.M. Leasing Corp. v. United States, 429 U.S. 338, 353 (1977).

Hale v. Henkel, 201 U.S. 43, 76 (1905)("[W]e do not wish to be understood as holding that a corporation is not entitled to immunity, under the Fourth Amendment, against unreasonable searches and seizures. ... We are also of opinion that an order for the production of books and papers may constitute an unreasonable search and seizure within the Fourth Amendment. While a search ordinarily implies a quest by an officer of the law, and a seizure contemplates a forcible dispossession of the owner, still, ... the substance of the offense is the compulsory production of private papers, whether under a search warrant or a subpoena duces tecum, against which the person, be he individual or corporation, is entitled to protection. Applying the test of reasonableness to the present case, we think the subpoena duces tecum is far too sweeping in its terms to be regarded as reasonable").

Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385 (1920); Go-Bart Co. v. United States, 282 U.S. 344 (1931).

New York v. Burger, 482 U.S. 691, 702-703 (1987)("Because the owner or operator of commercial premises in a 'closely regulated' industry has a reduced expectation of privacy, the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search have lessened application in this context.... This warrantless inspection ... will be deemed to be reasonable only so long as three criteria are met. First, there must be a 'substantial' government interest that informs the regulatory scheme pursuant to which the inspection is made.... Second, the warrantless inspections must be 'necessary to further [the] regulatory scheme.... Finally ... the regulatory statute must perform the two functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers").

Club Retro LLC v. Hilton, 568 F.3d 181, 195 (5^th Cir. 2009)("[T]he entry and search of Club Retro violated Club Retro, L.L.C.'s Fourth Amendment right to operate its commercial property free from unreasonable searches and seizures"); United States v. SDI Future Health Inc., 568 F.3d 684, 694 & n.3 (9^th Cir. 2009)("The government first argues that Kaplan and Brunk lack standing to challenge the search and seizure of materials from SDI's premises. Wisely, the government does not argue that SDI itself lacks standing to challenge the underlying search and seizure. See United States v. Leary, 846 F.2d 592, 596 (10^th Cir. 1988)('A corporate defendant has standing with respect to searches of corporate premises and seizure of corporate records')"); Doe v. Heck, 327 F.3d 492, 509 n.14 (7^th Cir. 2003)("A private school, like any other corporation or business, is entitled to bring a Fourth Amendment challenge for the illegal search of its premises").

Braswell v. United States, 487 U.S. 99, 105 (1988); Louis Vuitton Malletier S.A., v. LY USA, Inc., 676 F.3d 83, 92 n.5 (2d Cir. 2012); Eagle Hospital Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1303 n.2 (11^th Cir. 2009); Amato v. United States, 450 F.3d 46, 48 n.2 (1^st Cir. 2006)("The collective-entity doctrine recognizes that the Fifth Amendment treats corporations and collective entities differently from individuals. Because corporations and collective entities have no Fifth Amendment privilege against self-incrimination ... the custodian cannot claim a personal Fifth Amendment privilege against the production of corporate records").

United States v. Macklin, 389 F.Supp. 272, 273 (S.D.N.Y. 1975), aff'd, 523 F.2d 193 (2d Cir. 1975)("The corporate defendants, unlike defendant Macklin, are not subject to any term of imprisonment if convicted of the charges against them. Accordingly, the charges against them are not 'infamous' within the meaning of the fifth amendment"); see also, United States v. Yellow Freight System, Inc., 637 F.3d 1248, 1253-254 (9^th Cir. 1981)(emphasis added and internal citations omitted) ("Relying on United States Supreme Court pronouncements that infamous crimes are those 'punishable by imprisonment in a penitentiary,' defendants contend that they have been charged with infamous crimes and may not be prosecuted except on grand jury indictment. In response, the United States notes that both defendants are corporations and therefore not amenable to imprisonment. It accordingly contends that this prosecution may proceed by information alone.... Since we hold that imposition of potential imprisonment on individuals violating a criminal statute does not of itself make corporate violations of the same statute infamous crimes, the only remaining question is whether another factor renders the crimes charged in this case infamous ... The class of inherently infamous crimes, if it exists at all, would encompass only the most serious mala in se. Regulatory crimes such as those charged in this case, are not inherently infamous"). Note that , Rule 7(a) of the Federal Rules of Criminal Procedure declares, without reference to the class of defendants, that "An offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable (A) death; or (B) by imprisonment for more than one year," unless waived under Rule 7(b).

