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Criminal Law Outline - Professor Ghiotto - Campbell Law - Part 3

By Miller Moreau
Professor Ghiotto - 2019

Download the PDF version of this outline

<< Part 2 | Part 4 >>

Extortion
  • Extortion is an unlawful act that can be carried out by lawful means
  • A proposed trade of one public act in return for another does not constitute extortion under color of official right. (Blagojevich)
  • Gaining property through fear and threats
Narcotics
  • Focuses on the action taken (i.e. possession or distribution), the type of drug involved, and the amount of the drug
  • Nearly any type of drug case can be taken to either state or federal courts for prosecution
  • Elements:
    1. Identity
    2. Action (possession, distribution, etc.)
    3. Intent
    4. Knowledge (that a controlled substance involved)
    5. Chemical composition of the substance at issue
  • Not in common law
  • Cannot be illegal to addicted to drugs
Action Elements
  • The action elements in a drug crime (possession, manufacturing, distributing, dispensing, and possessing with intent) are distinct and important to define (ex. sentencing)
Simple Possession
  • Less serious charge
  • Simple possession cases do not require proof any action beyond mere possession of the illegal drugs, but that can still be challenging
  • “Knowingly or intentionally”
  • Constructive Possession: Easiest possession cases for the prosecution are those where the defendant is found holding the drug in their hand or pocket. When a defendant is not actively holding the narcotics when found by the police, prosecutors often rely on the theory of “constructive possession”
  • A conviction for the constructive possession of illegal drugs requires proof that the defendant knew of and was in a position to exercise dominion and control over the contraband.
  • Beyond a reasonable doubt
  • A potentially expansive concept and some courts limit its reach
Constructive Possession
  • A conviction for the constructive possession of illegal drugs requires proof that the defendant knew of and was in a position to exercise dominion and control over the contraband.
  • Dominion and Control: sole occupant, shared space but has to be in plain view, or close proximity
Distribution and Dispensing Narcotics
  • Statute:
    1. Unlawful Acts
      Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally-
      1. to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
      2. to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance
  • “Counterfeit substance” is defined as knock-offs of legal pharmaceuticals
  • Distribution of narcotics is distinct form mere possession on the action element alone, and requires different proofs
  • The concept of intent to distribute illegal drugs includes sharing drugs with a third party. The intent to share the illegal drugs with others is sufficient for a court to find that defendant possessed drugs with intent to distribute.
Distribution for No Remuneration
  • A sale requires proof of two actions: providing the product, and payment
  • Distribution can only involve one: the provision of the product from one person to another
  • Distribution includes transfer or delivery either directly or by means of another person. The transfer may be the result of a joint venture, in which the distributee engages the distributor to obtain the drugs for their mutual use
  • The concept of intent to distribute illegal drugs includes sharing drugs with a third party
  • Not limited to the sale of controlled substances

United States v. Washington: The concept of intent to distribute illegal drugs includes sharing drugs with a third party. The intent to share the illegal drugs with others is sufficient for a court to find that defendant possessed drugs with intent to distribute.

Intent
  • The action element must be intended rather than accidental
  • Most often at issue in possession with intent to distribute cases, especially where the defendant argues that the drug amount found was for personal use rather than distribution
  • Contextual facts are important in distinguishing these cases
  • Always look at the quantity to see if there is the intent to distribute

United States v. Burkley: The context in which illegal drugs were found can establish whether the defendant intended to distribute the drugs or possessed them for personal use.

Knowledge
  • The government bears the burden of proving that the defendant knew that that substances they were possessing or distributing or manufacturing was a controlled substance
  • A conviction for possession with intent to distribute a controlled substance requires proof beyond a reasonable doubt that the defendant knew contraband in his possession to be a controlled substance, rather than contraband of some other sort.
  • It isn’t always required to prove that they knew which controlled substance was at issue
  • The knowledge element refers to a general intent crime, i.e., awareness that substance possessed was a controlled substance of some kind.
  • A conviction for possession with intent to distribute a controlled substance requires proof beyond a reasonable doubt that the defendant knew contraband in his possession to be a controlled substance, rather than contraband of some other sort (Louis)
  • The knowledge element refers to a general intent crime, i.e., awareness that substance possessed was a controlled substance of some kind.
  • Must prove that the defendant knew contraband in his possession to be controlled substance, rather than contraband “of some sort”

United States v. Louis: A conviction for possession with intent to distribute a controlled substance requires proof beyond a reasonable doubt that the defendant knew contraband in his possession to be a controlled substance, rather than contraband of some other sort.

