978-0077733711 Chapter 5 Lecture Note Part 2

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Chapter 05 – Criminal Law and Procedure

C. Criminal Procedure.

1. Discuss the stages in a criminal prosecution, as outlined in the text. Note any significant

variances in your state’s procedure. Point out the discretion enjoyed by officials at each

stage of the process (i.e., will the police arrest and, if so, will the prosecutor elect to

prosecute?). Note also the various safeguards designed to filter out weak cases before

they reach trial. Point out the obvious benefits of such a process to persons charged with

crimes.

2. Discuss the various formal constitutional safeguards extended to criminal defendants

under the Fourth, Fifth, and Sixth Amendments. (More specific treatment appears below.

Note, also, the public policy bases of these safeguards (e.g., the famous Holmes statement

quoted on p. 145). Do students agree with these basic policies? Briefly discuss the

process of “selective incorporation,” by which the guarantees of the Bill of Rights have

been held to restrict the actions of the states. Note that the practical effects of selective

incorporation have been to make the U.S. Supreme Court the ultimate arbiter of criminal

procedure questions and to shift power away from the state judiciary (except, as will be

noted later, to the extent that state judges could be inclined on occasion to interpret state

constitutions more expansively than the Supreme Court has interpreted the U.S.

Constitution). You may also wish to discuss with students the notion that the Due Process

Clauses of the Fifth and Fourteenth Amendments also afford the accused with a

generalized protection against improper law enforcement conduct. See, for example,

Florida v. Cayward, 552 So.2d 971 (Fla. App. 1989) (use of faked scientific reports to

secure confession violates due process).

a. Discuss the Fourth Amendment protection against “unreasonable searches and

seizures.” Two key questions here, as identified in the discussion at pp. 145-46, are

whether there was a search at all and whether, if there was a search, the search was

unreasonable. Other key Fourth Amendment questions are also explored at p. 146.

Note the controversy that has resulted from the Supreme Court’s decisions

establishing the exclusionary rule as both the remedy for, and a supposed deterrent

of, unconstitutional searches and seizures. Defer, until somewhat later, discussion of

the Court’s tendency in recent years to restrict the application of the exclusionary

rule. (See below.)

1) You may find it helpful to have the class analyze Fourth Amendment questions

by considering scenarios from actual cases and then asking the students to

identify the relevant questions, arguments, considerations, and tests. The text

notes a number of cases that you may use for this purpose. This subsection of the

manual discusses the cases noted in the text.

a) Was a reasonable expectation of privacy at stake? (That question is a key one

in determining whether the actions of law enforcement agents constituted a

search.) Problem #4 (United States v. Hall, a former text case in which a law

enforcement officer found evidence in a dumpster on the defendant

corporation’s property) deals with this question. A key consideration, of

course, is whether the party raising Fourth Amendment issues possessed a

reasonable expectation of privacy regarding the place or item searched. This

gets at the matter of standing to challenge a search as unconstitutional—an

issue at the heart of United States v. SDI Future Health, Inc.

1. United States v. SDI Future Health, Inc. (p. 149): The Ninth Circuit holds

that corporate executives who hold significant ownership interests in the

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organization do not have standing to challenge a search of portions of the

corporate premises not reserved for their exclusive use.

Points for Discussion: Ask what standing is, in a general sense. What

about in the context of a search that allegedly violated the Fourth

Amendment? What is necessary for standing in that context? (That the

person challenging the search has a reasonable expectation of privacy in

regard to the place searched.) Why don’t Kaplan and Brunk have a

reasonable expectation of privacy in regard to the corporate premises in

general and in regard to computers in the company’s general business office?

Who—or what—does have standing here? (The corporation.) Do Kaplan

and Brunk have a reasonable expectation of privacy as to any part of the

corporate premises? If so, what part or parts? (Their individual offices

within the corporate premises.) How does the court distinguish this case

from Gonzales, the case on which Kaplan and Brunk unsuccessfully sought

to rely?

b) Was the government action sufficiently intrusive to constitute a “search?”

Discuss the resolutions of this issue in United States v. Place, Illinois v.

