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69-861: United States v. Vampire Nation , 451 F.3d 189, is a 2006 decision of the United States Court of Appeals for the Third Circuit regarding the Federal Sentencing Guidelines and asset forfeiture . A three-judge panel unanimously affirmed the conviction and sentence of Frederick Banks, a Pittsburgh man, on numerous felony charges resulting from fraudulent schemes carried out over the Internet. The case takes its title, which has been singled out as memorable and included among lists of amusingly titled cases, from one of Banks' aliases, an electronic music group of which he

138-403: A search warrant and combed Banks' house, coming up with "computers, blank CDs, a CD duplicating machine, and empty boxes from Microsoft and IBM software". On the computers were "images of the front and back sides of Microsoft software boxes". Banks continued offering software for sale on Amazon and later he approached VioSoftware, a Colorado reseller from whom he had purchased Microsoft software

207-411: A Microsoft antipiracy specialist that Banks' copies of their products were unauthorized, that they were probably covered by the company's copyrights and that he had been sent cease and desist letters was enough to establish that the products were copyrighted. An existing circuit precedent held that jury instructions that described the elements of the offense in the disjunctive when the indictment used

276-488: A company's business decisions, including those in operations, marketing, business development , finance, human resources , etc. The use of the CEO title is not necessarily limited to describing the head of a company. For example, the CEO of a political party is often entrusted with fundraising, particularly for election campaigns. In some countries, there is a dual board system with two separate boards, one executive board for

345-407: A contemplated departure from the guidelines and admonished district courts to state explicitly whether any adjustments to sentences they made outside the ranges fixed by the guidelines were variances or departures. The federal mail fraud statute authorized civil forfeiture as a punishment for any conviction, and criminal in personam forfeiture for "special circumstances" frauds that victimized

414-424: A corporation or company typically reports to the board of directors and is charged with maximizing the value of the business, which may include maximizing the profitability , market share , revenue , or another financial metric. In the nonprofit and government sector, CEOs typically aim at achieving outcomes related to the organization's mission, usually provided by legislation . CEOs are also frequently assigned

483-447: A court to notify lawyers in advance of a contemplated departure, did not impose the same requirement on a variance. The forfeiture was likewise permitted since the mail fraud statute provided for civil forfeiture and, while it explicitly provided for criminal forfeiture only in cases where a financial institution was victimized, he did not find that Congress intended to limit it only to those cases via "a chain of cross-references." Under

552-402: A facade of charm and eloquence. Traits such as courage and risk-taking, generally considered desirable, are often found alongside these psychopathic tendencies. Tara Swart, a neuroscientist at MIT Sloan School of Management , has suggested that individuals with psychopathic traits thrive in chaotic environments and are aware that others do not. As a result, they may intentionally create chaos in

621-512: A financial institution. As part of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Congress had added language allowing federal prosecutors to request, upon presentment of the indictment or information bringing the charges, criminal forfeiture for any crime punishable by civil forfeiture where criminal forfeiture was not specifically authorized. The government had done so in this case, but Banks argued that

690-462: A formal delegation of authority regarding business administration . Typically, responsibilities include being an active decision-maker on business strategy and other key policy issues, as well as leader , manager, and executor roles. The communicator role can involve speaking to the press and to the public, as well as to the organization's management and employees; the decision-making role involves high-level decisions about policy and strategy. The CEO

759-477: A grand jury returned a five-count indictment against Banks that would be amended and superseded twice over the next year. Ultimately, Banks was charged with three counts of mail fraud and one count each of criminal copyright infringement , uttering and possessing counterfeit or forged securities, money laundering and witness tampering , all felonies . The case went to trial for ten days in October 2004. Banks

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828-429: A jury convicted him of mail fraud , criminal copyright infringement and several other charges. The judge sentenced Banks to five years in prison, varying the sentence upward by three months from the maximum range specified by the sentencing guidelines. An in personam criminal forfeiture judgment was also entered against him. Banks appealed to the Third Circuit, citing those among seven possible grounds for reversing

897-442: A similar conclusion about the applicability of Rule 32(h) to contemplated variances prior to Booker . Since the guidelines were now advisory, a court could consider grounds other than those outlined for departures, including the factors in the statute, which had not been repealed. "Accordingly, given that defendants are aware that courts will consider the broad range of factors set forth in [the law] at sentencing, we perceive none of

