Joined: 31 Jan 2005
|Posted: Wed Sep 25, 2013 9:12 am Post subject: Replacement for Chapter 10 Crimes for game
PENALTIES �PROVIDED� BY GOVT.
U.S. V. OTHER COUNTRIES:
1. Accused presumed innocent until proven guilty.
2. Burden of proof = "BEYOND A REASONABLE DOUBT."
3. Conviction requires unanimous jury.
4. Accused: Provided w/substantial constitutional safeguards during criminal justice process.
DEFINITION OF A CRIME
Any act done by individual in violation of duties owed to society; & breah law provides wrongdoer shall make amends to the public.
SOURCES OF CRIMINAL LAW: PENAL CODES AND REGULATORY STATUTES
Comprehensive penal codes defining detailed activities considered criminal w/penalties imposed for commission.
FEDERAL CRIMINAL CODE DEFINES FEDERAL CRIMES.
ADDITIONALLY: state & federal regulatory, statutes often provide criminal violations and penalties. States and federal legislatures continually adding to list of crimes.
GAMBIT: imposition of fine, imprisonment, both, or some other form of punishment (e.g., probation).
Generally, IMPRISONMENT imposed to:
(1) incapacitate criminal so won�t harm others.
(2) provide a means to rehabilitate the criminal
(3) deter others from similar conduct, and
(4) inhibit personal retribution by the victim.
PARTIES TO A CRIMINAL ACTION
Government = plaintiff, = prosecutor.
Accused =(usually individual or business)defendant. Accused represented = defense attorney. If accused can�t afford = govt. provides free of charge.
CLASSIFICATION OF CRIMES
MOST SERIOUS include crimes that are �MALA IN SE�--= inherently evil.
Most crimes against persons (e.g., murder, rape) and certain business-related crimes (e.g., embezzlement, bribery. Usually punishable by imprisonment. Some jurisdictions, certain felonies (e.g., first-degree murder) punishable by death.
Federal law & some state laws require mandatory sentencing for specified crimes. Many statutes define different degrees of crimes (e.g., first-, second-, and third-degree murder). Each degree �earns� different penalties.
Serious violations of regulatory statutes are also felonies.
LESS SERIOUS than felonies. They are CRIMES �MALA PROHIBITA� not inherently evil but are prohibited by society.
Many crimes against property, such as robbery, burglary, and less serious violations of regulatory statutes, are included. Lesser penalties than felonies. Usually punishable by fines and/or imprisonment for one year or less.
Crimes e.g. trafflc violations, jaywalking, and such are neither felonies nor misdemeanors. Generally punishable by fines. Occasionally, few days of imprisonment imposed.
ELEMENTS OF A CRIME
Two elements MUST be present for person to be found guilty of most crimes:
1. CRIMINAL ACT. Actually performed prohibited act. Called the actus reus (guilty act). E.G.: Killing someone w/o legal jurisdiction Sometimes, omission of act constitutes actus reus. E.G.: Taxpayer under legal duty to file tax return fails to do so.
However, merely thinking about committing a crime is not a crime because no action has been taken.
2. CRIMINAL INTENT. To be found guilty, accused must have possessed requisite state of mind (i.e., specific/general intent) when act was performed. Called: mens rea (evil intent)
SPECIFIC INTENT: Accused purposefully, intentionally, or w/knowledge commits prohibited act.
GENERAL INTENT Showing of recklessness or lesser degree of mental culpability. Each statutes state whether requires showing of specific or general intent. Juries may infer intent from facts and circumstances of case. No crime if requisite mens rea cannot be proven. E.G.: Person accidentally injures another.
Most states provide certain non-intent crimes. E.G.: Involuntary manslaughter often imposed for reckless conduct. E.G. Driver drives too fast (e.g., 20 MPH over limit) on city street; hits and kills pedestrian, most likely would be found guilty of involuntary manslaughter and be sentenced to jail.
REVIEW: ELEMENTS OF AN INTENT CRIME
Actus reus: Guilty act
Mens rea: Evil intent
CRIMINAL ACTS AS THE BASIS FOR TORT ACTIONS
Injured party may bring civil tort action against wrongdoer who�s caused injury during a criminal act. Separate from criminal action. Often: won�t due to judgment proof.