Malloy v. Hogan, 378 U.S. 1, 4-5, 10 (1964)(internal citations omitted)("[S]ome of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.... We have held that the guarantees of the First Amendment, the prohibition against unreasonable searches and seizures of the Fourth Amendment, and the right to counsel guaranteed by the Sixth Amendment are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment"). In much the same way, the Fifth Amendment's understanding of due process includes an equal protection guarantee that the federal government must honor under the same standards, Bolling v. Sharpe, 347 U.S. 497, 499 (1954)("The Fifth Amendment ... does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The 'equal protection of the laws' is a more explicit safeguard of prohibited unfairness than 'due process of law,' and therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process"); Buckley v. Valeo, 424 U.S. 1, 93 (1976)("Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment").

First National Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.15 (1978), citing, Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886), and Covington & Lexington Turnpike R. Co. v. Sandford, 164 U.S. 578 (1896)("It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment"); see also, Grosjean v. American Press Co., 297 U.S. 233, 244 (1936)("But a corporation is a 'person' within the meaning of the equal protection and due process of law clauses.... ").

GSS Group Ltd v. National Port Authority, 680 F.3d 805, 813 (D.C.Cir. 2012), citing inter alia, Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2850-851 (2011); J. McIntyre Mach., Ltd. v. Nicastro, 131 S.Ct. 2780, 2785 (2011)("Both Supreme Court and this court have repeatedly held that foreign corporations may invoke due process protections to challenge the exercise of personal jurisdiction over them").

Chai v. Department of State, 466 F.3d 125, 132 (D.C.Cir. 2006)(internal citations omitted).

South Carolina v. Katzenbach, 383 U.S. 301, 323 (1966)("The word 'person' in the context of the Due Process Clause of the Fifth Amendment, cannot, by any reasonable mode of interpretation, be expanded to encompass the States of the Union, and to our knowledge this has never been done by any court"); see also, South Dakota v. U.S. Dept. of Interior, 665 F.3d 986, 990 (8^th Cir. 2012).

GSS Group Ltd v. National Port Authority, 680 F.3d at 809("[F]oreign sovereigns and their extensively-controlled instrumentalities are not 'persons' under the Fifth Amendment"); Frontera Resources Azerbaijan v. State Oil, 582 F.3d 393, 399 (2d Cir. 2009)("Neither States of the Union nor foreign nations are persons for Fifth Amendment purposes"); Greater Heights Academy v. Zelman, 522 F.3d 678, 681 (5^th Cir. 2008)(political subdivisions of the states are not persons for due process purposes).

United States v. Hospital Monteflores, Inc., 575 F.2d 332, 335 (1^st Cir. 1978); United States v. Security National Bank, 546 F.2d 492, 494 (2d Cir. 1976).

United States v. Martin Linen Supply Co., 430 U.S. 564 (1977); but also, Eastern Enterprises v. Apfel, 524 U.S. 498, 557 (1998)(Breyer, J., dissenting)(emphasis added)("Nor does application of the Due Process Clause automatically trigger the Takings Clause, just because the word 'property' appears in both. That word appears in the midst of different phrases with somewhat different objectives, thereby permitting differences in the way in which the term is interpreted. Compare, e.g., United States v. Martin Linen Supply Co, 430 U.S. 564 (1977) ('person' includes corporations for purposes of Fifth Amendment Double Jeopardy Clause), with Doe v. United States, 487 U.S. 201, 206 (1988) ('person' does not include a corporation for purposes of fifth Amendment Self-Incrimination Clause); Strategic Defense International, Inc. v. United States, 745 F.Supp.2d 1214, 1234 (S.D.Fla. 2010)(parallel citations omitted) ("Corporate identity has been determinative of whether a particular constitutional right is or is not available to a corporation.... United States v. Martin Linen Supply, 430 U.S. 564 (1977)(corporation protected against double jeopardy) ... ").

