ASSIGNMENT TWENTY-FIVE - False Pretenses (vis a vis Larceny By Trick) - Wire & Mail Fraud :

[I have five absences and have used up all my sick leave at work. Today, I called in dead.] On this next to last unit, my focus will be on the statutory offense of false pretenses that was created back in the common law days to fill gaps in the larceny law (1). The minor accident of being totally ignorant about this material (just kidding) won't deter me from offering my views on what I think it means. This is what I got from my research. There's more material about this and other property crimes on Bullets IV.

The elements of false pretenses are basically as follows (1.)  D obtains title (title must pass) or title and possession  (but not possession alone), (2.) to someone else's property, (3.) by knowingly (recklessness doesn't work under the majority rule) making a false representation (a misrepresentation),  (4.) of a material present or past fact of monetary significance, (5.) which the defendant knows to be false, (6.) with the intent to defraud, i.e., intending to cause the victim to pass title. The professor says this often comes up on exams in the context of trying to determine whether a crime is false pretenses or larceny by trick or embezzlement. From what I read, the general rule for statutory false pretenses required that the proof show that there not only was a false representation, but that D knew that it was false. Apparently there were a few states that had statutes that would allow recklessness as sufficient, but the majority required proof of knowledge. There was also a requirement that the victim rely on the misrepresentation; therefore, if V did not hear the false statement or simply didn't believe it, there was no false pretenses offense, just an attempted false pretenses. 

Here's a good hypothetical explanation that I ran across that may assist us in understanding false pretenses:    
  • If D1 persuades V to loan D1 V's lawnmower (or bicycle or chainsaw or etc.) and D1 intended at the time to permanently deprive V of the lawnmower, it's C/L larceny ("by trick" because fraud is used to obtain possession). Note that V did not pass lawnmower title to D1, therefore we quickly rule out false pretenses.
  • If D1 really just wants to borrow the lawnmower at the time V loaned it to him, but after D1 gets possession of it D1 then decides to convert it to D1's use, it can be embezzlement; but since the original taking was not trespassory, it can't be larceny (by trick). (If D1, with the intent to use the lawnmower and return to V's garage, had just gone over to V's house and taken the lawnmower without V's permission and later decided to keep it, you could use the "continuing trespass doctrine" to make the trespassory taking without permission a larcenous trespass to possession and, thus, larceny. UCL 5th has a good explanation of the doctrine on page 567.)
  • But if D1 obtained both title and possession of the lawnmower from V, based on D1's fraudulent claim to V that D1 needed to sell the lawnmower for the general purpose of raising money to pay medical bills for the sick, there being no such medical bills and no such sick persons, there was no C/L larceny because V intends to pass title (and possession) to the lawnmower to D1; also, there was no embezzlement because the original possession was based on fraud (misrepresentation) and, therefore, was not consensual. So, to cover this situation, the crime of false pretenses was created. [In analyzing exam problems what I need to look for are facts that show directly or by logical inference that V had title to the property and intended to and did pass that title to D.]
  • BONUS: Look at this VIDEO, assume that the lady selling the car is attempting a scam, and figure out if the crime, if any, is larceny, embezzlement or false pretenses. Explain why it is or isn't each crime under the c/l? What would the seller's crime be under the MPC and TPC?

During the common law era, for the statutory crime of false pretenses to occur, the misrepresentation needed to be affirmative in nature. Failure to disclose a fact didn't constitute the statutory offense of false pretenses, unless these was a preexisting fiduciary duty to disclose the fact. Additionally, failure to correct the victim's false impression or misunderstanding was not sufficient to constitute a misrepresentation. Also, the traditional offense of false pretenses required that that the false representation (misrepresentation) had to be of a material present or past fact. False promises to do things in the future did not qualify. For example, if D pays V for a car with counterfeit money, this would be false pretense in the sense that D obtains title and possession to the car based on D's present misrepresentation that the money as real. On the other hand, if D obtained title (or title and possession) to the car from V based on D's promise to pay for the car tomorrow and then doesn't pay tomorrow, there was no false pretenses. As to the requirement that the misrepresentation had to be material, it seems that an oral statement of value of property was held to be mere opinion (puffing) and not a statement of fact.

A couple of other things need to be noted. It doesn't seem necessary for false pretenses that there be proof  that V suffered a pecuniary loss as a result of the misrepresentation.  Also, the false representation does not have to be the sole inducement for V giving up of title to the property to D. If D thinks his representation is false but it is in fact true, there is no false pretenses. ( Is this mistake one of those that would be a mistake of fact that would negate the possibility of fraud?) Also, the law of false pretenses protects the naive and gullible person; even if the V places unreasonable reliance on the material false representation. Finally, since false pretenses required a specific intent to steal, i.e., defraud,  valid mistake of fact or intoxication or claim of right might be potential defenses. 

The victim of false pretense must intend to pass title or title and possession for false pretenses to exist. There may be certain circumstances when possession and not title passes and the crime is larceny rather than false pretenses. There's a case about the larceny by trick conviction of a crooked lawyer named Graham who told his client that he needed $2K to bribe the cops; the client provided the payola but the lawyer kept the money; the court said that the crime was larceny by trick because the client did not intend to convey title to the bribe money until it was actually paid to the cops. Consider this: If  D gets the V to part with the property for a very specified purpose, e.g., to give a bribe to a particular third party or to buy a specific parcel of land, the idea is that title to V's property would pass only if the goal were achieved. The thing is that if the goal is not achieved, title does not pass, and, thus, there is no false pretenses crime. Instead, the property crime may be larceny by trick, like the Graham case, if D only obtains possession based on a misrepresentation. One of the reasons the court in Graham said that the facts showed a larceny by trick may have been that the court felt like the facts wouldn't support a false pretenses conviction for the crooked lawyer. Why? It wouldn't even be false pretenses if a false promise to do something in the future won't suffice for false pretenses, and if the Graham court looked at the scenario as not involving a misrepresentation of a present or past fact, i.e., that the police could be bribed, but rather nothing more than a promise to try to do something in the future, i.e., to try to fix the case with the police by bribing them?

Some courts and modern statutes have expanded the definition of false pretenses and adopted a minority rule that a false promise along with other elements such as reliance is sufficient for a false pretenses conviction. The policy issue seems to be whether we should punish people for making false promises that they don't intend to keep at the time they make them. Even if the answer to the expansion issue is "yes," should we leave the decision to the legislature rather than to the courts? The Sec. 31.01 (1) TPC definitions of "deception" seem to take an expansive view of what in the old C/L days was false pretenses. [ Note: I'm not going to take up space reciting all the definitions, but from my reading of (E) in Section 31.01 (1) TPC it appears that making a promise that one doesn't intend to keep and that is likely to affect the judgment of the victim can be deception. However, that statute also makes it clear that the mere failure to keep a promise is not sufficient evidence alone to prove that the promissor intended to default on the promise. There must be other evidence of that intent. Look at the other TPC definitions of "deception" also. They are expansive in comparison the old concept of misrepresentation under false pretenses.] It seems like the hottest area of change concerning  misrepresentation in theft by deception is in the legal effect of "false promises" and "misleading omissions." Notice that the MPC Section 223.3 crime of "theft by deception" is the source of the TPC approach to false promises; like the TPC the MPC makes clear that deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise.

A HELPFUL HINT: So here's a somewhat overly simplified system I plan to use to help me sort out larceny by trick, embezzlement, and false pretenses - three major property crimes that can appear on the multi-state bar exam and our own. First, I will ask whether the complainant intended to part with title, title and possession, or possession only of the property in issue. If title or title and possession was meant to be passed to the suspect, it can't be larceny by trick or embezzlement. If anything, it's false pretenses. If possession only was intended to be given to the suspect, it can't be false pretenses, but it may be larceny by trick or embezzlement. Second, in trying to determine if it's larceny by trick or embezzlement, I need to ask whether the suspect came into possession of the property lawfully. If so, it may be embezzlement, but it won't be larceny by trick. If the suspect came into possession of the property unlawfully, then it may be larceny by trick because in larceny by trick the complainant is fooled or conned by a fraudulent misrepresentation into giving up only possession of the property.

Like grandma said, "You want to clean up the creek - the first thing you do is you run the pigs out of it."

