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Tuesday, March 5, 2002 (Class 22) (Assignments 22-23)

McCleskey? v. Kemp

(continued)

[481 U.S. 279] 1987 United States Supreme Court (cb555)

• Capital punishment discussion--United States being one of very few countries that continues to execute people. Racial basis in sentencing and executions.
• Very few executions as a proportion of death sentence. People tend not to care so much about actual executions as death sentences.
• McClesky? shows 11:1 ratio on death penalty convictions based on race of victim. Tries to argue that this violates the arbitrariness standard set forth in Furman.
• Racial basis throughout system: where police patrol, who gets stopped, who gets arrested, etc.. To fix racial problems in justice system, you'd have to rebuild the entire system from the ground up.

Rape

• No crime has undergone greater transformation over last thirty years than rape.
• As recently as 1960's, needed not only corroboration of penetration (i.e., doctor's testimony) but also corroboration of identity of defendant.
• At that time, this was considered most progressive--progressive = make it hard to convict defendant, but also, ironically, meant anti-feminist.
• No jurisdiction currently requires corroboration on identitification.
• Although could not use prior activity of defendant in case, could use prior record of victim to exonerate defendant. (now it is possible to refer to prior activity, not to prove current activity, but to prove defendant may be lying).
• Model Penal Code definition of rape:
  • Crucial element is that defendant compels by force or threat victim to have sexual intercourse.
  • No resistance nor consent requirement on part of victim in Model Penal Code definition.
  • Mens rea not defined, thus should apply purposefully, knowingly, or recklessly (Model Penal Code § 2.02(3)).
  • What does recklessness apply to?
    • Could be victim's consent, compulsion by force, etc..
    • Thus, needs to be consciousness of risk which defendant then disregards.
    • Thus: defendant needs to be conscious of risk of compulsion that he then disregards.
  • Model Penal Code is thus not an easy standard for rape convictions.

Wednesday, March 6, 2002 (Class 23) (Assignment 23)

Brown v. State

[106 N.W. 536] 1906 Wisconsin Supreme Court (cb1081)

• 16 year old girl is walking in field, starts talking with 20 year old from neighborhing farm, who forces himself upon her and has intercourse.
• Jury found for girl; Wisconsin Supreme Court overturns conviction because girl did not use utmost resistance.
• In this case, utmost resistance appears to be an element of the crime (rather than evidence of non-consent.)
• Victim's failure to inflict actual damage on defendant, to this court, means elements of crime have not been proven.
• Although this is generally thought to be the 19th century standard, it persists for the most part until the 1970's.
• Standard requiring certain behavior of victim is quite unusual: don't require victim of robbery to be shot before handing over his wallet in order for defendant to be guilty of robbery.

People v. Dorsey

[429 N.Y.S.2d 828] 1980 New York State Supreme Court (cb1087)

• Victim is on elevator with 15 year old defendant male, much heavier and larger than she, he stops elevator between floors.
• According to victim's testimony, there was no resistance at all (even if standard had moved, by change of statute by legislature, from utmost resistance to earnest resistance.)
• Court says behavior just needs to be reasonable under the circumstances--since she was in elevator lack of visible earnest resistance was reasonable.

People v. Warren

[446 N.E.2d 591] 1983 Illinois Supreme Court (cb1093)

• Case suggesting resistance requirement still be applied in stranger rape.
• Reasonable person would find defendant's act wrong--people were strangers, he compelled stranger to have sex after meeting her on top of a hill on a bicycle.
• Court finds defendant did not sufficiently resist for conviction to be upheld.

People v. Barnes

[721 P.d 110] 1986 California Supreme Court

• Victim goes to defendant's house for marijuana, long (disputed) testimony ensues concerning defendant demands victim have intercourse with him.
• Jury convicts defendant of rape.
• Intermediate appellate court concluded that rape occurs when victim resists defendant but fails to overcome defendant's force. Court seems to rely on rape case before statutory amendment was made.
• Why did appellate court rely on old standard?
  • Maybe neither side's council relied on new statute.
  • Maybe court didn't like the new standard.
• Old standard: resistance is overcome by force of violence or person is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution.
• New standard: act of sexual intercourse...accomplished against a person's will by means of force or fear of immediate and unlawful bodily injury on the person or another.
• Objective standard: even if victim was in fear, if reasonable person would not have been in fear, then crime was not committed. Thus: if defendant intended to frighten victim, and she was afraid, but a reasonable person would not have been frightened, then crime is not committed.

State v. Smith

[554 A.2d 713] 1989 Connecticut Supreme Court

• Connecticut has no requirement on resistance, little focus on force. Question is 'Was this sex against the consent of victim?'
• Acquaintance rape situation: after victim spits at and kicks defendant, is following conduct consensual as opposed to forceable?
• If test is whether reasonable person in defendant's position would have been aware that this was not consensual, then state of mind that state would need to prove vis-a-vis element of consent is negligence.
• Court concludes that no 'specific' intent is needed, only 'general' intent to do acts which cause harm, rejecting standard which requires defendant to have actual awareness or reckless disregard for nonconsenting status.
• Court contrasts with British House of Lords decision where Court found defendant innocent because he didn't believe act was non-consensual, regardless of what reasonable person would think.

Question to ask: even with these different standards, would there be actually different results in these cases?

New York holds on to word 'resistance'; unless it is totally within the eyes of jury, might make it somewhat harder to get conviction in Smith and Barnes, although you can find elements of resistance in those cases.

Would have no problem getting conviction in Dorsey in Connecticut or California, however.

Deal with MTS and Fisher tomorrow.

Tuesday, March 12, 2002 (Class 25) (Assignment 25)

• Theft: criminal law 'mirror image' of civil issues in contract law
• Mitchneck case: very formal treatment of theft. Would have been a difference if employees had receive their paycheck and handed the money back to Mitchneck (this would embezzlement), rather than him keeping it, in which case it as never 'their' property.

'Taking' Element of Theft

• 'Ancient' cases (Carrier, Chisser, Pear): all deal with problem of possession.
  • Carrier: person who was paid to carry item from point A to point B kept item for themself. In 1473, needed to actually take property from victim for this to be larceny. Court came up with doctrine that person giving package has given up package but not given up contents. When carrier 'breaks bulk' (opens the package) at that point he took possession of something that hadn't been given to him. First conceptual step towards dealing with possession.
  • Carrier case would now would be considered embezzlement.
  • Rex v. Chisser: problem of person being given item in store to look at and then absconding with. Too alternatives: one is that it was never actually out of possession of storekeeper even if it was handed over, the other is that because the defendant intended to steal from the moment he asked for it, he obtained possession by 'trick'. False motive turned into into illegal taking.
  • Second theory in Chisser now exists as false pretenses. Model Penal Code § 223.3: theft by deception.
  • Pears case: e.g., go to rent a horse, then keep it. Same problem as Carrier, is it theft by deception, or does thief only gain possession when he doesn't return the horse? Under latter case, we have modern embezzlement.
  • Theoretically, need to prove crime with which you've been charged, i.e., embezzlement or false pretenses. This is why Model Penal Code and many states combine different forms of theft into single crime.

• State of mind: taking with purpose of depriving owner of property permanently.
• Most jurisdictions have crime of 'unauthorized use of a motor vehicle', to deal with people who 'steal' cars for purpose of riding around in them and then leaving them, since they don't have purpose of depriving owner of property permanently.
• Robbery issue: what if defendant thinks he has claim of right to property, does this still constitute purposeful taking of property of another with intent to deprive?

Lund v. Commonwealth

[232 S.E.2d 745] 1977 Virginia Supreme Court (cb1034)

• Defendant Lund, graduate student at VPI, accused of stealing 'computer time'.
• Court finds that 'computer time' cannot be considered goods or chattel.
• Typically jurisdictions have separate criminal statutes for theft of electronic or telephone services, etc..