U.S. Const. Amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense").

United States v. Rad-O-Lite of Philadelphia, Inc., 612 F.2d 740, 743 (3d Cir. 1979)("The sixth amendment describes the class of persons protected by its terms with the word 'accused.' This language does not suggest that the protection of sixth amendment rights is restricted to individual defendants").

United States v. Unimex, Inc., 991 F.2d 546, 549-51(9^th Cir. 1993); United States v. Rad-O-Lite of Philadelphia, Inc., 612 F.2d at 743; see also, American Airways Charters, Inc. v. Regan, 746 F.2d 865, 873 n.14 (D.C.Cir. 1984("It appears beyond sensible debate that corporations, in our society, do indeed enjoy the right to retain counsel. Corporations may not assert 'purely personal' rights but, no less than natural persons, they are entitled to due process and the equal protection of the laws.... [T]he right to effective assistance of counsel is not so peculiarly applicable to individuals that corporations should not be entitled to it. In fact, denying a corporation the right to retain counsel may be tantamount to stripping the corporation of its right to defend itself in court, for it is established that a corporation, which is an artificial entity that can only act through agents, cannot proceed pro se").

United States v. Hartsell, 127 F.3d 343, 350 (4^th Cir. 1997); United States v. Unimex, Inc., 991 F.2d at 550; United States v. Rivera, 912 F.Supp. 634, 638 (D.P.R. 1966).

U.S. Const. Amend. VI.

"The indictment or information must be a plain, concise, and definite written state of the essential facts constituting the offense charged.... " F.R.Crim.Pro. 7(c)(1); e.g., United States v. Triumph Capital Group, Inc., 360 F.Supp.2d 470, 474-74 (D.Conn. 2004).

Rideau v. Louisiana, 373 U.S. 723,726-27 (1963); Estes v. Texas, 381 U.S. 532, 538-40 (1965).

Presley v. Georgia, 558 U.S. 209, 212 (2010).

Vermont v. Brillon, 556 U.S. 81, 88 (2009), quoting, Barker v. Wingo, 407 U.S. 514, 530 (1972).

United States v. Litton Systems, Inc., 722 F.2d 264, 265-66 (5^th Cir. 1984); United States v. Sears, Roebuck and Co., Inc., 877 F.2d 734, 739 (9^th Cir. 1989).

Muniz v. Hoffman, 422 U.S. 454, 477 (1975)(a $10,000 fine imposed upon a large union did not trigger the jury trial right); United Mine Workers v. Bagwell, 512 U.S. 821, 824, 838 (1994)($64 million in fines does trigger a jury trial right); Southern Union Co. v. United States, 132 S.Ct. 2344, (2012)("The RCRA subjects Southern Union to a maximum fine of $50,000 for each of violation. 42 U.S.C. 6928(d). The Government does not deny that, in light of the seriousness of that punishment, the company was properly accorded a jury trial. And the Government now concedes the District Court made factual findings that increased both the 'potential and actual' fine the court imposed. This is exactly what Apprendi guards against: judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury's verdict or the defendant's admissions allow").

U.S. Const. Art. III, §2, cl. 3 ("The trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed ... "); Amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to ... a trial, by an impartial jury of the State and district wherein the crime shall have been committed ...").

United States v. Oceanpro Industries, Ltd., 674 F.3d 323, 327-30 (4^th Cir. 2012); United States v. Canal Barge Co., Inc., 631 F.3d 347, 351-54 (6^th Cir. 2011); United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1188-191 (2d Cir. 1989)—each citing as authority cases that only human defendants.