ULTRA-RICH WHITE-COLLAR CROOKS SCORING BIG IN OUR "KLEPTOCRACY" - Bushrod's Soapbox : "I'm sick and tired of corporate crooks, and I'm not gonna take it anymore!" I'm speaking of financial crimes, crimes of persuasion, con-games, white-collar crime, (1), (2), (3 - the Cornell white-collar megasite) and fraud. THEN: I wondered in the late "90's if a substantial number of the high managerial agents, virtually all of them males, at those huge meltdown corporations, e.g.,  Enron, World Com, Global Crossing, etc., would ever be convicted. It turns out that some were. Bernie Ebbers got 25 years on July 14, '05, for his role in the $11 billion WorldCom accounting fraud. Father and son Rigas got 15 and 20 respectively in the Adelphia Communications looting. See United States v. Rigas, 490 F.2d 208 (2nd Cir. 2007).  Richard Scrushy beat the criminal rap in the HealthSouth book-cooking case. What about our local embarrassment - Enron? Messieurs Ken Lay and Jeffrey Skilling were put on trial in early 2006 with two talented defense lawyers, Houston's own Mike Ramsey for Lay and California's Daniel Petrocelli for Skilling. Despite the lawyers diligent efforts to obfuscate their guilt in the shelter of the corporate maze, both Skilling and Lay were convicted on many counts of corporate fraud/conspiracy. Lay died before sentencing, but Skilling received more than a score of years in Club Fed. I found the indictment against President Bush2's buddy Lay. Billions and billions of dollars seemingly vanished in these crooked corporate shenanigans. How could that much dough be missing without a substantial number of ranking employees being knowing participants in massive fraud? [Of course, it looks like the DOJ is accepting that Ponzi King Bernie Madoff single-handedly "made off" with $60 billion in investor funds over a score of years? Does that make sense?] Is the message in some of these long delayed cases - if you're gonna steal, steal big? Of course, the federal Congress responded to these economic catastrophes with gas-bag rhetoric and jaw-boning. After the cows were out of the barn, Congress did pass some band-aid legislation, e.g., Sarbanes-Oxley Act (SOX); that will mean nothing in preventing future corporate corruption without effective enforcement by a government run by folks who are disciples of deregulation. Congress' answer to white collar property crimes is often to simply create laws, e.g., in 1996 they passed the Economic Espionage Act that purports to protect against misappropriation of trade secrets, and there is also a federal money laundering law. Again, the teeth of the law is in the enforcement. It's a lot easier for a federal prosecutor to convict some street thug of selling crack than to go after major white-collar crooks who steal tens of billions and who still have political punch, plus bank accounts bulging with enough filthy lucre to pay high priced mouthpieces. Supposedly, the FBI assigns more agents to white collar crime than any other area except national security. If this is so, it doesn't show. And, of course, we have the "crack" investigators of the SEC to protect us against unscrupulous Wall Street crooks, right? The One Bright Spot:  Maybe there's a future for criminal lawyers (prosecutors and defenders), in the areas of securities fraud, RICO, computer and Internet crime (1) (2 - article on unauthorized computer access, identity theft, cyberstalking, Internet fraud, Internet pornography), Internet Crimes listed by the FBI. banking crime (Except that the folks who run the banks and were major causes of our recent economic depression seem to be immune from prosecutorial attention. For an example that white collar crooks often escape justice, in December of 2012, HSBC, third largest bank in the world, agreed to pay $1.92 billion in fines to US regulators for money laundering, but the Obama DOJ declined to pursue any indictment against HSBC or any of its employees involved in the large-scale money laundering scheme, settling instead for a deferred prosecution agreement in which the bank promised to strengthen its controls against laundering.), criminal antitrust, bribery, extortion, tax fraud, and misappropriation of intellectual property (copyright violations, trafficking in counterfeit goods, theft of trade secrets, computer intrusion, etc). For a brief dose of some federal financial crimes look at the Secret Service web site. Here's the federal law regarding Fraud and False Statements (18 USC Sections 1001-1037) NOW: What is there to say about the economic meltdown of late 2008, 2009, and 2010? Wall Streeters and their lapdog political operatives in the US Congress gang-raped the working population of the USA. What do you think about anti-trust action to keep corporations from becoming "too big to fail"? Otherwise, the American taxpayer becomes the surety for the lives of these behemoths. What about expanding shareholder rights against crooked corporate bosses who loot and drain companies they don't own? And, what about the banks, insurance companies, and other fiduciaries? Shouldn't the law curb them from high-risk gambling with other their deposits and assets?  For an explanation of some of the conduct and the names of a few villains, see the material at the end of Bullets IV.]

What is the definition of "property" for purposes of larceny/theft laws. C/L larceny protected only tangible personal property. This traditionally included crops severed from the land, objects, money, and certain animals. It didn't include real estate, intangibles, or services. So, if I hired a guy to fix my chariot knowing from the get-go that I wasn't going to pay him and I didn't or if I checked into an a roadside inn intending not to pay and skipped out on the bill, there was no larceny of the services provided by the labors of the mechanic or hospitality of the innkeeper. As the world has become more "civilized" or at least more commercial and wealth-oriented, the types of property that are subject to protection by the criminal law have expanded. Obviously, the MPC and TPC have created theft of services statutes that make it a property crime to steal services. We've also seen that there are statutes that penalize unauthorized use of property, e.g., UUMV - Section 31.07 TPC, without the consent of the owner. Intangible property is typically protected by modern codes such as the TPC and MPC.

At early C/L, all larceny carried the mandatory death penalty (no taxpayer cost for expensive long-term warehousing of prisoners in penitentiaries). Eventually, the English Parliament decided that certain trivial larceny offenses should be exempt from capital punishment. This lower level of larceny was called petit (petty) larceny. The deciding line between the two levels of larceny seems to have been that the value of the property had to be less than 30 pence (the value of one sheep) for it to be petit (petty) larceny.

VALUE: Sec. 223.0 of the MPC that was finalized in the early 1960s sets up three value levels that are no longer reflective of the value of the dollar. Those value sets are: petty=under $50, misdemeanor = $50 - $500, felony = over $500. [Note: The TPC values in Sec. 31.03 are more realistic. Apparently the TPC value ladder has changed a couple of times to keep up with inflation of the continually valueless dollar. Here's an abbreviated ladder.
Dollar Value Ladder for Texas Theft Crimes:
Class C Misdemeanor: Less than $50 or less than $20 by Check; Class B Misdemeanor: $50 but less than $500 or @$20 by check but less than $500; Class A Misdemeanor: $500 but less than$1500; State Jail Felony: $150 but less than $20,000 or less than 10 head of cattle horses or exotic livestock or fowl or any part thereof under $20,000 or property is stolen from a person, corpse, or grave or the stolen property is a firearm or the value is less than $1500 and the defendant has two prior theft convictions or the property is an official ballot or carrier envelope for an election or the value is less than $20,000 and the property is insulated or noninsulated wire or cable of at least 50% aluminum, bronze or copper; Third Degree Felony: $20,000 but less than $100,000 or 10 or more head of cattle, horses or exotic livestock or exotic fowl stolen in a single transaction and having an aggregate  value of less than $100,00 or 100 or more head of sheep, swine, or goats stolen in a single transaction and having a value of less than $100,000; Second Degree Felony:$100,000 but less than $200,000; First Degree Felony: $200,000 or more. [NOTE: People from other states will notice that we have a very strong livestock lobby in the Texas that gets special attention from the legislature. Also, there are many Texas Penal code crimes that have dollar values or dollar losses attached for purposes of determining punishment, e.g., Criminal Mischief (Sec. 28.03); Graffiti (Sec. 28.08); Theft of Service (Sec. 31.04) Counterfeit Trademarks (Sec. 32.23); Recruitment of an Athlete (Sec. 32.441); Execution of a Document by Deception (Sec. 32.46); Breach of Computer Security (Sec. 33.02); Theft of Telecommunication Service (Sec. 33A.04); Money Laundering (Sec. 34.02); Insurance Fraud (Sec. 35.02); Medicaid Fraud (Sec. 35A.02); Abuse of Official Capacity (Sec. 39.02); etc.]

I made myself this money ladder value chart to help sort out the level of the theft crime when it's based on monetary value of the property stolen:
Basic Texas Theft Punishment Ladder Chart Based on Valuation
Sec. 31.03(e) TPC
Amount of Monetary Loss                               Punishment Range
                                                   $300,000 or more                                                        First Degree Felony
                                               $150,000 - $299,999.99                                                  Second Degree Felony
                                                 $30,000 - $149,999.99                                                     Third Degree Felony
                                                  $2,500 - $29,999.99                                                           State Jail Felony
                                                    $750 - $2,499.99                                                      Class "A" Misdemeanor
                                                      $100 -  $749.99                                                      Class "B" Misdemeanor
                                                          Less than $100                                                      Class "C" Misdemeanor

On the issue of value of property, the commentaries that accompany the MPC say that the MPC permits grading of theft offenses based on the thief's belief, if it's not a reckless belief, concerning the value of the property, rather than the actual value that the C/L and the TPC use in grading the severity of the offense. So, under the MPC, if the D thinks he is stealing a $5 bill and the particular $5 bill is a very rare and highly valuable piece of currency, the grade of theft could be based on the value the thief thought he was getting, i.e., $5. The contrary is also true. The grade of theft may also be raised based on the thief's mistaken belief that the value of the property was greater than it actually was.  Apparently, the MPC would allow a thief to be prosecuted at a high grade of punishment for stealing a painting he thought has great value, even though it was a forged copy with a much lower value.