Caballes, and Florida v. Jardines (all referred to on p. 146). Kyllo v. United

States (also noted at p. 146 and serving as Problem #10) is an excellent

vehicle for discussion of two key Fourth Amendment questions: whether

there was a search (yes); and, if there was a search, whether it was

unreasonable (yes). Additional Examples: Problems #2 and #6; Florida v.

Riley, 488 U.S. 445 (1989) (holding that police observation of private

property from helicopter hovering 400 feet above ground was not “search”

for Fourth Amendment purposes because it did not violate reasonable

expectations of privacy; note that when aerial surveillance was from lower

height, such as 50 to 200 feet, some courts have held that surveillance

amounted to search for Fourth Amendment purposes). United States v. Jones

(a text case that received quite a bit of media attention when it was decided),

is also an excellent one for use in class discussion of Fourth Amendment

issues.

c) United States v. Jones (p. 147): The Supreme Court holds that law

enforcement officers’ warrantless placement of a GPS device on the

underside of a criminal suspect’s car constituted an unreasonable search in

violation of the Fourth Amendment.

Points for Discussion: Would there have been any Fourth Amendment

problem if the officers had simply kept an eye on Jones and followed him as

he drove on the public streets? (No.) So why can’t they make things easier,

for law enforcement purposes, by attaching the GPS device? Jones is on the

public streets either way, so how does he have a reasonable expectation of

privacy? (He might expect that officers would “tail” him and he might even

realize that he was being followed, but he wouldn’t have reason to think that

his movements were being monitored in the manner contemplated by the

GPS device.) Note that the Court may be worried here about the negative

implications for privacy that technological advances may hold (a

consideration that probably influenced the Court in Kyllo, the case dealing

with the use of a thermal imaging device). Does the decision in Jones mean

that law enforcement agents can’t use GPS devices to track suspects? (No. It

does mean, however, that officers must first obtain a warrant before using

such a device in the manner used in Jones.) Finally, to foreshadow an issue to

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Chapter 05 – Criminal Law and Procedure

be looked at later, ask the students what happens to the evidence the officers

gathered through the use of the GPS device? (Under the exclusionary rule,

the evidence could not properly be used against Jones.)

c) Ask students whether the Fourth Amendment sets up a warrant requirement

in order for a search to be classified as reasonable and therefore in violation

of the Fourth Amendment. (The answer is “no.” Note the Fourth

Amendment’s actual language. See p. 145.) The Fourth Amendment does

suggest a preference for warrants, however, even if a warrant is not always

necessary. As the text notes and as later treatment here reveals, there is a

fairly long list of situations in which the Supreme Court has held that a

warrantless search does not violate the Fourth Amendment. The question in

Fourth Amendment cases thus becomes whether the usual preference for a

warrant applies, or whether the case falls within one of the exceptions for

warrantless searches. As part of your discussion of warrants, note the general

procedure for obtaining a warrant, the probable cause standard, and the need

for the warrant to be sufficiently specific. (Again, see the Fourth

Amendment language at p. 145 of the text.) An insufficiently specific warrant

or a warrant issued without an adequate showing of probable cause may be

attacked in an effort by a defendant to have the court classify the resulting

search as unreasonable.

d) Major exceptions to the warrant “requirement” (really, as noted above, the

warrant preference) are set forth and explained at pp. 151-53 of the text. The

content of those pages represents more extended treatment that has been

added for the 16th edition. Note each of the major exceptions. You may wish

to emphasize the exceptions for seizures of items in plain view of police

officers, consensual searches, searches incident to lawful arrests, stop-and-

frisk searches for weapons (see Terry v. Ohio, 392 U.S. 1 (1968), searches of

motor vehicles lawfully stopped by law enforcement officers, and searches of

“closely regulated” businesses (see New York v. Burger, 482 U.S. 691

(1987)). Regarding consensual searches, note Georgia v. Randolph

(mentioned at p. 153), in which the Supreme Court held that a co-occupant’s

consent to a police search of a home does not protect the search against a

Fourth Amendment challenge by another co-occupant who was present at the

time of the search and who objected to its occurrence. Stress, however, that a

co-occupant’s consent to a search will normally be binding, for Fourth

Amendment purposes, on other co-occupants who are not present at the time

of the search.