People v. Sattlekau

[140 N.Y.S. 805] 1907 New York Supreme Court (cb1037)

• Is issue that defendant didn't make misrepresentations, or is there some other element that's missing?
• Not only need to make misrepresentation of present fact, but needs to be of material fact, and victim needs to act on reliance on fact. Defendant claims victim did not rely on misrepresentation.
• What if post-dated check were given for COD payment? Is this fraud/misrepresentation of material fact, relied on in case of delivery?
• Concern that jury will interpret post-dated check as a promise rather than a misrepresentation of material fact. Model Penal Code § 223.3 says that deception will not be found on basis that defendant did not follow through on promise alone.

Mail Fraud

• Moving from common law to statutory crimes.
• Sweep of mail fraud is extremely broad.

Durland v. United States

[161 U.S. 306] 1896 United States Supreme Court (cb1043)

• Defendants sent out letter asking for $5 and promising high return on investment.
• Inchoate crime: doesn't matter whether anyone lost any money or sent them any money. Crime is committed simply by doing the act; doesn't matter if there is a victim.
• Elements of crime: need to have a scheme to defraud which is placed in mail.
• Doesn't require misstatement of present fact, doesn't require materiality, doesn't require reliance. All that is required is scheme to defraud and use of mail.
• Counts as mail as long as mail is used in almost any part of scheme.

United States v. King

[860 F.2d 54] 1988 2nd Circuit Court of Appeals (cb1045)

• Defendants entered into scheme with municipality to avoid competitive bidding requirements by splitting purchase order into smaller separate purchases. Defendants would get contract and give kickback to city officials.
• Defense: city paid a fair price.
• Court held that defense didn't matter, since mail fraud is an inchoate crime. Whether it actually cost someone money in the end doesn't matter, only whether they had purpose to cheat.

United States v. Regent Office Supply

[421 F.1d 1174] 1970 2nd Circuit Court of Appeals (cb1047)

• Defendants were charged with mail fraud because they claimed to be referred to them by a friend when trying to make telephone sale.
• Court doesn't find misrepresentation to be material--was not part of bargain that was eventually made, thus will not find defendants guilty of mail fraud.

United States v. Starr

[816 F.2d 94] 1987 2d Circuit Court of Appeals (cb1047)

• Defendant was paid to sort and send mail by clients, ended up hiding higher cost mail in bags of low cost mail.
• Court found defendant's action not to constitute mail fraud because they did not think defendant's customers were actually 'harmed'.

United States v. Walters

[997 F.2d 1219] 1993 7th Circuit Court of Appeals (cb1048)

• Defendant offered to be agent of college athletes covertly against NCAA rules, offering them money, etc..
• Who was deprived of what? Somewhat questionable that colleges lost anything.

Carpenter v. United States

[484 U.S 19] 1987 Supreme Court

• Prior to Carpenter, government brought mail fraud case against Kentucky politician (McNally?), charging him with depriving voters of Kentucky with right to honest government with insurance scheme. Court held in that case that mail fraud does not protect 'intangible rights' like honest government. Statute was then amended to include 'intangible property'.
• Defendants alleged to have defrauded Wall Street Journal by sharing information and purchasing stocks in advance of printing of stock column.
• Defense: what property was it defendant's purpose to steal?
• Court holds what defendant stole was 'intangible property rights' held by Wall Street Journal in that information.

Extortion

People v. Dioguardi

[203 N.Y.S.2d 870] 1960 New York Court of Appeals (cb1053)

• Victims run office supply business, union picket line starts outside, business is concerned that truck drivers will honor pick line and they will be put out of business.
• If you assume many facts about 'corrupt unions' that aren't actually present in case, then it is an easy extortion case; problem is that they don't prove any actual corruption.

State v. Harrington

[260 A.2d 692] 1969 (cb1059)

• Harrington hires someone to get in bed with client's husband, takes pictures to provide incriminating evidence in divorce action.
• Wife then uses photos to demand settlement, otherwise threatens to bring divorce suit.

Blackmail

• Possible justification: preserve government's right to monopoly in law enforcement

For tomorrow, Heather's row is 'on'.

Thursday, March 14, 2002 (Class 27) (Assignment 27)

• Discussion of mail fraud and Carpenter case--allows federal prosecutors very wide leeway. Could not prove securities violation, instead went for mail fraud.
• Extortion: distinguished from fraud in that information may be true and is a threat.

McCormick? v. United States

[500 U.S. 257] 1991 United States Supreme Court (cb1063)

• Defendant, State Representative McCormick?, accepted money from foreign doctors and supported bill to preserve their license.
• Evidence that people thought there was something wrong: neither side reported the contribution.
• Prosecution charges defendant with Hobbs Act violation, i.e., extortion.
• Not supposed to actually make a contract in accepting money. Cannot accept money on condition of political action.

Evans v. United States

[504 U.S. 255] 1992 United States Supreme Court (cb1068)

• FBI agent goes undercover and offers a bribe to Evans, which he accepts. He then went on to help to rezone land.
• Unusual extortion claim, no threat involved. Court upheld conviction. Only promise is required, not actual performance, to constitute Hobbs Act violation.

United States v. Albertson

[971 F. Supp. 837] 1997 District Court of Delaware (cb1068)

• Defendant opposed construction project, offered to stop opposing project in return for sponsorship of football stadium.
• Court finds defendant did not violate Hobbs Act; there was a 'level playing field'.
• Deeper problem (not mentioned by court) is that defendant was not a government actor.

Robbery

• Model Penal Code does not define mental state with respect to 'inflicts serious bodily injury' in course of committing a theft, thus defendant would at least need to be reckless with respect to infliction of injury.
• Purposely is used in grading section--thus might apply to entire statute.
• Robbery can elevate crime to felony, thus to felony murder, thus to capital murder in some jurisdictions.

Burglary

• Entry into premises with intent to commit a crime--will return when we deal with attempts.

Self-Defense

• Justification v. Excuse
  • If behavior is justified, that means it is socially approved behavior--something you should do. E.g., injuring someone to protect yourself or others.
  • Excused behavior is not desirable but person has no choice, e.g., insanity defense.
• Model Penal Code does not make distinction between justification and excuse.
• Important difference whether criminal law is viewed as utilitarian or retribution.
• Utilitarian: should allow excuse up to the point where social utility will increase.
• Retribution: any response to something that is interfering with victim's right is acceptable, may not be proportional.
• Issue of person who mistakenly kills in self-defense: do we think this is appropriate since person thought their rights were being violated, or not appropriate because it doesn't increase social utility when people commit murder when they're not sure they are in danger.

People v. La Voie

[395 P.2d 1001] 1964 Colorado Supreme Court (cb576)

• Court directed jury to give verdict of not guilty. Judgment of not guilty is entered, case is appealed.
• Colorado permits prosecutor to appeal not guilty verdicts, not to overturn trial, but to get opinion of appeals court that trial court erred.
• Pharmacist was driving home from work late at night, stopped at red light, intoxicated men hit his car push it through red light. He exits car with gun, one man advances towards him and he shoots him.
• Does self-defense need to be based on both subjective and objective belief of danger? (must be sincere and reasonable belief).
• Model Penal Code self defense provision doesn't address reasonable belief--only talks about what defendant personally believed.
• But--where actor is reckless or negligent in having belief, cannot use defense.

For next class, Bob to Christina are 'on'.

Tuesday, March 19, 2002 (Class 28) (Assignments 28-29)

People v. La Voie

[395 P.2d 1001] 1964 Colorado Supreme Court (cb576)

• Should a judge, as a matter of law, decide that a defendant is entitled to self-defense justification?
• Judge in La Voie finds that defendant had right of self-defense as a matter of law.
• When Judge decides right to self-defense, suggests that act is desirable.
• Unusual for judge to make this sort of decision, since it usually reflects the moral sense of the community.

