The Champion

September/October 2007 , Page 26 

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Is That What I Meant? Litigating Intent in White Collar Crime

By Demosthenes Lorandos

The state of a man’s mind is as determinable
as the state of his digestion.”
Edgington v. Fitzmaurice,
29 Chancery Division 459 (1889)

What do Kenneth Lay, Martha Stewart, Jeffrey Skilling, and Conrad Black have in common? They all intended to do smarmy things. How do we know? The juries told us so. And it was easy for those juries to come to that conclusion. As litigators in white collar crime, we all live in fear of the “you don’t have to know the law to show intent” instruction.1 And let’s not forget about the “he wasn’t paying attention” instruction,2 the “willful blindness” instruction,3 and “‘knowledge’ includes deliberate avoidance of knowledge” — the much feared “ostrich instruction.”4 

Intentionality clearly plays a crucial role in white collar criminal prosecutions. In fact, it is usually a key element of the charged white collar offenses — be it conspiracy, mail fraud, wire fraud, securities fraud, bank fraud, falsifying books and records, insider trad

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