Civil and Criminal Law Compared
Issue Civil Law Criminal Law
Party who brings The plaintiff The government
Trial by jury Yes, except.actions YES
Burden Of proof Preponderance of the Beyond a
Jury Vote Judgment for plaintiff
requires specific jury
vote (e.g., 9 of 12 jurors)
SANCTIONS AND PENALTIES
MONETARY DAMAGES & EQUITABLE REMEDIES (e.g., injunction, specific performance)
IMPRISONMENT, CAPITAL PUNISHMENT, FINE, PROBATION
Martha Stewart Guilty of a Crime
Company: Stewart Living Omnimedia Inc. (Omnimedia). Stewart buil business conglomerate: publishing magazines and cookbooks; selling clothing and home based merchandise; and producing syndicated TV program. So successful when went public in �99, Stewart became instant billionaire.
In �03, friend, Waksal, primary owner of(ImClone), received news U.S. Food & Drug Administration (FDA) not given approval for ImClone to market cancer fighting drug. Waksal received information one day before would be made public. Waksal & number of his family members tried to sell their ImClone stock
Through securities broker, Bacanovic. He also Stewart's stockbroker, Stewart shareholder of ImClone. Bacanovic had his assistant, Faneuil, notify Stewart of Waksal's activities. Stewart sold stock at $58 per share. FDA's negative decision released, stock fell in value. Stewart saved $45,000.
U.S. government investigated substantial selling activity in ImClone stock prior to public announcement, = netted Waksal family & Stewart. Waksal pleaded guilty to insider trading sent to jail. Federal government questioned Stewart she said she had prior $60 "sell order" (to sell the stock if it ever dropped to 60). Bacanovic & Faneuil first collaborated eventually Faneuil reached plea bargain became a witness: $60 sell order story was a lie and cover-up.
U.S. govt. criminal charges against Stewart = criminal conspiracy, lying to federal government, and obstruction of justice. Plead Fifth Amendment not testify at trial. Govt. many witnesses, including Faneulil & several Stewart's friends whom she talked to about sale. One witness: Stewart told her knew of Waksal's trading before she sold & stated, "Isn't it nice to have brokers who tell you these things?" Jury = guilty all charges. Day judgment announced, Stewart's Omnimedia stock plummeted; Stewart lost about $100M in one day. Served four and a half mos. in jail. United States v. Stewart (2004).
1. Did Stewart act ethically in this case?
2. Why do you think Stewart sold her ImClone stock to
save only $45,000?
Initiating and maintaining: both pretrial procedures and the actual trial.
ARREST BY POLICE
Before usually: ARREST WARRANT based on showing probable cause. PROBABLE CAUSE: Substantial likelihood person either committed or about to commit crime.
No time to obtain: (e.g., police arrive during commission of crime; or fleeing scene of crime; or likely evidence will be destroyed), may still arrest. Warrantless arrests also judged by probable cause standard.
BOOKING ADMINISTRATIVE PROCEDURE FOR RECORDING ARREST
After arrest, at police station: fingerprinting, etc.
U.S.S.CT: Officer may make a warrantless arrest pursuant minor criminal offense.
Case One: Arrest Atwater v. Lago Vista, TX
Facts: Texas law requires front-seat drivers and passengers must wear seat belts, and driver must secure any small child riding in front. March �97, Atwater driving w/three-yr-old son and five-yr-old daughter in front seat. None wearing seat belts. Officer pulled Atwater over, handcuffed her, placed her in squad car, drove her to station where she was booked. Pleaded no contest, paid $50 fine. Sued city and officer: Compensatory & punitive damages, alleging 4th.Amendment right to be free from unreasonable seizure violated. Both Dist. ct. and appeals Ct.: against Atwater.
Issue: Does 4th. Amendment permit police make a warrantless arrest pursuant to minor criminal offence?
INDICTMENT OR INFORMATION REQUIRED AGAINST ACCUSED
Formally charged w/ crime before can be brought to trial.
USUALLY: 1) Issuance of grand jury indictment OR
2) magistrate's information statement.
GRAND JURIES BETWEEN 6-24; L.A. COUNTY 23 FIXED PERIOD OF TIME, E.G.: ONE YEAR
EVIDENCE SERIOUS CRIMES, E.G.: murder. Citizens evaluate evidence presented by government. If determines sufficient evidence to hold for trial, issues: INDICTMENT. NOT DETERMINE GUILT.
LESSER CRIMES (e.g., burglary, shoplifting), before magistrate/Judge). If finds enough evidence to hold for trial will issue AN INFORMATION.
IF NEITHER: DISMISSED
After indictment or information:
Before court to be (1) informed of charges; (2) asked to enter plea: GUILTY, NOT GUILTY, OR NOLO CONTENDERE.