1. Does the search-incident-to-arrest exception for warrantless searches

entitle law enforcement officers to check the content of an arrestee’s

smartphone or other cellphone without obtaining a warrant to do so? In

Riley v. California (2014), the Supreme Court said that a warrant is

required before a check of the arrestee’s smartphone or other cellphones

can take place. As Figure 2 (p. 152) explains, this ruling by the Court

contradicted what had become a frequent law enforcement practice. The

privacy interests associated with smartphones and other cellphones

played a key role in the Court’s very important decision. This case should

be a good candidate for class discussion.

2. The exigent circumstances exception to the warrant “requirement” took

center stage in Kentucky v. King, a former text case noted at p. 153.

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Comments on the case are included below, for professors who wish to

devote class time to discussion of the case.

Kentucky v. King: The Supreme Court holds that the exigent

circumstances exception justified a warrantless entry into an apartment

when police officers, after knocking on the door and announcing their

presence, heard noises giving rise to a concern that evidence was being

destroyed inside the apartment.

Points for Discussion: Ask a student to summarize the facts leading up to

the officers’ warrantless entry of the apartment (chasing drug suspect, not

knowing which apartment he entered, knocking on door of wrong

apartment and announcing presence, hearing noises inside, etc.) What

was found when the officers entered the apartment? What relief was

sought by the persons inside the apartment? Did they have a reasonable

expectation of privacy? To what sorts of situations does the exigent

circumstances exception apply? Why, according to the Court, does the

exigent circumstances exception apply here? If the officers smelled

marijuana smoke, couldn’t they have sought and obtained a search

warrant? Why, according to the Court, shouldn’t we expect them to seek

a warrant? What argument did the defendants make in their unsuccessful

effort to persuade the Court that the exigent circumstances exception

should not apply (and that the evidence obtained during the warrantless

search should be suppressed)? Why did the Court reject that argument?

Isn’t part of the Court’s reasoning circular? I.e., doesn’t the Court

suggest that the exigent circumstances exception applies because there

was no Fourth Amendment violation? (But if there was no Fourth

Amendment violation anyway, we wouldn’t need to consider whether the

exigent circumstances exception applies, would we?) Does the Court’s

reasoning really depend very much on the fact that the officers were

chasing a suspect at the time they knocked on the apartment door?

Would the Court’s reasoning effectively allow officers to start knocking

on doors of apartments in complexes where the officers think there might

be drug activity going on even though the officers lack individualized

suspicion with regard to any apartment, and then enter the apartments

once they hear noises that might be consistent with evidence destruction?

Does the court’s reasoning give officers considerable latitude to hear

what they might want to hear and to construe ambiguous noises as noises

indicating likely evidence destruction? Does the Court’s reasoning

extend as far as the preceding two questions suggest, or is it more

limited? Has the Court significantly broadened the exigent

circumstances exception with this decision, or is the decision simply an

application of the exception that doesn’t extend its sweep?

f) Does the exclusionary rule–the basic remedial device when Fourth

Amendment rights have been violated–apply, or does the case fall within one

of the exceptions to the exclusionary rule? Explain the “fruit of the

poisonous tree” doctrine and provide basic examples of its operation under

the exclusionary rule. Note the Supreme Court’s tendency in recent years to

restrict the application of the exclusionary rule by identifying exceptions to

it. The inevitable discovery exception and the good faith exception (see p.

154 of the text) are notable examples of this tendency. So are Hudson v.

Michigan (discussed below) and, to a somewhat lesser extent, Sanchez-

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Llamas v. Oregon (discussed below and in the Global Business Environment

box at pp. 160-61 of the text). Discuss the potential implications of these

exceptions to the exclusionary rule. What do your students think of the

exclusionary rule? What do they think of the exceptions to it? Play the

devil’s advocate.

g) Hudson v. Michigan (formerly a text case): The Supreme Court holds that the

exclusionary rule does not apply to evidence discovered by law enforcement

officers who possessed a search warrant for the defendant’s home but entered

the home prematurely, in violation of the knock-and-announce rule.