U.S. Const. Amend. VI.

Williams v. Illinois, 132 S.Ct. 2221, 2232 (2012), quoting, 541 U.S. 36, 59 (2004).

Taylor v. Illinois, 484 U.S. 400, 408 (1988), quoting, Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987).

Perry v. New Hampshire, 132 S.Ct. 726, 723 (2012)(internal citations omitted)("The Constitution ... protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit. Constitutional safeguards available to defendants to counter the State's evidence include ... compulsory process and confrontation plus cross-examination of witnesses"); Taylor v. Illinois, 484 U.S. at 408 ("Indeed, this right [to compulsory process] is an essential attribute of the adversary system itself").

United States v. Nippon Paper Industries Co., Ltd., 17 F.Supp.2d 38, 40 (D.Mass. 1998)(right to confrontation); United States v. Nebraska Beef, Ltd., 194 F.Supp.2d 949, (D.Neb. 2002)(compulsory process).

United States v. Bajakajian, 524 U.S. 321, 334 (1998).

United States v. Chaplin's, Inc., 646 F.3d 846, 851 n.15 (11^th Cir. 2011), citing, Browning-Ferris v. Kelco Disposal, Inc., 492 U.S. 257, 276 n.22 (1989).

United States v. Jalaram, Inc., 599 F.3d 347, 357 (4^th Cir. 2010).

Of course, government action, public scorn, or the two in concert may wipe them out of existence.

Cf., 18 U.S.C. 3571 (designating maximum fines for organizations convicted of felonies and various misdemeanors).

Cf., 18 U.S.C. 3561(a)(1)(noting that all defendants may be placed on probation other than individuals convicted of class A or B felonies); U.S.S.G. §8D1.1.

Cf., U.S.S.G. §8B1.1. The statutes that authorize restitution orders refer to simply to "victims" or "defendants" rather than to "individuals," "organizations," or "corporations," 18 U.S.C. 3663, 3663A, 2248, 2259, 2264, 2327.

Cf., U.S.S.G. §§8E1.2, 5E1.4.

Gall v. United States, 552 U.S. 38, 49 (2007)("[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark"); United States v. Goodwin, 717 F.3d 511, 520(7^th Cir. 2013).

Gall v. United States, 552 U.S. at 49-50.

Gall v. United States, 552 U.S. at 51; United States v. Douglas, 713 F.3d 694, 700 (2d Cir. 2013).

Gall v. United States, 552 U.S. at 51; United States v. Alvarado, 720 F.3d 153, 157 (2d Cir. 2013)("A district court errs procedurally when it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the §3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence"); United States v. Sandoval-Orellana, 714 F.3d 1174, 1180 (9^th Cir. 2013).

United States v. Douglas, 713 F.3d at 700 (We set aside a district court's sentence as substantively unreasonable only if affirming it would damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law"); United States v. Ciavarella, 716 F.3d 705, 735 n.19 (3d Cir. 2013)("In evaluating the substantive reasonableness of a sentence, we consider whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. §3553(a)").

U.S.S.G. §8C1.1. The Guidelines, however, operate within the confines established by Congress. The Guideline calculation that falls short of a statutory minimum or exceeds a statutory maximum must be adjusted accordingly, U.S.S.G. §§8C3.1, 5E1.2(c).

U.S.S.G. §8C1.1. United States v. Najjar, 300 F.3d 466, (4^th Cir. 2002)("Tri-City was exposed to a $500,000 fine under the statute and what has been called a death penalty fine under §8C1.1 of the Sentencing Guidelines.... It is clear that Tri-City was conceived in crime and performed little or no legitimate activity ").

