CRIMINAL LAW - NYU School of Law

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    Jacobs Fall 2005


    a. Culpability and Elements of the Offense

    i. 3 major principles: culpability, proportionality, and legality ii. MPC 2.02(2) culpability (in descending order)

    1. (a) purposely conscious object

    2. (b) knowingly aware that it is practically certain that this

    conduct will cause such a result

    a. (7) knowledge = awareness of high probability

    3. (c) recklessly consciously disregards a substantial and

    unjustifiable risk makes allowance for “conduct and

    circumstances known to him”

    4. (d) negligently aware of substantial and un-justifiable risk,

    gross deviation from standard of care that reasonable person

    would observe makes same allowance for “circumstances”

    a. Reasonableness a defense to negligence

    iii. MPC 2.02(4) if no mens rea specified: purposely, knowingly, or

    recklessly ; recklessness is default level

    iv. MPC 1.13(10) and 2.02(1) culpability must be proved for every

    material element of offense ; also can‟t impute mens rea from one act

    to another must be proved separately for each crime committed v. MPC 2.04 ignorance or mistake as to matter of fact or law is a

    defense if it negatives the purpose, knowledge, belief, recklessness, or

    negligence required to establish a material element of the offense

    1. Ex: MPC 213.6 Mistake of Age

    a. negligence standard, reasonable mistake is a defense

    b. unless child < age 10 ; strict liability standard

    b. Mens Rea vs. Actus Reus

    i. No culpability w /o blameworthiness

    ii. Mens rea, scienter, specific intent all mean “guilty mind” – but not

    equivalent to wickedness, just foresight of the crime iii. No crime unless there is intent + act

    iv. MPC 2.01 person not guilty of an act unless performed voluntarily

    unconscious, sleep movement, seizure, hypnosis, etc. don‟t count

    v. MPC 2.02 exceptions to mens rea requirement defined by violations

    included in 2.05

    c. Strict Liability

    i. For new kinds of crimes created in public welfare statutes, if Congress

    is silent on mens rea requirement, strict liability can be inferred

    1. person acting reasonably w/ no mens rea still liable

    2. Rationale? Statutes for stuff that‟s unimportant or important?

    Automatic conviction b/c things are over the radar or under it? ii. Public welfare often can‟t trump constitutional rights

    1. Allowing for strict liability prosecution when it comes to first

    amendment associational rights is so vague as to be

    unconstitutional (AL-ARIAN)

    2. Violates substantive due process to impose crim liability

    vicariously to an employer (GUMINGA)

    iii. Violation something b/w criminal and civil liability

    1. administrative violation that doesn‟t carry same penalty/stigma

    but comes under strict liability and govt. can prosecute it

    2. MPC 2.05 default is strict liability only OK for violations iv. Policy

    1. Arguments for strict liability

    a. Protect social interests ; high standard of care

    b. Administrative efficiency

    2. Arguments against strict liability

    a. Violates fundamental principal of penal liability: guilty


    b. No evidence that standard of care increases

    3. Canada middle ground b/w 2 extreme alternatives?

    a. 3 levels of knowledge (level 2 is new)

    i. Offenses in which mens rea must be proved by


    ii. No necessity for prosecution to prove mens rea

    b/c prima facie case for offense, but accused can

    avoid liability by proving reasonable care

    iii. Absolute liability imported no chance for

    accused to exculpate himself

    b. Eventually ruled strict liability was unconst.

    4. Take home lesson of strict liability and vicarious liability

    statutes? If you‟re not part of the solution, you‟re part of the

    problem? Is that fair? Consistent w/ our societal values of

    what criminal law should be?

    d. Mistake of Law, Ignorance of Law, Cultural Defense

    i. General common law no mistake of law defense act at your own peril

    ii. Mistake of law vs. mistake of fact? When does mistake of law become a factual element of offense? (REGINA v. SMITH)

    iii. MPC 2.02(9) vs. MPC 2.04(1) mistake or ignorance regarding the

    specific law that‟s convicting you under 2.02(9) is not a defense –

    mistake regarding some other law that creates a material element of the law that‟s convicting you can be a defense just like mistake of fact

    iv. MPC 2.04

    1. mistake of fact need not be reasonable, only honest ; submit to

    jury (if it‟s really crazy, then NGBRI?)