• Model Penal Code § 3.04(b): The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if...
• Question is: what does deadly force mean for purposes of model penal code? What is force could have been deadly but wasn't?
• § 3.11: A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force.
• Thus defendant who takes out gun without intent to kill is not exerting deadly force.
• But what if victim then approaches defendant, struggle ensues, victim is shot. Is this use of deadly force justified/excused?
• Different rules in self-defense for force and deadly force, different circumstances. Lose right of self-defense if you are aggressor; once situation escalates, however, you can regain it.
• Model Penal Code prohibits self-defense when actor can avoid situation by refraining from any activity he has no duty to do. Utilitarian justification. But from a 'rights' or 'moral' perspective, this is anathema.
• Model Penal Code: only crimes that deadly force can be used to prevent are kidnapping and rape; otherwise there must be threat of serious bodily injury.
• Shift from objective to subjective standard = vision of world enforced by judge in which certain levels of physical pain inflicted were 'okay' to vision that allows victim to be one to decide risk to be stopped.
• Model Penal Code § 3.05 allows use of force to protect another when actor would be justified under § 3.04 if he were in the situation of the other person. Majority of states go with Model Penal Code that reasonable perception of person who intervenes is what matters for defense of others justification. Minority of states say you actually need to be in situation of person you're trying to help.

State v. Leidholm

[334 N.W.2d 811] 1983 North Dakota Supreme Court (cb581)

• According to North Dakota statute interpreted by Supreme Court, statute is open to subjective or objetive standard of reasonability. Court picks subjective standard for this case.
• Supreme Court says it has always held that subjective standard is appropriate for self-defense because it is 'more just'.
• Subjective standard--'evidentiary decision'--allows jury to consider more information than under objective standard.
• Jury should be able to act on defendant's subjective situation.
• Model Penal Code believes that people who kill because they genuinely believe they are about to be killed are morally quite different from other people who kill.
• Old instructions required jury to evaluate defendant's decision 'regardless of sex' -- this would generally mean male standard.
• Court holds new instructions need to be used: defendant had 'honest, reasonable ground to believe' that they were in danger of serious bodily injury.
• Doesn't hold that belief must just be 'honest', because this would allow too many situations to be justified.
• Classic argument against 'battered woman'' defense: defendant could have left--why didn't they leave if situation was so bad?
• 'Battered woman syndrome' evidence is strange in that defendant's testimony may not have been impeached yet, but evidence seems to serve to rehabilitate defendant.
• Now that battered woman testimony is admissible, court holds that no specific instruction on battered woman syndrome is needed because it would be accounted for in subjective instruction.
• Concern with giving battered woman instruction: suggests that it is a defense in and of itself, whereas really it's supposed to fit within self-defense.
• Counter-argument: doesn't fit within self-defense, should be separate defense.

Julie to Rob are 'on' for next class.

Wednesday, March 20, 2002 (Class 29) (Assignments 29-30)

• Model Penal Code requires retreat only when can be done in complete safety.
• Most jurisdictions do not require retreat, very few require retreat from one's dwelling.

People v. Goetz

[497 N.E.2d 41] 1986 New York Court of Appeals (cb610)

• Grand jury instruction gave 'objective' instruction as to reasonableness, Goetz is challenging jury instruction. Claims that standard is not whether his belief was objectively reasonable but reasonable to him.
• Court holds that standard is that person 'reasonably believes' that force is necessary; reasonable person would be in circumstances of defendant, including experiences.
• Why did judge give jury self-defense instruction?
• Person is authorized to use deadly force if he believes there is forcible robbery.
• Goetz is ultimately acquitted on all charges except carrying firearm; court found Grand Jury standard was correct statement of law, just that defendant's circumstances can be taken into account in determining 'objectively reasonable'.

People v. Abbott

(cb616)

• Case essentially ended idea of rehabilitation in prison system.
• Abbott attacked waiter from restaurant in alley, thinking the waiter was attacking him, based on his experiences in prison, although later realized this wasn't at all true.
• Under Model Penal Code would not be murder.
• Difficult to have doctrine that encompasses Leidholm without excusing Goetz and Abbott.

United States v. Peterson

[483 F.2d 1222] 1973 United States Court of Appeals DC Circuit (cb618)

• Keitt and friends were drinking, drove up to Peterson's house and started to steal windshield wipers.
• Peterson threatens Keitt with gun, Keitt gets wrench from car, Peterson tells Keitt not to take another step, then when Keitt steps forward, Peterson kills Keitt.
• Why does Court hold that Peterson does not have right to self-defense?
  • Peterson was aggressor. Could have used commensurate force but not deadly force.
• Under Model Penal Code, pointing gun is not "deadly force". Thus Peterson would have right to self-defense since he was not using deadly force and Keitt was aggressor with wrench.
• Alternatively under Model Penal Code § 3.04(b)(i) the actor, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; thus could find that Peterson provoke the use of force against himself. Different from Court's reasoning that right to self-defense needed to bo commensurate at beginning.

Tennessee v. Garner

[471 U.S. 1] 1985 United States Supreme Court (cb624)

• Police officer shot 15 year old who was escaping from robbery but was unarmed and not dangerous.
• Tennessee law permitted police to use deadly force to prevent escape from robbery.
• Model Penal Code would permit shooting if actor had reasonable belief that victim was armed.
• Supreme Court finds law unconstitutional as applied in this case, because it doesn't meet the test of 'reasonable' search and seizure. No reason to think person is dangerous.

Tomorrow Cathleen to Darren are 'on'.

Thursday, March 21, 2002 (Class 30) (Assignments 30-31)

Tennessee v. Garner

(continued)

[471 U.S. 1] 1985 United States Supreme Court (cb624)

• When would it be acceptable for officer to shoot suspect, other than in self-defense or defense of others?
  • If the officer has cause to believe the fleeing felon poses a danger to others in his flight.
  • When officer has reason to believe the felon just committed crime of violence.
• Should our system permit officers to shoot after the crime? Is this to prevent further damage, or because we don't like the idea of felon getting away?

People v. Couch

[439 N.W.2d 354] 1989 Michigan Court of Appeals (cb629)

• Michigan law allows use of deadly force in self-defense of felonious theft--i.e., someone stealing your car.
• Does constitution force state to characterize this behavior as criminal?

People v. Ceballos

[526 P.2d 241] 1974 California Supreme Court (cb631)

• 'Spring gun' cases
• Two issues
  • Would Ceballos have been entitled to shoot had he been present?
    • No: protecting property does not justify taking life.
    • However: cases where homeowner shoots burglar are almost never prosecuted, and almost never end in conviction, because homeowner can always make argument that he thought there was danger.
  • Is there a difference between the spring gun and Ceballos hiding with gun?
    • Even if he would have been justified in firing if he had been present, might lose right to self-defense if he is sleeping, and thus not actually making decision to use force.
• Model Penal Code § 3.02: (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.
• Is Model Penal Code requiring objective or subjective standard for choice of evils defense?

The Queen v. Dudley & Stephens

[14 Q.B.D. 273] 1884 Queen's Bench Division (cb637)

• Four men were going to sale from London to Australia, known to be risky venture.
• Accident happened, men were lost at sea for many days, were about to starve to death.
• Killed youngest person and ate him for sustenance.
• Court delivered opinion that defendants committed murder, knowing that sentences would be commuted.

Beth to Elizabeth are 'on' for next class, on 'duress'.

Tuesday, March 26, 2002 (Class 31) (Assignments 31-32)

• Model Penal Code would allow burning down someone's house to prevent entire town from burning.

People v. Unger

[362 N.E.2d 319] 1977 Illinois Supreme Court (cb649)

• Prisoner, after being assaulted and sexually molested, escapes to avoid further attacks.
• Had been serving a one- to three-year term for auto theft.
• After being caught, is sentenced to three- to nine-year term for escape.
• Supreme Court actually finds that defendant was entitled to submit defense of necessity to jury, overruling error by lower court.
• Prosecution argues that court should follow Lovercamp, California decision which required prisoner to do everything possible within prison system before escaping, and then report themselves to authorities as soon as they do escape.
• Lovercamp standard, realistically, is of little use to escapees, since most likely result of reporting oneself is to be returned to the same conditions they were escaping from.