NOLO CONTENDERE agrees to imposition of penalty not admit guilt: CANNOT be used as evidence of liability at subsequent civil trial. CORPORATE DEFENDANTS OFTEN ENTER THIS PLEA. GOVT. OPTION OF ACCEPTING OR REQUIRING GUILTY OR NOT GUILTY PLEA.
Accused & government = saves costs, avoids risks of trial, prevents further overcrowding of prisons. Accused admits lesser crime govt. agrees impose lesser penalty or sentence than might have been obtained at trial.
CRIMINAL TRIAL NEEDS UNANIMOUS AGREEEMENT
Guilty DEF. may appeal.
Not Glty.: GOVT. cannot appeal = DOUBLE JEOPARDY
Cannot reach unanimous decision = hung jury. Govt. may retry before new judge and jury.
INTERNET LAW AND INTERNET CRIMES IIP ACT �96, CONGRESS: INFORMATION INFRASTRUCTURE PROTECTION ACT (IIP ACT).
The Internet and Information Age ushered in a whole new world for education, business, and consumer transactions. But with it followed a New rash of cyber crimes. Prosecutors and courts wrestled over how to apply existing laws written in a non-digital age to new internet-related abuses.
Federal computer-related crimes. The IIP Act protection for computers attached to Internet.
THE ACT: Anyone intentionally accessing and obtaining information from protected computer w/o authorization.
NOT REQUIRED: defendant accessed protected computer for commercial benefit. Transmitting computer over Internet/hackers who trespass into Internet-connected computers may be criminally prosecuted. Even merely observing data on protected computer w/o authorization sufficient to meet requirement that defendant has accessed a protected computer.
PENALTIES: include imprisonment for up to 10 years and fines.
The IIP Act gives the federal government a much needed weapon for directly prosecuting cyber-crooks, hackers, and others who enter, steal, destroy, or look at others' computer data without authorization.
COMMON CRIMES AGAINST PROPERTY
Many crimes are committed against business property. These crimes often involve the theft, misappropriation, or fraudulent taking of property. Many of the most important crimes against business property are discussed in the following paragraphs.
COMMON LAW: Taking of P.P. from another person/business by use of fear or force. E.G.: robber threatens physical harm vs. storekeeper unless surrenders contents register. vs. Pickpockets somebody's wallet, not robbery no use of force or fear. ROBBERY W/DEADLY WEAPON considered AGGRAVATED ROBBERY (or ARMED ROBBERY) harsher penalty.
COMMON LAW: Breaking & entering dwelling at night" w/intent to commit felony. Modern penal codes broadened: include daytime thefts from offices, commercial and other buildings. Additionally, "breaking in" element abandoned modern definitions of burglary. SO: Unauthorized entering a building through an unlocked sufficient. AGGRAVATED BURGLARY (or ARMED BURGLARY) stiffer penalties.
COMMON LAW: WRONGFUL & FRAUDULENT TAKING OF ANOTHER PERSON'S PP. Most PP INCLUDING TANGIBLE PROPERTY, TRADE SECRETS, COMPUTER PROGRAMS, and other business property-is subject to larceny. STEALING OF AUTOMOBILES AND CAR STEREOS, PICKPOCKETING, and such are larceny. Neither use of force nor entry of building is required. Some states distinguish between GRAND LARCENY AND PETIT LARCENY. This distinction depends on value of property.
SOME STATES DROPPED DISTINCTION AMONG CRIMES OF ROBBERY, BURGLARY, AND LARCENY. Instead: General crime of theft. Most distinguish between GRAND THEFT PETIT THEFT. Depends value.
RECEIVING STOLEN PROPERTY
Person (1) KNOWINGLY RECEIVES stolen property and (2) INTENDS TO DEPRIVE RIGHTFUL OWNER. Knowledge & intent CAN BE INFERRED from circumstances. Property can be ANY TANGIBLE PROPERTY (e.g., personal property, money, negotiable instruments, stock certificates).
COMMON LAW: MALICIOUS OR WILLFUL BURNING of DWELLING OF ANOTHER. MODERN expansion include BURNING ALL TYPES OF PRIVATE, COMMERCIAL, AND PUBLIC BUILDINGS. E.G.: Owner burns his/own building to collect insurance proceeds can be found liable. If found: Insurance Co. not have to pay insurance proceeds.
