Law School Outline- Federal Crime - NYU School of Law - Jacobs 2

I. Introduction to Federal Criminal Law – Jacobs Fall 2004 A. Many statutes without a broad overarching framework in which to place them. B. No general or specific parts ie general ones dealing with mens rea and then specific ones dealing with types of offenses. C. the majority are found under Title 18 D. Brown commission -attempt to organize them more closely approximate state criminal codes –abandoned E. Federal Resources 1. Does the govt. have the resources to do this? Fbi is 12,000 and the NYPD is 40,000 ? 2. 1.5 million in prison only 10% of that in federal prison 3. 93 US Attorneys with different resources at their disposal and basically independently run 4. Majority of the federal forces are in the immigration business F. Focus in on the jurisdictional hook – 1. Unlike state crimes federal crimes will contain a jurisdictional element because of the constitutional structure that enumerates the power of the federal govt to certain subjects. 2. Jurisdictional elements are the occasions when theft can be prosecuted by the federal govt. 3. Jurisdictional elements must be proven beyond a reasonable doubt and are included like any other element. 4. Often they require culpability the same as the other elements pg 2 5. A lot of federal crim law litigation is about the jurisdiction hook more than the criminal law aspects G. Constitutional impact 1. Congress can enact legislation only in relation to those subjects falling within its specifically delegated powers ie found in article I §8 of the constitution 2. Anything not enumerated as going to the federal govt remains with the state. 3. So the jurisdictional hooks are the constitutional basis that allows the fed govt to regulate the area. H. Double Jeopardy – 1. Constitution only prohibits multiple prosecutions by the same sovereign so this leads to --Dual Sovereignty – a person can be tried in both state and federal courts for the same acts without hitting up against double jeopardy bars. 2. Bartkus – state prosecution after federal acquittal allowed with reference to the fact that this is how they prevent a serious state law from being preempted by a minor federal law. And that would be derogation of federal system. 3. Abbate – pled in a state case and then were charged for the federal offense based on the same behavior. If the actions impinged more seriously on the federal interest than on the state interest to bar the federal prosecution 4. This concept has been applied across states as well but not within a state by allowing municipal prosecutions after state prosecutions. 5. Some state policies and the Attorney General are to not duplicate even though it is permissible a) Petite Policy – there have been cases that have been tried on both fed and state level that the govt then moved for dismissal of based on the policy that were dismissed. But it is only the govt that can initiate that not a private individual. I. Questions that should be considered with all these fed crim laws 1. Is the fed govt. going too far as more and more crimes enter the federal crime category is this too much? 2. Does the fed govt have the resources to enforce all the stuff that they make illegal? 3. Is it unnecessarily duplicating state law? 4. Is it encroaching on federalism concerns? 5. What impact does this have on state law? Does it make them lazy? Does it remove incentives for them to deal with their own problems? 6. To what extent should federal laws preempt or duplicate state law? 7. What about uniformity of application of the federal crimlaw? US Attorneys all have different priorities should there be uniformity? Is it better for them to reflect the local community? 8. Does it matter if these laws are enforced? Is it more important for them to just be on the books? 9. What does it mean that congress uses its expansive commerce clause power to make criminal law? 10. Will the states cede their power to the fed? 11. Will we get state and federal cooperation? Why do they fight? 12. Can’t the state Attorney Generals handle this better? II. Arguments for having federal crim law A. Crimes against federal interest 1. Treason 2. Presidential assassinations B. Territories with exclusive federal jurisdiction a) National parks 2. Military bases 3. National forests C. Auxiliary or Supplemental Fed interests 1. Crimes that could be considered purely local but have some type of federal interest in them 2. Local corruption – that makes the local enforcement of the crime questionable 3. Escaping arrest by crossing state lines 4. Organized crime with national reach 5. Civil rights violations based on local prejudice will be caught under the federal law. III. Federal Assimilative Crimes Act – 18 USC 13(a) A. Federal enclaves rely on the federal law and are independent from the states that they are in. These are the areas where federal law is the only law B. There are several federal laws that detail specific criminal offenses but these are few and deal with arson murder etc. C. ACA is to fill the gaps in the criminal law. D. Creates INTRAstate uniformity and consistency but does not address the inconsistencies in laws for doing the same behavior at different federal sites. E. IS this a unconstitutional delegation of authority to the states? F. Lewis –1998 (military base) When is there a gap that the state law must fill? 1. Woman beat her child to death should she be charged with the very specific state offense or with the general federal murder statute? So since there is a state law that deals with this very specific case but only a general federal law that does – is there a gap? 2. 3 prong test for preclusion a) is the act of omission made criminal by any act of congress? b) If no then assimilate c) If yes then was congressional intent to preclude or occupy the whole field? 3. H – the federal murder charge will be used and there is no need to assimilate this state’s 4. Scalia dissent makes a lot of sense in this case that there are crime categories and then distinctions within those categories that may differ btwn states but if the fed govt has the category then no assimilation G. Robbins -1. (military base)assault on pregnant woman that killed the fetus. Under federal law there was assault and battery but the state has a different definition of person and a more specific involuntary manslaughter law that includes terminating pregnancies involuntarily. Here the court found that the crime they were looking at was the involuntary termination of a pregnancy not the assault. So in that way they found that Congress did not have a law on the subject and so passed the Lewis test. There was some controversy over the definition of human that the state had recently changed to include viable fetuses being an expansion of the federal definition of human but since the actual crime included all pregnancies whether viable or not. 2. Is this different from delegating authority to Administrative Agencies? If so then why? a) Political process that makes Congress accountable to the people is present in state law making as well but absent from AA, also state systems replicate the division of power model as the federal govt. so statutes there have more legitimacy and are not as prone to being hijacked by any particular person or administration 3. What about federalism concerns 4. Punishment under the FACA like sentences req. (refer back to this case after reviewing the sentencing guidelines) 5. Sentencing maximums as well as the underlying offenses from states have to be assimilated. H. Martinez – 1. woman poisons and injures her 3 kids. She pleads under Texas law and agrees to submitting to federal sentencing guidelines. The state crime she pled to had a max of 10 years. After departures etc. the judge gave her 30. she appealed. And the court decided that when you assimilate the crime you assimilate the maximum sentencing rules as well. 2. Issues this raises a) Questions of equality? How can someone at one military base be treated differently for doing the same thing as someone else at another military base? b) Is there a notice problem? IV. Commerce Clause – 1. Perhaps the most frequently used basis for federal jurisdiction over offenses that are auxiliary or supplemental to state crim law. 2. Most laws predicated on interstate commerce which for the majority of federal law is defined as betwn states but some statutes give it special meaning in its own context like the Hobbs Act (see below) 3. With recent line of cases the question becomes how do you distinguish betwn economic and non economic activity because the vital nexus that allows fed is an economic activity that affects interstate commerce 4. Lopez marks a sharp departure for the court in interpreting the breadth and potential applications of commerce clause. Lopez was the first limitation of its application. 5. Right after the Lopez decision the Gun Free School zone statute was revised so that it includes a jurisdictional hook which is acceptable under Scarborough and appears to have been saved after Lopez 6. Jacobs general feeling is that Lopez did not do much in terms of making real changes to the broad range of the commerce clause but he says there is still the possibility other courts will adopt it. 7. There was a time when Congress could legislate anything that they wanted under the commerce clause but now Lopez throws a shadow over that and the 8. US v Lopez 1995 – a) Criminal case -Lopez was a 12th grade student appeals conviction based on exceeding power to legislate under the Commerce Clause. b) Gun Free School Zones Act of 1990 18 USC § 922(q) -federal offense for any individual to knowingly possess a firearm at a place that the individual knows or has reasonable cause to believe is a school zone c) Precedent Lopez is referencing in decision (1) Jones & Laughlin Steel Darby 1937 (a) NLRA activities that have close a substantial relation to interstate commerce as to cause burdens or obstructions are within commerce clause (2) Darby – 1941 (a) Power not confined to regulation of commerce among the states it extends to those activities interstate which so affect interstate commerce as to make regulation appropriate means to a legitimate end (3) Wickard 1942 – (a) Agricultural Adjustment Act was held up to apply to individual’s production and consumption of home grown wheat – activity can be local and not regarded as commerce it can sitill be reached if it exerts a substantial economic effect on interstate commerce and this is irrespective of whether such effect is what might at some earlier time have been defined as direct or indirect. Even trivial contributions can be addressed bec they have potential in collective to be influential. d) Lopez is not in line with precedent but does not overrule anything e) Holding – substantial effects test is still to be used and since this is a criminal statute with no connection to economic activity this does not meet the substantial affects test with commerce. So the connection to interstate commerce is tenuous and vague. f) There was no jurisdictional hook in the statute to bring it within commerce clause and limit its application to certain circumstances g) The prior standard for evaluating if something fell within the commerce clause was “Rational Basis” but this is beyond that without articulating a concrete test. 9. US v. Morrison 2000 (post Lopez) a) Civil case – gender motivated crime have civil remedy claim is based on the fact that the statute is unconstitutional bec no authority exists under the commerce clause or the 14th amendment b) Holding Rejects the argument that congress may regulate non economic violent crim conduct based solely on that conduct’s aggregate effect on interstate commerce c) 14th amendment doesn’t work bec it only addresses state ax not individual ax 10. Freedom of Access to Clinics – no jurisdictional element –Upheld by courts post lopez -Congress made several findings in order to bring this under the commerce clause – relating the actual function of clinics to interstate commerce; that individuals travel interstate to use abortion clinics; obstruction of clinics reduces supply nationwide; beyond the contrl of states. 11. Possession of Machineguns 18 USC 922(o) –no jurisdictional element and no nexus to commerce – part of same section that Lopez was deciding on saved bec said that non economic activity was integral to the economic activity that the law was trying to regulate (similar to the Wickard reasoning that little things that of themselves would not qualify can come within if they would have a substantial impact) 12. Youth handgun Act – 18 USC § 922(x)-no jurisdictional elementsaave by historic regulation of the gun trade “obvious that an intrastate market for juveniles substantially affects the interstate market in such commodities” – not shown there is a nexus with economic activity. This is just about possession like Lopez 13. Manufacturing Marijuana 21 USC § 841(a)(1) – in aggregate it impacts interstate commerce but not in the individual same as Wickard economic impact 14. Wilson – Supreme Ct – this was looking at a statute with a jurisdictional hook and asking the question if the hook must be met to a certain degree but the court cabins Lopez to only apply to those statutes that don’t have the hook and fall under the ‘substantially affect commerce’ part of Art.8 15. Jones v. US – 2000 – Supreme Court a) Limiting application of federal arson statute to property used in commerce or commerce affecting activity – the basis used was that before reaching a constitutional Q they should interpret narrowly. So they read the word property in the statute to only reach property involved in commerce or in an activity affecting commerce. 