Chapter 8

CRIME

Additional ONE!

Assignment:

YOU

PICK

1. Research: Corporate Crime Find a newspaper or magazine article involving crime committed by a business or corporate executive. What are the economic costs of the (alleged) crime? What penalties can the state impose for the crimes? Are these penalties too harsh or too weak when compared to penalties for street crime? How should the law deal with the defendants conduct? 2. Research: Computer Crime Find a newspaper or magazine article involving a computer crime, such as online fraud, online identity theft, or use of sites such as Craigslist and MySpace to perpetrate crimes. What new issues and/or obstacles are raised when crime is committed online? What new problems might the computer raise for law enforcement? 3. Field Work: Criminal Court Visit a criminal session of a local trial court and observe court proceedings for a minimum of two hours. You should attempt to find a criminal trial, sentencing, or pre-trial motions hearing. Sit, observe, and compare what you see with the images youve formed of criminal court from the media.

Chapter 8 Overview
Chapter Theme Criminal behavior extends far beyond the street crime that is fodder for television dramaswhite collar crime has a greater economic impact than street crime. Criminal law differs in important ways from civil law, the subject of most of the text: the state prosecutes the wrongdoer, the wrongdoer can face lengthy imprisonment or death, and rights embedded in the Constitution protect individuals accused by the state of criminal behavior. Approaching Criminal Law Criminal law is a popular topic. You have been exposed to it, primarily through media, for most of your lives. Your knowledge and interest tend to focus on street crime. The text introduces a balanced view, spending a number of pages on crimes that harm business and crimes committed by businesses.

Crime, Society, and Law

Rationale of Punishment The text lists four rationales for punishment: restraint, deterrence, retribution, rehabilitation. Prison reform gained currency in the early 1970s following the prisoner rebellion at the Attica Correctional Facility in New York, only to peak after about a dozen years. In-our class meeting, please remind me to ask you about these four rationales. I will ask you to evaluate them, so you might want to look online for some data supporting your opinion.

The Prosecutions Case

Mens Rea Students are often confused by mens rea. How does the state prove criminal intent? The distinction between actus reus and mens rea may lead you to believe that separate proof is required for each, or that mens rea requires proof of a defendants subjective intent. As the text makes crystal-clear on p. 177, for most crimes the prosecution proves criminal intent by proving that the defendant committed the forbidden act. For example, in Millers trial for criminal assault for smashing a beer bottle over Buds
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head, the prosecution proves Millers intent by proving that he purposely picked up the bottle and hit Bud with it. The prosecution need not prove what was actually going on in Millers mind. Subjective intent is not relevant to the prosecutions case (usually). Defenses: Insanity Again from media exposure, you likely possess wildly inaccurate views of the insanity defense. Most people will grossly overstate how often defendants use it and how often it is successful. You will also fail to understand its moral basis: that the state should not impose criminal penalties on those who are not responsible for their acts. The following case provokes considerable discussion. You Be the Judge: Bieber v. People1, p. 178

Facts: Donald Bieber walked up to a truck in which William Ellis was sitting and shot Ellis, whom he did not know, in the back of his head. He threw Elliss body from the truck and drove away. Shortly before and after the killing, Bieber encountered various people in different places. He sang God Bless America and the Marine Hymn to them and told them he was a prisoner of war and was being followed by communists. He said he had killed a communist on War Memorial Highway. The police arrested him. Bieber had a long history of drug abuse, including amphetamines, and dealt drugs as an adult. Several years before the homicide, Bieber feared he would hurt someone and voluntarily entered a hospital for treatment for mental impairment. He was later released into a long-term drug program. Bieber was charged with first degree murder. He pleaded not guilty by reason of insanity. An expert witness testified that he was insane, suffering from amphetamine delusional disorder (ADD), a recognized psychiatric illness resulting from long-term use of amphetamines and characterized by delusions. At trial, Biebers attorney argued that he was not intoxicated at the time of the crime but that he was insane due to ADD. The trial court refused to instruct that Bieber could be legally insane due to ADD, and the jury found Bieber guilty of first degree murder. He appealed. You Be the Judge: May a jury find that a defendant with ADD is legally insane? Your Holding and Its Explanation:

Crimes That Harm Business

Identity Theft Case: United States v. Dragon2, p. 184 Facts: Shalon Dragon was convicted of identity theft, and sentenced to 44 months in prison. He appealed claiming the sentence was too harsh. Issue: Did Dragons identity theft warrant this sentence? Holding: Yes, judgment affirmed. Dragon and Durham were stopped by officers after the officer received a complaint about a black Lexus, and then observed a black Lexus driving erratically. After pulling the car over, the officer questioned Durham about the Macys bags in the back seat. During the questioning, Durham changed his story about the bags. Dragon and Durham were arrested after a check revealed that they both had two outstanding warrants. A search of the car revealed the following: several
1 2

