AGENDA

Chair for the Day: Hon. John R. Steer
Vice Chair
U.S. Sentencing Commission

8:30 - 8:45 Welcome and Introductions

Welcome to the Law School
Hon. Michael E. O'Neill
Commissioner, U.S. Sentencing CommissionAssistant
Professor, George Mason University School of Law

8:45 - 9:15 Keynote Address

9:15 - 10:30 Plenary Session I: What Social Science Can Contribute to Sentencing Policy for Economic Crimes

10:30 - 10:45 Morning Break

10:45 - 11:15 Plenary Session II: Brief Overview of the "Economic Crime Package"

11:15 - 12:30 Plenary Session III: The Nature and Severity of Punishment for Economic Crimes; Determinants of Offense Seriousness and Offender Culpability

12:30 - 2:00 Lunch (attendees are on their own)

2:00 - 3:30 Concurrent Breakout Sessions: Revising the Definition of Loss

Group One: Main topic: Should the core definition of "loss" be based on principles of causation?

Secondary topics: (1) The special problem of interest. (2) Should costs of investigation and prosecution of the government and victims be excluded from loss, even if reasonably foreseeable?

Lead facilitator:
Frank O. Bowman, III, Esq.
Associate Professor
Indiana University School of Law
Indianapolis, IN

Assist. facilitators:
Judy Goldstein Smith, Esq.
Assistant U.S. Attorney, E.D. PA

Justin A. Thornton, Esq.
Washington, DC

Group Two: Main topic: Should the core definition of "loss" be based on principles of causation?

Secondary topics: Other special problems in causation -- Does multiple causation need to be addressed and, if so, how?

Lead facilitator:
John D. Cline, Esq.
Freedman, Boyd, Daniels, Hollander
Goldberg & Cline, P.A.
Albuquerque, NM

Assist. facilitators:
Vicki Portney , Esq.
Office of Policy and Legislation
U.S. Department of Justice

Judge J. Phil Gilbert

Group Three: Main Topic: Is "loss" a gross or net concept, and if net, what crediting rules should be adopted?

Secondary topics: (1) Particular crediting problems in regulatory offenses where, for example, the defendant falsely represented that a product was approved by the regulatory agency or fraudulently obtained approval? (2) How should crediting be handled in cases involving diversion of government program benefits?

Lead facilitator:
Joshua R. Hochberg, Esq.
Chief, Fraud Section
U.S. Department of Justice

Assist. facilitators:
James E. Felman, Esq.

Gregory T. Wallance, Esq.
Kaye, Scholer, Fierman, Hays, & Handler, L.L.P.
New York, NY

Group Four: Main Topic: Is "loss" a gross or net concept, and if net, what crediting rules should be adopted?

Secondary topics: (1) Particular crediting problems in investment schemes, particularly "Ponzi" schemes; (2) items of "de minimis value" to the victim.

Lead facilitator:
T. Mark Flanagan, Jr., Esq.
McKenna & Cuneo, L.L.P.
Washington, DC

Assist. facilitators:
Michael Goldsmith, Esq.
Professor, J.P. Reuben Clark
School of Law
Brigham Young University

Jonathan Rusch, Esq.
Special Counsel for Fraud Prevention
U.S. Department of Justice

Group Five: Main Topic: Is "loss" a gross or net concept, and if net, what crediting rules should be adopted?

Secondary topics: The problem of timing -- when to measure both the value of the property of which the victim was originally deprived, collateral pledged, and the property returned by the defendant to the victim? (2) How to handle the valuation and crediting of unlicensed professional services?

Lead facilitator:
Miriam A. Krinsky, Esq.
Assistant U.S. Attorney, C.D. CA

Assist. facilitators:
L. Barrett Boss, Esq. Asbill, Junkin, Moffitt & Boss, Chartered
Washington, DC

Catharine M. Goodwin, Esq.
Assistant General Counsel
Administrative Office of the U.S. Courts

Group Six: Main topic: How should "loss" be defined in the case of inchoate or partially completed offenses?

Secondary topics: (1) Should "intended loss" be discounted in some way because it never really happened? (2) How should intended loss be factored into the overall determination of loss? For example, should loss be based on the greater of actual and intended loss, or should it be based on the sum of actual loss plus intended loss that did not occur?

Lead facilitator:
Hon. Julie E. Carnes
U.S. District Court , N.D. GA
Former Sentencing Commissioner

Assist. facilitators:
Thomas L. Hutchison, Esq.
Federal Defenders Training Group

Jonathan J. Wroblewski, Esq.
Acting Director, Policy and Legislation
U.S. Department of Justice

Group Seven: Main topic: How should "loss" be defined in the case of inchoate or partially completed offenses?

Secondary topics: (1) Should intended loss include impossible or highly improbably harms (like "sting" operations)? (2) Should a defendant's gain ever be used as a measurement of "loss"? If so, when? Should "gain" have independent significance, or should it be used only when "loss" is difficult to determine? (3) Should the fact that a defendant had only a small or non-existent gain be the basis for an encouraged downward departure?

Lead facilitator:
David F. Axelrod, Esq.
Vorys, Sater, Seymour and Pease, L.L.P.
Columbus, OH

Assist. facilitators:
Thomas E. Zeno, Esq.
Executive Assistant U.S. Attorney

Marc Zwillinger, Esq.
Kirkland and Ellis
Washington, DC

3:30 - 3:45 Break and Transition to Plenary Session

3:45 - 5:00 Plenary Session IV: Major Issues Related to the Determination of "Loss" as a Measure of Offense Seriousness and Offender Culpability

5:00 Adjournment

5:15 Reception: Arlington Hilton and Towers, Arlington, Virginia

6:15 Dinner: Arlington Hilton and Towers

Keynote Address
Norman R. Augustine
Chairman, Executive Committee
Lockheed Martin Corporation

Chair for the Day: Commissioner Michael O'Neill

In light of the recent attention to the role of technology and criminal activity, this component of the economic crimes symposium could provide a forum for discussing the implications of changing technology on law enforcement generally and sentencing policy in particular.

8:30 - 9:15 Keynote Address

9:15 - 9:45 Plenary Session V: Background on New Technology Offenses

Survey Data on New Technology Offenses by Computer Security Institute

9:45 - 10:15 Plenary Session VI: Applying the Guidelines to New Technology Offenses

10:15 - 10:30 Break

10:30 - 12:00 Plenary Session VII: Understanding New Technology Offenses

12:00 - 1:45 Concurrent Breakout Sessions and Working Lunch

Common Issues for Breakout Sessions

• What harms are caused by new technology offenses?
• Are these harms exaggerated?
• What can be done to stop or minimize the impact of those harms?
• What are the implications for sentencing policy?

Group One: Hacking/Viruses/Interrupted Computer Service Intrusions/Privacy

Group Two: Intellectual Property/Copyright Infringement

Group Three: Economic Espionage

Group Four: Consumer Fraud via the Internet

Group Five: Securities Fraud

1:45 - 2:00 Break/return to plenary session

2:00 - 3:15 Plenary Session VIII: Sentencing Implications of New Technology Offenses

3:15 Concluding Remarks and Adjournment

Chair Diana E. Murphy