CRIMINAL LAW Copyright July 1999 State Bar of California

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1 CRIMINAL LAW Copyright July 1999 State Bar of California Al, Bob and Charlie planned to bring 50 cases of whiskey ashore from a ship anchored in the harbor near their town and sell it to a local bar owner. They believed the whiskey had been produced abroad and was subject to a federal import duty. They also knew that smuggling items into this country without paying duty required by the Tariff Act is a crime. In fact, however, the whiskey in this shipment had been produced in the United States. The three met at Al s house on Monday and agreed to bring the whiskey ashore by rowboat on Friday night. On Wednesday, however, Bob called Al to say that he and his wife were going to visit relatives that weekend and Bob would not be able to help bring the whiskey ashore. Al said that was all right, that he and Charlie could handle the boat and the whiskey, but that Bob would naturally be cut out of the profits on this job. When Charlie learned from Al that there would be just the two of them he became apprehensive, but he was afraid of what Al might do to him if he tried to back out. Therefore, on Thursday, Charlie informed the police of Al s plan and did not show up on Friday night. Al was arrested on Friday night as he came ashore, alone, with the whiskey and was loading it into a truck he had stolen from a nearby Coast Guard parking lot. Al, Bob and Charlie have been charged with theft of the truck and conspiracy to import dutiable goods without payment of duty. Al has also been charged with attempt to import dutiable goods without payment of duty. He has told Len, his lawyer, that he plans to testify that he knew all along that the whiskey was produced in the United States. Based on the above facts: 1. Should Al, Bob or Charlie be convicted of: a. Conspiracy to violate the Tariff Act? b. Theft of the truck? Discuss. 2. Should Al be convicted of attempt to import dutiable goods without payment of duty in violation of the Tariff Act? Discuss. 3. If Al persists in testifying that he knew the whiskey was produced in the United States, what, if anything, should Len do? Discuss.

2 CRIMINAL LAW Copyright July 1999 Scott F. Pearce, Esq. Outline I. Criminal Liability of Al, Bob and Charlie A. Conspiracy to Violate the Tariff Act 1. Al a. Impossibility b. Mistake 2. Bob - Withdrawal 3. Charlie - Withdrawal plus Thwarting the Crime B. Theft of the Truck 1. Al: Direct Liability 2. Bob: Co-Conspirator 3. Charlie - Withdrawal II. Liability of Al for Attempt to Violate the Tariff Act A. Impossibility B. Conclusion III. Len s Actions if Al Insists on Testifying Falsely A. Duty of Zealousness B. Attorney / Client Privilege C. Duty of Candor D. Conclusion

3 CRIMINAL LAW Copyright July 1999 Scott F. Pearce, Esq. Answer I. Criminal Liability of Al, Bob and Charlie A. Conspiracy to Violate the Tariff Act To win convictions against Al, Bob and Charlie for conspiracy, the prosecutor will have to show an agreement between two or more of them to commit the target offense, made with the intent to agree. Modern jurisdictions also require an overt act toward the criminal objective. 1. Al Al had Bob and Charlie over to his house on Monday, and the three of them agreed to smuggle in whiskey they believed to have been produced abroad, thereby avoiding paying the import duty. Even though Bob called Charlie and told Charlie he couldn t participate, Al was resolved to commit the crime without him, and in fact brought the whiskey ashore and stole a truck to transport it. These facts show clearly that Al made an agreement to commit a crime, both with the intent to carry it out and with many overt acts in furtherance of the criminal objective. Unless he has a good defense, Al will be convicted of Conspiracy to Violate the Tariff Act. a. Impossibility Al s first defense is that it was legally impossible for him to commit conspiracy, since the whiskey was not made abroad and thus was not subject to the tax. This defense is more relevant to the charge of attempt to import dutiable goods without payment of duty, discussed below in section II. This defense will not be helpful to Al in defense of his conspiracy charge, because his mental state shows criminal intent. b. Mistake Al s mistake defense is based on the same fact as his impossibility defense: Al was mistaken when he thought the whiskey had been produced abroad. Again, Al s mistake defense suffers from the same fatal flaw: it does not mitigate his criminal intent to agree to commit a crime. Al is guilty of Conspiracy to Violate the Tariff Act.