966-599: A source of criticism following a dramatic rise in pay relative to the average worker's wage . For example, the relative pay was 20-to-1 in 1965 in the US, but had risen to 376-to-1 by 2000. The relative pay differs around the world, and, in some smaller countries, is still around 20-to-1. Observers differ as to whether the rise is due to competition for talent or due to lack of control by compensation committees. In recent years, investors have demanded more say over executive pay. Lack of diversity amongst chief executives has also been

1035-504: A source of criticism. In 2018, 5% of Fortune 500 CEOs were women. In 2023 the number rose to 10.4% of for Women CEO's of Fortune 500 companies . The reasons for this are explained or justified in various ways, and may include biological sex differences, male and female differences in Big Five personality traits and temperament, sex differences in psychology and interests, maternity and career breaks, hypergamy , phallogocentrism ,

1104-744: Is authorized in connection with a violation of an Act of Congress" Van Antwerpen pointed to the federal money laundering statute, which Banks had also been convicted of violating. It included a long list of offenses under which civil forfeiture was permitted, which further included by reference a similar list of crimes in the Racketeer Influenced and Corrupt Organizations Act that specifically included mail fraud without limiting it to mail fraud affecting financial institutions. He read "this chain of cross-references" to "explicitly permit criminal forfeiture for general mail fraud, not just for mail fraud against financial institutions." The text of

1173-402: Is often used in lieu of chief executive officer. Business publicists since the days of Edward Bernays (1891–1995) and his client John D. Rockefeller (1839–1937) and even more successfully the corporate publicists for Henry Ford , promoted the concept of the " celebrity CEO". Business journalists have often adopted this approach, which assumes that the corporate achievements, especially in

1242-484: Is simply not in the statute." To resolve the conflicting interpretations, Van Antwerpen began with the plain meaning of CAFRA. Criminal forfeiture is not permitted unless (1) a substantive provision exists for civil forfeiture of the criminal proceeds at issue; and (2) there is no specific statutory provision that permits criminal forfeiture of such proceeds. Thus, we read the statute ... [as permitting] criminal forfeiture when no criminal forfeiture provision applies to

1311-418: Is sometimes included as one such subordinate executive officer, but, as suggested by Anthony Johndrow, CEO of Reputation Economy Advisors, it can also be seen as "simply another way to add emphasis to the role of a modern-day CEO – where they are both the external face of, and the driving force behind, an organization culture". In the US, the term "chief executive officer" is used primarily in business, whereas

1380-427: Is tasked with implementing the goals, targets and strategic objectives as determined by the board of directors. As an executive officer of the company, the CEO reports the status of the business to the board of directors, motivates employees, and drives change within the organization. As a manager, the CEO presides over the organization's day-to-day operations. The CEO is the person who is ultimately accountable for

1449-542: Is to prevent a conflict of interest and too much power being concentrated in the hands of one person. In the United States, the board of directors (elected by the shareholders ) is often equivalent to the supervisory board, while the executive board may often be known as the executive committee (the division/subsidiary heads and C-level officers that report directly to the CEO). In the United States, and in business,

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1518-552: The Dictionary says that the use of "CEO" as an acronym for a chief executive officer originated in Australia , with the first attestation being in 1914. The first American usage cited is from 1972. The responsibilities of an organization's CEO are set by the organization's board of directors or other authority, depending on the organization's structure. They can be far-reaching or quite limited, and are typically enshrined in

1587-721: The Eastern District of Pennsylvania had denied a government request for criminal forfeiture in United States v. Croce , a mail fraud case involving three defendants who had charged Blue Cross/Blue Shield $ 14 million for goods and services they never provided, following Banks' logic. But in the Second Circuit , Judge Arthur Donald Spatt of the Eastern District of New York had in a similar case of textile manufacturers who defrauded insurers and creditors dismissed that argument as "add[ing] qualifying language that

1656-677: The Federal Reporter and began to publish them in a separate reporter, the Federal Supplement . The Federal Reporter organizes court opinions within each volume by the date of the decision, and includes the full official text of the court's opinion. West editors add headnotes that summarize key principles of law in the cases, and Key Numbers that classify the decisions by topic within the West American Digest System . Only decisions designated by

