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Fifth Amendment The federal government was investigating a corporation and its employees. The alleged criminal wrong-doing, which included the falsification of corporate books and records, occurred between 1993 and 1996 in one division of the, corporation. In 1999, the corporation pleaded guilty and agreed to cooperate in an investigation of the individuals who might have been involved in the improper corporate activities. "Doe I: "Doe II," and "Doe III" were officers of the corporation during the period when the illegal activities occurred and worked in the division where the wrongdoing took place. They were no longer working for the corporation, however, when, as part of the subsequent investigation, the government asked them to provide specific corporate documents in their possession. All three asserted the Fifth Amendment privilege against self-incrimination. The government asked a federal district court to order the three to produce the records. Corporate employees can be compelled to produce corporate records in a criminal proceeding because they hold the records as representatives of the corporation, to which the Fifth Amendment privilege against self-incrimination does not apply. Should former employees also be compelled to produce corporate records in their possession? Why or why not? In re Three Grand Jury Subpoenas Duces Tecum Dated January 29, 1999, 191 F.3d 173 (2d Cir. 1999)]
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, the former employees cannot be forced to produce corporate records which they have in their possession because the Fifth Amendment protects them again any self-incrimination.
The Fifth Amendment protects an individual from producing any records which can result in incriminating him. The rationale behind this is that an individual's papers are a record of his personal communications and in the absence of such protection; the individual can be subjected to coercion. It would be similar to a case where an individual is forced to testify against oneself.
The former employees can only be compelled to produce the documents before the court of those documents were the records of any collective entity or a corporation.
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What constitutional safeguards exist to protect persons accused of crimes? What arc the basic steps in the criminal process?
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Below mentioned are the existing constitutional safeguards which protect the persons who are accused of crimes:
1) Fourth amendment : This amendment states that law enforcement officers must have a search warrant for seizure and search of the accused.
2) Fifth Amendment : This amendment protects against self-incrimination and double jeopardy. It also guarantees that accused can never be held guilty until the completion of due process of law.
3) Sixth and Eighth Amendment : These amendments provide right to trial, right to public trial, right to jury trial and right to counsel to the accused.
Below mentioned are the basic steps in a criminal process:
• Arrest
• Indictment
• Trial
• Sentencing
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Hypothetical Question with Sample Answer. The following situations are similar (all involve the theft of Makoto's laptop computer), yet they represent three different crimes. Identify the three crimes, noting the differences among them.
1. While passing Makoto's house one night, Sarah sees a lap-top computer left unattended on Makoto's porch. Sarah takes the computer, carries it borne, and tells everyone she owns it.
2. While passing Makoto's house one night, Sarah sees Makoto outside with a laptop computer. Holding Makoto at gunpoint, Sarah forces him to give up the computer. Then Sarah runs away with it.
3. While passing Makoto's house one night, Sarah sees a lap-top computer on a desk near a window. Sarah breaks the lock on the front door, enters, and leaves with the computer.
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The various situations that are mentioned in the question, a crime has been committed and it is of theft but the crime that has been committed in each situation falls under a different category and all the relevant categories to which each crime belongs have been stated below:
• In the first situation the crime that is being represented is 'Larceny' which comes under the category of property crime. Larceny is acquiring of some other persons property or taking away things that are owned by the other person with the intention of keeping it forever and not allowing the owner to have his/her thing back.
• In the second case as stated above the crime that has been committed by Sarah can be classified as a 'Violent Crime', this can be said because when such crimes those are the reason for the sufferings or the death of other people can be classified as violent crime.
• The third situation stated above points that the crime committed can be called 'Burglary' because Sarah entered into Makoto's house without informing him, by false methods such as breaking the lock and then carrying away the laptop computer. Therefore this is the case of burglary.
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Case Problem with Sample Answer. The Sixth Amendment guarantees to a defendant who faces possible imprisonment the right to counsel at all critical stages of the criminal process, including the arraignment and the trial. In 1996, Felipe Tovar, a twenty-one-year-old college student, was arrested in Ames, Iowa, for operating a motor vehicle while under the influence of alcohol (0W1). Tovar was informed of his right to apply for court-appointed counsel and waived it. At his arraignment, he pleaded guilty. Six weeks later, he appeared for sentencing, again waived his right to counsel, and was sentenced to two days' imprisonment. In 1998, Tovar was convicted of OW1 again, and in 2000, he was charged with OWI for a third time. In Iowa, a third OWI offense is a felony. Tovar asked the court not to use his first OWL conviction to enhance the third OWI charge. He argued that his 1996 waiver of counsel was not "intelligent" because the court did not make him aware of "the dangers and disadvantages of self-representation." What determines whether a person's choice in any situation is "intelligent"? What should determine whether a defendant's waiver of counsel is "intelligent' at critical stages of a criminal proceeding? [Iowa v. Tovar, 541 U.S. 77, 124 S.°. 1379, 158 L.Ed.2d 209 (2004)]
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What two elements must exist before a person can be held liable for a crime? Can a corporation commit crimes?