While service was not considered property subject to common law larceny, both the MPC in Section 223.7 and TPC in Section 31.04  criminalize theft of services.

With regard to the mail and wire fraud cases that end the casebook, take a look at federal mail fraud and wire fraud, the McNally v. United States, 483 U.S. 350 (1987) and the Congressional reaction to continue the expansion of these catchall federal fraud crimes. See the federal chapter (Section 3141-1350) that contains mail and wire fraud.

MY SUGGESTION: Finally, we are done with theft. I don't know about you, but I have no desire for money. It's stuff that I want. Reading the casebook has been on my list of things I look forward to, right above a case of ringworm. Just joshing you. Honestly, now that it's over, I'm glad I read all the major (principal) cases. I book-briefed all of them, except the one I was assigned to post to Powwow. That one was a work of art because I was getting 114 briefs back in exchange for my one. If you want to understand the lingo and logic used in applying law to facts, I recommend reading the cases. At least, read the Powwow briefs filed by your colleagues before you go to class. The major cases flesh out the policy issues and arguments much better than just reading the UCL hornbook which gives you black letter law but no guidance as to how to apply it. At home or in the library, the ideal approach is to read UCL and then read the cases. You can catch sight of the players involved, the context in which the criminal law issues arise, and the complexities of the policy considerations. If the UCL hornbook of doctrine is the forest, the stories in the casebook are the trees. Even though the cases are written by appellate judges, they still give us the story of the case, albeit in condensed form. Sometimes it's easier to remember the doctrine if you can use a case as a mnemonic device. I think that reading all these cases in my casebooks on the 1L year has helped me to start reasoning in the analytical way lawyers do as they apply law to solve problems. [If my exams have an essay portion, I can apply this new skill.] After all, each case represents a set of facts, a legal problem, and the application of the law to those facts. The more I know about how the law sorts out the problems created by occurrences, the better prepared I'll be to do it when the time comes. Lawyers get paid for solving problems, either before they happen (as with many civil lawyers) or after they happen (as with all criminal lawyers and prosecutors). I'm going to try my best to be ready for that challenge. So, merci to the casebook authors for their  outrageously expensive $126 plus tax collection of colorful and descriptive legal stories. But with all that black letter common and MPC law to study... the UCL hornbook is still the major resource that I'll rely upon for the exam!




UNIT TWENTY-SIX - Rape & Sexual Assault - See Silver Bullets Sex Crimes Also See Other Criminal Offenses for Assault & Battery

It only tales a split second to do something you'll regret for the rest of your  life.

A few things to ponder: While heterosexual males are being taught to be pursuers of women, women are being taught to be
in charge of their own sexuality; women have better communication skills than men; women are talkative and social;
boys start talking less as they enter manhood; young women talk about and attempt suicide, but young men do it
four times more often; 43% of college students are male. Wake up, dude. You will soon be overtaken.

[Disclaimer: Sexual relationships in our day confuse me. Septuagenarian males line up at my local Walgreen's on Friday afternoon to buy their weekend supply of Viagra. From the media coverage, one would think that "erectile dysfunction" is akin to the plague. So much so that males are willing to risk an erection that "may last more than four hours" and send them to the local emergency room. (1) In the U.S., 355,000 ladies submit themselves yearly for breast-augmentation surgeries. An equal number (males and females) get on the table for liposuction. In Islam they stone you to death for adultery and hang you for homosexual acts. (1 - VIDEO) But here, the former is typically not a crime and the latter is a constitutional right as long as it's between consenting adults in private. See Silver Bullets V. Men are weirder than women. A guy will show no outward sign of pain while taking a horrendous beating but wince when a woman tries to clean his wounds. I fancy myself as a fairly sensitive guy. I cry at the tearjerker parts of movies. But, by my way of thinking, no non-transgendered male can ever understand what it is like to be a female. The only thing I've learned from personal experience in my failed efforts at romance is that sometimes they don't say what they want, but reserve the right to be ticked off if they don't get it. My point is - what I say here about sex crimes (1 - lots of links), (2 - law enforcement discussion of psychology of sex offenders) that may be perpetrated against female victims has to be understood as coming from the perspective of a male who hasn't lived it (and who made 149 on the LSAT). But you don't have to die to write a death scene, do you? One good thing I can say is that some males are getting the point about sexual assault: Reported rapes seem to be going down. The recent number is 89,000 - still an appalling number and one that the males of this country could lower dramatically if we could get control of ourselves and our relation to females of the species. There may be something to the idea that love of the heart trumps love of the flesh.]

This is the last installment in my note-taking. Let's visit ever so briefly about a number of crimes that are not mentioned in the casebook or UCL
[Note: Read Silver Bullets VI describing several other offenses not mentioned in the casebook or UCL; this could be useful in the event that I want to be able to spot and discuss the presence of these crimes on the essay portion of the exam.]

Today I introduce you very briefly to the following crimes, some of which are not covered by the casebook or UCL: sex crimes (rape and sexual assault), assault (1), battery (1), mayhem, kidnapping, false imprisonment (1), (2), enticing a child, arson, forgery (1), criminal mischief (malicious mischief), perjury (1), bribery (official and commercial), counterfeiting, misprision of a felony, compounding a crime (1), obstruction of justice, barratry (1), DWI, money laundering (1), crimes against public order and morals, and stalking (This last one - stalking - reflects the moronic attitude that "You can't make someone love you. All you can do is stalk them until they become afraid and give in." The casebook does cover it.) If all pigs are fed and ready to fly, here we go.

RAPE: At C/L, rape is unlawful sexual intercourse by a man with a woman who is not his wife without her consent by means of force, threat (fear), or fraud. It carried the death penalty at C/L. So, a man (D) couldn't be guilty of raping his own (D's) wife as a principal in the first degree. D could however be guilty as an aider and abettor when D helped some one else rape D's wife.

Lack of Consent of the female was an element ("against her will") of common law rape along with "by force." So, at common law, the prosecution had to prove that the rape was without the female's consent. That did not necessarily mean that the prosecution's proof had to show that the defendant was aware that the female was not consenting. It would depend on whether the lack of consent issue had any culpable mental element (mens rea) attached to it. Remember, rape itself was classified as a general intent crime. If the lack of consent element carried no mens rea, then the issue would simply be whether the female consented, without any inquiry as to the defendant's state of mind on the lack of consent issue. What constitutes lack of consent? Words or actions generally reflect consent or the lack of it. A big issue today is whether the word "no" should be sufficient under all circumstances to indicate a lack of consent. [I can think of some scenarios when the word "no" is accompanied by conduct that is totally inconsistent with the word "no." But the safe thing would be to stop and clarify the inconsistency. Personally, Springwater would walk anytime he heard the word "no" prefatory to an act of intercourse. There's lots of fish in the sea.] In the history of rape, lack of legal capacity to consent expanded to encompass the woman who was unconscious or mentally incompetent. What about the use of drugs (1) like rohypnol to break down a victim's ability to resist sexual advances? Here's an even tougher one: If a female consents to intercourse and then changes her mind half-way through the act, is it rape if the male, knowing of the withdrawal of consent, keeps grinding? There's a California case on this styled as People v. John Z, 29 Cal 4th 756 (Cal. 2003) (1)  Dressler's UCL6th on page 576 says, "The traditional rule, apparently still adhered to in  most jurisdictions, is that post-penetration withdrawal of consent does not convert lawful intercourse into rape, even if the male uses force or threats of force after consent is withdrawn."

A bit less than half the states still retain lack of consent of the adult victim as an element of rape. Notice that the offense of sexual assault in Texas has as one of its elements "without the consent" of the alleged adult victim, Section 22.011(b) then presents a laundry list of 11 circumstances that constitute situations evincing "without the consent" of the alleged victim. A number of those circumstances do not involve the use of force or threat of force. Thus, while retaining the "without the consent" element, the TPC broadens the concept of sexual assault well beyond the common law view of rape as requiring active physical or verbal resistance by the adult victim. 

Proof of "sexual intercourse" required proof of penetration. That was defined as penetration of the female vulva by the male penis. [If I'm ever a prosecutor, I have to remember that I have to prove penetration to prove rape. I've got to get the C/W to tell the jury that her sexual organ, usually her vagina, was penetrated by the actor's penis. Lots of rookie prosecutors try to sanitize the testimony and fail to prove penetration even when their rape indictment alleges it. Why? They are embarrassed to force their complaining witness to talk about this sort of thing in front of a group of stranger, e.g., the jurors, judge, courtroom spectators.] 