16. US v Robertson-1995 – Supreme Court a) RICO case – that RICO “acquisition of any interst in or the establishment or operation of any enterprixe which is engaged in or the activity of which affect interstate or foreign commerce” b) So the question is does the enterprise have to be one that is engaged in interstate trade? NO the fact that it is involved in any interstate commerce is sufficient to bring it under the 17. Two other fed stats Carjaking and child support have a jurisdictional reqmt but really appear to be encroachments on state rights but they both have been upheld in court. B. Mann Act 1. Punishes one who transports or causes to transport through interstate commerce a woman for immoral purposes – trying to stomp out white slavery C. Consumer Credit Protection Act-18 USC § 891 1. Pre Lopez a) Loan shark statute -b) Perez 1971 – loan shark that is brought under the last category that commerce clause reaches. c) Commerce Clause reaches (1) The use of channels of interstate or foreign commerce which congress deems are being misused (2) Protection of the instrumentalities of interstate commerce (3) Those activities affecting commerce d) Proof of impact on interstate commerce does not have to be shown. The activity can be completely intrastate but as long as congress says it impacts interstate commerce it is ok under the commerce clause for jurisdictional reasons. e) A nexus between the crime and interstate commerce does not need to be shown. D. Omnibus Criminal Control and Safe Street Act – 18 USC §1202(a) 1. Regulates firearms by certain classes categories of people 2. Bass 1971 – this is a gun possession case where the court is requiring the requisite nexus betwn interstate commerce and all 3 offenses possible receipt, possession, and transport Even though this looks limiting the court the court says the affecting commerce criteria can be met if any part of the gun can be shown to have been in interstate commerce or at any time traveled interstate. The court relies on a) Lenity – in cases of ambiguity rule choose the more lenient reading rule in favor of defendant b) Presumption in favor of limiting federal encroachment unless statute clearly indicates the contrary – assumption that congress did not mean to upset federal state balance. 3. Scarborough 1977-Issue is whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus btwn the possession of a firearm by a convicted felon and commerce. Court says that basically if you are a convicted felon once you possess the gun that is against the law. As long as there is a jurisdictional hook to keep them in fed court. MINIMAL NEXUS E. Travel Act 1. Punishes anyone who travels interstate or uses mail for the purposes of establishing promoting etc. an illegal activity which is included on their list of crimes. a) Distribute the proceeds of an unlawful activity b) Commit any crime of violence to further any unlawful activity c) Otherwise promote manage establish carry on or facilitate the promotion management establishment or carrying on of any unlawful activity like extortion bribery arson 2. Original purpose of the statute was to address organized crime, so some argue there should be a racketeering nexus but none of it mentions organized crime. So it applies to everyone – Protects the channels of interstate commerce 3. This act is discussed in the Hobbs Act chapter of the book bec it helps to define extortion 4. Overlaps with mail fraud so there are often multiple charges 5. Plainly covers bribery of local govt officials in violation of state law 6. Nardello 1969 a) People set up in compromising positions and then money was demanded b) Congress intended that extortion in the Travel act should refer to those acts prohibited by sate law which would e generically classified as extortionate ie obtaining something of value from another with his consent induced by wrongful use of force fear or threats c) Since different states define these things differently the Travel Act was meant to be expansive and NOT limited to public officials 7. Perrin 1979 a) Commercial bribery – bribing someone other than state official – b) Stealing info from company by bribing an employee c) Holding – bribery in violation of the laws of the state in which committed as used in Travel Act to encompass conduct in violation of state commercial bribery statutes. 8. Sawyer 1st Circuit 1996 a) Lobbyist gave gifts lunches etc. to congressmen b) Failing to reveal is not enough to be deprivation of honest services there needs to be some deviation from official’s performance there needs to be an intent to commit honest services fraud c) So now the Hobbs Act and the Travel Act come to the same place when it comes to contributions to a public official – quid pro quo intent and agreement F. Hobbs Act -18 USC §1951 1. Authorization or source of authority is the Commerce Clause 2. Punishes “whoever in any way or degree obstructs, delays, or affects commerce o the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do” 3. Definition in Hobbs Act of extortion is that it includes bribery? (McCormick case) 4. Mostly the Hobbs Act has been interpreted broadly however the Schiedler case is the only one that appears to put limits on its definition of obtain 5. Green 1956 a) Ruling that an indictment that alleges violence and threats used for featherbedding -force employment and payment for superfluous and unwanted services b) How does this tie with Enmons? 6. Enmons 1973 a) Violence in the course of a labor strike b) Ends test in relation to labor strikes -both means and ends have to be illegal for labor strikes to violate Hobbs c) Distinguished Green by focusing on the facts and making the decision very fact specific saying that Enmons was a legit end whereas Green was not 7. Russo 6th circuit 1983 a) Coercion in negotiations betwn employer and employees to break union – source of threat economic b) Used the ends test of whether the co. had a claim to the charge they extorted. 8. Albertson Deleware dist.ct. 1997 a) Whether community activist unsolicited offer to drop opposition to a proposed land development deal in xchnge for $ sponsorship was extortion and unlawful under Hobbs b) Extortion is identified by threat to remove level playing field or to deprive someone of something that they have a right to c) So in this case the person did not have a right to freedom from political organizing agst him so there was no Hobbs violation in seeking the money.. but was it bribery under Capo case? 9. Schiedler v NOW 2003 a) CIVIL CASE b) Claim that pro life group extorted people and clinics from doing abortions by threatening them with violence in xchange for property rights – a woman’s right to seek medical svcs and doctors’ rghts to give it c) Hobbs Act requires obtaining property from someone – here obtain is defined as DEPRIVE & ACQUIRE d) It was rights that went unexercised 10. McCormick 1991 a) Q – does the extortion definition in Hobbs extend to bribery of a local govt official? b) Foreign doctors allowed to practice while waiting for license and organized to prevent revocation and targeted guy who asked for money they paid c) Majority interprets bribery as part of extortion in statute as a payment induced by the fact that the person discretionary power as a public official. It is a jury decision if the action is a bribe or a legitimate campaign contribution – bec there the issue is intent d) Quid pro Quo is necessary to sustain Hobbs act extortion conviction for public official payments there has to be an explicit agreement – when it is receipts of CAMPAIGN CONTRIBUTIONS 11. Evans 1992 a) D alleges passive acceptance that was not induced and therefore not extortion b) Court says that the office itself is enough of an inducement to pay over money so inducement is not necessary when prosecuting a public official just private individuals c) Entrapment is that you were not predisposed to commit the crime but were forced to but this would be difficult for public officials to say since they are not supposed to be overwhelmed by money V. Why federal Gun Control? What does it look like? A. It makes a strong statement to people about the protection of their children. B. Is this a case of regulatory capture? Where the people legislated prevent any restriction on them from passing? Is that what Congress is trying to circumvent? Well not in every arena because like the School Zone Gun Law there are not a lot of people trying to bring guns into schools. C. Federal Gun Law 1. Tommy Guns Congress did not think they had power to regulate them so they set up huge tax system instead. 2. 1938 Federal Firearms Act – establishes federal licensing system for manufacturers & dealers. Need a license to receive or ship weapons across state lines and made it a crime for anyone to knowingly sell a firearm to a fugitive. a) People with a criminal record may not possess a firearm. (how does this interact with state laws?) b) Firearms may not be shipped interstate without a license 3. Gun Control Act of 1968 – crime increasing So increase in gun control – reqd license even if no interstate commerce; made it illegal to sell to non state residents; you can’t import cheap handguns; but it did not prohibit domestic cheap gun production so this is more protectionist than gun control 4. ? 5. Firearms Owners Protection Act 1986 – prohibited mfg of machine guns prohibited transfer of firearm to prohibited persons and added to list of ineligibles. And gave the ability to relieve felons of prohibition. Prohibited armor piercing bullets plastic guns are prohibited even though they were never made 6. Brady Law 1993 – reqd background check by dealer before selling the gun --before that no person with a criminal record could go purchase a gun but that was on honor system or after the fact; covers only RETAIL sales – this does not touch the secondary market; 7. Assault weapons ban 1994 – major watershed in national gun law banned assault weapon ie semi automatic with pistol grip 8. Most gun laws have jurisdictional component which even after lopez keeps them within Scarborough 9. They relate possession to the interstate model 10. Long tradition of regulation of this area VI. Mens Rea in Fed Crim Law A. Strict liability allowed In federal law B. no restrictions on strict liability in statute or acknowledged from constitution but as time progresses it appears the courts are trying to limit it C. the courts are not making it a constitutional issue as they move from strict liability it is an interpretation issue D. Public Welfare Offenses 1. Regulatory offenses for which no mental state is necessary they are strickt liability ie. Speeding etc. 2. Broad impact harms that most of these crimes don’t necessarily cause but increase the likelihood of E. How far does the public welfare doctrine to be extended? Morissette tries to answer this question F. A lot of other crimes impact a lot of people but they are not strict liability? Also if these are so dangerous why punishment so light? G. Comparisons – 1. Ratslaff, Liparata, and Chief – are the opposite of Balint, Dotterweich bec there they need to prove knowledge of the law which is rare 2. Fed crim law is different from Model Penal Code in that MPC says that strict liability has to be explicityly stated in the statute and then when it is it becomes a violation. If no mens rea is stated under MPC recklessness is imputed 3. Freed and Staples seem to decide that scienter can differ for different element of an offense. Excitement however keeps them the same across H. Dotterweich 1943 – 1. Mislabled drugs in interstate commerce but he was importing the jury does not convict the corporation but convicts him. The courts says he was in a responsible position and caused the problem so they imposed strict liability. 2. Not overturned although criticized. I. Morrisette 1952 – 1. This is where public welfare offenses become a separate category so that the court can distinguish balint, dotterwich. But in doing so it doesn’t answer what are public welfare offenses or why they allow for strict liability whereas others do not or what the limits are on these offenses. 2. Guy takes empty shell casings from military site. Charged with stealing. Strict liability can not be applied there is too great a stigma from conviction and the punishment too major for SL crime/public offense J. Freed 1971 – 1. Looks to be resurrecting SL 2. Hand grenade case where a registration is reqd and Freed argues he thought the grenades were registered. 3. The court finds that bec he knew he had a hand grenade the question of registration is not enough. 4. Could have been a negligent standard but it is harder to prove a negative for the govt. K. Staples 1994 1. Guy with a machine gun – is this a public welfare offense? The court distinguishes it from Freed by saying that the element of the D in Freed was the knowledge of the registration and that Feed had nothing to do with whether he know it was a hand grenade. 2. The law is that you have to register an automatic weapon and the court is saying that the Q is did you know it was an automatic weapon? 3. So a person must know that they are in possession of a firearm as defined by law but not that it is registered. For registration purposes it is strict liability according to Freed. L. Posters n Things 1994 1. Knowledge that it is likely that a customer will use something for drugs is sufficient exact knowledge is not necessary. 2. There does not have to be specific knowledge that the items are considered drug paraphernalia 3. You also have to show that the goods are moving through interstate commerce. 