    2. (3) exception MPC 2.04(3) mistake of law only a defense if

    based on an accurate official statement of law that was later

    found to be erroneous (BAKER v. MARTINEZ)

    3. (1) defense ignorance or mistake of fact or law is defense if it

    negatives the purpose, belief, recklessness or negligence

    required to establish a material element

    a. ex: since plenty of innocent structuring goes on every

    day, D must know that the structuring he was doing was

    illegal in order to convict him of willfully violating the

    statute knowledge an element of offense (RATZLAF) v. No ex post facto conviction can‟t convict for committing act before it

    was declared unlawful (no judicial entrapment!)

    vi. Following advice of counsel not a defense (HOPKINS)

    e. Legality, Negligence as a Criminal Law Standard

    i. Legality = dividing line b/w guilt and innocence

    1. put people on notice of criminal offenses!

    ii. Cts can declare novel offenses illegal w/o statutory or common law

    basis, juries can be trusted to maintain values as long as they offend

    public morals (SHAW England)

    1. Problems: cts can‟t legislate, no ex post facto, juries can‟t be

    trusted, not an authoritarian system

    iii. Legality of crimes prohibiting animal offenses? Domesticated animal

    statutes designed to protect people? Or their emotions isn‟t that the

    realm of torts?

    iv. Is criminal negligence even a good idea? Should we leave negligence

    liability to torts?

    v. Ct say culpability of offense is for legislature to decide, and judicial

    enlargement abridges due process b/c people not on notice (; fetus

    not a statutory human being in KEELER)

    1. But judicial interpretation? What‟s legislative intent anyway,

    when law was passed 150 yrs ago?

    vi. Loitering statute or an anti-gang statute constitutional?

    1. No adequate notice about legality, unfettered discretionary

    authority to police, potential for discriminatory enforcement


    a. MPC 2 grades of intentional killing, 1 grade of negligent homicide i. 210.1 2 Murder

    1. (a) Purposely OR knowingly, (b) recklessly w/ extreme

    indifference to value of human life

    ii. 210.3 Manslaughter

    1. (a) Recklessly (b) would otherwise be murder, but mental or

    emotional disturbance w/ reasonable excuse for the

    disturbance ; jury question (more robust distinction)

    iii. 210.4 Negligent Homicide (self-explanatory)

    iv. Everyone is guilty gradations of guilt ; sentencing

    b. Many states have several degrees of murder and manslaughter

    i. overlap in sentencing! diff crimes ; same sentence, or same crime ;

    diff sentence. WHY even worry about sentencing?

    1. should we just give judges sentencing discretion?

    c. Time element impulse vs. premeditated? Tortured conscience? i. Which is more dangerous? Distinction even workable? ii. If killing intentional, elapsed time b/w impulse and actual act

    immaterial (CARROLL)

    iii. Appreciable amount of time must elapse! If spontaneously, not

    premeditated (GUTHRIE)

    d. Premeditation why isolated as the only salient factor b/w 2 categories of murder?! What does it even mean?!

    i. Many factors could make us want to be more lenient w/ criminals

    history, family situation, mental state, etc.

    ii. MPC doesn‟t use pre-meditation prob b/c very difficult line to police

    e. Provocation (not in MPC)

    i. Is it a subset of mental or emotional disturbance (outlined in MPC‟s

    manslaughter statute)? Mitigates murder?

    ii. State statutes pick provocative circumstances why these, of all the

    ones in existence? Arbitrary, selective, biased?