Rape is a general intent crime. Thus, one might think that a reasonable mistake-of-fact could also be raised as a defense on the issue of the defendant being mistaken as to the female's claimed lack of consent. In other words, the female might subjectively not be consenting, but the male may want to claim that he had to be aware of it. Because mistake-of-fact is a claim that seeks to negate a mental element, it has to be decided whether the "lack of consent " element carries a mens rea (culpable mental state). Dressler tells us that, in conformity with the common law mistake-of-fact principles relating to general intent crimes, "the general rule is that a person is not guilty of rape if he entertained a genuine and reasonable belief that the female voluntarily consented to the intercourse with him." However, this may not fly in a jurisdiction like Texas where our sexual assault statute may not include a mens rea for the "without the consent of" element. Thus, Texas mistake-of-fact may not apply to negate the "without the consent of" element in sexual assault. We don't know because the issue has not been decided by the Texas Ct. Crim. Apps. On the mistake-of-fact defense to negate lack of consent, I think there are still some jurisdictions that may make it unavailable in rape cases. In other words, the focus in those jurisdictions is on whether the alleged victim did not consent and not on whether the defendant thought she consented.

In jurisdictions where mistake-of-fact would apply, it would seem that what one person might think is a reasonable mistake-of-fact would not be reasonable to another. Like I just said, we've all heard the statement " 'No' means 'No'!"  But I'm not sure that fits in with what we teach young males with our media. [After all, aren't males taught that many females go for the brash, bold, biker, badboy dudes? Someone is buying those soft-core romance novels with the steroid pumped Fabio on the cover.] What if a woman feels like she has been raped but by sheer passivity never indicated a lack of consent? If the passive female feels raped, has she been raped for purposes of the criminal law?

The force employed in rape could be actual or threatened. Lack of consent may not be too difficult to prove when there is strong evidence that the male used force or threat of force to commit the sexual intercourse. [I wonder what kind of force suffices for a threat. There are a lot of ways to coerce a person without threatening to use any force, whether it is deadly for non-deadly force. What happens if a boss threatens to fire his secretary if she doesn't have sex with him or a a landlord threatens to evict a female tenant unless she has sexual intercourse with him or a teacher promises a good grade in return for sex? None of those would qualify as a sufficient threat of force under the C/L concept of rape by physical force or threat of physical force.]

Fraud could also be a basis for proving that the intercourse was non-consensual if it was fraud in fact(um). I think "fraud in fact" was when the D fooled or deceived the female about the nature of the act. Most of these books I'm reading say that it would be fraud in factum for a gynecologist to fool a female patient into believing that her sexual organ was being examined with an instrument, when in fact it was the good-doctor's penis that was being inserted into the female organ. Notice that one way sexual assault in Texas can be without consent is if "the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring."

Note that fraud in the inducement was not fraud that made the sexual intercourse non-consensual in the sense of being  C/L rape. Fraud in the inducement seems to be the kind of fraud where the female is deceived, but still knows she is having intercourse, as where the D has used false flattery, a false promise of marriage, or some other false misrepresentation or deception to break down the female's resistance to having sex. It seems like it may even be fraud in the inducement if the D sneaks into the female's bed and poses as another man in order to trick the woman into having sex with him. [Better check Dressler on this; he may disagree.] Apparently, even today, in most states fraud in the inducement (deception) does not constitute a basis for a rape prosecution. [Also, look at MPC Section 213.1(2)(c) describing the offense of gross sexual imposition because it seems to recognize fraud in factum and also the situation where the female submits because she mistakenly supposes that the male is her husband.]

C/L rape was gender specific. By that I mean that it was a one-way crime. A man could be guilty of raping a woman, but if a woman forced a man to have intercourse with her, it wasn't C/L rape. It was legally impossible according to the C/L definition.

Resistance: The C/L required the female victim to physically resist the would-be rapist when reasonable, unless, as C/L developed, she was unconscious or a minor  or mentally incompetent or unless the rapist used fraud in fact(um), e.g., the doctor telling female patient he was inserting an instrument when he was really inserting his penis. The resistance requirement seems to force the woman to put herself in danger of being physically injured. Some people describe rape as a crime of opportunity that can be discouraged by preventive action. We talked about whether the current equality of males and females should mean that women should be viewed as having just as much power and duty to try to fight off a rapist as a male might. If women and men are to be treated equally, should there be a legal requirement that the rape victim (whether male or female) resist the would-be rapist? I'm not sure about that one, but I do think that it would be more likely that a woman would fight back in cases of "date (or acquaintance) rape" than when she is threatened by a stranger who appears out of the shadows. In the date rape scenario, the guy may think she is consenting if she just kinda pliable lies there without saying anything or otherwise indicating resistance.

On the question of corroboration, the early C/L certainly didn't require it. An old fashioned swearing match was fine. In the early 1900's, some states began to require it. The MPC has an absolute rule. Texas has an in between type of statute in Art. 38.07 CCP.

Hint: Things to look for re rape: penetration, spousal exclusion for husbands, D's awareness of lack of consent, reasonable mistake of fact, threat or use of force.

Model Penal Code and Sex Crimes: The MPC contains a whole raft of sex crimes that could take a long time to master. Here are a few thoughts on the MPC rape crime. Under Sec. 213.1 MPC the husband could not be guilty of raping his wife as the primary actor. So, it maintains this concept of spousal immunity. But the husband or another woman could be liable as an accomplice to sex crimes in Article 213 under Sec. 213.6  (2) MPC when he/she causes another person not within the spousal exclusion to perform the sexual act. In a way, the spousal exclusion makes sense when I  think that the MPC final draft was in the early 1960's, before there was such an emphasis on women's rights and before there was the current repudiation by women of a wife being under any control of or obedience to the husband. Of course, any forcible sexual attack by the husband on his wife would certainly have been considered as assault in those days under both the MPC and C/L.

The MPC has a number of sexual offenses other than rape in Article 213. The basic tenor of the Article is pro-defendant, but the MPC does expand sex crimes to some extent. For example, all forms of penetration, i.e., oral, vaginal, and anal, are included in the definition of  "sexual intercourse." There are several crimes and several grades of punishment. Rape under Section 213.1 (1) MPC can be a first or second degree offense depending to on whether the actor inflicts serious bodily harm on anyone or the complaining witness was not a voluntary social companion of the defendant and hadn't previously permitted sexual liberties (see the statute); gross sexual imposition (a new crime that includes threats that are not physical in nature but are nevertheless coercive, e.g., threats of economic harm, such as loss of a job), under (2), is a third degree felony.

Non-consent of the C/W and resistance by the C/W are not elements of the MPC rape offense. The prosecution does not have to prove that the defendant knew that the C/W had not consented . The MPC focuses on the behavior of the male, e.g, use of force or threat of serious physical harm.

It's interesting that the age of consent under the MPC is ten and over, especially when you contrast it with Texas, see Section 22.011(c)(1) TPC where it's 17 and over!

The sexual intercourse is MPC rape if the female is unconscious or if her power to appraise or control her conduct has been substantially impaired by the D administering or employing drugs, intoxicants, or other means for the purpose of preventing resistance. It's also rape if the female is coerced by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone. The MPC centers on the amount of force or the severity of the threat in determining the nature of the crime and the punishment. 

If the accused and the alleged victim are "living as man and wife," irrespective of the legal status of the relationship, Sec. 213.(6) MPC says that this would fall within the spousal exclusion. But, if spouses are living apart under a decree of judicial separation, the spousal exclusion does not apply.

The MPC has a corroboration requirement. Sec.213.6 (5) MPC says that no person shall be convicted of any felony under Article 213 upon the uncorroborated testimony of the alleged victim.

Rape Shield Rules or Statutes: The concept of "rape shield" rules or statutes (1) is one of current vintage.  On the issue of credibility (1) of the C/W's claim that she didn't consent, the common practice for many years was to allow the defense lawyer to introduce evidence of the C/W's history of "prior sexual misconduct" to rebut the claim of lack of consent. This might involve proof that the C/W had consensual sex with a variety of partners, on a variety of occasions, and in a variety of forms. The modern approach is to have so-called "rape shield" statutes, as is the case in many jurisdictions such federal court and in Texas cases under  Rule 412 of the Tex. R. Evid. and Rule 412 of the Fed. R. Evid. that place severe limitations on the ability of the defense to introduce such evidence of prior sexual misconduct. These rape shield statutes usually have narrow exceptions, such as prior sexual encounters between the C/W and D, that are allowed into evidence on the issue of consent. There is typically an in camera hearing, before the judge and out of the presence of the jury, to determine what prior sexual history of the C/W will be allowed into evidence.  Sec. 213.6 (3) MPC does have a provision  that allows proof of sexually promiscuous conduct as a defense to the offense of corruption of a minor and certain types of sexual assault, provided that the defense proves such by a preponderance of the evidence; however, this does not apply to the offense of rape. [ As a matter of interest I checked the FBI web site and found that there were 90,491 reported rapes in 2006. I wonder how many went unreported.]