4. The court said this was not strict liability M. Excitement Video 1994-1. Court requires knowledge that a person in the porn visually depicted is a minor. “bec of the respective presumptions that some form of scienter is to be implied in a crim statute even if not expressed and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions” 2. No strict liability for shipping porn interstate whether you knew it was a minor or not. 3. You have to know that it was a minor 4. Court says they have 1st amendment rights and this is not public welfare offense 5. Scalia – court is rewriting the statute and they can do that by imputing strict liability when it comes to age and require knowledge for visual depiction. N. Park 1. CEO of supermarkets charged with FDA violation based on rodent contamination that was found and reported to him and then delegated to the appropriate staff. The violations were not corrected. 2. The court decides based on the law and precedent the state does not have to prove knowledge or intent bec the person thru whose act default or omission the thing was done was liable. 3. The Vicarious strict liability is tempered however by the burden shifting the court allows that the D can show they did everything possible to prevent it and that he was actually powerless to prevent it -this is an out that otherwise did not exist. O. Liparota – 1. Unauthorized possession of food stamps – Q did he have subjective awareness this was illegal? It was a backroom purchase and printed on the coupons is the transfer policy etc. 2. Court decides it has to be proven that D knew his acquisition or possession was in a manner unauthorized by statute or regulation. Not a negligence standard had to know this was against regulation and the court seems to think that this can be proven based on the circumstantial evidence that was present. P. Cheek 1991 1. Felony Tax case – if a person in GOOD FAITH believes that the tax statute does not apply to them then that is not criminal. 2. Court finds tax code very difficult and an easy trap for people to become ensnared Q. Ratzclaf 1994-1. Money laundering case – structuring transaction is in itself not illegal you have to know that structuring is illegal. 2. Not enough that he was avoiding he has to know that the law existed R. Bryan 1998 1. Violation of licensing requirement for firearms dealers so guy is selling guns on the street with no license after he filed off the serial numbers 2. You have to know that the person is ineligible to buy a gun in order for it to be illegal. 3. Knowledge that the conduct is unlawful is all that is required the person does not need to know that not having a license is itself the law. S. There was an additional part that we read in the book but didn’t cover in class about specific intent? Don’t know if I should include. Pg 273 -308 VII. Federal Fraud Statutes A. Mail Fraud – 18 USC § 1341 1. Purpose “protect the integrity of the US Postal system” Is this about lines of communication remaing fraud free and that is why the wire fraud was created almost identically to the other? 2. Outlaws frauds that involve a mailing or a wire whether instate or interstate but frauds that are personal are not included 3. statute is very broad so it might reach deceptions that are not meant to be frauds what does defraud mean? a) Devise any scheme or artifice to defraud b) For obtaining money or property by means of false or fraudulent pretenses representations promises c) Sell dispose loan exchange alter give away distribute etc. counterfeit or spurious coins d) Includes a scheme to defraud another of the intangible right of honest services added in 1988 (1) Includes duty to disclose whether by state law imposed or employment K (Von Barta but does that still hold as circuit precedent since it was shortly overruled by McNally and only brought back by amendment of statute by Congress?) 4. Each mailing in the system is one count ie.multiple mailings related to one fraud – these can then serve as the foundation of the 2 racketeering activities for RICO so that would tack on 20 years and forfeiture worries 5. The mailing can be incidental to the fraud see ____ 6. This statute is very broad and could have broad applications in a) Commercial transactions ie K, commercials puffery etc. b) Personal interactions affairs betrayals of trust plagiarize an exam c) Employment sectors – false resumes, moonlighting, d) Political setting any corruption by public officials 7. the law is so malleable it’s application is only limited by the prosecutors discretion. This lends itself to abuse since it has such heavy penalties as well 8. Intangibles -a) Mandel – 4th circuit 1979 (1) Rejected the claim that some violation of state law had to be found for deprivation of honest services (2) Includes deception that employes the mail int is execution that is contrary to public policy and conflicts with accepted standards of moral uprightness fundamental honesty fair play and right dealing (3) This involved taking bribes quid pro quo b) Isaccs – 7th Circuit 1974 (1) The mail fraud statute is not limited to those suffering monetary losses. The gov took bribes and as such deprived loyal and honest services c) VonBarta 2d Circuit 1980 (1) Used firm money to trade and then started losing money. (2) Q – is the violation of a duty to disclose present even though there is no law tating such? (3) Duty to disclose can be created by K as well d) Bronston 2d circuit 1981 (1) Lawyer worked on case where he had a conflict of interest with the other company. And charged with mail fraud (2) The mailings were 2 letters sent that did not contain false info but were said to be for the purposes of advancing the scheme (3) issue of concealment and cites VonBarta e) Brumley 5th circuit 1997 (1) What is the another that the statute is protecting? Could it be a state? (2) Holding#1 that govt qualifies as other (3) There is no honor code that govt employees are held to but since there was a state law against this there was notice of the duty to not do this f) Martin 7th circuit 1999 (1) Guy works for govt and is being bribed (2) Is this mail fraud? The question is not what this guy did proactively but in that he did not speak out against the company that was bribing him so would he have if he wasn’t being bribed? (3) The duty that one violates does not have to be one imposed by law it can be one inferred by the court g) Frost 6th circuit 1997 (1) Professors give diplomas in xchange for $ (2) University has property rights in diploma so this was defrauding the univ. out of property (3) Person has to be aware act. Is risking harm to the defrauded party h) perfect articulation of my thoughts Coffee – “if merely depriving the victim of the loyalty and faithful service of his fiduciary constitutes mail fraud the ends/means distinction is lost. Once the ends/means distinction is abolished and disloyalty alone becomes the crime little remains before very civil wrong is potentially indictable i) Hadakas 2d Circuit 2002 (1) Stops mail fraud from being applied to breach of K (2) There has to be a tort for there to be liability under criminal law 9. What part does mailing play in the fraud? a) Sampson 1962 (1) Co. made promises that it never meant to keep and confirmed the agreements after payment with a mailing. The mailings were after money recvd (2) Q – does this meet the for the purpose of executing’ from the statute? (3) If it can be shown that it is for the purposes of alluding capture or suspicion then yes (4) The court says the real question is what part the mailing plays in the fraud not the timeline b) Maze 1974 (1) This was the theft of the credit card for purchases in other states. (2) The indictment alleged the bank and the vendors had been the objects of the fraud (3) They found the mailings were not what made the fraud possible and did not aid in the ability to commit them over a longer span of time bec no mailings would have worked better for criminal. And they didn’t help bec the fraud was complete once the credit card was accepted the later mailing didn’t help it at all c) Schmuck 1989 (1) Turning back the odometers in cars in order to sell them at inflated prices (2) Q -The only mailing here is the mailing for the title – does that meet “for the purpose of executing fraud” reqmt? (3) They see this as a necessary part to delay being discovered the ability to complete the sales by the dealers to the customers so it was essential or the frauds could not have continued if the new titles couldn’t have been gotten successfully VIII. RICO A. Why does RICO exist? 1. Before trial to get at -a) Syndicates have a variety of activities like bribery, extortion, assault, murder, theft, fencing, labor racketeering etc. b) They then take money and divide it and then invest in ‘legit businesses’ they do this by (1) Legitimate investment (2) Intimidation (3) Collection of unlawful debts c) Then they create a new category of victims – they have those that are victimized immediately and then those that are victimized indirectly through competition with these unlawful businesses 2. At trial to make it easier to win by -a) federal system if you have 1 conspiracy then you can charge them all with a crime only 1 has committed (Pinkerton) so that is strong leverage to get them to cooperate b) you can increase the charge by combining misdemeanors to get a felony c) introduction of statement that were made in furtherance of the conspiracy it is an exception to the hearsay rule d) choice of venue if different acts committed in different areas e) more opportunity for slip ups when a lot of criminals are tried together B. What is the RICO Statute? 18 USC §§1961-1968 1. Rqmt #1 -enterprise – either legal association or syndicate a) legal assoc. -a business corp. union or association that has legal significance or b) syndicate – (1) commonality of purpose (2) ascertainable structure (3) continuity 2. Reqmt #2 -Pattern of racketeering activity – all the crimes the latest 2 have to be within a 10 year period excluding any jail time. (Activity that RICO prohibits (letters correspond properly to statute) a) Unlawful for any person who has received income from a pattern of racketeering act. To use invest in acquisition of any interest in or establishment or operation of any enterprise which is engaged in or the act. Affect interstate of foreign commerce b) Unlawful for any person thru pattern of racketeering act. To acquire or maintain any interest in or control of any enterprise which is engaged in any act. Or business interstate of foreign c) Unlawful for any person employed by or associated with any enterprise engaged in or the activity of which affects interstate or foreign commerce to conduct such enterprise’s affairs thru a pattern of racketeering activity. d) Conspiracy to do any of the acts that would violate subsections a-c 3. Relationship betwn Enterprise and Pattern – see page 689 4. CRIMINAL Forfeiture – see forfeiture for more detailed review a) The criminal forfeiture is linked to whatever enterprise is indicted in the RICO charge. b) Govt incentive to choose the enterprise with the most stuff to take away 5. CIVIL FORFEITURE a) Lower burden of proof b) Remedies available might be better for companies etc that can’t go to the jail c) Discovery for criminal cases is limited d) Discovery for civil is full e) Crim cases don’t let you call the D as a witness f) Jury can infer negative things from D taking the 5th amendment when on the witness stand g) Criminal cases there is double jeopardy h) Civil cases you can appeal i) Majority rules in civil whereas in criminal you need unanimous j) People serve as private attorney generals since fed govt. has limited resources. k) Treble damages 6. Problems with RICO a) Large cases are hard to handle for judges who can be on one case for years b) It gets very convoluted to remember all the facts etc. for the jury c) No problems for prosecutors 7. With RICO the DA or AUSA can use old crimes you have already been convicted for and just prove the enterprise 8. Elliot is an example of going further into the realm of criminalizing being a criminal 9. Mandatory joinder – if you iknow about all the crimes you are supposed to try everything at the same time 10. Sedima v. Imrex Co. 1985 a) CIVIL case b) Inflated bills were passed off mail fraud c) There is no need to predicate the civil RICO case on crimes that have been tried in a criminal case C. Proving Enterprise 1. NOW v. Schiedler 1994 a) Shutting down of the abortion clinics by the prolifers this is the same case that was looked at in Hobbs Act section bec the RICO claim was predicated on Hobbs Act. b) No indication in RICO that there needs to be an economic motive or that the enterprise needs to be a profit seeking enterprise c) In a & b the enterprise is the victim in c the enterprise is the perpetrator 2. Goldin 11th circuit 2000 a) The indictment must name a RICO person distinct from the RICO enterprise the plan language of the statue requires that the entities be distinct b) This is necessary bec the enterprise itself can be a passive instrument or victim of the racketeering activity it is the person who violates RICO not the enterprise 3. Kushner v King 2001 a) CIVIL b) Affirms that basic principle that under § 1962(c) one must allege and prove the existence of 2 distinct entities -(1) a person (2) an enterprise that is not simply the same person referred to by a different name. c) person and the company were only separate things under the law; the company was inc. with no other employees. d) “statute requires no more than the formal distinction btwn person and enterprise (to be inc.)” 4. Frumento 9th