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SOUTH-WESTERN LEGAL STUDIES IN BUSINESS CASE UPDATESCRIMINAL LAW

SW Legal's Case Updates is a SW Legal Studies service to provide briefs of the latest state and federal court cases. Review the summaries and, for cases of interest, select the case brief. If you cannot find a case of interest,return to Topic Index .

Title "Title" from Owner of Stolen Property to Possessor Does Not Make Possession Legal
Briefed Case

Summary Appeals court upheld conviction of an attorney who was in possession of paintings he knew were stolen. He got the rightful owner to give him title to some of the paintings in return for one. Since that agreement was for an illegal purpose, the title was invalid and he was guilty of possession of stolen property.
(Updated June 2010)

Restitution from Possessor of Illegal Child Pornography to Children Abused Not Justified
Briefed Case

The possessor of child pornography was sentenced to 14 years in prison. The government requested that he be ordered to pay restitution to the children abused in the making of the material. The judge denied the request, noting that the possessor of the material was not involved in the production of the material.
(Updated June 2010)

Sentencing Guidelines Are Guidelines, Not Statutory Requirements


Briefed Case

Appeals court held that the Sentencing Guidelines are to give guidance to judges in sentencing, but, unless a statute requires a specific sentence be imposed, judges are not required to follow the sentences recommended by the Guidelines.
(Updated April 2010)

Significant Deviation from Sentencing Guidelines Must Be Justified by Court


Briefed Case

Appeals court vacated a light sentence imposed on a defendant who pleaded guilty to defrauding the government. Since the trial court ignored expert testimony about the loss suffered, and concluded there was no loss, this allowed a light sentence to be imposed. Such a sentence must be justified by the trial court.
(Updated March 2010)

Violation of State Law Can Set Basis for Conviction of Federal Mail and Wire Fraud Laws
Briefed Case

Appeals court held that a scam by New Mexico insurance regulators that violated state law could be the basis for federal conviction for mail fraud and wire fraud. The actions that violated state law were executed in a manner that violated federal law.
(Updated March 2010)

Cost of Damage to Property May Depend on Location


Briefed Case

Nevada high court affirmed conviction for gross misdemeanor injury to property, a level achieved because the cost of repairing the property was higher than usual due to its location. The court held that the fact of where damage occurs, and therefore the cost of the damage, is relevant and a lower cost that would occur in another location need not be assigned by the court.

(Updated February 2010)

Search and Seizure Rules Apply to State Actors, Not Other Parties
Briefed Case

New Mexico high court held that the cocaine a private guard took from a person suspected of fighting in a shopping mall could not be suppressed as evidence against the suspect. While the search and seizure that found the cocaine was improper, the Fourth Amendment rules regarding searches applies to state actors, such as the police, not private parties.
(Updated November 2009)

Bank a Victim Due Restitution from Defendant Who Committed Fraud against Bank
Briefed Case

Tennessee appeals court held that under the state victim restitution statute, a trial court could impose on a defendant convicted of defrauding a bank out of money, a requirement that defendant repay the bank for the funds improperly obtained.
(Updated June 2009)

Garbage Bags Put Outside for Collection Not Protected Against Search and Seizure
Briefed Case

Wyoming high court held that when a person puts trash outside for collection there is no reasonable expectation of privacy. Hence, it was not an illegal search and seizure for police to take a trash bag looking for evidence of suspected drug dealing, which was confirmed and resulted in an arrest and conviction.
(Updated June 2009)

Warrantless Searches at Border Allowed


Briefed Case

Appeals court held that border inspections do not require a warrant. A more invasive inspection, involving the targeting of a particular person, is allowed when there is a reasonable basis for the decision to engage in such a search without a warrant.
(Updated May 2009)

Low-Quality Counterfeit Money Can Support Counterfeiting Conviction


Briefed Case

A cashier at a store who knowingly accepted counterfeit bills that were made on a color copier machine could be convicted of conspiracy to engage in counterfeiting. The jury accepted the fact that the fake money looked real enough to justify conviction.
(Updated May 2009)

Willful Blindness to Duty to Pay Taxes Allows Enhanced Sentence


Briefed Case

Appeals court held that when one intentionally evades paying income taxes then one is willfully blind to a legal obligation. That fact plays a role in the trial and in the sentencing, which can mean a stronger sentence than would be imposed otherwise.
(Updated May 2009)

Lying About Presence of Person Sought by Police Not Grounds for Conviction
Briefed Case

New Hampshire high court held that to lie to police about the presence of a person they are seeking is not sufficient to convict that person for the crime of harboring or concealing another. There must be an active act, such as physically hiding the person sought by police, for a conviction to hold.
(Updated February 2009)

Evidence Not Suppressed for Violation of a Statutory Right


Briefed Case

Appeals court held that evidence obtained that involved violation of patient privacy rights would not be suppressed. Evidence is suppressed when a constitutional right is violated or when a statute expressly provides for suppression. That is not the case under the federal law concerning medical privacy rights.
(Updated January 2009)

Property Used in Commission of a Crime May Be Forfeited to the Government


Briefed Case

Judge upheld the request of the government that a couple, convicted of holding illegal aliens, who were subject to brutal mistreatment, in their home for years, be required to forfeit their home to the government, besides the prison terms given to the couple.
(Updated October 2008)

Private Cause of Action Supreme Court held that if a party rigged a public bidding process, Exists for RICO Criminal thereby causing competitors to lose prospective business, the losers had a private right of action to sue under RICO. The party that Violations Briefed Case rigged the bidding process was accused of engaging in mail fraud, a criminal offense, which could give rise to the suit.
(Updated October 2008)

Counterfeiting Trademarks Is Crime of Moral Turpitude


Briefed Case

Appeals court upheld a ruling by the immigration service that an alien convicted of making and selling counterfeit goods that violated registered trademarks committed a crime of moral turpitude. The act involved fraud, which is clearly moral turpitude, and is grounds for deportation.
(Updated September 2008)

Property Seized in Drug Busts Must Be Subject to Prompt Proceedings


Briefed Case

Appeals court held that the state of Illinois, which allowed over three months before requiring proceedings to determine the fate of property such as cars taken by police in a drug bust, must be subject to administrative proceedings more quickly to possibly allow the owner to regain possession of the property.
(Updated June 2008)

Courts May Deviate from Guidelines Rules Based on Totality of Circumstances


Briefed Case

Supreme Court held that a district court did not violate the Sentencing Guidelines by giving probation to a guilty party who would have been sent to prison under Guideline standards. Judges have the discretion to review all circumstances and can justify greater or lower sentences.
(Updated May 2008)

Viewing Content of Laptop at Border Is Not Unreasonable or Offensive Search


Briefed Case

Appeals court held that border officials may search laptops and other electronic equipment without a warrant or without reasonable suspicion. So long as searches are not done in an offensive manner, they are a normal part of border control.
(Updated May 2008)

State Homestead Law Does Not Protect Property against Seizure in Criminal Conviction
Briefed Case

Appeals court held that when a defendant did not have enough cash to cover a payment ordered by a court upon conviction of a crime, the government could seize the defendants interest in his homestead. The state homestead exemption is overridden by federal criminal law.
(Updated March 2008)

Government Participation in Internet Sting Not Entrapment


Briefed Case

Appeals court upheld the conviction of an adult who attempted to solicit sex with a supposed 13-year-old. The government informant posing as the child did not initiate the illegal transaction, so it was not entrapment.
(Updated March 2008)

Company Can Lose License to Work for Paying Bribes Extorted by Inspector
Briefed Case

Appeals court held that a food company could lose its license to operate based on the criminal conviction of a company officer who paid a bribe to a government inspector. Even if paying such bribes was common in the industry, and was extorted by the inspector, the company is responsible.
(Updated January 2008)

Appeals court held that the forfeiture of a large quantity of cash Forfeiture of All Cash Being Smuggled Is Fitting not reported when being taken out of the country does not violate the Eighth Amendment restriction on excessive fines. Taking large Penalty Briefed Case quantities of unreported cash out of the country is linked to criminal activity, so the penalty is not excessive.
(Updated January 2008)

Sentence Longer than Guidelines Maximum Can Be Justified


Briefed Case

Appeals court held that a trial court may impose a sentence that exceeds the maximum under the Sentencing Guidelines so long as the court provides a clear analysis of the reason that justifies the harsher penalty.
(Updated December 2007)

Trial Judges May Not Stray Far from Sentencing Guidelines


Briefed Case

Appeals court held it unreasonable for a trial judge to impose a sentence of 60 months probation when the Sentencing Guidelines recommend a sentence of 7-8 years in prison, possibly reduced to 5 years for cooperation in investigation. The judge must impose a sentence justified by the Guidelines.
(Updated December 2007)

No Conviction for Planning Drug Operations That Occur Outside of the Country
Briefed Case

Appeals court held that parties in the U.S. who coordinated the sale of illegal drugs outside of the country could not be convicted of violating U.S. drug laws since the statutes do not apply to violations that occur outside of the U.S.
(Updated November 2007)

One Trial Sufficient for Related Charges


Briefed Case

Appeals court held that when a jury acquitted a criminal defendant on one of two charges, and could not reach a verdict on the second charge for the same action, that there could not be a retrial of the second charge or it would violate the Double Jeopardy Clause.
(Updated November 2007)

Government May Move to Enforce Restitution Order at Any Time


Briefed Case

Appeals court held that the government could file a lien to try to help payment of restitution owed as part of a criminal conviction. There is no time limit when such liens may be filed and they are good for up to 20 years when filed.
(Updated October 2007)

Courts May Consider and Reject Rationales Offered for Sentence Reductions
Briefed Case

Appeals court rejected a light sentence imposed on convicted felon as not reasonable. The Sentencing Guidelines are generally to be followed closely; judges are not to deviate from them because they may not think they are a good idea.
(Updated May 2007)

RICO Claim of Extortion Supreme Court held that a RICO claim of criminal extortion against federal employees, by a land owner who was pressured to against Government give a federal agency an easement, fails. There may be common Officials Fails Briefed Case law claims for trespass, or administrative claims of improper procedure, but there is no federal claim of extortion allowed in this instance.
(Updated August 2007)

Courts Will Follow Sentencing Guidelines


Briefed Case

Appeals court rejected a light sentence imposed on convicted felon as not reasonable. The Sentencing Guidelines are generally to be followed closely; judges are not to deviate from them because they may not think they are a good idea.
(Updated May 2007)

State Identity Theft Law Does Not Conflict with Federal Identity Theft Law
Briefed Case

Georgia high court upheld a conviction for violation of state identify theft law, ruling that federal identity theft law did not prohibit state laws from addressing such matters.
(Updated March 2007)

Related Offenses Treated Separately, Not as One Action, for Sentencing Purposes
Briefed Case

Appeals court held that criminal offenses that are tied to the same action, but have different consequences, will not be treated as one offense for purposes of sentencing under the sentencing guidelines.
(Updated March 2007)

Deadly Force May Be Met with Deadly Force in Self-Defense


Briefed Case

Appeals court held that a person confronted with deadly force has the right to use deadly force in self-defense. In such situation, where the party does not initiate the contact and has a right to be in the location involved, there is no duty to retreat from the party that imposes the threat.
(Updated February 2007)

Appeals court affirmed the conviction of corporate officers and the Company May Be Convicted for Illegal Acts liability of their employing corporation in an effort to bribe the leader of a state legislature to secure passage of legislation of Its Officers Briefed Case favorable to company interests.
(Updated January 2007)

Criminal Charges May Be Based on Adding Losses Inflicted on All Victims


Briefed Case

Utah high court held that fraud over a period of time to get money from victims who fell for the scam was one scheme, and the losses could be added together to impose a harsher felony conviction.
(Updated January 2007)

No Right to Warning that Statements During Investigation Could Be Used as Evidence


Briefed Case

Court held that a jury could convict a government administrator for making false statements about a matter he was involved in despite the fact that the administrator was not told during the internal investigation that his statements could become the basis of criminal charges.
(Updated December 2006)

RICO Claim Must Show Proximate Cause of Injury


Briefed Case

Supreme Court held that even if a company engaged in behavior that could be a RICO violation, the parties who are the direct victims of the illegal activity have a cause of action, not those who cannot show proximate cause of losses alleged to have resulted from the illegal behavior.
(Updated December 2006)

Book Authored by Defendant May Be Used in Evidence against Him


Briefed Case

Appeals court upheld a conviction for fraud. To bolster the case against defendant, a book he authored that described the fraud could be used as evidence to show that he understood the scheme very well.
(Updated December 2006)

Prison Sentence Too Light; Be Careful What You Ask For


Briefed Case

Appeals court held that the district court improperly deviated from the federal Sentencing Guidelines by imposing a sentence that was too light. The defendants appeal is rejected and the court will resentence the defendant in compliance with the Guidelines.
(Updated October 2006)

Police May Search Property without Warrant When Circumstances Justify


Briefed Case

Appeals court held that evidence was not improperly obtained when police searched the outside grounds around a residence when they were concerned about the location of a woman. Evidence found related to another matter could be used in prosecution.
(Updated August 2006)

Anticipatory Warrants Allowed by Fourth Amendment


Briefed Case

Supreme Court held that anticipatory warrants may be issued so long as the judge or magistrate determined that it is probable that contraband, evidence of a crime, or a fugitive will be on the described premises when the warrant is executed.
(Updated July 2006)

Seller of Unregistered Securities Must Know They Were Subject to Registration


Briefed Case

California high court held that a person charged with selling unregistered securities has an affirmative defense that he believed the securities were exempt from registration and the jury should have been so instructed.
(Updated May 2006)

Prosecution of Identity Fraud Has Multiple Possible Venues


Briefed Case

Georgia high court held that the state constitution requires criminal acts to be prosecuted in the county where the act occurred. Since identity fraud can have an impact in more than one county, the crime may be prosecuted not just in the county where the theft of identify information occurred.
(Updated March 2006)

Knowledge of Use of Substance in Making Illegal Drugs Must Be Shown for Conviction
Briefed Case

Appeals court reversed a conviction of a gas station worker convicted of selling pseudoephedrine, a legal drug used in making methamphetamine. The government failed to show that the worker knew the substance would be used in that manner. Mere possession and sale of pseudoephedrine was not sufficient for conviction.
(Updated February 2006)

Conviction for Conspiracy Does not Require Proof of Action Conspired


Briefed Case

Supreme Court held that a conviction for money laundering could be based on a conspiracy to engage in that act. Under federal law, the penalty can be the same for conspiring to launder money as to actually commit the overt act of money laundering.
(Updated June 2005)

Federal goods were stolen in Washington, D.C. One stolen Possession of Stolen Goods in One State Alone computer was delivered to a home in Maryland. The person who received the computer cannot be tried in D.C. for possession of Is Not Interstate

Transportation of Stolen Goods


Briefed Case

stolen federal property, as the person was not involved in moving the goods across state lines. The proper venue for the case is Maryland.
(Updated June 2005)

Serious Threat to Kill President Not Protected by First Amendment


Briefed Case

Appeals court held that a person who makes a knowing and willful threat to kill the president of the U.S. is not protected by First Amendment free speech right when the threat is not seen by others as a joke.
(Updated April 2005)

Duty to Report Suspected Missouri high court held that a nurse could be prosecuted for violating the state law that requires health care professionals to Child Abuse Not Unconstitutionally Vague report suspected child abuse. The statutory requirement was not Briefed Case unconstitutional for vagueness as the requirement of the law could be understood by a person of ordinary intelligence.
(Updated October 2004)

Federal Arson Jurisdiction Did Not Cover Arson on State Lands


Briefed Case

Federal court dismissed an indictment against a confessed arsonist who set grass fires that were suppressed by the U.S. Forest Service. Since all of the fires had been set and burned on state land, not federal land, federal criminal law did not apply to the actions.
(Updated October 2004)

Before You Burn Your House Down, Make Sure Your Insurance Is Current
Briefed Case

The North Dakota high court upheld the conviction of a couple for conspiracy to commit arson for the purpose of collecting insurance money on their house. The fact that their insurance had expired did not affect the conviction since they burned the house down and then attempted to collect insurance money.
(Updated January 2004)

Feds Can X-Ray Commercial Shipments Without Warrants If No Privacy Expected


Briefed Case

Appeals court held that a defendant had no expectation of privacy when he shipped cash by Federal Express since the package instructions stated not to ship cash and that the packages could be opened for inspection at any time. The company could allow government agents to x-ray packages without warrants to gather evidence.
(Updated January 2004)

State Must Show Defendant Involved in Stolen Goods Deal to Obtain Inference of Knowledge of Legality of Transaction
Briefed Case

Appeals court reversed a conviction of a pawnshop owner for dealing in stolen goods. The state must provide evidence that the owner was personally involved in a transaction for stolen goods for there to be an inference made to the jury that he knew the property was stolen.
(Updated January 2004)

State Must Follow Notice Procedure Properly in Property Forfeiture Actions


Briefed Case

Texas appeals court held that the state lost its ability to force the forfeiture of property seized during a marijuana bust because it did not file notice of intent to seize the property within the time period set by state law.
(Updated July 2003)

Corporation and Employees May Face Criminal Charges for Bringing Illegal Aliens to the Country for Work
Briefed Case

Trial court held that a corporation and its employees could face criminal charges for helping to bring illegal aliens into the country to work and for helping them to obtain illegal Social Security cards. They could not be charged with illegally providing identification cards, as Social Security cards are not clearly recognized as such.
(Updated July 2003)

Police May Search Computer Files for Evidence of Forgery Crime


Briefed Case

Court held that for the police to search a residence, including a computer in the residence, for evidence of the illegal sale of cable television boxes that allow cable services to be obtained without paying the cable provider. The warrant was based on a reliable search by a private investigator who presented the police sufficient evidence to obtain a search warrant.
(Updated May 2003)

U.S. Courts Will Not Enforce Tax Laws of Other Nations


Briefed Case

Appeals court reversed the conviction of a defendant who was convicted of violating Canadian tax law by smuggling untaxed liquor from the U.S. into Canada. Under the revenue rule, U.S. courts do not enforce foreign tax laws or judgments.
(Updated March 2003)

E-Mailing Stolen Documents Is Interstate Transportation of Stolen Property


Briefed Case

Trial court held that federal charges for transportation of stolen property across state lines applies to a case in which a company employee e-mailed valuable company documents across state lines in an effort to sell such documents to a competitor. The statute applies to all forms of property, including intangible property such as files.
(Updated October 1, 2001)

U.S. Law and Courts Applied to Fraud Executed from Another Nation Via New York
Briefed Case

Appeals court upheld the conviction of a U.S. citizen who worked for the United Nations and used wire fraud to steal money from the U.N. by falsifying invoices submitted from another nation. U.S. law applies because Congress intended the statute to cover such foreign acts and U.S. courts has jurisdiction since the fraud went through New York banks.
(Updated September 1, 2001)

Congress Clearly Chooses to Prohibit All Use of Marijuana; No Medical Exception

The Supreme Court held that the courts cannot create a commonlaw or equity medical use exception to the strict federal statute that governs marijuana. Congress has clearly chosen to regulate this drug in a highly restrictive manner, so the courts may not interfere.

