In United States v. Hall, 47 F.3d 1091 (11th Cir. 1995), the Eleventh Circuit Court of Appeals discussed the difference between a business and an individual’s reasonable expectation of privacy in the area around their home or business (called the curtilage). In Hall, a government agent seized a bag of shredded documents from a dumpster located on the property of Bet-Air, Inc. Hall filed a motion to suppress the evidence on the grounds that the search and seizure was a violation of the Fourth Amendment. Review United States v. Hall and discuss the following:

• What was the Court of Appeal’s decision?
• Was the search and seizure a violation of the Fourth Amendment? Why or why not?
• Would the result have been different if the dumpster was on private property rather than on commercial property?
• Suppose you were an executive at Bet-Air. What recommendations would you make to help Bet-Air assert an expectation of privacy in the dumpster?

Your initial response should be a minimum of 200 words.

CHAPTER 5 CRIMINAL LAW AND PROCEDURE

Nicolai Caymen worked as a desk clerk at a hotel in Ketchikan, Alaska. After a woman called a Ketchikan business supply store and complained that the store had charged her credit card for a laptop computer she did not purchase, the store discovered that Caymen had used a credit card in placing a telephone order for the laptop and that when he picked up the computer, the store clerk had not asked for identification. Store personnel then contacted the Ketchikan police department to report the incident and to pass along information, acquired from other stores, indicating that Caymen may have attempted similar credit card trickery elsewhere. In order to look for the laptop and other evidence of credit card fraud, the police obtained a search warrant for the house where Caymen rented a room. Caymen, who was present while his room was searched, denied the allegation that he had used someone else’s credit card to acquire the laptop. Instead, he stated that he had bought it with his own credit card. During the search, the police found the laptop and a tower computer. It was later determined that Caymen had rented the tower computer from a store but had never made any of the required payments. In Caymen’s wallet, which the police examined in connection with the search of his room, the officers found receipts containing the names and credit card information of guests who had stayed at the hotel where Caymen was employed. The police seized the laptop and contacted the store where Caymen had acquired it to ask whether officers could examine the laptop’s hard drive before they returned the computer to the store. The store’s owner consented. In examining the laptop’s hard drive for evidence of credit card fraud, the police found evidence indicating Caymen’s probable commission of federal crimes unrelated to credit card fraud. The police then temporarily suspended their search of the hard drive and obtained another search warrant because they had probable cause to believe that Caymen had committed federal offenses. Under that search warrant, officers checked the hard drives and storage media from the laptop and tower computers and found further evidence pertaining to the federal crimes. Caymen was prosecuted in state court for credit card fraud and was indicted in federal court for the separate federal offenses. In the federal proceeding, he asked the court to suppress (i.e., rule inadmissible) the evidence obtained by the police in their examinations of the hard drives of the laptop and tower computers. Caymen based his suppression request on this multipart theory: that the police had no valid warrant for their initial look at the laptop’s hard drive; that in the absence of a valid warrant, his consent (rather than the store owner’s) was needed to justify a search of the laptop’s hard drive; that the evidence obtained during the initial examination of the laptop’s hard drive was the result of an unconstitutional search and was therefore inadmissible; and that the evidence obtained in the later examinations of the hard drives of the laptop and tower computers amounted to inadmissible “fruit of the poisonous tree.” As you read Chapter 5, consider these questions: On what constitutional provision was Caymen basing his challenge to the validity of the searches conducted by the police? 150 Must law enforcement officers always have a warrant before they conduct a search, or are warrantless searches sometimes permissible? If warrantless searches are sometimes permissible, when? What is the usual remedy when law enforcement officers conduct an unconstitutional search? Did Caymen succeed with his challenge to the validity of the searches conducted by the police? Why or why not? What if a guilty person goes free as a result of a court’s ruling that he was subjected to an unconstitutional search by law enforcement officers? From an ethical perspective, how would utilitarians view that outcome? What about rights theorists? LEARNING OBJECTIVES After studying this chapter, you should be able to: 5-1 Describe the difference between a felony and a misdemeanor. 5-2 Explain why the First Amendment may sometimes serve as a defense to criminal liability. 5-3 Identify the constitutional provisions at issue when a criminal law is challenged as being excessively vague. 5-4 Identify the standard of proof that the government must meet in a criminal prosecution, as well as the constitutional sources of that requirement. 5-5 Identify the major steps in a criminal prosecution. 5-6 Describe the basic protections afforded by the Fourth, Fifth, and Sixth Amendments. 5-7 Describe major exceptions to the Fourth Amendment’s usual preference that the government have a warrant before conducting a search. 5-8 Explain what the exclusionary rule is. 5-9 List the components of the Miranda warnings and state when law enforcement officers must give those warnings. 5-10 Identify the elements that the government must prove in a criminal RICO case and that a private plaintiff must prove in a civil RICO case. 5-11 Describe the major elements that must be proven in order to establish a violation of the Computer Fraud and Abuse Act. THE LIST FEATURES FAMILIAR corporate names: Enron, Arthur Andersen, WorldCom, Adelphia, ImClone, Global Crossing, and Tyco. Individuals such as Bernard Ebbers, John and Timothy Rigas, and Dennis Kozlowski also make the list. Don’t forget about Bernie Madoff. These names sometimes dominated the business headlines during recent years, but not for reasons any corporation or executive would find desirable. Instead, they acquired the notoriety associated with widely publicized financial scandals, related civil litigation, and criminal prosecutions that were actually pursued by the government, seriously contemplated by prosecutors, or argued for by the public and political figures of varying stripes. For instance, former WorldCom CEO Ebbers was sentenced to 25 years in prison for his role in an $11 billion accounting and securities fraud. The Rigases were sentenced to substantial prison terms because of their involvement in bank and securities fraud while serving as high-level executives at Adelphia. Kozlowski, convicted of financial wrongdoing in connection with his former position as Tyco’s CEO, also faced incarceration. Madoff received a lengthy prison sentence and extensive public scorn after being convicted of crimes associated with the Ponzi scheme through which he defrauded investors. Criminal convictions because of financial shenanigans led to the above-mentioned notoriety of certain individuals and the corporations with which they were affiliated, but other sorts of business-related activity may also result in criminal charges. In 2012, for instance, the oil company BP pleaded guilty to offenses connected with the Deepwater Horizon oil-drilling disaster that occurred off the Gulf Coast and caused the deaths of 11 persons as well as extensive environmental damage. A criminal fine of approximately $1.3 billion was imposed on BP, along with even more in civil penalties. In 2014, Toyota and the federal government entered into a deferred prosecution agreement that headed off criminal charges against the automaker for allegedly concealing material information from federal regulators about component parts that may have caused certain vehicles to 151 accelerate suddenly and excessively, with serious accidents sometimes then occurring. Under the deferred prosecution agreement, Toyota became obligated to pay $1.2 billion. During recent years, the U.S. Justice Department considered whether to file criminal charges against General Motors for allegedly misleading federal regulators, or allegedly failing to make adequate required disclosures to them, regarding an ignition switch problem that led to crashes in which persons were injured or killed. Volkswagen pleaded guilty in 2017 to criminal charges in connection with its employees’ scheme to install devices in Volkswagen vehicles so that the cars would receive false and deceptively positive results on government-required emissions tests. The BP, Toyota, GM, and Volkswagen sagas also featured civil consequences because of regulatory penalties and lawsuits, but there seems little doubt that criminal charges or the possibility of them weighed especially heavily on the minds of those companies’ executives and employees. In an earlier edition of this text, the first paragraph of Chapter 5 noted the importance of studying criminal law as part of a business manager’s education but conceded that “[w]hen one lists legal topics relevant to business, criminal law comes to mind less readily than contracts, torts, agency, corporations, and various other subjects dealt with in this text.” That statement, of course, was written approximately 25 years ago. Given the media, public, and governmental attention devoted to recent corporate scandals, it might be argued that criminal law now comes to mind more readily than certain other subjects on the list of legal topics relevant to business. At the very least, recent events involving high-profile firms and executives have demonstrated that business managers create considerable risk for themselves and their firms if they ignore the criminal law or lack a working understanding of it. Role of the Criminal Law This century has witnessed society’s increasing tendency to use the criminal law as a major device for controlling corporate behavior. Many regulatory statutes establish criminal and civil penalties for statutory violations. The criminal penalties often apply to individual employees as well as to their employers. Advocates of using the criminal law in this way typically argue that doing so achieves a deterrence level superior to that produced by damage awards and other civil remedies. Corporations may be inclined to treat damage awards as simply a business cost and to violate regulatory provisions when doing so makes economic sense. Criminal prosecutions, however, threaten corporations with the reputation-harming effect of a criminal conviction. In some cases, the criminal law allows society to penalize wrongdoing employees who would not be directly affected by a civil judgment against their employer. Moreover, by alerting private parties to a violation that could also give rise to a civil lawsuit for damages, criminal prosecutions may increase the likelihood that a corporation will bear the full costs of its actions. Our examination of the criminal law’s role in today’s business environment begins with consideration of the nature and essential components of the criminal law. Next, the chapter discusses procedural issues in criminal prosecutions and explains constitutional issues that may arise in such cases. The chapter then explores various problems encountered in applying the criminal law to the corporate setting. Nature of Crimes Describe the difference between a felony and a misdemeanor. Crimes are public wrongs—acts prohibited by the state or federal government. Criminal prosecutions are initiated by a prosecutor (an elected or appointed government employee) in the name of the state or the United States, whichever is appropriate. Persons convicted of crimes bear the stigma of a criminal conviction and face the punitive force of the criminal sanction. Our legal system also contemplates noncriminal consequences for violations of legal duties. The next two chapters deal with torts, private wrongs for which the wrongdoer must pay money damages to compensate the harmed victim. In some tort cases, the court may also assess punitive damages in order to punish the wrongdoer. Only the criminal sanction, however, combines the threat to life or liberty with the stigma of conviction. Crimes are typically classified as felonies or misdemeanors. A felony is a serious crime such as murder, sexual assault, arson, drug-dealing, or a theft or fraud offense of sufficient magnitude. Most felonies involve significant moral culpability on the offender’s part. Felonies are punishable by lengthy confinement of the convicted offender to a penitentiary, as well as by a fine. A person convicted of a felony may experience other adverse consequences, such as