Sex Offender Registration: Of even more recent origin is the requirement of sex offender registration. (There's a guy on probation for kiddie porn about half a block from my crib.) The sex offender registration laws are designed to notify the public as to the identity and location of convicted sex offenders. The offender is typically required to register with a law enforcement agency and supply a photograph, address, and current place of employment. In a score of states, this information is put on the Internet. See Smith v. Doe, S. Ct. 1140 (2003) holding that such registration laws can be enforced upon those whose offenses predated the enactment of the registration statute. For the rather complex Texas Sex Offender Registration Program, See Chapter 62, Tex. CCP. Freak yourself out by checking this nationwide  web site where you put in your address and it shows you a detailed map with the name, address, and photo of the registered sex offenders in your neighborhood. (Aside from the dud down the block, this says there are only seven in my zip code.)

Statutory Rape: Statutory rape (in Texas, sexual assault of a child) was a statutory outgrowth of the judge-made C/L crime of rape. This statutory law made it unlawful for a man to have sexual intercourse with a female child under the age of ten, irrespective of whether or not the female child consented. The MPC also protected the child under ten from rape. For the crime of sexual assault of a child, Texas uses the age of under seventeen as the cut-off for defining a child. Some jurisdictions use the under eighteen as the cut-off. Others go lower than seventeen. (I like fifteen.) It is important to notice that lack of consent is not an issue in statutory rape. [For the exam, I can think of situations involving the use of force or threat of force against a child where there might be both a potential statutory rape and rape crime.] This statutory rape law is based on the policy that a "child" (as defined by the law) is simply not legally capable of consenting to sex. The statute is there to protect children from sexual predators. So, in cases of statutory rape you don't have to have force, threat of force, fraud, or any of the coercive aspects of rape.

Mistake of Age: In most jurisdictions, the defendant's good faith honest reasonable mistake of fact regarding the girl's (boy or girl child in gender neutral Texas) age is no defense to statutory rape (sexual assault of a child in Texas). That makes it pretty much a strict liability crime as to age. All the defendant really has to intend  to do is have sex with the person; as long as the person turns out to be a child (minor), it doesn't matter what the defendant thought about the person's age or what anyone might have thought. We just look at chronological age of the child and whether the defendant had sex with the child. About of third of the states do allow reasonable mistake of fact re age as a defense to statutory rape. The California case of Hernandez seems to bethe fountainhead for that idea.

MPC mistake of age is covered in Sec. 213.6(1). It's not available as a defense when the criminality of the conduct depends on a child being below the age of ten; however, when criminality depends on the child's being below a critical age other than ten, it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed that the child was above the critical age.

A Different Kind of Sex/Murder Crime - Honor Killings: I recently saw a 1998 video called Crimes of Honor  (1 - VIDEO),  (2 - VIDEO)  that claims that in parts of the Islamic world women are killed by male relatives because they have dishonored their families by engaging in unacceptable sexual relationships, e.g., sisters or daughters killed because they have lost their virginity in an illicit relationship or, perhaps, even because they have refused an arranged marriage or have abandoned their husband. (1 - Brother on sister in Germany for wearing make-up) These are called crimes of honor. How does that grab you? See Sidebar.

Not to complicate things, but as a matter of interest you might like to take a peek at what the federales do with sex crimes. One thing of note is the traffic in sex slaves from other countries, e.g., Russia. Check out Peonage, Slavery and Trafficking in Persons  (18 USC Section 1581-1595). Prisoners and kids (the ones who meet the pedophiles after Internet chat) get some protection from the federal Sexual Abuse laws (18 USC Sections 2241-2248). Here's the federal failure to register law: Sex Offender and Crimes Against Children Registry (18 USC Section 2250). And the feds also protect against Sexual Exploitation and Other Abuse of Children (18 USC Sections 2251-2260A). See Then and Now.  

Well, after fourteen weeks of study, we have met the criminal law, and it is us, i.e., you and me, mesdames et messieurs. In conclusion, I'll take a quick gander at a few of those other crimes in the MPC, e.g., Arson (1) - Article 220 (There were 66,065 cases of arson in the US in 2006);  Assault - Article 211 (There were 789,793 cases of aggravated assault in the US in 2006.); Burglary - Article 221 (There were 1,990,468 cases of burglary in the US in 2006.); Kidnapping (Bushrod Thought: Does it make sense to you that heavyset people are harder to kidnap?) and Coercion - Article 212; Robbery - Article 222; Bribery - Article 240. I've noticed that the MPC doesn't have codified laws on terrorism, drug offenses, stalking (1), (2 - 117 pages on stalking and domestic violence), (3), (4), (5 - Cornell), obscenity, gambling, hate & bias crimes, RICO (racketeer or gang activity) (1), environmental crimes (1), cybercrimes, alcoholic beverage regulation, public transportation safety crimes (traffic, DWI (1 - TPC Sec. 49.04), reckless driving etc.), weapons ( 1 - Chapter 46 TPC)  (2 - Texas concealed handgun law that allows private citizens to pack), (3 - Texas handguns in general), (4) among others.     

Enough bilge water for Springwater. Excuse my occasional crudities. No offense meant to anyone. It's been swell, but the swelling's gone down. I just want to end with a question, not an answer. Before I lower the curtain for good, there's something I've been meaning to ask -. May I borrow your notes? BOO YAH!  Your obedient servant, B.S.


Always do right. This will gratify some people, and astonish the rest.
Mark Twain,
To the Young People's Society
Greenpoint Presbyterian Church, Brooklyn

Consummatum est. (It is finished.)

UNIT TWENTY-FOUR - Robbery (TPC) - Extortion - Federal Hobbs Act

Greetings from the French Penal Colony. With another one of those three-and-a-half hour video reviews of criminal law now under my belt, I'm now ready to teach this course. (At least I'm ahead of about 70% of my classroom colleagues who don't show up for any of the prof's extracurricular common law of crimes reviews. Their loss, my gain.) Anyway, this unit will focus on robbery, burglary, and extortion (1 - cop stuff re investigation of burglary and robbery), (2 - robbery and 3 - burglary and 4 - extortion discussed). There are also some comments on federal cases dealing with the Hobbs Act federal extortion (1 - USAM extortion generally;  2 - USAM extortion by force; 3 - summary) and mail and wire fraud.  (Sample mail fraud indictment of a NY politician) As to the federal fraud offenses, the last portion of  Bullets IV does have considerable information about these crimes. In light of the conditions on Wall Street that brought about economic catastrophe beginning in 2008, there is an evident necessity for reengineering the regulation and enforcement of fraud law against the greedy vultures, e.g., those involved in the securitized mortgage market, whose practices precipitated the economic meltdown. From looking at Bullets IV, it's obvious that the prof is interested in white-collar crimes, but I suspect that the exam will center more on traditional  C/L, TPC, and MPC approaches to property crimes.

ROBBERY (From Bad to Worse VIDEO): Al Capone said, "You can get much further in life with a kind word and a gun than you can with a kind word alone." The professor underscored that robbery  (There were 422,375 in the US in 2006.) is a crime that involves two interests, i.e., security of the person and security of property. But to me, the violent crime against the person part is most important. I suppose that is why it existed before larceny. I guess you could think of robbery as a violent property crime. However, in writing the exam, I need to be sure not to say "the house was robbed." That's a big no-no that you still hear in class. Houses are burglarized, people are robbed. Robbery is pretty easy to understand. It's basically a combination of larceny and assault. I understand robbery was a common law crime that was defined as:  the felonious and forcible taking of property from the person of another or in his presence, against his will, by violence or putting in fear. Even though it may seem like robbery gives rise to  three convictions, i.e., for robbery, larceny, and assault, such is not the case. The larceny and assault are lesser included offenses of the robbery and merge into it. So, you could only convict the accused of robbery or of larceny and assault. The C/L definition of robbery appears to be that it's larceny from the person or in the person's immediate presence by force or threat of force. I see the elements of C/L robbery this way: (1) a trespassory taking; (2)  accompanied by asportation; (3) of tangible personal property of value; (4) from the person of another or in his presence; (5) against his will; (6) by use of violent force or by putting him in fear through threat of immediate force; (7) with intent to steal the property (animus furandi). The taking by actual  force or fear from threat of immediate force has to be from the person of the victim or from the area near enough to the victim that the victim could have prevented the taking if it weren't for the use of force or threat of force by the robber.  It's clear that there has to be a taking (completed larceny) for C/L robbery to occur. Otherwise, if the larceny is not completed, the offense would be attempted robbery.  The actual force doesn't have to amount to deadly force or the threat of it.  Fairly mild force will suffice. The actual force needs to be applied to the person and not to the property. Snatching a purse from a shopping cart that V was pushing probably is not enough force to the person to support a robbery charge; tugging over a purse (purse-snatching)might be enough force to the person; grabbing it from off the V's shoulder probably might be enough, but slipping it off might not, see State v. Sein, 590 A.2d 665 (N.J. 1991). Remember you can have larceny/theft from the person without necessarily having a robbery. A good example would be pickpocketing where V never knew the wallet had been taken. Threat of immediate force (rather than actual use of force)  that creates fear in the robbery victim is the other way you commit robbery.  The threat has to be of immediate injury to the person or property of  the person being robbed. (Modern penal codes include threats to third parties, but C/L robbery didn't.)  When threats of future harm are used  to get the property, it's not robbery, but it may be extortion (blackmail). Also, the force or threat has to be the means of getting the property. An assault by the larcenist in the getaway after larceny was committed isn't going to be C/L robbery, though it may be under the TPC, based upon the meaning of "in the course of committing theft" in Chapter 29 TPC. (This may come up on the exam, either in an essay or objective question.)