circuit 1993 a) Can a state agency be the enterprise? b) It is meant to protect economic activities and if the govt can be hijacked then that should be covered as well c) So now RICO is another statute that addresses govt. corruption like Hobbs and the Travel Act as well as the state crimes 5. Bledsoe 8th cir. 1982 a) What is the ascertainable structure? b) This was the agricultural cooperatives case where the govt. charged a lot of people with a lot of crimes but could not tie all the crimes to all the people or show a collective c) The court says that RICO was not intended to reach any criminal who merely associate together and perpetrate two of the specified crimes d) To exist the enterprise has to be more than an informal group created to perpetrate the acts of racketeering e) Test (1) Common purpose -concerted action for same goal (2) Function as continuing unit – this does not mean the scope of the enterprise cannot change as it engages in divers continuity of both structure and personality roles remain the same even people filling them change but if completely new set of people then a new org (3) Ascertainable structure – organizational pattern; or engaged in a diverse pattern of crimes or system of authority beyond what was necessary for the predicate crimes 6. Elliot 5th circuit 1978 a) This is JC bunch of different crimes with a bunch of different people b) This is going after them hard and proving that 7. E&Y v. Reavis 1993 a) CIVIL RICO b) Accounting firm that audited books of company that did not appropriately disclose info and allowed for sketchy recognition timing c) Conduct – requires management level responsibility control over the affairs of the enterprise d) What about in other organized crime situations with the low level people? Once they are in organization they are participating e) It appears the management control only applies to outside people f) It is unclear if this is an anomaly D. Pattern of Racketeering Activity 1. HJ v. Northwestern Bell Telephone Co. 1989 a) What conduct meets the RICO pattern reqmt? b) This is the customers suing the phone co. for bribing and conspiring with officials resp. for setting rates c) Remember the enterprise has to be separate from what violates RICO – so they are using 1962c saying the phone co. was participating in the enterprise that was the board (strange but co. would have deeper pockets for treble damages than the individual employees) d) “congress had a more natural and commonsense approach to RICOs pattern element intending a more stringent rqmt than proof simply of two predicates but also envisioning a concept of sufficient breadth that it might encompass multiple predicates within a single scheme that were related and that amounted to or threatened the likelihood of continued crim activity e) something in the pattern beyond the number of predicates ; acts need to be related to each other in some way f) Test (1) Predicate acts are related – relationship (2) Indicator of continuing criminality – continuity g) Closed continuity – if it went on for a long enough time h) Open continuity it is in the process now and will continue into the future 2. Indelicato 2d circuit 1989 a) Trial of the Bonanno family where the court is reconsidering the pattern of racketeering activity b) Holding – proof of two acts of racketeering activity without more does not suffice pattern needs – this is a factor test and one can outweigh the other (1) concepts of relatedness and (2) continuity c) How do you prove pattern? (1) Temporal proximity (2) Common goals (3) Similarity of methods (4) Repetitions (5) Continuity can be shown by the organization and not necessarily by the acts themselves so ie. A crime family d) these used to be definitions of enterprise but now transferred to pattern – now the definition of enterprise is wide open to include any kind of group of individuals associated in fact 3. Beauford v. Helmsley 2d circuit 1989 a) CIVIL case b) Misrepresentations about an apartment complex more than 8,000 mailings c) Pattern can be shown without showing different schemes 4. Some courts have found the test that was put forth by supreme court is contradictory – that continuity requires different victims different times – related means close times and close victims 5. East Ohio v. Cocose 7th circuit 1992 a) Payments pocketed by general contractor instead of going to subcontractor went on for 6 months all payments were made on 1 K b) Dismissed bec did not meet the continuity prong which is shown by 2 ways (1) Closed event that was so extended (2) Open event that is going to continue 6. Resolution Trust Corp v. Stone 10th circuit 1993 a) Test for pattern (1) Duration of acts (2) Extensiveness – (a) Number of victims (b) Number of acts (c) Complexity/size (d) nature E. Multiple Prosecutions 1. Ruggiero 11th circuit 1985 a) Guy was charged in NY for substantive and conspiracy charges and then came a Fla charges focus on 1962 c -which prohibits participation in enterprise through pattern of racketeering activity b) Q – Double jeopardy is for both (1) Twice convicted of the same offense (2) Twice tried for same offense c) Under 1962c same enterprise can be tried multiple times for different violations d) Factors to consider (1) Whether the activities RICO is predicated on occurred during the same time periods (2) Whether the activities occurred in the same places (3) Whether the activities involved the same persons (4) Whether the two indictments alleged violations of the same crim statute (5) Whether the overall nature and scope of the activities set out in the two indictments were the same** most important F. Misc. RICO 1. Schiedler asked for injunction in civil RICO but the court denied it – here they get treble damages 2. injunction is available for criminal cases but no money.. 3. participate and conduct says you have to be an employee or an associate of the enterprise – so you have to say they were controlling the org in order to do illegal activity 4. you can get the enterprise as both the one perpetrating a RICO stuff if they are using a subsidiary bec remember from King they said that the division had to just be legally formal 5. Have clear enough distinctions been made or is the statute too vague in terms of how to differentiate it from other random acts? Per Scalia things are heading toward unconstitutionally vague per due process – this was in the HJ decision. Given the variation in application amongst the circuits after the decision that might be the case. G. Violent Crimes in Aid of Racketeering Act § 1959 1. this is for doing stuff to enter an organization a) this is not a lesser included offense so this then gets tacked on to a RICO charge b) but its easier to get than a RICO bec you don’t have to do stuff to further the enterprise IX. Organized crime and Labor A. After the union has been found to have been infiltrated by the mob the interesting part is after trying to clean it up B. There are several models that they are put into after trial C. Trusteeship – people appointed by the attorney general office but the progress is shady bec they have no experience. D. No real discussion btwn old and new trustees about best practices etc. E. After the case has been decided the fbi no longer monitors the union to help the trustee know what is going on if there is still mob activity F. Most of the structures are decided in the consent decree so there are variations in changes 1. people get to stay who shouldn’t 2. sometimes the trustee can just monitor but can’t do anything about stuff 3. the trustee doesn’t know what is going on G. incentives of the govt. make matters worse bec they get credit for conviction and not for fixing it H. there was no public outcry about the mob it was only the govt.’s interest X. Continuing Criminal Enterprise (CCE) 21 USC § 848 A. The statute 1. Against a person who has operated in conjunction with 5 or more people and has influence and got substantial resources-elements -a) operating in concert with 5 or more people b) had a leadership role c) obtained substantial income 2. does not focus on acts but on status and activity 3. So theoretically couldn’t you charge someone for RICO and CCE? 4. could RICO be a lesser included offense of CCE? 5. what about the 5 people how do you have to prove that? Can you just show that there were 5 people at given times? Do they have to be related to the violations? You don’t have to prove their identities 6. can you have a conspiracy to commit a violation of a CCE offense? No bec it is lesser included offense by way of the 5 person reqmt 7. can you have conspiracy to violate CCE – Jacobs thinks you can B. Elements of CCE 1. Richardson 1999 a) Q whether a jury has to agree unanimously about which specific violations make up the continuing series of violations or if the govt just has to show a series existed b) Holding – unanimous agreement on each violation c) Continuing series = 3 but that is not being decided it is just being assumed d) Each element must be unanimously found by the jury e) The exact identities of each of the 5 people do not have to be decided 2. Ward 6th circuit 1994 a) What is an organizer what is a leader? b) The court will recognize indirect control as well as direct control over someone C. Constitutional Issues 1. Status offense – bec it does not focus on the actual violations it is actually prosecuting the status of being a Drug Kingpin 2. Substantive Due Process – crime has either or which is questionable per Scalia 3. ? 4. Shad 1991 a) Guy killed someone and the jury instructions were that they all have to find him guilty of first degree murder or felony murder b) This allowed them to split so if some thought first degree and some thought felony they would still get a conviction c) They said this was ok bec they both had the same sentence and jury did not have to agree on the method D. Double Jeopardy 1. Blockburger Test a) If an act violates more than one offense you can be prosecuted for both offenses so long as one offense has a requirement that the other does not. If they have the same elements 2. Lesser included offenses-all elements of the lesser act have to be proven necessarily to meet the greater offense. a) Ie you have to assault to murder b) You have conspiracy before you have CCE 3. Can you punish for Lesser Included Offense too? a) Depends on Act of Congress not Constitutional Law 4. Jeffers 1977 a) Facts (1) Narcotics prosecution 1974 charged with conspirary § 846, CCE § 848 and a possession with intent to sell (2) govt. asks for tried to join all the offenses and several D but the D moved for separate trials on all counts (3) § 846 case happens in 1974 finds them guilty (4) When CCE case came up the D moved to dismiss based on double jeopardy as § 846 is a lesser included offense of § 848 b) Issue # 1 –Are the two statutes separate offenses? Issue #2 – can you waive double jeopardy protections? Issue #3 – multiple punishment c) Wharton’s Rule – an agreement by two peope to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of 2 persons for its commission d) Conspiracy is lesser included offense of CCE e) You can waive double jeopardy protections if you ask for separate trials f) For multiple punishment analysis sentences are treated like trials so the analysis needs to be done – whether Congress intended to punish each statutory violation separately – court finds congress did not mean for conspiracy and CCE to be punished at the same time. 5. Garrett 1985 a) Q – (1) can facts from a prior conviction be the predicate violations for a § 848 CCE prosecution? (one of the 3(?) necessary?) (2) protection against multiple punishments for the same conviction? b) the activity that is the subject of the CCE prosecution continued after the earlier conviction so it is allowed bec it was activity that had not happen yet. And Congress clearly meant for their to be guilt under both importation and the drug kingpin statute. c) Not really the same offense if they are occurring at different times d) This is cutting back on Brown saying it is not a complete greater lesser bar 6. Cole 4th circuit 2002 a) How do you determine if double jeopardy protections are applicable? (1) Time periods covered by alleged conspiracies (2) Places wher the conspiracies are alleged to have occurred (3) The persons charged as co conspirators (4) The overt acts alleged to have been committed in furtherance of the conspiracies or any other descriptions of the offenses charged which indicate the nature and scope of the activities being prosecuted (5) The substantive statues alleged to have been violated E. Complicity 1. § 2 -Accomplice statute fed crim law that covers all accomplice aiding and abetting 2. What is an accomplice what is needed? a) True purpose – wants the crime to succeed and seeks to help it thru ax b) Knowledge of what is going on and want it to succeed c) Peoni Limitation – you have to have a stake in the venture be invested it does not include suppliers who are innocent and don’t have stake in the crime. d) Model Penal Code MPC – person liable for their conduct or the conduct of another when acting with the same culpability needed for the defense he injures another or is an accomplice in the commission of the offense e) Someone is not an aider or abettor when in regular business and just know but don’t have a genuine stake in the venture beyond what you are getting paid 3. Pino Perez 7th circuit 1989 a) Q – can you be an accomplice to CCE? b) H – Yes bec it would introduce great uncertainty into crimlaw if liability of aiders and abettors depended on ct interp of Cong intent c) Exceptions to this rule that there can always be aider and