OBTAINING PROPERTY FROM ANOTHER, W/CONSENT, INDUCED BY WRONGFUL USE OF ACTUAL OR THREATENED FORCE, VIOLENCE, OR FEAR. E.G.: Threatens expose something about another unless given money or property. TRUTH OR FALSITY OF INFORMATION IMMATERIAL. EXTORTION OF PRIVATE PERSONS = blackmail. EXTORTION OF PUBLIC OFFICIALS = �extortion under color of official right.�
Prone committed by business persons. Usually involve cunning and deceit rather than physical force. Many of the most important white-collar crimes are discussed in the paragraphs that follow.
Written document fraudulently made/altered & change affects legal liability of another person. Counterfeiting, falsifying public records, and materially altering legal documents are examples. One most common: signing another person's signature to a check or changing amount of a check. NOTE signing another person's signature w/o intent to defraud not forgery. E.G. No forgery where one spouse signs other spouse's payroll check for deposit in a joint checking or savings account at the bank.
EMBEZZLEMENT Unknown in common law. Not a statutory crime.
Fraudulent conversion of property by person to whom property entrusted. Typically: by employer's employees, agents, or representatives (e.g., accountants, lawyers, trust officers, treasurers). Often try to cover tracks by preparing false books, records, or entries.
KEY ELEMENT: stolen property ENTRUSTED to embezzler. Differs from robbery, burglary, and larceny, where property is taken by someone not entrusted. E.G.: if a bank teller absconds with money that deposited by depositors. The employer (the bank) entrusted the teller to take deposits from customers.
One of most prevalent forms of white-collar crime. Can be money, property, favors, or anything else of value. Commercial bribery: payment of bribes to private persons and businesses: often referred to as a kickback or payoff. INTENT necessary element. The offeror commits crime of bribery when bribe tendered. Offeree guilty of bribery when s/he accepts. The offeror can be found liable even if person to whom bribe offered rejects.
Landers, purchasing agent, ABC Corporation, charge of purchasing equipment. Brown, sales Rep. company makes equipment offers to pay her 10% kickback if she buys from him. She accepts bribe and orders equipment. Both parties guilty of bribery.
COMMON LAW: Giving/receiving anything of value in corrupt payment for "official act" by public official. Public officials include: legislators, judges, jurors, witnesses at trial, administrative agency personnel, and other government officials. MODERN PENAL CODES also a crime to bribe public officials. E.G.: Developer constructing apartment building cannot pay building inspector to overlook code violation.
FOREIGN CORRUPT PRACTICES ACT (FCPA) [15 U.S.C. �78m].
Well known payment of bribes pervasive in conducting international business.
FCPA: Illegal U.S. companies, or their officers, directors, agents, or employees, to bribe foreign official, foreign political party official, or candidate for foreign political office. Illegal only where meant to influence awarding of new business or retention of continuing business activity.
Imposes criminal liability where pays illegal bribe himself or herself, or supplies payment to third party or agent, knowing it will be used as a bribe. FIRM can be fined: up to $2 million, INDIVIDUAL can be fined up to $100,000 and imprisoned for up to five years.
1988 AMENDMENTS: TWO DEFENSES. Excuses if can show payment lawful unde written laws of that country. Other allows showing payment reasonable and bona fide expenditure related to furtherance or execution of contract. This latter exemption is difficult to interpret.
Some people: U.S. companies placed at disadvantage in international markets where commercial bribery is commonplace and firms from other countries are not hindered by laws similar to the FCPA.
CRIMINAL FRAUD OR DECEIT
Obtaining title to property through deception/ trickery the crime of false pretenses.
E.G.: Anderson, stockbroker, promises Greenberg, prospective investor, will use any money she invests to purchase interests in oil wells. Based on promise, Greenberg invests. Anderson never intended invest. Instead money for personal needs.
MAIL AND WIRE FRAUD Federal law prohibits use of mails or wires (e.g., telegraphs, telephone, the Internet) to defraud another person.
Govt. often prosecutes under these statutes if insufficient evidence to prove real crime that criminal was attempting to commit or did commit. Maximum penalty for mail, wire, and Internet fraud is 20 years in prison.
CYBER IDENTITY FRAUD: IDENTITY THEFT AND ASSUMPTION DETERRENCE ACT OF 1998
Criminalizes identity fraud = a federal felony punishable with prison sentences ranging from 3-25 years.
Taking identity for mostly financial purposes. Today extremely lucrative, earning spoils of another's credit cards, bank accounts, Social Security benefits, and such. New technology-computers & Internet even easier. Victim left w/ funds stolen, dismantled credit history, and thousands of dollars in costs trying to straighten out. FASTEST-GROWING FINANCIAL FRAUD IN AMERICA.