18 U.S.C. 3572(b); U.S.S.G. §8C2.2.

U.S.S.G. §8C2.1 ("The provisions of §§8C2.2 through 8C2.9 apply to each count for which the applicable guideline offense level is determined under: §§2B1.1[theft], 2B1.4[insider trading], 2B2.3[trespass], 2B4.1[commercial bribery], 2B5.3[copyright or trademark infringement], 2B6.1[vehicle identification numbers]; §§2C1.1[bribery], 2C1.2[illegal gratuity], 2C1.6 [deleted]; §§2D1.7[sale of drug paraphernalia], 2D3.1[controlled substance regulatory offenses], 2D3.2[same]; §§2E3.1[gambling], 2E4.1[contraband tobacco products], 2E5.1[labor racketeering], 2E5.3[labor record false statements]; §2G3.1[dealing in obscenity]; §§2K1.1[failure to report stolen explosives], 2K2.1[unlawful firearms transactions]; §2L1.1[smuggling]; §2N3.1[odometer offenses]; §2R1.1[antitrust]; §§2S1.1[money laundering], 2S1.3[smurfing]; §§2T1.1[tax evasion], 2T1.4[tax fraud principal], 2T1.6[failure to collect taxes], 2T1.7[failure to deposit collected taxes], 2T1.8[withholding offenses], 2T1.9[tax conspiracy], 2T2.1[nonpayment of alcohol tax], 2T2.2[regulatory tax offenses], 2T3.1[evade customs duties]; or when one of these guidelines is determinative, §§2E1.1[racketeering], 2X1.1[attempt or conspiracy], 2X2.1 [aiding and abetting], 2X3.1[accessory after the fact], 2X4.1[misprision of a felony]").

U.S.S.G. §8C2.10, Background ("The Commission has not promulgated guidelines governing the setting of fines for counts not covered by §8C2.1").

U.S.S.G. §8C2.10.

As a general rule, a court may impose a fine of not more than $500,000 when an organization is convicted of a felony, and a fine for misdemeanors ranging from not more than $10,000 to not more than $500,000, 18 U.S.C. 3571(c). These general limitations notwithstanding, a court may impose a fine of not more than twice the gain or loss associated with the offense, 18 U.S.C. 3571(c), (d), and may impose higher fines when Congress has authorized them for a specific crime, 18 U.S.C. 3571(c)(1).

18 U.S.C. 3553.

United State v. Iona Management S.A., 555 F.3d 303, 310 (2d Cir. 2009)(emphasis added)("Iona primarily argues that the District Court erred in its grouping analysis by not following Sentencing Guidelines Section 3D1.2. The District Court, however, was not sentencing pursuant to this section, and was not required to do so because there were no guidelines applicable to the organizational offense at issue. Accordingly, the District Court 'determine[d] an appropriate fine by applying the provisions 18 U.S.C. §§3553 and 3572'"); but see, 18 U.S.C. 3553(a)(4)(".... The court, in determining the particular sentence to be imposed, shall consider ... (4) ... the sentencing range established for—(A) the applicable category of offense committed by the applicable category of defendants as set forth in the [sentencing] guidelines ... ").

U.S.S.G. §8C2.2; United States v. Patient Transfer Service, Inc., 413 F.3d 734, 745 (8^th Cir. 2005).

U.S.S.G. §8C2.3 to §8C2.9.

U.S.S.G. §8C2.3(a)("For each count covered by §8C2.1 (Applicability of Fine Guidelines), use the applicable Chapter Two guideline to determine the base offense level and apply, in the order listed, any appropriate adjustments contained in that [Chapter Two] guideline").