Points for Discussion: Ask the students what the knock-and-announce rule is,

and what in the facts indicated that it was not complied with in this case.

Then re-trace the facts concerning the discovery of the drugs and the gun—

evidence that clearly would be allowed if there were no issue about

compliance with the knock-and-announce rule. Is the knock-and-announce

rule just a custom, or does it have constitutional significance? (The latter,

according to the Supreme Court’s 1995 decision in Wilson v. Arkansas.) So,

there was a Fourth Amendment violation here, but Justice Scalia’s majority

opinion concludes that the exclusionary rule nevertheless should not apply.

Is the Court’s rationale—especially its deterrence vs. social costs analysis—

convincing? Is it convincing when the majority says that civil rights cases

complaining about knock-and-announce violations would be a viable

remedy? Is the majority persuasive in its comments about increasing

professionalism of law enforcement officers and about municipalities’

incentives to teach officers about constitutional guarantees in order to avoid

possible financial liability? (Defense lawyers and those who represent

plaintiffs in civil rights cases almost certainly would take issue with the

Court’s comments.) Is this decision a way of gutting Wilson v. Arkansas

(without explicitly overruling it) and part of a clear pattern of narrowing the

application of the exclusionary rule? (That is the view of the dissenters).

Engage the students in a debate about these sorts of questions. In addition,

note the Sanchez-Llamas case, which is summarized in the Global Business

Environment box on pp.160-61. That decision can also be characterized as

part of an anti-exclusionary rule trend, though the arrestee’s foreign national

status and the role played by the relevant international agreement make the

decision closely tied to its facts and less clearly a cutback on the rule’s

operation in the Fourth Amendment context.

b. Note the underlying purposes and major components of the USA PATRIOT Act,

which was enacted in the wake of the September 11. 2001 terrorist attacks on the

United States. (See pp. 154-55 of the text.) Mention the “sunset” provision inserted

in the statute by Congress (that portions of the statute were to expire in 2005 if not

renewed by Congress), but note that that bulk of the statute was later renewed and

therefore remains in effect. Touch on the controversy that the statute has triggered,

including the civil liberties concerns raised by its critics. Those who have the time

may want to engage students in a discussion of whether times of national crisis ever

justify cutting back on constitutional freedoms. If so, when? If not, why not? As

part of that discussion, work in general consideration of the Foreign Intelligence

Surveillance Act (FISA), the role of the FISA Court, the warrantless surveillance

conducted by the Bush Administration, the 2008 amendment to FISA, and the

controversy over (and implications of) the disclosures by Edward Snowden. Unless

you want the Patriot Act/terrorism discussion to occupy a great deal of class time,

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Chapter 05 – Criminal Law and Procedure

you may want to keep the discussion fairly general and note that the relevant rules in

this area basically occupy their own special category.

c. Discuss the Fifth Amendment provisions safeguarding the rights of criminal

defendants.

1) Emphasize the protection against compelled testimonial self-incrimination. Note

the meaning and significance of the terms compelled and testimonial.

a) Discuss the purposes and content of the famous Miranda warnings (noting

that the content stems from the purposes of furthering Fifth and Sixth

Amendment interests). Note when the warnings must be given (prior to

commencing custodial interrogation). Examine the impact Miranda has had

in enforcing the “right to silence.” Note that Miranda was a controversial

decision in 1966 but has since become an accepted cornerstone of law

enforcement practice. Surveys of police chiefs have revealed their view that

the obligation to give the Miranda warnings prior to commencing custodial

interrogation has not significantly compromised law enforcement interests.