Briefed Case

(Updated June 1, 2001)

No Expectation of Privacy in Hotel Room Past Checkout Time


Briefed Case

Appeals court upheld conviction for drug possession of couple who stayed in hotel room past checkout time, despite having been reminded. The police, requested by the hotel to assist in eviction, saw drugs in the open when they entered the room after checkout time. The expectation of privacy in the hotel room had been lost.
(Updated May 1, 2001)

Conviction Must Be Based on Violating the Letter of the Law


Briefed Case

The Supreme Court held that Pennsylvania violated the Due Process Clause by imprisoning a person despite the fact that, as the Pennsylvania supreme court later recognized, the letter of the law was not violated. The intent of the law may have been violated, but that is not sufficient for a criminal conviction.
(Updated May 1, 2001)

Counterfeit Securities Need Not Resemble the Real Thing to Be Illegal


Briefed Case

Appeals court held that a conviction for counterfeiting securities would stand despite the fact that the supposed issuer, J.P. Morgan, does not issue the kind of securities in question. The law is intended to cover any counterfeit security that might fool a person of ordinary sensibility.
(Updated March 1, 2001)

Industrial Hemp Is Illegal Appeals court held that a farmer who requested a ruling as to the Marijuana Under Federal application of federal laws against the possession and use of marijuana applied to industrial hemp has an issue that is ripe for Law Briefed Case review since he could be prosecuted. Under federal law, industrial hemp is classified the same as cannabis sativa grown for nonindustrial recreational purposes.
(Updated March 1, 2001)

Victim of Unlawful Search and Seizure May Not Sue for Damages for Legal Expenses Incurred
Briefed Case

Appeals court affirmed dismissal of a suit brought against officers who seized drugs from an individual's property in an improper manner, resulting in the criminal prosecution being dropped. There may be no suit to recover the legal expenses incurred in response to the incriminating evidence that resulted in the initial action.
(Updated March 1, 2001)

Federal Mail Fraud Does Not Apply to Most StateIssued Licenses


Briefed Case

Supreme Court held that federal mail fraud charges for theft of property via the mails did not apply to state-issued licenses to operate video poker machines. The applicants for the licenses did not steal any property from the state if they violated the license application procedure. They are subject to state law sanctions, but not federal mail fraud charges.
(Updated February 1, 2001)

U.S. Government May Cooperate with Other

Appeals court upheld a district court order allowing the U.S. attorney to cooperate with the Russian government by providing

Nations in Most Criminal information in a criminal tax fraud matter. The court noted that Congress had ordered cooperation with foreign legal matters so Investigations Briefed Case long as the court that reviews the request concludes that the request for assistance is reasonable.
(Updated December 1, 2000)

Interest May Be Added to Appeals court held that while the Kentucky statute on restitution to victims of crime did not address the issue of interest payments on Restitution Payment Owed by Thief to Victim the sum due, it was logical that interest be included in the Briefed Case restitution payments in order for victims to be made whole in their recovery.
(Updated November 1, 2000)

Putting Funds Obtained by Fraud into Bank Account, Without More, Is Not Money Laundering
Briefed Case

Appeals court reversed a conviction for money laundering. The defendant was properly convicted of participating in an insurance fraud scheme, but simply depositing the money obtained in that fraud into a checking account is not money laundering. That involves using the funds to support further criminal activity.
(Updated November 1, 2000)

Evidence from Warrantless Search of Pet Shop Allowed to Convict for Animal Cruelty
Briefed Case

Appeals court upheld the conviction of a pet store operator who was convicted of animal abuse based on evidence collected in a warrantless search of his store, which was entered when inspectors could see distressed and dead animals through the window of the locked shop.
(Updated September 1, 2000)

State-Issued Professional License May Be Forfeited for Violation of Federal Drug Laws
Briefed Case

Appeals court affirmed that a physician could be required to forfeit his state-issued license to practice medicine as part of the punishment for violating federal drug laws. The physician was found to have used his medical license to assist in the distribution of controlled substances.
(Updated June 1, 2000)

Civil Settlement Between Criminal Defendant and Victim Does Not Eliminate Restitution to Victim Ordered in Criminal Case
Briefed Case

Appeals court held that the restitution ordered by the court in a criminal conviction, which defendant is to pay his victim, was not extinguished by a civil settlement between the defendant and his victim that covered the same actions. The criminal matter and civil matters were separate.
(Updated May 1, 2000)

Aerial Search of Property Appeals court upheld the use of evidence seized upon search of a Not a Violation of Right property with a warrant obtained after police flew over defendant's property in an airplane at a legal altitude. The aerial search was to Privacy Briefed Case made based on a tip that there was marijuana growing on the property, which was the case. So long as the airplane was at a legal altitude, the search was legal.

(Updated April 1, 2000)

Criminal Case Outcome Might Not Determine Related Civil Case Outcome
Briefed Case

Appeals court held that a civil case that follows a criminal case on the same matter, may not result in collateral estoppel being used by the plaintiff to win summary judgment unless the issues in the civil case were fully developed and litigated in the criminal proceeding.
(Updated March 1, 2000)

No Warrant Needed to Search for Evidence in Apartment Complex Dumpster


Briefed Case

Appeals court upheld a conviction for dealing in drugs that was based upon a search by the police, without a warrant, of trash carried to a dumpster that contained cocaine wrappers. There is no protected privacy interest in garbage dumped in a communal dumpster that requires the police to obtain a warrant.
(Updated January 1, 2000)

Warrantless Search Allowed When Firm Contracts for Such Condition


Briefed Case

A dentist who was convicted of Medicaid fraud would not have his conviction overturned due to a search conducted of his office records without probable cause. To participate in the state program, he had agreed that his records would be open for state inspection without cause.
(Updated January 1, 2000)

RICO Claims Against Insurer May Proceed


Briefed Case

The Supreme Court held that the McCarran-Ferguson Act does not prohibit enforcement of federal statutes, including RICO, that do not conflict with the purpose of the Act to grant the states power to regulate insurance.
(Updated April 1, 1999)

Jurors Hold Position of High-Level Government Officials


Briefed Case

Appeals court affirmed conviction of juror who solicited a bribe from defendants' families. He was convicted of violating his duty as a government official with "high-level" decision-making authority.
(Updated October 19, 1998)

Legal Impossibility Not a Defense to Conspiracy to Steal Trade Secrets


Briefed Case

Appeals court held that defendants in criminal case involving conspiracy to steal trade secrets, in violation of Economic Espionage Act, do not have a right to see the trade secrets in question in an effort to prove that there were no trade secrets.
(Updated October 19, 1998)

Medicare Fraud by Physician Due Sentence Enhancement Under Guidelines


Briefed Case

Physician who engaged in Medicare fraud -- charging patients and the government for medical equipment not needed or obtained -was properly tried. Sentence enhancement under Guidelines was proper because of her position of fiduciary responsibility.
(Updated October 5, 1998)

Privilege Against SelfIncrimination Not International in Scope

Resident alien could not refuse to provide testimony about his activities during World War II because he feared prosecution by a foreign nation. There is no international application of the Fifth

Briefed Case

Amendment doctrine.
(Updated October 5, 1998)

Civil Penalties Imposed After Criminal Penalties Not Double Jeopardy


Briefed Case

Defendant sentenced to prison and to pay restitution could be required, in subsequent civil penalty action, to pay further damages and fines without violating the Double Jeopardy Clause of the Fifth Amendment, which only protects against serial criminal punishments for the same act.
(Updated May 29, 1998)

Sole Shareholder's Testimony Against His Corporation May Be Used Against the Corporation
Briefed Case

Promoter Don King testified in his criminal wire fraud trial, that resulted in mistrial, against his wholly-owned corporation. Appeals court held that King's contention that his statements against his corporation at the first trial could not be used at a second trial against him and his corporation because it would violate the Confrontation Clause was incorrect.
(Updated May 29, 1998)

Just Say "No" Not Protected If a Lie


Briefed Case

Defendant's claim that he could not be convicted for answering "no" to questions if he had engaged in illegal activites not protected by the "spirit" of the Fifth Amendment.
(Updated 4-6-98)

Briefed Cases for the preceding

"Title" from Owner of Stolen Property to Possessor Does Not Make Possession Legal Description Appeals court upheld conviction of an attorney who was in possession of
paintings he knew were stolen. He got the rightful owner to give him title to some of the paintings in return for one. Since that agreement was for an illegal purpose, the title was invalid and he was guilty of possession of stolen property.

Topic Key Words

Criminal Law Stolen Property; Art; Void Contract


CASESUMMARY

Facts

In 1978, seven valuable paintings were stolen from Bakwin's home. Investigators suspected Colvin, who was represented by criminal defense attorney Mardirosian in another matter. Colvin was killed and the art theft investigation stalled. Mardirosian got the paintings after Colvin's death. He stored them in a vault in Switzerland. In 1999, through a third party, he contacted Bakwin. In exchange for an affidavit stating that he legally owned six paintings, he would return a Cezanne painting, which was worth the most. Bakwin agreed to the deal, got the

Cezanne back, and sold it for $29 million. In 2005, Mardirosian sent the other six paintings to Sotheby's in London to sell. Bakwin sued Sotheby's to enjoin the sale. A grand jury indicted Mardirosian in Massachusetts and, in 2008, a jury convicted Mardirosian of possession of stolen property. He was sentenced to seven years in prison and ordered to return the paintings to Bakwin. He appealed, contending that the affidavit of ownership made him the legal owner of the paintings, so he could not be guilty of possession of stolen property.

Decision

Affirmed. Possession of six stolen paintings was not made legal by the alleged contract in which he agreed to return one painting in exchange for receipt of title to the other six paintings. The agreement was void as a contract for an illegal purpose. The jury found that Mardirosian knew the paintings were stolen, which was sufficient to satisfy the mens rea requirement. Possession of the paintings was a continuous crime not extinguished by a statute of limitations.
U.S. v. Mardirosian, ---F.3d--- (2010 WL 1463249, 1st Cir., 2010)

Citation

Restitution from Possessor of Illegal Child Pornography to Children Abused Not Justified Description The possessor of child pornography was sentenced to 14 years in prison. The
government requested that he be ordered to pay restitution to the children abused in the making of the material. The judge denied the request, noting that the possessor of the material was not involved in the production of the material.

Topic Key Words

Criminal Law Child Pornography; Restitution


CASESUMMARY

Facts

Faxon was convicted of transporting and possessing child pornography in interstate commerceby obtaining it over the Internet. For this crime, he was sentenced to 168 months in prison. Experts testified that the sexual abuse the children suffered would likely reduce their lifetime income and cause them significant personal problems. The government requested the court to order Faxon to pay restitution to the children who were seen in the pornography. Request denied. There is little doubt the expert testimony is correct, and it was properly introduced at trial. However, the fact that Faxon possessed the pornography was not the proximate cause of the injury suffered by the children used in making the pornography. Faxon was not involved in the production of the material, only possession. Hence, the victims would have no knowledge of Faxon, and their injury occurred prior to his obtaining the illegal materials.
U.S. v. Faxon, ---F.Supp.2d--- (2010 WL 430760, S.D. Fla., 2010)

Decision

Citation

Sentencing Guidelines Are Guidelines, Not Statutory Requirements Description Appeals court held that the Sentencing Guidelines are to give guidance to judges
in sentencing, but, unless a statute requires a specific sentence be imposed, judges are not required to follow the sentences recommended by the Guidelines.

Topic Key Words

Criminal Law Sentencing Guidelines; Advisory Status


CASESUMMARY

Facts

Corner pleaded guilty to possession of more than five grams of crack cocaine with intent to distribute. He was sentenced to 188 months' imprisonment as a career offender under the Sentencing Guidelines. Corner appealed, raising the question of whether a district judge is entitled to disagree with the careeroffending Guideline from the Sentencing Commission. Vacated and remanded. The Supreme Court, in the 2005 Booker decision, held that the Sentencing Guidelines are advisory and that judges may vary from Guideline recommendations as long as they respect all statutory requirements. The Guidelines impose much longer sentences for possession of crack cocaine compared to equal quantities of powder cocaine. Since the difference in sentences is based on a Guideline from the Commission, not a statute passed by Congress, judges are at liberty to reject the Guideline, although they must act reasonably when using that power. Sentencing judges must implement statutes, whether or not the judges agree with them or not, but Sentencing Commission Guidelines are only a benchmark that judges may use for guidance. Corner will be resentenced.
U.S. v. Corner, ---F.3d--- (2010 WL 935754, 7th Cir., 2010)

Decision

Citation

Significant Deviation from Sentencing Guidelines Must Be Justified by Court Description Appeals court vacated a light sentence imposed on a defendant who pleaded
guilty to defrauding the government. Since the trial court ignored expert testimony about the loss suffered, and concluded there was no loss, this allowed a light sentence to be imposed. Such a sentence must be justified by the trial court.

Topic Key Words

Criminal Law Fraud; Government Contracts; Sentencing Guidelines


CASESUMMARY

Facts

Wilkinson was indicted for conspiracy to defraud the government, conspiracy to commit wire fraud, and conspiracy to steal trade secrets. Under a plea agreement, he pleaded guilty to the charges. The charges arose from Wilkinson's role in a company that provided aviation fuel to the military at various bases. Wilkinson paid an employee of a competitor to provide information about bids that company was making on deals in which the two companies were competitors so the bids could be rigged. Due to his cooperation, the prosecutors reduced the level of sentencing that was recommended to a lower level than may have been imposed in case of convictions in which there was no cooperation. The judge sentenced Wilkinson to three year's probation and 800 hours of community service. The government appealed that the sentence was too light in violation of the Sentencing Guidelines. Vacated and remanded. The government had recommended that Wilkinson pay restitution to a competitor injured by the bid rigging and to the government for the high prices paid by the fraudulently obtained contracts. The district court must explain why no restitution should be paid given the Sentencing Guidelines and the Mandatory Victims Restitution Act. The government provided evidence of the losses suffered. Expert testimony estimated the government losses at $600,000. The judge improperly rejected the evidence without comment as to why it was not accepted. Since the evidence of damage was rejected, that allowed the judge to ignore the recommendation of imprisonment. A judge may deviate from the Sentencing Guidelines, but must provide adequate justification for the sentence imposed. Because of a major procedural error, the sentence is vacated and remanded to the district court for reconsideration.
U.S. v. Wilkinson, ---F.3d--- (2010 WL 9946, 4th Cir., 2010)

Decision

Citation

Violation of State Law Can Set Basis for Conviction of Federal Mail and Wire Fraud Laws Description Appeals court held that a scam by New Mexico insurance regulators that violated
state law could be the basis for federal conviction for mail fraud and wire fraud. The actions that violated state law were executed in a manner that violated federal law.

Topic Key Words

Criminal Law Mail Fraud; Wire Fraud; Corrupt Solicitation; Extortion; Charities; Insurance
CASESUMMARY

Facts

Ruiz was hired as deputy superintendent of the New Mexico insurance division. It is responsible for enforcing the state's insurance code, which includes a requirement that insurance adjusters be licensed by the state. Ruiz would threaten insurers for possible licensing violations but inform them that they could avoid paying the fine if they contributed 10-20 percent of the amount of the fine to charities which Ruiz and his boss, Serna, the superintendent of the insurance division, ran. Insurers who made contributions to the charities were not fined and were then in good standing with the state regulators. An investigation showed that Ruiz personally benefitted from contributions made to the charities. He was convicted in federal court of multiple counts of mail and wire fraud, corrupt solicitations, and extortion under the New Mexico insurance code. He appealed, contending that his solicitations for the charities in lieu of paying fines to the state did not violate state law. Since there was no violation of state law, he could not be charged with federal violations of mail and wire fraud based on such solicitations. Affirmed. The solicitations made by Ruiz violated the New Mexico insurance code requirement that all money received by the insurance division be paid directly to the state treasurer. That requirement established the predicate of state law violations required for federal fraud conviction. Ruiz used the mail and wire services to execute his fraud to have payments made to his charities rather than to the state. That is sufficient to meet the federal standards for convictions for those offenses.
U.S. v. Ruiz, 569 F.3d 1310 (10th Cir., 2009)

Decision

Citation

Cost of Damage to Property May Depend on Location Description Nevada high court affirmed conviction for gross misdemeanor injury to property,
a level achieved because the cost of repairing the property was higher than usual due to its location. The court held that the fact of where damage occurs, and therefore the cost of the damage, is relevant and a lower cost that would occur in another location need not be assigned by the court.

Topic Key Words

Criminal Law Misdemeanor Assault; Gross Misdemeanor Injury to Property; Equal Protection
CASESUMMARY

Facts

Carolyn Garrett broke the glass out of a neighbors front door and later threatened the owner of the property with a pitchfork. A jury convicted her for misdemeanor assault and for injury to property, a gross misdemeanor. She was sentenced to 30 days in jail for the assault on her neighbor and received a suspended sentence of nine months in jail and three years probation and 80 hours community service. Garrett was ordered to pay restitution of $302.14. She appealed, contending that

her equal protection rights were violated. She contended it was improper for the judge to include the costs of having a repairman travel to replace the glass door, as that pushed the cost over $250, which raised the incident to the level of a gross misdemeanor. If the travel cost was not included, the damage to property would have been less than $250 and it would have been a lesser offense.