disenfranchisement (loss of voting rights) and disqualification from the practice of certain professions (e.g., law or medicine). A misdemeanor is a lesser offense such as disorderly conduct or battery resulting in minor physical harm to the victim. Misdemeanor offenses usually involve less—sometimes much less—moral culpability than felony offenses. As such, misdemeanors are punishable by lesser fines and/or limited confinement in jail. Depending on their 152 seriousness and potential for harm to the public, traffic violations are classified either as misdemeanors or as less serious infractions. Really only quasi-criminal, infractions usually are punishable by fines but not by confinement in jail. Purpose of the Criminal Sanction Disagreements about when the criminal sanction should be employed sometimes stem from a dispute over its purpose. Persons accepting the utilitarian view believe that prevention of socially undesirable behavior is the only proper purpose of criminal penalties. This prevention goal includes three major components: deterrence, rehabilitation, and incapacitation. Deterrence theorists maintain that the threat or imposition of punishment deters the commission of crimes in two ways. The first, special deterrence, occurs when punishment of an offender deters him from committing further crimes. The second, general deterrence, results when punishment of a wrongdoer deters other persons from committing similar offenses. Factors influencing the probable effectiveness of deterrence include the respective likelihoods that the crime will be detected, that detection will be followed by prosecution, and that prosecution will result in a conviction. The severity of the probable punishment also serves as a key factor. A fundamental problem attending deterrence theories is that we cannot be certain whether deterrence works because we cannot determine reliably what the crime rate would be in the absence of punishment. Similarly, high levels of crime and recidivism (repeat offenses by previously punished offenders) may indicate only that sufficiently severe and certain criminal sanctions have not been employed, not that criminal sanctions in general cannot effectively deter. Deterrence theory’s other major problem is its assumption that potential offenders are rational beings who consciously weigh the threat of punishment against the benefits derived from an offense. The threat of punishment, however, may not deter the commission of criminal offenses produced by irrational or unconscious drives. Rehabilitation of convicted offenders—changing their attitudes or values so that they are not inclined to commit future offenses—serves as another way to prevent undesirable behavior. Critics of rehabilitation commonly point to high rates of recidivism as evidence of the general failure of rehabilitation efforts to date. Even if rehabilitation efforts fail, however, incapacitation of convicted offenders contributes to the goal of prevention. While incarcerated, offenders have much less ability to commit other crimes. Prevention is not the only asserted goal of the criminal sanction. Some persons see retribution—the infliction of deserved suffering on violators of society’s most fundamental rules—as the central focus of criminal punishment. Under this theory, punishment satisfies community and individual desires for revenge and reinforces important social values. As a general rule, state laws on criminal punishments seek to further the deterrence, rehabilitation, and incapacitation purposes just discussed. State statutes usually set forth ranges of sentences (e.g., minimum and maximum amounts of fines and imprisonment) for each crime established by law. The court sets the convicted offender’s sentence within the appropriate range unless the court places the defendant on probation. Probation is effectively a conditional sentence that suspends the usual imprisonment and/or fine if the offender “toes the line” and meets other judicially imposed conditions for the period specified by the court. It is sometimes granted to first-time offenders and other convicted defendants deemed suitable candidates by the court. In deciding whether to order probation or an appropriate sentence within the statutory range, the court normally places considerable reliance on information contained in a presentence investigation conducted by the state probation office. Figure 1 explains how federal law approaches the proper determination of a convicted offender’s punishment. Figure 1 The Federal Sentencing Guidelines and the Booker Decision The federal approach to sentencing closely resembled the typical state approach discussed in the text until the Federal Sentencing Guidelines took effect in the mid-1980s. The significantly different sentencing model contemplated by the Sentencing Guidelines was largely upended, however, by the U.S. Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), and decisions that followed it. To understand Booker, one must first know how the Sentencing Guidelines operated for the approximately 20 years preceding the Supreme Court’s decision. In the Sentencing Reform Act of 1984, Congress created the U.S. Sentencing Commission and authorized it to develop the Sentencing Guidelines. Congress took this action to reduce judicial discretion in sentencing and to minimize disparities among sentences imposed on defendants who committed the same offenses. Although pre–Sentencing Guidelines statutes setting forth sentencing ranges for particular crimes generally remained on the books, the Sentencing Guidelines developed by the Sentencing Commission assumed a legally controlling status under provisions of the 153 Sentencing Reform Act. The Guidelines contain a table with more than 40 levels of seriousness of offense. Where an offender’s crime and corresponding sentence range are listed on the table depends on the offender’s prior criminal history and on various factors associated with the offense. The Sentencing Reform Act established that federal courts were bound by the table and usually were required to sentence convicted defendants in accordance with the range set in the table for the crime at issue. However, if the court found the existence of certain additional circumstances to be present (such as a leadership role in a crime committed by more than one person or similar facts seeming to enhance the defendant’s level of culpability), the Guidelines required the court to sentence the defendant to a harsher penalty than would otherwise have been the maximum under the Guidelines. Many federal judges voiced displeasure with the Guidelines because their mandatory nature deprived judges of the sentencing discretion they believed they needed in order to do justice in individual cases. In another key effect, the Guidelines led to the imposition of more severe sentences than had previously been imposed. Although the prospect of probation for certain offenses was not eliminated, the Guidelines led to an increased use of incarceration of individuals convicted of serious crimes. (A special subset of rules known as the Corporate Sentencing Guidelines, discussed later in the chapter, pertains to the sentencing of organizations convicted of federal crimes.) Approximately 20 years ago, questions arose concerning the constitutionality of the Sentencing Guidelines. The questions focused on the cases in which the Guidelines effectively required—if the requisite additional circumstances were present—a sentence going beyond what would otherwise have been the maximum called for by the Guidelines. These cases were troublesome because nearly always the additional circumstances triggering the enhanced sentence were identified by the trial judge on the basis of evidence submitted to him or her at a post-trial sentencing hearing. The jury, on the other hand, would have heard and seen only the evidence produced at the trial—evidence that went toward guilt and presumably the standard range of punishment, but not toward an enhanced punishment harsher than the usual maximum. All of this was problematic, critics contended, in view of criminal defendants’ Sixth Amendment right to a jury trial. United States v. Booker provided the Supreme Court an opportunity to address the concerns raised by critics of the Guidelines. A jury had convicted Booker of the offense of possessing, with intent to distribute, at least 50 grams of crack cocaine. The evidence the jury heard at trial was to the effect that Booker possessed approximately 90 grams of crack. The Sentencing Guidelines called for a sentence of 20 to 22 years in prison for possessing at least 50 grams. However, evidence presented to the judge at the post-trial sentencing hearing indicated that Booker possessed some 650 grams. Possession of a much larger amount of crack than the amount for which he was convicted was a special cir- cumstance that, under the Guidelines, necessitated a harsher sentence. Upon finding by a preponderance of the evidence that Booker possessed 650 grams (rather than the smaller quantity about which the jury heard evidence), the judge was required by the Guidelines to sentence Booker to at least 30 years in prison—even though the evidence presented to the jury would have justified a lesser sentence of 20 to 22 years. The judge imposed a 30-year sentence on Booker, who contended on appeal that the enhanced sentence required by the Guidelines violated his Sixth Amendment jury trial right. In the 2005 Booker decision, the Supreme Court held that in view of the Sixth Amendment, any facts calling for the imposition of a sentence harsher than the usual maximum must be facts found by a jury rather than merely a judge (unless a jury has been validly waived by the defendant). The Federal Sentencing Guidelines and the statute contemplating their creation were thus unconstitutional insofar as they mandated a sentence going beyond the usual maximum if a judge’s factual findings supporting such a sentence were made on the basis of evidence that the jury had not heard and seen. To remedy the constitutional defect, the Court determined it was necessary to excise certain Sentencing Reform Act sections that made the Sentencing Guidelines mandatory. The elimination of those statutory sections caused the Sentencing Guidelines to become advisory to judges as they make sentencing decisions. Judges must still consider what the Guidelines call for in regard to sentencing, but they are not required to impose the particular sentences specified in the Guidelines. The Court also stated in Booker that when a judge’s sentencing decision is challenged on appeal, the governing standard will be one of reasonableness. After Booker, lower courts were faced with determining what the “reasonableness” standard of review meant, as well as how far trial courts’ discretion regarding the Guidelines really extended. In Rita v. United States, 551 U.S. 338 (2007), the Supreme Court held that it was permissible for courts of appeal to adopt and apply a presumption of reasonableness if the sentence imposed by the trial court fell within the range set by the Guidelines. Gall v. United States, 552 U.S. 38 (2007), made clear, however, that the converse was not true. The Court held there that courts of appeals cannot apply a presumption of unreasonableness to a sentence that departed from the range set by the Guidelines. Instead, according to Gall, consideration of the Guidelines is only “the starting point and the initial benchmark” for the trial judge as he or she makes an “individualized assessment” based on the facts and circumstances. Appellate courts are to give “due deference” to the trial judge’s sentencing determinations, regardless of whether the sentence fell within or outside the Guidelines’s range. In Kimbrough v. United States, 552 U.S. 85 (2007), a companion case to Gall, the Court underscored this standard of review and expressed disapproval of appellate court micromanagement of trial judges’ sentencing decisions. 