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Chapter 05 - Criminal Law and Procedure
5-19
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
punished for breaching the statutory duty to seek out, correct, and prevent
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
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
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
collar crimes.
2. Discuss the purposes of the 2002 Sarbanes-Oxley Act, which was enacted in response to
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,
extortion.
a. United States v. Anderson (p. 166): The Fifth Circuit Court of Appeals upholds
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
Chapter 05 - Criminal Law and Procedure
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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
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,
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,
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
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"
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
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
Chapter 05 - Criminal Law and Procedure
5-21
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
F. Computer Crime
1. Note how existing criminal statutes sometimes are ineffective to deal with the special
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
Cyberlaw box case and Problem #9 reveal.
IV. RECOMMENDED REFERENCES:
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.
(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).
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).
V. ANSWERS TO PROBLEM CASES:
Chapter 05 - Criminal Law and Procedure
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
the commission of the felony (giving false statements to customs officials) even though the
explosives were not otherwise involved with that felony and did not facilitate its commission.
United States v. Ressam, 553 U.S. 272 (2008).
2. The U.S Supreme Court ruled that the traffic stop did not violate the Fourth Amendment
Supreme Court’s decision directly addressed only whether the reasonable suspicion standard
3. No. The U.S. Court of Appeals for the Second Circuit noted that the Fifth Amendment
privilege against self-incrimination does not extend to legal entities such as corporations.
documents belonging to the corporation thus could not be seen as self-incrimination for Fifth
Amendment purposes. The court also reasoned that even if the documents had belonged to
not have a testimonial character either. In re Grand Jury Subpoenas Dated October 22, 1991,
and November 1, 1991, 959 F.2d 1158 (2d Cir. 1992).
4. The 11th Circuit Court of Appeals held that no Fourth Amendment violation occurred when
the U.S. Customs Service agent removed shredded documents from a garbage bag found
court relied on California v. Greenwood, in which no Fourth Amendment violation occurred
when law enforcement officers searched a garbage can that had placed at the curb for pick-up
1091 (11th Cir. 1995).
5. The Supreme Court held that the term “proceeds,” as used in the federal money-laundering
statute, refers to profits of an unlawful activity rather to receipts taken in by the defendant or
to many situations in which an underlying offense for which Congress contemplated a
sentence of a smaller number of years would effectively become a money-laundering offense
Chapter 05 - Criminal Law and Procedure
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
That rule is a tie-goes-to-the-defendant approach in which an ambiguous term in a criminal
statute is interpreted in a manner favorable to the defendant. United States v. Santos, 553 U.S.
507 (2008).
6. In a 5-4 decision, the Supreme Court held that the search of the automobile violated the Fourth
Amendment. Warrantless searches of the arrestee incident to an arrest have long been held
U.S. 454 (1981), four persons occupied the car in question and the scene of the arrest had not
been completely secured—meaning that it was conceivable a detained person could get access
Accordingly, the Court held that “[p]olice may [conduct a warrantless] search [of] a vehicle
incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the
7. The Supreme Court held that in order to state a valid civil RICO claim, the plaintiff must be
able to establish a direct causation link between the RICO violation and the harm experienced
natural and logical consequence of National’s tax return shenanigans, and thus did not
proximately result from National’s illegal actions. Moreover, the direct victim was the State of
Ideal Steel Supply Corp., 547 U.S. 451 (2006).
8. According to the U.S. Supreme Court, a limited segment of the tape's audio portion--the
segment dealing with the question about the date of Muniz's sixth birthday--should have been
Miranda concerns and that the segments of the tape dealing with those questions amounted to
admissible evidence. This was so even though Muniz stumbled over some of his responses to
because of Muniz's nontestimonial delivery but also--and, for Fifth Amendment and Miranda
purposes, critically--because the content of the answer would support an inference that
U.S. 582 (1990).
9. No. The court observed that the meaning of §§ 1037(a)(3) and (a)(4) could be discerned more
clearly by reviewing a later subsection, § 1037(d)(2). In that subsection, Congress stated:
Chapter 05 - Criminal Law and Procedure
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
For purposes of [§§ 1037(a)(3) and (a)(4),] header information or registration information
is materially falsified if it is altered or concealed in a manner that would impair the ability
of a recipient of the message, an Internet access service processing the message on behalf
of a recipient, a person alleging a violation of this section, or a law enforcement agency to
identify, locate, or respond to a person who initiated the electronic mail message or to
investigate the alleged violation.
The court noted that even if an email address does not necessarily identify the sender, “it does
tell a recipient where to send replies to the sender, much in the same way a return address on
spam. The relevant statutory sections thus survived the defendants’ vagueness challenge.
United States v. Twombly, 475 F. Supp. 2d 1019 (S.D. Cal. 2007).
10. No. The U.S. Supreme Court held that law enforcement officers violated the Fourth
Amendment when they used a thermal imaging device to detect heat emanating from Kyllo’s
consideration of the thermal imaging results (an unlikely prospect to be addressed on remand),
the marijuana discovered in the warrant-related search would have to be excluded from
evidence. The Court reasoned that the use of the thermal imaging device was different from
“plain view” observations of the exterior of a home--observations held not to amount to a
would have produced, and that because a physical intrusion would clearly be a search, so
should the use of thermal imaging. In addition, the Court expressed concern that as
technology improves, there will be more and more ways in which the government can discover
what is s going on in a private place without having to make a physical entry into that place.
(2001).
11. No, the U.S. Supreme Court concluded. Park occupied a position of responsibility and
and prevent violations that related to his position. United States v. Park, 421 U.S. 658 (1975).
12. Affirming the decision of the Missouri Supreme Court, the U.S. Supreme Court disapproved
of what had become a fairly commonly employed police tactic: question a suspect in custody
Chapter 05 - Criminal Law and Procedure
5-25
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
unconstitutional and hence inadmissible); then give the Miranda warnings and resume
questioning by taking the suspect over the previously discussed territory; and elicit a new
confession. The Court held that such a tactic undermined the constitutionally required
Miranda warnings--meaning that not only the initial confession, but also the later confession,
must be excluded from evidence. The Court reasoned that if a suspect knows he has already
condemned. Missouri v. Siebert was a plurality decision in which four justices (Souter, who
authored the opinion, plus Stevens, Ginsburg, and Breyer) took a hard line against this law
express statement by the police that the suspect’s earlier statement could not be used again
him. Missouri v. Seibert, 542 U.S. 600 (2004).
13. The U.S. Supreme Court held that the warrantless entry of the apartment did not violate HK’s
S. Ct. 1849 (2011).
14. No, the U.S. Supreme Court ruled. Because WF was no longer on the premises when the
Fernandez v. California, 134 S. Ct. 1126 (2014).