    1. spousal adultery provision presents serious problems

    2. Policy do they resonate w/ public the way crim law must? iii. Slippery slope loophole ; black hole?

    1. hence, MPC = subjective + objective test for “extreme

    emotional disturbance” – consider person‟s own mind, as well rdas 3 party reasonableness test (; jury question)

    a. is this ever a matter of law? Should subjective/ objective

    inquiry always go to jury? Probably

    f. Legislative Grading of Unintended Killings

    i. How do you prove recklessness for manslaughter conviction?

    1. Defense will say it‟s subjective, can‟t prove D knew of

    substantial risk and consciously disregarded it

    2. Prosecution will say any reasonable person in his position

    would‟ve known

    a. But should have known = negligence!

    3. Cts have said all that is necessary is intentional *conduct,* not

    intention of harm ; strict liability?!

    ii. Omission vs. Commission troubling that people can get

    manslaughter conviction for NOT doing something?

    iii. MPC 2.01 Voluntary Acts and Omissions

    1. (1) only held liable for voluntary omission of act

    2. and (3) ONLY IF omission is defined as illegal by statute or

    duty that was omitted is specified by statute

    iv. MPC 2.03 Causal Relationship

    1. (2) when purposely or knowingly causing a result is an

    element of the offense, not established if actual result isn‟t w/

    in purpose or contemplation of actor

    a. (a) unless actual result differs only in that diff person or

    property injured

    b. (b) unless actual result involves same kind of harm and

    is not too remote or accidental

    v. When does “duty” arise? At what point does negligence liability attach?

    Where to draw the line? Slippery slope?

    vi. What is recklessness? Extreme recklessness

    1. one ct said malice aforethought exists if reckless and wanton

    conduct ; actor aware of serious risk no need for particular

    ill will toward specific victim (FLEMING)

    2. Can intoxicated people be reckless? Should DWI be attempted

    murder? What if no one actually killed? Would this serve

    deterrence? Why do we distinguish b/w lucky drunk driver and

    unlucky one?

    vii. 3 routes to murder in American jurisprudence

    1. Willful, deliberate, premeditated

    2. Extreme recklessness

    3. Felony murder

    g. The Felony-Murder Doctrine

    i. Rationale: committing certain felonies (that may result in death)

    implies same extreme indifference to value of human life that is

    required for murder conviction ; murder charge can attach

    1. MPC = weakened version of f-m limitations are:

    a. MPC 210.2 rationale above is “presumed”

    b. MPC 1.12(5) presumption is rebuttable and must be

    submitted to jury based on facts

    c. MPC 210.2 inherently dangerous

    d. MPC 2.03 “but for” causation, foreseeability

    ii. Inherently dangerous feloniesthat qualify: robbery, rape, arson,

    burglary, kidnapping, felonious escape otherwise, felonies don‟t

    result in f-m b/c not dangerous enough (an effort to circumscribe f-m) iii. Causation: “but for” sufficient or insufficient to convict?

    1. MPC 2.03 is f-m doctrine an exception to this?

    iv. Merger doctrine (circumscribes f-m from the other direction)

    1. Some felonies so homicide-related they can‟t be separated,

    felony merges into murder ; only charged for felony (SMITH)

    a. Ex: assault must merge it, or any assault could result

    in f-m conviction w/o proving required intent to murder

    2. But then some lesser felonies (omission instead of commission)

    can result in murder conviction (SHOCKLEY)

    3. Why bootstrap using f-m? Why not just try to prove murder or

    manslaughter, instead of proving felony and getting f-m?