856 P.2d 811, 1993 Colo. LEXIS 630 Supreme Court of Colorado, 1993 471 F.3d 501, Third Circuit Court of Appeals, 2006.

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fake New York State non-driver identification cards with pictures of Durham and Dragon, but using different names; records from Mount Sinai Medical Center listing names that matched those on the identification cards, plus addresses, birth date, and social security numbers; receipts from Macys in New Jersey, New York, and Pennsylvania; nineteen boxes of Timberland boots; five Macys shopping bags containing new merchandise; two cellular phones, and twenty-eight small glassine bags. Dragon confessed to a scheme whereby Durham obtained personal information from patients at Mount Sinai hospital, and they both obtained false identification cards using the patient information. The pair them used the identification cards to charge merchandise and gift cards to the real account-holders at Macys stores in New Jersey, New York, and Pennsylvania. The District Court imposed a 44-month sentence, noting the complexity of the scheme and the harm caused to victims of identity theft. Although the court acknowledged Dragons request for more lenient sentence, in imposing the higher sentence the court emphasized Dragons long history of fraudulent criminal conduct and the fact that Dragon had been given a second chance by various courts over and over again. Because of his failure to take advantage of this leniency, the District Court thought it was necessary to sentence Dragon to a serious term of imprisonment. The Court also noted that based on the record, it was clear that the District Court gave careful consideration to the higher sentence, and the Appellate must afford that decision great deference because the trial court is in the best position to determine the appropriate sentence. Question: What is identity theft? Answer:

Question: How does identify theft occur? Answer: Question: Is that what occurred in this case? Answer: Question: Will the court order Dragon to repay the victims of his crime? Indeed, does the court have the power to order restitution to victims? Answer:

Question: Why did the court make a point of saying that the trial court was in the best position to impose a sentence in his case? Answer:

Crimes Committed by Business

Case: Commonwealth v. Angelo Todesca Corp.3, p. 185 Facts: Brain Gauthier was an experienced truck driver who worked for Todesca, a paving company. Gauthier noticed that the back-up alarm on the truck he was driving was broken. He reported it to the company, and the mechanic realized that the alarm needed to be placed, but there were non in stock. The company told Gauthier to continue driving the truck without the alarm.
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446 Mass. 128, 842 N.E.2d 930, Supreme Court of Massachusetts, 2006.

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About a month later, Gauthier and other Todesca drivers were delivering asphalt to a work site at an entrance to a mall. A police officer directed mall traffic and the construction vehicles. The trucks had to back through the intersection. All of the other truckers had back-up alarms. When it was Gauthiers turn to back up, he struck and killed the officer. The state charged the company with motor vehicle homicide. The jury found the company guilty and the judge imposed a fine of $2,500. Issue: Could the company be guilty of motor vehicle homicide? Holding: Yes, conviction affirmed. According to the court, in order to find a corporation guilty, the Commonwealth must prove that Gauthier was in a position to act on behalf of the corporation, and that he was acting on behalf of Todesca at the time he committed the criminal act. Todesca argues that a corporation can never be found guilty of motor vehicle homicide because a corporation cannot operate a motor vehicle. However, by that logic, according to the court, a corporation would never be guilty of any crime. Only human agents, acting on behalf of the corporation, are capable of operating a motor vehicle. Nevertheless, the court has consistently held that a corporation may be criminally liable for the acts of its agents, if the agents are acting within the scope of their employment and on behalf of the corporation. Here, it clear that the back-up alarm on Gauthiers truck was not working properly at the time of the collision. Although an alarm is not required by law, Todescas safety policy requires alarms on all of its trucks. Gauthiers violation of this safety policy is negligent, for which Todesca could be held liable. Also, Todescas policy was to install back-up alarms on all of its trucks. The other Todesca trucks at the site had working alarms. The jury could have inferred that the victim, a veteran police officer, knew that Todescas policy was to have back-up alarms on their trucks, and that the victim expected to hear the alarm when the truck backed-up. The jury could also have inferred that an alarm on Gauthiers truck would have alerted the victim that the truck was moving in reverse in time for the victim to have gotten out of the way, and that the victim did not realize Gauthiers truck was backing up because he did not hear the alarm. Question: The court answers two entirely separate questions in this case. What are they? Answer:

Question: Todesca wants to court to read the law strictly. What does this mean? Answer: Question: What did the court think about that argument? Answer: Question: If the employee commits the criminal act, why is it fair to hold the corporation liable for the employees conduct? Answer:

Question: A corporation cannot go to jail. What criminal penalties do courts impose on corporations? My Answer: A corporation convicted of a crime typically will face a fine, -- money paid to the state. If individuals have been harmed by a corporations crime, they would receive payment only if the court ordered the corporation to pay restitution to the victims of a crime. The victims could also bring civil lawsuits against the corporation and seek money damages.