Decision

Affirmed. The conviction for gross misdemeanor injury to property, which requires that the value of the loss be more than $250 but less than $5,000, did not violate Garretts equal protection rights. The fact that travel costs of a repairman had to be included, since the work was in the country (rural Nevada) and required long travel, was related to the site of the crime. The cost of the damage happened to be higher because of the location of the crime than had it occurred in some other location. Costs are different in different situations.
Garrett v. State, 2009 WL 1456422 (Sup. Ct., Nevada, 2009)

Citation

Search and Seizure Rules Apply to State Actors, Not Other Parties Description New Mexico high court held that the cocaine a private guard took from a person
suspected of fighting in a shopping mall could not be suppressed as evidence against the suspect. While the search and seizure that found the cocaine was improper, the Fourth Amendment rules regarding searches applies to state actors, such as the police, not private parties.

Topic Key Words

Criminal Law Search and Seizure; Evidence; Security Guards


CASESUMMARY

Facts

Security guards at a mall in Albuquerque worked for Valor Security. While on duty, they heard reports of a fight and ran to investigate. As they approached, Santiago ran out of the mall. The guards sprayed him with mace, tackled him, and handcuffed him. While waiting for the police to come, they searched his pockets and removed a pill bottle that contained little bags of cocaine. They turned the cocaine over to the police when they arrived to arrest Santiago. He was tried for possession of a controlled substance. He moved to suppress the evidence, as the bottle had been taken from him in an improper search. The district court suppressed the cocaine and related evidence as a fruit of the poisonous tree. The appeals court upheld the suppression, holding that the security guards were state actors and subject to the restrictions of the Fourth Amendment. The state appealed.

Decision

Reversed and remanded. The Fourth Amendment prohibits unreasonable searches and seizures by government actors. Under the exclusionary rule, evidence from an unconstitutional search is suppressed. Private security guards have not been granted broad police powers by the New Mexico legislature. They are only authorized to investigate matters that are incidental to a theft, loss, or taking of property that the guard has been hired to protect. Hence, the mall guards are not state actors for Fourth Amendment purposes. While the guards had no authority to search Santiago, as he was not accused of theft from the mall, the fact is that they did. Handing to the police the cocaine they found did not mean that the police ratified an improper search by private parties. Since the Fourth Amendment did not apply to the search by the mall guards, the evidence may be used.
State v. Santiago, ---P.3d--- (2009 WL 3094890, Sup. Ct., N.M., 2009)

Citation

Bank a Victim Due Restitution from Defendant Who Committed Fraud against Bank Description Tennessee appeals court held that under the state victim restitution statute, a trial
court could impose on a defendant convicted of defrauding a bank out of money, a requirement that defendant repay the bank for the funds improperly obtained.

Topic Key Words

Criminal Law Victim; Restitution; Fraud; Bank


CASESUMMARY

Facts

Poole was indicted for theft for drawing funds from a bank account using false documents. Under a plea agreement, he received an eleven month jail sentence. The court also ordered Poole to repay the bank $1,400 to cover the fraudulent withdrawals, which the bank had covered on behalf of the account holders. The award to the bank was under the Tennessee victim restitution statute. Poole appealed, contending that the bank was not a crime victim. Affirmed. The bank was a victim of the defendants fraudulent transactions in withdrawing money from an account that was not his. Hence, the bank could receive restitution as part of the sentence imposed on defendant. The fact that the bank insured the account holders of the losses they suffered from defendants fraud does not mean the banks losses were compensated by insurance.
State v. Poole, ---S.W.3d--- (2008 WL 2229528, Ct. Crim. App., Tenn., 2008)

Decision

Citation

Garbage Bags Put Outside for Collection Not Protected Against Search and Seizure Description Wyoming high court held that when a person puts trash outside for collection
there is no reasonable expectation of privacy. Hence, it was not an illegal search and seizure for police to take a trash bag looking for evidence of suspected drug dealing, which was confirmed and resulted in an arrest and conviction.

Topic Key Words

Criminal Law Search and Seizure; Expectation of Privacy; Trash


CASESUMMARY

Facts

Wyoming police were told that Barekman was selling large quantities of marijuana from his residence. The police went to Barekmans residence and took a bag of trash out of a trash can in front of the residence. In the trash bag they found marijuana residue and packaging. Obtaining a warrant, they searched the residence and found all kinds of drugs. Barekman was convicted. He appealed, contesting that the taking of his trash was an improper search and seizure that violated his expectation of privacy under the Fourth Amendment. Affirmed. Under Wyoming law, a person alleging an illegal search must show a legitimate expectation of privacy in the searched property. In considering whether a person has an expectation of privacy, the court considers: 1) the precautions that the person took to maintain privacy, 2) the likely intent of the drafters of the Wyoming Constitution, 3) the property rights the person possessed in the invaded area, and 4) the legitimacy of the persons possession of the property subject to search or seizure. Barekman has no reasonable expectation of privacy with respect to his trash, as he put bags out on the street for collection by a third party.
Barekman v. State, 200 P.3d 802 (Sup. Ct., Wyo., 2009)

Decision

Citation

Warrantless Searches at Border Allowed Description Appeals court held that border inspections do not require a warrant. A more
invasive inspection, involving the targeting of a particular person, is allowed when there is a reasonable basis for the decision to engage in such a search without a warrant.

Topic Key Words

Criminal Law Search and Seizure; Reasonable Suspicion; Cruise Ship


CASESUMMARY

Facts

When a cruise ship that had been visiting islands in the Caribbean stopped at the U.S. Virgin Islands, it was boarded by U.S. Customs and Border Protection officers with drug sniffing dogs. The officers had a list of ten passengers who had suspicious profiles due to their recent travel to countries that are centers of drug activities, prior convictions, and tips from ship personnel or passengers. One of the passengers was Whitted. The ship security officer unlocked the door to his cabin while he was out and the drug dog pointed to several items. One was a shaving cream can with a false bottom that contained heroin. Whitted was convicted of possession with intent to distribute heroin. He appealed, contending that the conviction was based on an improper search and seizure. Affirmed. Searches at the border are an exception from the warrant requirement. Routine border searches may be conducted not only without a warrant but without probable cause, reasonable suspicion, or any suspicion of wrongdoing, because the expectation of privacy is less at the border than in the interior of the country. The search in this case was not routineWhitted was targeted. The relevant inquiry is not whether a persons particular conductsuch as traveling on a shipis innocent or guilty, in determining whether reasonable suspicion exists to conduct a search, but the degree of suspicion that attaches to particular acts. Customs officials had an objective basis to suspect that Whitted could be involved in drug smuggling based on a number of factors. That reasonable suspicion was grounds for a non-routine, invasive border search of his cabin on the ship.
U.S. v. Whitted, 541 F.3d 480 (3rd Cir., 2008)

Decision

Citation

Low-Quality Counterfeit Money Can Support Counterfeiting Conviction Description A cashier at a store who knowingly accepted counterfeit bills that were made on a
color copier machine could be convicted of conspiracy to engage in counterfeiting. The jury accepted the fact that the fake money looked real enough to justify conviction.

Topic Key Words

Criminal Law Counterfeiting; Conspiracy; Evidence


CASESUMMARY

Facts

Barrett bought drugs from a dealer named Carlos. When Barrett could not pay, Carlos began to threaten Barrett and his wife, Horton, and their children. To stop the threats, Barrett and Horton agreed that Carlos could use Hortons copier to make fake money in exchange for the money owed. Carlos made color copies of $100 bills. He asked Horton to pass the bills for him. She got a friend, Porter, who worked at Wal-Mart to help. Horton bought $500 worth of Wal-Mart gift cards from Porters cash register and gave Porter five counterfeit $100 bills.

When Wal-Mart discovered the fake bills, the police were called. Porter was questioned and agreed to cooperate in the investigation. She was later convicted for conspiring to engage in counterfeiting. She appealed, contending that the counterfeit money did not look real.

Decision

Affirmed. The evidence supported the conviction for conspiracy to engage in counterfeiting. The fake bills were used as evidence, and the jury found that they sufficiently looked like real currency to accept the charge of counterfeiting. The bills did not look like Monopoly money so as to be an obvious fake. Porter knowingly participated in the scheme to pass the counterfeit money.
U.S. v. Porter, 542 F.3d 1088 (5th Cir., 2008)

Citation

Willful Blindness to Duty to Pay Taxes Allows Enhanced Sentence Description Appeals court held that when one intentionally evades paying income taxes then
one is willfully blind to a legal obligation. That fact plays a role in the trial and in the sentencing, which can mean a stronger sentence than would be imposed otherwise.

Topic Key Words

Criminal Law Income Tax Evasion; Willful Blindness


CASESUMMARY

Facts

In 1998, Anthony and his spouse filed a joint tax return with zeros entered for income and taxes owed. They received a refund for all taxes withheld during the year. They attached a three-page statement that stated that they had no duty to pay federal income tax or to file a return and that it had been a mistake for them to file returns in earlier years. Anthony filed forms with his employer claiming exemption from federal income tax withholding. They filed an all zero tax return in 1999 and no returns in following years. During that time, Anthony opened a bank account in Cyprus and transferred most assets there; in all, $870,000. In 2004, learning that a criminal investigation was underway, Anthony began to file overdue returns and pay what was owed, although he stated to the IRS that it was his belief he owed nothing. Despite his efforts to file back returns, he was convicted of tax evasion and sentenced to 33 months in prison. The court determined that Anthony was willfully blind to his obligations and an enhanced sentence was appropriate. He appealed.

Decision

Affirmed. The evidence supported that Anthony was willfully blind. He recognized the likelihood that he was in violation of the law, yet proceeded. A willful blindness instruction is appropriate if: 1) the defendant claims a lack of knowledge, 2) the facts suggest a conscious course of deliberate ignorance, and 3) the instruction cannot be misunderstood as mandating an inference of knowledge. His actions indicated a voluntary, intentional violation of a known legal duty. This is true in most income tax evasion cases. The fact that Anthony had a bunch of material that stated that people do not have to pay taxes on income carried no weight and need not be allowed in evidence.
U.S. v. Anthony, 545 F.3d 60 (1st Cir., 2008)

Citation

Lying About Presence of Person Sought by Police Not Grounds for Conviction Description New Hampshire high court held that to lie to police about the presence of a
person they are seeking is not sufficient to convict that person for the crime of harboring or concealing another. There must be an active act, such as physically hiding the person sought by police, for a conviction to hold.

Topic Key Words

Criminal Law Harboring or Concealing; Conviction


CASESUMMARY

Facts

Gladys Durgin was convicted for hindering apprehension or prosecution by harboring or concealing another. When police went to her house with a warrant for her daughter, Durgin denied that she was there when in fact she was. The police left. The daughter was arrested an hour later and Durgin was prosecuted. She appealed her conviction. Reversed. Convicting a defendant of harboring or concealing another requires proof of a physical act of assistance beyond merely lying in response to police inquiries about the whereabouts of another person. The lies Durgin told the police in response to their questions about her daughter were not sufficient to convict Durgin of harboring or concealing her daughter despite the existence of an arrest warrant that Durgin was shown. Conviction under federal statute requires an affirmative physical action by the defendant, such as hiding the person sought by police.
State v. Durgin, 959 A.2d 196 (Sup. Ct., NH, 2008)

Decision

Citation

Evidence Not Suppressed for Violation of a Statutory Right Description Appeals court held that evidence obtained that involved violation of patient
privacy rights would not be suppressed. Evidence is suppressed when a constitutional right is violated or when a statute expressly provides for suppression. That is not the case under the federal law concerning medical privacy rights.

Topic

Criminal Law

Key Words Evidence; Suppression; HIPPA Rights


CASESUMMARY

Facts

Yenzer was wanted on a warrant. The police had a tip that she had a dental appointment, so waited at the dentist office for her to arrive. The officer could see Yenzers name on the appointment book at the dentist reception desk. When he asked the receptionist about it, she told him that Yenzer had rescheduled the appointment to another day. The officer waited for her at the dentist office that day. When the officer approached Yenzer about the warrant, she ran, thereby adding the charge of obstruction of legal process. When convicted, 12 months probation was added to her sentence on the other charge for the obstruction charge. She appealed on the grounds that her Health Insurance Portability and Accountability Act (HIPPA) privacy rights were violated because the dentist receptionist allowed the officer to see the appointment book and told him of the change in her schedule. She argued that the evidence should be suppressed and the obstruction of legal process charge dropped. Affirmed. Even if Yenzers HIPPA rights were violated, suppression of evidence in a criminal case is not an appropriate remedy for violation of those rights. There are some exceptions to HIPPA privacy rights in cases involving law enforcement personnel, but even if those do not apply, a violation of HIPPA rights does not affect the conviction. Evidence is suppressed because of a violation of a defendants constitutional rights or if a statute specifically provides for suppression as a remedy. That is not the case here.
State v. Yenzer, ---P.3d--- (2008 WL 4820816, Ct. App., Kan., 2008)

Decision

Citation

Property Used in Commission of a Crime May Be Forfeited to the Government Description Judge upheld the request of the government that a couple, convicted of holding

illegal aliens, who were subject to brutal mistreatment, in their home for years, be required to forfeit their home to the government, besides the prison terms given to the couple.

Topic Key Words

Criminal Law Excessive Fines; Property Forfeiture


CASESUMMARY

Facts

Varsha and Mahender Sabhnani were convicted on 12 counts of forced labor, harboring aliens, peonage, and related acts. Varsha was sentenced to 11 years in prison; Mahender to 40 months. The government also moved for the court to order the forfeiture of defendants home, claiming it was related to the holding and mistreatment of people brought into the country illegally to be used as domestic servants. The Sabhnanis opposed the motion, claiming the forfeiture violated the Excessive Fines Clause of the Eighth Amendment of the Constitution. Motion granted. The forfeiture is reasonable given that the home was used in the commission of crimes. The Sabhnanis were found to have starved, tortured, and beat the illegal aliens they kept under their control in their home. The loss of the property, which was used to facilitate the crime, is justified and does not violate the Excessive Fines Clause of the Eighth Amendment.
U.S. v. Sabhnani, ---F.Supp.2d--- (2008 WL 2791870, E.D., N.Y., 2008)

Decision

Citation

Private Cause of Action Exists for RICO Criminal Violations Description Supreme Court held that if a party rigged a public bidding process, thereby
causing competitors to lose prospective business, the losers had a private right of action to sue under RICO. The party that rigged the bidding process was accused of engaging in mail fraud, a criminal offense, which could give rise to the suit.

Topic Key Words

Criminal Law RICO; Private Right of Action; Mail Fraud


CASESUMMARY

Facts

Cook County, Illinois, holds public auctions to sell tax liens on properties of delinquent taxpayers. Winning bidders give the property owner the chance to pay the back taxes, plus a penalty. If the taxpayer does not pay the taxes, the bidder then owns the property and sometimes sells it for a significant profit. To prevent one buyer from getting control of the process, the rules require each buyer to submit bids only in the real name of the buyer, not use hidden agents. Bidders

must swear they are abiding by the rules. Phoenix Bond complained that Bridge had fraudulently obtained properties by violating the bidding rules. He used secret agents and lied on affidavits sent to the county that stated he did not do so. This allowed Bridge and his compatriots to gain more property at lower prices than should have been the case. Suit was brought for violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). It provides a private right of action for treble damages to any person injured in his business or property by reason of a violation of the Acts criminal prohibitions. The district court dismissed the suit for lack of standing. On appeal, the Seventh Circuit Court of Appeals reversed, holding that the bidders did have a cause of action based on RICO. Bridge appealed.

Decision

Affirmed. A plaintiff asserting a RICO claim based on mail fraud, as here, need not show, as an element of the claim or as a prerequisite to establish proximate cause, that it relied on defendants alleged misrepresentations. Mail fraud occurs whenever a person has devised a scheme to defraud and used the mail to help execute the scheme. The fact that Phoenix Bond and other bidders may not have relied on paperwork sent by Bridge and others to the County does not mean they were not injured by such paperwork, as that was at the heart of the scheme to execute the improper bidding scheme. A person can be injured by reason of mail fraud even if he has not relied on any misrepresentation. Here, Phoenix Bond has shown that by violating the bidding rules, Bridge could have imposed real harm due to Phoenix Bond losing out on liens it may otherwise have won in the bidding process.
Bridge v. Phoenix Bond & Indemnity Co., 128 S.Ct. 2131 (Sup. Ct., 2008)

Citation

Counterfeiting Trademarks Is Crime of Moral Turpitude Description Appeals court upheld a ruling by the immigration service that an alien convicted
of making and selling counterfeit goods that violated registered trademarks committed a crime of moral turpitude. The act involved fraud, which is clearly moral turpitude, and is grounds for deportation.

Topic Key Words

Criminal Law Moral Turpitude; Immigration; Counterfeiting


CASESUMMARY

Facts

Tall, from Senegal, arrived in the U.S. in 1981 without a visa. In 2003, he pled guilty to counterfeiting a registered trademark, in violation of Californias penal code, and was placed on probation for three years. In 2004, he pled guilty to nine new counts of counterfeit of a registered mark and was sentenced to prison for two years. After completion of the prison sentence, the Department of Homeland Security began proceedings to remove Tall from the country. The government

argued that he was inadmissible in the U.S. because he was an alien convicted of a crime involving moral turpitude under the Immigration and Nationality Act (INA). The Immigration Judge ruled that Talls convictions were crimes of moral turpitude, so he would be expelled. He appealed to the Board of Immigration Appeals, which affirmed the decision. Tall petitioned the federal appeals court for review of that decision.

Decision

Petition denied. A crime whose nature is inherently fraudulent qualifies as a crime of moral turpitude, rendering an alien removable. The offense of willfully manufacturing, intentionally selling, or knowingly possessing for sale a counterfeit trademark was a crime involving moral turpitude as it is inherently fraudulent.
Tall v. Mukasey, 517 F.3d 1115 (9th Cir., 2008)

Citation

Property Seized in Drug Busts Must Be Subject to Prompt Proceedings Description Appeals court held that the state of Illinois, which allowed over three months
before requiring proceedings to determine the fate of property such as cars taken by police in a drug bust, must be subject to administrative proceedings more quickly to possibly allow the owner to regain possession of the property.

