Part 1: Criminal Case Brief
Name of case
U.S. v. Madoff, 08-MAG-02735
It should be noted that Bernard Madoff’s scandal attracted several lawsuits. Some of the main cases include SIPC v. Bernard L. Madoff Investment Securities, SEC v. Madoff, and U.S. v. Madoff. This discussion will focus on U.S. v. Madoff, 08-MAG-02735.
Year the crime was committed
Being a Ponzi scheme where investors had invested significant amounts of money over a long period of time, it is estimated that Madoff commenced the fraud in the 1980s. Indeed, in the words of Henshaw (2014), “investigators believe that Madoff’s fraudulent activities extend back to perhaps the early 1980s, and it is possible that his firm was never really a legitimate business” (109).
Place the crime was committed
Investors into Madoff’s investment company came from all over the world and from as many as 136 countries (Cohn, 2018). In essence, a significant percentage of the said victims came from the U.S. New York City, however, was the principle place of business for Bernard L. Madoff Investment Securities.
Who was the perpetrator?
The perpetrator of this investment scandal, which has been branded one of the largest Ponzi schemes in history, was Bernard Madoff. In addition to being the founder of the investment company that served as the frontage of the scam (i.e. Bernard L. Madoff Investment Securities LLC), Madoff was also the company’s chairman.
Who was the victim?
Madoff’s victims included thousands of investors. By some accounts, “as many as 37,000 people…” had invested in Bernard L. Madoff Investment Securities (Cohn, 2018). Other victims included a number of foundations and charities.
List the elements of the crime
The apparent elements of the crime in this case are actus reus (criminal act), mens rea (criminal mind), and causation. When it comes to actus reus, Dauglas, Burgess, Burgess, and Ressler (2011) point out that “before a person may be convicted and punished for a crime, the prosecution must present evidence that the person (acting as a principal, accessory, or accomplice) committed a criminal act as defined by statute” (48). In the case of Madoff, he pleaded guilty to all charges leveled against him during his appearance in a plea proceeding. Madoff was charged with 11 federal crimes including, but not limited to, money laundering, wire fraud, investment adviser fraud, securities fraud, and perjury.
When it comes to mens rea, there has to be criminal intent. According to Henshaw (2014) following a house call by the FBI, Madoff was asked by Agent Theodore Cacioppi whether he perhaps had any innocent explanation concerning the purported Ponzi scheme he had presumably been running. Madoff’s answer was short: “there is no innocent explanation” (Henshaw, 2014, p. 302).
Lastly, with regard to the element of causation, Klotter (as cited in Dauglas, Burgess, Burgess, and Ressler, 2011) points out that “for one to be guilty of a crime, his act or omission must have been the proximate cause thereof” (49). Being the key participant in the scandal, Madoff engaged in criminal acts as has been highlighted above (see actus reus) and was fully aware that he was running a fraudulent enterprise – which means that his conduct was effectively the cause of those crimes for which he was charged.
What penal code was violated?
18 USC Ch. 47
Explain the punishment attached to the offense.
All the 11 charges Madoff was charged with carried a maximum sentence of 150 years. The term consisted of “20 years on each of Counts 1, 3, 4, 5, 6, and 10, 5 years on each of Counts 2, 8, 9, 11, and 11, and 10 years on count 7” (Suk, 2017).
One page summary of the incident
Born in 1938, Bernard Madoff rose to become one of America’s best known hedge fund investment managers. At some point, he even served as NASADQ chairman. However, by age 71, Madoff had been found guilty of running one of the largest Ponzi schemes in history. It all started sometimes in the 1980s when by promising investors into his firm high and steady returns, Madoff was able to attract significant deposits worth of client funds – and thereafter falsify trading activities by way of filing false SEC returns and making fraudulent foreign transfers (Henshaw, 2014). Madoff...…organization. As Zalman (2017), points out, the policy influence of the Innocence Project has been impressive. Some of the reforms that have been undertaken in this direction include, but they are not limited to, “state laws giving inmates access to DNA evidence; federal grants assisting post-conviction DNA searches; more states enacting exoneree compensation laws; increased compensation for wrongfully convicted federal prisoners..” etc. (Zalman, 2017).
As has been indicated in Figure 1 below, dozens of convictions in the U.S. have been overturned as a consequence of inconclusive DNA evidence. I am of the opinion that more could be done in an attempt to remedy instances of wrongful convictions. Simple reforms to the system could be undertaken in this regard. In addition to efforts like the Innocence Project, police departments can also play an active role in seeking to minimize wrongful convictions. This they could do by, amongst other things, adopting a culture of continuous learning – in which case instances of wrongful convictions in the past are used as learning opportunities to prevent wrongful convictions in the future.
Figure 1: DNA Testimony and the Exoneration of Wrongfully Convicted Americans (Column Five, 2013)
Conclusion
In the final analysis, it should be noted that wrongful convictions impact not only those who are wrongly convicted, but also the entire justice system. With every wrongful conviction, the public faith in the ability of the criminal justice system to dispense justice fairly and in a reliable manner is shaken. Further, wrongful convictions impact public safety. This is more so the case given that convicting an innocent person for a crime he or she did not commit means that the real criminal still roams freely and probably continues to commit crimes. Towards this end, therefore, the relevance of reigning in wrongful convictions cannot be overstated. Winning the war against wrongful convictions will, however, require a multifaceted approach roping in both the justice system and organizations like the Innocence Project. Whereas organizations such as the Innocent Project push for the exoneration of those already convicted wrongly, police departments could embrace approaches that could ensure that no innocent person is sent to jail.
References…
References
Cohn, S. (2018). The Stories of Madoff's Victims Vary Widely, as the Fraud Continues to Unwind 10 Years Later. Retrieved from https://www.cnbc.com/2018/12/10/the-stories-of-madoffs-victims-vary-widely-a-look-10-years-out.html
Column Five (2013). The Path to Innocence for Wrongly Convicted Americans [Digital image]. Retrieved from https://www.good.is/infographics/infographic-the-path-to-innocence-for-wrongly-convicted-americans#open
Dauglas, J., Burgess, A.N., Burgess, A.G. & Ressler, R.K. (2011). Crime Classification Manual: A Standard System for Investigating and Classifying Violent Crimes. Hoboken, NJ: John Wiley & Sons.
Gross, S.R., O’Brein, B.O., Hu, C. & Kennedy, E.H. (2014). Rate of False Conviction of Criminal Defendants Who are Sentenced to Death. PNAS, 111(20), 7230-7235.
Henshaw, J.M. (2014). An Equation for Every Occasion: Fifty-Two Formulas and Why They Matter. Baltimore, Maryland: JHU Press.
Leo, R.A. (2016). The Criminology of Wrongful Conviction: A Decade Later. Journal of Contemporary Criminal Justice, 33(1), 170-176.
Suk, J. (2017). Sentencing Transcript in U.S. v. Madoff. Retrieved from https://h2o.law.harvard.edu/collages/44935
Turvey, B.E. & Cooley, C.M. (2014). Miscarriages of Justice: Actual Innocence, Forensic Evidence, and the Law. New York, NY: Academic Press.
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