Robbery is one of those common law specific intent crimes. At C/L, robbery  required a completed larceny as an element. So, a good faith honest claim of right (what seems to be a form of good faith honest, though not necessarily reasonable, mistake of fact as to one's right to have possession of property that he thinks is his) would logically be available to negate the intent to steal and, thus, remove one of the elements of robbery. Some of the stuff I read says that there is no C/L claim of right defense to robbery.  The idea is that it is not good policy to allow violent strong-arm self-help methods to collect debts. UCL says very little about robbery but it does say that the generally accepted rule is that claim of right can be a defense to robbery. We are using UCL as our gold standard for the CL & MPC, so I'll go with that as the general rule. It's logical, particularly when D uses force to reclaim a specific item of property s/he truly believes is hers/his, rather than some set-off such as taking some of V's cash for a debt. It looks like the MPC Section 223.1(3) would allow the claim of right defense in a robbery case, under the theory that D could still be convicted of any violent act such as assault or criminal coercion, just not the property offense (including robbery). The TPC robbery and theft chapters doesn't refer to the claim of right defense re theft or robbery.  Remember, C/L  larceny law indicated that taking property that one actually believes he has a right to take is not an intent to steal. An honest mistake, reasonable or unreasonable, would seem to negate the specific intent to steal. [Note: If I talk about claim of right negating the robbery, I need to remember that there is still probably an assault crime.] Intoxication, typically the voluntary version, and mistake of fact may play into the scenario as potential negating factors, just as they can with the specific intent crimes of larceny and burglary.

It's important to recognize that, unlike C/L, robbery under Chapter 29 of the TPC doesn't require a completed theft. This is based on the TPC definition of "in the course of committing theft" in Sec. 29.01 TPC. UCL doesn't talk about c/l robbery [Note to Myself: I need to be on the lookout for an exam situation involving a theft or attempted theft and a subsequent assault committed by the thief while the thief is fleeing the theft or attempted theft. In Texas, that scenario amounts to robbery.] There's also the question of what constitutes a "deadly weapon" and "serious bodily injury" when you deal with TPC aggravated robbery.  These terms are clearly defined in TPC Sec. 1.07. It'll be important to know those definitions in case the facts raise them.

BURGLARY: (Disastrous liquor store break-in - beware lousy loud rap music VIDEO): Burglary (Defined in TPC Chapter 30)) is a bit like an attempt, in the sense that it is complete with the burglarious entry made with the required specific intent. It doesn't require that the target offense (felony at C/L) be committed. The C/L definition of burglary that restricted it to the dwelling house of another at nighttime really had aspects of a property crime (breaking and entering someone else's house) and a crime against the person. (People are typically in their houses at night, oui?)

On the question of burglary, I did some reading about the niceties of C/L burglary. Here are a few of the interesting tidbits I picked up that may be useful in sorting out exam or bar questions:

  • Common law burglary required breaking and entry. Breaking, by itself, or entering by itself, was not sufficient. The two elements didn't have to occur at the same time, but both had to occur during the nighttime, though not necessarily on the same night. 
  • Common law burglary had to occur at nighttime, because most folks are in their homes at night. However, C/L burglary did not require the occupants of the dwelling to be at home a the time the burglary occurred.
  • As to what constituted a dwelling at C/L for purposes of burglary, the C/L seems to have recognized that the concept of dwelling included buildings within the curtilage that were used by the inhabitant of the dwelling or members of the household . This apparently included rooms that served as an office within a house. The curtilage was considered to be the area immediately surrounding the dwelling that could be fenced.
  • At common law, if two people were co-inhabitants of the same dwelling, neither could burglarize the other because the dwelling house would not meet the requirements of "dwelling of another." The dweller could not burglarize his own house. Note that this is based on occupancy not on ownership. So if D leased his house to V and D then broke into the house occupied by V at night with intent to steal V's valuable painting, it could be burglary.
  • Breaking may be "constructive," as when the opening or entry is accomplished by fraud or trickery, e.g., the burglar posing as a telephone repairman (more likely as a chimney sweep in C/L days) to gain entry.
  • Further opening a partially open door or window to gain entry to the dwelling is a C/L breaking. Opening an inside door is sufficient for  breaking. Breaking out does not qualify as breaking.
  • When an instrument is used only to break into the dwelling, the entry of the instrument into the dwelling is not considered to be an "entry." On the other hand, if the instrument is used to fish the desired property out of the dwelling, this is considered to be an "entry."  Intrusion of any part of the body qualifies as an "entry," whether for purposes of breaking or to accomplish the object offense.
  • Houses that were abandoned were not dwellings. But if the house was occupied it was a dwelling; it didn't matter that the occupants were away on a vacation when the burglary occurred. Occupancy did not require that the occupant be present at the time of the burglary. (You don't have to be Sherlock Holmes to figure that last statement out.)
  • At C/L the burglar had to form the specific intent before he entered the dwelling. Under the TPC it is not necessary that the burglar form the intent to commit a felony, theft, or assault before he enters the building.
There are lots of logical modern changes that have been made to expand the original concept of C/L burglary, e,g., nighttime, dwelling house, breaking, etc. See TPC Ch. 30, MPC Section 221.1. [Statistics re Burglary in USA: There were an estimated 2,179,140 burglaries reported in the US in 2007, compared with 6,568,572 reported cases of larceny/theft; 68% of burglaries were residential; total property loss was $4.3 billion.] 

EXTORTION: The offense of extortion (blackmail) was a natural statutory outgrowth or expansion of the judge-made common law offense of robbery. The two crimes differ, but extortion is a bit like robbery in that coercion or threat (intimidation) is used to get property or to try to get property. Extortion and robbery differ in some ways. For example, extortion doesn't require use of immediate force or threat to use force immediately as robbery does. The taking or appropriation does not have to be from the person of V or in his immediate presence. The extortionate threat can be a threat to do something in the future. [ Note to myself: I'll be thinking extortion if I see an intimidating threat of future violence in a factual scenario.]  Some of the threats that may qualify for extortion don't qualify for robbery. For example, the threat to ruin the victim's reputation by revealing true information in the future might suffice as a threat for purposes of an extortion statute, but certainly wouldn't be a sufficient threat for a C/L robbery prosecution.

My crim law study group (composed of myself and two classmates that I think are smarter than me) talked about how a person might extort money by a threat to release a man-killing biological toxin, such as anthrax, in the future if blackmail (extortion) payments weren't made. The MPC consolidates theft offenses in Section 223.1 but still defines various forms of theft in different sections of Article 223. Theft by extortion is in Section 223.4. Notice that Section 31.02 TPC consolidates extortion into the general theft statute, Section 31.03 TPC, under the concept of "coercion" as defined in Section 1.07 that makes consent ineffective, but the TPC seems to require that the extortionist actually appropriate the property, otherwise the coercive extortionate threat will be treated as an attempted theft under the TPC. It seems that there are two approaches to extortion; the majority of the states treat extortion as occurring when D makes specified threats for the purpose of getting property. A minority of the states also require that D actually appropriate the the property. Texas falls in the minority that also requires misappropriation. [This could be worth remembering for exam purposes.]

What kind of threats (intimidation) suffice for extortion? Obviously, it will depend on the particular state's statute. It would seem like threats to inflict bodily injury or damage or destroy property would qualify. What about threats to vilify V or disclose or reveal truthful but damaging information about V to someone else? What's so wrong about buying silence? Does extortion extend to D threatening V to do something D has an otherwise lawful right to do, unless V gives D  property or some other benefit? [Look at TPC Section 1.07(9) as it relates to Section  31.03; also look at MPC Section 223.4 ]. On the subject of extortionate threats, what about a lawyer who threatens a lawsuit unless V pays? Check out State v. Harrington, 260 A.2d 692 (Vt. 1969), which affirmed the extortion conviction of a very aggressive matrimonial lawyer who threatened to reveal V's adultery and tax evasion, unless V agreed to the divorce sought by D's client and payment of $175,000. I wonder, how far can I properly go in representing my client by threatening certain legal action and consequent revelation of damaging facts unless the other side settles?