Topic Key Words

Criminal Law Due Process; Property Seizure; Drug Forfeiture


CASESUMMARY

Facts

Chicago police, acting under the Illinois Drug Asset Forfeiture Procedure Act, seized property belonging to plaintiffs. The Act permits the seizure of vehicles, aircraft, boats and money involved in drug crimes. Plaintiffs contended their rights were violated because there were not given a prompt, post-seizure, probable cause hearing. The trial court dismissed the action, ruling they had no right to such hearing. Plaintiffs appealed. Reversed and remanded. Due process requires some sort of mechanism to test the validity of the states keeping of the property. State process holds that when the police seize property they must, within 52 days, notify the states attorney of the seizure and the reasons for it. If the state wishes to claim the property, it must file forfeiture proceedings within 45 days, so 97 days can elapse between seizure and judicial forfeiture proceedings; longer if the property is worth less than $20,000. When people have their cars seized by the police, it makes life difficult. The district court, listening to the parties in the case, should fashion an appropriate procedural administrative mechanism to allow plaintiffs to move quickly to reclaim their property, such as by posting a bond, unless it must be retained by

Decision

the police specifically as evidence related to a crime. If it is later determined that the property will be permanently held by the state, then it can be relinquished by the owner at that time.

Citation

Smith v. City of Chicago, ---F.3d--- (2008 WL 1913619, 7th Cir., 2008)

Courts May Deviate from Guidelines Rules Based on Totality of Circumstances Description Supreme Court held that a district court did not violate the Sentencing Guidelines
by giving probation to a guilty party who would have been sent to prison under Guideline standards. Judges have the discretion to review all circumstances and can justify greater or lower sentences.

Topic Key Words

Criminal Law Sentencing Guidelines; Variances; Extraordinary Circumstances


CASESUMMARY

Facts

When Gall was in college in Iowa, he used and sold drugs, especially ecstasy. He netted over $30,000 from sales. He quit using and selling drugs, finished school and began work. Several years later, he was named in an indictment along with seven other persons for distributing drugs. He pleaded guilty to certain charges. Given the quantity of drugs, his having quit dealing drugs, and his cooperation in the investigation, the pre-sentence report recommended a sentence of 30 to 37 months in prison under the Sentencing Guidelines. The district judge rejected the recommendation and imposed a sentence of probation for 36 months. The government appealed. The appeals court reversed and remanded for resentencing, stating that rejecting the minimum prison term was extraordinary because it amounted to a 100% downward variance from the Guidelines. Gall appealed. Reversed. There is no rule that requires extraordinary circumstances to justify a sentence outside of the Guideline ranges. The district court committed no procedural errors. The decision of the judge was based on a review of the evidence that Gall had withdrawn from the drug conspiracy and lived a lawabiding life for years before he was charged with violations of the law. The court has the ability, when reasonable, to go outside of the Guidelines. The Guidelines are the starting point for analysis, but the judge takes into account arguments from prosecutors and defendants about the appropriateness of the punishment. The judge must fully explain why there is a deviation from the Guidelines so an appeals court can ensure that there has been no abuse of discretion given the totality of the circumstances.

Decision

Citation

Gall v. U.S., 128 S.Ct. 586 (Sup. Ct., 2007)

Viewing Content of Laptop at Border Is Not Unreasonable or Offensive Search Description Appeals court held that border officials may search laptops and other electronic
equipment without a warrant or without reasonable suspicion. So long as searches are not done in an offensive manner, they are a normal part of border control.

Topic Key Words

Criminal Law Search; Evidence; Reasonable Suspicion; Laptop


CASESUMMARY

Facts

Arnold was going through Customs after an international flight. His luggage was searched and he was asked to turn on his laptop. When the screen came up, some folders were called pictures. The Customs inspectors clicked on an icon. Pictures they suspected were child pornography came up. Arnold was taken for more questioning and the laptop searched, where child pornography was found. The laptop was seized; Arnold was later charged with knowingly transporting child pornography. He filed a motion to suppress the evidence because the search was conducted without reasonable suspicion. The trial court held for Arnold that Customs had no reason to search the contents of the laptop, and the evidence was suppressed. The government appealed. Reversed. An airport is part of the border. To ask a traveler to boot up a laptop is normal procedure; viewing the contents is not unusual. Reasonable suspicion is not required for Customs to search a laptop or other personal electronic devices at the border. Border officials have wide discretion in searches at the border, but they must not be offensive. This one was not offensive, so the evidence seized will not be suppressed.
U.S. v. Arnold, ---F.3d--- (2008 WL 1776525, 9th Cir., 2008)

Decision

Citation

State Homestead Law Does Not Protect Property against Seizure in Criminal Conviction Description Appeals court held that when a defendant did not have enough cash to cover a
payment ordered by a court upon conviction of a crime, the government could seize the defendants interest in his homestead. The state homestead exemption is overridden by federal criminal law.

Topic

Criminal Law

Key Words

Forfeiture; Homestead Exemption; Fraud


CASESUMMARY

Facts

Fleet was convicted of wire fraud, money laundering, and other counts related to a fraudulent land-swap deal that bilked unwitting investors out of more than $11 million. The trial court ordered Fleet to forfeit $295,000 in cash to the government. He did not have enough cash, so the government moved to substitute property Fleet owned to generate revenue to provide the cash. Fleet owned two cars and a house jointly with his wife. Fleet opposed the motion, contending that the property was protected by the Florida homestead exemption, as well as the states tenancy by the entireties law. The trial court rejected his argument and ordered the property forfeited. Fleet appealed. Affirmed. Federal law allows property to be forfeited when a person convicted of a crime does not have sufficient cash. Criminal forfeiture contains no innocent owner exception. Since the federal law preempts state law on such matters, unless Congress says otherwise, Fleets homestead may be seized to help raise the needed cash. He has a one-half interest in the property; so that will be claimed by the government. Fleets wife will retain her half interest.
U.S. v. Fleet, 498 F.3d 1225 (11th Cir., 2007)

Decision

Citation

Government Participation in Internet Sting Not Entrapment Description Appeals court upheld the conviction of an adult who attempted to solicit sex with
a supposed 13-year-old. The government informant posing as the child did not initiate the illegal transaction, so it was not entrapment.

Topic Key Words

Criminal Law Entrapment; Internet


CASESUMMARY

Facts

Sixty-two year old Gagliardi entered an Internet chat room called I Love Older Men and began an instant-message conversation with Lorie, an adult government informant posing as a 13-year-old girl under the screen name Teen2HoT4u. Gagliardi pursued the relationship offering to meet her any time and to pay her to have sex. Lorie told Gagliardi she wanted her 13-yearold friend Julie to join them and he agreed and set up a meeting placewhere FBI agents were waiting to arrest him. Gagliardi was convicted of attempted enticement of a minor and sentenced to five years in prison. He appealed.

Decision

Affirmed. Gagliardi claims entrapment. But the record of the Internet discussions showed that he initiated the discussion about illegal matterssex with an underage person. The government agent did not initiate the discussion. The Internet discussion could be called inducement, but not illegal entrapment as defendant was predisposed to commit the charged offense.
U.S. v. Gagliardi, 506 F.3d 140 (2nd Cir., 2007)

Citation

Company Can Lose License to Work for Paying Bribes Extorted by Inspector Description Appeals court held that a food company could lose its license to operate based on
the criminal conviction of a company officer who paid a bribe to a government inspector. Even if paying such bribes was common in the industry, and was extorted by the inspector, the company is responsible.

Topic Key Words

Criminal Law Bribery; Extortion; License


CASESUMMARY

Facts

K&H ran a facility in New York City where it was licensed to buy and sell produce under the Perishable Agricultural Commodities Act (PACA). The company was owned and run by Michael Hirsch, Barry Hirsch, and John Thomas. U.S. Department of Agriculture (USDA) inspectors certify the freshness of commodities. It is well known that many USDA inspectors are corrupt and take bribes to certify commodities as fresh when they are not. Companies that do not pay bribes may be forced to wait a long time for an inspection, by which time the quality of produce drops. One inspector, when caught, cooperated with investigators and was wired so as to document bribes. John Thomas gave the inspector a bribe and was then convicted of bribing a public official. The USDA then charged K&H with violating PACA by bribing an inspector. The company argued that the bribes were extorted by USDA inspectors because, if not paid, produce would be allowed to sit and rot without certification. K&H was fined $180,000 and had it license revoked by the USDA. K&H appealed. Affirmed. Even if a merchants payments to federal inspectors were induced by extortion, such extortion is not a reason under PACA for the merchants failure to perform the implied duty to refrain from bribing produce inspectors. John Thomas was vice president of H&K so he was well connected to the company president, as they worked together running the company, so the company can be held responsible for the violation and lose its license to be in the industry.
Kleinman & Hochberg, Inc. v. USDA, 497 F.3d 681 (D.C. Cir., 2007)

Decision

Citation

Forfeiture of All Cash Being Smuggled Is Fitting Penalty Description Appeals court held that the forfeiture of a large quantity of cash not reported
when being taken out of the country does not violate the Eighth Amendment restriction on excessive fines. Taking large quantities of unreported cash out of the country is linked to criminal activity, so the penalty is not excessive.

Topic Key Words

Criminal Law Forfeiture; Currency; Eighth Amendment


CASESUMMARY

Facts

Otilio Jose was flying from Puerto Rico to St. Maarten. When his luggage was inspected in Puerto Rico, Customs officers discovered $114,948 in cash. When then asked if he had any cash to declare, as federal law requires persons to declare cash in excess of $10,000 being transported in or out of the country, Jose stated that he had $1,400. When confronted, he claimed he found the money in a trash can. He was convicted of knowingly and willfully failing to file a report when he was about to transport more than $10,000 out of the U.S., of making a materially false or fraudulent statement in the matter to Homeland Security officials, and of knowingly and willfully concealing more than $10,000 in currency in an attempt to transport the currency out of the country without filing a Treasury report. Jose was sentenced to 18 months in prison and ordered to forfeit the $114,948 to the government. Jose appealed. Affirmed. The prison sentence was not appealed; the forfeiture was. Jose contends that the forfeiture violates the Eighth Amendment restriction on excessive fines. The forfeiture is not excessive in violation of the Amendment. Congress made clear the gravity of the offense of bulk cash smuggling, as it is linked to serious criminal activity. In any event, forfeiture would not deprive Jose of his livelihood, so he cannot contend it injures him particularly.
U.S. v. Jose, 499 F.3d 105 (1st Cir., 2007)

Decision

Citation

Sentence Longer than Guidelines Maximum Can Be Justified Description Appeals court held that a trial court may impose a sentence that exceeds the
maximum under the Sentencing Guidelines so long as the court provides a clear analysis of the reason that justifies the harsher penalty.

Topic Key Words

Criminal Law Sentencing Guidelines; Drug Dealing; Money Laundering; Extradition


CASESUMMARY

Facts

Cuevas was indicted, with nine others, for conspiring to distribute large quantities of cocaine, to launder money, and illegal possession of firearms. Several defendants were arrested, but Cuevas, in the Dominican Republic, avoided arrest until he was seized by Dominican authorities and sent to the U.S. under an extradition treaty. He pled guilty and was sentenced to 390 months in prison. He appealed, arguing that the sentence exceeded the maximum of 360 months as provided in the Sentencing Guidelines. The district judge imposed the higher sentence due to the leadership role played by Cuevas. Affirmed. The Sentencing Guidelines, the Supreme Court has ruled, are advisory but courts are expected to give them deference. Here the trial court found that Cuevas was the leader of a large drug distribution operation and engaged in sophisticated money laundering. The court did not violate the Guidelines given its finding of the extent of the operation and the role played by Cuevas. The difference between the sentence and the maximum under the Guidelines is non-trivial, so the trial court must make sure it justifies such decisions. U.S. v. Cuevas, 496 F.3d 256 (2nd Cir., 2007)

Decision

Citation

Trial Judges May Not Stray Far from Sentencing Guidelines Description Appeals court held it unreasonable for a trial judge to impose a sentence of 60
months probation when the Sentencing Guidelines recommend a sentence of 7-8 years in prison, possibly reduced to 5 years for cooperation in investigation. The judge must impose a sentence justified by the Guidelines. Criminal Law Sentencing Guidelines; Requirements; Court Sentence
CASESUMMARY

Topic Key Words

Facts

Livesay, former assistant controller at HealthSouth, was convicted of fraud in financial records involving a $1.4 billion scandal. He pled guilty to conspiracy to commit wire and securities fraud and to falsification of financial information. The Presentence Investigation Report under the Sentencing Guidelines showed Livesay to have a level 28 offense, punishable by 78 to 97 months imprisonment. The government filed a 5K1.1 motion under the Guidelines, recommending a reduction for cooperation in the investigation. That would reduce his imprisonment to 60 months. The district court imposed a sentence to 60 months probation. The government appealed the sentence. The appeals court vacated and ordered the trial judge to review the sentence to be consistent with the Guidelines. The judge again set punishment at 60 months probation, holding that sentence to be appropriate, given Livesays history and personal characteristics. The government again appealed the sentence.

Decision

Vacated and remanded. District courts are required to correctly calculate the appropriate advisory Guideline ranges. After doing that, the court may then consider imposing a more sever or more lenient sentence, which the court reviews for reasonableness in light of factors provided in 3553(a) of the Guidelines. The departure from the Guidelines here is not reasonable. The probation sentence shows a clear error of judgment in weighing the sentencing factors by arriving at a sentence that lies outside the range of reasonable sentences given the facts of the case. United States v. Livesay, 484 F.3d 1324 (11th Cir., 2007)

Citation

No Conviction for Planning Drug Operations That Occur Outside of the Country Description Appeals court held that parties in the U.S. who coordinated the sale of illegal
drugs outside of the country could not be convicted of violating U.S. drug laws since the statutes do not apply to violations that occur outside of the U.S.

Topic Key Words

Criminal Law Criminal Law; Conspiracy; Extraterritoriality; Drugs


CASESUMMARY

Facts

The government alleged that Salazar and Lopez brokered a deal in Miami between a Columbian drug organization headed by Usuga and a Saudi Arabian Prince, Al-Shallan. The plan was to transport cocaine on the Princes airplane from Caracas, Venezuela to Paris, France, for distribution in Europe. Salazar and Lopez were convicted on one count each of conspiracy to possess with the intent to distribute five kilograms of cocaine in violation of various drug laws. Usuga and the Prince, not being in the U.S., were not arrested. Salazar and Lopez appeal. Vacated. The Comprehensive Drug Abuse Prevention and Control Act does not apply extraterritorially to discussions that occur in the United States related to possession of controlled substances outside of the United States with intent to distribute those substances outside of the United States. Extraterritorial application of the law was not mentioned in the statute. A silent criminal statute is presumed to apply only domestically. They apply outside of the United States only if Congress intends it. Hence, Lopez and Salazar cannot be convicted. United States v. Lopez, 494 F.3d 1305 (11th Cir., 2007)

Decision

Citation

One Trial Sufficient for Related Charges

Description Appeals court held that when a jury acquitted a criminal defendant on one of two
charges, and could not reach a verdict on the second charge for the same action, that there could not be a retrial of the second charge or it would violate the Double Jeopardy Clause.

Topic Key Words

Criminal Law Fifth Amendment; Double Jeopardy; Acquittal; Retrial; Drug Conspiracy
CASESUMMARY

Facts

Ohayon was arrested when he took a bag of drugs (MCMA or ecstasy) from a hotel room occupied by a confidential informant and placed the bag in the trunk of a car. At trial, his defense was that he did not know what was in the bag. He was tried on charges of conspiracy to possess with intent to distribute and attempt to possess illegal drugs. The jury acquitted him of the attempt count and could not reach a verdict on the conspiracy account. The government wanted to retry him for conspiracy, but the district court held that his acquittal of attempt estopped the government from retrying him on the related conspiracy charge. The court dismissed the conspiracy charge. The government appealed. Affirmed. Acquittal on a charge of an attempted drug offense required, under the Double Jeopardy Clause of the Fifth Amendment, dismissal of the charge of drug conspiracy. It was clear that the jury found reasonable doubt that defendant knew he was acquiring drugs, and a conspiracy conviction would require the government to prove beyond a reasonable doubt that defendant knew he was acquiring drugs. Hence, the government is estopped from retrying Ohayon for conspiracy to possess with intent to distribute those drugs. U.S. v. Ohayon, 483 F.3d 1281 (11th Cir., 2007)

Decision

Citation

Government May Move to Enforce Restitution Order at Any Time Description Appeals court held that the government could file a lien to try to help payment of
restitution owed as part of a criminal conviction. There is no time limit when such liens may be filed and they are good for up to 20 years when filed.

Topic Key Words

Criminal Law Restitution, Enforcement, Time Limit


CASESUMMARY

Facts

Ridgeway was convicted of fraud in 1992. He was sentenced to 30 months in prison and three years of supervised released. He was fined $50,000. He was also ordered to pay $100,000 in restitution to the Louisiana Insurance Guaranty Association (LIGA). After he completed supervised release, he executed a note with LIGA to pay at least $100 a month until the debt was paid. In 2004, the debt not having been paid, the U.S. government filed a lien against his property for $150,000, the amount of his fine plus the restitution owed to LIGA. He filed a motion to set aside the lien, arguing that the government was not authorized to collect the money owed LIGA. The district court denied Ridgeways motion. He appealed. Affirmed. The time limits established in the Victim and Witness Protection Act do not limit the time period during which the government can collect overdue payments under a restitution order. The enforcement provision of the Act provide for the collection of past due restitution orders by the imposition of a lien for a period of 20 years after entry of the restitution order. Hence, a collection effort may be made at any time and a lien may be good for up to 20 years. The fact that the restitution is owed to a party other than the U.S. government, does not limit the right of the government to impose a lien to try to collect restitution owed. U.S. v. Ridgeway, 489 F.3d (5th Cir., 2007)

Decision

Citation

Courts Will Follow Sentencing Guidelines Description Appeals court rejected a light sentence imposed on convicted felon as not
reasonable. The Sentencing Guidelines are generally to be followed closely; judges are not to deviate from them because they may not think they are a good idea.

Topic Key Words

Criminal Law Sentencing Guidelines; Reasonableness


CASESUMMARY

Facts

Trupin was convicted of the crime of tax evasion. He failed to report $6 million over a six-year period. Under the federal sentencing guidelines, he should have received 41 to 51 months of imprisonment, but the district judge imposed a sentence of seven months. The judge stated that the guideline was unreasonable. The government appealed the sentence.