abettors? (1) Wharton rule – when a crime is so defined that participation by another is necessary to its commission tha other participant is not an aider or abettor (2) Victim of crime (3) Members of the group the statute is meant to protect-Mann Act d) General arguments why it should apply (1) It always applies – it is like a tradition it does not have to incl. by congress it is just assumed (2) No indication that it should not apply to certain ones since it was created. Never has congress in this statute or hx of § 2 wanted to do anything but 4. Amen 2d circuit 1987 a) Same Q different circuit different answer b) Court finds no accessory liability for CCE -bec (1) CCE is expressly designed to target kingpins and there is no mention of additional (2) The excessive penalties in CCE do not seem fair when applied to the roles of some accomplices (3) People who are the actual underlings can’t be the accomplices they who are actually partaking in the activity are not liable under accomplice charges (4) You would gut the purpose of targeting kingpins and making it more unattractive to take those roles if everyone is subject to them 5. Hill 6th Circuit 1995 a) § 1955 gambling case – store owners allow kingpin to use their shops and got cut of the ax b) The Q is did they have to know that there were more than 5 of them working with this? c) H – No they just needed to know that it was a large organization 6. Herrara 4th circuit 1994 a) Invited error bar – explicitly requested the clear error that is being disputed XI. Double Jeopardy in General A. Person can be tried in both state and federal courts for the same thing so we are really moving toward triple jeopardy B. Strongest protection is after conviction or acquittal C. Brown 1977 1. It is violation of double jeopardy to convict someone for the lesser included offense and then try them for the greater offense 2. Facts a) Stolen car was first tried for joyriding and then later for joyriding and theft 3. here the court found that this was all part of one thing that the theft happen and then there was joy riding D. What are the exceptions that allow the same act to punished multiple times without violating DJ? 1. If it is not continued course of conduct and can be broken up bec later events have not happen yet when charged or if the DA had not known but was diligent XII. Forfeiture A. What kinds of property are forfeitable? 1. Types a) Contraband – bad stuff b) instrumentalities – clearly used in the commission in the crime c) proceeds d) interests in enterprises govt offices, union positions e) pensions? 2. Cases a) Russello 1983 (1) RICO criminal forfeiture case surrounding an arson ring that was getting insurance of 340,000 for a building that they burned down --§ 1963 forfeiture was Q bec it says “ shall forfeit any interest he has acquired or maintained in violation of § 1962 (2) Q – whether profits and proceeds are included in interests or if interests only include in the interests in the enterprise (3) Statute includes profits and proceeds (4) But why does RICO say interests whereas CCE says profits? (5) Court does not decide how you measure profits and proceeds – what issues does that present? B. General Forfeiture stuff 1. Statutes a) 18 USC § 1963 – RICO forfeiture provision – (1) amended in 1984 to adopt Rusello and include profits and proceeds incl. property and K rights 2. Are this a substantive law or a sentencing law? a) Appears to be a separate area of crim law different from sentencing thisis a new area that is expanding 3. Does it in effect spread the reach to those persons who would not be reached via accomplice liability? 4. It is not universally accepted and is vulnerable to abuse a) A lot of political dissent about this -It has become a target of libertarian groups and the CATO institute (1) Horror stories about govt taking this to extremes the yacht that was forfeited bec there were people on it with weed but they did not own it they were only renting it and the real owner had no reason to knw what was going on with it (2) This is what lead to the CAPRA statute that makes innocent owner defense available to all existing in rem statutes 5. Statute § 1963c – a) Relation back –right/title to property vests in the US upon commission of the crime b) Any property that has been transferred after that can still be forfeited by special verdict UNLESS the purchaser can establish themselves as a bona fide purchaser c) Burden of proof in these proceedings are by the preponderance d) The person has to prove that their title was superior to the D at the time the act was committed or that they owned it at that time e) Or that the person is a bona fide purchaser for value of the thing and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture under this section 6. What happens to forfeited property? a) 21 USC §881 law enforcement agencies can keep the stuff (1) doesn’t that provide distorted incentives to seek the most stuff rather than addressing crimes equally – see auto mechanic shop case for suspicious manifestations of these incentives. (2) AG may retain the property for dept use or transfer it to any fed agency or to any state or local law enforcement agency which participated directly in the seizure or forfeiture of the property 7. CAFRA 18 USC § 983d a) creates uniform innocent owner defense for owner who either did not know of illegal activity subjecting property to forfeiture, or after learning of the misconduct ‘did all that reasonably could be expected under the circumstances to terminate such use of the property’ (current innocent owner defense is spotty doesn’t exist in some statutes, and is vague in others some courts interpret statutory defense to required claimant to show they didn’t know of or consent to the illegal use) b) people who acquired interest after the offense can assert innocent owner defense if they are bona fide purchasers or if they can show they inherited their interest and had no idea the property was subject to forfeiture (courts have gone different ways) c) protects innocent spouses and children from forfeiture of their primary residence if they acquired their interest I the property by divorce inheritance etc. if they can show that a t the time they received their interest they were reasonably without cause to believe the properry ws forfeitable d) clarifies the definition of did all theat was reasonably expected claimaints cooperation with law enforcement official s may e used tos how this but is not mandatory and claimant is not expected to take stpes he reasonably believes would endanger himself or other (conflicts on this issue) e) burden of proof is on the claimant C. Cases on Forfeiture and Innocent People 1. 92 Bona Vista Ave. 1993 ??? a) Drug Abuse Prevention and Control Act violation and forfeiture basis – includes an innocent owner exception unlike RICO b) Does girlfriend have to forfeit house that she spent 240,000 of drug dealer money on? c) After the house has been forfeited by the court then she can bring one of two defenses per the statute – innocent owner or bonafide purchaser d) Innocent owner defense? -how can there ever be an innocent owner unless they owned it prior to the felony? But if there can be it has to be shown that they did not know that the property was a proceed of an illegal activity e) Relation back – once forfeiture has been decreed all interest in property is the govt. upon commission of the act so they pretend the title was transferred at that point so any subsequent transactions with the person who had possession are just void but this is not self executing so first it has to be tried 2. Bennis v. Michigan 1996 a) Husband uses a car to have sex with hookers and so the state moves to forfeit the car which is jointly owned by the wife b) Issue – is it a defenses to forfeiture to say that you did not know that the property was going to be used in that way? c) H – long and unbroken line of cases holds that an owner’s interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use. d) What is the govt’s interest in forfeiting the car from her? More deterrence? Is this disproportionate to the crime? Look at 8th amendment stuff 3. Ursery 1996 a) It is not a violation of DJ for civil forfeiture proceedings to come after criminal b) That for DJ purposes civil forfeiture do not impose punishment c) They acknowledge that this is different treatment of the same thing bec it is contrary to Austin which had been decided in 1993 and said for 8th amendment it is a punishment D. Differences betwn Criminal and Civil Forfeiture 1. Criminal forfeiture a) Included in 8th amendment protections in terms of limits and (proportionality?) b) In personum forfeiture is punishment and has to be alleged in the criminal indictment and proved in criminal case and have to be part of criminal sentencing – they are definitely part of 8th amendment see Alexander and Austin 2. Civil forfeiture a) doesn’t have 8th amendment protections bec it is compensatory and not punitive and bec it is not an ax by the govt. b) But even in civil forfeiture if the govt is the party involved then per Austin bec the govt. can’t skirt protections just by declaring an ax civil 3. Kennedy v. Mendoza Martinez 1963 a) This is the benchmark of when civil proceedings become criminal for constitutional protection purposes b) It sets out a test for if civil proceedings get crim con protections but they are not a check list bec they may point in different directions (1) Whether a sanction involves an affirmative disability or restraint (2) Whether it has historically been regarded as a punishment (3) Whether it comes into play only on a finding of scienter (4) Whether its operation will promote the traditional aims of punishment – retribution deterrence (5) Whether the behavior to which it applies is already a crime (6) Whether an alternative purpose to which it may rationally be connected is assignable to it (7) Whether it appears excessive in relation to the alternative purpose assigned 4. In what ways are Bennis and Austin a) Bennis is stating that it is remedial? And Austin is saying it is punishment b) Court is saying that the real reason it is not punishment is bec the car has a low value E. What is the advantage of forfeiture over fine? 1. does the type of property matter like proceeds or instrumentality? a) Well suited for dealing with contraband and proceeds b) Instrumentalities present problems (1) The same activity can result in grossly disparate forfeiture-depending on the value of the thing the persons could afford-ie cars used in crimes could range from pintos to Porsches – so that would make the fines very different F. 8th Amendment and Forfeiture 1. Austin 1993 a) Whether excessive fines clause of the 8th amendment applies to forfeitures of property under 21 USC § 881 b) 8th amendment only applies to govt. interactions with individuals it does not apply to punitive damages in civil suits etc. c) this is an instrumentality bec this is where he was making drugs and selling them d) Govt is arguing that civil forfeiture is not punishment it is remedial bec this is ax against the property not the person and sometimes people have to be protected from property that does harm and that it is also remedial bec it was to compensate the govt. for the work they did e) Issue is if sanctions are remedial and for punishment how does that work? f) It is decided that civil forfeiture by the govt is punishment and sent back down to the lower court for them to decide if the 8th amendment applies – if it is punishment then why don’t the other protections of crim law apply? 2. Bajakajian 1998 a) This is the guy that was trying to take cash out of the country without reporting it and got caught and then lied. b) This violated 2 laws 1. that required the disclosure and 2. the prohibition against lying to federal officer which automatically makes it a felony (1) Preventive statute like (a) DUI – prevent DWI (b) Anti gratuity laws to prevent bribery c) Court says this is not instrumentality bec this is a procedure in personum and so it is a fine it is being imposed as part of the sentence d) Sentencing guidelines had a cap at 5,000 but the statute for lying had a cap of 250,000 e) They say that forfeiting the total amount of 357,000 is out of proportion f) How does this reconcile with Rummel, Solem, Harmelin, & Ewing? They held it was impossible to find the grossly disproportionate to a crime. To do that they have to decide how serious a crime is and punishment and that is left to the state. (1) Rummel 1980 – got life for 3rd offense of fraudulent use of a credit card for $80 (2) Solem 1983 – life for 7th non violent felony in 11 years and that was they let him off bec they say it is disproportionate (3) Harmelin 1991 – guy had 672 grams of coke and was sentenced to life in prison and the Supreme court affirmed (4) Ewing 2003 – 3 strikes statute shoplifting triggered life sentence applied the analysis of Harmelin rationality test G. Forfeiture and Right to Counsel 1. Underlying issue of people with money with ability to pay for high priced lawyers is that ok that differences in outcome based on income? This is almost a subtext issue that underlies this issue should we socialize the D bar? Should we just address that issue only? 2. 