State v. Warshaw

[410 A.2d 1000] 1980 Vermont Supreme Court (cb655)

• Defendant protestors were trying to stop a nuclear power plant from restarting, claiming necessity.
• Court rejects necessity defense:
  • Majority Opinion: Danger must be imminent/immediate, thus defense can't be presented.
  • Concurrence: Policy decision by legislature and regulatory agencies, ergo no defense.
  • Dissent: Danger might have been immediate, but defendants weren't given chance to introduce evidence on these dangers. Also, congress never intended that person who is preventing nuclear disaster to be barred from using necessity defense.

State v. Crawford

[861 P.2d 791] 1993 Kansas Supreme Court (cb664)

• Defendant committed several burglaries, forced people to help him, etc., claiming that he was under duress to pay back cocaine debt to dealer who threatened to harm him and his family.
• Defendant got duress jury instruction, but instruction said threat must be imminent.
• Myers precedent requires continuous threat as well.
• Court wants to limit duress to situations where defendant doesn't have physical ability to do anything other than criminal conduct

Michelle to April for tomorrow's class (first insanity class).

Wednesday, March 27, 2002 (Class 32) (Assignments 32-33)

United States v. Contento-Pachon

[723 F.2d 691] 1984 9th Circuit Court of Appeals (cb673)

• Contento-Pachon is threatened with death of family unless he swallows cocaine balloons for import into United States.
• Court held there was sufficient evidence for jury to consider duress defense in this case.
• Case distinguished from Crawford because Crawford put himself in position (by purchasing cocaine and accruing debt) while Contento-Pachon thought he was getting a job driving a car for someone and then was forced into smuggling cocaine.
• Reasonableness of fear may have been in question in Crawford while it was assumed in Contento-Pachon.
• Model Penal Code standard for duress: 'person of reasonable firmness'.

Williams v. State

[646 A.2d 1101] 1994 Maryland Court of Appeals (cb675)

• Defendant claimed he was abducted by three men who thought he knew about drug stash, told them drugs were at victim's house.
• Under Model Penal Code, if person was reckless is getting into situation, duress defense is unavailable. If the person was negligent, they can only be held guilty of crimes were mens rea requirement in negligence.
• Under facts of this case, defendant was convicted of attempted robbery with deadly weapon.

• English case which barred duress defense whenever charge was homicide, because if duress is 'lesser evil' defense, there homicide is always greater evil. Involved IRA bombing. House of Lords overturned, saying that duress should be available as a defense even in homicide cases, as long as defendant did not actually pull trigger.
• Model Penal Code does not say crime in question needs to be less serious than one threatened against person exerted duress defense

State v. Hunter

[740 P.2d 559] 1987 Kansas Supreme Court (cb677)

• Hunter was hitchhiking, was enlisted by driver in aiding homicide by keeping watch. Reasonable evidence that Hunter had no opportunity to escape.
• Court allows duress when only connection to homicide is felony murder, as opposed to situation where defendant actually pulls the trigger.
• Once duress is defense for homicide, it no longer becomes a 'lesser evil' defense.

• Some courts have extended Battered Woman Syndrome defense from 'self-defense' to 'duress'. Problem: suggests that woman is not 'free moral agent', simply carrying out will of the batterer.

• Hypothetical of drunks lying in road. In first case, person is in car with another person who has a gun to his head and tells him to run over people or he'll be shot. In second case, no person with gun but breaks have failed. Model Penal Code would allow duress defense in first situation. Can necessity be used in second case, where two lives are being sacrificed to save one?
• Model Penal Code: In duress case, 'at least someone is guilty', although under necessity there is no other guilty party.
• Arguably, don't need duress defense, because no jury would convict someone in these circumstances.

Insanity

People v. Serravo

[823 P.2d 128] 1992 Colorado Supreme Court (cb689)

• Prosecution is taking advantage of procedure in Colorado that allows appeal of acquittal for purposes of getting clarity on point of law.
• Defendant was found not guilty by reason of insanity.
• Serravo stabbed wife, claims he thought God told him to. Told police and wife that intruder entered house and attacked her.
• Sanity and insanity are not medical categories--but are questions of law decided by judges and lawyers.

Nicole to Helen are 'on' for tomorrow.

Thursday, March 28, 2002 (Class 33) (Assignments 33-34)

Three places in Criminal Justice system where mental situation comes into play:

• Competent to stand trial
• Insanity defense at trial
• Competent for execution

Anyone who raises NGI defense has already passed competency test. Issue of forcing defendant to take anti-psychotic drugs in order to be competent to stand trial.

People v. Serravo

(continued)

[823 P.2d 128] 1992 Colorado Supreme Court (cb689)

• Trial court gave jury instruction that if defendant was "incapable of distinguishing right from wrong" then defendant is not guilty. Question as to whether wrong means legally wrong or morally wrong.
• How to distinguish Warshaw and Terry: defendants don't believe themselves to be insane. The defendant thinks they're doing the right thing because they believe it is morally correct.
• Court holds that societal standard should be used for 'right' and 'wrong', not defendant's personal standard.
• What possible moral order would permit killing wife to open sports complex (as Serravo claimed)?
• Most jurisdictions use test like Colorado, known as M'Nagthen rule. Criticized as being cognitive but actually has large emotional component as well.
• M'Naghten imagined mind as split between feeling and thinking, where insanity only effected the latter. Criticized by psychology because it artifically divided human consciousness.
• Durham case changed doctrine to allow psychological and psychiatric evidence, allowed for irrestible impulse defense.

• Model Penal Code definition of insanity: substantial capacity to appreciate criminality and substantial capacity to conform behavior to the law. Focuses both on cognition and behavior.
• After attempted assassination of Ronald Reagan, major reform of insanity laws occurred: majority reverted to M'Naghten rule, some have 'guilty and insane', minority retain Model Penal Code rule.

Smith v. State

[614 P.2d 300] 1980 Alaska Supreme Court (cb712)

• Attempt to apply American Law Institute Insanity test
• Smith was soldier who was being dismissed for being 'non-aggressive soldier'. Got gun, took a vehicle, was trying to get out of Alaska. Pursued by police, eventually shot police officer.
• Smith was headed North, very difficult to escape from Alaska by going in that direction.
• Psychiatrist gave evidence that defendant was not mentally ill: he could drive, got a gun, drove out a gate. Comes close to sayig 'if you can function at all in the world, you are not mentally ill.'

Tuesday, April 2, 2002 (Class 34) (Assignments 34-35)

• Clear cut psychotic cases don't ever make it to trial for insanity defense--usually in these cases the dispute, if any, is in the competency hearing.
• Post-Hinckley effort to stop psychiatrists to testifying about legal effect of insanity: Federal rules of evidence: no expert witness can testify as to whether defendant had mental state that was element of crime charged.
• In close case, you may not want jury instruction on insanity, because then jury has option of sending defendant to mental institution; otherwise they may acquit rather than convict.
• As defense council, if you believe prosecution may not have strong case, you may only ask for instruction on more serious charge (i.e., murder/depraved heart).

Jordan Weaver Case

• As a result of bad acid trip, Weaver attacks his girlfriend, becomes incredibly violent.
• Options: Attempted Murder, attempted manslaughter, battery.
• Malk case: if underlying psychosis is triggered by intoxication, then intoxication does not matter in terms of insanity defense.
• Can Weaver be convicted of attempted murder if he is not conscious of what he is doing?
• Model Penal Code § 2.08:

1. Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense unless it negatives an element of the offense.
2. When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.

• Thus, under Model Penal Code, would not be guilty of purposeful or knowledge crime.
• If 'intent' is requirement for attempted murder, can Weaver be found guilty under Model Penal Code?

Diminished Capacity

• Shouldn't existence of mental illness ameliorate seriousness of offense?
• Criminal Justice System has answered no.

Jenny to Tara are 'on' for tomorrow.

Wednesday, April 3, 2002 (Class 35) (Assignment 36)

• Retributivist vs. Deterrent Theories of Punishing Attempts
  • Prevent a form of behavior that, does not in itself produce a bad result, but has a tendency to produce a bad result
• Should attempts been punished as harshly as successes? Depends on justification for punishment.
• Majority standard, as in Lyerla, is that you can't be guilty of attempted murder unless you intend to kill them, even if you had killed them, it would have been murder. Reflected in Model Penal Code § 5.01.
• Example situation under Model Penal Code: Statutory Rape. Person believes person is 19, she is really 15. Before engaging in sexual conduct, police arrive. Is this attempted statutory rape?
  • Under § 5.01 (a), would not be guilty, because he does not believe circumstances to be such that his conduct would be a crime, even though crime itself is probably strict liability.
  • Under (c), however, might be guilty, since defendant was doing everything required for crime, including mental state, to be guilty had he succeeded (because statutory rape has no state of mind requirement).

People v. Murray

[15 Cal. 160] 1859 California Supreme Court (cb765)

• Murray made preparations to marry his niece, but never actually went through with ceremony. Question is whether this should be considered an attempt.
• Question of line between preparation and attempt.
• Standard is that if, but for the intervention of circumstances independent of the will of the defendant, crime would have occurred.
• Thus, Murray is not guilty, he only prepared but did not attempt to marry his niece.

• Model Penal Code calls for substantial step in course of conduct, must be 'strongly corroborative' of actor's criminal purpose.

• For Thursday, will start with McQuirter? v. State. Nicholas to Max are 'on'.

Thursday, April 4, 2002 (Class 36) (Assignment 36)

• Attempt Doctrines
  • Dangerous proximity
  • Indispensable element
  • Probable desistance
  • Abnormal step approach
  • Unequivocality test

McQuirter? v. State

[63 So. 2d 388] 1953 Alabama Court of Appeals (cb769)

• 'Abnormal step' theory of attempt
• Black defendant, claimed he was standing on street and walking on street. According to white "victim's" report, he got within a few feet of her, and that he attempted an assault with an intent to rape.
• Defendant is sentenced to $500 fine, hard to believe that that was punishment for attempting rape--did jury really believe defendant committed a crime?

• Evidences for attempts:
  • Confession - McQuirter?
  • Informant - Buffigton and Jackson
  • Prior record - Maas
• Can't get to conviction based just on what defendant does (in case like McQuirter?), can't get to conviction based solely on confession. If McQuirter? had been white, this would not have ended in conviction.

People v. Rizzo

[158 N.E. 888] 1927 New York Court of Appeals (cb772)

• Rizzo and companions were driving around city looking for payroll man to rob, but intended victim did not actually exist.
• Court holds that defendants were never dangerously proximate to committing crime.
• Crime defendants have committed is conspiracy--they have agreed that to work together to commit a crime.
• Defendants are charged with attempt, however, not conspiracy.
• Under Model Penal Code, defendant's actions might be considered substantial step under § 5.01 (2)(a) lying in wait, searching for or following the contemplated victim of the crime.
• Other three defendants did not appeal, however, but they have no recourse through the court, even though New York Court of Appeals is saying that they committed no crime.

• Further back in time and space that law of attempt goes, the less choice people have as to whether or not they are committing a crime.

United States v. Jackson

[520 F.2d 112] 1977 2d Circuit Court of Appeals (cb776)

• Defendants were planning on robbing a bank, ended up postponing, one person was arrested in the meantime.
• Informant testified as to intent of other defendants.

United States v. Buffington

[815 F.2d 1292] 1987 9th Circuit Court of Appeals (cb777)

• Informant case, defendants were observed with scarf over face, many layers of clothes.
• Court holds that defendants did not attempt robbery, informant did not testify.
• Under Model Penal Code, Buffington would be just as guilty as Jackson.

Walters v. Maass

[45 F.3d 1355] 1995 9th Circuit Court of Appeals (cb778)

• Defendant is accused of attempted kidnapping and sexual assault. All he has actually done is invite girl into his truck.
• Question is whether defendant's past conviction on similar sex crimes should be used in interpreting actions?
• Generally rule in criminal evidence is not to allow past evidence to establish guilt.

People v. Staples

[6 Cal. App. 3d 61] 1970 California Court of Appeals (cb780)

• At time Staples is arrested, it is clear that he had no intent to actually commit crime.
• Does it matter whether defendant desists for voluntary or involuntary reasons?
• Staples was ultimately sentenced to probation.

Rebecca to Larry are 'on' for Tuesday.

Tuesday, April 9, 2002 (Class 37) (Assignment 37)

• Indicia
  • Completed Crime
  • Attempt
  • Conspiracy
  • Solicitation
  • Bad Thought

• Prosecutions where 1st amendment is implicated are often for the crime of solicitation.

Impossibility

Booth v. State

[398 P.2d 863] 1964 Oklahoma Court of Criminal Appeals

• Defendant appealing conviction for receiving stolen property, since it was returned to him by the police, and thus was no longer 'stolen property'.
• Generally, when court finds 'legal impossibility' person is not convicted, but when it is 'factual impossibility' their convictions are usually upheld.
• If person believes that 'breathing' is illegal and they proceed to do it, this is 'legal impossibility'.
• Court holds that Booth's crime falls under legal impossibility, overturning conviction and dismissing charges.

• Fletcher's conception of legal vs. factual impossibility, e.g.:
  • Picking an empty pocket--factual impossibility, guilty of attempt.
  • Shooting an empty bed--mistake would have changed defendant's conduct.
  • Shooting stuffed deer--ditto, factual impossibility. Had you known it was stuffed, you wouldn't have engaged in the same conduct.
  • Offering bride to a nonjuror--still guilty of attempt.
  • Shooting dead body, buying talcum powder, believing it is cocaine--mistake is still germane, thus guilty of attempt, whether you use Model Penal Code or Fletcher's conception.
• Compare:
  • Receiving recovered property--legal impossibility. If your mistaken belief is that property was stolen, and it really wasn't, you still would have purchased it had it not been stolen. Thus Fletcher would hold that Booth case was correct, because mistake would not have effected defendant's willingness to engage in transaction.
  • Under Model Penal Code, however, person is guilty of attempt, because if circumstances had been as he believed them to be, he would have been committing crime.
  • Abortion of false pregnancy (assuming abortion is illegal)--if abortionist might have been willing to engage in same conduct even absent the baby, then under Fletcher, it is not attempt, but under Model Penal Code it is.
  • Selling talcum powder, believing it is cocaine--assuming the only thing seller cares about is getting money for cocaine, would have been just as willing to sell talcum powder for same amount, thus under Fletcher would not be guilty of attempt, but would be guilty under Model Penal Code. On the other hand, dealer might want to protect reputation, and thus might not have sold talcum powder had they known it was not cocaine.

• 'Absent minded professor crime'
  • Professor steals his own umbrella accidentally (having left it there a week before). Under Model Penal Code would be guilty.
• Sobrilski case (cb807)
  • Defendant thinks he is manufacturing amphetamines, but in fact hasn't manufactured anything illegal, and sells to undercover agent.
  • Sentenced to 17 years in prison.

People v. Dlugash

[363 N.E.2d 1155] 1977 New York Court of Appeals (cb809)

• In the absence of evidence that Geller was alive when Dlugash shot him, Dlugash cannot be convicted of murder. But he can be charged with attempted murder.
• If jury believes Dlugash's story that he believed Geller was dead when he fired, he can't be convicted of murder or attempted murder, because it was not his purpose to take life.
• Rather than sending case back to trial court, gives verdict of attempted murder, because jury had convicted of murder, thus they would have also found attempted murder.
• On Federal Habeas Corpus, Court found that substituting judgment was unconstitutional: mens rea for attempted murder is purpose or knowledge, while mens rea for murder purpose, knowledge, and extreme recklessness, court became persuaded that court's assumption that jury's murder verdict would have also supported attempted murder verdict was unconstitutional.

Wednesday, April 10, 2002 (Class 38) (Assignment 38)

• Crime: delivering pornographic materials to someone under 18 years of age (cb817).
• Defendant knows statutory age is 18, knows material is pornographic.
• If defendant believes recipient is 17, and she is 17, then he is guilty.
• If defendant believes recipient is 19, and she is 17, and statute specifies knowingly, then he is not guilty.
• If defendant believes she is 19, and she is really 19, then he is not guilty.
• If defendant believes she is 17 and she is really 19, classic case of impossibility, thus he will be guilty of attempt.
• What if defendant believes statutory age is 16?
  • Defendant believes she is 17, she is 17, in this case it is mistake of governing law, he is still guilty.
  • Defendant believes she is 17, she is 19, he is guilty of attempt.
  • Defendant believes she is 19, she is 17, not guilty (likewise believes she is 19, she is 19).
  • I.e., misunderstanding of law does not make any difference for these categories.
• If defendant believes statutory age is 21?
  • This is true legal impossibility--same result as before.

Accomplice Liability

• No accomplice liability 'after the fact' if this is accomplice was not part of the original plan (may be guilty of 'hindering apprehension of a criminal, etc., but not crime itself).
• Model Penal Code § 2.06: accomplice liability.

State v. Ochoa

[72 P.2d 609] 1937 New Mexico Supreme Court (cb823)

• Case background: Depression, New Mexico, Minors, riot occurs.
• Sheriff is trying to transport Navarro from Justice of Peace's office to jail.
• Gunfire ensues, sheriff is killed, two people who shoot are also shot.
• Defendants were beating and kicking deputy.
• Unclear whether defendants took action before or after sheriff was shot.
• Under Model Penal Code, requirement is 'aids, agrees, or attempts to aid', so in that case it doesn't necessarily matter whether sheriff was dead.
• Very close call in this case.

Thursday, April 11, 2002 (Class 39) (Assignment 39)

State v. Ochoa

[72 P.2d 609] 1937 New Mexico Supreme Court (cb823)

• To be consistent with law of accomplice liability, the kicking of the deputy after or immediately before sheriff was shot must allow the jury to infer that the defendants shared a purpose in the shooting prior to when it occurred.

Gains v. State

[417 So. 2d 719] 1982 Florida Appellate (cb834)

• Gains was sitting in car, companions robbed a bank, and then he drove them away.
• Court finds that Gains can not be guilty as an accomplice in that there is no evidence that he knew about the crime before it occurred.

State v. Tally

[15 So. 722] 1894 Alabama Supreme Court (cb838)

• Tally learns his in-laws (Skeltons) are chasing Ross, in order to kill him after he seduced their sister.
• Tally goes to telegraph office (not by prearrangement with Skeltons), sees Kinsman of Ross send telegram warning Ross. Tally then sells telegram advising telegraph operator to not deliver message.
• For accomplice liability, Skeltons did not need to know about Tally's acts, just that Tally played a role in facilitating killing. Does not need to be but for cause of death.
• Tally could also be guilty of murder, under Model Penal Code, if what he tried to do had absolutely no role whatsoever in what happened. I.e., if he attempted to aid and abet murder. Thus his crime is greater in this example than as if he had gone after Ross with a gun, shot at him, and missed (which would be attempted murder).
• Most jurisdictions reject liability for attempted complicity in a completed crime; but under Model Penal Code § 5.01(3) attempted complicity is attempt to commit substantive crime.
• Attempt law requires an act which confirms the criminal purpose--must be substantial step under Model Penal Code, thus simply sitting and wishing someone's death doesn't count as attempted complicity or complicity.
• Can satisfy attempt to aid crime with much less evidence than attempted murder. I.e., sending telegram would not be attempted murder on its own, but if it is construed as attempt to aid, can make him guilty of completed murder.
• Court goes to great length to find causal connection between Ross's death and Tally's action; under Model Penal Code you wouldn't need to prove this necessarily.
• Model Penal Code would allow conviction for attempt to commit crime even if crime itself was never committed; principals don't necessarily need to be guilty of attempted crime or crime.

People v. Beeman

[199 Cal. Rptr. 60] 1984 California Supreme Court (cb851)

• Beeman gave information to people who robbed his sister-in-law, had knowledge of robber's action.
• Thus had knowledge of crime and renders aid.
• Court found Beeman he was lacking purpose to aid accomplices in committing robbery in order to be guilty of robbery.
• Issue: should someone who simply knows of possible criminal activity refrain from doing something that might assist them? I.e., gun shops owner.
• Doctrine: under Model Penal Code, California law, and majority of states, it is defendant's purpose to see crime committed that makes him or her guilty as an accomplice.
• In California law, can be guilty of crimes that would follow from that which it is your purpose to aid.
• Under Model Penal Code you are only liable for crimes which you intend.
• In most jurisdictions, felony murder rule subsumes these issues.

Wilson v. People

[87 P.2d 5] 1939 Colorado Supreme Court (cb861)

• Wilson has a wristwatch, son of District Attorney.
• Wilson thinks Pierce stole his watch, so he suggests Pierce commit a crime in order to have Pierce caught.
• Wilson wanted Pierce to commit a burglary, and he helped him commit a burglary.

Tuesday, April 16, 2002 (Class 40) (Assignments 40-41)

• Givelber will be here Monday, Tuesday, and Wednesday of reading week. Will schedule office hours and review sessions.
• Review Session: Wednesday, May 1, 10am, Room 97
• Exams are available on TWEN
• Exam will be two hours long, two questions

Wilson v. People

[87 P.2d 5] 1939 Colorado Supreme Court (cb861)

• Although it was the purpose of the defendant to aid the perpetrator in the burglary, he is not guilty.
• Might this fall under Model Penal Code § 2.06 (6): person is not an accomplice if he terminates his complicity prior to the commission of the offense. But Wilson actually wanted offense to be completed before Pierce was caught.
• Possible justification: protect sting operations, private law enforcement, since Wilson's 'main' purpose was to incriminate Pierce.

State v. Hohensee

[650 S.W.2d 268] 1982 Missouri Court of Appeals (cb865)

• Three agents of the state, in order to prove defendant's criminality, set up burglary where he is just a look out.
• Court finds that State went too far; there must be some proportionality between defendant's actions as accomplice and other's actions to incriminate defendant.

State v. Etzweiler

[480 A.2d 870] 1984 New Hampshire Supreme Court (cb866)

• Etzweiler and Bailey are drunk; Etzweiler lends his car to Bailey, who ends up killing two people in traffic accident.
• Bailey is clearly guilt of negligent homicide, question is whether Etzweiler is guilty of negligent homicide.
• Defendant would have had to intend to further the crime of negligent homicide, but not possible to have the purpose to see a crime that requires lack of purpose to be committed.
• Model Penal Code § 2.06(3)-(4): Etzweiler could be guilty under (4) if accomplice acts with kind of culpability with respect to result that is sufficient for the offense.
• Act of lending car to drunk is itself potentially crime of negligent homicide (regardless of aiding and abetting theory).

State v. Foster

[522 A.2d 277] 1987 Connecticut Supreme Court (cb869)

• Foster gives knife to Cannon to guard Middleton while he went to get his girlfriend. Middleton and Cannon end up fighting, Cannon kills Middleton with knife.
• Foster could be charged with negligent homicide instead of aiding and abetting; in this case, threshold issue would likely be causation. When aiding and abetting doctrine was forming, causation was interpreted much more narrowly.

United States v. Short

[493 F.2d 1170] 1974 9th Circuit Court of Appeals (cb870)

• Can't hold someone liable for highly specific crime of armed robbery if they just had intent to aid in robbery, but not necessarily robbery with gun.

Yusuf Hawkins Case

• Yusuf and friends, African-American teenagers, looking to purchase car in Bensonhurst; chased by mob who originally thinks they are someone else. Yusuf Hawkins is shot and killed by Joey Fama.
• Two cases: Keith Mondello, major organizer of group of 30, Joey Fama, pulled trigger.
• Mondello is convicted of conspiracy, Fama of abandoned and malignant heart murder.
• Should Mondello be convicted of murder on his own conduct?
• If Ochoa and Tally were guilty of aiding and abetting, Mondello must meet the act requirement of aiding and abetting.
• Criminal responsibility is same as Etzweiler issue: if the defendant's purpose needs to be to see the crime committed that they actually intended, or Model Penal Code approach where you only need same state of mind as that needed for the offense, towards the act which facilitated the offense.

• In most states, people can't be convicted of kidnapping their own children. What if someone seeks help in committing kidnapping?
• Legal incapacity: parent can't be guilty, but aider can be guilty.

• Will finish accomplice, and start conspiracy tomorrow.

Wednesday, April 17, 2002 (Class 41) (Assignments 41-42)

• Do we even need accomplice liability given current causation doctrine, which permits more steps away to still constitute causation?
• Common Law Doctrine: If there is an independent, intervening act by a third-party, that more directly brings about result, defendant cannot be responsible--causal chain is broken.
• In modern causation doctrine, intervening act by third-party does not necessarily cut off causal chain, so in many accomplice liability situations, the accomplice could simply be charged with the crime itself.
• This doesn't work, however, when the primary crime doesn't actually occur: accomplice aids parent in kidnapping their own child. Parent has not actually committed a crime, but still want to penalize accomplice.

People v. Sadacca

[489 N.Y.S.2d 824] 1985 New York Court of Appeals (cb885)

• Sadacca sets up fictitious 'Whitney Biddle' character for grand larceny.
• Witness, Benoit, testifies that dinner took place, between Whitney Biddle and jeweler.
• Sadacca is acquitted on larceny, then charged as accomplice to perjury, even though Benoit did not know he was committing perjury.
• Sadacca knows that Benoit's testimony is false, and has created circumstance in which Benoit is going to truthfully testify to something he knows is false.

United States v. Ruffin

[613 F.2d 408] 1979 2d Circuit Court of Appeals (cb886)

• Ruffin is civilian, Defreitas is government employee.
• Ruffin gets Defreitas to approve loan which is clearly inappropriate, violating federal law.
• Ruffin, by definition, can't commit crime, because he is not a government employee, but is guilty of aiding and abetting.
• No question that, if crime is actually committed by Defreitas, then Ruffin is aider and abettor. Problem here is that jury does not find that Defreitas actually committed crime.
• Model Penal Code § 2.06 (5):
  • A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity.
• Potential under Model Penal Code of someone being guilty of crime that can only be committed by a particular type of person, even when that particular type of person is not found by jury to have committed the crime.

• Conspiracy vs. Attempt to obstruct justice
• Conspiracy:
  • Agreement to commit crime
  • Must be overt act
  • Model Penal Code § 5.03 (1):
  • A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
    • agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or
    • agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
  • No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
  • Thus crime is complete, just upon existence of agreement to commit crime.
• Attempt
  • Purpose to obstruct justice
  • Substantial step
• Blockburger test: each crime must include element that other crime does not include, for them to be separate offenses.
  • Hinges on whether overt act for conspiracy is different from substantial step for attempt.
• Court holds that substantial step needed for attempt needs to come much closer to crime than what is needed for overt act.
• Takes much less to satisfy overt act for conspiracy crime than for attempt crime.
• Why is it different when more than one person agree to do something, rather than one person forming some intent all on their own own in their head?

Commonwealth v. Donoghue

[63 S.W.2d 3] 1933 Kentucky Supreme Court (cb902)

• Usury law is civil penalty, but is turned into crime when it becomes a conspiracy (i.e., where you agree with someone else to commit usury).
• Conspiracy law was the weapon of choice against unionization against late 19th and early 20th century: lawful for one person to decide they wouldn't work for proferred wages, but crime for people to get together and agree amongs themselves that they wouldn't work unless wages were raised.

Thursday, April 18, 2002 (Class 42) (Assignment 42)

• Conspiracy: the 'darling of the prosecutor's nursery'.

Griffin v. State

[455 S.W.2d 882] 1970 Arkansas Supreme Court (cb905)

• Griffin is appealing his conviction for assisting in an assault on a police officer.
• No evidence that people actually got together and decided to attack a police officer.
• Anti-trust law is also conspiracy law. Problem:
  • Movie theater in one location raises price $1, then another theater also raises price.
  • Courts have found anti-trust to occur in 'conscious parallelism', even where there is no evidence of concerted effort.
• Doctrine from anti-trust law that behaving in the same way is just as bad as deciding to behave in the same way has been taken up in conspiracy law as well.

United States v. Cepeda

[768 F.2d 1515] 1985 2d Circuit Court of Appeals (cb907)

• Cepeda had $1100, 0.41 grams of cocaine, and lactose (for cutting).
• Cepeda is charged, not just with possession or possession with intent to sell, but with conspiracy.
• Prosecution brings in expert, to put ambiguous conduct into criminal context.
• Prosecution's argument: Anyone with this much cocaine is 'in business', and thus conspiring with others.
• Appeals court overturns conspiracy conviction, however; 'there was not even evidence of a sale.' Limiting reach of conspiracy charge.

United States v. Rahman

[189 F.3d 88] 1999 2d Circuit Court of Appeals (cb909)

• Whenever there is extreme political dissent, conspiracy issues will always arise. Much of 1st amendment law is built around the problem: "What level of political exhortation can someone engage in before it becomes a crime?"

• Issue of withdrawal: what if a conspirator no longer agrees to crime? Can they still be convicted of conspiracy?
  • In most jurisdictions, once you've made an agreement and an overt act has been committed, it's virtually impossible to withdraw.
  • Model Penal Code includes provision for renunciation. Need to be able to show that you've thwarted object of conspiracy.

People v. Lauria

[251 Cal. App. 2d 471] 1967 California Court of Appeals (cb914)

United States v. Feola

[420 U.S. 671] 1974 United States Supreme Court (cb923)

• Defendant is accused of conspiracy to assault a federal officer.
• Issue is whether you have to know the person is a federal officer in order to be guilty of conspiracy.
• How can you be guilty of conspiracy to assault a federal officer (i.e., 'guilty of agreeing to assault a federal officer') if you don't even know it's a federal officer.
• Court holds that mens rea is that which is required for the underlying offense, however, so finds defendant guilty.
• Model Penal Code uses same mens rea requirement.

• Rules of evidence:
  • Witness must be testifying from personal knowledge. Hearsay not admissible.
  • Exception to hearsay rule: when defendant said something.
  • Strict rules about how many people can be tried at once, joinder of crimes, joinder of parties, etc..
  • Venue: conspiracy may expand possible venue for charge.

Tuesday, April 23, 2002 (Class 43) (Assignment 43)

• Exam Info
  • Closed book, Model Penal Code will be provided
  • Don't try to memorize Model Penal Code, but you should know where certain things are in code:
    • Attempts
    • Accomplice
    • Conspiracy
    • Mistakes
  • Also know general interpretive rules

Pinkerton Doctrine

• Pinkerton brothers were moonshining together, question is whether one brother could be convicted of substantive crime where other brother took action while first brother is in jail.
• Brother can be guilty of conspiracy, but can he be guilty of substantive crime of making moonshine while he's in jail.
• Only guilty as accomplice if it is your purpose to see the crime comitted; but under Pinkerton you are liable for any crimes committed in furtherance of the conspiracy, even if not foreseeable.
• Model Penal Code rejects Pinkerton. DO NOT USE PINKERTON ON EXAM.

United States v. Diaz

[864 F.2d 544] 1988 7th Circuit Court of Appeals (cb926)

• Drug guy delivers drugs to undercover officer, Collins, while Diaz watches. Then Collins gives signal and chaos ensues.
• Question is whether Diaz can be convicted of conspiring to sell drugs while armed, which adds 5 years to sentence, because drug guy in other car has weapon.
• Under Accomplice Liability, would have to demonstrate that it was Diaz's purpose to sell drugs while armed.
  • Model Penal Code § 2.06:
  • (3)(a) would have to have purpose of promoting or facilitating the commission of offense.
  • (4) is only designed to deal with results, not attendant circumstances. Possession of gun is element of offense.
• Thus, under Model Penal Code, Diaz could not be guilty of conspiring to sell drugs while armed under accomplice liability.

United States v. Alvarez

[755 F.2d 830] 1985 (cb930)

• Four guys involved in drug conspiracy, agent is shot. Question is whether three co-conspirators can be guilty of murder as well as shooter, Simon.
• Conspiracy, accomplice liability, felony murder, are options for liability to person who did not actually do the act.
• Felony Murder
  • In this case, drug deals are not predicate felony, thus felony murder doctrine does not apply.
• Conspiracy
  • Under Pinkerton, co-conspirators are guilty.
• Is there a theory of accomplice liability that would make defendants all guilty of murder?
  • Can't show that any of conspirators had state of mind of purpose to murder simply by owning hotel or translating. No liability under Model Penal Code § 2.06 (3).
  • Model Penal Code doesn't address question of 'what happens when two people agree to rob bank, and one decides to steal a car?' Under Pinkerton, would be guilty of car theft as well. Under Model Penal Code, was not defendant's purpose to steal a car, but could be reasonable foreseeable.
  • Could be accomplices in abandoned and malignant heart murder. Taylor v. People: where woman being robbed shoots co-robber who was waving gun around. Taylor was in car, was guilty of abandoned and malignant heart murder. Model Penal Code § 2.06 (4) result crime.
• For Review: Develop four different theories under which co-conspirators could be found guilty.

• 20th hijacker was in prison on September 11, can he be held guilty under Pinkerton doctrine?
• What if hijacker only knew he was supposed to go to the United States and learn to fly a plane and then wait for directions?

Wednesday, April 24, 2002 (Class 44) (Assignments 44-45)

• Parties to Conspiracy, Introduction to RICO
• What if person 1 thinks person 2 will help them with crime, but person 2 doesn't think they've agreed. Can someone agree when the other person doesn't actually agree?
• Model Penal Code § 5.04: Incapacity, Irresponsibility or Immunity of Party to Solicitation or Conspiracy
  • Except as provided in Subsection (2) of this Section, it is immaterial to the liability of a person who solicits or conspires with another to commit a crime that:
    • he or the person whom he solicits or with whom he conspires does not occupy a particular position or have a particular characteristic that is an element of such crime, if he believes that one of them does.
  • § 5.03: (5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
• Thus first person can be guilty even if second person doesn't actually agree but first person believes other person agrees, and there is still no overt act.
• Comes very close to punishing bad thought--no need even for a substantial step (attempt), just need agreement.
• Thus it is possible to have a 'unilateral conspiracy'.

• Next problem (leading to RICO): issue of who is party to conspiracy.
• Wheel and chain theories of conspiracy

Kotteakos v. United States

[328 U.S. 750] 1946 United States Supreme Court (cb949, 952)

• Wheel theory of conspiracy
• Brown ran lumber yard, knew how to get government loans for home construction.
• Kotteakos wanted government loan, not to build house, but for lawn furnishings
• Brown was charged with falsifying loan documents and conspiring with others to falsify documents
• Evidence demonstrated 23 different transactions; brought as single conspiracy.
• Anything that any of the conspirators had to say against others was admissible against others.
• Kotteakos claims he may have down something wrong with Brown, and they may have conspired with each other, but he had no idea that there were 23 other people involved.
  • Similar to Spock trial in Vietnam war era, where many of the people who signed 'call to action' had never met before.
• Question: is this 23 different conspiracies, or just one?
• Court held that trying this as 'one giant conspiracy' violated due process clause.
• Failed 'wheel conspiracy' because there's no 'rim'--nothing tying everyone all together.
• RICO doesn't require that everyone be tied together as closely.

Blumenthal

• Chain theory of conspiracy
• Parties: hidden owner, distributor, salesmen, tavern owners
• Parties were getting around price controls by agreeing down the supply train, with kickbacks.
• Each party claims they didn't know about chain, they only dealt with 'the next link in the chain'.
• Court admitted theory, allowed joinder, each party could have drawn the inference that they were party of large conspiracy.

• Amilie case: contractor was shaking people down, first in 1960, then in 1962. Prosecuted for 1960 activity, then seperately for 1962 activity, court held it was double jeopardy--it was 'one long conspiracy' rather than a series of short conspiracies.

• RICO: Racketeer Influence and Corrupt Organization
  • Goal of act, passed in 1970: to deal with a lot of the problems that conspiracy law created with issue of 'chain' or 'wheel', one conspiracy or multiple conspiracies.
  • Also has civil component.
• § 1962(C): unlawful for any person employed by or associated with any enterprise engaged in...interstate or foreign commerce...to conduct or participate...in the conduct of such enterprise's affairs through a pattern of racketeering activity...
• Has major forfeiture provisions--helps many police departments make their budgets.
• Allows cases to get to federal court, useful against local officials: police, judges; since 'enterprise' is broadly defined.
• If every criminal who deals with someone else is 'an enterprise', scope of RICO seems to be unlimited. Does committing two or more crimes, by itself, constitute an enterprise or pattern of racketeering activity? Courts have been inconsistent, but there must be an enterprise which exists independently of crimes, and there has to be something connecting the crimes.

Thursday, April 25, 2002 (Class 45) (Assignment 46)

• Is pulling a knife in a fight in a crowded bar sufficiently reckless or indicative of abandoned and malignant and heart?
• Same issue as Alvarez: any time someone pulls out a weapon in a middle of a tense situation, could be found to be reckless or indicative of abandoned and malignant heart.
• See Taylor v. Superior Court [477 P.2d 131] 1970 (cb500).
• Also argument that Riley should have retreated, and because he didn't lost his ability to plead self-defense.
• Belief has to be reasonable, and response has to be reasonable, for self-defense to work.

Armored Car (Problem 2)

• Always examine each defendant's liability individually.
• First look at Holgate:
• Conspiracy Crime
  • Under Model Penal Code § 5.03, Holgate is guilty of crime of conspiracy independent of whether there is actual agreement (unilateral conspiracy):
  • 5.03(1)(a): (a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or
• Attempted Larceny/Theft? vs. Attempted Robbery
  • Did Holgate attempt to commit theft by deception?
  • Model Penal Code takes subjectivist view of events were as defendant believed them to be--Holgate believed the bank to have money for pick up even if it didn't.
  • Then, did Holgate take a substantial step? Disabling car would probably count as a substantial step.
• Robbery
  • Model Penal Code defines robbery as use of force in the course of committing a theft.
  • Default mens rea requirement under Model Penal Code for robbery is recklessness.
  • Was Holgate reckless in activity that lead to the use of force?
  • Other argument is that robbery includes 'purposely' in some elements, thus 'purposely' should apply to all elements of robbery.
• What crime did Holgate commit in killing Gustave?
  • If it was attempted robbery, crime is murder, because of homicide committed in the course of robbery.
  • If crime was attempted theft, crime could be manslaughter.
• Best to start with primary actor, and then move to secondary actors'
• Look at Moe:
• Conspiracy
  • Did Moe agree to crime?
  • Was being sarcastic, thus may not have actually agreed, thus not guilty of conspiracy.
  • He gave his clothing size, however, which would suggest substantial step. Can't be guilty of conspiracy, however, if he didn't agree.
  • On the other hand, if he hadn't feigned agreement, none of this would have happened.
  • If he neither intended to agree nor intended to assist, he could not be guilty as accomplice, because he did not have requisite purpose.
  • Act of encouraging Holgate could constitute reckless conduct sufficient for manslaughter.
  • Might just be able to convict of manslaughter on broadened notions of causation.
• Then look at Curly:
  • Was drunk at time of agreement. Would have to be so drunk that he didn't have purpose to agree.
  • Under Model Penal Code, guilty of subsequent crimes to act of crime if he can be treated as accomplice in those crimes (no Pinkerton rule). Since he slept through day, hard to make the argument that he was actually an accomplice.
• Finally, look at Wanda:
  • Look to People v. Lauria. Is this a situation where knowledge plus charging more for uniforms gives person stake in venture that makes it a crime?
  • Need something more than just supplying something that is used in crime.

• On Wednesday review session, will do second question.