1725-466: The Federal Reporter is an unofficial reporter and West is a private company that does not have a legal monopoly over the court opinions it publishes, it has so dominated the industry in the United States that legal professionals, including judges, uniformly cite to the Federal Reporter for included decisions. Approximately 30 new volumes are published each year. The Federal Reporter has always published decisions only from federal courts lower than

1794-747: The Supreme Court of the United States , but not the Supreme Court itself. Decisions of the U.S. Supreme Court are published in one official reporter and two unofficial reporters, which are, respectively, the United States Reports , Supreme Court Reports (a National Reporter System member published by West), and the United States Supreme Court Reports, Lawyers' Edition . Beginning in 1932, West stopped publishing federal district court cases in

1863-622: The Third Circuit Court of Appeals . He filed under the name of Vampire Nation, an electronic musical ensemble of which he was the sole regular member that had performed in the Pittsburgh area for several years. He alleged that seven potentially reversible errors had occurred during his trial: A three-judge panel of circuit judges Marjorie Rendell , Franklin Van Antwerpen and senior circuit judge Joseph F. Weis, Jr.

1932-588: The United States that is published by West Publishing and a part of the National Reporter System . It begins with cases decided in 1880; pre-1880 cases were later retroactively compiled by West Publishing into a separate reporter, Federal Cases . The fourth and current Federal Reporter series publishes decisions of the United States courts of appeals and the United States Court of Federal Claims ; prior series had varying scopes that covered decisions of other federal courts as well. Though

2001-423: The "special circumstances" provisions of the mail fraud statute controlled, barring it from having that request granted where the fraudulent scheme had not victimized a financial institution. Since it was a question of law , the court exercised plenary review . Van Antwerpen considered two district court opinions that came to opposite conclusions on the question. Within the Third Circuit, Judge Stewart Dalzell of

2070-440: The 'unfair surprise' considerations that motivated the enactment of Rule 32(h)," Van Antwerpen wrote. Chondos, he added, had conceded the point during oral argument. "[R]equiring advance notice of "any ground" beyond the factors set forth in [statute] would undoubtedly prove to be unworkable." He ended that portion of the opinion by affirming another recent Third Circuit holding that continued, post- Booker , to require prior notice of

2139-535: The CEO is also the president, is the vice president (VP). An organization may have more than one vice president, each tasked with a different area of responsibility (e.g., VP of finance, VP of human resources). Examples of subordinate executive officers who typically report to the CEO include the chief operating officer (COO), chief financial officer (CFO), chief strategy officer (CSO), chief marketing officer (CMO) and chief business officer (CBO). The public relations -focused position of chief reputation officer

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2208-479: The Second Circuit has also ruled that Lexis can copy the page numbers from the Federal Reporter to allow for proper citation without violating West's copyright. Chief executive officer CEOs find roles in various organizations, including public and private corporations , nonprofit organizations , and even some government organizations (notably state-owned enterprises ). The governor and CEO of

2277-613: The Third Circuit and elsewhere, Van Antwerpen noted, held clearly that the government was entitled to ask for, and receive, a forfeited amount equal to what it determined to be the full proceeds of the criminal activity without regard to the defendant's actual holdings as of the sentencing. "[A]dopting Banks's position would permit defendants who unlawfully obtain proceeds to dissipate those proceeds and avoid liability for their ill-gotten gains," he observed. Addressing Banks' other claims, which he had not raised at trial, Van Antwerpen found no plain error. The government's unrebutted testimony from

2346-528: The UK, chief executive and chief executive officer are used in local government , where their position in law is described as the "head of paid service", and in business and in the charitable sector . As of 2013 , the use of the term director for senior charity staff is deprecated to avoid confusion with the legal duties and responsibilities associated with being a charity director or trustee, which are normally non-executive (unpaid) roles. The term managing director

2415-525: The appeals court was limited to plain error as its standard of review , Van Antwerpen wrote. Under that standard, the alleged error of the lower court would have to be very obvious and serious enough to have conceivably affected the outcome of the proceeding. Van Antwerpen began by noting that Rule 32(h) had been passed by Congress in response to the Supreme Court's 1991 holding in Burns v. United States that courts did not have discretion to depart upward from