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The following multiple-choice question is representative of the types of questions available in one of the four sections of ThomsonNOW for Business Law Today. ThomsonNOW also provides feedback for each response option, whether correct or incorrect, and refers to the location within the chapter where the correct answer can be found. Under the "responsible corporate officer" doctrine, corporate officers a. are responsible for their own actions but arc not responsible for the actions of employees under their supervision.
B) are responsible only for crimes from which they personally benefit.
C) are not personally responsible for any crimes committed by the corporation.
D) are responsible for their own actions and also for the actions of employees under their supervision.
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Double Jeopardy. Armington, while robbing a drugstore, shot and seriously injured Jennings, a drugstore clerk. Armington was subsequently convicted of armed robbery and assault and battery in a criminal trial. Jennings later brought a civil tort suit against Armington for damages. Armington contended that he could not be tried again for the same crime, as that would Constitute double jeopardy, which is prohibited by the Fifth Amendment to the U.S. Constitution. Is Armington correct? Explain.
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Larceny. In February 2001, a homeowner hired Jimmy Smith, a contractor claiming to employ a crew of thirty workers, to build a garage. The homeowner paid Smith $7,950 and agreed to make additional payments as needed to complete the project, up to $15,900. Smith promised to start the next clay and finish within eight weeks. Nearly a month passed with no work, while Smith lied to the homeowner that materials were on "back order." During a second month, footings were created for the foundation, arid a subcontractor poured the concrete slab, but Smith did not return the home-owner's phone calls. After eight weeks, the homeowner con-fronted Smith, who promised to complete the job, worked on the site that day until lunch, and never returned. Three months later, the homeowner again confronted Smith, who promised to "pay [him] or later that day but did not do so. In March 2002, the state of Georgia filed criminal charges against Smith. While his trial was pending, he promised to pay the homeowner "next week," but again failed to refund any money. The value of the labor performed before Smith abandoned the project was between $800 and $1,000, the value of the materials was $367, and the subcontractor was paid $2,270. Did Smith commit larceny? Explain. [Smith v. State of Georgia, 265 Ca.App.57, 592 S.E.2d 871 (2004)]
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Property Crimes. Which, if any, of the following crimes necessarily involves illegal activity on the part of more than one person? (See page 202.)
(a) Bribery.
(b) Forgery.
(c) Embezzlement.
(d) Larceny.
(e) Receiving stolen property.
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Criminal Law and Cyber Crimes
Edward Hanousek worked for Pacific Arctic Railway and Navigation Company (P A) as a roadmaster of the White Pass Yukon Railroad in Alaska. As an officer of the corporation, Hanousek was responsible "for every detail of the safe and efficient maintenance and construction of track, structures, and marine facilities of the entire railroad," including special projects. One project was a rock quarry, known as "6-mile," above the Skagway River. Next to the quarry, and just beneath the surface, ran a high-pressure oil pipeline owned by Pacific Arctic Pipeline, Inc., P As sister company. When the quarry's backhoe operator punctured the pipeline, an estimated 1,000 to 5,000 gallons of oil were discharged into the river. Hanousek was charged with negligently discharging a harmful quantity of oil into a navigable water of the United States in violation of the criminal provisions of the Clean Water Act (CWA). Using the information presented in the chapter, answer the following questions.
1. Did Hanousek have the required mental state (mens rea) to be convicted of a crime? Why or why not?
2. Which theory discussed in the chapter would enable a court to hold Hanousek criminally liable for violating the statute regardless of whether he participated in, directed, or even knew about the specific violation?
3. Could the quarry's backhoe operator who punctured the pipeline also be charged with a crime in this situation? Explain.
4. Suppose that at trial, Hanousek argued that he could not be convicted because he was not aware of the requirements of the CWA. Would this defense be successful? Why or why not?
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Video Question. Go to this text's Web site at YAW thomsoneduaNa and select "Chapter CC Click on "Video Questions" and view the video titled Casino. Then answer the following questions.
1 In the video, a casino manager, Ace (Robert De Niro), discusses how politicians "won their 'comp life' when they got elected." "Comps" are the free gifts that casinos give to high-stakes gamblers to keep their business. If an elected official accepts comps; is he or she committing a crime? If so, what type of crime? Explain your answers.
2 Assume that Ace committed a crime by giving politicians comps. Can the casino, Tangiers Corporation, be held liable for that crime? Why or why not? How could a court punish the corporation?