Appoints federal administrative agency, the Federal Trade Commission (FTC), to help victims restore credit and erase impact.
Law enforcement officials suggest the following steps to protect:
1/NEVER PUT YOUR SOCIAL SECURITY NUMBER on any document unless it is legally required.
2/Obtain and review copies of your credit report at least twice each year.
3/Use safe passwords (e.g.) other than family names and birthdays) on bank accounts and other accounts that require personal identification numbers (PINs).
ORGANIZED CRIME CONTROL ACT PART OF THIS IS: THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (RICO) 1980
Originally, RICO intended apply only to organized crime. However, broad language against non-organized crime defendants as well. RICO, both criminal and civil penalties, is one of the most important laws affecting business today.
Federal crime to acquire or maintain interest in, use income from, or conduct or participate in affairs of enterprise through pattern of racketeering activity. Enterprise = corporation, partnership, sole proprietorship, another business or organization) or government. RACKETEERING number of specifically enumerated federal/state crimes, including: gambling, arson, robbery,counterfeiting, & dealing in narcotics. Business-related crimes, such as bribery, embezzlement, mail fraud, and wire fraud, are also considered racketeering. To prove pattern of racketeering, at least two of these acts must be committed by defendant w/in 10-year period. E.G.: committing two different frauds would be considered a pattern.
INDIVIDUAL DEFENDANTS: Can be fined up to $25K per violation, imprisoned up to 20 years, or both. Addition, RICO provides: Forfeiture of any property or business interests (even interests in a legitimate business) gained because of RICO violations. Allows the govt. recover investments made w/monies derived from racketeering activities. The govt. may also seek civil penalties. Include injunctions, orders of dissolution, reorganization of business, and the divestiture of the defendant's interest in an enterprise.
Persons injured private civil action to recover injury to business or property. Successful plaintiff may recover treble damages (3X actual loss) + attorneys' fees.
Two or more enter agreement to commit a crime. Overt act must be taken to further crime, not
have to be committed, however.
E.G.: Two securities brokers agree over the phone to commit securities fraud. Obtain list of potential victims prepare false financial statements necessary. Because they entered into agreement to commit crime and took overt action, guilty of crime of criminal conspiracy even if never carry out. Govt. usually brings criminal conspiracy charges if (1) Defendants have been thwarted in efforts to commit the substantive crime or (2) Insufficient evidence to prove substantive crime.
MONEY LAUNDERING MONEY LAUNDERING CONTROL ACT [18 U.S.C. � 1957]
Criminals: problem: large sums of money w/no record how earned. To "wash" makes it look as though earned legitimately, purchase legitimate businesses run money through & clean it before criminal receives money. Legitimate business "cooked" books showing faked expenditures and receipts: illegal money buried. Restaurants, motels, and other cash businesses make excellent money laundries.
ACT; CRIME TO:
(1) Knowingly engage in monetary transaction through financial institution involving property worth more than $10K. E.G.: includes making deposits, making withdrawals, conducting transactions between accounts, or obtaining monetary instruments such as cashiers' checks, money orders, and travelers' checks from a bank or other financial institution
(2) Knowingly engage in financial transaction involving proceeds of illegal activity. E.G.:includes: buying real estate, automobiles, personal property, intangible assets, or anything else of value w/ money obtained from illegal activities.
Money laundering itself = federal crime. Money washed could have been made from illegal gambling operations, drug dealing, fraud, and other crimes, including white-collar crimes. Persons convicted of money laundering can be fined up to $500,000 or twice value of the property involved, whichever is greater, and sentenced to up to 20 years in federal prison. In addition, violation of the act subjects any property involved in or traceable to offense to forfeiture to the government.
CORPORATE CRIMINAL LIABILITY
Fictitious legal person = legal existence by state after certain requirements met. Cannot act on its own; through agents, such as managers, reps, & employees.
Can corporation be held criminally liable?
Originally = common law lacked the criminal mind (mens rea). Modern = corporate criminal liability. Criminally liable for acts managers, agents, and employees. Cannot be in prison so fines, loss of a license or franchise, etc.
Corporate directors, officers, and employees individually liable crimes personally commit, whether for personal benefit or behalf of the corp. Also: corporate manager can be held criminally liable for criminal activities of subordinates if failed to supervise appropriately. Evolving area of the law.
PROTECTION AGAINST UNREASONABLE SEARCH AND SEIZURE
4th Amendment protects persons and corps from overzealous govt. investigative activities. Permits people be secure in their persons, houses, papers, and effects.
"REASONABLE" SEARCH AND SEIZURE lawful. Search warrants based on probable cause are mostly necessary. States place and scope of authorized search. General searches beyond specified area forbidden.
WARRANTLESS SEARCHES permitted only: (1) incident to arrest, (2) evidence in "plain view," or (3) likely eyidence will be destroyed. Judged by probable cause standard.
EXCLUSIONARY RULE EV EVIDENCE OBTAINED FROM UNREASONABLE SEARCH AND SEIZURE
("FRUIT OF A TAINTED TREE")
Generally prohibited from introduction at trial or administrative hearing. However, freely admissible against other persons. USSCT. created good faith exception to exclusionary rule: Allowing evidence otherwise obtained illegally introduced as evidence if officers who conducted unreasonable search reasonably believed acting pursuant to lawful search warrant.
The following U.S. Supreme Court cases examines reach of the 4th Amendment's protection against unreasonable search and seizure.
Case Two:. Search: Kyllo v. United States
Facts: In 1992, govt agents suspected marijuana being grown in home of Danny Kyllo. Usually requires high-intensity lamps. To determine whether amount of heat emanating was consistent w/ use of such lamps, federal agents used thermal imager in street in front. Concluded growing MJ & found over 100 plants. Indicted: manufacturing mj, violation of federal criminal law. Argued unreasonable search violation 4th Amendment. Kyllo lost at the trial and appeals court levels.
Issue: Is use of a thermal-imaging device aimed at private home from public street a �search� w/in meaning of 4th Amendment?
Very core of 4th = right to retreat into own home; free from unreasonable govt intrusion. With few exceptions whether warrantless search a home is reasonable & hence constitutional must be answered NO!! Other hand: Lawfulness of warrantless visual surveillance of home still preserved. Visual observation = no "search" at all. Further: Aerial surveillance of private homes and surrounding areas not constitute a search.
Here: More than naked-eye surveillance. What limits upon power of technology to shrink realm of guaranteed privacy. Enhancing technology obtaining info re: interior of the home; could not otherwise obtained w/o physical intrusion into constitutionally protected area. This assures preservation of that degree of privacy against govt that existed when 4th Amendment adopted. Information obtained by thermal imager was product of a search.
Case Three:. Search and Seizure: City of Indianapolis v. Edmond
Facts: In August �98, police Indianapolis, began vehicle roadblock checkpoints effort to interdict unlawful drugs. Edmond and Palmer, attorneys, stopped at checkpoint, filed lawsuit behalf of themselves and class of all motorists been stopped or subject to being stopped claim violated 4th Amendment. District court: for Indianapolis; Court of appeals reversed.
Issue: Do checkpoint programs whereby police, w/o individualized suspicion, stop vehicles for primary purpose of discovering and interdicting illegal narcotics, violate the Fourth Amendment?
Legally allows: brief border patrol checkpoints, drunk driving checkpoints, not where primary purpose detect evidence of criminal wrongdoing.
Reason: 4th requires S&S be reasonable. Ordinarily unreasonable in absence of individualized suspicion of wrongdoing.
SEARCHES OF BUSINESS PREMISES
Generally govt no right w/o search warrant. Certain hazardous and regulated industries- e.g.: sellers of firearms, and liquor, coal mines, etc/ subject to warrantless searches if proper statutory procedures met.
FEDERAL ANTITERRORISM ACT AFTERMATH OF 9/11 ASSISTS GOVERNMENT IN DETECTING, INVESTIGATING, AND PROSECUTING TERRORISTS.
� SPECIAL INTELLIGENCE COURT. Issues: expanded wiretap orders & subpoenas to obtain evidence of suspected terrorism.
� NATIONWIDE SEARCH WARRANT: obtain evidence of terrorist activities.
� ROVINGWIRETAPS. On suspects of involvement in terrorism: any telephone or electronic device used may be monitored.
� DETENTION OF NONCITIZENS. Govt authority detain nonresident in US up to 7 days w/o filing charges. Nonresidents certified by court as a threat to national security may be held up to six months w/o trial.
PRIVILEGE AGAINST SELF INCRIMINATION AND OTHER PROTECTIONS
5th Amendment: No person "shall be compelled in any criminal case to be a witness against himself" although non-testimonial evidence (e.g., fingerprints, body fluids) may be required. "TAKEN THE FIFTH." Federal cases; extended to state and local criminal cases by D.P. CLAUSE OF 14TH AMEND.