6th amendment just guarantees counsel not choice of counsel bec think about it when counsel is appointed they can’t choose CJA etc. 3. Why not lawyers on contingency why is that not allowed? a) Conflict of interest would lawyer have the incentive to go thru trial just so that they can try and get the money even though the client might be better off settling b) But what about the incentive to cut losses in a timely manner to avoid losing a lot of money and time 4. Monsanto 1989 a) Pretrial freezing of assets b) Third party transfers may still be subject to forfeiture unless innocent owner and had not reason to think that the property would be forfeited (1) What about presumption of innocence? (2) What about a bank robber caught in the bank with the money should they get to use the money to pay for lawyer? c) Drug dealer moved to unfreeze assets to pay a lawyer – Q is that ok under the 6th amendment right to counsel d) What is the probable cause needed for the freeze? Indictment – if a person can be held pre trial why not money e) Any money derived from as a result of such violation f) H – you have no right to hire a lawyer with someone else’s money 5. Caplin & Drysdale 1989 a) D gave firm 25,000 and the firm put money in escrow then the person plead guilty and was put on notice about forfeiture and the firm wanted the rest of the payment of 75,000 b) The govt wants to get the 25k from escrow c) Just bec something can be abused doesn’t make it unconstitutional d) You do not have a right under the 6th amendment to select a lawyer just to get 1 6. Unimex 9th circuit 1993 a) Company that was included in conspiracy b) All assets were frozen so the company could not get counsel and companies are not eligible for public defenders c) 2 Exceptions to Caplin (1) if no appointed counsel available (2) instances of abuse where assets denied but no hearing was given 7. Moffitt 4th circuit 1996 a) Money was given to a law firm to retain legal services after a filing listing the assets that were forfeitable and then a catch all listing that included assets that govt couldn’t find b) Govt is trying to get the money back from the law firm and the law firm is saying they are a bonafide purchaser for value but that doesn’t work bec court says they had notice that the assets were forfeitable c) Relation back doctrine has the govt. the legal owner of the money once the forfeiture went thru XIII. Computer Crime – CyberCrime A. Cybercrime 1. traditional crimes in the information era – so using different mediums like email or internet instead of the traditional like mail and phone 2. new crimes arising out of technology – like criemes that just exist within computers like hacking or the worms the flooding of computers to shut them down etc. 3. Large increase in the appearance of this type of crime being addressed in states but they lend themselves more to federal enforcement since they are in more than one jurisdiction often B. Why has it been growing? 1. more wired world we live in 70% on internet 2. internet is an open and anonymous environment where people don’t see eachother or the effect they have on eachother – cascading effect 3. federal law enforcement is proactive and so it can begin to address this whereas states are more reactive FBI has cyber crime as #3 threat 4. not a lot of published decisions in this area bec many of them settle before going before a judge C. What is cybercrime? 1. traditional crimes in the information age – Information crimes most of these are still prosecuted under the traditional mail and wire fraud laws that exist even though it is using the internet as a tool in the fraud a) Information crimes (1) Securities fraud 18 USC §§78, 18 USC §1348 – Nigerian hoax or phishing, crim bulletin boards (2) Threats cyberstalking-1st amendment issues (3) Wire Mail Fraud 18 USC §§ 1341 1343 b) distribution of child porn c) Identity theft – bank fraud – phishing selling personal information d) Internet gambling e) Child pornography – most numerous crime – a lot of interesting issues – new mens rea after Xcitement that person has to know that it is a minor. Another issue is the computer virtual generated child porn this found this is equally threatening but this was said to be free speech issue and struck the law down. 2. Computer Crime a) Hacking b) Web page defacement c) Viruses, Worms, and other malicious programs d) Denial of service 3. Types of hackers a) doing it for kicks b) technical professional criminals c) insiders who are trying to identify weaknesses d) disgruntled former employees D. Definitions 1. ISP – internet service provider – to access the web which is different then the internet 2. IP address – every computer has a unique IP address 3. System administrator & root account – part of network that has access to all parts of the network this is the target of hackers E. Fed Crim Law as Tool 1. Generally the existing law can be used for both cyber as well as traditional crime if the statute is drafted technology neutral 2. issues with investigation and enforcement 3. trespass and burglary require physical intrusion so that is a problem that congress will have to address 4. Investigation issues a) Should standards be the same in crim pro for cyber and real world crime – Search and Seizure and Electronics Privacy Act and Wi – Fi are issues b) Should email be treated the same as regular mail or phone conversations? It is not treated the same it is under the stored communication act says that ther is no privacy bec you give that to the ISP provider and so that if it has been opened and is on an ISP provider then there is no privacy 5. Wire tap act protects the actual content of information this is to gather information about the emails activities F. Federal Computer Fraud Abuse Act – 18 USC § 1030 1. What is it? a) Adopts approach of prohibiting unauthorized access to a protected computer that results in damage b) Mens rea –per Morris – reckless standard 2. Qs with this broad piece of legislation a) what is a protected computer? -govt computer any computer used in interstate commerce it is an easily met jurisdictional hook b) Access – (1) what about if you go to log in prompt but did not get in? (2) what about if it is a private spot? (3) What if they erase the trail? c) Unauthorized access? (1) This is the morris case – went and had access by the worm what kind of access did he have? He had acces to he computers as a student but he went beyond what he was authorized to do. (a) What about if he had access to certain functions but used others is that included? (b) So if that is the test then a lot of people would be seriously breaking the law since no one reads the terms of agreement (2) Morris 2d Circuit 1991 (a) Kid at cornell creates a worm using the school computer. The worm independently replicates and goes all over including govt computer (b) H -§ 1030 does not req the govt show intentionally loss of authorized use (c) MENS REA – recklessness or negligence (d) Unauthorized use – doesn’t mean there was no access to anything it just means you did not have access to everyone that was accessed. d) what is damage? (1) Do you include loss of reputation? (2) What about loss of business bec of busns interruption (3) Middleton 9th circuit 2000 (a) Ex employee of a company is disgruntled so breaks in and then deletes some programs and deletes some files (b) The term individual in the statute include persons and corporations (c) Damage – does not include costs to make the system more secure G. Digital Millennium Copyright Act 17 USC §§1201-1205 1. controversial 2. criminal facilitation statutes make it criminal to circumvent controlled access software on things like cds etc. also anti trafficking descramblers etc. H. Economic Espionage Act 18 USC §§1831,1832 1. directed at commercial theft of trade secrets XIV. Federal Sentencing Guidelines 28 USC § 991 A. Prior to the Guidelines 1. Judges had complete discretion 2. a lot of instances of disparate sentences and a lot of sentencing that looked discriminatory B. Under the Guidelines how it was 1. Procedure Using the Guidelines 2. The sentences after departures or enhancements could not exceed the statutory maximum 3. One factor that was decided as a fact that can increase the sentence without nec being in the indictment would be prior convictions – they have been found after due process etc. 4. Nationwide departure rates a) 65% are in the guideline range b) 17.4% are 5K1 recommendation for downward departure c) 16.5% downward departure bec of D request d) .8% departures above guidelines e) What does this tell us? Judges think the sentences are higher than they need to be 5. How you apply them a) Find what the particular offense guideline range is b) Determine RELEVANT CONDUCT (1) SAME COURSE OF CONDUCT (2) Includes all acts and omissions (3) Committed aided abetted counseled commanded induced procured (4) Reasonably foreseeable acts and omissions of others (5) As well as reasonably foreseeable consequences of others even if no conspiracy charge (6) ACQUITTED CONDUCT WILL BE CONSIDERED AS WELL c) Then using the level you get to based on relevant conduct and the actual indicted crime look what that particular level asks for important factors d) Deductions for helping cops; accepting responsibility or enhancement for prior convictions e) Using those you determine the appropriate guideline range f) The come enhancements or departures that are considered to see if you go out of the range that you just found. g) §5K 1 – upon motion of govt for substantial assistance in the investigation h) 18 USC § 3553e –Limited authority to impose a sentence below a statutory minimum – upon motion of govt the court can impose a sentence below a level established by statute as minimum 6. So why if the relevant conduct comes in does anyone plea? (1) To get responsibility reduction (2) To avoid the trial risk of other relevant conduct coming in (3) Limit the statutory range bec they can not go above the statutory max. C. Real Offense Sentencing Pre and Post FSG 1. Castellanos 11th circuit 1990 a) Drug case where the guy plead to 255 grams of cocaine but the sentencing report found more than 500 and the govt was saying 500 grams b) The court included the information that came out when Castellanos testified as a witness for the govt about the more cocaine and used the over 500 grams – Castellanos appeals c) For relevant conduct determinations during sentencing the court just needs to find indica of responsibility 2. Watts 1997 a) The court can consider conduct that the D was acquitted for – 18 USC § 3661 ‘no limitation shall be placed on the information’ 3. Edwards 1998 a) When more than one indictment and the jury gives a general verdict the judge can decide which to use for sentencing purposes. D. Pre – Blakely Cases 1. Mistretta 1989 a) Challenging the Federal Sentencing Guidelines (FSG) based on 2 constitutional charges (1) Separation of powers (2) Excessive delegation b) Limited job function so that no or little overlap with other branches – it does not pose any threats to the judiciary by its placement in there c) Intelligible principle found in the 4 concurrent purposes that Congress included 2. McMillan 1986 a) Challenge to the state’s mandatory minimum sentencing act – it reqd a minimum sentence for a crime if certain addtl factors were found b) Set up a test for determining if Winship protections applied and the factors to be found were actually elements of the crime c) “tail wagging dog” that the sentencing factor is actually what determines the sentence and not the substantive crimes tried 3. Almendarez-Torres a) H – judge can sentence someone beyond indicted offense statutory maximum based on prior convictions 4. Aprendi 2000 a) Q – whether 14th amendment due process requires that a factual determination authorizing an increase in the maximum prison sentence for an offense be made by a jury on the basis if proof beyond a reasonable doubt. b) H – other than the fact of a prior conviction any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 5. Melendez 1996 a) Q – whether a govt motion attesting to the D substantial assistance in a crim investigation and requesting that the district court depart below the min of applicable range also permits the district court to depart below any statutory min b) H – court can go below stat min ONLY upon motion by govt to do so but they can go below it per § 3553e 6. Wade 1992 a) Q – is the govt failure to file a motion for downward departure for substantial assistance subject to judicial review? b) Ct reviews for good faith basis for decision but it is still prosecutorial discretion it just can’t be discriminatory or based on non govt interests c) To trigger review the allegation must be the decision was made in bad faith 7. Koon 1996 a) Q – what is the appropriate level of review of district court decisions to depart from the guidelines b) H – abuse of discretion c) But congress is moving toward de novo review E. Blakely 2003 1. This is the review of a state sentencing structure which had a certain range for the offense if they met certain criteria. Then there was a separate statute that allowed departures from this if extraordinary factors were being considered that were not considered in the usual commission of the crime and listed some examples of type of circumstances that might be basis of upward departure from guidelines max 2. They say they are not ruling determinate sentencing schemes unconstitutional its about how it is implemented in accordance with the 6th amendment 3. 6th amendment requires that when a crime has a certain sentence applied and then if another fact found additl time added then a person has a right to have all facts bearing on that time found by a jury 4. A person can stipulate to the facts and in that way the sentence can be greater than what would normally accompany the offense alone in the settlements. 