Point out the effect of Miranda, as supplemented by the exclusionary rule:

that the only confessions or incriminating statements excluded from evidence

are those made by the accused while he was in custody and was being

interrogated without first having been given the Miranda warnings. Even if

such statements are thrown out, the government may still be able to gain a

conviction using other evidence. The rights that furnish the bases of the

Miranda warnings may be waived, however. The waiver issue was central to

the U.S. Supreme Court’s decision in Berghuis v. Thompkins (discussion of

which follows).

b) Berghuis v. Thompkins (p. 157): The Supreme Court holds that an arrestee

who had been given the Miranda warnings before interrogation began

waived his right to remain silent by not explicitly invoking that right and by

giving an incriminating response to a question three hours after the

interrogation began. Therefore, his incriminating response was not subject to

suppression.

Points for Discussion: What evidence does the Court cite as establishing that

Thompkins understood his rights? Why were the police on solid ground,

according to the Court, in continuing to question Thompkins for so long even

though he had not been answering their questions. (Because he didn’t

unambiguously indicate a desire to remain silent.) What the Court seem to

say is necessary for an unambiguous indication of a desire to remain silent?

(Expressly saying so.) If Thompkins had said “I want to invoke my right to

remain silent,” would the officers have had to stop questioning him? (Yes,

the Court says.) What if he said ‘I don’t want to talk to you”? Would that be

an unambiguous invocation of the right to remain silent? What if he said

“Quit asking me questions”? Would that be enough to invoke the right to

remain silent and make further questioning of him impermissible? What are

the implications of the Court’s decision? What do the students think of the

dissenters’ observation that the majority opinion creates the counterintuitive

requirement that one can invoke his sight to remain silent only by speaking

up?

c) Note also the other limits on the right to silence. Most notably, the right does

not extend to the compelled production of nontestimonial evidence (e.g.,

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fingerprints and the other examples cited at p. 156.) Routine booking

questions are also considered nontestimonial. See Problem #8.

Emphasize the general rule against prosecutorial comments on the accused’s

failure to speak in her own defense, but note the exception for prosecutorial

use of a defendant’s silence (pre-arrest or post-arrest, but in advance of any

Miranda warnings) to discredit his trial testimony that he acted in self-

defense. Stress, however, that this exception merely allows the use of pre–

trial silence to impeach the accused’s testimony at trial. If the accused

refuses to take the witness stand–which he of course has a right to do—his

silence generally cannot be used against him. For a narrow exception to this

general rule, see United States v. Robinson, 485 U.S. 25 (1988). There, the

Court held that a defendant’s privilege against self-incrimination was not

violated by a prosecutor’s statement to the jury (during closing argument) that

the defendant could have taken the stand and explained his actions, because

the prosecutor’s statement was a fair response to defense counsel’s argument

that the government had not allowed the defendant to explain his side of the

story. Note, too, the Salinas decision (see p. 156).

d) Some commentators have argued that over roughly the past three decades,

the Supreme Court has engaged in significant dilutions of the right to silence

and of the applicability and effect of Miranda. Is Berghuis v. Thompkins

(discussed above) an example? Is Salinas (see p. 156)? In what may be a

further example, the Court upheld a suspect’s waiver of his Miranda rights

and approved the use of his confession at trial even though the police failed

to notify him that an attorney retained for him by a family member was

seeking to contact him (Moran v. Burbine, 475 U.S. 412 (1986)). Also, the

Court has held that an undercover police officer posing an a fellow inmate

need not give Miranda warnings to a jailed suspect before asking questions

that could lead to incriminating admissions (Illinois v. Perkins, 496 U.S. 292

(1990)). Note, however, that Moran has been rejected on state constitutional

grounds by some state courts. You may also wish to mention Colorado v.

Connelly, 479 U.S. 157 (1986), in which the Court refused to conclude that a

confession resulting from mental illness was “involuntary” for Fifth

Amendment purposes. Only those confessions that are the product of

coercion by the government must be suppressed. In Perkins, the Court went

to considerable lengths to emphasize that deception by the government does

not constitute coercion. What do your students think of Salinas, Moran,

Perkins, and Connelly?

e) Discuss the evolution and significant erosion of the so-called “private

papers” protection afforded by the Fifth Amendment. Note in particular that

corporate officers enjoy virtually no protection under this doctrine. The

corporation has no Fifth Amendment privilege to assert, and corporate

officers cannot assert any individual privilege with respect to incriminating

corporate records. See Problem #3. Emphasize the act of production focus

now employed by courts (thanks to the Supreme Court decisions discussed in

the text) with regard to whether forcing an individual to disclose business

records implicates Fifth Amendment concerns.