Decision

Remanded. The sentence was unreasonably lenient. The district court placed too much weight on the defendants age (69) and his family circumstances. The court claimed he was unlikely to engage in more violations of the law, but he has a many year record of tax evasion, bad-faith bankruptcy filing, and other events that indicated over a decade of bad behavior. The fact that the sentence imposes a hardship on his wife is no different than the problem faced by many criminals. Failure to follow the sentencing guidelines because a judge does not like them is not reasonable. Defendant will be resentenced.
U.S. v. Trupin, 475 F.3d 71 (2nd Cir., 2007)

Citation

State Identity Theft Law Does Not Conflict with Federal Identity Theft Law Description Georgia high court upheld a conviction for violation of state identify theft law,
ruling that federal identity theft law did not prohibit state laws from addressing such matters.

Topic Key Words

Criminal Law Identity Theft, State Law, Federal Law, Due Process
CASESUMMARY

Facts

Hernandez, an illegal immigrant, misappropriated the social security number of Smith and used the number to obtain a drivers license in Smiths name, and then got a job using Smiths name, which resulted in income being reported to the IRS in Smiths name on which $12,000 in back taxes were due. Hernandez was convicted under a Georgia identity theft statute. He appealed, contending the state law was vague about how identity theft occurred and conflicted with federal law that dealt with similar issues, and so violated due process guarantees of the Constitution. Affirmed. The identity theft statute is not unconstitutionally vague, so did not violate due process. It explicitly prohibits a person from improperly accessing anothers account for financial purposes, which is what Hernandez did by reporting Smiths social security number to the IRS as his own. The federal laws concerning identity theft do not prohibit state laws concerning such theft. Hernandez v. State, 639 S.E.2d 473 (Sup. Ct., Ga., 2007)

Decision

Citation

Related Offenses Treated Separately, Not as One Action, for Sentencing Purposes Description Appeals court held that criminal offenses that are tied to the same action, but

have different consequences, will not be treated as one offense for purposes of sentencing under the sentencing guidelines.

Topic Key Words

Criminal Law Sentencing Guidelines, Offense Grouping


CASESUMMARY

Facts

Vucko worked in sales and bookkeeping for Northwest Building. Over a period of years, she stole $700,000 from her employer by refunding credit charges to her bank account. She did not report that income on her tax returns. She was convicted of wire fraud for the theft and for making false statements in tax returns. The trial court imposed concurrent sentences of two years imprisonment for each offense and ordered restitution of the stolen money. Vucko appealed, contending the trial court failed to group the charges so they would be considered a single offense. Affirmed. Vuckos actions of stealing money and not reporting the income to the IRS were related, but it would not be appropriate to group these actions as one. The offenses had different victims, caused different harms, and were done at different times through different actions. Hence, they were not closely enough related to justify grouping as a single offense under the sentencing guidelines. U.S. v. Vucko, 473 F.3d 773 (7th Cir., 2007)

Decision

Citation

Deadly Force May Be Met with Deadly Force in Self-Defense Description Appeals court held that a person confronted with deadly force has the right to use
deadly force in self-defense. In such situation, where the party does not initiate the contact and has a right to be in the location involved, there is no duty to retreat from the party that imposes the threat.

Topic Key Words

Criminal Law Assault; Deadly Force; Self-Defense; Duty to Retreat; Use of Alcohol
CASESUMMARY

Facts

Beal paid McIver $50 a week to rent a room in a mobile home owned and occupied by McIver. The two were drinking beer when an argument erupted. McIver told Beal to get out, but he refused. McIver went across the street to call the police. Beal knew he was doing that and gathered his belongings to leave. As he prepared to exit, McIver returned and confronted him with a pitchfork. He told Beal not to leave before the police arrived. Beal grabbed a machete and the two fought, using the pitchfork and machete. Beal knocked McIver down, then ran

out of the house, but tripped and fell. McIver came at him with the pitchfork again, but the handle broke. The police arrived and arrested Beal, who was charged with assault with a deadly weapon with intent to kill. The jury found him guilty of the felony of assault with a deadly weapon. He was sentenced to 37 to 54 months in prison. Beal appealed.

Decision

Reversed and remanded for new trial. Beal had the right to leave the home. Any attempt by McIver to hold him prisoner under the threat of being stabbed by a pitchfork amounted to a show of deadly force which could be met with deadly force in self-defense. Beal was placed in reasonable fear of imminent death or serious bodily harm by McIver. Detention by a citizen of an individual suspected of criminal activity is allowed in limited situations, but no detention is allowed where the detaining citizen had no reason to believe a crime has been committed. Beal had no duty to retreat as he was a lawful occupant of the home, and he was not responsible for initiating the deadly force. State v. Beal, ---S.E.2d--- (2007 WL 3431, Ct. App., N.C., 2007)

Citation

Company May Be Convicted for Illegal Acts of Its Officers Description Appeals court affirmed the conviction of corporate officers and the liability of
their employing corporation in an effort to bribe the leader of a state legislature to secure passage of legislation favorable to company interests.

Topic Key Words

Criminal Law Fraud, Conspiracy, Bribery, Public Officials, Corporate Liability


CASESUMMARY

Facts

LPRI operated a gambling facility and dog track in Rhode Island. It was owned by Wembley, a British company. Bucci was the general manager of LPRI; Potter was CEO of Wembley. They were convicted of hiring the McKinnon law firm to pay John Harwood large sums of money to influence state legislation beneficial to LPRI. Harwood was speaker of the Rhode Island House of Representatives and a member of the McKinnon firm. Bucci was sentenced to 41 months in prison, Potter to 36 months, and LPRI was fined $1.5 million. They challenged the sufficiency of the evidence and the ability to convict the firm for misdeeds of its manager.

Decision

Affirmed. Defendants were found guilty of violating the federal statute that makes it illegal to devise any scheme, in interstate or foreign commerce, that involves fraud that deprives citizens of their officials' honest services. Evidence was sufficient to show that Bucci got an agreement from Potter to pay a $1 million bonus to McKinnon if Harwood got legislation passed that would help LPRI's gambling interests. The payments were called "retainers" to the law firm but payment was based on passage of beneficial legislation. Even if the scheme is not successful, it is illegal to attempt to secure favorable legislation based on promised payments to legislators. A corporation may be held liable for the criminal acts of its agents so long as those agents are acting within the scope of employment. U.S. v. Potter, 463 F.3d 9 (1st Cir., 2006)

Citation

Criminal Charges May Be Based on Adding Losses Inflicted on All Victims Description Utah high court held that fraud over a period of time to get money from victims
who fell for the scam was one scheme, and the losses could be added together to impose a harsher felony conviction.

Topic Key Words

Criminal Law Scheme; Fraud; Felony; Misdemeanor


CASESUMMARY

Facts

Over three months, Bradshaw targeted and then defrauded 14 persons of about $500 each in a scheme where he claimed he would help the victims get better mortgages. The state charged Bradshaw with 11 counts of second degree felony communications fraud because it considered the acts to be part of a single "scheme" that added up to over $5,000 in losses. The trial court agreed that there was one scheme that exposed Bradshaw to conviction for 11 felonies, despite the fact that each victim's loss individually would have been a misdemeanor. Bradshaw appealed, contending that there was no "scheme" and that the charges should have been a misdemeanor for each victim. The appeals court agreed with him; the state appealed. Reversed; the trial court's interpretation was correct. A "scheme" in the communications fraud statute refers to the overall design to defraud one or many by means of a common plan or technique. The acts must share a sufficient number of common elements to permit a reasonable person to conclude that they were part of a single criminal design. A series of acts aimed at obtaining one criminal objective constitutes a single scheme. For the purposes of determining the degree of the offense, the amount of monies obtained may be aggregated. State v. Bradshaw, --- P.3d --- (2006 WL 3820468, Sup. Ct., Utah, 2006)

Decision

Citation

No Right to Warning that Statements During Investigation Could Be Used as Evidence Description Court held that a jury could convict a government administrator for making false
statements about a matter he was involved in despite the fact that the administrator was not told during the internal investigation that his statements could become the basis of criminal charges.

Topic Key Words

Criminal Law Due Process; Disclosure; Internal Investigation; False Statement


CASESUMMARY

Facts

Safavian was Chief of Staff for the Administrator of the General Services Administration (GSA). He flew with lobbyist Jack Abramoff by private jet to Scotland to play golf and enjoy a week vacation. When the lobbying scandal involving Abramoff arose, Safavian was questioned by investigators about the trip. He was later indicted for making false statements concerning the matter. He was convicted on all counts. The jury found that Safavian concealed the fact that he knew Abramoff was seeking GSA approval of some business deals. He appealed the jury verdict to the trial judge, asking for acquittal and made a motion for a new trial. Motions denied. Defendant claims his due process rights were violated during the investigation within the GSA about the trip to Scotland. Safavian was not given a warning that false statements could result in criminal proceedings, but he had no right to a due process warning. An internal investigation comes before a formal criminal investigation. The GSA investigator had no obligation to give him a warning of any kind regarding how information he provided could later be used against him. The making of false statements in the course of employment can serve as the basis for criminal charges being brought against the person who makes the statements. U.S. v. Safavian, ---F.Supp.2d--- (2006 WL 2598269, D. D.C., 2006)

Decision

Citation

RICO Claim Must Show Proximate Cause of Injury Description Supreme Court held that even if a company engaged in behavior that could be a
RICO violation, the parties who are the direct victims of the illegal activity have a cause of action, not those who cannot show proximate cause of losses alleged to have resulted from the illegal behavior.

Topic Key Words

Criminal Law RICO, Tax Evasion, Business Loss

CASESUMMARY

Facts

National Steel and Ideal Steel were direct competitors. Ideal sued, claiming that National failed to charge New York sales tax to cash-paying customers, allowing it to reduce prices without losing profits. Ideal also claimed that National filed false state tax returns, which involved committing mail and wire fraud, both forms of racketeering activity under the Racketeer Influenced and Corrupt Organizations Act (RICO). Ideal claimed that these actions by National caused Ideal to lose customers to National and to lose profits. The district court dismissed the suit, finding that Ideal was not in reliance of the false information provided by National, so had no basis for the suit. The appeals court reversed, holding that RICO could be the basis of a claim for loss of competitive advantage due to a racketeering scheme. National appealed to the Supreme Court. Reversed. Ideal cannot maintain a RICO claim. There must be proximate cause between the injury asserted and the injurious conduct alleged. The victim of the alleged RICO violation is the State of New York, not Ideal. Ideal claims it lost sales because of Nationals lower prices, but National could have lowered prices for reasons unrelated to the tax fraud. The link between Ideal and National is too weak to support the suit. A RICO plaintiff cannot circumvent the proximatecause requirement simply by claiming that the defendants aim was to increase market share at a competitors expense. Anza v. Ideal Steel Supply Corp., 126 S.Ct. 1991 (Sup. Ct., 2006)

Decision

Citation

Book Authored by Defendant May Be Used in Evidence against Him Description Appeals court upheld a conviction for fraud. To bolster the case against
defendant, a book he authored that described the fraud could be used as evidence to show that he understood the scheme very well.

Topic Key Words

Criminal Law Bank Fraud; Mail Fraud; Evidence; Prejudice


CASESUMMARY

Facts

Fraser wrote a book, The Birth of a Criminal, under the name Asante Kahari. The book describes the exact counterfeit-check scheme Fraser was convicted of performing. The book was used as evidence at trial. Fraser appealed the conviction, contending that it was reversible error for the trial court to admit portions of the book into evidence and caused the jury to be prejudiced.

Decision

Affirmed. The book was properly admitted as evidence to help establish the defendants guilt. There was no question the defendant authored the book; it served, with other evidence, to rebut the defendants contention that he did not understand the fraud scheme that occurred. The value of the book as evidence outweighs the risk of prejudice. U.S. v. Fraser, 448 F.3d 833 (6th Cir., 2006)

Citation

Prison Sentence Too Light; Be Careful What You Ask For Description Appeals court held that the district court improperly deviated from the federal
Sentencing Guidelines by imposing a sentence that was too light. The defendants appeal is rejected and the court will re-sentence the defendant in compliance with the Guidelines.

Topic Key Words

Criminal Law Sentencing Guidelines; Tax Evasion


CASESUMMARY

Facts

Roush was convicted of income tax evasion for failure to report millions of dollars in income from the receipt of millions of shares of stock that he received from a complicated securities fraud. Given his criminal acts, under the Sentencing Guidelines he should have received a prison term of 37 to 46 months. The trial court judge imposed a term of 27 months, stating that the shorter sentence would be more fair. Roush appealed the conviction, contending various defects in the prosecution. Remanded for re-sentencing. The conviction stands with some minor problems in calculating the total income that was not reported. However, the judge deviated from the Sentencing Guidelines. Courts may deviate from the Guidelines if they articulate fact-specific reasons to justify the deviation. This did not happen here. The judge only expressed concern with fairness for the sentence given the size of the tax evasion. There was insufficient elaboration that could substantiate a reduction in the sentence below what is required by the Guidelines. The case is remanded for re-sentencing consistent with the Guidelines. U.S. v. Roush, ---F.3d--- (2006 WL 2806701, 5th Cir., 2006)

Decision

Citation

Police May Search Property without Warrant When Circumstances Justify Description Appeals court held that evidence was not improperly obtained when police

searched the outside grounds around a residence when they were concerned about the location of a woman. Evidence found related to another matter could be used in prosecution.

Topic Key Words

Criminal Law Search and Seizure; Fourth Amendment; Warrantless Entry; Privacy
CASESUMMARY

Facts

Police received a 911 call, but the caller hung up. Officers were sent to check on the welfare of the occupants of the house. It was on five acres that included a barn and pond. The property was surrounded by a fence. As the gate to the property was open, the officers drove up to the house. As they approached the house, Taylor came to the officers from the barn. He said the call had been made because he and his girlfriend had a fight. Asked where she was, he said "she could be in a couple of different places." Taylor said he had gone to the barn to cool off after the fight. Taylor said they could look around to find his girlfriend. An officer saw fresh footprints leading to the pond. An officer found a backpack in the edge of the pond that had a knife sticking out of the side. Picking up the pack, an officer found shotgun shells in a pocket. Concerned about the missing girlfriend, the officers put Taylor in the back of the patrol car and searched the property, finding a shotgun in the pond. The woman was fine, but Taylor was charged and convicted of being a felon in possession of a firearm. The conviction was appealed, contending the evidence was improperly obtained. Affirmed. Officers are allowed to approach a residence to speak to the inhabitants, just as any private citizen may, without probable cause or a warrant. The officers' actions here were justified under the Fourth Amendment "knock and talk" exception to warrant requirements. The officers had reason to believe there may be an emergency situation at the house. Their search of the area around the house without a warrant was proper as Taylor had been in the barn and was vague about the location of his girlfriend. Taylor had no reasonable expectation of privacy regarding the pond as it is in the proximate area of the house and Taylor had clearly been there. The fence around the property did not create a constitutionally protected interest in all open areas on the property. U.S. v. Taylor, ---F.3d--- (2006 WL 2128065, 11th Cir., 2006)

Decision

Citation

Anticipatory Warrants Allowed by Fourth Amendment Description Supreme Court held that anticipatory warrants may be issued so long as the judge
or magistrate determined that it is probable that contraband, evidence of a crime, or a fugitive will be on the described premises when the warrant is executed.

Topic

Criminal Law

Key Words

Search and Seizure; Anticipatory Search Warrants; Probable Cause


CASESUMMARY

Facts

An undercover postal inspector ran a Web site selling videotapes of child pornography. Grubbs bought a tape. The inspector then submitted a search warrant request to a magistrate, accompanied by an affidavit describing the proposed operation in detail. The execution of the search warrant would not occur until the parcel had been delivered to Grubbs. Then law enforcement officers would move in, as allowed by the warrant. The anticipatory warrant was issued. Two days later, the parcel containing the tape was delivered and signed for. Grubbs was arrested. He admitted ordering the video. Grubbs pleaded guilty, but reserved his right to appeal the denial of his motion to suppress the evidence, as it was obtained by use of an anticipatory warrant, which he claimed violated the Fourth Amendment. The Ninth Circuit reversed, holding the warrant to be defective and so the search illegal. The government appealed. Reversed and remanded. An anticipatory warrant is one based upon an affidavit showing probable cause that at some future time certain evidence of a crime will be located at a specific place. Most subject their execution to some condition precedent other than the mere passage of timea so-called triggering condition. Such warrants do not violate the Fourth Amendment's provision that no Warrants shall issue, but upon probable cause. Probable cause to search exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place. The fact that the contraband is not presently located at the place where described at the warrant is immaterial, so long as there is probable cause to believe that it will be there when the warrant is executed. U.S. v. Grubbs, 126 S.Ct. 1494 (Sup. Ct. , 2006)

Decision

Citation

Seller of Unregistered Securities Must Know They Were Subject to Registration Description California high court held that a person charged with selling unregistered
securities has an affirmative defense that he believed the securities were exempt from registration and the jury should have been so instructed.

Topic Key Words

Criminal Law Securities; Registration; Sale; Knowledge


CASESUMMARY

Facts

Salas was charged under California law with selling unregistered securities. He claimed he believed that the securities were exempt from registration. The trial judge instructed the jury that good faith belief was irrelevant to criminal culpability and Salas was convicted. The appeals court held that guilty knowledgemeaning knowledge of the securitys nonexempt status or criminal negligence in failing to determine its statusis an element of the crime of selling an unregistered security. It concluded the trial judge instructed the jury improperly but the error was harmless to Salas. He appealed. Reversed. Knowledge that a security was not exempt is necessary for a criminal conviction. Lack of knowledge that a security is not exempt is an affirmative defense. A defendant is not guilty of the crime of selling an unregistered security if there is a reasonable doubt whether the defendant knew the security was not exempt from regulation or was criminally negligent in failing to know that it was not exempt.
People v. Salas, 38 Cal.Rptr.3d 624 (Sup. Ct., Calif., 2006)

Decision

Citation

Prosecution of Identity Fraud Has Multiple Possible Venues Description Georgia high court held that the state constitution requires criminal acts to be
prosecuted in the county where the act occurred. Since identity fraud can have an impact in more than one county, the crime may be prosecuted not just in the county where the theft of identify information occurred.