    4. some cts prefer case-by-case approach to call some felonies

    “inherently dangerous” and convict for f-m, but don‟t elevate all

    felonies to f-m doctrine (HANSEN)

    v. Killings not in furtherance of the felony

    1. diff. theories of liability

    a. agency theory people can‟t be held responsible for

    actions of others who aren‟t their coconspirators

    b. proximate cause theory can be held responsible for all

    deaths that are the proximate cause of your actions

    2. Causation?

    a. MPC 2.03 very intercranial (once you prove “but for”

    causation, have to get inside criminal‟s head to prove he

    was aware or should‟ve been aware of risk)


    a. How we attach liability to crimes that don‟t occur successfully

    i. 2 kinds of attempt: completed failed attempt, inchoate (incomplete)

    b. Meaning of mens rea here? D‟s attempt is ineffective b/c of some factor unknown to him? (as in SMALLWOOD or WEEKS)

    c. Relationship of attempt to death? What test? Proximate cause? Death would be a natural and probable result?

    d. Attempt necessarily implies intent so how can there be attempt for a crime predicated on recklessness?

    i. Does result matter? Back to drunk driving as attempted murder?

    e. SMALLWOOD HIV case and differing state statutes

    i. LA “no person shall intentionally expose another” – intentionally vs.

    knowingly? Exposure?

    ii. MO “deliberately create a grave and unjustifiable risk” of spreading

    it less certain terms, harder to convict?

    iii. IL knowingly transmit the virus to another transmit vs. expose!

    f. Consent is this a defense to attempt? Doesn‟t work for strict liability crime

    (like statutory rape) what about for HIV (or any disease!) transmission

    i. Would eliminate he said/she said, make it easier to police g. MPC 5.01 Criminal Attempt

    i. (a) “conduct which would be constitute crime if attendant

    circumstances were as he believed them to be”

    ii. (b) “does or omits anything w/ the purpose of causing or w/ belief

    that it will cause such result (element of crime) w/o further conduct”

    iii. (c) “purposely does or omits anything… act or omission constituting

    a substantial step in a course of conduct”

    1. substantial step also applies to inchoate attempt

    iv. MPC unusual b/c focuses on intent, not result also, focuses on what‟s

    already been done, not what‟s left to be done

    h. Locus potentiae point at which actor can decide to commit crime or not,

    beyond it, actor enters zone of criminality (RIZZO)

    i. MPC 5.01(4) Renunciation of criminal purpose (narrow formulation) i. Dangerous proximity test and equivocality test if not criminal act on the

    face of it, can‟t convict! Danger of criminalizing conduct too far in advance

    before it results in completed crime (McQUIRTER)

    i. Policy questions of how early to intervene


    a. Modern law blurs distinctions in charges of group criminality, gradations

    come in sentencing

    b. Intention is key can‟t be charged for accidentally helping, can‟t be charged

    w/ wanting crime to happen must intend to aid in furtherance of the crime

    i. If present at scene, but not for purpose of aiding, not guilty (HICKS) c. MPC 2.06 Complicity

    i. (4) diff standard for result crime (ex: homicide)? d. Setting someone up? Can D be convicted as accomplice b/c he had intent to

    aid, even if no intent for crime to be successful? (WILSON)

    i. What about declaring another person‟s likelihood of committing a

    crime? Even if no communication b/w those 2 people? Dangerous

    precedent to charge informer as accomplice? (GLADSTONE)

    1. “Criminal Facilitation” statute (NY) – makes it a crime to aid

    w/o knowledge or intent to do so, lesser penalty e. Under what circumstances does aider become liable?

    i. Landlord who rents to criminals, deli owner who sells food to

    criminals do they have to know the people they serve are criminals?

    ii. Degree of crime for lesser offense, purpose required; for major

    offense (i.e. murder), only knowledge required (FOUNTAIN)

    iii. Set things in motion aiding and abetting in one crime ; liable for

    whatever resulting crime was reasonably foreseeable (LUPARELLO) f. Accomplice to negligence? Is it possible to act deliberately and negligently?