2) Discuss the protection afforded by the Double Jeopardy Clause of the Fifth

Amendment. Emphasize that there are no double jeopardy problems in

connection with criminal and civil proceedings stemming from the same

underlying conduct (e.g., a prosecution for criminal battery and a civil damages

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suit for the tort of battery). According to the Supreme Court, a civil forfeiture of

property used in connection with criminal activities normally does not constitute

punishment for purposes of the Double Jeopardy Clause. The Court has held,

however, that a civil penalty can sometimes be a punishment barred by the

Double Jeopardy Clause where the civil penalty is so extreme and so divorced

from the government’s damages and expenses as to constitute punishment. See

United States v. Halper, 490 U.S. 435 (1989).

d) Discuss the various procedural safeguards embodied in the Sixth Amendment,

focusing specifically on the right to counsel. Note that this provision has been

interpreted to mean that indigents have a right to court-appointed counsel, at

public expense, and that inadequacy of trial counsel can be a ground for setting

aside a conviction. Note Miranda‘s requirement that the accused must be

informed of his right to counsel before custodial interrogation commences. What

are your students’ reactions to McNeil v. Wisconsin (discussed at p. 161) and

Davis v. United States (mentioned in a footnote on p. 161)? Is it fair to

characterize the decisions as further attempts by the Court to narrow the

applicability and effect of Miranda?

D. White-Collar Crimes and the Dilemmas of Corporate Control

1. Discuss the term “white-collar” crime and the social problem of how to deal with such

crime.

2. Note the difficulties inherent in using the criminal law to control such behavior.

a. The criminal law was designed with individual wrongdoers in mind; corporate crime

is organizational crime.

b. Discuss the evolution of corporate criminal liability as outlined in the text. Note

some of the current examples highlighted in the text.

c. Note that today a corporation may be held liable for almost any criminal offense,

given proper statutory language.

d. Discuss the controversy surrounding which corporate agents’ intent may properly be

attributed to the corporation. .

e. Instances of white-collar crime present significant ethical issues in addition to those

of a legal nature. Note the ethical issues raised in the Ethics in Action box on p. 159.

These issues, suggested by the corporate financial scandals of recent years, may exist

on the individual, firm, and societal levels.

f. Discuss the problems inherent in trying to apply criminal sanctions to corporations.

g. Discuss the nature of individual criminal liability for corporate offenses and the

arguments in favor of such liability.

1) Discuss the numerous problems associated with imposing individual liability in

the corporate context. Note the rationales for the creation of regulatory offenses

of the strict liability and vicarious liability varieties. Discuss the criticisms of

such offenses. United States v. Park, a 1975 decision, is a classic case that may

merit discussion in this context. Discussion of the case appeared in a boxed

feature in earlier editions of the book. In the 16th edition, it serves as Problem

#11. Comments on Park appear below:

United States v. Park: The CEO of a supermarket chain is convicted of violating

the Federal Food, Drug, and Cosmetic Act by failing to take adequate steps to

prevent violations.

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Points for Discussion: Note that the Court established two elements as required

for liability: (1) the defendant must have occupied a position of responsibility and

authority with regard to the act or transaction constituting the offense, and (2) he

must have had the power to prevent the violation through the exercise of the

“highest standard of foresight and vigilance.” On the basis of the Court’s

recognition that a defendant who was powerless to prevent a violation could

avoid liability, some have argued that this case does not reflect a strict liability

standard. The Court clearly rejected a pure vicarious liability standard here by

saying that proof of Park’s position, standing alone, was insufficient. Instead,

Park was being punished for breaching the statutory duty to seek out, correct, and

prevent violations that related to his position. The problem with such an approach

is that we may effectively be imposing vicarious liability solely on the basis of

position when we prosecute high officials in large corporations. Such officials

have formal responsibility and authority–and thus cannot easily raise a

“powerlessness” defense–but they may lack the real power and information

necessary to prevent violations. Most pre–Park prosecutions involved small

companies’ officers, who were intimately involved in their day-to-day operations.