Topic Key Words

Criminal Law Identity Fraud; Prosecution; Venue


CASESUMMARY

Facts

Lloyd, who lives in Clayton County, Georgia, lost his wallet in Fulton County. Using information from the wallet, Mayze is accused of accessing Lloyd's credit history while in DeKalb County. Mayze was charged in Clayton County with two county of identity fraud in violation of Georgia criminal law. The venue of the prosecution was Clayton County based on Lloyd's residence. Mayze filed a demurrer to the indictment, asserting that it was unconstitutional to force him to defend himself in Clayton County. The trial judge sustained the demurrer; the state appealed. Reversed. The state constitution provides that crimes should be prosecuted in the county where the crime was committed. That does not prevent the legislature to limit venue to the county where the accused committed the physical act, so long as venue is set in the county where a criminal act occurred. The crime of identity fraud is a continuing offense that extends into the county where the victim resides. Regardless of where the records were accessed, the use of the

Decision

information obtained from the records impacts in the county were the victim lives.

Citation

State v. Mayze , S.E.2d 836 (Sup. Ct., Ga., 2005)

Knowledge of Use of Substance in Making Illegal Drugs Must Be Shown for Conviction Description Appeals court reversed a conviction of a gas station worker convicted of selling
pseudoephedrine, a legal drug used in making methamphetamine. The government failed to show that the worker knew the substance would be used in that manner. Mere possession and sale of pseudoephedrine was not sufficient for conviction.

Topic Key Words

Criminal Law Evidence; Reasonable Cause; Possession; Distribution


CASESUMMARY

Facts

Troung worked at a Texaco station and convenience store. A customer bought a bottle containing 1,000 pseudoephedrine, which is a legal substance used in making methamphetamine. The customer was arrested on drug charges and told police Troung sold him the pills. The police searched the store and found 43,000 pseudoephedrine pills in inventory. He was charged and convicted of possession and distribution of the pills, which can be used in making methamphetamine. He appealed. Reversed. To obtain a conviction for possessing and distributing psuedoephedrine while knowing, intending, or having reasonable cause to believe it would be used to make meth, it is not sufficient for the government to prove that the defendant was negligent or reckless with respect to the risk that the pseudoeophedrine he sold. The government must show that there is a reasonable cause to believe that defendant knows it will be used in making the illegal drug. That was not done, so the conviction is overturned. U.S. v. Troung, ---F.3d--- (2005 WL 2644962, 10th Cir., 2005)

Decision

Citation

Conviction for Conspiracy Does not Require Proof of Action Conspired Description Supreme Court held that a conviction for money laundering could be based on a
conspiracy to engage in that act. Under federal law, the penalty can be the same

for conspiring to launder money as to actually commit the overt act of money laundering.

Topic Key Words

Criminal Law Conspiracy; Proof; Overt Act; Money Laundering


CASESUMMARY

Facts

Whitfield and others were convicted under federal law of conspiracy to launder money as part of a scam known as Greater Ministries International Church (GMIC). It took in more than $400 million over four years. Investors were promised double their money back, but the funds disappeared. Defendants appealed, claiming that to be convicted, there had to be proof of an overt act in furtherance of the money laundering conspiracy. The trial court and appeals court held that was not the case; defendants appealed. Affirmed. The Money Laundering Control Act of 1986 penalizes the knowing and intentional transportation or transfer of money from specific illegal activities. A 1992 amendment says "Any person who conspires to commit any offense defined in [the money laundering law] shall be subject to the same penalties." The language of the statute does not require an overt act of money laundering to be convicted of conspiracy to engage in money laundering. Whitfield v. U.S., 125 S.Ct. 687 (Sup. Ct., 2005)

Decision

Citation

Possession of Stolen Goods in One State Alone Is Not Interstate Transportation of Stolen Goods Description Federal goods were stolen in Washington, D.C. One stolen computer was
delivered to a home in Maryland. The person who received the computer cannot be tried in D.C. for possession of stolen federal property, as the person was not involved in moving the goods across state lines. The proper venue for the case is Maryland.

Topic Key Words

Criminal Law Stolen Property; Possession; Venue


CASESUMMARY

Facts

Mellen, the aunt of defendant Morgan, intended to defraud her employer, the Department of Education, in Washington, D.C., where she worked as a telecommunications manager. Mellen and a friend submitted false claims for assorted goods they bought for themselves. One of the goods was a computer that Mellen sent to her sister, Morgan's mother, in Maryland. Later, Morgan moved

into another house in Maryland and took the computer with him. Months later, when Mellen's scam was uncovered, federal agents tracked down the computer in Morgan's residence. He was charged with receiving stolen federal property and was convicted in federal district court in D.C. He appealed.

Decision

Reversed. Morgan never had control of the computer while it was in D.C. It was delivered to the house in Maryland where he was living, so his possession of the stolen computer began in Maryland, not in D.C. He did not transport the computer from D.C. to Maryland. Hence, Morgan should not have been tried in D.C. The proper venue was Maryland, so the conviction is overturned. There was no transportation of stolen goods across state lines by Morgan. His alleged criminal action occurred entirely in Maryland. U.S. v. Morgan, 393 F.3d 192 (D.C. Cir., 2004)

Citation

Serious Threat to Kill President Not Protected by First Amendment Description Appeals court held that a person who makes a knowing and willful threat to kill
the president of the U.S. is not protected by First Amendment free speech right when the threat is not seen by others as a joke.

Topic Key Words

Criminal Law Murder Threat; Knowing and Willful; Free Speech


CASESUMMARY

Facts

Lockhart was convicted of making a threat to kill the president of the U.S. She had gone to the manager of a grocery store and, while requesting that she be hired, gave the manager a letter that said, among other things, "If George Bush refuses to see the truth and uphold the Constitution I will personally put a bullet in his head." This was reported to the Secret Service, who already had numerous threat letters from her. She was found guilty of threatening to kill the president and sentenced to 21 months in prison. She appealed, contending that her statement was protected by the First Amendment. Affirmed. Lockhart knowingly and willfully made a threat to harm or kill the president, which constitutes a violation for which one may be convicted. Her contention that the statement is protected by the First Amendment as free speech, and that the statement was made as a joke, is contradicted by the evidence that the statement was made in a serious manner to a stranger, and so constitutes a "true threat," not a statement to be taken lightly.
U.S. v. Lockhart, 382 F.3d 447 (4th Cir., 2004)

Decision

Citation

Duty to Report Suspected Child Abuse Not Unconstitutionally Vague Description Missouri high court held that a nurse could be prosecuted for violating the state
law that requires health care professionals to report suspected child abuse. The statutory requirement was not unconstitutional for vagueness as the requirement of the law could be understood by a person of ordinary intelligence.

Topic Key Words

Criminal Law Child Abuse; Duty to Report; Constitutionality; Vagueness


CASESUMMARY

Facts

Two-year old Dominic James was taken to the hospital when he was unconscious and not breathing. The medics who left him at the hospital told Brown, the nurse on duty, that they believed abuse was involved. A week later, Dominic was released from the hospital but returned four days later when he died from "abusive head trauma." Brown did not report the suspected abuse to Family Services as required by law. She was charged with failure to report the abuse. She contended that the statute was unconstitutionally vague and could not be enforced. The trial court agreed and dismissed the case. The state appealed. Reversed and remanded. The test for determining whether a law is void for vagueness is whether its language conveys to a person of ordinary intelligence a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The statute criminalizing a health professional's failure to report child abuse upon "reasonable cause to suspect" abuse was not unconstitutionally vague. The phrase "reasonable cause to suspect" has been in use for more than a century and is understandable by ordinary persons.
State v. Brown, 140 S.W.3d 51 (Sup. Ct., Mo., 2004)

Decision

Citation

Federal Arson Jurisdiction Did Not Cover Arson on State Lands Description Federal court dismissed an indictment against a confessed arsonist who set grass
fires that were suppressed by the U.S. Forest Service. Since all of the fires had been set and burned on state land, not federal land, federal criminal law did not apply to the actions.

Topic Key Words

Criminal Law Federal Jurisdiction; Arson; Forests


CASESUMMARY

Facts

Grant, a volunteer fireman, set nine separate grass fires in Montana during the dry summer of 2003. All fires were set on state lands, but the Forest Service is the primary responder for fires in the area in question. One fire was only a few feet from federal land, but did not touch federal land. Grant pled guilty to willfully setting fires on the public domain. When he appeared for sentencing in federal court, he raised the question of whether the federal government had jurisdiction over the crimes. Indictment dismissed. The federal court has no jurisdiction over such arson. Even though the management of fires was under federal supervision, and the federal government incurred costs in fighting the fires, the fires were all on state-owned land. Federal law did not specify that the act of setting fires on non-federal land, that did not injury federal land, could be subject to federal criminal law.

Decision

Citation

U.S. v. Grant, --- F.Supp.2d --- (2004 WL 1123829, D. Mont., 2004)

Before You Burn Your House Down, Make Sure Your Insurance Is Current Description The North Dakota high court upheld the conviction of a couple for conspiracy to
commit arson for the purpose of collecting insurance money on their house. The fact that their insurance had expired did not affect the conviction since they burned the house down and then attempted to collect insurance money.

Topic Key Words

Criminal Law Insurance Fraud, Arson


CASESUMMARY

Facts

The Becirajs were convicted of conspiracy to commit arson for the purpose of collecting insurance for the loss. Evidence was provided that convinced the jury that the couple burned down their house to collect insurance money. They did not know until after the fire that their insurance policy had lapsed, so they could not collect. They appealed that they could not be convicted since they did not have insurance. Affirmed. Sufficient evidence was presented at trial to support a conviction for arson. The couple believed their home was insured; they did not learn until after the fire that the policy had expired. To be convicted of conspiracy to commit arson for the purpose of collecting insurance requires only that the actor start a fire with intent to destroy his property for the purpose of collecting. There is no requirement that there actually be insurance.
State v. Beciraj, --- N.W.2d --- (2003 WL 22674221, Sup. Ct., N.D., 2003)

Decision

Citation

Feds Can X-Ray Commercial Shipments Without Warrants If No Privacy Expected Description Appeals court held that a defendant had no expectation of privacy when he
shipped cash by Federal Express since the package instructions stated not to ship cash and that the packages could be opened for inspection at any time. The company could allow government agents to x-ray packages without warrants to gather evidence.

Topic Key Words

Criminal Law Privacy; Search; Right of Inspection; Tax Fraud


CASESUMMARY

Facts

Young obtained a certificate that enabled him to buy fuel tax-free because he said he was going to run a commercial ship fuel business in Florida. He never ran the business, but used his certificate to buy fuel tax free that he then resold, cash only, to various retailers. An IRS agent, suspecting what was going on, without a warrant, got Federal Express to let him x-ray packages that Young was sending, which confirmed that cash was being sent. The agent then got a search warrant to open the packages. Young was convicted. He appealed, contending that the IRS agent improperly searched the Fed Ex packages. Affirmed. Young had no legitimate expectation of privacy in the packages of cash he sent by Fed Ex. The carriers envelopes say, Do not send cash and state that the company may open and inspect packages at any time. Fed Ex, having the right to inspect packages, could allow the IRS, without a warrant, to search a package. Since Young had been notified that he had no right of privacy, he cannot complain of such searches.
U.S. v. Young, --- F.3d --- (2003 WL 22714990, 11th Cir., 2003)

Decision

Citation

State Must Show Defendant Involved in Stolen Goods Deal to Obtain Inference of Knowledge of Legality of Transaction Description Appeals court reversed a conviction of a pawnshop owner for dealing in stolen
goods. The state must provide evidence that the owner was personally involved in a transaction for stolen goods for there to be an inference made to the jury that he knew the property was stolen.

Topic Key Words

Criminal Law Evidence; Factual Showing; RICO; Personal Involvement; Pawn Shop
CASESUMMARY

Facts

Tatum ran a pawnshop. Police became suspicious of one of Tatums employees, Newton, who was engaged in illegal fencing activities with known burglars. Undercover detectives gained Newtons confidence and sold him and Tatum some jewelry. Evidence was presented at trial that Tatum knew or should have known that the jewelry was stolen. He was convicted of violating the Racketeer Influenced and Corrupt Organizations (RICO) Act for conspiring to deal in stolen property. He was sentenced to seven and one-half years in prison. His criminal intent was based on his and Newtons dealings with the undercover officers during the sting operation. Tatum appealed. Reversed. The law states that if the state proves that a dealer in property purchases or sells stolen property out of the regular course of business or without the usual indicia of ownership other than mere possession an inference arises that the person buying or selling the property knew or should have known that the property was stolen. To support such a conviction, the state must make a factual showing in its evidence that Tatum personally conducted a transaction with an undercover officer that involved stolen property. Otherwise the state was not entitled to the benefit of the statutory inference that Tatum knew the property was stolen. Tatum must be shown to have had personal possession of stolen property, not merely a presumption that he was in possession of the property because it was in his pawnshop.
Tatum v. State of Florida, --- So.2d --- (2003 WL 22335030, Dist. Ct. App., Fla., 2003)

Decision

Citation

State Must Follow Notice Procedure Properly in Property Forfeiture Actions Description Texas appeals court held that the state lost its ability to force the forfeiture of
property seized during a marijuana bust because it did not file notice of intent to seize the property within the time period set by state law.

Topic Key Words

Criminal Law Forfeiture of Real Property; Lis Pendens


CASESUMMARY

Facts

Police found marijuana growing in a cornfield owned by Puckett. After destroying the field, the police seized the property owned by Puckett and sought forfeiture of his real property under Texas drug laws. Puckett moved to dismiss the forfeiture action because the state failed to file a lis pendens on real property in the three days required once the forfeiture action was initiated. The trial court denied Pucketts motion and ordered the forfeiture. Puckett appealed.

Decision

Reversed. The failure of the state to file a lis pendens in the time required by the state Code of Criminal Procedure is fatal to the forfeiture action. A lis pendens protects more than the party with a claim against real property, it also protects innocent purchasers and those who take a security interest in the property by giving them notice of the claim. Forfeiture statutes are strictly construed and failure to comply with procedure defeats a states claim for forfeiture.
Silver Chevrolet Pickup v. State, 99 S.W.3d 874 (Ct. App., Tex., 2003)

Citation

Corporation and Employees May Face Criminal Charges for Bringing Illegal Aliens to the Country for Work Description Trial court held that a corporation and its employees could face criminal charges
for helping to bring illegal aliens into the country to work and for helping them to obtain illegal Social Security cards. They could not be charged with illegally providing identification cards, as Social Security cards are not clearly recognized as such.

Topic Key Words

Criminal Law Immigration; Illegal Aliens; Identification Documents; Vicarious Liability; Lenity
CASESUMMARY

Facts

Tyson Foods and some of its employees were charged with criminal violations for misuse of official documents for immigration purposes and for transporting illegal aliens to the U.S. for commercial advantage. Defendants moved to have the charges dismissed, contending that the statute prohibits misuse of identification documents, which does not specify Social Security cards to be such a document. Because the statute and its legislative history is unclear, under the rule of lenity, a criminal statute is not to be enforced if its meaning is ambiguous. That is the case here, as Social Security cards are not always recognized as identification documents. So that charge is dismissed. However, the charge that defendants illegally helped in obtaining illegal Social Security cards may proceed, as may the charges that defendants aided in bringing and transporting illegal aliens into the country for commercial gain. The rule of vicarious liability would allow such charges to be brought against the principal and its agents.
U.S. v. Tyson Foods, Inc., 258 F.Supp.2d 809 (E.D. Tenn., 2003)

Decision

Citation

Police May Search Computer Files for Evidence of Forgery Crime

Description Court held that for the police to search a residence, including a computer in the
residence, for evidence of the illegal sale of cable television boxes that allow cable services to be obtained without paying the cable provider. The warrant was based on a reliable search by a private investigator who presented the police sufficient evidence to obtain a search warrant.

Topic Key Words

Criminal Law Evidence; Probable Cause; Cable Television Forgery


CASESUMMARY

Facts

Cablevision reported to the police that illegal cable television access devices were being sold. An investigator for Cablevision bought one of the devices being advertised. Tests showed that it allowed the user to receive all premium and payper-view channels. Based on the investigators information, and observations by the police, Carratu was arrested for criminal possession of forgery devices. His property, including his computer, was searched. Numerous devices were found. Carratu moved to suppress evidence. Motion denied in part, granted in part. The officers had probable cause to arrest Carratu for criminal possession of forgery devices in the form of cable boxes. The Cablevision investigator had conducted a quality investigation and gathered substantial evidence. The computer files pertaining to a cable box website and customers fell within the scope of the search warrant, but images of false identification papers kept by Carratu were not within the scope of the warrant.
People v. Carratu, 755 NYS2d 595 (Sup. Ct., N.Y., 2003)

Decision

Citation

U.S. Courts Will Not Enforce Tax Laws of Other Nations Description Appeals court reversed the conviction of a defendant who was convicted of
violating Canadian tax law by smuggling untaxed liquor from the U.S. into Canada. Under the revenue rule, U.S. courts do not enforce foreign tax laws or judgments.

Topic Key Words

Criminal Law International Enforcement; Revenue Rule; Jurisdiction; Wire Fraud


CASESUMMARY

Facts

Pasquantino was convicted of wire fraud in federal court for engaging in a scheme to defraud the Canadian government of liquor taxes by smuggling liquor from the U.S. into Canada in large quantities to evade Canadian taxes. Convicted, Pasquantino was sentenced to 57 months in prison. He appealed, contending that the district court lacked subject matter jurisdiction to enforce Canadian tax law.

Decision

Reversed. The scheme to defraud Canada of tax revenue is not actionable under the wire fraud statute. Determination of whether Canada was entitled to tax revenues involved an inquiry into the validity and operation of foreign revenue law. U.S. courts cannot convict defendants based on enforcement of Canadian tax laws. There is a longstanding common law doctrine, called the revenue rule, providing that the courts of one sovereign will not enforce judgments or unadjudicated tax claims of other sovereigns. Courts need give no effect to the revenue laws of foreign countries.
U.S. v. Pasquantino, 305 F.3d 291 (4th Cir., 2002)

Citation

E-Mailing Stolen Documents Is Interstate Transportation of Stolen Property Description Trial court held that federal charges for transportation of stolen property across
state lines applies to a case in which a company employee e-mailed valuable company documents across state lines in an effort to sell such documents to a competitor. The statute applies to all forms of property, including intangible property such as files.

Topic Key Words

Criminal Law Theft; Interstate Transportation; E-Mail


CASESUMMARY

Facts

Farraj was a paralegal at a law firm that represented plaintiffs in a suit against tobacco companies. In preparation for trial, the lawyers prepared a trial plan over 400 pages long that included strategy, deposition summaries, and lists of exhibits intended to be used. Farraj, accessing the plan on secure computers at the law firm, e-mailed 80 pages of the plan to the defense attorneys and offered to sell them the entire plan. The FBI was brought in to pose as a defense attorney to arrange the purchase. The agent met with Farraj, who was then arrested. He was charged with transporting stolen property across state lines. Farraj moved to have the charge dismissed, contending that the content of an e-mail is not "property." He contended that he transmitted information, not goods. Motion denied. The trial plan "was the work product of a business relationship between client and attorney, and may thus be viewed as an ordinary subject of commerce, created for commercial purpose." The transmission of information by e-mail falls under the statute, since it does not specify how stolen property is transferred; e-mail is a form of electronic transfer across state lines. The trial plan, which is information, is intangible property. The statute prohibiting the transfer of stolen property across state lines does not distinguish between tangible and intangible property, so the statute covers this case.
U.S. v. Farraj, 142 F.Supp.2d 484 (S.D. N.Y., 2001)

Decision

Citation

U.S. Law and Courts Applied to Fraud Executed from Another Nation Via New York Description Appeals court upheld the conviction of a U.S. citizen who worked for the United
Nations and used wire fraud to steal money from the U.N. by falsifying invoices submitted from another nation. U.S. law applies because Congress intended the statute to cover such foreign acts and U.S. courts has jurisdiction since the fraud went through New York banks.

Topic Key Words

Criminal Law Jurisdiction; Venue; Extraterritorial Application


CASESUMMARY

Facts

Kim was convicted of wire fraud. Kim, a New York resident, was assigned by the U.N. to be in charge of U.N. travel in Croatia, where Kim was stationed. He worked with two travel agents in Croatia and France to defraud the U.N. of over one-half million dollars by inflating the travel invoices. Kim moved to have the conviction overturned, contending that the federal court in New York did not have jurisdiction or venue over the matter. Conviction affirmed. While there is a presumption against the extraterritorial application of U.S. criminal law to American citizens, the presumption is overcome when it is clear that Congress intends the statute to cover conduct that occurs outside the U.S. The statute concerning wire fraud specifically applies to "foreign commerce," and so the law applies to this case. The federal court in New York has jurisdiction over the case because, although Kim was in Croatia, the wire fraud involved transmissions through New York. The venue of New York was also proper because the wire fraud was sent through Chase Manhattan bank in New York, which Kim knew to be the bank used for payment.
U.S. v. Kim, 246 F.3d 186 (2nd Cir., 2001)

Decision

Citation

Congress Clearly Chooses to Prohibit All Use of Marijuana; No Medical Exception Description The Supreme Court held that the courts cannot create a common-law or equity
medical use exception to the strict federal statute that governs marijuana. Congress has clearly chosen to regulate this drug in a highly restrictive manner, so the courts may not interfere.

Topic Key Words

Criminal Law Controlled Substances Act; Marijuana; Medical Use

CASESUMMARY

Facts

The Oakland Cannabis Buyers' Cooperative was organized to distribute marijuana to qualified patients for medical purposes. The U.S. government sued to enjoin the Coop under the Controlled Substances Act which prohibits the distribution, manufacturing, and possession of controlled substances, which includes marijuana. The federal district court enjoined the Coop's activities, but it continued to distribute marijuana, at which point it held the Coop in contempt of court. The Coop defended that it distributed marijuana only for those who had a medical necessity and that this provides a common-law necessity defense. The federal appeals court held that medical necessity is a defense that may be applied to the Coop's practice in equity. The government appealed to the Supreme Court. Reversed. In a unanimous decision the Court held that there is no common-law medical necessity exceptions to the Controlled Substances Act's restrictions on marijuana. Further, courts cannot use their powers of equity to ignore the judgment of Congress. The only use is for government-approved research projects. Congress has the Constitutional power to regulate drugs. Under the regulatory scheme, some drugs, such as marijuana, are schedule I drugs, the most restricted. Congress has expressly considered this issue and refused to change the law.
U.S. v. Oakland Cannabis Buyers' Cooperative, - S.Ct. - (2001 WL 501567, Sup. Ct., 2001)

Decision

Citation

No Expectation of Privacy in Hotel Room Past Checkout Time Description Appeals court upheld conviction for drug possession of couple who stayed in
hotel room past checkout time, despite having been reminded. The police, requested by the hotel to assist in eviction, saw drugs in the open when they entered the room after checkout time. The expectation of privacy in the hotel room had been lost.

Topic Key Words

Criminal Law Expectation of Privacy; Hotels


CASESUMMARY

Facts

Gomes checked into a hotel registering herself and Dorais. When five days were up, they decided to stay longer and were assigned to another room, where they stayed for three more days. A hotel manager reported suspicions about the couple to the police. The police informed him that Gomes had a criminal record, but did not reveal that they were the subject of a drug investigation. The day they were checking out of the hotel, the police asked the hotel if they could search the room after check out, and the hotel said yes. Gomes left, but Dorais stayed in the room past the noon check out time. The hotel requested the police to help evict him,

which was done at 12:40 pm. Upon entering the room, the police saw drugs. Dorais and Gomes were arrested and convicted. They moved to suppress the evidence on the grounds that their expectation of privacy in the hotel room had been violated. The trial court rejected the motion; they appealed their conviction.

Decision

Affirmed. A defendant's expectation of privacy in a hotel room generally expires at checkout time, but other factors may be taken into account, such as normal extensions past checkout time and other relevant facts. Gomes had left the room before noon, so she no longer had any expectation of privacy regarding the room. Dorais was called at 10 am and reminded of the noon deadline, so he was on notice. The hotel was within its rights to have the police assist in an eviction of Dorais, who knew he had been expected to leave.
U.S. v. Dorais, 241 F.3d 1124 (9th Cir., 2001)

Citation

Conviction Must Be Based on Violating the Letter of the Law Description The Supreme Court held that Pennsylvania violated the Due Process Clause by
imprisoning a person despite the fact that, as the Pennsylvania supreme court later recognized, the letter of the law was not violated. The intent of the law may have been violated, but that is not sufficient for a criminal conviction.

Topic Key Words

Criminal Law Due Process; Beyond a Reasonable Doubt


CASESUMMARY

Facts

Fiore obtained a permit, as required by Pennsylvania statute, to operate a hazardous waste facility. Later, the state prosecuted Fiore for operating the facility without a permit, arguing that he had deviated so dramatically from the terms of the permit that it was the same as if he operated the facility without a permit. Fiore was imprisoned. The Pennsylvania supreme court upheld the conviction. Later that court reviewed an identical conviction of Scarpone, Fiore's partner at the facility, holding that to operate a facility improperly with a permit was not the same as operating a facility without a permit. Fiore then appealed to have his conviction set aside on the basis of the interpretation of the statute in the Scarpone case. The Pennsylvania courts refused the appeal, so Fiore brought a federal habeas corpus action. The federal district court granted the writ, but the federal court of appeals reversed, holding that "state courts are under no [federal] constitutional obligation to apply their decisions retroactively." Fiore appealed.

Decision

Reversed. According to the Pennsylvania supreme court, the Scarpone case "merely clarified" the statute that required a permit and was not new law that presented an issue of retroactivity. "Fiore's conviction and continued incarceration on this charge violates due process. We have held that the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt. In this case, failure to possess a permit is a basic element of the crime of which Fiore was convicted. And the parties agree that [Pennsylvania] presented no evidence whatsoever to prove that basic element." Since Fiore had a permit, he could not have violated the statute in question.
Fiore v. White, 121 S.Ct. 712 (Sup. Ct., 2001)

Citation

Counterfeit Securities Need Not Resemble the Real Thing to Be Illegal Description Appeals court held that a conviction for counterfeiting securities would stand
despite the fact that the supposed issuer, J.P. Morgan, does not issue the kind of securities in question. The law is intended to cover any counterfeit security that might fool a person of ordinary sensibility.

Topic Key Words

Criminal Law Counterfeiting; Securities; Similarity


CASESUMMARY

Facts

Prosperi, a Palm Beach, Florida attorney, represented Donovan's investments, which included Amaretto, a company organized in the Netherlands Antilles and owned by Donovan. According to the government, Prosperi began stealing millions from Donovan in 1987. He was convicted of various violations, including counterfeiting. He created counterfeit certificates of deposit (CDs) that purported to be from J.P. Morgan for the purpose of fooling Donovan. Prosperi appealed the conviction for counterfeiting. The trial judge acquitted him on that count, accepting his contention that the counterfeit CDs looked nothing like the real thing. Reversed. Conviction stands. The statue prohibiting the making or possessing of a counterfeit security does not require the counterfeits to be similar to genuine securities. It concerns "a document that purports to be genuine but is not, because it has been falsely made or manufactured in its entirety." This is a change from the common law, which had a requirement that counterfeit documents be similar to real documents. Under the statute, the counterfeit item "need only bear such likeness or resemblance to the genuine article as is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care dealing with a person supposed to be upright and honest." The fact that J.P. Morgan does not issue CDs does not negate the conviction; Donovan has no

Decision

reason to know that Morgan does not issue CDs. The ones made by Prosperi looked genuine.

Citation

U.S. v. Prosperi, 201 F.3d 1335 (11th Cir., 2000)

Industrial Hemp Is Illegal Marijuana Under Federal Law Description Appeals court held that a farmer who requested a ruling as to the application of
federal laws against the possession and use of marijuana applied to industrial hemp has an issue that is ripe for review since he could be prosecuted. Under federal law, industrial hemp is classified the same as cannabis sativa grown for non-industrial recreational purposes.

Topic Key Words

Criminal Law Federal Law; State Law; Industrial Hemp; Marijuana


CASESUMMARY

Facts

Owen, a member of the New Hampshire legislature, co-sponsored a bill to legalize and regulate the cultivation of industrial hemp, which is used in making products such as rope. The hemp plant is designated cannabis sativa, which is declared illegal under various federal statutes because industrial hemp and marijuana are in that family. The Drug Enforcement Administration (DEA) testified that regardless of the intended use of the hemp, it was illegal under federal law. Owen and others brought the case to seek a declaration that industrial hemp is not marijuana so that the DEA would not be able to prosecute hemp growers. The district court dismissed the case, finding that Owen lacked standing. Owen appealed. Affirmed. Owen has standing to bring the case because the threat of criminal prosecution is realistic. The court has the power to grant declaratory and injunctive relief to prevent prosecution, so the issue is ripe for review. Industrial hemp contains a low content of the psychoactive substance tetrahydrocannabinol (THC), which is defined as marijuana under the federal Comprehensive Drug Abuse Prevention and Control Act of 1970. The stalks and fiber of the cannabis sativa plant are illegal to possess regardless of use. New Hampshire law may not be to the contrary.
New Hampshire Hemp Council, Inc. v. Marshall, 203 F.3d 1 (1st Cir., 2000)

Decision

Citation

Victim of Unlawful Search and Seizure May Not Sue for Damages for Legal Expenses Incurred Description Appeals court affirmed dismissal of a suit brought against officers who seized
drugs from an individual's property in an improper manner, resulting in the criminal prosecution being dropped. There may be no suit to recover the legal expenses incurred in response to the incriminating evidence that resulted in the initial action.

Topic Key Words

Criminal Law Unlawful Seizure; Litigation Costs


CASESUMMARY

Facts

Hector was prosecuted following police seizure of 80 pounds of hallucinogenic mushrooms from his airplane. The seizure was held to be unlawful, the evidence was suppressed, and the suit against Hector was dismissed. He then sued the government officials involved in his arrest and prosecution to recover $3,500 in bail-bond expenses, $23,000 in attorney's fees, and $2,000 travel costs. The district court held that he could not recover the costs incurred during the criminal prosecution. Hector appealed. Affirmed. Hector may not recover the costs he incurred in his criminal prosecution. The victims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy, including, when appropriate, damages for physical injury, property damage, and injury to reputation, but such victims cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent prosecution and legal proceedings.
Hector v. Watt, 235 F.3d 154 (3rd Cir., 2000)

Decision

Citation

Federal Mail Fraud Does Not Apply to Most State-Issued Licenses Description Supreme Court held that federal mail fraud charges for theft of property via the
mails did not apply to state-issued licenses to operate video poker machines. The applicants for the licenses did not steal any property from the state if they violated the license application procedure. They are subject to state law sanctions, but not federal mail fraud charges.

Topic Key Words

Criminal Law Mail Fraud; Property; State Licenses


CASESUMMARY

Facts

Cleveland, a lawyer, helped TSG, a company owned by Goodson, prepare applications to the state of Louisiana to receive licenses to operate video poker machines. The licenses were approved and renewed for several years. Cleveland and Goodson were then indicted on numerous charges in connection with a scheme to bribe state legislators to vote in a manner favorable to the video poker industry. The indictment included counts of mail fraud related to using the mails for the licenses. The defendants moved to have those charges dismissed on the ground that the alleged fraud in applications did not deprive the state of "property" under the mail fraud statute. They were convicted on these counts and the appeals court upheld the conviction for mail fraud, holding that video poker licenses were "property" of the state. Defendants appealed. Reversed. State and municipal licenses in general do not rank as "property" for purposes of federal mail fraud. Mail fraud is largely limited to the protection of money and property. That does not include the kind of license involved here. Otherwise, mail fraud would cover drivers' licenses, medical licenses, and other licenses that are regulatory. The defendants did not defraud the state of any money. To allow the state's view to stand would be a sweeping expansion of federal criminal jurisdiction. Equating the issuance of licenses or permits with the deprivation of property would subject to federal mail fraud prosecution a wide range of conduct traditionally regulated by state and local authorities, something Congress did not intend to do.
Cleveland v. U.S., 121 S.Ct. 365 (2000)

Decision

Citation

U.S. Government May Cooperate with Other Nations in Most Criminal Investigations Description Appeals court upheld a district court order allowing the U.S. attorney to
cooperate with the Russian government by providing information in a criminal tax fraud matter. The court noted that Congress had ordered cooperation with foreign legal matters so long as the court that reviews the request concludes that the request for assistance is reasonable.

Topic Key Words

Criminal Law Criminal Prosecution; Foreign Assistance


CASESUMMARY

Facts

The Russian government sought assistance from the U.S. government in connection with a criminal investigation of alleged tax fraud. The subject of the investigation, whose identity is confidential and under seal, argued at the district court that the U.S. attorney should not cooperate with the investigation because no criminal proceeding was "imminent." Rather, the subject argued, the Russian government was only "fishing" for information, which the U.S. government had

no obligation to provide. The district court rejected that argument and held that the U.S. attorney could cooperate with the Russians; the subject appealed.

Decision

Affirmed. The federal law that orders the U.S. government to cooperate with foreign legal proceedings is quite broad. There need be "a judicial or quasijudicial controversy" at stake. The district court reviewed the documents from the Russian government and concluded that the request for cooperation on information was reasonable. There is no requirement that a criminal prosecution be imminent for the government to cooperate with foreign authorities in such matters.
U.S. v. Sealed 1, 2000 WL 1634226 (9th Cir., 2000)

Citation

Interest May Be Added to Restitution Payment Owed by Thief to Victim Description Appeals court held that while the Kentucky statute on restitution to victims of
crime did not address the issue of interest payments on the sum due, it was logical that interest be included in the restitution payments in order for victims to be made whole in their recovery.

Topic Key Words

Criminal Law Restitution; Damages; Interest Payment


CASESUMMARY

Facts

The Hearns pled guilty to felony theft for having stolen more than $300,000 from a public school in Kentucky, where Patricia Hearn was a superintendent. They were sentenced to 10 years in prison, but the sentence was probated on the condition of restitution of the money. The state requested that the Hearns also be required to pay interest on the money, but the trial court held that it did not have authority to order interest to be paid on the stolen funds. The state appealed. Reversed. Restitution is a condition of probation in Kentucky. The statute dealing with restitution does not say anything about interest payments. "All statutes are to be liberally construed to carry out the legislature's intent." Restitution is a part of the "victim's rights movement." Restitution normally includes post-judgment interest on payments due the victim. So for restitution to be paid in full, interest can be included in the payment ordered, at the discretion of the trial court.
Kentucky v. Hearn, 2000 WL 1252552 (Ct. App., Ky., 2000)

Decision

Citation

Putting Funds Obtained by Fraud into Bank Account, Without More, Is Not Money Laundering Description Appeals court reversed a conviction for money laundering. The defendant was
properly convicted of participating in an insurance fraud scheme, but simply depositing the money obtained in that fraud into a checking account is not money laundering. That involves using the funds to support further criminal activity.

Topic Key Words

Criminal Law Insurance Fraud; Money Laundering


CASESUMMARY

Facts

Jolivet was convicted of mail fraud, money laundering, and conspiracy in connection with an insurance fraud scheme she carried out with her husband. Fraudulent documents were provided to insurance companies to extract settlements for auto accidents that never occurred. She appealed the conviction. Affirmed in part, reversed in part. Jolivet's mail fraud and conspiracy convictions stand. The mails were used to send fraudulent documents that she prepared and signed. She received insurance proceeds. Her participation in the conspiracy was knowing. However, the money laundering conviction is reversed. Her act of depositing into her bank account the proceeds obtained from the insurance fraud was insufficient to prove that she intended to use the proceeds to carry on unlawful activities, which is required to support a conviction for money laundering. The money in her checking account was used to pay for ordinary living expenses, there was no evidence that the illegally obtained funds were used to further other criminal activity.
U.S. v. Jolivet, 2000 WL 1364207 (8th Cir., 2000)

Decision

Citation

Evidence from Warrantless Search of Pet Shop Allowed to Convict for Animal Cruelty Description Appeals court upheld the conviction of a pet store operator who was convicted of
animal abuse based on evidence collected in a warrantless search of his store, which was entered when inspectors could see distressed and dead animals through the window of the locked shop.

