Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport

1. Basic Criminal Law: The United States Constitution, Procedure and CrimesAnniken U. Davenport

2. UNIT THREE: CRIMINAL LAW Chapter 12 Crimes Against the State

3. Introduction • Every system of government must establish laws that protect its own integrity. • The natural law tradition that governments exist by the consent of the governed demands that political officials have a duty to the people. • Bribery, the selling of an office, constitutes a betrayal of that duty. • When corrupt officials lack that integrity and refuse to leave office voluntarily, government must use its impeachment power to remove them and restore integrity to the system. • Corrupt organizations pose a threat to government. • Unfortunately, the very guarantees that undergird a free society sometimes create a refuge for criminals.

4. Perjury • Perjury is defined as “giving false testimony in a judicial proceeding or an administrative proceeding, lying under oath as to a material fact, swearing to the truth of anything one knows or believes to be false.” • Under federal law there are three types of perjury • Section 1621 perjury is a general giving of false testimony. • It is not limited to testimony in court, but includes any sworn statement to a government official or representative. • The second type is section 1623 perjury. Section 1623 perjury is false testimony given in court or before a grand jury. This type is limited to court and grand jury testimony. • The third type is section 1622, subornation of perjury. • Subornation of perjury is defined as convincing or seeking to convince another person to commit perjury.

5. Every state has its own set of criminal laws punishing perjury. • Differences Between 1621 and 1623 Perjury • The Two-Witness Rule • Section 1621 perjury has its origins in Common Law concepts of perjury. Under Common Law, a person could not be convicted of perjury unless two people testified that the alleged perjurer’s statements were not true. This is called the two-witness rule. • Section 1621 carries on the Common Law tradition, but with some modifications. For example, physical evidence that corroborates testimony satisfies the two-witness rule.

6. Section 1623 requires that proof beyond a reasonable doubt … is sufficient for conviction. • In other words, the proof may take any form-physical evidence, testimony, or any other type of proof. • The two-witness rule specifically does not apply to section 1623 cases. • Recantation is the retraction of testimony. • Under section 1621, even if a witness recants his or her testimony, he or she can still be prosecuted for perjury. However, under section 1623, a witness can recant testimony during the same proceeding as long as that testimony has not “substantially affected the proceeding.”

7. Elements of Perjury • The elements of perjury are: • An oath • Intent • Falsity • Materiality • An Oath • Perjury can only occur if a false statement is made under oath to speak truthfully. • Intent • Under both sections 1621 and 1623, the person giving the false testimony must be aware that what he or she is saying is false and must intend to mislead by giving the false testimony.

8. Falsity • In any perjury or subornation of perjury case, the falsity of the statement in question must be proved beyond a reasonable doubt in order to secure a conviction. • Materiality • In order to qualify as perjury a statement must be material to a case. • Defenses to Perjury • The defense to perjury are: • Recantation • Assistance of counsel • Double jeopardy • The “perjury trap” • Fifth Amendment

9. Recantation • Recantation is the retraction of earlier testimony. Recantation is most effective when the defendant uses recantation to demonstrate that there was no criminal intent in testifying falsely. • A defendant, in effect, explains away his or her earlier statements by “clarifying” them. • Assistance of Counsel • Sometimes witnesses called to testify don not consult with an attorney before testifying, and thus may never know that being less than truthful can be a crime. • Double Jeopardy • The double jeopardy defense can be raised when the defendant’s acquittal in a criminal trial was based on the jury believing his or her untrue testimony.

10. The Perjury Trap • The power of a grand jury can sometimes be used to force a witness to provide testimony that contradicts what he or she told investigators or others in law enforcement. He or she is then caught in the perjury trap. • Fifth Amendment • If testifying means a witness will perjure himself or prove he committed perjury earlier, he can raise the Fifth Amendment and refuse to testify. • Obstruction of Justice • Closely related to perjury is obstruction of justice. • Obstruction of justice is defined as “the crime of impeding or hindering the administration of justice in any way.”

11. Witness tampering or intimidation, jury tampering, or suborning perjury can be forms of obstruction of justice. • Elements • In order to prove the crime of obstruction of justice, the following elements must be satisfied: • There is a pending judicial proceeding; • The defendant knew of the proceeding; and • The defendant acted corruptly with the specific intent to obstruct or interfere with the proceeding or due administration of justice. • Pending Proceedings • A proceeding must be pending. • Knowledge • Very simply, the defendant must have known a judicial proceeding was pending.

12. Acting Corruptly with Intent to Obstruct Justice • The defendant must commit an act that has as its intent disruption of a judicial proceeding. • Types of Obstruction • Obstruction of justice is generally prosecuted under the federal statute under three groups. • The first group involves hiding, changing, or destroying relevant documents. • The second is encouraging or giving false testimony. • The third group are offenses that involve intimidation, threats, or other harm to witnesses, jurors, or others involved in legal proceedings or investigations.