    MPC 2.02 higher culpability subsumes lower levels ; if prove intent ; can

convict of manslaughter and negligent homicide (McVAY)

    g. Doctrines of responsibility? If not intent, “could‟ve conceivably happened” or “could‟ve reasonably ensued?” Latter is better? (ROY)

    h. Adversaries can be convicted as accomplices if all showed reckless disregard for human life in same endeavor (gun battle and zone of danger) easier than

    convicting as principals if can‟t prove causation b/c several people (RUSSEL)

    i. MPC 2.03 “but for” causation might be successful

    i. Danger of di minimis involvement implicating one as accomplice, esp. if crime technically already perpetrated slippery slope (WILCOX v. JEFFREY)

    j. When does legal duty attach? Can D be prosecuted as an accomplice to a crime of omission if s/he would be guilty as a principal? (STANCIEL, DAVIS)

    k. Must principal be guilty in order to convict accomplice (in MPC, no)? What if principal is protected by public officer defense? Depends on whether defense is one of justification or excuse? Is entrapment relevant? (VADEN)

    l. Parallels to Money Laundering many people convicted as accomplices in

    drug crimes even when not involved in drugs and had no intent to aid

    i. Expansion of war on drugs, going after everyone who sells good or

    services to drug dealers (CAMPELL)

    ii. Coercing good behavior instead of deterring bad behavior forcing

    people to judge others based on looks of potential criminality? iii. Post-Ratzlaf law: ignorance of anti-smurfing statutes no excuse

    m. Corporate Criminal Liability

    i. Punish corp.? Are we really punishing innocent shareholders? Can

    corp. as an entity be deterred? Corp. capital punishment? Convict

    corp. officials, use civil law to deal w/ corp. itself?

    ii. Policy: disadvantages overdeterrence, serious stigma, departure

    from crim law principles, divert attention from guilty corp. actors? iii. Respondeat Superior basic fed crim law test ? strict liability

    1. (1) agent of corp., (2) acting in scope of his employment (for

    benefit of corp.) ; construed as an action of the corp. [(3)

    implied that done for the benefit of the corp.]

    iv. Even if corp. tries to police its agents, can be held responsible (HILTON)

    v. Even if corp. agent doing something that victimizes corp., jury entitled to

    think that corrupt agent was doing it w/ intention of benefiting corp.

    corp. only absolved if can prove that corrupt agent had motive

    completely unrelated to corp. (SUN DIAMOND GROWERS)

    vi. MPC 2.07 Liability of Corporations

    1. (1)(a) corp. can be convicted if agent acting in behalf of corp. w/in

    scope of his employment and legislative intent to impute liability

    a. Limitation (1)(a) just a violation unless otherwise

    designated by legislature

    2. (1)(b) can be offense if omission to do specific duty of corp. OR

    (1)(c) can be offense if authorized by high managerial agent

    3. (2) no strict liability unless legislature‟s intent to impose it is clear

    4. (5) affirmative defense if can show due diligence to prevent

    crimes (fed law says 90% sentence reduction for this)

    a. New idea in crim law! But really deterrence or just façade

    of compliance depts. to prevent prosecution?

    5. (3) unincorp. ass‟ns can also be prosecuted – and Arthur

    Anderson is a partnership that was prosecuted by Dept. of Justice vii. Status as corp. officer insufficient w/o (c)omission but negligence

    w/o due diligence or powerlessness defense convictable (PARK)


    a. 3 kind of inchoate crimes: attempt, conspiracy, solicitation

    i. Conspiracy is prior to attempt, easier to prove, widens net of criminal

    liability b/c only requires “overt act,” not “substantial step”

    ii. Easier than accomplice liability b/c it doesn‟t require having an

    attempt and then proving intent to assist in the attempt ; can pull in

    minor actors, increase sentences on minor crimes

    iii. Why special rule for group crime? B/c more likely to succeed? iv. Prosecutors love it : meta-crime (can be thrown in w/ any other crime)

    and very hard to defend against

    v. Conspiracy (but not attempt) survives after offense is committed (b/c

    offense = agreement)

    vi. Punish for conspiracy and intended crime?