Topic Key Words

Criminal Law Warrantless Entry; Property; Animal Protection


CASESUMMARY

Facts

A complaint was received by the American Society for the Prevention of Cruelty to Animals (ASPCA) that a pet store was not caring properly for its animals. An ASPCA officer looked in the window of the store and could see dead animals and dogs barking "plaintively." The locked store was entered without permission to rescue the animals. Based on information given to the state, Rogers was charged with numerous counts of animal mistreatment and was convicted on four counts of abandoning animals. He appealed his conviction, arguing that ASPCA agents unlawfully entered into his pet store without a warrant, so that the basis of the conviction was illegal. Conviction affirmed. "A warrantless search may be conducted under the emergency doctrine, where there is a 'substantial threat of imminent danger to either life, health, or property.' Since the protection of property is encompassed in the doctrine, this court finds no reason not to include therein the protection of animals which constitute property."
People v. Rogers, 708 N.Y.S.2d 795 (Sup. Ct., App. Term, N.Y., 2000)

Decision

Citation

State-Issued Professional License May Be Forfeited for Violation of Federal Drug Laws Description Appeals court affirmed that a physician could be required to forfeit his stateissued license to practice medicine as part of the punishment for violating federal drug laws. The physician was found to have used his medical license to assist in the distribution of controlled substances.

Topic Key Words

Criminal Law Drugs; License; Forfeiture


CASESUMMARY

Facts

Dicter, an Atlanta physician, was convicted of selling prescriptions for controlled substances to one customer over 200 times for as much as $500 per prescription. At trial, an expert witness testified that the prescriptions were not written in the course of legitimate medical treatment. Besides being given a prison term and a fine, Dicter was ordered to forfeit his medical license. He appealed. Affirmed. Dicter's medical license was forfeitable "property" under the drug laws, which allows property to be taken that was used to commit or facilitate the commission of federal drug law violations. Under Georgia law, a state-issued license to engage in a profession, trade, or occupation is a property right. Federal drug laws allow such state-issued property to be forfeited if the property was used to facilitate violations of federal drug laws. The fact that the state of Georgia may have its own proceedings regarding Dicter's right to maintain a license does not impact this legal proceeding.

Decision

Citation

U.S. v. Dicter, 198 F.3d 1284 (11th Cir., 1999)

Civil Settlement Between Criminal Defendant and Victim Does Not Eliminate Restitution to Victim Ordered in Criminal Case Description Appeals court held that the restitution ordered by the court in a criminal
conviction, which defendant is to pay his victim, was not extinguished by a civil settlement between the defendant and his victim that covered the same actions. The criminal matter and civil matters were separate.

Topic Key Words

Criminal Law Restitution; Civil Settlement


CASESUMMARY

Facts

DeAngelis was convicted in New Jersey state court of misapplication of entrusted property and of unlawful offer and sale of securities. He was sentenced to ten years probation and ordered to pay restitution of over $1.2 million to his victims. The primary victims had sued DeAngelis in court in Florida and obtained a civil judgment of $1.6 million against him for the same misconduct. Zito, the primary victim, then came to an out-of-court settlement with DeAngelis in Florida to settle that civil judgment. The question for the New Jersey court was "whether a defendant, convicted of a crime and subject to a restitution order, is absolved from the terms of restitution by settling with the victim in a civil action arising out of the same facts which formed the basis of the criminal conviction." "Contrary to defendant's assertion, the release Zito signed does not ... release defendant from his obligations under the restitution order. It only releases him from the specific debts arising out of or in connection with the listed matters, including the ... Florida civil action brought by Zito. The release does not list the debts arising from the criminal conviction, as debts from which defendant is being released." The restitution order stands and it does not violate the Eighth Amendment's prohibition against excessive fines, as these were separate legal matters.
State v. DeAngelis, - A.2d - (2000 WL 254487, Super. Ct., App. Div., N.J.)

Decision

Citation

Aerial Search of Property Not a Violation of Right to Privacy Description Appeals court upheld the use of evidence seized upon search of a property with a
warrant obtained after police flew over defendant's property in an airplane at a legal altitude. The aerial search was made based on a tip that there was marijuana growing on the property, which was the case. So long as the airplane was at a

legal altitude, the search was legal.

Topic Key Words

Criminal Law Search and Seizure; Privacy; Aerial Observation


CASESUMMARY

Facts

An informant told police that Wilson was growing marijuana in a roofless shed at his residence. The police flew over the shed in an airplane at an altitude of 500 feet to look inside the shed with binoculars. They observed what they believed to be 15-20 marijuana plants growing inside the shed. The police then obtained a warrant to search both the shed and Wilson's house where they seized marijuana plants. Wilson moved to suppress the evidence, claiming that it was obtained by an illegal search and seizure. The trial court denied the motion and convicted Wilson. He appealed. Affirmed. Flying over the property at a legal altitude did not constitute an illegal search in violation of state constitutional rights to privacy. The police have the right to make aerial observations, just as they make observations when seated in automobiles. The judge then issued a warrant on probable cause, so the evidence was legally obtained.
State v. Wilson, 988 P.2d 463 (Ct. App., Wash., 1999)

Decision

Citation

Criminal Case Outcome Might Not Determine Related Civil Case Outcome Description Appeals court held that a civil case that follows a criminal case on the same
matter, may not result in collateral estoppel being used by the plaintiff to win summary judgment unless the issues in the civil case were fully developed and litigated in the criminal proceeding.

Topic Key Words

Criminal Law Securities Fraud; Collateral Estoppel


CASESUMMARY

Facts

The SEC filed civil charges against Bertoli for securities violations. The action was stayed while Bertoli was tried and convicted of criminal charges for obstruction of justice but acquitted on related racketeering counts based on alleged securities fraud. He was sentenced to 78 months in prison, supervised release, and fined $100,000. The SEC moved for summary judgment on the civil suit on collateral estoppel grounds based on findings of fact rendered by the court at sentencing proceedings. The district court granted summary judgment for the SEC and permanently enjoined Bertoli from associating with anyone in the securities industry. Bertoli appealed.

Decision

Vacated and remanded. Offensive collateral estoppel is when a plaintiff may foreclose a defendant from relitigating an issue the defendant has previously litigated but lost. For collateral estoppel to apply: 1) the issues in both proceedings must be identical; 2) the issue in the prior proceeding must have been actually litigated and actually decided; 3) there must have been a full and fair opportunity for litigation in the prior proceeding; and 4) the issue previously litigated must have been necessary to support a valid and final judgment on the merits. Here, some of the civil issues received little attention at the criminal trial, so the civil case must be heard distinctly from the previous criminal case.
Securities Exchange Comm. v. Monarch Funding Corp., 192 F.3d 295 (2nd Cir., 1999)

Citation

No Warrant Needed to Search for Evidence in Apartment Complex Dumpster Description Appeals court upheld a conviction for dealing in drugs that was based upon a
search by the police, without a warrant, of trash carried to a dumpster that contained cocaine wrappers. There is no protected privacy interest in garbage dumped in a communal dumpster that requires the police to obtain a warrant.

Topic Key Words

Criminal Law Warrantless Seizure


CASESUMMARY

Facts

Washington was convicted of dealing drugs. Police officers saw him dump trash in a dumpster outside of his apartment, went through the trash, and found small amounts of illegal drugs. They then obtained a search warrant for Washington's apartment, which yielded a stash of cocaine. Washington was sentenced to prison and appealed, contending that the search of his garbage in the dumpster, which was based on a police stakeout, was an illegal warrantless search. Affirmed. The factors to consider in determining whether there is a "reasonable expectation of privacy are: (1) the location of the garbage, (2) the extent to which the garbage is exposed to the public or out of the public's view, and (3) whether the garbage was placed for pickup by a collection service and actually picked up by the collection service before being turned over to the police." A communal dumpster for an apartment complex, located over 100 feet from the defendant's dwelling, does not have an expectation of privacy, so the warrantless search produced evidence that could be used by the police.
State v. Washington, 518 S.E.2d 14 (Ct. App., N.C., 1999)

Decision

Citation

Warrantless Search Allowed When Firm Contracts for Such Condition

Description A dentist who was convicted of Medicaid fraud would not have his conviction
overturned due to a search conducted of his office records without probable cause. To participate in the state program, he had agreed that his records would be open for state inspection without cause.

Topic Key Words

Criminal Law Search and Seizure; Medicaid Fraud


CASESUMMARY

Facts

Blackwell, a dentist, was convicted of Medicaid fraud and sentenced to five years in prison and ordered to pay $87,000 in fines and restitution. He appealed that the conviction should be overturned because the state's search and seizure of documentary evidence conducted at his place of business violated his Fourth Amendment rights. He argued that the judge had no probable cause to issue the warrant to search. Affirmed. When Blackwell agreed to participate in the Medicaid program, he authorized the director of the program to examine all of his records to look for any possible violations. Since his contract stated that his records would be open to the state, it could search them without probable cause. "A warrantless search is valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search."
Blackwell v. State, - S.W.3d - (1999 WL 796891, Sup. Ct., Ark.)

Decision

Citation

RICO Claims Against Insurer May Proceed Description The Supreme Court held that the McCarran-Ferguson Act does not prohibit
enforcement of federal statutes, including RICO, that do not conflict with the purpose of the Act to grant the states power to regulate insurance.

Topic Key Words

Criminal Law RICO, McCarran-Feguson Act, Health Insurance


CASESUMMARY

Facts

Plaintiffs had health insurance policies in Nevada issued by Humana, under which they received care at a Humana-owned hospital. Insurance covered 80% of hospital charges after deductible, insured paid 20%. Unknown to insureds, the hospital gave insurer a discount, which meant it paid well under the supposed 80%. Insureds sued, contending that RICO had been violated through a pattern of racketeering activity via fraud. Humana contended the suit could not go forward because RICO, a federal statute, conflicts with the delegation of insurance regulation to the states under the McCarran-Ferguson Act. Conflicting rulings

came from the lower courts.

Decision

McCarran-Ferguson precludes application of a federal statute in the face of state law related to insurance regulation. However, McCarran does not preclude application of federal law that does not directly conflict with state regulation and would not frustrate any state policy concerning insurance regulation. Since suit under RICO would not impair Nevada insurance regulation, it was not precluded by McCarran. Action against Humana could proceed as RICO's private right of action complements Nevada's statutory and common-law claims for relief.
Humana, Inc. v. Forsyth, 119 S.Ct. 710 (1999)

Citation

Jurors Hold Position of High-Level Government Officials Description Appeals court affirmed conviction of juror who solicited a bribe from defendants'
families. He was convicted of violating his duty as a government official with "high-level" decision-making authority.

Topic Key Words

Criminal Law Bribery, Juror


CASESUMMARY

Facts

Snell sat on a federal court jury hearing a drug felony case. He told members of the defendants' families that he would deliver a "not guilty" verdict. He was paid $10,000. The rest of the jury voted to convict, and sensed something was wrong with Snell, who demanded "not guilty." When he went along with the guilty verdict, the families demanded the money back. Snell did not have it, and the families went to the FBI. Snell was convicted of a federal offense involving "payment for the purpose of influencing an elected official or any person holding a high-level decision-making or sensitive position." Snell appealed. Affirmed. "There can be no doubt that, as a juror, Snell was acting as a government 'official' for purposes [of the statute]." He could also be considered as holding a "high-level" position. "In view of the prominence of juries in our legal system, and of the extraordinary responsibility of every juror in preserving that system, we have little difficulty concluding that a juror, in the role assigned to him, shares a level of responsibility at least equal to a prosecuting attorney, agency administrator, or supervisory law enforcement officer."
United States v. Snell, ---F.3d--- (1998 WL 495227, 5th Cir.) or 152 F. 3d 345 (5th Cir., 1998)

Decision

Citation

Legal Impossibility Not a Defense to Conspiracy to Steal Trade Secrets Description Appeals court held that defendants in criminal case involving conspiracy to steal
trade secrets, in violation of Economic Espionage Act, do not have a right to see the trade secrets in question in an effort to prove that there were no trade secrets.

Topic Key Words

Criminal Law Economic Espionage Act, Trade Secret Theft, Legal Impossibility
CASESUMMARY

Facts

Hsu and others were indicted, following an FBI sting, for violating the Economic Espionage Act (EEA) of 1996 for conspiring to steal corporate trade secrets regarding a valuable anti-cancer drug. The defense requested a copy of the trade secret documents at stake. The government contended that the defense did not need access to the documents except in camera under supervision of the judge. The defense maintained that constitutional and procedural requirements of criminal prosecutions dictate full access to the documents so they could establish the defense of legal impossibilitythey could not steal trade secrets that did not exist. District court agreed with the defense; government appealed. Reversed. In a case of first impression on this subject, the appeals court held that legal impossibility is not a defense to the charge of conspiracy and attempt to steal trade secrets, rather than a charge of actual theft of trade secrets, under the EEA. So long as the defendants believed they were going to steal trade secrets, it does not have to be proven that there were actually trade secrets at stake. Defense may see documents only after trial court has conducted an in camera review so that confidential information is protected.
U.S. v. Hsu, F.3d (1998 WL 538221, 3rd Cir.) or 155 F. 3d 189 (3rd Cir., 1998)

Decision

Citation

Medicare Fraud by Physician Due Sentence Enhancement Under Guidelines Description Physician who engaged in Medicare fraud -- charging patients and the
government for medical equipment not needed or obtained -- was properly tried. Sentence enhancement under Guidelines was proper because of her position of fiduciary responsibility.

Topic Key Words

Criminal Law Sentencing Guidelines, Medicare Fraud, Fiduciary


CASESUMMARY

Facts

A physician signed false medical equipment payment claims for elderly patients and was convicted of Medicare fraud. She appealed the conviction on various grounds and appealed the level 19 sentence under the Sentencing Guidelines as inappropriate. Affirmed. The Guidelines provide enhancement of sentences in some cases: "If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels." As a doctor, she was "in a fiduciary relationship with her patients and the government" so the enhancement of sentence is appropriate.
U.S. v. Ntshona, F.3d (1998 WL 598614, 2nd Cir.), or 156 F. 3d 318 (2nd Cir., 1998)

Decision

Citation

Privilege Against Self-Incrimination Not International in Scope Description Resident alien could not refuse to provide testimony about his activities during
World War II because he feared prosecution by a foreign nation. There is no international application of the Fifth Amendment doctrine.

Topic Key Words

Criminal Law Self-Incrimination


CASESUMMARY

Facts

When the Justice Department subpoenaed Balsys, a resident alien, to testify about his activities during World War II and his immigration to the U.S., he claimed the Fifth Amendment privilege against self-incrimination, based on his fear of prosecution by a foreign nation. The Second Circuit held that in such a case the witness could avoid testimony. Justice appealed. Reversed. The possibility of foreign prosecution is not a premise for claiming the self-incrimination privilege. There is no "cooperative internationalism" as there is "cooperative federalism," where state and federal law enforcement cooperate. While that could emerge, it is not an issue at present.
United States v. Balsys, 118 S.Ct. 2218 (1998)

Decision

Citation

Civil Penalties Imposed After Criminal Penalties Not Double Jeopardy Description
Defendant sentenced to prison and to pay restitution could be required, in subsequent civil penalty action, to pay further damages and fines without

violating the Double Jeopardy Clause of the Fifth Amendment, which only protects against serial criminal punishments for the same act.

Topic Key Words

Criminal Law Double Jeopardy, Securities Fraud


CASESUMMARY

Facts

Palmisano, an attorney, was convicted of criminal offenses for running a Ponzi scheme that defrauded 90 people out of $8 million. He was sentenced to 15 years in prison and was ordered to pay $3.8 million in restitution to victims and $700,000 to the U.S. He was then sued by the SEC for civil violations of the securities laws and was ordered to disgorge $9.2 million and pay $500,000 in civil penalties. He appealed the second (civil) judgment as double jeopardy in violation of the Fifth Amendment. Affirmed. The Double Jeopardy Clause "protects only against the imposition of multiple criminal punishments for the same offense" in successive proceedings. Only in unusual cases will civil sanctions be held to be criminal; designation of sanctions by Congress is to be given considerable deference. Disgorgement and monetary penalties are not so punitive as to not be civil.
Securities and Exchange Comm. v. Palmisano, 135 F.3d 860 (2nd Cir., 1998)

Court of Appeals Decision

Citation

Sole Shareholder's Testimony Against His Corporation May Be Used Against the Corporation Description
Promoter Don King testified in his criminal wire fraud trial, which resulted in mistrial, against his wholly-owned corporation. Appeals court held that King's contention that his statements against his corporation at the first trial could not be used at a second trial against him and his corporation because it would violate the Confrontation Clause was incorrect. Criminal Law Confrontation Clause, Corporations
CASESUMMARY

Topic Key Words

Facts

Boxing promoter Don King's trial for criminal wire fraud resulted in a mistrial. The government then brought new criminal wire fraud charges against King and against Don King Productions (DKP), King's whollyowned corporation. King moved for dismissal, claiming that the Confrontation Clause applied to testimony King gave at the first trial against DKP that the government now wanted to introduce as evidence.

District court held that use of the testimony would violate the Confrontation Clause and dismissed the action. The government appealed.

Court of Appeals Decision

Reversed. The Confrontation Clause does not apply "to protect a corporation, wholly owned by one individual, from admission of statements of the corporation's sole shareholder, made at that individual's prior trial." The "corporation is the alter ego of its sole shareholder and has no valid complaint that it lacked the opportunity to conduct its own crossexamination of the witness with respect to testimony that was subject to explanation or clarification by the shareholder-witness upon questioning by his counsel at the first trial." The law "that insulates the shareholder from the debts of his corporation does not warrant insulating the corporation under the Confrontation Clause from the evidentiary use against it of the shareholder's statements...."
United States v. King, 134 F.3d 1173 (2nd Cir., 1998)

Citation

Just Say "No" Not Protected If a Lie Description


Defendant's claim that he could not be convicted for answering "no" to questions if he had engaged in illegal activites not protected by the "spirit" of the Fifth Amendment. Criminal Law False Statements, Fifth Amendment
CASESUMMARY

Topic Key Words

Facts

Brogan falsely answered "no" when IRS and Department of Labor agents asked if he had received cash or gifts from a company whose employees were represented by the union in which he was an officer. Brogan was convicted on federal bribery charges and for making a false statement within the jurisdiction of a federal agency. He appealed, contending that false statements to federal investigators does not include mere denials or wrongdoing, the socalled "exculpatory no." Affirmed. There is no exception to federal criminal liability for a false statement consisting of an "exculpatory no." Any false statement "of whatever kind" is in violation of the law. Brogan's assertion that the law violated "the spirit" of the Fifth Amendment is rejected because the Fifth Amendment does not confer a privilege to lie.
Brogan v. U.S., 118 S.Ct. 805 (1998)

Court of Appeals Decision

Citation