Note that the Court’s standard exposes a wide range of corporate employees to

potential liability: every officer in the chain of command governing the part of

the business producing a violation could be liable. Note also the small penalty

Park received. Will a penalty of that sort “deter” anyone? The inconvenience and

expense of trial and the stigma of conviction are probably greater deterrents here.

Additional Example: For a good discussion of the difference between vicarious

and strict liability in a regulatory violation case, see Western Fuels-Utah v. Fed.

Mine Safety & Health, 870 F.2d 711 (D.C. Cir 1989) (civil fine imposed for

regulatory violation resulting in death of miner despite absence of fault on part of

mine owners and despite fact that accident resulted from miner’s negligent

violation of foreman’s orders).

h. Discuss the various proposals aimed at making the criminal law operate more

effectively in the corporate context. Note the role of the Corporate Sentencing

Guidelines in the regard–especially the incentive the Guidelines provide for

corporations to implement compliance programs designed to ”prevent and detect

violations of the law.” (See p. 165.)

i. Explore with students the whistleblowing-related ethical issues noted in the Ethics in

Action box on p. 165.

E. Important White-Collar Crimes

1. Discuss regulatory offenses in general and fraudulent acts and bribery as typical white-

collar crimes.

2. Discuss the purposes of the 2002 Sarbanes-Oxley Act, which was enacted in response to

that year’s highly publicized corporate and accounting scandals. Major provisions of

Sarbanes-Oxley are outlined on p. 169 of the text.

3. Highlight mail and wire fraud, similar offenses dealing with financial fraud, and such

other offenses as insider trading. You might keep the latter discussion fairly general,

though instructors who wish to examine securities-related offenses in more depth can find

guidance in the text’s later chapters dealing with securities regulation. Note that the

Skilling case included earlier in the chapter deals with offenses involving fraud and that

the Sekhar case (also included earlier) deals with what does and does not constitute

extortion.

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Chapter 05 – Criminal Law and Procedure

a. United States v. Anderson (p. 166): The Fifth Circuit Court of Appeals upholds

the conviction of two defendants on multiple counts of wire fraud and conspiracy

to commit wire fraud.

Points for Discussion: The case was included in the 16th edition to illustrate the

elements of mail and wire fraud and how courts apply them. Ask students what

the government must prove in a mail or wire fraud case (material falsehoods;

fraudulent scheme involving use of communications medium; intent to defraud;

depriving others of money or property). Have the students discuss ways in which

the facts of the case fit the elements of the crime. Also, note the court’s discussion of

the conspiracy count and of the role that the number of victims may play in the

criminal penalty.

4. Note the attempts by Congress to deal the problem of bribery. The most notable of these

is the Foreign Corrupt Practices Act. (See p. 169.) As revealed by the Global Business

Environment box on p. 170, multi-national agreements designed to combat bribery and

similar forms of corruption have been arrived at in recent years.

5. Discuss the RICO statute’s criminal and civil aspects. Note the controversy surrounding

the reach of RICO, which may be applied in many settings that bear little resemblance to

organized crime in the conventional sense.

a. In examining the ways in which RICO may be violated, stress the importance of

the “enterprise” and “pattern of racketeering activity” elements. (The Boyle case,

discussed below, deals with the enterprise requirement.) Note the penalties that

may be imposed on convicted defendants in criminal RICO cases and the

remedies available to successful plaintiffs in civil RICO cases.

Boyle v. United States (p. 171): The U.S. Supreme Court holds that for RICO

purposes, an “enterprise” need not have a formal organizational structure,

established decision-making hierarchy, or fixed roles for members of the core

group making up the supposed enterprise.