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Money Laundering Cases and Prosecutorial Ethics Federal prosecutors have sharply increased the number of people they charge with money laundering. Is this because more people are funneling drug money out of the country? Not necessarily, argue defense lawyers. They say that prosecutors are now routinely adding on money laundering charges to cases that used to be routine fraud cases. For example, a medical supply company bills the federal government for prosthetic devices that it never delivered. Formerly, that would have been a simple Medicare fraud case. Today, though, it is likely to be a Medicare fraud and money laundering case. Prosecutors in such a case argue that the money obtained illegally from the federal government is used to invest in and maintain a legitimate business, and that is money laundering. If the medical supply company uses money obtained from fraudulent bills to pay the rent on its company headquarters, it has laundered the money. What is the big deal? Time in prison! A simple fraud conviction typically results in a sentence of five years or less; a money laundering conviction can increase the penalty to 20 years in prison. In addition, a prosecutor who tacks on a money laundering charge puts extra pressure on the defendant to plea bargain, because the penalty for a conviction could be so high. Defense lawyers claim that this practice is unethical, in that Congress intended stiff money laundering penalties for big-time drug dealers who gravely damage our country by importing harmful substances. A small business dealer who cheats once or twice should not be treated like a drug kingpin. Prosecutors respond that they are ethically required to charge the most serious provable crime, and that Congress wrote the money laundering statute broadly in order to discourage all fraud, not just drug-related offenses. If you find this topic interesting, you can ask to discuss it in class. If not, I am just including this information to help you understand the processes of criminal prosecution and defense.

Case: United States v. Kennard 4, p. 189 Facts: The reverend Abraham Kennard bilked hundreds of churches out of millions of dollars through a phony grant scheme. Abraham created the Network International Investment Corporation and then approached churches and other nonprofits with an offer: for every $3,000 in membership fees that an organization paid to the Network, the Network would award $500,000 in grants. Abraham told investors that the grants were possible because he had secured wealthy investors who would provide financing, and that the Network expected to earn a profit from its Christian resorts. More than 1,600 churches and other nonprofits paid Abraham over $8.7 million. Abraham deposited the money into an escrow account in the name of his lawyer, and then transferred the money into another account in the name of Promotional Times International, Ltd., which was controlled by Abrahams brother Laboyce Kennard. The investors never received their money and Abraham was found guilty of various crimes. Laboyce was found guilty of money laundering. He appealed, arguing there was insufficient proof that he knowingly laundered money. Issue: Was there sufficient evidence that Laboyce knowingly laundered money? Holding: Yes, conviction affirmed. Laboyce claims that there was not enough evidence for a jury to find beyond a reasonable doubt either the existence of a criminal agreement or his knowing participation in it. To convict Laboyce on the money laundering conspiracy charge, the prosecution had to prove that some agreement existed to launder the proceeds of Abrahams fraud scheme, and that Laboyce knowingly participated in that agreement. The extent of Laboyces knowledge of the details in the conspiracy does not matter if the prosecution can show that he knew the essential objectives of the conspiracy. There was sufficient evidence to prove that Laboyce knowingly participated in the agreement to launder the proceeds from Abrahams fraud. Laboyce set up the Promotional account and made large deposits to that account of cashiers checks from Abraham and checks drawn on the escrow account.
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472 F.3d 851, 11th Circuit Court of Appeals, 2006.

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Laboyce made most of the withdrawals from the Promotional account including cashiers checks made payable to Abraham. Laboyce was also involved in Network events. For example: Laboyce went with Abraham to a Network meeting in Charlotte, North Caroline at which Abraham gave Network members fake checks instead of the promised grant money; Laboyce videotaped Abraham at a fake groundbreaking ceremony for a Network resort which was used to hold off member complaints; Laboyce worked security at a Network meeting where Abraham told the members their grants would be delayed again; and Laboyce was present at a meeting where Abraham told him that an FBI investigation of the Network led to a seizure of the escrow account. This evidence, according to the court, was enough for a jury to find beyond a reasonable doubt that Laboyce knowingly participated in the conspiracy to launder the proceeds of the fraud. Question: So, after reading the information inserted prior to this case and reading this case, how would you answer this question: What is money laundering? Answer: Money laundering is _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ Question: How did the money laundering occur here? Answer:

Question: If Laboyce did not commit the fraud, what crime did he commit? Answer:

NOTE: Conspiracy to launder money involves an agreement to launder money, and Laboyces knowing and voluntary participation in that agreement.