5. H – the sentencing guidelines maximums that apply to the convicted offense are just as binding as the statutory ones that were discussed in Aprendi. So now if there is a factor that is to be considered aggravating then it has to be decided by the jury judge can no longer find relevant facts that impact sentence in sentencing phase F. What does it mean? 1. In pending case FanFan, -there are two arguments going forward that a) Blakely has the same impact on FSG as it did on Washington’s sentencing in that it removes the ability to find facts that act to enhance the sentence someone is given. So this would be everything outside of the actual conviction the substantial assistance and the prior convictions. b) So the Q is does that mean that we have to go back to indeterminate sentencing when that led to such discriminatory impact? Or can they be saved by just severing the parts that don’t apply? c) Severability – (1) Can it be divided? If so can the jury find these issues? Like deliberate cruelty? 2. What about the separation of powers issue? Since judges decided all this before just without having to disclose the findings or reasoning upon which their decisions were based 3. Don’t you have more notice with the guidelines than you do without? 4. Who gains power from this decision a) Juries b) Defense – they have more bargaining chips bec prosecution has to prove more if they want more c) Judges lose power d) Prosecutors – may lose but they still have flexibility to charge all of the relevant conduct and so they also have more chips to play with 5. What alternative systems could be implemented? a) Advisory guidelines and back to discretion of judges b) Jurys take over the fact finding c) Take advantage of the McMillan loophole and just set minimums as maximums d) Set very high base offense levels to keep sentences up then the court has to make downward departures e) Scrap guidelines all together and just create minimums f) Legislature will not respond well and will begin to impose more statutory minimums g) Sever the guidelines and have the congress react to that G. Arguments against the Blakely line of cases 1. What is a sentencing factor and what is an element? 2. Policy issues 3. Breyer made an argument that this was not practical that given reality there is no way to implement this new system and that there will undoubtedly be unforeseen costs to this. Breyer outlines problems with this – (1) Complicated (2) Expensive (3) Will give more power to prosecutors who can decide what judges will hear 4. OConnor was saying that since they are keeping McMillan that they are leaving it wide open for them to just make the mins the maxs and just invert the process so that instead of finding bad stuff the judge decides good stuff for reduction purposes. XV. Anti-Terrorism & Criminal Enforcement A. General Legislation 1. Omnibus Diplomatic Security and Antiterrorism Act a) Focus on addressing international terrorism as it may impact American interests abroad. b) Set up compensation for victims c) Does NOT create any new crimes EXCEPT §2331 that makes it a crime to engage in terrorist acts that harm US nationals abroad. 2. The Antiterrorism and Effective Death Penalty Act a) Also used in criminal law like RICO etc. and is the first that starts to develop federal crimes that are aimed at terrorist acts. b) Expands on the provision for compensation for victims of terrorism c) Prohibits financial transactions with countries that support international terrorism d) Allows designation of ‘foreign terrorist organization’ and a freezing of their assets 3. USA Patriot Act a) Focus on increasing the strength of the law enforcement tools b) No restriction that the changes only apply to investigation of terrorist activity they are equally applicable to ordinary domestic crime. c) Loosen restrictions on electronic surveillance d) Loosens secrecy of grand jury trial deliberations e) Immigration matters f) Money laundering g) Modifies definitions of terrorism 4. Homeland Security Act a) Removed the INS and made it into a new agency under this one umbrella agency b) Left the FBI and CIA alone as free standing agencies in addition to this one c) Combined the Coast Guard and the Secret Service, customs service, border patrol, transportation security administration under this leadership B. Defining Terrorism 1. Terrorism is defined by statute and by administrative policy. 2. Different statutes provide different definitions of terrorism – 3. Some keep it general like §2339 defines it as purpose to coerce a govt. to do something or to retaliate against a govt. 4. Others use the general definition and then combine it with a listing of offenses 5. Others use a list of offenses 6. Othes don’t define it but say the determination is based on the harmful conduct engaged in 7. It is used for different things a) Sentencing factor b) Mens rea c) Actus rea 8. FBI recognizes 2 types of terrorism a) Domestic terrorism – violence by a group entirely in the US without foreign direction b) International terrorism – occur outside the US or transcend national boundaries in terms of the means by which they are accomplished C. Statutory Offenses Used in Terrorism Cases 1. The Question is what role should each branch of govt. play in the ‘war’ on terrorism? Does the court system play a role in this and if so how? 2. It has been determined that the court can not decide 3. Foreign policy decisions are not justiciable they are to be worked out betwn the legislative and executive branches – so this means they can not decide if some group is a govt. bec that would be the decision of the administration 4. The courts can not decide if there is a threat to national security. That is not their field of expertise. D. § 2339B Providing Material Support or Resources to a Foreign Terrorist Org 1. makes it a federal crime to knowingly provide material support or resources to a foreign terrorist organization 2339A defines what is material support or resources. 2. Before someone is found to be a ‘terrorist organization’ by the Secretary of State there must be notice if the org has substantial connections with the US, unless the govt. can show cause why there can not be. 3. The definition of substantial connections to merit constitutional protections is not clear 4. The standard of review is arbitrary and capricious for 1189 5. MENS REA for 2339B is not clear the court does not say whether it is strict liability or negligence etc. Jacobs thinks it is strict liability 6. Mojahedin v. US Dept. of State 1999, DC Circuit a) An organization had been designated a ‘foreign terrorist organization’ under §1189 b) § 1189 requires that 3 characteristics be found about the org before the designation (1) it must be a foreign organization (2) it must be a threat to national security (3) it must be involved in terrorist activity c) §1189 requires that the Secretary of State based on an administrative record make findings that an entity meets the above characteristics. But there is no notice to the party involved before the proceeding that this is being reviewed. There is no adversarial system in place there. d) Once the designation is made pursuant to §1189 then the org’s bank accounts in the US become subject to seizure and anyone who knowingly contributes financial support to the entity becomes subject to criminal prosecution. §2339B. e) Within that statute there is the provision for appealing such determinations to the court. The court can only review the record put together by the Secretary of State f) The court can not review the decision that the organization is a threat to national security g) In this case the organization claimed that it was not an organization but a govt. which the court could not decide on since the decision to recognize a govt is one of foreign policy and a political decision. h) Standard of review for these designations was found to be the arbitrary and capricious standard so the review is for substantial support not for the truth of the allegation or determination i) The court also here decides that the organization does not have sufficient ties with the US to fall within the constitutional protections and so lacks standing to sue. 7. National Council of Resistance Of Iran v. Dept. of State 2001 DC Circuit a) This case is a follow up to the last one in a way bec the designation as a terrorist org is good for only 2 years and has to be renewed. So this org is arguing against the designation being reapplied for another 2 years. The reason this is a different name is that the Dept. of State found that the two organizations were actually the same even though they had different names so this combines the two b) This organization has offices in the US as well as a small bank account so based on this the court finds that it meets the “substantial connections” test of contact with the US to guarantee it Constitutional protections but the court does not answer what qualifies as substantial only that this particular group meets it. c) Court finds under the 5th amendment they have a right to notice of the proceedings. d) Was this too much judicial intervention for the purposes of national security? Is giving them notice going to give them too much opportunity to restructure and form dummies to funnel money through? e) So what due process are they entitled to and when do they get it? f) What due process they get depends on 3 factors which were decided in Mathews v. Eldridge -(1) Private interest that will be affected by the official action (2) The risk of an erroneous deprivation of such interest of the procedure used and the probable value of additional or substitute procedural safeguards (3) Govt. interest fiscally and administratively g) So the govt. must provide notice and give the org the info that is not classified unless they make a showing why the notice is not advisable. E. What due process is due? 1. Notice 2. Opportunity to be heard F. US v. Rahmani 2002 California District Court 1. Criminal case 2339B prosecution of someone for funding the organization at issue in both the Moshejadin case and the NCRI case. 2. The D is arguing that they should be able to use the improper designation of the org by the SoS as a defense and the govt. is saying that they are precluded from that in two ways 1. by statute and 2. bec only the DC circuit can hear designation review claims 3. DC court found the application of the 1189 to the NCRI unconstitutional since there was no prior notice and opportunity to be heard except after the fact. The SoS went back and did it over and came to the same conclusion that it is a terrorist org. 4. The statute says the DC circuit can review the determination but does not meet the clear and convincing statement of intent to limit jurisdiction required. The court also claims there is an ethical obligation to review for constitutionality 5. The combination of the fact the statute limits request for review in court to the terrorist org and then says a person can’t use the designation as a defense is actually removing a person’s right to due process. And the judge can not have that be the case 6. But the D is not let off bec the only way lack of due process can let someone off is if it creates a prejudice that is only there bec of the lack of due process. If the same decision would have been reached regardless then it is not the basis. 7. But bec of the fact that an org can be denied constitutional protection of due process under 1189 and a person can’t raise that fact as a D then on its face 1189 is unconstitutional bec it can not be applied w/in the confines of the constitution. 8. The fact that the court found a way around it in the NCRI case does not cure it bec that is judge made law and not just interpretation. That is bec the statute only allows for post determination review and none before hand. G. US v. Lindh District ct. Virginia 2002 1. Criminal case based on several charges among them are §2339B of supporting various terrorist orgs like the Taliban al queda etc. each org resulting in separate charge 2. Went over to Pakistan to train and was fighting for the Taliban when captured. 3. The question is whether 2339B actually punishes based on association rather than concrete acts. But the court finds that terrorist orgs are not just associations they are violent orgs and that once you are a member that is what you do. 4. D – based on statutory intent and wording the activity of joining the org personally and fighting for them is not covered the statute is focused more on financial and recruiting type of support. 5. But the court finds that regardless of the statutory intent in the hx the plain meaning of the words indicate it does include the personal services H. US v. Goba – District ct. NY 2002 1. Deciding if the D can be detained pending trial for the crimes they have been charged with in order for that to be the case then the underlying crime must be one of violence and the D flight risks. Court determines § 2339B is a violent crime (giving financial support) 2. This is the case dealing with the 6 kids from Lackawanna NY who went over to train with al queda but did not see combat 3. They did not pay money they just provided themselves and were trained they did not do anything so did they give support? I. Boim v. Quranic Literacy 1. Civil suit 2. Is this now infringing on religious freedom? The court talks about the fine line betwn association and active participation with a group. 