OnlY natural persons accused of crimes. Artificial persons: E.G.: Corps & partnerships cannot raise. SO: Business records of corporations and partnerships not generally protected from disclosure, even if incriminate individuals who work foR business. HOWEVER, certain "private papers" of businesspersons (such as personal diaries) are protected.
MIRANDA RIGHTS MIRANDA V. ARIZONA, 1966
5TH Amendment�s privilege against self-incrimination not useful unless criminal suspect has knowledge of right. Before s/he is interrogated:
� You have the right to remain silent.
� Anything you say can and will be used against you
� You have the right to consult a lawyer and to have a lawyer present with you during interrogation.
� If you cannot afford a lawyer, a lawyer will be appointed free of charge to represent you.
MIRANDA UPHELD: IN 2000.
ATTORNEY-CLIENT PRIVILEGE V AMENDMENT
To obtain proper defense, accused must be able to tell their attorney facts about case w/o fear attorney called as witness against. EITHER THE CLIENT OR ATTORNEY CAN RAISE. To apply: Info must be told in capacity as an attorney, not as a friend or neighbor, etc.
OTHER PRIVILEGES OF 5TH. AMENDMENT:
(1) psychiatrist/psychologist-patient privilege, (2) priest/minister/rabbi-penitent privilege,
(3) spouse-spouse privilege, and
(4) parent-child privilege.
Some exceptions. E.G.: Spouse/child may testify against the accused.
USSSCT: NO ACCOUNTANT-CLIENT PRIVILEGE under federal law. Accountant could be called as a witness in cases involving federal securities laws, federal mail or wire fraud, or other federal crimes. Approx. 20 states enacted special statutes create accountant-client privilege. An accountant cannot be called as a witness against a client in a court action in a state where these statutes are in effect. Federal courts do not recognize these laws, however.
IMMUNITY FROM PROSECUTION
Govt may want info from suspect who asserted 5th. So they offer immunity from prosecution. Agrees not to use any evidence given by that person. Once granted: loses right to assert privilege. Often given when lead to prosecution of other, more important criminal suspects. PARTIAL GRANTS OF IMMUNITY ALSO AVAILABLE. E.G.:, immunity from prosecution for serious crime, not lesser crime, SUSPECT MUST AGREE TO A PARTIAL GRANT OF IMMUNITY.
PROTECTION AGAINST DOUBLE JEOPARDY
Same crime. However: Same criminal act involves several different crimes, may be tried for each of crimes w/o violating Double Jeopardy Clause. E.G.: Kills two people during robbery. May be tried for two murders and the robbery.
Same act violates laws of two or more jurisdictions, each jurisdiction may try the accused. E.G.: Accused kidnaps person in one state brings victim into another state, violates laws of two states and federal government. Thus, three jurisdictions can prosecute the accused w/o violating the Double Jeopardy Clause.
RIGHT TO A PUBLIC JURY TRIAL 6TH AMENDMENT RIGHTS
(1) Tried by impartial jury of state or district in
which alleged crime was committed,
(2) To confront (cross-examine) witnesses against,
(3) To have assistance of lawyer, and
(4) To have a speedy trial.
PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT 8TH AMENDMENT
E.G.: Prohibits torture. Does not prohibit capital punishment.
Crimes: 1. CRIMINAL LIABILITY OF CORPORATIONS
Representatives of hotels, restaurants, hotel and restaurant supply companies, and other businesses located in Portland, Oregon, organized an association to attract conventions to their city. Members were asked to make contributions equal to 1 percent of their sales to finance the association. To aid collections, hotel members, including Hilton Hotels Corporation, agreed to give preferential treatment to suppliers who paid their assessments and to curtail purchases from those who did not. This agreement violated federal antitrust laws. The United States sued the members of the association, including Hilton Hotels, for the crime of violating federal antitrust laws. Can a corporation be held criminally liable for the acts of its representatives? If so, what criminal penalties can be assessed against the corporation? United States v. Hilton Hotels Corp., 467 F2d 1000, 1972 U.S. App. Lexis 7414 (9th Cir.)
Crimes: 2. FORGERY
Evidence showed that there was a burglary in which a checkbook belonging to Mary J. Harris, doing business as The Report Department, and a check encoder machine were stolen. Two of the checks from that checkbook were cashed at the Citizens & Southern National Bank branch office in Riverdale, Georgia, by Joseph Leon Foster, who was accompanied by a woman identified as Angela Foxworth. The bank teller who cashed the checks testified that the same man and woman cashed the checks on two different occasions at her drive up window at the bank and that on both occasions they were in the same car. Each time the teller wrote the license tag number of the car On the back of the check. The teller testified that both times the checks and the driver's license used to identify the woman were passed to her by the man driving and that the man received the money from her. What crime has been committed? Foster v. State o/Georgia, 387 S.E.2d 637,1989 Ga.App. Lexis 1456 (Ga. App.)