Constitutional Protections
The Fourth Amendment Exclusionary Rule Many people have a fundamental conceptual problem with understanding the exclusionary rule: it only applies to incriminating evidence. They would, presumably, support a (non-sensical) rule that excluded non-incriminating evidence seized during an illegal search, but they believe that if incriminating evidence is found, how can a search be illegal? It would, of course, serve no constitutional purpose to exclude from trial evidence that has no bearing on a defendants guilt. The issue is to help those who stumble over this fact understand why courts created the exclusionary rule. One can start by not calling an illegal search a technical violation or technical mistake. We do not consider governments seizure of a private residence without compensation to be a technical violation of the due process clause, or banning of peaceful political speech to be a technical violation of the First Amendment. Question: How can it possibly make sense to exclude legitimate evidence because a police officer made a mistake in getting a warrant? Aren't we letting the criminal go free because the constable blundered? Answer:

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Question: Does the Supreme Court think that all police want to abuse the average citizen? Answer:

Question: I havent done anything wrong and am not worried about the police smashing in my doors in the middle of the night. Why should I care about the exclusionary rule? Answer:

Question: The difference between a lawful search or arrest and an unlawful one is often a warrant. What is so special about a warrant? Answer.

Question: What might happen if there was no requirement for probable cause? Answer:

Question: What is wrong with being searched if you don't have anything to hide? Answer:

Question: How many people go free because of the exclusionary rule? Answer: Very few. As the text reports, most studies have shown that less than 1 percent of those prosecuted go free because evidence is excluded. Courts deny the great majority of motions to suppress, and in those few cases where they are allowed, the prosecution generally has additional evidence sufficient to convict. Under the fruit of the poisonous tree doctrine, the prosecution just cannot use other evidence that they would not have found had the police not illegally searched. The Fifth Amendment Double Jeopardy Question: What does double jeopardy mean? Answer: Question: Perhaps you recall reading about cases where people were prosecuted by a state and by the federal government for the same offense. Why doesnt that violate double jeopardy? Answer:

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Question: Is that fair? Answer: Question: O. J. Simpson was acquitted after the most highly publicized trial in history, yet he was then sued by the families of the victims. Didnt that violate double jeopardy? Answer:

Note: A defendant is prosecuted for killing a woman and her two children. He is found not guilty. Over 20 years later DNA evidence establishes (with over a 99.9% degree of certainty) that he raped the woman. Can he be prosecuted again? Well, while we would normally argue that he could not, he was. At the time of the offense, he was an officer in the U.S. military. As a veteran retired on full benefits (although that does not really matter) and because the actions took place during his time in service, he was court-marshaled by the military, which can rule that the defendant is guilty and deserves the death penalty! The Eighth Amendment Cruel and Unusual Punishment Case: Ewing v California5, p. 199 Facts: California passed a three strikes law, dramatically increasing sentences for repeat offenders. A defendant with two or more serious convictions, who was convicted of a third felony, had to receive an indeterminate sentence of life imprisonment. Such a sentence required the defendant to actually serve a minimum of 25 years, and in some cases much more. Gary Ewing, on parole from a 9-year prison term, stole three golf clubs worth $399 each, and was prosecuted. Because he had prior convictions, the crime, normally a misdemeanor, was treated as a felony. Ewing was convicted and sentenced to 25 years to life. He appealed, claiming that the sentence violated the Eighth Amendment. Issue: Did Ewings sentence violate the Eighth Amendment? Holding: No. Excerpts from Justice OConnors opinion: When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. The Eighth Amendment does not prohibit California from making that choice and precedent establishes that States have a valid interest in deterring and segregating habitual criminals. According to a recent report, approximately 67 percent of former inmates released from state prisons were charged with at least one "serious" new crime within three years of their release. In particular, released property offenders like Ewing had higher recidivism rates than those released after committing violent, drug, or public-order offenses.
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538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 United States Supreme Court, 2003