Points for Discussion: The Court interprets “enterprise” broadly—far more

broadly than the defendants in this case would have liked. Why? (The statutory

definition is broad. Although it mentions corporations, partnerships, and the like

as examples of enterprises, the statutory definition also refers to “any group of

individuals associated in fact although not a legal entity.”) What is necessary,

according to the Court, for a RICO enterprise to exist? (Association in fact

involving a core group plus some sort of structure, even if it is quite informal.)

According to the Court, evidence that pertains to whether an enterprise exists

may sometimes also pertain to another key element of a RICO violation. Which

one? (The pattern of racketeering activity element.)

b. You may wish to mention that over half of the states have adopted “baby RICO”

statutes. Therefore, even if the federal RICO reform that critics have sought

occurs at some point, business must still be concerned about possible liability

under state law.

c. Reves v. Ernst & Young, 507 U.S. 170 (1993) may also be worth noting. Also

Reves did not amount to the more sweeping reform that many of RICO’s critics

have sought (reform the Supreme Court has consistently said is the job of

Congress, if it is to be done), Reves did narrow the range of potential RICO

defendants. In Reves, the Court held that if accountants and other “outside”

professionals performed work for firms that committed fraud or other predicate

acts, the accountants or other outside professionals are potentially liable under

RICO only if they “participate[d] in the management or operation of the

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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

Chapter 05 – Criminal Law and Procedure

enterprise.” Simply doing auditing work or performing a similar service for the

firm would not by itself constitute participation in management or operation.

Prior to Reves, accounting firms and other outside professionals had become

frequent targets of RICO litigation along with the firms for which they performed

work.

d. In discussing civil RICO actions, note the treble damages prospect, but stress

the need for the plaintiff to prove direct injury. The latter requirement proved to

be an obstacle for the plaintiff in Problem #7.

F. Computer Crime

1. Note how existing criminal statutes sometimes are ineffective to deal with the special

circumstances presented by instances of alleged computer crime. As pointed out in the

text, the language of many arguably applicable criminal statutes may in the end lead to a

conclusion that the statute does not apply to the computer-related instance of conduct.

Whether this conclusion is reached depends on how narrowly or broadly the court is

willing to construe the statutory language.

2. Note the trend at both the state and federal levels to amend existing statutes or enact new

ones to deal specifically with the problem of computer crime. Discuss, for example, the

federal statute referred to at p. 174 and applied in the case discussed in the Cyberlaw in

Action box on pp. 174-75. Even these statutes raise questions of interpretation, as the

Cyberlaw box case and Problem #9 reveal.

IV. RECOMMENDED REFERENCES:

A. HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION. One of the classic works on

the criminal sanction and the circumstances in which it is best employed.

B. CHRISTOPHER STONE, WHERE THE LAW ENDS: THE SOCIAL CONTROL OF CORPORATE

BEHAVIOR. A well-known examination of the problems of applying the criminal sanction in

the corporate context.

C. JAMES Q. WILSON, THINKING ABOUT CRIME. Another modern classic on the criminal

sanction in general.

D. WAYNE R. LAFAVE, CRIMINAL LAW and CRIMINAL PROCEDURE. Comprehensive resources

concerning many of the specifics of criminal law and procedure.

E. Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547

(1999).

F. Michael B. Metzger, Organizations and the Law, 25 AM. BUS. L.J. 407 (1987).

G. Jonathan R. Macey, Agency Theory and the Criminal Liability of Organizations, 71 BOSTON

U.L. REV. 315 (1991).

H. Cynthia E. Carrasco & Michael K. Dupee, Corporate Criminal Liability, 36 AM. CRIM. L.

REV. 445 (1999).

I. William S. Laufer, Corporate Liability, Risk Shifting, and the Paradox of Compliance, 52

VAND. L. REV. 1343 (1999).

J. Lisa P. Bailey, Rebecca A. Sasser, Matthew M. Sikes, & Jae Yang, Racketeer Influenced and

Corrupt Organizations, 36 AM. CRIM. L. REV. 1035 (1999).

K. Michael Hatcher, Jay McDannell, & Stacy Ostfeld, Computer Crimes, 36 AM. CRIM. L. REV.

397 (1999).

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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.