U.S.S.G. §8C2.4. For example, a corporation, Bio-Med Plus Inc., and its operators were recently convicted of mail fraud, wire fraud, money laundering and racketeering in connection with a large scale Medicaid scheme, United States v. Brady, 644 F.3d, 1213, 1302 (11^th Cir. 2011). Mail or wire fraud convictions begin with a base offense level of 6, U.S.S.G. §2B1.1(a)(2). The fraud Guideline calls for additional offense levels based on the amount of the property involved in the fraud. In the Bio-Med case, the scheme involved over $33 million, hence an addition of 22 levels to an offense level of 28, U.S.S.G. §2B1.1(b)(1)(L). A fraud with multiple victims warrants a higher offense level, U.S.S.G. §2B1.1(b)(2)(B). Bio-Med's offense level grew by 4 levels to an offense level of 32 because its fraudulent scheme victimized from than 50 individuals or entities. The receipt of stolen property (+2 offense levels, U.S.S.G. §2B1.1(b)(4)) and sophisticated attempts to avoid detection (+2 offense levels, U.S.S.G. §2B1.1(b)(10)), attributed to the plot, produced a final offense level of 36. The final offense level gave the court a starting point for its calculation of the fine to be imposed as discussed below.

U.S.S.G. §§8C2.5 to 8C2.8.

U.S.S.G. §8C2.5(a).

Points are added for (1) the corporation's involvement in or tolerance of criminal conduct, (2) its history of misconduct, and (3) its involvement in any obstruction of justice; points are subtracted if the corporation has an effective compliance program, and for its acceptance of responsibility, cooperation with authorities, or self-disclosure of criminal misconduct, U.S.S.G. §§8C2.5(b) to 8C1.5(g).

U.S.S.G. §8C2.6.

Id. In the Bio-Med case noted above, "[t]he district court reached a culpability score of 10 based on: (1) a starting score of five pursuant to §8C2.5(a); (2) an increase of two pursuant to §8C2.5(b)(4) because Bio-Med had fifty or more employees, at least one of whom had substantial authority to act on behalf of the organization and participated in, condoned, or was willfully ignorant of the criminal conduct; and (3) an increase of three pursuant to §8C2.5(e) because Bradley III. on behalf of Bio-Med, obstructed justice. A score of 10 corresponds to a minimum multiplier of 2.00 and a maximum of 4.00. A total offense level of 36 corresponds to a fine amount of $45.5 million.... Accordingly, the Guidelines fine range for Bio-Med came to between $91 million and $182 million," United States v. Bradley, 644 F.3d 1213, 1303 (11^th Cir. 2011).

U.S.S.G. §8C2.8("(a) In determining the amount of the fine within the applicable guideline range, the court should consider: (1) the need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, and protect the public from further crimes of the organization; (2) the organization's role in the offense; (3) any collateral consequences of conviction, including civil obligations arising from the organization's conduct; (4) any nonpecuniary loss caused or threatened by the offense; (5) whether the offense involved a vulnerable victim; (6) any prior criminal record of an individual within high-level personnel of the organization or high-level personnel of a unit of the organization who participated in, condoned, or was willfully ignorant of the criminal conduct; (7) any prior civil or criminal misconduct by the organization other than that counted under §8C2.5(c); (8) any culpability score under §8C2.5(Culpability Score) higher than 10 or lower than 0; (9) partial but incomplete satisfaction of the conditions for one or more of the mitigating or aggravating factors set for in §8C2.5 (Culpability Score); (10) any factor listed in 18 U.S.C. §3572(a); and (11) whether the organization failed to have, at the time of the instance offense, an effective compliance and ethics program within the meaning of §8B2.1 (Effective Compliance and Ethics Program). (b) In addition, the court may consider the relative importance of any factor used to determine the range, including the pecuniary loss caused by the offense, the pecuniary gain from the offense, any specific offense characteristic used to determine the offense level, and any aggravating or mitigating factor used to determine the culpability score").

U.S.S.G. §8C3.1(b), (c).

U.S.S.G. §8C2.9.

U.S.S.G. §8C3.3.

U.S.S.G. §8C3.4.

U.S.S.C. §8C4.2.

U.S.S.C. §8C4.3.

U.S.S.C. §8C4.4.

U.S.S.C. §8C4.5.

U.S.S.C. §8C4.6.

U.S.S.C. §8C4.10.