Crimes: 3. EXTORTION
On February 3, 1987, the victim (Mr. X) went to the premises at 42 Taylor Terrace in New Milford, Connecticut, where his daughter and her husband lived. Lisa Percoco, who was Gregory Erhardt's girlfriend, was at the residence. Mr. X and Percoco were in the bedroom, partially dressed, engaging in sexual activity, when Erhardt entered the room and photographed them. He then informed Mr. X that unless he procured $5,000 and placed it in a mailbox at a designated address by 8 P.M. that night, Erhardt would show the photographs to Mr. X's wife. Mr. X proceeded to make telephone arrangements for the procurement and placement of the money according to Erhardt's instructions. If the money were paid, what crime would have been committed? State 0/ Connecticut v. Erhardt, 553 A.2d 188, 1989 Conn.App. Lexis 21 (Conn. App.)
Crimes: 4. CRIMINAL FRAUD
In 1978, Miriam Marlowe's husband purchased a life insurance policy on his own life, naming his wife as the beneficiary. After Marlowe's husband died in a swimming accident in July 1981, she received payment on the policy. Marlowe later met John Walton, a friend of a friend. He convinced her and her representative that he had a friend who worked for the State Department and had access to gold in Brazil and that the gold could be purchased in Brazil for $100 an ounce and sold in the United States for $300 an ounce. Walton convinced Miriam to invest $25,000. Instead of investing the money in gold in Brazil, Walton opened an account at Tracy Collins Bank in the name of Jeffrey McIntyre Roberts and deposited Miriam's money in the account. He later withdrew the money in cash. What crime is Walton guilty of? State o/Utah v. Roberts, 711 P.2d 235,1985 Utah Lexis 872 (Utah).
Crimes: 5. BRIBERY
In 1979, the city of Peoria, Illinois, received federal funds from the Department of Housing and Urban Development (HUD) to be used for housing rehabilitation assistance. The city of Peoria designated United Neighborhoods, Inc. (UNI), a corporation, to administer the funds. Arthur Dixon was UNI's executive director, and James Lee Hinton was its housing rehabilitation coordinator. In these capacities, they were responsible for contracting with suppliers and tradespeople to provide the necessary goods and services to rehabilitate the houses. Evidence showed that Dixon and Hinton used their positions to extract 10 percent payments back on all contracts they awarded. What crime have they committed? Dixon and Hinton v. United States, 465 U.S. 482, 104 S.Ct. 1172, 1984 U.S. Lexis 35 (U.S.Sup.Ct.)
Crimes: 6. Administrative Search Lee Stuart Paulson owned the liquor license for My House, a bar in San Francisco. The California Department of Alcoholic Beverage Control is the administrative agency that regulates bars in that state. The California Business and Professions Code, which the department administers, prohibits "any kind of illegal activity on licensed premises." On February 11, 1988, an anonymous informer tipped the department that narcotics sales were occurring on the premises of My House and that the narcotics were kept in a safe behind the bar on the premises. A special department investigator entered the bar during its hours of operation, identified himself~ and informed Paulson that he was conducting an inspection. The investigator, who did not have a search warrant, opened the safe without seeking Paulson's consent. Twenty-two bundles of cocaine, totaling 5.5 grams, 'were found in the safe. Paulson was arrested. At his criminal trial, Paulson challenged the lawfulness of the search. Was the warrantless search of the safe a lawful search? People v. Paulson, 216 CaLApp.3d 1480, 265 CaLRptr. 579, 1990 CaLApp. Lexis 10 (CaLApp.)
Crimes: 7. SEARCH WARRANT
The Center Art Galleries-Hawaii sells artwork. Approximately 20 percent of its business involves art by Salvador Dali. The federal government, which suspected the center of fraudulently selling forged Dali artwork, obtained identical search warrants for six locations controlled by the center. The warrants commanded the executing officer to seize items that were "evidence of violations of federal criminal law." The warrants did not describe the specific crimes suspected and did not stipulate that only items pertaining to the sale of Dali's work could be seized. There was no evidence of any criminal activity unrelated to that artist. Are these search warrants valid? Center Art Galleries-Hawaii, Inc. v. United States, 875 F.2d 747,1989 U.S. App. Lexis 6983 (9th Cir.)