13. Contempt • Contempt is defined as “conduct that brings the authority and administration of the law into disrespect or that embarrasses or obstructs the court’s discharge of its duties”. • There are two forms of contempt -- civil and criminal. • In most cases, civil contempt cases involve a finding by the presiding judge that an individual is in contempt of court, and an order for the payment of a fine. • Civil contempt orders can also order an individual to comply with a court order and impose incarceration until the person held in contempt complies with the order or demand. • Persons charged with and convicted of criminal contempt, however, cannot purge themselves of that contempt by later complying. • Criminal contempt can be either a summary offense or a felony. Criminal contempt requires both a contemptuous act and a wrongful state of mind.

14. Defenses • Some of the more popular defenses against contempt are: • Absence of warning by court • Attorney-client privilege • Double jeopardy • Reporter’s privilege • Absence of Warning by Court • While a warning by the court that certain behavior will result in a contempt citing is not absolutely necessary, the absence of a warning has been successfully used as a defense. • Attorney-Client Privilege • An attorney cannot be forced to reveal privileged information communicated to him or her by a client.

15. Double Jeopardy • The defense has been raised when the same conduct resulted in both civil and criminal contempt charges, but was unsuccessful. • Reporter’s Privilege • Over the years, journalists seeking to protect sources have sometimes asserted that they cannot be forced to testify about those sources. Sometimes courts have held them in contempt for refusing to provide the information. • Bribery • Bribery is defined as “the crime of giving something of value with the intention of influencing the action of a public official”.

16. The elements of bribery are: • The recipient or target of the bribe must be a governmental official; • A bribe in the form of money, goods, favors, or something of value was offered or given; and • The bribe was meant to induce an action or inaction. • A Recipient of the Bribe • A bribe recipient can be any government official ranging from a congressman to a clerk issuing permits or licenses. • A Bribe • The bribe itself is money or something of value that is given to the recipient in return for certain action or, in some cases, inaction.

17. Action Meant to Result from the Bribe • The action meant to result from the bribe need not be illegal in and of itself. The government must merely show that the receipt of the bribe influenced the decision. • State of Mind • The person offering the bribe must intend that his offer will result in favorable action on the part of the recipient. • Defenses • A frequently raised defense to bribery charges is: • Entrapment or extortion by public official • Entrapment • Entrapment can be claimed as a defense where it can be proven that the government agent initiated the bribery scheme, and forced the defendant into a course of action he or she normally would not have taken.

18. Corrupt Organizations • One of the most comprehensive pieces of legislation in this battle is the Organized Crime Control Act. Part of this act is the Racketeering Influenced and Corrupt Organizations Act, or RICO, which was passed in 1970. • Under RICO it is a federal crime to acquire or maintain an interest in, use income from, or conduct or participate in the affairs of an “enterprise” through a pattern of “racketeering activity.” • Racketeering activity includes many crimes and activities such as” • Bribery • Embezzlement • Gambling • Arson • Counterfeiting • Trafficking • Harboring illegal aliens

19. At least two acts must be committed by the organization being charged with racketeering within a 10-year period. • In addition to fines and imprisonment, persons or organizations convicted under RICO are subject to seizure of property obtained with illegally acquired funds. • Impeachment • Impeachment is an indictment of a federal official charging him or her with “treason, bribery, and high crimes and misdemeanors”. Once an official is impeached, he or she is tried and, if found guilty, removed from office.

20. Impeachment articles are voted upon by the House of Representatives and then a trial is held in the Senate. • In order to be removed from office the Senate must vote to convict by a two-thirds supermajority. • Two U.S. presidents, Andrew Johnson and Bill Clinton, have been impeached, but neither have been removed from office. • Procedures • The procedures in an impeachment are not spelled out in the Constitution or Code. Congress can decide on procedures on an ad hoc basis. • Ambiguities • Unlike criminal proceedings the burden of proof is not codified in impeachment proceedings. Congress has never specified what standard is to be used, but has left it up to the individual senator when voting to convict.

21. Practice Pointers • Legal professionals or paralegals in investigative positions who work for attorneys representing business owners, partnerships, and corporations will find themselves working on cases involving possibly criminal charges typically considered “white collar crimes.” • The U.S. Department of Justice has issued guidelines for their attorneys to use in determining when to start investigations, bring charges, or negotiate a plea agreement when a corporation and its owner or principal is the target. • In the event federal charges are filed against a client, the odds of conviction after trial are high, often over 90 percent. • In addition to RICO charges, business owners may face mail and security charges, accusations of environmental violations, antitrust and tax charges, and may more.