4 2. Bob - Withdrawal Bob met with Al and Charlie at Al s house and agreed to help bring the whiskey ashore four nights later. Two nights after the meeting, however, Bob called Al and said he couldn t participate because he and his wife were going to visit relatives. Al said that was all right, indicating his acceptance of Bob s withdrawal. Although Bob had the requisite intent at the time of the meeting, it appears he pulled out of the conspiracy before any overt act had taken place. Unless this occurred in one of the minority jurisdictions that do not require an overt act, Bob will escape criminal liability for conspiracy. 3. Charlie - Withdrawal plus Thwarting the Crime Charlie became apprehensive when Al told him Bob had withdrawn, but said nothing. Charlie was afraid of what Al might do to him if he tried to back out. Although there are not enough facts to establish a duress defense for Charlie, his other conduct should be defense enough. Charlie notified the police of Al s plan. Charlie did not show up to help Al the night of the crime, and Al was arrested alone. Although it is true that Charlie did not withdraw until the night before the crime, it is likely his efforts would be adequate to relieve him of liability for conspiracy. If the phone call between Bob an Al, when Bob withdrew, qualifies as an overt act, it is possible that Charlie s withdrawal could be deemed too late, but this would seem an unjust, harsh result. Charlie did nothing to further the crime, and in fact thwarted it. He should not be convicted of conspiracy. B. Theft of the Truck Theft is the intentional taking and carrying away of the property of another with the intent to permanently deprive the owner of possession. Al will face this charge directly; Bob and Charlie will face it based on co-conspirator liability. 1. Al: Direct Liability We are told Al stole the truck from a nearby Coast Guard parking lot, and that he was caught loading whiskey into the truck at the time he was arrested. The plain meaning of the word stolen suggests that Al is guilty of theft, however his true intent may have been merely to borrow the truck without permission long enough to complete his smuggling operation. If Al s intent was not to permanently deprive the owner of the truck, he should not be convicted of theft. 2. Bob: Co-Conspirator As discussed above, Bob effectively withdrew from the conspiracy a couple of nights after the three men met. Bob would be entitled to use whatever defenses were available to Al. Because he was not a co-conspirator, Bob cannot be guilty of the theft of the truck based on a co-conspirator liability

5 theory. If the case is heard in a jurisdiction that does not require an overt act to convict a defendant of conspiracy, Bob could be convicted of this offense as well. That would seem an unjust result. 3. Charlie Charlie also withdrew from the conspiracy, as discussed above. Unless this case is heard in a jurisdiction that does not have an overt act requirement for conspiracy, Charlie will escape criminal liability for theft of the truck for the same reasons that apply to Bob. II. Liability of Al for Attempt to Violate the Tariff Act To be convicted of Attempt, Al must be shown to have the specific intent to commit the crime and then take a substantial step towards committing the crime. A. Impossibility Al will argue that it was legally impossible for him to commit the target offense, because the whiskey involved was not manufactured abroad. The trouble with this argument is that there is in fact a law on the books requiring imported alcohol to be taxed. Here, the target crime was factually impossible, not legally impossible. Thus, the impossibility defense does is not available to Al. B. Conclusion Al intended to violate the Tariff Act and took several substantial steps toward committing the crime. He is guilty of Attempt to Violate the Tariff Act. III. Len s Actions if Al Insists on Testifying Falsely Al has told Len, his lawyer, that he plans to testify falsely that he knew all along that the whiskey was produced in the United States. Len must take care to remain true to some contradictory ethical duties. A. Duty of Zealousness Len has a duty to represent zealously his client. This duty is particularly important in criminal cases, where the defense lawyer is the only barrier between the client and the government. This duty does not extend to allow the attorney to present evidence he knows to be false. In no jurisdiction may Len argue the false testimony, thereby giving it more legitimacy. B. Attorney / Client Privilege Lawyers must not become informants against their clients. The American Bar Association indicates

6 that a criminal defense lawyer may inform a court when a criminal defendant client is about to lie on the stand. California forbids that practice, but refuses to allow an attorney to discuss the testimony in argument. C. Duty of Candor Len owes the tribunal and his adversary a duty of honesty and truthfulness. By presenting testimony he knows to be false, Len violates this duty in a very basic and troubling way. D. Conclusion In California, Len cannot prevent Al from testifying, nor is he allowed to inform the court of his client s perjury, but Len cannot argue any of the testimony he knows to be false. Thus, the duty of zealousness and the attorney-client privilege are seen to triumph over the duty of candor.