    1. Fed and most state law yes, MPC 1.07(b) no

    vii. NOTE: can charge instigator w/ solicitation, charge all who agree w/

    conspiracy, charge all w/ attempt if substantial step, charge all w/

    accomplice liability, & charge w/ completed crime can‟t convict of all

    b. Criminalize membership in org? Previously, yes under fed law (e.g. Communist Party). Eventual S. Ct. const. standard can be punished for

    membership only if member knowingly affiliates himself w/ org w/ illegal goals, and if he or she specifically intends to further those goals (AL-ARIAN)

    c. Pinkerton liability any conspirator is guilty of any crime committed by any co-conspirator in furtherance of conspiracy

    i. MPC 2.06 rejects this only accomplice liability transfers guilt

    d. Conspiracy has narrow exception to hearsay rule but can‟t use statement if

    post-crime, unsworn, not in furtherance of objective (KRULEWITCH)

    i. Criticisms of conspiracy doctrine (Justice Jackson)

    1. vague and chameleon-like

    2. mental in composition, not based on action (actus reus)

    3. aggravates degree of crime over that of single offender

    4. criminalizes some acts that are legal if single actor

    5. inculpates fringe offenders, uses them as pawns

    6. multiple venue options ; burdensome & inconvenient

    7. party joinder ; ridiculous, unmanageable trials

    8. exceptions to stat of lim

    9. provides hearsay exception (; blame shifting statements)

    10. bootstrapping ; circularity! Can‟t admit hearsay unless you

    know it‟s conspiracy, but how do you prove conspiracy until you

    admit hearsay and then get a verdict based on the hearsay?

    e. MPC 5.03 Criminal Conspiracy (ameliorate Jackson‟s criticisms?)

    i. (1) actus reus = agreement, mens rea = purpose of promoting crime

    ii. (2) only accomplice liability (not near as strong as Pinkerton liability) iii. (3) many crimes part of same conspiracy (if only one agreement) iv. (4) cures some joinder/venue madness can join trials if conspiracies

    related enough and common evidence (; tailor each D‟s charges)

    v. (5) over act required for lesser offenses, but not serious crimes vi. (6) renunciation of criminal purpose affirmative defense

    1. higher standard than abandonment of attempt

    vii. (7) duration over after crime or abandonment of scheme

    1. not a defense fixes stat of lim problem

    f. No proof of knowledge of agreement required, circumstantial inference sufficient disturbing expansion! (INTERSTATE CIR., ALVAREZ)

    g. Knowledge w/o overt act equals guilt? (COWBOY SHRIMP)

    h. Spokes on wheel ; people w/ no cnxn indicted together (KOTTIAKIS)

    i. Knowledge not sufficient must also prove (1) circumstantial evidence of stake in venture (2) no legitimate use for goods or services and (3) unusual volume of business (LAURIA) ; not conspirator? But accomplice?

    i. Line b/w neutral purveyor of goods and aider/abettor?

    VI. RICO tha. History developed heavily in early 20 century, gained massive power and

    foothold throughout prohibition, legislature began increasingly aware and concerned, held many hearings over several decades

    i. 1957 Apalachin Conf = American public first became aware of mob

    ii. 1968 Title III wiretap statute (easy to get warrant and bug) = single

    most important tool in the war against organized crime iii. 1970 Witness Protection Program

    iv. 1972 J. Edgar Hoover died, FBI transformed from anti-subversive

    into nat‟l police force, made organized crime a top priority

    v. 1970 RICO passed, system didn‟t shift to RICO until „80s

    1. tidal wave of criminal and civil litigation ; mob figures actually

    had to face possibility of life in prison, Italian business became

    successful so harder to recruit into mob, massive defections b/c

    witnesses would be protected

    b. Statute relies heavily on Congress‟ commerce power

    i. ? 1961 definitions

    1. (1) includes whole host of activities, fed crimes and state crimes

    2. (4) “enterprise” – individual, partnership, corp., association, or

    other legal entity, and any union or group associated in fact

    “individual” as enterprise = Hawkins in ELLIOT case

    3. (5) “pattern of racketeering activity” = 2 acts w/in 10 yrs of e/o

     don‟t even have to be related!