2484-422: The arena of manufacturing, are produced by uniquely talented individuals, especially the "heroic CEO". In effect, journalists celebrate a CEO who takes distinctive strategic actions. The model is the celebrity in entertainment, sports, and politics – compare the " great man theory ". Guthey et al. argues that "...these individuals are not self-made, but rather are created by a process of widespread media exposure to

2553-617: The case of a partnership , an executive officer is a managing partner, senior partner, or administrative partner. In the case of a limited liability company , an executive officer is any member, manager, or officer. Depending on the organization, a CEO may have several subordinate executives to help run the day-to-day administration of the company, each of whom has specific functional responsibilities referred to as senior executives, executive officers or corporate officers. Subordinate executives are given different titles in different organizations, but one common category of subordinate executive, if

2622-428: The circuit's jurisdiction had held that the criminal forfeiture provisions of the mail fraud statute only applied to cases where a financial institution had been among the victims, but that decision was not appealed and thus did not constitute precedent . Since Banks had not raised the objection that the court had failed to provide prior notice of the contemplated upward variance at the time of his actual sentencing,

2691-467: The conjunctive, as Banks' had, did not constructively amend the indictment. Likewise, he upheld the witness tampering instruction since it had clearly referenced any proceeding including a grand jury, and Banks' reference to a subpoena in his email to Do indicated he was aware of the ongoing grand jury proceeding. Van Antwerpen considered Banks' claim that he had been improperly denied his request to represent himself under plenary review. He interpreted

2760-473: The conviction. Foremost among them, he argued that notice of the possibility of variance was required prior to the sentencing and that the district court lacked the statutory authority to order the criminal forfeiture. Judge Franklin Van Antwerpen wrote for the panel, which ruled for the government on all the issues. Other circuits had ruled on the variance issue, and he joined four of them in holding that Federal Rule of Criminal Procedure 32(h), which required

2829-408: The course of the trial, until after he was sentenced, Banks could not raise it on appeal. The following year the Third Circuit heard United States v. Ausburn , in which a Pittsburgh-area police detective convicted of using a telephone and computer to engage in illicit sexual activity with a minor received a 12-year sentence, twice that suggested by the guidelines. He, too, had not received notice that

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2898-553: The court was contemplating this variance, and raised that issue on appeal. Unlike Banks, he claimed this violated the Due Process Clause . Writing for the panel, Judge Louis H. Pollak of the Eastern District of Pennsylvania concluded that the reasoning behind Vampire Nation defeated that claim as well. Federal Reporter The Federal Reporter ( ISSN   1048-3888 ) is a case law reporter in

2967-578: The courts as "for publication—those with full precedential value for which citation in court filings is permissible—are included in the Federal Reporter . "Unpublished" decisions of the U.S. Courts of Appeals may be found in the Federal Appendix , also published by West. New opinions are first issued by West in weekly pamphlets called "Advance Sheets", to be eventually supplanted by the final hardbound, successively numbered volumes. Three series of Federal Reporter have been published to date, with

3036-461: The crime charged against a particular defendant but civil forfeiture for that charged crime is nonetheless authorized. In Croce , Dalzell had said it was "highly unlikely that, in passing the broad language of [CAFRA], Congress intended to silently remove the limitations on criminal forfeiture in mail fraud cases." While that "presents a plausible construction of the statute, we are not persuaded," Van Antwerpen commented. CAFRA stated that "a forfeiture

3105-450: The day-to-day business and one supervisory board for control purposes (selected by the shareholders). In these countries, the CEO presides over the executive board and the chairperson presides over the supervisory board, and these two roles will always be held by different people. This ensures a distinction between management by the executive board and governance by the supervisory board. This allows for clear lines of authority. The aim

3174-407: The denied motion, one of many Banks filed during the trial, as to equivocal to have been worthy of serious consideration by the court, more an expression of Banks' frustration that the prosecutor could only talk to his attorney and not to Banks directly. Lastly, since Banks did not file his motion for Judge Thomas Hardiman to recuse himself over the complaint, one of many pro se motions he made over

