Criminal Law CJ 220

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Criminal Law CJ 220

• Chapter 13 Crimes Against the State
• Andrew Fulkerson, JD, PhD
• Southeast Missouri State University

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Crimes Against the State

• USA Patriot Act
• Uniting and
• Strengthening
• America by
• Providing
• Appropriate
• Tools
• Required to
• Intercept and
• Obstruct
• Terrorism

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USA Patriot Act

• Designed to respond to serious threat to national
  safety and security
• Does it violate Constitution?
• Constitution also designed to respond to serious
  threats to national safety and security

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Treason

• Only crime defined in Constitution
• Article III, Section 3 defines treason
• Levying war against the US or
• Giving aid and comfort to enemies of US
• Conviction requires testimony of 2 witnesses to
  same overt act, or confession of ?
• U.S. Code provides for death penalty or not less
  than 5 years prison

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Treason - Historical Context

• Founders of US were wary of treason laws
• They had all committed treason against Britain
• Distrusted government laws designed to inhibit
  protest
• But knew the government needed some law against
  treason
• Knew many citizens still loyal to Britain
• Britain had huge colony to north - Canada - and
  they still mad over the Revolution
• Spain had large colony in Mississippi Valley
• France recently had presence in Ohio Valley

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Constitutional limits on crime of treason

• Designated as crime in Constitution - the only
  Constitutional offense
• Means that it very hard to change - only by
  amendment
• Congress cannot create any new types of treason

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Treason - Elements

• Actus reus -
• giving aid and comfort to enemy or
• waging war against US
• Mens rea -
• intentional acts with purpose of betraying US
• Requires two witnesses to same overt act

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Treason law since adoption of Constitution

• Very few prosecutions
• The few convictions usually receive some
  presidential clemency
• Pardon
• Commutation of death sentence
• Exception was the Julius and Ethel Rosenberg case
  (Eisenhower refused to intercede)

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Cramer v. U. S., (1945)

• Cramer accused of conspiring with Nazi spies and
  sabateurs
• Only evidence is he was seen eating, drinking and
  talking with two men who were known Nazi agents
• Supreme Court reversed conviction on basis of
  insufficient evidence. There was no evidence as
  to what was discussed by the three at this
  dinner.

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Sedition

• Defined advocating violent overthrow of
  government
• Speeches-seditious speech
• Writings-seditious libel
• Agreement-seditious conspiracy

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Sedition Act of 1798

• Passed in environment of French Revolution and
  feared war with France
• Was very broad -
• made it unlawful to combine or conspire to oppose
  measure of government
• or to impede operation of government
• or to intimidate a public official
• or to write or publish anything which would
  excite hatred against government

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Sedition

• Current US Criminal Code limits seditious
  conspiracy to advocating violence

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Smith Act of 1940

• Crime to conspire to teach or advocate overthrow
  of govt
• Crime to be a member of a group that advocates
  violent overthrow of govt
• Target was US Communist Party

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Dennis v. U.S., 341 U.S. 494 (1951)

• Dennis et al convicted of violation of Section 3
  of Smith Act (18 USC 2385) for conspiring to
  organize the Communist Party of the US and for
  teaching and advocating violent overthrow of US
  government.
• Dissent - no more than political speech protected
  by 1st Amendment

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Sabotage

• Damaging or destroying property
• Purpose of interfering with preparations for war
  and defense

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Sabotage Actus Reus

• Destroy
• Damage
• Obstruct
• Interfere with
• Contaminate
• Produce defective war material

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Sabotage Mens Rea

• Purposely obstruct
• Knowingly, or
• Negligently

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Sabotage Circumstance Elements

• At war
• During national emergency

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Espionage (spying)

• U.S. Code has separate provision for espionage
• During war
• During peace

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Espionage - Penalty

• Any term up to life
• Death if a person died as result of the espionage

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Criminal Law CJ 220

• Chapter 13 Crimes Against the State
• Andrew Fulkerson, JD, PhD
• Southeast Missouri State University

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Anti-Terrorism Crimes

• General offenses
• Treason
• Sedition
• Sabotage
• Espionage
• Murder
• Attempted murder

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Anti-Terrorism Crimes

• Specific anti-terrorism offenses
• Anti-Terrorism and Effective Death Penalty Act
  (AEDPA) 1996
• USA Patriot Act (2001)

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Terrorism - definitions

• International terrorism - violent acts or acts
  dangerous to human life
• Committed outside the US
• Would be crimes if committed in US
• Committed with intent, or appear to be committed
  with intent,
• To intimidate or coerce civilian population
• To influence policy of govt by intimidation or
  coercion
• To affect conduct of govt by mass destruction,
  assassination, or kidnapping

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Domestic terrorism

• Same as international, but committed inside US

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Use of weapons of mass destruction

• Felony to threaten to use or to use, or conspire
  to use
• A weapon of mass destruction
• against a US citizen outside the US, or
• any person inside the US, or
• any property inside or outside the US

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Weapons of mass destruction defined

• Explosive,
• Incendiary, or poison gas
• Bomb Grenade
• Rocket with a propellant charge over 4 ounces
• Missile w/ explosive or incendiary charge over
  1/4 oz

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Weapons of mass destruction defined

• Device similar to those listed in 18 USC 921
• Weapon intended to cause death or serious bodily
  injury by poisonous chemicals or their precursors
• Weapon with a disease mechanism
• Weapon designed to release radiation level
  dangerous to humans

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Acts of Terrorism That Transcends National
Boundaries 18 USC 2332 b (felony)

• Kill, maim, kidnap, assault causing serious
  injury, or assault with a deadly weapon, any
  person within the US or
• Create a substantial risk of serious bodily
  injury by damaging any structure, conveyance or
  other property in US or
• Threaten, or attempt, or conspire to commit the
  above, if
• Victim is the US govt or any member of military,
  or member of a branch of US govt, or any govt
  agency
• Property is owned or leased by US

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Harboring or Concealing Terrorists

• Anyone who harbors or conceals any person who he
  knows or has reasonable grounds to believe has
  committed offenses under certain sections of
  Code
• Destruction of aircraft or facilities
• Relating to biological weapons
• Relating to chemical weapons
• Relating to nuclear weapons
• Arson or bombing govt property or risking or
  causing injury
• Destruction of energy facility
• Violence against maritime navigation
• Weapons of mass destruction
• Terrorism transcending national boundaries
• Sabotage of nuclear facilities or fuel
• Aircraft piracy

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Providing "Material Support" to Terrorists -
Terrorist Organizations

• Mens rea - knowing or intending that the support
  be to terrorist acts or organizations

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Providing "Material Support" to Terrorists -
Terrorist Organizations

• "Material support or resources" means money,
  instruments of financial securities, financial
  services, lodging, training, advice, safehouses,
  false documentation, equipment, weapons,
  transportation, other physical assets.
• Does not include medicine or religious materials.

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Providing "Material Support" to Terrorists -
Terrorist Organizations

• Legal challenges
• Void for vagueness
• Violation of 1st Amendment rights of speech and
  association

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U.S. v. Lindh, 212 F.Supp. 2d 541 (E.D.Virginia,
2002)

• Lindh the American Taliban
• Trained by terrorist group
• Volunteered to fight for Taliban
• No Americans present when he joined
• But remained after 9-11 and after Americans were
  in Afghanistan
• Captured by Northern Alliance troops
• Charged with supplying services to Taliban and
  carrying weapon during a felony
• Pleaded guilty - sentenced 2 consecutive 10 year
  terms

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Humanitarian Law Project v. Gonzales, 205 F.
Supp. 2d 1130 (C.D.Cal. 2005)