What about the benefits that the extortionist seeks?  The TPC in Section 31.03 speaks of "property." The definition of property includes tangible and intangible personal property, documents that represent anything of value, and real property. What if D is seeking from V a kiss or sex or attendance at church or some sort of service? Would any of these be theft of service under Section 31.04 TPC. [When I think of theft of service I think of things like someone skipping out of a hotel without paying or renting a car without intent to pay for it or parking in a lot without putting the $ in the slot, etc.]

Just for comparison purposes, here's the federal Extortion and Threats laws (18 USC Sections 871-880). See Bullets IV for more federal property crime information.

[Here's a question on the issue of extortion: In addition to numerous counts of murder, could the convicted "beltway snipers" (Malvo and Muhammad) have been properly convicted under the federal Hobbs Act for federal extortion that obstructs interstate commerce? They left a letter demanding $10 million near one of the murder sites in Virginia and the police searches for them tied up traffic on the interstate highways. [Note: Both were convicted of murder; Malvo received life, and Muhammad death.] 

Trying to get a jump on getting my summer tan. Time to go put my head in the microwave.  And, hey comrades, never forget that we'll always have the upper hand on the profs if  we can just blankly stare at them with that "Whoa, daddy, let's see you do something to keep me awake or out of this solitaire game" expression on our faces.  

UNIT TWENTY-THREE - Embezzlement - Tangible Personal Property -  Property of Another  See Silver Bullets IV:

I'm sitting here at my computer wondering if Elvis would still be alive if he's eaten more green vegetables and drunk green tea. Damn those dildo doctors who prescribed him all that dope. If they go after Jacko's doctors for manslaughter, why didn't they go after Elvis's(I know I've mentioned the King before, dude, but I'm a big fan. (1), (2), (3), (4), (5), (6)) Back to reality. We are getting close to the end of the semester. The professor has given us copies of previous exam questions and a slug of sample short essay, multiple-choice and T/F practice questions. I'm gonna try to work the long essays in a timed exercise this weekend, so I'll have a plan of attack for the essay question. He says preparation is about 90% of getting a good or better grade. See exam tips. I'm beginning to get into the Law School" song.

Anyway, this session dealt with taking property with intent to repay later, receiving and concealing stolen property, the status of property in which the alleged thief has a possessory interest, civil debt vis a vis criminal taking, and embezzlement. The professor showed a few clips from "Something Wild" to demonstrate various property offenses, theft of service, malicious mischief (destruction of property), burglary, theft, armed robbery, and complicity theory. There's also some stuff on the clips re assault, attempted murder, self-defense, defense of a third party, etc. (I've seen this Jonathan Demme movie before, featuring Melanie Griffith at her sauciest best, before she got elective pouty lips.)

In cases of larceny, on the issue of taking with intent to permanently deprive, the question comes up as to what happens when D takes V's property with intent to pay for it some time shortly after the taking. It looks like this was not C/L larceny if the property taken was offered for sale and what the owner wants is to sell the property for money. So, if I go to the local grocery store and the proprietor is not there and I take a gallon of milk intending to come back later in the day and pay for it, I'm not guilty of larceny. (In this world, I'd better have some mighty strong evidence that I intended to come back and pay for it. Maybe I could show that they know me in the store, that I trade there regularly, and that I leave a signed note saying I took the milk and will be back with the $ later in the day.) I certainly intend to deprive the store owner of his milk, but I don't intend to do it unlawfully in the sense that I intend to compensate him for the value of the milk.  If I have a good faith intent to make prompt payment in the immediate future, I don't intend to steal. The proprietor of the store actually wanted to be deprived of his milk. This gets a lot more dicey if I take some sort of fungible (interchangeable, e.g. cash) property that is not offered for sale but at the time of taking I intend to replace it soon thereafter with other fungible property. For example, suppose I take $5 from the petty cash drawer at work to pay for lunch, intending to replace the $5 when I get paid that afternoon. I intend to quickly replace the cash I took with the equivalent amount of cash, but not the same cash. Obviously, I could put five $1's in the drawer and take out a $5 bill. The only variable is that I am going to replace the $5 a bit later in time after taking it. Of course, the $5 cash I took was not goods held for sale. It looks like there is no clear answer to this one. Some cases hold that this could be larceny, some not. Hmmm. I can see why it could be larceny, because the $5 was not being offered for sale. My employer didn't want to be deprived of the $5. On the other hand, $5 is $5; so, if I intend to return the $5, I certainly don't intend to permanently deprive the owner of the value or use of the $5. It's almost akin to the situation of taking a person's personal property with the intent of using it for a brief period of time and returning it. Taking property where you intend that the owner will get it back isn't C/L larceny.  Another more clear-cut situation occurs when, without the owner's (V) permission,  a person (D) furtively takes a unique item (not fungible property) that is not being offered for sale and leaves compensation for it. Apparently, this would be considered as C/L intent to steal larceny. Again, the owner does not want to part with the unique item. If D takes it, D intends to permanently deprive V of this unique item without his permission, even if I leave compensation, e.g. its value or replacement value.

On this question of intent to permanently deprive, how do you know? In many cases it seems that the trier-of-fact (jury or judge in a bench trial)  will have to determine the mens rea by looking at what the alleged larcenist/thief did and said. It's the loss to the victim that you look at. The thief may intend to use the property, sell it, hide it, destroy it, etc. That's not they key. It's the intent to permanently deprive the owner of the use and benefit of his property that is the focus. [The  FBI crime reports for 2001 says 1.2 million cars were stolen.] On the subject of hackers being send to the nick for stealing computer information, my suggested viewing for you is The Secret History of Hacking.

Receiving and concealing stolen property (1) typically is defined as receiving stolen property knowing that it is stolen. The professor talked quite a bit about the role of the fence or receiver and concealer in the success of the overwhelming number of property crimes. His thesis is that the act of receiving often encourages the commission of thefts by helping to create a ready market for stolen goods. He contends that both the law enforcement authorities and the law itself are geared toward letting fences slip through the cracks while focusing on the actual thief and burglar. He seemed to believe that the thieves and burglars are the tentacles and the fences, though removed from actual commission, are the heart of property crimes of theft and burglary. He argued that if the laws and the people who enforce them really concentrated on convicting receivers and concealers of stolen property, burglaries and thefts would rapidly decline. [He did accede that robberies might go up and that insurance companies that sell us homeowner's property insurance might go belly-up.] People in the class with law-enforcement backgrounds indicated that a lot of stolen property winds up in pawnshops (and so-called salvage, scrap or junk yards) across the nation and also on online auction sites like E-Bay. After all, burglars can use only so many stolen TVs, guns, accessories, and stereos in their own homes. The pawnshop owners (who seem to do a tremendous volume of business in a population where most law-abiding people don't pawn items) have very strong lobbyists in the state legislatures, and the laws that might make pawnbrokers take down information, like thumbprint, photo, Xerox copy of driver's license of people that pawn property, just don't exist. The pawnshop (graveyard) details of police departments are often staffed by old unaggressive cops who are nearing retirement. The professor pointed out that our theft laws should make it easier to convict fences, including renegade pawnbrokers and salvage yard operators, by expanding the mens rea. This could be done by making it easier to presume that the fence had guilty knowledge that the property was stolen. One way would be to make the fence liable for recklessly receiving stolen property and/or possibly even allowing some sort of lesser conviction of those who should have known (gross negligence perhaps) that the property was stolen. He also suggests an administrative remedy, e.g., the law could create a truly independent governmental body that would grant pawnshop (and salvage yard) licenses only to legitimate applicants and that could jerk a pawnshop's license to do business if the pawnshop could be shown to be reckless or negligent in receiving stolen property on a regular basis. Currently, pawnbrokers have such tremendous clout in the legislature that they are allowed to regulate themselves (just as lawyers do).

Receiving stolen property requires that the property be stolen. One collateral issue that sometimes comes up re receiving and concealing is the impossibility question that was discussed re the attempt and conspiracy crime. For example, suppose D receives property believing it to be stolen, but in fact it is not and never was stolen or was once stolen but is now recovered by the authorities. The C/L view was that there could be no attempted receiving and concealing because all you had was a mistaken intent to receive a stolen object that wasn't stolen; the C/L saw nothing wrong in this situation and viewed it as a legal impossibility. Commonwealth v. Henley, 474 A.2d 1115 (PA. 1984) reflects the modern view of many jurisdictions that an attempted receiving and concealing charge would be allowed in this situation. Sec. 223.6 MPC, the MPC crime of receiving stolen property, permits belief that the property was stolen to suffice as the receiver's culpable mental state. The TPC theft law in Sec. 31.03 (b) (3) makes both of the above situations unlawful appropriation in cases of police stings. So, this would actually be substantive theft in Texas, not just attempted theft. Of course, Sec. 31.02 TPC consolidates receiving and concealing into theft.