U.S.S.C. §8C4.11.

U.S.S.C. §8C4.1.

U.S.S.C. §8C4.7.

U.S.S.C. §8C4.8.

U.S.S.C. §8C4.9.

U.S.S.G. §8D1.1(a)(7); 18 U.S.C. 3551(c).

Id.

U.S.S.G. §8D1.2(a); 18 U.S.C. 3561(c)(but for not more than one year if the corporation is convicted of an infraction rather than a felony or misdemeanor).

U.S.S.G. §8D1.2(a)(1); 18 U.S.C. 3561(c)(1).

U.S.S.G. §8D1.1(a)(1), (2), (3).

U.S.S.G. §8D1.1(a)(4).

U.S.S.G. §8D1.1(a)(5).

U.S.S.G. §8D1.1(a)(6).

U.S.S.G. §8D1.1(a)(4); 18 U.S.C. 3553(a)(2).

18 U.S.C. 3563(a)(1), U.S.S.G. §8D1.3(a)(1). In the case of a felony conviction and in the absence of extraordinary circumstances, however, the court must require the corporation either to make restitution and do community service. Under extraordinary circumstances, the court may substitute one of the standard discretionary conditions in lieu of restitution or community service, 18 U.S.C. 3563(a)(2), U.S.S.G. §8D1.3(a)(2).

U.S.S.G. §8D1.4(a).

U.S.S.G. §8D1.4(b)(1).

U.S.S.G. §8D1.4(b)(2).

U.S.S.G. §8D1.4(b)(4), (3).

U.S.S.G. §8D1.4(b)(5).

U.S.S.G. §8D1.4(b)(6).

18 U.S.C. 3563(b)(22); U.S.S.G. §8D1.3(c).

18 U.S.C. 3565(a); U.S.S.G. §8F1.1.

18 U.S.C. 3013; U.S.S.G. §8E1.1.

See generally CRS Report RL34138, Restitution in Federal Criminal Cases.

18 U.S.C. 3663A(c)(i); U.S.S.G. §8B1.1(a)(1).

18 U.S.C. 3663A(c)(ii); U.S.S.G. §8B1.1(a)(1).

18 U.S.C. 3663A(c)(ii); 21 U.S.C. 856; U.S.S.G. §8B1.1(a)(1).

18 U.S.C. 3663A(c)(iii); U.S.S.G. §8B1.1(a)(1).

Id.

18 U.S.C. 2248; U.S.S.G. §8B1.1(a)(1).

18 U.S.C. 2259; U.S.S.G. §8B1.1(a)(1).

18 U.S.C. 2264; U.S.S.G. §8B1.1(a)(1). Although it seems unlikely that some of these offenses would be committed the benefit of a corporation thus triggering corporate liability, the Guidelines list them among the offenses for which corporate restitution must be imposed in section 8B1.1(a)(1).

18 U.S.C. 2327; U.S.S.G. §8B1.1(a)(1).

18 U.S.C. 228(d).

18 U.S.C. 2323(c).

21 U.S.C. 853(q).

18 U.S.C. 1593.

18 U.S.C. 3663(a)(1)(A); U.S.S.G. §8B1.1(a)(1). The Guidelines group the offenses triggering discretionary restitution with those triggering mandatory restitution , U.S.S.G. §8B1.1(a)(1)("(a) In the case of an identifiable victim, the court shall offenses—(1) enter a restitution order for the full amount of the victim's loss, if such order is authorized under 18 U.S.C.... §3663, or §3663A").

18 U.S.C. 3663(a)(1); 49 U.S.C. 5124.

18 U.S.C. 3663(a)(1); 49 U.S.C. 46312.

18 U.S.C. 3663(a)(1); 49 U.S.C. 46502.

18 U.S.C. 3663(a)(1); 49 U.S.C. 46504.

18 U.S.C. 3663(a)(1).

18 U.S.C. 3563(b)(2).

18 U.S.C. 3663(a)(1)(A), (3).

18 U.S.C. 3555; U.S.S.G. §§8B1.4, 5F1.4.

U.S.S.G. §8B2.1(a).