3243-506: The executive officers are usually the top officers of a corporation, the chief executive officer (CEO) being the best-known type. The definition varies; for instance, the California Corporate Disclosure Act defines "executive officers" as the five most highly compensated officers not also sitting on the board of directors. In the case of a sole proprietorship , an executive officer is the sole proprietor. In

3312-562: The existence of old boy networks , tradition, and the lack of female role models in that regard. Some countries have passed laws mandating boardroom gender quotas. In 2023 Rockefeller Foundation awarded a grant to Korn Ferry to research strategies and then action a plan to help more women to become CEO's. There are contentious claims that a significant number of CEO's have psychopathic tendencies, often characterized by power-seeking behavior and dominance. These individuals can often conceal their ruthlessness and antisocial behavior behind

3381-485: The factors that had always been present in the statute governing sentencing. Before Booker , defendants had had firmer reasons to expect a sentence within the guidelines. Hence, Rule 32(h) was passed after Burns , requiring that courts give prior notice of a contemplated departure "on any grounds." Van Antwerpen quoted the Seventh Circuit , which had recalled the "unfair surprise" that led to Burns in reaching

3450-450: The fourth series started in June 2021. The Federal Reporter , including its supplementary material, is also available at websites including OpenJurist.org , on CD-ROM compilations, and on West's online legal database, Westlaw . Because individual court cases are identified by case citations that consist of printed page and volume numbers, the electronic text of the opinions incorporates

3519-411: The guidelines, which then had the force of law, without notifying the parties. But since Booker had held that the guidelines were advisory, courts were freer to adjust sentences as long as they started from a range derived from the guidelines. "Thus, district courts continue to consider all grounds properly advanced by the parties at sentencing, as they did in the past," the judge wrote. That included all

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3588-422: The money laundering statute." Congress had also removed the language restricting criminal forfeiture to mail and wire frauds affecting financial institutions from the list of crimes for which forfeiture was authorized, he noted. "In our view, Van Antwerpen concluded, "Congress's expansion of the crimes for which civil forfeiture is available taken in conjunction with its decision to enact [legislation] which broadened

3657-462: The names Rick Burgess and John Cain, Banks started offering Microsoft software for resale on Amazon.com in 2002. Amazon's policy, which Banks was made aware of when he opened the account, required that all such products offered for sale through the site by third parties such as himself be the full retail version, not copies or duplicates. Banks sold several copies of software over the next year. "These buyers," Van Antwerpen recounted, "suspected that

3726-646: The next day, and told Banks via email that he had told the FBI all about their arrangement. In reply Banks pleaded with him not to tell the grand jury anything as "this would all be for nothing." Instead of returning what he had bought from VioSoftware, Banks shipped some of it to his other customers. What he did return later on was damaged. Do's contact with the FBI led to another search of Banks' house in September, yielding computers with evidence of software piracy and various Microsoft products and packaging. A week later,

3795-445: The page numbers of the printed volumes with "star pagination" formatting—the numbers are boldfaced within brackets and with asterisks prepended (i.e.,  [*4] ) to stand out from the rest of the text. Though West has copyright over its original headnotes and keynotes, the opinions themselves are public domain and accordingly may be found in other sources, chiefly Lexis , Westlaw's primary competitor. The U.S. Court of Appeals for

3864-409: The point that their actions, personalities, and even private lives function symbolically to represent significant dynamics and tensions prevalent in the contemporary business atmosphere". Journalism thereby exaggerates the importance of the CEO and tends to neglect harder-to-describe broader corporate factors. There is little attention to the intricately organized technical bureaucracy that actually does

3933-535: The range of crimes for which criminal forfeiture was available, can only be viewed as intent to make criminal forfeiture essentially coextensive with civil forfeiture." In an earlier ruling in Croce , Dalzell had similarly held that a criminal forfeiture judgement for more than the defendant had was not authorized by the statute and contrary to the history of how forfeiture had evolved in American law. Other precedent in

4002-774: The role of the main manager of the organization and the highest-ranking officer in the C-suite . The term "chief executive officer" is attested as early as 1782, when an ordinance of the Congress of the Confederation of the United States of America used the term to refer to governors and other leaders of the executive branches of each of the Thirteen Colonies . In draft additions to the Oxford English Dictionary published online in 2011,