3. The court relies on the strenuous testing used to designate a terrorist org as foundation that any association with the org has to be for criminal/violent purposes and so falls under the conspiracy line in crim law. But Jacobs asks what is the process other than a substantial record upon which the SoS relies that can be made up of anything and is never tried etc. ? J. Defining the Action -War or Not? XVI. Extended Detention A. Extended Detention as Enemy Combatant ‘unlawful combatant’ B. Where does the authority to detain US citizens come from? Especially in light of § 4001a? Well in the current circumstances that authority came from the Authorization for Use of Military Force AUMF. C. Military Order §2 of the Bush Administration after 9/11 detailing how the war will be handled in respect to the enemy. D. US v. Hamdi 1. This is the one where the guy was captured in Afghanistan by the Northern Alliance and was then shipped back to the US as an enemy combatant. He was sent to military custody and was not granted lawyer or trial nothing. His father filed a claim on his behalf as his next friend and claimed 2. Appoint counsel 3. Order respondents to stop interrogating him 4. Declare he is being held in violation of his 5th and 4th amendment rights 5. Allow petitioners to produce proof of their factual claims 6. Order Hamdi released from his unlawful custody 7. In the district court they ruled that the govt had not produced sufficient evidence to show that Hamdi was an enemy combatant and that govt. needed to produce evidence like criminal trial. The govt. only produced an affidavit from someone in the SOS Mobbs. This is then overturned on appeal in which they say that the only review of the designation should be some evidence. Like they used in the § 1189 cases. Assuming the govt. is right and telling the truth and then just making sure they have a basis for it. 8. the first Q the court looks at – Does the President have the authority to detain citizens who qualify under enemy combatant which is defined as part of or supporting forces hostile to the US or coalition partners engaged in an armed conflict a) The court first looks to 4001a that says that no citizen shall be imprisoned or otherwise detained by US except by act of congress. The court finds that the Pres currently has that act of congress the Joint resolution that gave the president authority to do whatever necessary after 9/11. The D tried to say authorization by congress had to be on an individual level and not general/broad but the court rejected that. b) Pg. 10 “we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe 9. The next Q is What due process is constitutionally due to a citizen who disputes his enemy combatant status? a) Court says that absent suspension of habeas corpus by Congress it remains available to every individual detained in the US. b) The court turns to the Mathews test to find out what type of due process is due someone – which is to balance the private interest and the risk of erroneous deprivation against the govt. interest in burdens faced and other needs. c) The court says that liberty interest is great as the chance for error is as well. The court says that govt. would have a big burden if they had to adhere to criminal proceedings. 10. So the court says that a limited type of process is afforded to citizens who are detained as enemy combatants. a) Notice is required b) Right to be heard in response c) Meaningful amt. of time d) Heresay is allowed so a 3rd party can summarize what is included in military records e) Govt. has benefit of doubt and then burden shifts to the D to refute the evidence. 11. The court also found that the standard of proof of some evidence was not adequate and could only be used for administrative procedure rulings or after dispute has been heard by impartial 3rd party. But the court doesn’t say what the proper standard of proof is E. US v Padilla 1. This was the case of the Mexican American citizen that was originally held after coming back from Pakistan based on a material witness claim in NY that he had info about 9/11. The material witness detention then changed to enemy combatant by way of Presidential order. Padilla was then sent to a military base in South Carolina. Padilla filed a habeas corpeus claim in the Southern District of NY naming 3 respondents Rumsfeld, the warden/commander of the military prison he was in, and the President. The commander and the President were dismissed and Rumsfeld remained based on NY’s long arm statute. 2. The case went in favor of the govt. in the district court and then was reversed by the appellate court in favor of Padilla and Due Process 3. The questions presented to the Supreme Ct. were a) Did the president possess the authority to detain Padilla militarily? b) Was the Writ of Habeas Corpeus properly filed? c) The court did not reach the first question of whether the authority exists to designate a US citizen on US soil an enemy combatant without due process of law. The court instead focused on the question of law as to who is the necessary respondent in habeas proceedings. 4. In cases where it is about physical custody the respondent must be the immediate physical custodian of the person. So this would be the warden or in this case the commander of the prison. In cases where there is a type of custody being disputed that is not immediate and physical like a future custody or a release on your own recognizance in those cases then you look to who is in control of that particular type of custody regardless of what form it comes in. 5. Padilla’s habeas case then fails bec Rumsfeld is not his immediate captor but only in a high level supervisory role. 6. What is so different about Padilla that the govt. is treating him differently than they did Lindh who was afforded a trial? Why can’t Padilla get one? Is the information to convict him too classified? F. Rasul v US 1. This is the case where the detainees at Guantanamo from other countries tried to get a writ of habeas corpus that both they are innocent and that their detainment is a violation of the constitution as well as international law and treaties. 2. The Q before the court is does it have jurisdiction to hear these cases from foreign nationals being held in a space controlled by the US? 3. The court finds that it does but that power does not come from the constitution it comes from a statute § 2241 where Congress granted federal district courts the authority to hear applications for habeas corpus by any person who claims to be held in custody in violation of the constitution or laws or treaties of the US. 4. So as long as the respondent is within the jurisdiction of the court then it should be fine to sue even if they are not nationals or citizens. XVII. Criminal Prosecution in a Civilian Forum A. Moussaoui – 20th bomber of 9/11 is on trial in VA and is acting as his own attorney and has asked to speak to another suspected terrorist that has been an alleged conspirator in the 9/11 attacks as well. 1. Classified Information Procedures Act 18 USC APP §§1-16 2. Executive order, statute or regulation can identify classified information 3. There is a pre trial conference to discuss material and make a motion for some info to be classified 4. There can be protective orders put on D if the govt doesn’t want them talking about stuff that is classified 5. The court if it is convinced can authorize the US to delet specified items of classified ino from documents to make available to the D thru discrovery or to substitute a summary etc. 6. The D has to give notice to the govt if they plan on bringing up classified info that they know. 7. If they don’t do that then they may be prohibited from examination by D of any witness about the info 8. The US has to move for the court to conduct a hearing to see if the info should be classified. 9. Before the hearing the US has to provide the D with notice of the classified info that won’t be allowed if the D already knows it and if the D doesn’t know it then the info may be described generally 10. The US my be ordered by the court to provide the D details as to the portion of the indictment at issue or info at issue 11. If the info is found to be classified 12. they might just admit the stuff the classified info was trying to prove or 13. use a summary instead 14. The records about the hearing will be sealed if any portion is found to be classified for purposes of appeal which is allowed as interlocutory appeal. 15. Whenever a person is denied the right to disclose info then the indictment or information should be dismissed but if the court finds this is not in the interest of justice then 16. Dismiss specified counts only 17. Find for the US on charges the info pertains to 18. Striking or precluding the testimony of a witness 19. The US has to notify the D of the information it plans to use to prove that the info should be classified B. US v. Yunis 1989 1. Hijacking of a plane out of Beirut then with informant they get info on the person they think organized Yuni 2. Yuni requests information and the govt. moves to have it deemed classified under CIPA the district court rejects that classification using a 3 prong test 1. relevance 2. materiality 3. balancing govt. and D interest 3. Govt. appeals the higher court finds that since this is classified info they will review the lower court decision de novo instead of abuse of discretion. 4. So the court finds that there is relevance like the lower court finds but then redefines the second test of materiality by looking at Rovario which gave deference to govt privilege in the context of informants and found the same interests represented in classified info cases so as long as there is a major leitmate cause for privilege of the govt then the 2nd test should be deemed material only if it is at least helpful to the D of the accused. C. US v. Rezaq 1998 1. Another hijacking but this time they caught the people as they were hijacking and the only one to survive was Rezaq there is no dispute that he is the hijacker the only D was ‘insanity’ and ‘following military orders’ 2. There were documents that the govt felt were classified and petitioned the court to make classified the hearing over the motion and the documents was held IN CAMERA AND EXPARTE the judge decided which were classified and which discoverable 3. Of the discoverable items the govt moved to make substitutions for them instead of giving them the district court agreed and reviewed the substitutions IN CAMERA and then submitted the stuff to the D 4. The D is asking if the substituted material is adequate for the D and not harming their case 5. The court uses the abuse of discretion standard of review and finds that even though everything was done outside of the D input that it was done fairly etc. D. US v. Fernandez 1990 1. Iran/Contra issue against a CIA operative in Costa Rica. They are accusing the guy of taking part in it and he is saying that what he did was sanctioned and that in order to prove that they need to introduce classified material. Fernandez knew of the material before the trial and was not trying to find out new stuff. 2. The court finds that the information is not just relevant but very helpful to the defense and so discoverable. The appellate court finds the same that the information is essential and the basis of the D 3. The court also rejected the govt motion to substitute bec the substitutions did not provide a substantial enough basis for a D. The appellate court found the same to be true. 4. Looking at these two cases they went differently both procedurally and substantively. Rezaq was totally exparte and Fernandez was adversarial hearing about CIPA. Fernandez gave a much more detailed examination of the evidence in the opinion than Rezaq 5. Security clearance for D attorneys could be applied or an investigation of the person under the procedural regulations set forth pursuant to CIPA – there are claims this is unconstitutional violation of 6th amendment right to counsel but those have been denied US v. Jolliff; US v. Osama BinLaden the only other way to refuse it is to show that it was filed late and is only being used to harass XVIII. Foreign Intelligence Surveillance Act 50 USC §1803 (FISA) A. Probable causes needs to be shown that the target is a foreign power or agent of a foreign power. B. The Attorney General can authorize survellience without court order provided that there is no substantial likelihood that communications involving a US person will be overheard. C. How you define foreign power 1. Foreign country government 2. Terrorist group D. No requirement that the objects of the surveillance be notified about it E. Allowed even if target is not clearly defined F. AG has the power to order emergency situations G. If it results in crim prosecution then the other party may not have access to them and they may be reviewed in camera and ex parte H. Special treatment of FISA info if used in a criminal prosecution I. In re Sealed Case Nos 02001, 02002 2002 – this is the only FISA court appeal and they published the opinion. The issue was whether the court had the authority to limit the scope of the FISA surveillance and how the Patriot Act has changed the horizon 1. The Court found that there needs to be a significant purpose relating to something other than criminal prosecutions when requesting these things. That purpose is to be certified by the AG’s office and not decided or ruled on by the court. 2. The threshold for significant purpose was set really low as long as the option to deal with the agent in a none criminal prosecution way is realistic then it meets the test. 3. The other extreme that should be denied is if the surveillance would be for the purposes of gathering info about a crime in the past XIX. US Agents Acting Abroad A. This part was all about us killing people abroad or purposefully bec we think the are a terrorist. Assassination policy is that we don’t do it but we have done things that look just like it. So what should it be? Should there be killings etc..