U.S.S.G. §8D2.1(b)(1): "Due diligence and the promotion of an organizational culture that encourages ethical conduct and a commitment to compliance with the law within the meaning of subsection (a) minimally require the following: (1) The organization shall establish standards and procedures to prevent and detect criminal conduct."

U.S.S.G. §8D2.1(b)(2): "(A) The organization's governing authority shall be knowledgeable about the content and operation of the compliance and ethics program and shall exercise reasonable oversight with respect to the implementation and effectiveness of the compliance and ethics program. (B) High-level personnel of the organization shall ensure that the organization has an effective compliance and ethics program, as described in this guideline. Specific individual(s) within high-level personnel shall be assigned overall responsibility for the compliance and ethics program. (C) Specific individual(s) within the organization shall be delegated day-to-day operational responsibility for the compliance and ethics program. Individual(s) with operational responsibility shall report periodically to high-level personnel and, as appropriate, to the governing authority, or an appropriate subgroup of the governing authority, on the effectiveness of the compliance and ethics program. To carry out such operational responsibility, such individual(s) shall be given adequate resources, appropriate authority, and direct access to the governing authority or an appropriate subgroup of the governing authority."

U.S.S.G. §8D2.1(b)(3): "The organization shall use reasonable efforts not to include within the substantial authority personnel of the organization any individual whom the organization knew, or should have known through the exercise of due diligence, has engaged in illegal activities or other conduct inconsistent with an effective compliance and ethics program."

U.S.S.G. §8D2.1(b)(4): "(A) The organization shall take reasonable steps to communicate periodically and in a practical manner its standards and procedures, and other aspects of the compliance and ethics program, to the individuals referred to in subparagraph (B) by conducting effective training programs and otherwise disseminating information appropriate to such individuals' respective roles and responsibilities. (B) The individuals referred to in subparagraph (A) are the members of the governing authority, high-level personnel, substantial authority personnel, the organization's employees, and, as appropriate, the organization's agents."

U.S.S.G. §8D2.1(b)(5): "The organization shall take reasonable steps—(A) to ensure that the organization's compliance and ethics program is followed, including monitoring and auditing to detect criminal conduct; (B) to evaluate periodically the effectiveness of the organization's compliance and ethics program; and (C) to have and publicize a system, which may include mechanisms that allow for anonymity or confidentiality, whereby the organization's employees and agents may report or seek guidance regarding potential or actual criminal conduct without fear of retaliation." See also, U.S.S.G. §8D2.1(c): "In implementing subsection (b), the organization shall periodically assess the risk of criminal conduct and shall take appropriate steps to design, implement, or modify each requirement set forth in subsection (b) to reduce the risk of criminal conduct identified through this process."

U.S.S.G. §8D2.1(b)(6): "The organization's compliance and ethics program shall be promoted and enforced consistently throughout the organization through (A) appropriate incentives to perform in accordance with the compliance and ethics program; and (B) appropriate disciplinary measures for engaging in criminal conduct and for failing to take reasonable steps to prevent or detect criminal conduct."

U.S.S.G. §8D2.1(b)(7): "After criminal conduct has been detected, the organization shall take reasonable steps to respond appropriately to the criminal conduct and to prevent further similar criminal conduct, including making any necessary modifications to the organization's compliance and ethics program."

U.S.S.G. §8D1.3; U.S.S.G. §8D1.3 (Commentary).

U.S.S.G. §8D1.3 (Commentary).

U.S.S.G. §8D1.2.

See generally CRS Report 97-139, Crime and Forfeiture.

E.g., 18 U.S.C. 981 (civil forfeiture), 982 (criminal forfeiture); Austin v. United States, 509 U.S. 602, 622 (1993).

U.S.S.G. §§8E1.2, 5E1.4.