4071-497: The site. Though the order should have filled approximately 50 boxes, only 5 boxes were shipped by Banks via UPS . Even more suspiciously, the CDs in the boxes bore the name of IBM . Action Software was not able to recoup the nearly $ 50,000 it had laid out since the order was cash on delivery . When Banks denied any wrongdoing, Action Software contacted the FBI . In May 2003 the FBI obtained

4140-547: The software they purchased from Banks was illegally copied because the compact discs ("CDs") they received from Banks contained generic white CDs with fake labels and fake package inserts." Some complained to Amazon, and at the beginning of the following year Amazon terminated the "Cain and Burgess" account for violating its policies. Banks opened a new account under the name Mark Howard and resumed his activities. Court documents identified one buyer as Action Software, Inc., which bought $ 294,859.00 worth of Microsoft products through

4209-407: The statutes may have been ambiguous when read by themselves, allowing for Dalzell's Croce interpretation. But Van Antwerpen believed the statute's legislative history justified the court's more expansive reading in the instant case. A House committee's report on the bill had explicitly stated that its goal was "to extend proceeds forfeiture (both civil and criminal) to the crimes enumerated in

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4278-409: The term "executive director" is used primarily in the not-for-profit sector. These terms are generally mutually exclusive and refer to distinct legal duties and responsibilities. The CEO is the highest-ranking executive in a company, making corporate decisions, managing operations, allocating resources, and serving as the main point of communication between the board of directors and the company. In

4347-521: The unanimous panel. Banks' first two claims had been questions of first impression for the circuit. Other appellate circuits had considered whether Rule 32(h) required notice of contemplation for a variance in the wake of the Supreme Court 's holding the previous year in United States v. Booker that the Federal Sentencing Guidelines were purely advisory, and come to differing conclusions in mostly unpublished opinions. A district court under

4416-457: The work. Hubris sets in when the CEO internalizes the celebrity and becomes excessively self-confident in making complex decisions. There may be an emphasis on the sort of decisions that attract the celebrity journalists . Research published in 2009 by Ulrike Malmendier and Geoffrey Tate indicates that "firms with award-winning CEOs subsequently underperform, in terms both of stock and of operating performance". Executive compensation has been

4485-802: The workplace. This perspective is explored in the book Snakes in Suits , co-authored by Robert D. Hare . However, Scott Lilienfeld has argued that the attention given to psychopathy in the workplace by both the media and scholars has far exceeded the available scientific evidence. Emilia Bunea, writing in Psychology Today , has linked psychopathic traits in managers to workplace bullying , employee dissatisfaction, and turnover intentions. Despite this, Bunea cautions that excessive worry about supposed psychopathic managers could discourage individuals from pursuing careers in corporations and deter employees from addressing issues with difficult bosses. In

4554-495: The year before. He persuaded Warren Do, the company's chief executive officer , to sell him nearly $ 60,000 worth of Microsoft products COD. Banks paid with a forged check. When Do found out, he asked for the software back and told Banks he had been talking to the FBI. The two agreed that Do would return the check if Banks returned the software. Do was subpoenaed by a grand jury in the Western District of Pennsylvania

4623-495: Was assigned to the case. They heard oral arguments in May 2006. By that time Banks had retained new counsel, David Chontos, who argued his case to the court; Laura Schleich Irwin of the U.S. Attorney's office spoke for the government. A month after hearing arguments, the panel handed down its decision, ruling for the government on all the issues presented. Banks' convictions and sentence were upheld. Circuit Judge Van Antwerpen wrote for

4692-493: Was convicted on all counts. At the sentencing hearing five months later, Judge Thomas Hardiman added three months to the 46–57 month advisory range derived from the Federal Sentencing Guidelines , imposing a prison sentence of 60 months followed by three years of supervised release. The judge also entered an in personam criminal forfeiture judgment against Banks for $ 70,708.59, the total amount he had made from his crimes. Acting on his own behalf , Banks filed an appeal with

4761-419: Was the sole regular member. He had filed the appeal under that name while representing himself . Banks had been offering discounted versions of Microsoft software online under different names as an Amazon.com reseller. His products were either pirated or deficient, costing some customers thousands of dollars, and eventually one complained to the FBI , who arrested Banks after a short investigation. At trial

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