Embezzlement started off as a statute designed to plug some of the holes left by the C/L definition of larceny (which itself had been extended by the C/L courts, e.g., larceny by servant), particularly in those situations where the possession of property was initially obtained lawfully, e.g. when a servant received property for the master from a third party. The elements that seem to be common to the typical embezzlement statutes include the following: a fraudulent conversion against ownership interest of property of another by one who is already in lawful possession (not just "custody" of the property - no trespassory taking involved). Oftentimes, these embezzlement statutes will also contain an element involving the entrustment of the property and a consequent breach of fiduciary trust by the embezzler. This idea of conversion is something more than the concept of asportation that is required for common law larceny. Conversion seems to require some sort of conduct by the alleged embezzler that substantially interferes with the owner's property rights. The conversion is typically for the benefit of the embezzler, but it doesn't have to be; what I need to look for is a loss of use or enjoyment to the owner, but it doesn't have to involve an intent to totally deprive like C/L larceny. [When I see a D in lawful possession of V's property start treating (converting it to his own use ) it as his own, I'll start thinking about embezzlement.] Breach of faith and trust of people that we know, as opposed to trespassory stealthful larceny by complete strangers, appears to play a part in modern day embezzlement statutes. People like Talbot, the company big-wig who dipped into the corporate treasury, are the quintessential embezzlers; they are often white-collar crooks who appear as people of substance, not as typical hoodlums. [Note: The Sarbanes Oxley Act of  2002, enacted in the wake of Enron and World Com fraud, has a Section (402) that addresses the liability for fraud and criminal conduct centered on loans to directors and officers. It didn't seem to slow down the fat-cat lenders that wrecked the world's economy and precipitated global recession in 2008, e.g, Lehman Bros, goes bankrupt and the CEO walks away with hundreds of millions in stock options and bonuses. Here's the plain vanilla federal theft and embezzlement law (18 USC Sections 641-669)]

This unit provides me with the opportunity to raise the issue of whether larceny (or embezzlement) occurs when a  person with a joint interest in property takes the property for his own exclusive use. This appears to cover things like partners, spouses, and tenants-in-common. I'm thinking about the joint checking and savings account that I have with my trusted longtime California girlfriend. Would she have a defense to a larceny charge by me if, without permission from me, she withdrew the entire balance in those accounts with intent to permanently deprive me of the funds and headed for Little Cayman? The C/L rule said joint owners, e.g., partners, cannot steal jointly owned property and, thus, no larceny (or embezzlement) occurs. (Maybe I'd better put that savings account in my own name.) Sec. 223.0 MPC defines property of another to include "property in which any person other than the actor has an interest which the actor is not privileged to infringe..." Sec. 223.2 MPC seems to allow a conviction for theft of jointly owned property, even if the D has a joint interest in the property, e.g., a partner in partnership property. It looks like Sec. 223.1(4) MPC even allows a theft conviction when one spouse takes household goods from the other spouse in situations where the two are no longer living together. Dressler on p. 603 of UCL 4th says that the Section 223.0(7) MPC definition of "property of another" can include property in which any person other than the actor has an interest; this, he says,  includes a possessory or ownership interest and is broad enough to "make it a crime for a partner to steal partnership funds in which he shares an interest, contrary to the common law rule." Texas seems to follow the C/L rule. See the definition of "Owner" in Sec. 1.07 (35)TPC; however, Sec. 31.10 TPC does say it is no defense to violations under Chapter 31 that the defendant has an interest in the property or service stolen if another person has the right to exclusive possession of the property.     

There is also the problem of trying to sort out the property crime from the non-criminal case of the defaulting debtor. When is non-performance some sort of theft and when is it simply a civil breach of contract. How does the law distinguish between the embezzler who has the property of another and the debtor who has simply failed to pay a debt, e.g., the guy who can't pay his pending credit card bills because he suddenly lost his job. We seem to want to punish people for betraying trust but do not want to imprison people for not paying their debts. Obviously, the guy who is unable to pay a debt because he is insolvent should not have to go to prison just because he is unable to pay his debt. Suppose V entrusts his property to D for sale, with the understanding that D will receive the proceeds, deduct a commission and remit the balance to V, and D collects the proceeds but fails to remit to V. How do we treat the situation from the standpoint of criminal law?  A debt is usually some specific amount of money owed by one person to another. It looks like if there is nothing more than a general obligation to pay a debt using any fungible property, e.g., cash,  one chooses, there is a civil debt only and no property crime. If there is some earmarked property that a person possesses concerning  which he has a specific obligation to treat in a particular manner over and above a general obligation to pay a debt, there may be a possibility that it will suffice as a criminal taking for purposes of larceny or a conversion for purposes of embezzlement. Mere refusal to pay a debt doesn't involve a criminal taking or conversion. An intent to collect a debt is not an intent to steal.

There is a case styled Commonwealth v. Mitchneck, 198 A. 463 (PA. 1938) about a mine owner (D) whose employees authorized him to deduct from their paycheck amounts of money that were supposed to be used to pay their grocery bills at a store. The court in that case said that the fraud conviction of D was invalid because D didn't have money belonging to the miners and that D simply owed them the money. i.e., D was their debtor and they his creditors. The thing that seemed unfair to me was that if the miners had been paid their wages by D and immediately gave D back the money under an agreement that D would use it to pay their  grocery bills, D would have been guilty of fraudulent conversion (embezzlement) when D retained the money. The difference in the two scenarios seems hypertechnical. Another case with problems is State v. Polzin, 85 P2d 1057 (WA 1939) a case about D, the owner of a finance company and a collection agency, who took a note from an elderly lady, V, to consolidate V's debts promising in return to pay off V's debts. D, in his capacity a collection agent, then went to V's creditors telling them that he could collect V's debt to them for 30% of the funds collected. The Washington court reversed D's conviction for petty larceny of V's property on the grounds that D didn't misappropriate any of V's property because V never gave D any property other than her note in which he promised, as her debtor, to make certain payments; the court also said that his scheme to get the 30% juice out of V's creditors didn't cause V to lose anything. V's bills were paid by D, and D did what he promised. Neither of these two defendants was supposed to use the money for their own selfish purposes. They were supposed to be mere channels for the money to reach persons designated by the Vs. These two defendants almost seem to me like fiduciaries that invaded earmarked funds for personal use. Yet, the courts in both cases said the Ds didn't obtain any property from the victim.  The MPC in Section 223.8 seems to make it a crime if one obtains property under an agreement to make a required disposition or payment but then treats the property as his own and fails to make the payment or disposition; this probably won't solve the problem though if the situation is one where D is viewed as not having obtained the victim's property.

Policy question re theft of automobiles: Would it be a good idea for the government to require that every car have a built-in GPS tracking/tracing device (mini-black box) to allow the authorities to locate recently stolen vehicles? This might discourage auto theft. Would it also allow the government to easily track the movement and/or location of legitimate operators of vehicles? Would it also mean that we wouldn't have to pay outrageous insurance premiums for car theft insurance? Would car insurance companies lobby against such legislation? (1 - LoJack)

Mememto mori.

Bushrod Springwater's*
Moses - Criminal Law
Assignments 23-26

*Mr. Springwater is a skeptic. not a cynic.
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copyright © 2001-2017 Ray Moses
Inchoate Crimes; Attempt; Impossibility; Solicitation; Conspiracy; Renunciation; Complicity; Aiding and Abetting; Accomplice; Pinkerton Rule; RICO; Larceny; Theft; Embezzlement
Duress; Necessity; Defense of Self, Third Parties, Habitation & Property; Resisting Arrest; Citizen's Arrest; Entrapment; Outrageous Govt. Conduct
Mens Rea; Culpable Mental State; Intent; Knowledge; Wilful Blindness; Recklessness; Criminal Negligence; Mistake of Fact/Law; Intoxication; Actus Reus; Omission; Void for Vagueness; Principle of Legality; Murder; Felony Murder; Manslaughter; Negligent Homicide; Mental Illness; Incompetency; Infancy
SILVER BULLETS -Assignments 1-8
SILVER BULLETS -Assignments 9-14
SILVER BULLETS -Assignments 9-14
Car sale scam -
larceny, embezzlement, false pretenses?
Dave Letterman extortion case (1)
C/L Robbery? No
Valid Self-Defense?