Defenses to Distribution
  • Mistake of Fact
    • “I did not know I possessed”
    • Would negate the mens rea of “knowingly”
    • This defense would not to be both objective and reasonable
      • “Would a reasonable person know that marijuana was in their car?”
  • Purpose: Distribution carries a higher punishment
    • This higher punishment is a deterrence factor for future criminals
  • If it is not a drug involved
    • This would negate the actus reus

*Can be charged with heroin distribution even if you sell cocaine that you thought was heroin

Attempt
  • Allows am uncompleted crime to be prosecuted by eliminating the action-outcome (death) usually necessary in proving homicide.
  • “Inchoate” crime doesn’t require the completion of the crime itself
  • Allows us to catch and prosecute criminals before they actually do harm
  • Some jurisdictions have a catch-all provision that applies to all crimes
  • How much “action” is required to toward the goal of accomplishing the crime?
  • Common law requires “that some act must be done towards carrying out the intent.”
    • Substantial step must be taken; goes beyond mere preparation
      • The crime would not have occurred without this step
    • Mere intent to violate a federal criminal statute is not punishable as an attempt unless it is also accompanied by significant conduct
  • Mere preparation=no attempt; preparation=attempt
  • Requires:
    1. Intend to commit the crime (mens rea)
    2. Substantial step (actus reus)

United States v. Resendiz-Ponce: Mere intent to violate a federal criminal statute is not punishable as an attempt unless it is also accompanied by significant conduct

Criminal Steps:

  1. Actor conceives the idea to commit a crime
  2. Evaluates idea to decide whether to proceed
  3. Fully forms the intention to go forward
  4. Prepares to commit the crime by getting necessary tools (ATTEMPT COMPLETED HERE)
  5. Begins commission of crime
  6. Completes Crime/Achieves Goal
Withdrawal, Abandonment, and Renunciation
  • This defense is sometimes phrased as an affirmative defense but as a way of showing reasonable doubt as to the action element or intent.
  • In some jurisdictions, this defense is not allowed where attempt is charged and an overt act was completed
  • Abandonment Defense: (1) can apply to uncompleted attempt crimes, and (2) has been rejected as a defense to completed crimes other than attempt.
  • Purpose: Government wants to incentivize potential criminals to abandon their illegal activity
    *Not a valid defense in common law
  • Model Penal Code allows the affirmative defense: After you pass the threshold and are guilty of an attempt, you can claim an abandonment defense if you VOLUNTARILY AND COMPLETELY renounce the attempt.
  • A person is NOT guilty of attempt if:
    1. He abandons his effort to commit the crime or prevents it from being committed, AND
    2. His conduct manifests a complete and voluntary renunciation of his criminal purpose
      • Not voluntary if it is partially or wholly motivated by “circumstances, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose.”
      • Not complete if it is “wholly or partly motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim."

United States v. Young: After a defendant has evidenced the necessary intent and has committed an act constituting a substantial step toward the commission of the offense, he has committed the crime of attempt, and can withdraw from the commission of the substantive offense.

Conspiracy
  • The distinctive essential element of conspiracy is agreement-that two or more people agreed to work together in some way to commit a crime
  • Seen in narcotics crimes, fraud, and other business-centered crimes
  • Conspiracy is a frequently used charge that can exert great leverage on defendants to plead guilty and cooperate with the government in prosecuting others
  • Non-narcotics conspiracy-require an overt act in furtherance of the conspiracy be proven by the government; does not apply to federal narcotics conspiracy
  • Two kinds of intent are required: the intent to agree with another person, and the intent that underlying crime be committed
  • Those convicted of conspiracy are generally held liable for the foreseeable acts of co-conspirators
    (1) That the defendant agreed with at least one other person to commit an offense; (2) the defendant knowingly participated in the conspiracy with the specific intent to commit the offenses that were the objects of the conspiracy; and (3) that during the existence of the conspiracy at least one of the overt acts set forth in the indictment was committed by one or more of the members of the conspiracy in furtherance of the objectives of the conspiracy
  • Conspiracy complete at the moment of the agreement
  • Elements:
    1. Agreement (actus reus)-intent to enter the agreement
    2. 2 or more people
    3. To commit a criminal offense (mens rea)
  • Conspiracy carries the same punishment as the completed crime
  • Requires an overt act
Agreement
  • The essence of conspiracy is agreement, a meeting of the minds
  • Often agreement is proven only by circumstantial evidence
  • The further away an actor is from the center of a conspiracy, the more difficult it may be to show that there was agreement
  • Intend to enter the agreement (general intent)

United States v. Burton: A conviction for conspiracy can be based on pieces of circumstantial evidence which, viewed independently, can be interpreted innocently, but which, in the aggregate, support an inference of guilt.

Intent
  • Two kinds of intent are required: the intent to agree with another person, and the intent that underlying crime be committed
  • Evidence must be convincing
  • A defendant's knowledge of a conspiracy and his association with the conspirators, in combination with independent additional circumstantial evidence, may support his conviction for conspiracy, but knowledge and association alone are not enough
  • To be guilty of conspiracy, the defendant needs to be part of the agreement

United States v. Grassi: One does not become a coconspirator by virtue of knowledge of a conspiracy and association with conspirators

(Ex. Guy carrying cooler full of drugs. Cooler guy had no idea drugs were in cooler)

  • One would argue willful blindness
Overt Act Requirement
  • Not all statutes require this
  • Like attempt, non-narcotic conspiracies charges usually require proof of an “overt act”
    • (Ex. one statute requires that an overt act was completed by the conspirator in furtherance of the conspiracy)
  • If the statute does NOT require an overt act, you have the “conspiracy” once you have the agreement with the intent
  • Overt act completed once ONE person in that conspiracy performs an overt act in furtherance of that conspiracy
    • Conspiracy complete for ALL members of that conspiracy
  • (Ex. Other members of the conspiracy going out and getting guns for the crime would be considered an overt act)

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