154 The Court also suggested in Kimbrough—and made explicit in Spears v. United States, 555 U.S. 261 (2009)—that considerable deference to the trial judge’s sentencing determinations remains appropriate even if it appears that the sentence departed from the Guidelines because of the judge’s policy disagreement with the Guidelines. Booker and its progeny have restored to trial judges most of the sentencing latitude they had prior to the Guidelines. This latitude is subject to two constraints: First, the sentence must be consistent with relevant statutes (as opposed to the now-advisory Guidelines), and second, the sentence must be based upon facts found by the jury (or by the judge, if a jury was waived). Essentials of Crime To convict a defendant of a crime, the government ordinarily must (1) demonstrate that his alleged acts violated a criminal statute; (2) prove beyond a reasonable doubt that he committed those acts; and (3) prove that he had the capacity to form a criminal intent. Crimes are statutory offenses. A given behavior is not a crime unless Congress or a state legislature has criminalized it.1 Courts also carefully scrutinize, and narrowly construe, criminal statutes in an effort to make certain that they sweep in only those behaviors specifically prohibited by the relevant legislature. In Sekhar v. United States, which follows, the U.S. Supreme Court conducts such an examination of the Hobbs Act in order to determine whether the defendant’s actions constituted extortion in violation of that federal statute. Sekhar v. United States 133 S. Ct. 2720 (U.S. Sup. Ct. 2013) New York’s Common Retirement Fund is an employee pension fund for the State of New York and its local governments. The State Comptroller chooses Common Retirement Fund investments. When the Comptroller decides to approve an investment, he issues a “Commitment.” Giridhar Sekhar was a managing partner of FA Technology Ventures (FATV). In 2009, the Comptroller’s office was considering whether to invest in a fund managed by that firm. The office’s general counsel recommended that the Comptroller decide not to invest in the FATV-managed fund. The Comptroller followed the recommendation, decided not to issue a Commitment, and notified an FATV partner about the decision. This partner had previously heard rumors that the general counsel was having an extramarital affair. The general counsel then received a series of anonymous e-mails demanding that he recommend moving forward with the investment in the FATV-managed fund. The e-mails also threatened that if the general counsel did not so recommend, the sender would disclose information about his alleged affair to his wife, government officials, and the media. The general counsel contacted law enforcement, which traced some of the e-mails to Sekhar’s home computer and other e-mails to FATV offices. Sekhar was later indicted for attempted extortion in violation of the Hobbs Act, which subjects a person to criminal liability if he “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do.”18 U.S.C. § 1951(a). The act defines extortion to mean “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” § 1951(b)(2). On the verdict form used at Sekhar’s trial, the jury was asked to specify the property that Sekhar attempted to extort (1) “the Commitment,” (2) “the Comptroller’s approval of the Commitment,” or (3) “the General Counsel’s recommendation to approve the Commitment.” The jury chose only the third option in convicting Sekhar of attempted extortion. The U.S. Court of Appeals for the Second Circuit affirmed Sekhar’s conviction. The Second Circuit held that the general counsel “had a property right in rendering sound legal advice to the Comptroller and, specifically, to recommend—free from threats—whether the Comptroller should issue a Commitment.” In addition, the Second Circuit concluded that Sekhar not only attempted to deprive the general counsel of his “property right” but also “attempted to exercise that right by forcing the general counsel to make a recommendation determined by [Sekhar].” The U.S. Supreme Court agreed to decide the case. Scalia, Justice We consider whether attempting to compel a person to recommend that his employer approve an investment constitutes “the obtaining of property from another” under 18 U.S.C. §1951(b)(2). Whether viewed from the standpoint of the common law, the text and genesis of the statute at issue here, or the jurisprudence of this Court’s prior cases, what was charged in this case was not extortion. 155 It is a settled principle of interpretation that, absent other indication, “Congress intends to incorporate the well-settled meaning of the common-law terms it uses.” [Citation omitted.] Or as Justice Frankfurter colorfully put it [in a 1947 law journal article], “if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” The Hobbs Act punishes “extortion,” one of the oldest crimes in our legal tradition. As far as is known, no case predating the Hobbs Act—English, federal, or state—ever identified conduct such as that charged here as extortionate. Extortion required the obtaining of items of value, typically cash, from the victim. It did not cover mere coercion to act, or to refrain from acting. The text of the statute confirms that the alleged property here cannot be extorted. Enacted in 1946, the Hobbs Act defines its crime of “extortion” as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Obtaining property requires “not only the deprivation but also the acquisition of property.” Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 404 (2003). That is, it requires that the victim part with his property, and that the extortionist “gain possession” of it. Id. at 403 n.8. The property extorted must therefore be transferable—that is, capable of passing from one person to another. The alleged property here lacks that defining feature. The genesis of the Hobbs Act reinforces that conclusion. The Act was modeled after §850 of the New York Penal Law (1909). Congress borrowed, nearly verbatim, the New York statute’s definition of extortion. The New York statute contained, in addition to the felony crime of extortion, a . . . misdemeanor crime of coercion. Whereas the former required the criminal acquisition of property, the latter required merely the use of threats “to compel another person to do or to abstain from doing an act which such other such person has a legal right to do or to abstain from doing” [quoting the New York statute]. Congress did not copy the coercion provision. The omission must have been deliberate, since it was perfectly clear that extortion did not include coercion. At the time of the borrowing (1946), New York courts had consistently held that the sort of interference with rights that occurred here was coercion. And finally, this Court’s own precedent similarly demands reversal of Sekhar’s conviction. In Scheidler, we held that protesters did not commit extortion under the Hobbs Act, even though they “interfered with, disrupted, and in some instances completely deprived” abortion clinics of their ability to run their business. 537 U.S. at 404–05. We reasoned that the protesters may have deprived the clinics of an “alleged property right,” but they did not pursue or receive “something of value from” the clinics that they could then “exercise, transfer, or sell” themselves. Id. at 405. This case is easier than Scheidler, where one might at least have said that physical occupation of property amounted to obtaining that property. The deprivation alleged here is far more abstract. Scheidler rested its decision, as we do, on the term “obtaining.” The principle announced there—that a defendant must pursue something of value from the victim that can be exercised, transferred, or sold— applies with equal force here. Whether one considers the personal right at issue to be “property” in a broad sense or not, it certainly was not obtainable property under the Hobbs Act. The government’s shifting and imprecise characterization of the alleged property at issue betrays the weakness of its case. According to the jury’s verdict form, the “property” that Sekhar attempted to extort was “the General Counsel’s recommendation to approve the Commitment.” But the government expends minuscule effort in defending that theory of conviction. And for good reason—to wit, our decision in Cleveland v. United States, 531 U.S. 12 (2000), which reversed a business owner’s mail-fraud conviction for “obtaining money or property” through misrepresentations made in an application for a video-poker license issued by the State. We held that a “license” is not “property” while in a state’s hands and so cannot be “obtained” from the state. Even less so can an employee’s yet-to-be-issued recommendation be called obtainable property, and less so still a yet-to-be-issued recommendation that would merely approve (but not effect) a particular investment. Hence the government’s reliance on an alternative . . . description of the property. Instead of defending the jury’s description, the government hinges its case on the general counsel’s “intangible property right to give his disinterested legal opinion to his client free of improper outside interference” [quoting the government’s brief]. But what, exactly, would Sekhar have obtained for himself? A right to give his own disinterested legal opinion to his own client free of improper interference? Or perhaps, a right to give the general counsel’s disinterested legal opinion to the general counsel’s client? Either formulation sounds absurd, because it is. Clearly, Sekhar’s goal was not to acquire the general counsel’s “intangible property right to give disinterested legal advice.” It was to force the general counsel to offer advice that accorded with Sekhar’s wishes. But again, that is coercion, not extortion. No fluent speaker of English would say that Sekhar “obtained and exercised the general counsel’s right to make a recommendation,” any more than he would say that a person “obtained and exercised another’s right to free speech.” He would say that Sekhar “forced the general counsel to make a particular recommendation,” just as he would say that a person “forced another to make a statement.” Adopting the government’s theory here would not only make nonsense of words, it would collapse the longstanding distinction between extortion and coercion and ignore Congress’s choice to penalize one but not the other. That we cannot do. Second Circuit decision reversed in favor of Sekhar. 156 Constitutional Limitations on Power to Criminalize Behavior The U.S. Constitution prohibits ex post facto criminal laws. This means that a defendant’s act must have been prohibited by statute at the time she committed it and that the penalty imposed must be the one provided for at the time of her offense. In Peugh v. United States, 133 S. Ct. 2072 (2013), for example, the U.S. Supreme Court held that a defendant convicted of bank fraud should have been sentenced under the version of the Federal Sentencing Guidelines in effect when he committed the crime rather than under a later version that the lower courts used as the basis for imposing a more severe punishment than the earlier version would have permitted. The Constitution places other limits on legislative power to criminalize behavior. If behavior is constitutionally protected, it cannot be deemed criminal. For example, the right of privacy held implicit in the Constitution caused the Supreme Court, in Griswold v. Connecticut (1965), to strike down state statutes that prohibited the use of contraceptive devices and the counseling or assisting of others in the use of such devices. This decision provided the constitutional basis for the Court’s historic Roe v. Wade (1973) decision, which limited the states’ power to criminalize abortions. First Amendment Explain why the First Amendment may sometimes serve as a defense to criminal liability. By prohibiting laws that unreasonably restrict freedom of speech, the First Amendment plays a major role in limiting governmental power to enact and enforce criminal laws. As explained in Chapter 3, the First Amendment protects a broad range of noncommercial speech, including expression of a political, literary, or artistic nature as well as speech that deals with economic, scientific, or ethical issues or with other matters of public interest or concern. The First Amendment protection for noncommercial speech is so substantial that it is called “full” protection. The First Amendment may operate as a defense to a criminal prosecution concerning speech many persons would find offensive. For instance, in United States v. Stevens, 559 U.S. 460 (2010), the Supreme Court held that the First Amendment protected the defendant against criminal responsibility for having violated a statute that barred distribution of videos in which a cruel killing or maiming of an actual animal was depicted. (The First Amendment safeguarded the speech present in such videos notwithstanding its offensive character, but would not protect any defendant against criminal responsibility for violating a statute prohibiting the conduct of engaging in cruelty to animals.) But First Amendment protection, despite being very substantial, is not absolute. Consider Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), in which the Supreme Court rejected a multipronged attack on the constitutionality of a federal statute that criminalized the furnishing of support to foreign groups the government has labeled as terrorist organizations. In upholding the statute, the Court held that it did not violate the First Amendment even as applied to persons who wished to donate money to support and encourage the humanitarian, lawful, and nonviolent activities of those organizations (as opposed to their activities amounting to terrorism). Although donating money in support of social causes may be viewed as speech, the Court concluded that the statute did not violate the First Amendment rights of supporters of the organizations’ nonterrorist activities because the prohibition of even those supporters’ donations was suitably tailored to the furtherance of the vital government interest in combating terrorism. Commercial speech, on the other hand, receives a less substantial First Amendment shield known as “intermediate” protection. Does a speaker or writer with a profit motive (e.g., the author who hopes to make