3 Suppose that the Federal Bureau of Investigation (FBI) wants to search the premises of Tangiers for evidence of criminal activity. If casino management refuses to consent to the search, what constitutional safeguards and criminal procedures, if any, protect Tangiers?
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What defenses might he raised by criminal defendants to avoid liability for criminal acts?
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For Critical Analysis. Do you think that criminal procedure in this country is weighted too heavily in favor of accused per-sons? Can you think of a fairer way to balance the constitutional rights of accused persons against the right of society to be protected against criminal behavior? Should different criminal procedures be used when terrorism is involved? Explain.
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White-Collar Crime. Helm Instruction Co. in Maumee, Ohio, makes custom electrical control systems. Helm hired Patrick Walsh in September 1998 to work as comptroller. Walsh soon developed a close relationship with Richard Wilhelm, Helm's president, who granted Walsh's request to hire Shari Price as Walsh's assistant. Wilhelm was not aware that Walsh and Price were engaged in an extramarital affair. Over the next five years, Walsh and Price spent more than $200,000 of Helm's funds on themselves. Among other things, Walsh drew unauthorized checks on Helm's accounts to pay his personal credit cards, and issued to Price and himself unauthorized salary increases, overtime payments, and tuition reimbursement payments, altering Helm's records to hide the payments. After an investigation, Helm officials confronted Walsh. He denied the affair with Price, claimed that his unauthorized use of Helm's funds was an "interest-free loan" and argued that it was less of a burden on the company to pay his credit cards than to give him the salary increases to which he felt he was entitled. Did Walsh commit a crime? If so, what crime did he commit? Discuss. [State v. Walsh, Ohio App.3d N.E.2d (6 Dist. 2007)]
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Criminal versus Civil Trials. In criminal trials, the defendant must be proved guilty beyond a reasonable doubt, whereas in civil trials, the defendant need only be proved guilty by a preponderance of the evidence. Discuss why a higher standard of proof is required in criminal trials.
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Critical Legal Thinking. Ray steals a purse from an unattended car at a gas station. Because the purse contains money and a handgun, Ray is convicted of grand theft of property (cash) and grand theft of a firearm. On appeal, Ray claims that he is not guilty of grand theft of a firearm because he did not know that the purse contained a gun. Can Ray be convicted of the crime of grand theft of a firearm even though he did not know that the gun was in the purse?
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A Question of Ethics. A troublesome issue concerning the constitutional privilege against self-incrimination has to do with the extent to which trickery by law enforcement officers during an interrogation may overwhelm a suspect's will to avoid self-incrimination. For example, in one case two officers questioned Charles McFarland, who was incarcerated in a state prison, about his connection to a handgun that had been used to shoot two other officers. McFarland was advised of his rights but was not asked whether lie was willing to waive those rights. Instead, to induce McFarland to speak, the officers deceived him into believing that [n]obody is going to give you charges," and he made incriminating admissions. He was indicted for possessing a handgun as a convicted felon. [United States v. McFarland, 424 F.Supp.2d 427 (N.D.N.Y. 2006)]
1. Review the discussion of Miranda v. Arizona in this chapter's Landmark in the Law feature on page 188. Should McFarland's statements be suppressed-that is, not be admissible at trial-because he was not asked whether he was willing, to waive his rights before lie made his self-incriminating statements? Does Miranda apply to McFarland's situation?
2. Do you think that it is fair for the police to resort to trickery and deception to bring those who may have committed crimes to justice? Why or why not? What rights or public policies must be balanced in deciding this issue?
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Trial. Robert Michels met Allison Formal through an online dating Web site in 2002. Michels represented himself as the retired chief executive officer of a large company that he had sold for millions of dollars. In January 2003, Michels proposed that he and Formal create a limited liability company (a special form of business organization discussed in Chapter 27)-Formal Properties Treat, LLC-to "channel their investments in real estate." Formal agreed to contribute $100,000 to the company and wrote two $50,000 checks to "Michels and Associates, LLC." Six months later, Michels told Formal that their LLC had been formed in Delaware. Later, Formal asked Michels about her investments. He responded evasively, and she demanded that an independent accountant review the firm's records. Michels refused. Formal contacted the police: Michels was charged in a Virginia state court with obtaining money by false pretenses. The Delaware secretary of state verified, in two certified documents, that "Formal Properties Trust, L.L.C." and "Michels and Associates, L.L.C." did not exist in Delaware. Did the admission of the Delaware secretary of state's certified documents at Michels's trial violate his rights under the Sixth Amendment? Why or why not? [Michels v. Conzmonwealth of Virginia, 47 Va.App. 461, 624 S.E.2d 675 (2006)]
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