    ii. ? 1962 prohibited activities (= use of racketeering money unlawful)

    1. (a) “use or invest” – can‟t use racketeering money to buy their

    way into lawful enterprises or investments

    2. (b) “to acquire or maintain any interest” – mafia can‟t muscle

    their way into businesses or enterprises through racketeering

    activity (extortion, fraud, threat of force)

    3. (c) “any person employed or associated w/ any enterprise… to

    conduct enterprise‟s affairs through racketeering” – people who

    run legitimate enterprises using racketeering activity are also in

    violation (the real workhorse in criminal RICO violations)

    a. Tends to collapse enterprise, individual criminal, and

    pattern into 1 problematic? Must distinguish b/w an

    enterprise and D can only indict an individual D

    4. (d) “unlawful to conspire to violate” a, b, or c – extra conspiracy


    a. Is every violation of (c) by more than one person a

    violation of (d)? Yes even if not completed!

    b. Hardly ever used for inchoate crimes usually for

    active criminals who already committed crimes iii. ? 1963 criminal penalties = prison (20 yrs life), fine, forfeiture

    1. revived idea of mandatory forfeiture of property

    2. can be sentenced on each substantive act (?? 1961-62),

    membership in enterprise, and conspiracy

    3. Pinkerton liability added ; accomplice liability for all acts

    4. can be convicted of predicate crimes in state/fed ct

    simultaneously w/ RICO convictions ; prejudicial? Not

    double jeopardy b/c RICO is an additional offense

    5. Civ and crim RICO can be brought one after the other

    c. Cases

    i. US v. ELLIOTT (1978, p.735) post-RICO, several conspiracies can all

    be tried together dispensed w/ Kottiakos “wheel” analogy and

    Blumenthal “chain” analogy, replaced w/ “enterprise”

    1. RICO traps those peripherally involved, but each charged only

    w/ own substantive crimes and w/ participation in enterprise

    2. this case an exception b/c Elliott himself got off! ii. TURKETTE (1981, p.732) S. Ct. held that “enterprise” for RICO

    purposes can be an exclusively criminal org “enterprise” must have

    continuity and structure, is diff from pattern of activity itself pattern

    can be “one scheme,” doesn‟t require traditional organized crime

    1. should this case have been decided the other way? Is Scalia‟s

    criticism of ct‟s definition of enterprise or pattern fair?

    2. the turning point not just about mobsters affecting the

    economy, it becomes a crime to be a criminal, and you‟re

    prosecute for being prosecutable

    3. w/ a little creativity, anything can be enterprise + pattern

    a. any state crime becomes fed crime ; harsher penalties

    d. ? 1964 civil remedies

    i. Can sue in any district ct, can recover treble damages ii. Real workhorse of commercial litigations

    1. does that mean corp. can sue e/o for treble damages most

    likely, since cts won‟t ever say RICO only applies to crim orgs

    iii. Only one body of law for crim and civil RICO so civil decisions used

    as authority in crim cases is this OK?

    iv. (a) dist cts can issue injunctions ; can reform labor unions

    e. Effects of RICO

    i. Usually, evidence of past crimes not allowed ; under RICO, you not

    only can present it, but you HAVE to in order to establish “pattern”

    ii. Can be convicted of conspiracy and predicate crime iii. Expansion of conspiracy law

    1. ? 1962(c) lets you join many D‟s in one trial just for being in

    same enterprise, even if not involved in same conspiratorial

    endeavor AND then use Pinkerton liability against them ;

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