money on her book) therefore receive only intermediate First Amendment protection? No, as a general rule, because the mere presence of a profit motive does not keep expression from being fully protected noncommercial speech. Moreover, the commercial speech designation is usually reserved for what the Supreme Court has termed “speech that does no more than propose a commercial transaction.” The best example of commercial speech is an advertisement for a product, service, or business. Despite receiving less-than-full protection, commercial speech is far from a First Amendment outcast. Recent Supreme Court decisions, as noted in Chapter 3, have effectively raised commercial speech’s intermediate protection to a level near that of full protection. Therefore, regardless of whether it is full or intermediate in strength, the First Amendment protection extended to expression means that governmental attempts to hold persons criminally liable for the content of their written or spoken statements are often unconstitutional. Some speech falls outside the First Amendment umbrella, however. In a long line of cases, the Supreme Court has established that obscene expression receives no First Amendment protection. Purveyors of obscene books, movies, and other similar works may therefore be criminally convicted of violating an obscenity statute even 157 though it is the works’ content (i.e., the speech) that furnishes the basis for the conviction. Expression is obscene only if the government proves each element of the controlling obscenity test, which the Supreme Court established in Miller v. California (1973): (a) [That] the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) [that] the work depicts or describes, in a patently offensive way, [explicit] sexual conduct specifically defined by the applicable state law; and (c) [that] the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If any of the three elements is not proven, the work is not obscene; instead, it receives First Amendment protection. The Miller test’s final element is the one most likely to derail the government’s obscenity case against a defendant. Books, movies, and other materials that contain explicit sexual content are not obscene if they have serious literary, artistic, political, or scientific value—and they generally do. In view of the Miller test’s final element, moreover, certain publications that might fairly be regarded as “pornographic” are likely to escape being classified as obscene. Although nonobscene expression carries First Amendment protection, Supreme Court decisions have allowed the government limited latitude to regulate indecent speech in order to protect minors from being exposed to such material. Indecent expression contains considerable sexual content but stops short of being obscene, often because of the presence of serious literary, artistic, political, or scientific value (for adults, at least). Assume that a state statute requires magazines available for sale at a store to be located behind a store counter, rather than on an unattended display rack, if the magazines feature nudity and sexual content and the store is open to minors. This statute primarily restricts indecent expression because most magazines contemplated by the law are unlikely to be obscene. If the statute is challenged on First Amendment grounds and the court concludes that it is narrowly tailored to further the protection-of-minors purpose, it will survive First Amendment scrutiny. A law that restricts too much expression suitable for adults, however, will violate the First Amendment even if the government’s aim was to safeguard minors. Recent years have witnessed decisions in which the Supreme Court determined the First Amendment fate of statutes designed to protect minors against online exposure to material that is indecent though not obscene. In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Court struck down most of the Communications Decency Act of 1996 (CDA), which sought to ban Internet distribution of indecent material in a manner that would make the material accessible by minors. The Court reasoned that notwithstanding the statute’s protection-of-minors purpose, the sweeping nature of the ban on indecent material extended too far into the realm of expression that adults were entitled to receive. In Ashcroft v. American Civil Liberties Union, 542 U.S. 665 (2004), the Court considered the constitutionality of the Child Online Protection Act (COPA), the next congressional attempt to restrict minors’ exposure to indecent material in online contexts. According to the Court, the same problem that plagued the CDA—restricting too much expression that adults were entitled to communicate and receive—doomed the COPA to a determination of unconstitutionality. As noted above, much of the material often referred to as pornography would not be considered obscene under the Miller test and thus would normally carry First Amendment protection. Safeguarding-of-minors concerns have proven critical, however, to the very different legal treatment extended to child pornography—sexually explicit visual depictions of actual minors (as opposed to similar depictions of adults). Because of the obvious dangers and harms that child pornography poses for minors, child pornography has long been held to fall outside the First Amendment’s protective umbrella. Therefore, the Supreme Court has held that there is no First Amendment bar to criminal prosecutions for purveying or possessing child pornography. Identify the constitutional provisions at issue when a criminal law is challenged as being excessively vague. Due Process Clauses In addition to limiting the sorts of behavior that may be made criminal, the Constitution limits the manner in which behavior may be criminalized. The Due Process Clauses of the Fifth and Fourteenth Amendments (discussed in Chapter 3) require that criminal statutes define the prohibited behavior precisely enough to enable law enforcement officers and ordinary members of the public to understand which behavior violates the law. Statutes that fail to provide such fair notice may be challenged as unconstitutionally vague. For example, in Skilling v. United States, 561 U.S. 358 (2010), a defendant brought a vagueness challenge to a federal statute he was convicted of violating. The statute made it a crime to deprive another person of the intangible right to the defendant’s “honest services.” 158 To avoid the potential vagueness problem suggested by the statute’s “honest services” language, the Supreme Court adopted a limiting construction of the statute. The Court ruled that for a violation of the honest services law to have occurred, the defendant’s actions must have involved the offering, payment, or receipt of bribes or kickbacks. Whatever other misdeeds Skilling—an Enron executive—committed or may have committed, none of them involved bribes or kickbacks. For further discussion of the importance of clarity in criminal statutes, see Shaw v. United States, which appears later in the chapter. Equal Protection Clause The Fourteenth Amendment’s Equal Protection Clause (also discussed in Chapter 3) prohibits criminal statutes that discriminatorily treat certain persons of the same class or arbitrarily discriminate among different classes of persons. Legislatures usually are extended considerable latitude in making statutory classifications if the classifications have a rational basis. “Suspect” classifications, such as those based on race, are subjected to much closer judicial scrutiny, however. Eighth Amendment Finally, the Constitution limits the type of punishment imposed on convicted offenders. The Eighth Amendment forbids cruel and unusual punishments. This prohibition furnishes, for example, the constitutional basis for judicial decisions establishing limits on imposition of the death penalty. Although various Supreme Court cases indicate that the Eighth Amendment may bar a sentence whose harshness is disproportionate to the seriousness of the defendant’s offense, the Court has signaled that any Eighth Amendment concerns along these lines are unlikely to be triggered unless the sentence–crime disproportionality is exceedingly gross. Proof beyond a Reasonable Doubt Identify the standard of proof that the government must meet in a criminal prosecution, as well as the constitutional sources of that requirement. The serious matters at stake in a criminal case—the life and liberty of the accused—justify our legal system’s placement of significant limits on the government’s power to convict a person of a crime. A fundamental safeguard is the presumption of innocence; defendants in criminal cases are presumed innocent until proven guilty. The Due Process Clauses require the government to overcome this presumption by proving beyond a reasonable doubt every element of the offense charged against the defendant.2 Requiring the government to meet this stern burden of proof minimizes the risk of erroneous criminal convictions. Defendant’s Criminal Intent and Capacity Most serious crimes require mens rea, or criminal intent, as an element. The level of fault required for a criminal violation depends on the wording of the relevant statute. Many criminal statutes require proof of intentional wrongdoing. Others impose liability for reckless conduct or, in rare instances, mere negligence. In the criminal context, recklessness generally means that the accused consciously disregarded a substantial risk that the harm prohibited by the statute would result from her actions. Negligence means that the accused failed to perceive a substantial risk of harm that a reasonable person would have perceived. As a general rule, negligent behavior is left to the civil justice system rather than being criminalized. Shaw v. United States, which follows shortly, addresses criminal intent and related issues. In Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the Supreme Court issued a reminder regarding the importance of the element of criminal intent. The Andersen firm, which provided auditing and consulting services to Enron prior to its collapse in 2001, had been convicted on obstruction-of-justice charges dealing with destruction of Enron-related documents. The Supreme Court overturned the conviction because the trial judge’s instructions to the jury had not sufficiently required the jury to determine whether criminal intent was present when Andersen employees, acting at least in part under the firm’s preexisting document-retention policy, destroyed documents that would have been relevant to legal proceedings connected with the Enron debacle. Criminal intent may be inferred from an accused’s behavior because a person is normally held to have intended the natural and probable consequences of her acts. The intent requirement furthers the criminal law’s general goal of punishing conscious wrongdoers. Accordingly, proof that the defendant had the capacity to form the required intent is a traditional prerequisite of criminal responsibility. The criminal law recognizes three general types of incapacity: intoxication, infancy, and insanity. Although it is not a complete defense to criminal liability, voluntary intoxication may sometimes diminish the degree of a defendant’s responsibility. For example, many 159 first-degree murder statutes require proof of premeditation, a conscious decision to kill. One who kills while highly intoxicated may be incapable of premeditation—meaning that he would not be guilty of first-degree murder. He may be convicted, however, of another homicide offense that does not require proof of premeditation. The criminal law historically presumed that children younger than 14 years of age (“infants,” for legal purposes) could not form a criminal intent. Today, most states treat juvenile offenders below a certain statutory age—usually 16 or 17—differently from adult offenders, with special juvenile court systems and separate detention facilities. Current juvenile law emphasizes rehabilitation rather than capacity issues. Repeat offenders or offenders charged with very serious offenses, however, may sometimes be treated as adults. An accused’s insanity at the time the charged act was committed may constitute a complete defense. This possible effect of insanity has generated public dissatisfaction. The controlling legal test for whether a defendant was insane varies among court systems. The details of the possible tests are beyond the scope of this text. Suffice it to say that as applied by courts, the tests make it a rare case in which the defendant succeeds with an insanity defense. Shaw v. United States, which follows, deals with criminal intent issues and illustrates the careful attention courts pay to the particular elements required by a criminal statute. Shaw v. United States 137 S. Ct. 462 (U.S. Sup. Ct. 2017) Lawrence Shaw obtained the identifying numbers of a Bank of America account belonging to a bank customer, Stanley Hsu. Shaw used those numbers, as well as other related information, to transfer funds from Hsu’s account to other accounts at different financial institutions. Shaw then obtained, from those other accounts, the funds he had transferred from Hsu’s Bank of America account. A federal statute makes it a crime “knowingly [to] execut[e] a scheme . . . to defraud a financial institution.” 