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Critics have doubted the law's wisdom, cost-efficiency, and effectiveness in reaching its goals. This criticism is appropriately directed at the legislature, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme. In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the "triggering" offense: it is in addition the interest in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law. Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons. Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or parole. Ewings sentence, albeit a long one, reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. Question: What are three strikes laws? Answers: These statutes establish mandatory, very long sentences for a criminal convicted of a third felony. Question: How does the law decide whether punishment is cruel and unusual? Answer: In In re Lynch6 the California Supreme Court stated a penalty offends the proscription against cruel and unusual punishment when it is 'so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. Question: 25 years seems disproportionate for shoplifting. Answer: Justice OConnors opinion notes to be sure, Ewings sentence is a long one. Question: Then why didnt the court hold it to be cruel and unusual in violation of the 8th Amendment? Answer: Because the court was not considering Ewings sentence in a vacuum. He was sentenced under Californias three strikes law, and the Court had to look at the states reasons for enacting it. Question: What were those reasons? Answer: The state passed its three-strikes law to address recidivismnew crimes committed by persons released from prison. It believed recidivists posed a particular threat to society and the threestrikes law was the result. Question: Does the Court agree that the three-strikes law is a good idea? What do you think? What do you think of the outcome here? By the way, juries do not know that the finding of guilt in the last of the three cases will lead to such an outcome.

Additional Questions THAT YOU MUST ANSWER

1. You Be the Judge: WRITING PROBLEM An undercover drug informant learned from a mutual friend that Philip Friedman knew where to get marijuana. The informant asked Friedman three times to get him some marijuana, and Friedman agreed after the third request.
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8 Cal.3d 410, 424 California Supreme Court, 1972

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Shortly thereafter Friedman sold the informant a small amount of the drug. The informant later offered to sell Friedman three pounds of marijuana. They negotiated the price and then made the sale. Friedman was tried for trafficking in drugs. He argued entrapment. Was Friedman entrapped? Argument for Friedman: The undercover agent had to ask three times before Friedman sold him a small amount of drugs. A real drug dealer, predisposed to commit the crime, leaps at an opportunity to sell. If the government spends time and money luring innocent people into the commission of crimes, all of us are the losers. Argument for the Government: Government officials suspected Friedman of being a sophisticated drug dealer, and they were right. When he had a chance to buy three pounds, a quantity only a dealer would purchase, he not only did so, but bargained with skill, showing a working knowledge of the business. Friedman was not entrappedhe was caught. WHAT IS YOUR FINDING as Judge? Explain! Answer:

ETHICS Nineteen-year-old David Lee Nagel viciously murdered his grandparents, stabbing them repeatedly and slitting their throats, all because they denied him use of the family car. He was tried for murder and found not guilty by reason of insanity. He has lived ever since in mental hospitals. In 1994 he applied for release. The two psychiatrists who examined him stated that he was no longer mentally ill and was a danger neither to society nor to himself. Yet the Georgia Supreme Court refused to release him, seemingly because of the brutality of the killings. Comment on the courts ruling. What is the rationale for treating an insane defendant differently from others? Do you find the theory persuasive? If you do, what result must logically follow when psychiatrists testify that the defendant is no longer a danger? Should the brutality of the crime be a factor in deciding whether to prolong the detention? If you do not accept the rationale for treating such defendants differently, explain why not. Answer:

3. Federal law requires that all banks file reports with the IRS any time a customer engages in a cash transaction in an amount over $10,000. It is a crime for a bank to structure a cash transaction, that is, to break up a single transaction of more than $10,000 into two or more smaller transactions (and thus avoid the filing requirement). In Ratzlaf v. United States, 510 U.S. 135, 114 S. Ct. 655, 1994 U.S. LEXIS 936 (1994), the Supreme Court held that in order to find a defendant guilty of structuring, the government must prove that he specifically intended to break the law, that is, that he knew what he was doing was a crime and meant to commit it. Congress promptly passed a law undoing Ratzlaf. A bank official can now be convicted on evidence that he structured a payment, even with no evidence that he knew it was a crime. The penalties are harsh. (1) Why is structuring so serious? (2) Why did Congress change the law about the defendants intent?

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Answer:

4. Conley owned video poker machines. They are outlawed in Pennsylvania, but he placed them in bars and clubs. He used profits from the machines to buy more machines. After reading this Learning Module, do you think he is he guilty of money laundering? Briefly explain. Answer:

5. Northwest Telco Corp. (Telco) provides long-distance telephone service. Customers dial a general access number, then enter a six-digit access code and then the phone number they want to call. A computer places the call and charges the account. On January 10, 1990, Cal Edwards, a Telco engineer, noticed that Telcos general access number was being dialed exactly every 40 seconds. After each dialing, a different six-digit number was entered, followed by a particular long-distance number. This continued from 10 P.M. to 6 A.M. Why was Edwards concerned? Answer: