I've recently received the latest copy of the Western New England Law Review, a publication that I helped to edit back in the distant days of the early Reagan years.
The latest issue contains some fine material, including a note addressing the question "what is the required mens rea for an aider and abettor of a felon in possession of a firearm?"
For the non-lawyers and non-Latin speakers among my readers, "mens rea" means guilty mind. A criminal offense at common law must have both a physical and a mental component -- the mental component is the mens rea. This can, but need not be, "intent." (It might be recklessness.)
As to aiding and abetting, the US code says, "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures in commission, is punishable as a principal."
Certain crimes are defined in part by whether the person committing them is a felon. For example, a convicted felon is forever after prohibited from lawfully owning a firearm. Hence the question above. What if you are the one who gave a firearm to a convicted felon? What if you shipped it to him across state lines?
He clearly is guilty of a crime by virtue of possessing it. Have you aided and abetted that crime? What if you had no knowledge of his being a felon? Is there a "mens rea" requirement that the prosecutors seeking your conviction must meet and, if so, what is it?
I admit I had never given any thought to this query. It turns (WNEC School of Law student James O'Connor tells us) that there is a split among the federal courts of appeal on this point. For example, United States v. Canon, 993 F.2d 1439 (9th Cir. 1993) takes one view and United States v. Xavier, 2 F.3d 1281 (3d Cir. 1993) takes another.
The first circuit court of appeals -- where Springfield, Mass., and thus the WNEC School of Law is located -- has so far not addressed the matter.
Showing posts with label criminal law. Show all posts
Showing posts with label criminal law. Show all posts
13 June 2010
03 May 2009
I'm happy this worked out as it did.
The government has dropped charges against two lobbyists formerly with the American Israel Public Affairs Committee (AIPAC) alleged to have unlawfully shared classified information with reporters.
The case was very flimsy from the first and appeared an effort by the previous administration to make a point at the penal expense of the defendants and at the substantive expense of all of us. The espionage statute involved goes back to 1917 and this was its FIRST use against persons not employed by the US government.
This administration gets some credit for dropping the matter, but not a lot. The new Attorney General reached this decision only after a court decision that said that the prosecutors would have to prove not only that the sopread of this information would harm the interests of the United States but that the leakers acted knowing that it would have that effect.
There simply was no evidence to that effect.
The case was very flimsy from the first and appeared an effort by the previous administration to make a point at the penal expense of the defendants and at the substantive expense of all of us. The espionage statute involved goes back to 1917 and this was its FIRST use against persons not employed by the US government.
This administration gets some credit for dropping the matter, but not a lot. The new Attorney General reached this decision only after a court decision that said that the prosecutors would have to prove not only that the sopread of this information would harm the interests of the United States but that the leakers acted knowing that it would have that effect.
There simply was no evidence to that effect.
24 May 2008
Jury nullification, part two
The flickering light of my attention fell this week upon the issue of jury nullification because of the conviction of Kirk Wright, not a very sympathetic figure.
Mr. Wright, it seems clear to meas it seemed clear to the jury, was scamming people out of millions of dollars, purporting to run a hedge fund when all he was running was a lavish lifestyle.
It is, of course, legal to solicit money to invest and then to make bad investments and lose that money. It is even legal to compensate yourself handsomely while the suckers stand for it. Caveat emptor. What isn't legal is lying about what you're doing and how well or poorly you're doing it, which is what Wright did. He sent out professional-looking account statements that persuaded his clients that their money was secure and growing.
Then came the inevitable day when some of those clients started receiving their redemptions in rubber checks....
At the two-week trial this month, Wright's attorneys were prepared to offer an "empty chair defense." What's that? In a classic empty-chair defense, Butch Cassidy is arrested. The Sundance Kid either escapes or, perhaps, has turned state's evidence and entered the witness protection program. Since the prosecution has Butch dead to rights on the merits, a lawyer might seek to play to jury sentiment by putting an empty chair at the defense table, and telling the jury dramatically, "that is where the Sundance Kid ought to be sitting."
The tactic is, precisely, a play on sentiment. Jurors often feel that it is unfair to punish Butch if they can't punish Sundance too. The way to relieve that sense of unfairness: acquit Butch!
To make the "empty chair" argument where it is clear that Butch is guilty is to appeal to the jury to nullify the law, because no law requires all possible defendants in the same crime to be brought to trial if any of them are.
Anyway, this was Kirk Wright's attorneys' plan. I don't think they planned literally to put the empty chair there, but they did want to argue to the jury that Wright had accomplices, with responsibility equal to or greater than his own for the production of the phony statements to clients that were the root of his criminal liability.
The prosecution successfully requested what's known as an order in limine, barring defense counsel from making that argument.
Assume the defense has successfully preserved a basis for appeal on this issue, and that they do argue to an appellate court that they should have been permitted to make the empty-chair/nullification appeal.
Does anybody want to play appellate-judge-for-a-day here and render a decision on that point for my benefit?
Mr. Wright, it seems clear to meas it seemed clear to the jury, was scamming people out of millions of dollars, purporting to run a hedge fund when all he was running was a lavish lifestyle.
It is, of course, legal to solicit money to invest and then to make bad investments and lose that money. It is even legal to compensate yourself handsomely while the suckers stand for it. Caveat emptor. What isn't legal is lying about what you're doing and how well or poorly you're doing it, which is what Wright did. He sent out professional-looking account statements that persuaded his clients that their money was secure and growing.
Then came the inevitable day when some of those clients started receiving their redemptions in rubber checks....
At the two-week trial this month, Wright's attorneys were prepared to offer an "empty chair defense." What's that? In a classic empty-chair defense, Butch Cassidy is arrested. The Sundance Kid either escapes or, perhaps, has turned state's evidence and entered the witness protection program. Since the prosecution has Butch dead to rights on the merits, a lawyer might seek to play to jury sentiment by putting an empty chair at the defense table, and telling the jury dramatically, "that is where the Sundance Kid ought to be sitting."
The tactic is, precisely, a play on sentiment. Jurors often feel that it is unfair to punish Butch if they can't punish Sundance too. The way to relieve that sense of unfairness: acquit Butch!
To make the "empty chair" argument where it is clear that Butch is guilty is to appeal to the jury to nullify the law, because no law requires all possible defendants in the same crime to be brought to trial if any of them are.
Anyway, this was Kirk Wright's attorneys' plan. I don't think they planned literally to put the empty chair there, but they did want to argue to the jury that Wright had accomplices, with responsibility equal to or greater than his own for the production of the phony statements to clients that were the root of his criminal liability.
The prosecution successfully requested what's known as an order in limine, barring defense counsel from making that argument.
Assume the defense has successfully preserved a basis for appeal on this issue, and that they do argue to an appellate court that they should have been permitted to make the empty-chair/nullification appeal.
Does anybody want to play appellate-judge-for-a-day here and render a decision on that point for my benefit?
03 January 2008
William Joyce
Sixty two years ago today, the Brits executed William Joyce for treason. This is a bit of history now largely forgotten, but Lord Haw-Haw was once as famous a radio personality as, say, Tokyo Rose.
At his trial, Joyce had sought to argue that he hadn't committed treason against the crowmn because he had never been a subject of the crown. He was born in New York City in 1906, and his father was a naturalized US citizen.
The family soon moved to Ireland, and Joyce went off to university in England in 1921, and stayed. He became a fascist in 1932, and deputy leader of the British Union of Fascists two years later.
In August 1939, shortly before war was declared between Germany and the UK, Joyce left the latter to live amongst fellow true believers in Nazi Germany. To get the passport necessary for this move, Joyce falsely claimed Brit nationality.
Let's skip past the radio broadcasts themselves. We should mention that Joyce became a naturalized German citizen in September 1940. The now-infamous Haw-Haw was captured by British soldiers while trying to sneak across the northern border of Germany into Denmark, in May 1945.
At his trial, the prosecution had to rely entirely on events between the outbreak of war and September 1940. After that, the defendant had aligned his citizenship with his ideology. But even before that ... whose citizen or subject was he? As I noted above, he raised his trump card at trial -- one can't betray a loyalty one never owed. He was never a subject, thus he wasn't a traitor.
"Ah," the prosecution replied, "but you pretended to be one, to get your passport."
The prosecution said that the possession of a passport entitles the possessor to the protection of the sovereign by whom it was issued as he passes through various ports. Thus, Joyce in accepting such a passport had placed himself in the debt of the crown, and was guilty of treason against said crown for his subsequent broadcasts.
It was on that basis that he was hanged on January 3, 1946, after giving a final defiant speech about how the Jews "caused this last war," and he was sorry for the "sons of Britain who have died" without knowing that.
Its a pathetic story of delusion but Joyce got the ending he probably wanted. He got he chance to say his last words on the gallows and to feel martyred as the executioner slipped the rope around his neck.
What if his defense had prevailed? would he have rather have lived on in obscurity as the fellow who used to be Lord Haw-Haw?
At his trial, Joyce had sought to argue that he hadn't committed treason against the crowmn because he had never been a subject of the crown. He was born in New York City in 1906, and his father was a naturalized US citizen.
The family soon moved to Ireland, and Joyce went off to university in England in 1921, and stayed. He became a fascist in 1932, and deputy leader of the British Union of Fascists two years later.
In August 1939, shortly before war was declared between Germany and the UK, Joyce left the latter to live amongst fellow true believers in Nazi Germany. To get the passport necessary for this move, Joyce falsely claimed Brit nationality.
Let's skip past the radio broadcasts themselves. We should mention that Joyce became a naturalized German citizen in September 1940. The now-infamous Haw-Haw was captured by British soldiers while trying to sneak across the northern border of Germany into Denmark, in May 1945.
At his trial, the prosecution had to rely entirely on events between the outbreak of war and September 1940. After that, the defendant had aligned his citizenship with his ideology. But even before that ... whose citizen or subject was he? As I noted above, he raised his trump card at trial -- one can't betray a loyalty one never owed. He was never a subject, thus he wasn't a traitor.
"Ah," the prosecution replied, "but you pretended to be one, to get your passport."
The prosecution said that the possession of a passport entitles the possessor to the protection of the sovereign by whom it was issued as he passes through various ports. Thus, Joyce in accepting such a passport had placed himself in the debt of the crown, and was guilty of treason against said crown for his subsequent broadcasts.
It was on that basis that he was hanged on January 3, 1946, after giving a final defiant speech about how the Jews "caused this last war," and he was sorry for the "sons of Britain who have died" without knowing that.
Its a pathetic story of delusion but Joyce got the ending he probably wanted. He got he chance to say his last words on the gallows and to feel martyred as the executioner slipped the rope around his neck.
What if his defense had prevailed? would he have rather have lived on in obscurity as the fellow who used to be Lord Haw-Haw?
26 March 2007
Reporting on Slime, and Slipping
Yes, that headline might sound like I'm rather desperate for readers. But there's a real story here, and one worth following. Those of you who have followed me here from blog-spot know that I've become interested in the travails of a former New York Times reporter, Kurt Eichenwald. In December 2005, the Times ran an Eichenwald story about how a teenager who was drawn into the world of gay internet porn and prostitution. The series of events Eichenwald described began when the boy, Justin Berry, was just 13. The first time I blogged about Eichenwald it was a review of a book of his about some scandalously high-pressure marketing by securities salesmen who worked at Prudential. they sold very high-risk products to the market as if they were secure retirement-oriented savings plans. http://cfaille.blog-city.com/serpent_on_the_rock.htm That, I think, was a good book and a fine example of what Eichenwald was good at. He wrote similar books about a price-fixing conspiracy and about the collapse of Enron. But I think we can say without doing an injustice that his judgment in pursuing a rather different sort of story, about Justin Berry and his abusers, has not been impeccable. He paid Berry a $2,000 check at one point. The Times has a policy against paying for sources (in general a very good policy idea) -- and Eichenwald has defended this payment/loan (Berry's family subsequently re-paid it) on the ground that it wasn't made qua reporter but qua human being. In other words, Eichenwald felt touched by Berry's situation and wanted to give him some "clean money" that would help him break withhis associates and start a new life that didn't involve showing nude movies of himself on the internet.
Here is his former employer's ombudsman's latest take on it: http://www.nytimes.com/2007/03/25/opinion/25pubed.html?_r=2&oref=slogin&oref=slogin
At the NY Times, by the way, the position known everywhere else as an "ombudsman" is called a "public editor." What they think they gain by a unique nomenclature there isn't clear to me. Regardless: Byron Calame has the post, and he's unhappy with Eichenwald. He said the reporter misled his editors on the subject of that payment.
Also, he's unimpressed by the distinction between Eichenwald's capacity as a journalist and as a private person touched by a humanitarian need. "Times journalists are free to do many things as private citizens, such as donating money to a struggling charity in their community. But they can’t then simply turn the switch to 'journalist' and do a story about that charity; that assignment must go to another reporter."
A decent point. But we need to keep our minds on a couple of simpler points here. There's been no credible challenge to the facts of the story that Eichenwald obtained through Berry's assistance. And, as a result of that story, three sexual predators have been incarcerated.
Here is his former employer's ombudsman's latest take on it: http://www.nytimes.com/2007/03/25/opinion/25pubed.html?_r=2&oref=slogin&oref=slogin
At the NY Times, by the way, the position known everywhere else as an "ombudsman" is called a "public editor." What they think they gain by a unique nomenclature there isn't clear to me. Regardless: Byron Calame has the post, and he's unhappy with Eichenwald. He said the reporter misled his editors on the subject of that payment.
Also, he's unimpressed by the distinction between Eichenwald's capacity as a journalist and as a private person touched by a humanitarian need. "Times journalists are free to do many things as private citizens, such as donating money to a struggling charity in their community. But they can’t then simply turn the switch to 'journalist' and do a story about that charity; that assignment must go to another reporter."
A decent point. But we need to keep our minds on a couple of simpler points here. There's been no credible challenge to the facts of the story that Eichenwald obtained through Berry's assistance. And, as a result of that story, three sexual predators have been incarcerated.
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