18 U.S.C. § 1344(1). A federally insured bank such as Bank of America would be an example of a financial institution contemplated by this statute. A federal district court convicted Shaw of violating § 1344(1). The U.S. Court of Appeals for the Ninth Circuit affirmed his conviction. In his petition for certiorari, Shaw argued that the words “scheme . . . to defraud a financial institution” require the government to prove that the defendant had “a specific intent not only to deceive, but also to cheat, a bank,” rather than “a non-bank third party.” The U.S. Supreme Court granted review. Breyer, Justice Shaw argues that § 1344 does not apply to him because he intended to cheat only a bank depositor, not a bank. We do not accept his arguments. Section 1344 makes it a crime: knowingly [to] execut[e] a scheme . . . (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises. Shaw makes several related arguments in favor of his basic claim, namely, that the statute does not cover schemes to deprive a bank of customer deposits. First, he [argues in his brief] that subsection (1) requires “an intent to wrong a victim bank [a ‘financial institution’] in its property rights.” He adds that the property he took, money in Hsu’s bank account, belonged to Hsu, the bank’s customer, and that Hsu is not a “financial institution.” Hence, [according to this argument,] Shaw’s scheme was one “designed” to obtain only “a bank customer’s property,” not “a bank’s own property.” The basic flaw in this argument lies in the fact that the bank, too, had property rights in Hsu’s bank account. When a customer deposits funds, the bank ordinarily becomes the owner of the funds and consequently has the right to use the funds as a source of loans that help the bank earn profits (though the customer retains the right to withdraw funds). Sometimes, the contract between the customer and the bank provides that the customer retains ownership of the funds and the bank merely assumes possession. But even then the bank is entitled to possess the deposited funds against all the world [except for the customer with which the bank contracted]. This right, too, is a property right. Thus, Shaw’s scheme to cheat Hsu was also a scheme to deprive the bank of certain bank property rights. Hence, for purposes of the bank fraud statute, a scheme fraudulently to obtain funds from a bank depositor’s account normally is also a scheme fraudulently to obtain property from a “financial institution,” at least where, as here, the defendant knew that the bank held the deposits, the funds obtained came from the deposit account, and the defendant misled the bank in order to obtain those funds. 160 Second, Shaw says he did not intend to cause the bank financial harm. Indeed, the parties appear to agree that, due to standard banking practices in place at the time of the fraud, no bank involved in the scheme ultimately suffered any monetary loss. But the statute, while insisting upon “a scheme to defraud,” demands neither a showing of ultimate financial loss nor a showing of intent to cause financial loss. Many years ago Judge Learned Hand pointed out that “[a] man is none the less cheated out of his property, when he is induced to part with it by fraud,” even if “he gets a quid pro quo of equal value.” United States v. Rowe, 56 F. 2d 747, 749 (2d Cir. 1932). That is because “[i]t may be impossible to measure his loss by the gross scales available to a court, but he has suffered a wrong; he has lost,” for example, “his chance to bargain with the facts before him.” Id. See O. Holmes, The Common Law 132 (1881) (“[A] man is liable to an action for deceit if he makes a false representation to another, knowing it to be false, but intending that the other should believe and act upon it”); Neder v. United States, 527 U.S. 1 (1999) (bank fraud statute’s definition of fraud reflects the common law). It is consequently not surprising that, when interpreting the analogous mail fraud statute, we have held it “sufficient” that the victim (here, the bank) be “deprived of its right” to use of the property, even if it ultimately did not suffer unreimbursed loss. [Citation omitted.] Lower courts have explained that, where cash is taken from a bank “but the bank [is] fully insured[,] [t]he theft [is] complete when the cash [i]s taken; the fact that the bank ha[s] a contract with an insurance company enabling it to shift the loss to that company [is] immaterial.” [Citation omitted.] We have found no case from this Court interpreting the bank fraud statute as requiring that the victim bank ultimately suffer financial harm, or that the defendant intend that the victim bank suffer such harm. Third, Shaw appears to argue that, whatever the true state of property law, he did not know that the bank had a property interest in Hsu’s account; hence he could not have intended to cheat the bank of its property. Shaw did know, however, that the bank possessed Hsu’s account. He did make false statements to the bank. He did correctly believe that those false statements would lead the bank to release from that account funds that ultimately and wrongfully ended up in Shaw’s pocket. And the bank did in fact possess a property interest in the account. These facts are sufficient to show that Shaw knew he was entering into a scheme to defraud the bank even if he was not aware of the niceties of bank-related property law. To require more, i.e., to require actual knowledge of those bank-related property-law niceties, would free (or convict) equally culpable defendants depending upon their property-law expertise—an arbitrary result. We have found no case from this Court requiring legal knowledge of the kind Shaw suggests he lacked. But we have found cases in roughly similar fraud-related contexts where this Court has asked only whether the targeted property was in fact property in the hands of the victim, not whether the defendant knew that the law would characterize the items at issue as “property.” See Pasquantino v. United States, 544 U.S. 544 (2005) (Canada’s right to uncollected excise taxes on imported liquor counted as “property” for purposes of the wire fraud statute); Carpenter v. United States, 484 U.S. 19 (1987) (a newspaper’s interest in the confidentiality of the contents and timing of a news column counted as property for the purposes of the mail and wire fraud statutes). We conclude that the legal ignorance that Shaw claims here is no defense to criminal prosecution for bank fraud. Fourth, Shaw argues that the bank fraud statute requires the Government to prove more than his simple knowledge that he would likely harm the bank’s property interest; in his view, the government must prove that such was his purpose. Shaw adds that his purpose was to take money from Hsu; taking property from the bank was not his purpose. But the statute itself makes criminal the “knowin[g] execut[ion of] a scheme . . . to defraud.” To hold that something other than knowledge is required would assume that Congress intended to distinguish, in respect to states of mind, between (1) the fraudulent scheme, and (2) its fraudulent elements. Why would Congress wish to do so? Shaw refers us to a number of cases involving fraud against the government and points to language in those cases suggesting that the relevant statutes required that the defendant’s purpose be to harm the statutorily protected target and not a third party. [However,] crimes of fraud targeting the government [fall within] an area of the law with its own special rules and protections. We have found no relevant authority in the area of mail fraud, wire fraud, financial frauds, or the like supporting Shaw’s view. [Fifth], Shaw asks us to apply the rule of lenity. We have said that the rule applies if “at the end of the process of construing what Congress has expressed,” there is “a grievous ambiguity or uncertainty in the statute.” [Citations omitted.] The statute is clear enough that we need not rely on the rule of lenity. As we have said, a deposit account at a bank counts as bank property for purposes of subsection (1). The defendant, in circumstances such as those present here, need not know that the deposit account is, as a legal matter, characterized as bank property. Moreover, in those circumstances, the government need not prove that the defendant intended that the bank ultimately suffer monetary loss. Finally, the statute as applied here requires a state of mind equivalent to knowledge, not purpose. Shaw further argues that the instructions the district court gave the jury were erroneous. He points out that the district court told the jury that the “phrase ‘scheme to defraud’ means any deliberate plan of action or course of conduct by which someone intends to deceive, cheat, or deprive a financial institution of something 161 of value.” This instruction, Shaw says, could be understood as permitting the jury to find him guilty if it found no more than that his scheme was one to deceive the bank but not to “deprive” the bank of anything of value. The parties agree, as do we, that the scheme must be one to deceive the bank and deprive it of something of value. For reasons previously pointed out, we have held that a plan to deprive a bank of money in a customer’s deposit account is a plan to deprive the bank of “something of value” within the meaning of the bank fraud statute. The parties dispute whether the jury instruction is nonetheless ambiguous or otherwise improper. We leave to the Ninth Circuit to determine whether that question was fairly presented to that court and, if so, whether the instruction is lawful, and, if not, whether any error was harmless in this case. Judgment of Ninth Circuit vacated; case remanded for further proceedings. Criminal Procedure Criminal Prosecutions: An Overview Identify the major steps in a criminal prosecution. Persons arrested for allegedly committing a crime are taken to the police station and booked. Booking is an administrative procedure for recording the suspect’s arrest. In some states, temporary release on bail may be available at this stage. After booking, the police file an arrest report with the prosecutor, who decides whether to charge the suspect with an offense. If she decides to prosecute, the prosecutor prepares a complaint identifying the accused and detailing the charges. Most states require that arrested suspects be taken promptly before a magistrate or other judicial officer (such as a justice of the peace or judge whose court is of limited jurisdiction) for an initial appearance. During this appearance, the magistrate informs the accused of the charges and outlines the accused’s constitutional rights. In misdemeanor cases in which the accused pleads guilty, the sentence may be (but need not be) imposed without a later hearing. If the accused pleads not guilty to a misdemeanor charge, the case is set for trial. In felony cases, as well as misdemeanor cases in which the accused pleads not guilty, the magistrate sets the amount of bail. In many states, defendants in felony cases are protected against unjustified prosecutions by an additional procedural step, the preliminary hearing. The prosecutor must introduce enough evidence at this hearing to persuade a magistrate that there is probable cause to believe the accused committed a felony.3 If persuaded that probable cause exists, the magistrate binds over the defendant for trial in the appropriate court. After a bindover, the formal charge against the defendant is filed with the trial court. The formal charge consists of either an information filed by the prosecutor or an indictment returned by a grand jury. Roughly half of the states require that a grand jury approve the decision to prosecute a person for a felony. Grand juries are bodies of citizens selected in the same manner as the members of a trial (petit) jury; often, they are chosen through random drawings from a list of registered voters. Indictment of an accused prior to a preliminary hearing normally eliminates the need for a preliminary hearing because the indictment serves essentially the same function as a magistrate’s probable cause determination. The remainder of the states allow felony defendants to be charged by either indictment or information, at the prosecutor’s discretion. An information is a formal charge signed by the prosecutor outlining the facts supporting the charges against the defendant. In states allowing felony prosecution by information, prosecutors elect the information method in the vast majority of felony cases. Misdemeanor cases are prosecuted by information in nearly all states.4 Once an information or indictment has been filed with a trial court, an arraignment occurs. The defendant is brought before the court, informed of the charges, and asked to enter a plea. The defendant may plead guilty, not guilty, or nolo contendere. Although technically not an admission of guilt, nolo contendere pleas indicate that the defendant does not contest the charges. This decision by the defendant will lead to a finding of guilt. Unlike evidence of a guilty plea, however, evidence of a defendant’s nolo plea is inadmissible in later civil cases against that 162 defendant based on the same conduct amounting to the criminal violation. Individuals and corporate defendants therefore may find nolo pleas attractive when their chances of mounting a successful defense to the criminal prosecution are poor and the prospect of later civil suits is likely. At or shortly after the arraignment, the defendant who pleads not guilty chooses the type of trial that will take place. Persons accused of serious crimes for which incarceration for more than six months is possible have a constitutional right to be tried by a jury of their peers. The accused, however, may waive this right and opt for a bench trial (i.e., before a judge only). Role of Constitutional Safeguards The preceding text referred to various procedural devices designed to protect persons accused of crime. The Bill of Rights, the first 10 amendments to the U.S. Constitution, sets forth other rights of criminal defendants. These rights guard against unjustified or erroneous criminal convictions and serve as reminders of government’s proper role in the administration of justice in a democratic society. Justice Oliver Wendell Holmes aptly addressed this latter point when he said, “I think it less evil that some criminals should escape than that the government should play an ignoble part.” Although the literal language of the Bill of Rights refers only to federal government actions, the U.S. Supreme Court has applied the most important Bill of Rights guarantees to state government actions by “selectively incorporating” those guarantees into the Fourteenth Amendment’s due process protection. Once a particular safeguard has been found to be “implicit in the concept of ordered liberty” or “fundamental to the American scheme of justice,” it has been applied equally in state and federal criminal trials. This has occurred with the constitutional protections examined earlier in this chapter as well as with the Fourth, Fifth, and Sixth Amendment guarantees discussed in the following sections. Describe the basic protections afforded by the Fourth, Fifth, and Sixth Amendments. The Fourth Amendment The Fourth Amendment protects persons against arbitrary and unreasonable governmental violations of their privacy rights. It states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Key Fourth Amendment Questions The Fourth Amendment’s language and judicial interpretations of it reflect the difficulties inherent in balancing citizens’ legitimate expectations of privacy against government’s important interest in securing evidence of wrongdoing. The immediately following paragraphs introduce key Fourth Amendment questions and offer parenthetical answers of a general nature. More complete discussion and explanation of Fourth Amendment issues and principles will then appear in the text material and cases included later in this section of the chapter. In addition, Figure 2, which will appear later in the chapter, will provide further detail. Two basic questions arise when a government action is challenged under the Fourth Amendment. First, was there a search or seizure? (If the government action did not constitute a search or seizure, there cannot have been a Fourth Amendment violation.) If there was a search or seizure, this second basic question must be addressed: Was it unreasonable? (The Fourth Amendment furnishes protection only against “unreasonable” searches and seizures.) Questions about the Fourth Amendment language regarding warrants often accompany the fundamental questions noted above. Must the government have a warrant in order to comply with the Fourth Amendment when it conducts a search or seizure? (The Fourth Amendment language stops short of making warrants mandatory in all instances. However, cases interpreting and applying the Fourth Amendment indicate that a search conducted in accordance with a properly supported warrant issued by a judge or magistrate will be considered reasonable.) What is necessary for a valid warrant? (“[P]robable cause” for the issuance of the warrant must exist, and the warrant’s language must “particularly descri[be]” the relevant place, persons, or things.) May a warrant’s validity be challenged for lack of probable cause or on other grounds? (Yes, if the challenging party has standing to do so.) How are warrantless searches treated under the Fourth Amendment? (They tend to be considered unreasonable. As later discussion reveals, however, the Supreme Court has identified various types of warrantless searches that do not violate the Fourth Amendment.) Finally, this important question frequently presents itself: What is the usual remedy if an unreasonable search or seizure took place? (The exclusionary rule is applied—meaning that evidence obtained in or as the result of the unreasonable search or seizure cannot be used in a 163 criminal case against the party whose Fourth Amendment rights were violated.) We now look in greater depth at the questions introduced above. Whether a search took place for Fourth Amendment purposes depends to a great extent on whether the affected person (whether human or corporate) had a reasonable expectation of privacy that was invaded. The Supreme Court has stated that the Fourth Amendment protects persons rather than places. However, consideration of places and items often becomes necessary because of the amendment’s reference to “the right of the people to be secure in their persons, houses, papers, and effects” and because reasonable expectations of privacy often are connected with places and things. Accordingly, the Supreme Court has held that the Fourth Amendment’s protection extends to such places or items as private dwellings and immediately surrounding areas (often called the curtilage), offices, sealed containers, mail, and telephone booths (nearly a relic of the past). The Court has denied Fourth Amendment protection to places, items, or matters as to which it found no reasonable expectations of privacy, such as open fields, bank records, and voluntary conversations between government informants and criminal suspects or defendants. Even when the circumstances involve an item or area that might otherwise seem to suggest Fourth Amendment concerns, some government actions may be deemed insufficiently intrusive to constitute a search or seizure. For example, the Supreme Court held in United States v. Place (1983) that it was not a search when police exposed an airline traveler’s luggage to a narcotics detection dog in a public place, given the minimally intrusive nature of the action and the narrow scope of information it revealed. Relying on Place, the Supreme Court concluded in Illinois v. Caballes (2005) that no search occurred when law enforcement officers used a drug-sniffing dog on the exterior of a car whose driver had been stopped for speeding. However, in Rodriguez v. United States, 135 S. Ct. 1609 (2015), the Supreme Court limited Caballes in both legal and practical effect by holding that if the use of the drug-sniffing dog around the car’s exterior lengthened an otherwise lawful traffic stop beyond the time reasonably necessary to complete the purpose of the stop, a Fourth Amendment violation would be present. On the other hand, the Supreme Court concluded in Kyllo v. United States (2001) that a search occurred when law enforcement officers, operating from a public street, aimed a thermal-imaging device at the exterior of a private home in an effort to identify heat-emanation patterns that might suggest the presence of a marijuana-growing operation inside the home. The cases just noted set the stage for a later case in which the Supreme Court was faced with deciding whether a search took place when police officers, acting without a warrant, brought drug-sniffing dogs to a suspect’s home and put the dogs into service on the suspect’s porch. Would the Court rule as it did in the earlier drug-sniffing dog cases (Place and Caballes), or would it follow the lead of Kyllo? Holding that an unreasonable search occurred, the Court emphasized in Florida v. Jardines, 133 S. Ct. 1409 (2013), as it had in Kyllo, the particular importance of the home and its curtilage when balancing the resident’s Fourth Amendment interests against the evidence-gathering interests of the government. The two cases that follow provide further illustrations of Fourth Amendment principles noted earlier. In United States v. Jones, the Supreme Court decides whether a search took place when law enforcement officers, acting without a warrant, attached a GPS device to the underside of a suspect’s car in an effort to gather evidence pertaining to possible crimes. In United States v. SDI Future Health, the Ninth Circuit Court of Appeals decides whether corporate executives have legal standing to challenge the sufficiency of a warrant authorizing law enforcement agents to search the corporation’s business premises and items located there. United States v. Jones 565 U.S. 400 (U.S. Sup. Ct. 2012) Antoine Jones, the owner and operator of a District of Columbia nightclub, came under suspicion of trafficking in narcotics. He became the target of an investigation by a joint FBI and Metropolitan Police Department task force. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’s cell phone. In addition, the law enforcement agents installed a GPS tracking device on the undercarriage of the Jeep Grand Cherokee that Jones’s wife owned but that Jones drove exclusively. The agents installed the GPS device while it was parked in a public parking lot. They did so without a warrant to authorize such action and without informing Jones or his wife. 164 Over the next 28 days, the government used the GPS device to track the vehicle’s movements. By means of signals from multiple satellites, the device established the vehicle’s location and communicated that location by cell phone to a government computer. It relayed more than 2,000 pages of data over the four-week period. The government ultimately obtained a multiple-count indictment charging Jones and several alleged co-conspirators with various drug-trafficking offenses. Before trial, Jones filed a motion asking a federal district court to suppress (i.e., rule inadmissible) the evidence obtained through use of the GPS device. The court denied the motion because “‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another’” [quoting the district court’s decision, which quoted United States v. Knotts, 460 U.S. 276, 281 (1983)]. At the trial, the government introduced as evidence GPS-derived locational data that connected Jones to the alleged conspirators’ stash house, where $850,000 in cash and large quantities of illegal drugs were found. The jury found Jones guilty. However, the U.S. Court of Appeals for the District of Columbia Circuit reversed the conviction. The D.C. Circuit held that the warrantless use of the GPS device violated the Fourth Amendment and that the lower court therefore should have suppressed the evidence obtained through the device’s use. The U.S. Supreme Court granted the government’s petition for a writ of certiorari. Scalia, Justice The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a “search.” It is important to be clear about what occurred in this case: The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous. Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U.S. 347, 351 (1967), we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy.” Id. at 360. The government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding. Less than two years [after Katz was decided,] the Court upheld defendants’ contention that the government could not introduce against them conversations between other people obtained by warrantless placement of electronic surveillance devices in their homes. The opinion rejected the dissent’s contention that there was no Fourth Amendment violation “unless the conversational privacy of the homeowner himself is invaded.” Alderman v. United States, 394 U.S. 165, 176 (1969). “[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home. . . .” Id. at 180. More recently, in Soldal v. Cook County, 506 U.S. 56 (1992), the Court unanimously rejected the argument that although a “seizure” had occurred “in a ‘technical’ sense” when a trailer home was forcibly removed, no Fourth Amendment violation occurred because law enforcement had not “invade[d] the [individuals’] privacy.” Id. at 60. Katz, the Court explained, established that “property rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the previously recognized protection for property.” Id. at 64. We have embodied that preservation of past rights in our very definition of “reasonable expectation of privacy,” which we have said to be an expectation “that has a source outside of the Fourth Amendment, either by reference to 165 concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter, 525 U.S. 83, 88 (1998). Katz did not narrow the Fourth Amendment’s scope. The government contends that several of our post-Katz cases foreclose the conclusion that what occurred here constituted a search. It relies principally on two cases in which we rejected Fourth Amendment challenges to “beepers,” electronic tracking devices that represent another form of electronic monitoring. The first case, United States v. Knotts, 460 U.S. 276 (1983), upheld against Fourth Amendment challenge the use of a beeper that had been placed in a container of chloroform, allowing law enforcement to monitor the location of the container. We said that there had been no infringement of Knotts’ reasonable expectation of privacy since the information obtained—the location of the automobile carrying the container on public roads, and the location of the off-loaded container in open fields near Knotts’ cabin—had been voluntarily conveyed to the public. But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container before it came into Knotts’s possession, with the consent of the then-owner. Knotts did not challenge that installation, and we specifically declined to consider its effect on the Fourth Amendment analysis. The second beeper case, United States v. Karo, 468 U.S. 705 (1984), does not suggest a different conclusion. There we addressed the question left open by Knotts, whether the installation of a beeper in a container amounted to a search or seizure. As in Knotts, at the time the beeper was installed the container belonged to a third party, and it did not come into possession of the defendant until later. Thus, the specific question we considered was whether the installation “with the consent of the original owner constitute[d] a search or seizure . . . when the container is delivered to a buyer having no knowledge of the presence of the beeper.” Id. at 707 (emphasis added). We held not. The government, we said, came into physical contact with the container only before it belonged to the defendant Karo, and the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo’s privacy. That conclusion is perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location. Jones, who possessed the Jeep at the time the government trespassorily inserted the information-gathering device, is on much different footing. The government also points to our exposition in New York v. Class, 475 U.S. 106 (1986), that “[t]he exterior of a car . . . is thrust into the public eye, and thus to examine it does not constitute a ‘search.’” Id. at 114. That statement is of marginal relevance here since, as the government acknowledges, “the officers in this case did more than conduct a visual inspection of respondent’s vehicle” [quoting the government’s brief, with emphasis added]. By attaching the device to the Jeep, officers encroached on a protected area. In Class itself we suggested that this would make a difference, for we concluded that an officer’s momentary reaching into the interior of a vehicle did constitute a search. Id. at 114–15. Finally, the government’s position gains little support from our conclusion in Oliver v. United States, 466 U.S. 170 (1984), that officers’ information-gathering intrusion on an “open field” did not constitute a Fourth Amendment search even though it was a trespass at common law. Id. at 183. Quite simply, an open field, unlike the curtilage of a home, see United States v. Dunn, 480 U.S. 294, 300 (1987), is not one of those protected areas enumerated in the Fourth Amendment. The government’s physical intrusion on such an area—unlike its intrusion on the “effect” at issue here—is of no Fourth Amendment significance. Thus, our theory is not that the Fourth Amendment is concerned with [every] trespass that led to the gathering of evidence. The Fourth Amendment protects against trespassory searches only with regard to those items (“persons, houses, papers, and effects”) that it enumerates. The trespass that occurred in Oliver [, therefore, did not amount to a Fourth Amendment violation]. The government argues in the alternative that even if the attachment and use of the GPS device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy” [quoting the government’s brief]. We have no occasion to consider this argument. The government did not raise it below, and the D. C. Circuit therefore did not address it. We consider the argument forfeited. D.C. Circuit decision in favor of Jones affirmed. [Note: Five justices subscribed to Justice Scalia’s majority opinion. The other four justices agreed with the outcome (that the placement and use of the GPS device was a search for Fourth Amendment purposes). However, they would have reached that outcome purely on the basis of the reasonable expectation of privacy test rather than through taking trespass considerations into account.] 166 United States v. SDI Future Health, Inc. 568 F.3d 684 (9th Cir. 2009) After a lengthy investigation spearheaded by the Internal Revenue Service (IRS), investigators concluded that SDI Future Health, Inc. (SDI) and certain officers of the corporation had engaged in Medicare fraud and tax fraud. Based on the information obtained during the investigation, the federal government applied for a warrant to search SDI’s business premises. The requested warrant depended heavily on an IRS special agent’s affidavit, which contained information the agent had learned from former employees and business associates of SDI. The affidavit alleged that SDI, Todd Stuart Kaplan (SDI’s president), and Jack Brunk (an SDI officer) participated in a conspiracy with physicians and cardiac diagnostic companies to defraud the Medicare program, the Federal Employees Health Benefit Program, and private health care insurance carriers by seeking payment for services that SDI never rendered. (Besides being officers of the corporation, Kaplan and Brunk possessed significant ownership interests in it.) The affidavit also set forth details of the supposed scheme in which SDI, Kaplan, and Brunk allegedly engaged and noted supposed instances of tax fraud on the part of some or all of the same parties. In a proposed search warrant submitted with the special agent’s affidavit, the government stated that the premises to be searched were SDI’s corporate headquarters, principal business offices, and computers. The proposed warrant also listed 24 categories of documents, records, and other items to be seized. A federal magistrate judge who reviewed the affidavit and the proposed warrant concluded that probable cause existed for the search. He therefore issued the warrant. Federal agents executed the warrant and obtained evidence in the course of the search. A federal grand jury later returned an indictment charging SDI, Kaplan, and Brunk with 124 counts of health care fraud; various counts of conspiracy regarding health care fraud, money laundering, and unlawful kickback payments; and other counts of attempting to evade income taxes. Arguing that the warrant was vague and overbroad and therefore in violation of the Fourth Amendment, SDI, Kaplan, and Brunk filed a motion asking the relevant federal district court to suppress evidence obtained from the search (i.e., rule that the evidence could not be used in the case). After concluding that SDI and the two individual defendants all had standing to challenge the search of SDI’s business premises, the district court granted the defendants’ motion to suppress. The government appealed the suppression order to the U.S. Court of Appeals for the Ninth Circuit. The following edited portion of the Ninth Circuit’s opinion focuses on whether the individual defendants (Kaplan and Brunk) had legal standing to question the constitutionality of the search of the corporation’s (SDI’s) business premises. O’Scannlain, Circuit Judge We must decide whether corporate executives may challenge a police search of company premises not reserved for the executives’ exclusive use. The government argues that Kaplan and Brunk lack standing to challenge the search and seizure of materials from SDI’s premises. Wisely, the government does not argue that SDI itself lacks standing to challenge the underlying search and seizure. “[A] corporate defendant has standing with respect to searches of corporate premises and seizure of corporate records.” [Citation omitted.] We therefore only consider the Fourth Amendment standing of Kaplan and Brunk. Insofar as they do indeed lack standing, all evidence is admissible as to charges against them. By contrast, insofar as we affirm the district court’s suppression of some evidence, such evidence will be inadmissible against SDI. Standing, therefore, makes a difference in this case. According to the government, [Kaplan’s and Brunk’s] mere ownership and management of SDI, and the steps SDI took to preserve the security of its business files, are inadequate to support the conclusion that Kaplan and Brunk personally had an expectation of privacy in the searched areas and seized materials. While “[i]t has long been settled that one has standing to object to a search of his office, as well as of his home,” [citation omitted], this case presents the novel issue of the extent to which a business employee may have standing to challenge a search of business premises generally. The Fourth Amendment ensures that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” A person has standing to sue for a violation of this particular “right of the people” only if there has been a violation “as to him,” personally. [Citation omitted.] In other words, Fourth Amendment standing . . . “is a matter of substantive Fourth Amendment law; to say that a party lacks Fourth Amendment standing is to say that his reasonable expectation of privacy has not been infringed.” [Citation omitted.] This follows from the Supreme Court’s famous observation that the Fourth Amendment “protects people, not places,” Katz v. United States, 389 U.S. 347, 351 (1967). To show the government has violated his Fourth Amendment rights, an individual must have “a legitimate expectation of privacy in the invaded place.” Defendants must demonstrate “a subjective expectation of privacy in the area searched, and their expectation must be one that society would recognize as objectively reasonable.” [Citations omitted.] 167 As a logical extension of this approach, “[p]roperty used for commercial purposes is treated differently for Fourth Amendment purposes from residential property.” Minnesota v. Carter, 525 U.S. 83, 90 (1998). Of course, individuals may still have a “reasonable expectation of privacy against intrusions by police” into their offices. But, unlike the nearly absolute protection of a residence, “the great variety of work environments” requires analysis of reasonable expectations on a case-by-case basis. O’Connor v. Ortega, 480 U.S. 709, 716, 718 (1987). Our precedents provide numerous guideposts, however. For starters, it is crucial to Fourth Amendment standing that the place searched be “given over to [the defendant’s] exclusive use.” We have thus held that mere access to, and even use of, the office of a co-worker “does not lead us to find an objectively reasonable expectation of privacy.” By the same token, we have rejected managerial authority alone as sufficient for Fourth Amendment standing. [For instance,] we [have] held the corporate officer of a hospital, whom we described as the “de facto controlling force in [its] management,” did not have standing to challenge the seizure of records from the hospital print shop. Even though the defendant “had access to and control of the print shop operations, his rights did not include any expectation of privacy over documents which were kept at the print shop premises. . . .” [Case citations omitted throughout paragraph.] It thus appears that an employee of a corporation, whether worker or manager, does not, simply by virtue of his status as such, acquire Fourth Amendment standing with respect to company premises. Similarly, to be merely a shareholder of a corporation, without more, is also not enough. As always, a reasonable expectation of privacy does not arise ex officio, but must be established with respect to the person in question. The Second Circuit summarized this point memorably in [often-quoted] language: When a man chooses to avail himself of the privilege of doing business as a corporation, even [if] he is its sole shareholder, he may not vicariously take on the privilege of the corporation under the Fourth Amendment; documents which he could have protected from seizure, if they had been his own, may be used against him, no matter how they were obtained from the corporation. Its wrongs are not his wrongs; its immunity is not his immunity. [Citation omitted.] We took this approach in United States v. Gonzalez, 412 F.3d 1102 (9th Cir. 2005), in which we held that the directors of a small, family-run corporation had standing to challenge a wiretap in one of the company’s buildings. That holding relied on the facts of the case: [W]e simply hold that because the [defendants] were corporate officers and directors who not only had ownership of the [premises] but also exercised full access to the building as well as managerial control over its day-to-day operations, they had a reasonable expectation of privacy over calls made on the premises. Thus, in Gonzalez we focused on the close control that the owner-operators exercised over their small business, which happened to be family-run. Kaplan and Brunk argue that Gonzalez supports their claim of Fourth Amendment standing, but their argument rests on an overbroad reading of our opinion. We explicitly tied the defendants’ standing to the “nature of the location.” The defendants exercised, in the context of “a small, family-run business housing only 25 employees at its peak,” “managerial control over [the] day-to-day operations” of the office where the conversations the wiretap “seized” took place, they owned the building where the office was located, and they not only could access the office but actually “exercised full access to the building.” In our detailed factual analysis, therefore, we made clear that it does not suffice for Fourth Amendment standing merely to own a business, to work in a building, or to manage an office. The facts in this case place SDI in a gray area outside the particular facts of Gonzalez, because at most Kaplan and Brunk managed and worked in the office of a business of which they were, together, controlling shareholders. SDI’s headquarters is twice the size of the office at issue in Gonzalez. [The] facts show that SDI, through Kaplan and Brunk, took steps to protect the privacy of its headquarters. But the magistrate judge’s findings do not show that Kaplan and Brunk personally managed the operation of the office on a daily basis, only that they set its general policy as officers of SDI. Because Kaplan and Brunk personally exercised less control over the premises in question than did the defendants in Gonzalez, that precedent does not control here. Thus, although our precedents provide a basic outline, we are left with little case law directly on point. Exclusive use of an office may be sufficient, [citation omitted], but Gonzalez illustrates that it is not necessary. Between the lines these cases draw, it is unclear in which premises and materials belonging to a corporation a corporate employee has a legitimate expectation of privacy. One of our sister circuits, however, has crafted a balancing test that we believe helps to fill in the gap. In United States v. Anderson, 154 F.3d 1225 (10th Cir. 1998), the Tenth Circuit [identified] three factors a court should consider in cases where an employee has not established that the area searched is given over to his exclusive use[:] “(1) the employee’s relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item.” Though phrased vaguely, the first factor really addresses whether the item seized was personal property without any relationship to work. In addition, the third factor involves actions the employee takes on his own behalf, not as an agent of the corporation. Reading Anderson alongside our own precedent, we conclude that, except in the case of a small business over which 168 an individual exercises daily management and control, an individual challenging a search of workplace areas beyond his own internal office must generally show some personal connection to the places searched and the materials seized. Absent such a personal connection or exclusive use, a defendant cannot establish standing for Fourth Amendment purposes to challenge the search of a workplace beyond his internal office. The district court relied on three facts in concluding that Kaplan and Brunk had Fourth Amendment standing: their ownership of SDI, their management of SDI from offices in the building searched, and the security measures SDI took to secure its business records. Our review of relevant precedent indicates that these facts are too broad and generalized to support the district court’s conclusion. The security measures that SDI took to ensure the privacy of its business records are relevant only to the standing of the corporation itself, not of its officers. As for Kaplan and Brunk, their ownership and management do not necessarily show a legitimate expectation of privacy. Because neither claims to enjoy “exclusive use” of the places searched—that is, the entire SDI office—they each must show a personal connection, along the lines we have drawn out of Anderson, to justify an expectation of privacy. Lacking precedent on what is admittedly a novel issue of law, the district court did not adequately develop the record. Therefore, the district court’s grant of the motion to suppress must be reversed and the matter remanded for further fact-finding. It seems that none of the items seized were the personal property of Kaplan or Brunk, nor were they in the custody of either. Therefore, on remand, the district court should focus its inquiry on, but need not confine it to, whether either Kaplan or Brunk took measures, each on his or the pair’s personal behalf, to keep the items private and segregated from other general business materials. Of course, Kaplan and Brunk do have standing to challenge the admission of any evidence obtained from their own personal, internal offices. District court’s decision reversed insofar as it held that Kaplan and Brunk had standing to challenge search; case remanded for further proceedings. [Note: In a portion of the opinion not included here, the Ninth Circuit reiterated that SDI clearly had standing to challenge the search of its corporate premises. The court held that SDI’s motion to suppress was valid as to some, but not all, of the evidence obtained through the search because the warrant was overbroad. Therefore, the court ruled that certain evidence could not be used against SDI at trial.] Describe major exceptions to the Fourth Amendment’s usual preference that the government have a warrant before conducting a search. Warrantless Searches and the Fourth Amendment Although the Fourth Amendment is sometimes described as setting up a warrant “requirement,” the amendment’s literal language does not do so. It is more accurate to say that as interpreted by courts, the Fourth Amendment contemplates a preference for a warrant but does not require one in all instances. Because a judge or magistrate must determine whether probable cause supports the request for the warrant and must ensure that the government’s intrusive action is appropriately limited, warrants serve to protect privacy interests and guard against pure “fishing expeditions” by the government. The preference for warrants, therefore, gives rise not only to the rule that a search or seizure conducted in accordance with a proper warrant is reasonable for Fourth Amendment purposes but also to the assumption that a warrantless search or seizure may be unreasonable. Clearly, however, not all warrantless searches and seizures violate the Fourth Amendment. The Supreme Court has identified various instances in which a warrantless search or seizure will pass muster under the Fourth Amendment. The list of exceptions to the usual preference for a warrant includes the following: Search incident to lawful arrest. Under this long-recognized exception, officers may conduct a warrantless search of the arrestee himself, the items in his possession, and the items within his control—or to which he has access—at the time of arrest. (This is permitted regardless of whether the arrest itself occurred pursuant to a warrant or whether the arrest was otherwise lawful because there was probable cause to believe that the arrestee committed the relevant offense.) The rationale is twofold: to protect the arresting officers in the possible event that the arrestee has a weapon and to obtain evidence that otherwise might be destroyed or go undiscovered. Weapons and evidence obtained during the search may be seized by the officers. Does the search-incident-to-arrest exception permit officers to search the content stored on a cell phone or smartphone in the arrestee’s possession at the time of the arrest? For consideration of that question, see Figure 2. Certain searches of motor vehicles. Law enforcement officers may conduct a warrantless search of a motor vehicle when the driver or other recent occupant of the vehicle 169 Figure 2 A Note on Riley v. California Nearby discussion in the text outlines the search-incident-to-arrest exception to the usual preference for a warrant. If, as is often the case, an arrestee has a cell phone or smartphone in his or her possession, may law enforcement officers search the content stored on that phone under the search-incident-to arrest doctrine, or is a warrant to search it necessary? In recent years, police fairly routinely conducted such a search, relied on search-incident-to-arrest principles in doing so, and not infrequently found the phone to be a treasure trove of evidence. Critics of such police action asserted that cell phones—and particularly smartphones—are different from other items an arrestee may have in his or her possession because the phones may contain huge quantities of information and because, in their view, arrestees should be seen as having reasonable expectations of privacy in regard to what those devices contain. Lower courts reached differing results when addressing the question whether a warrant is necessary in this setting. Now there is a clear national rule. In 2014, the Supreme Court decided Riley v. California, 134 S. Ct. 2473. In that case, the Court held unanimously that the search-incident-to-arrest doctrine does not justify a search of an arrestee’s cell phone or smartphone and that a warrant is necessary in order for such a search to be reasonable for Fourth Amendment purposes. Writing for the Court, Chief Justice Roberts made it clear that cell phones and smartphones are vastly different from other items that persons may carry with them, given those devices’ broad-ranging functions and their capacities to store enormous amounts—as well as various types—of information. The Chief Justice noted that these devices, on which so many persons rely, may furnish “a digital record of nearly every aspect of the [owners’] lives—from the mundane to the intimate.” The privacy interests of cell phone and smartphone owners thus carried more weight in the Court’s analysis than did countervailing law enforcement interests. The Court also emphasized the importance of having a clear rule for law enforcement officers to follow. Rejecting the government’s proposal that officers be able to conduct a warrantless search of an arrestee’s cell phone or smartphone in an effort to find evidence pertaining to the crime for which he or she was arrested (as opposed to evidence of other possible crimes), the Court regarded that proposal as unworkable. Such a rule would require too many fact-specific judgments by officers in the field and afterward by judges in court proceedings. Moreover, such a rule might be exploited by officers to an unreasonable extent. Hence, the Court stressed that the need for a warrant before searching the cell phone or smartphone exists even when officers believe that the device in the arrestee’s possession is likely to contain evidence relevant to the crime for which the arrest occurred. In addition, the Court made no distinction between older cell phones and new smartphones, even though the smartphones can do far more than the cell phones that seemed so remarkable not many years ago. Either way—cell phone or high-powered smartphone—officers are expected to know after the Riley decision that a warrant will be necessary before they can search the content of the device. is arrested and either (1) the arrestee is still within reaching distance of the vehicle during the search or (2) the officers have reason to believe the vehicle contains evidence of the crime for which the driver or other occupant was arrested. The rationale here is essentially the same as in the search-incident-to-arrest scenario described above. Weapons and evidence obtained during the search of the vehicle may be seized by the officers. Investigative stops upon reasonable suspicion. Officers need not have a warrant to stop a vehicle if they have a reasonable suspicion that the driver committed a traffic violation (for which a ticket might be issued but no arrest would be made) or if they have a reasonable suspicion of other wrongdoing on the part of the driver or other vehicle occupant. In such an investigative stop, the detention of the driver and vehicle occupants does not violate the Fourth Amendment if the stop is brief and otherwise reasonably conducted. If no arrest occurs but the officers proceed to conduct a warrantless search of the vehicle, there normally will be a Fourth Amendment violation. However, the officers may search the vehicle if the driver consents or if probable cause to search arises on the basis of the officers’ visual observations, other sensory perceptions, or further key facts that come to the officers’ attention. If evidence discovered in the search of the vehicle helps to form the basis of criminal charges against the driver or other vehicle occupants, the persons charged have legal standing to challenge the validity of the stop (by arguing that the necessary reasonable suspicion was lacking) and the ensuing search (by arguing that the search stemmed from an improper stop or was unsupported by probable cause). Stop-and-frisk searches for weapons. If law enforcement officers’ observations give them a reasonable suspicion that a person may be engaged in criminal activity, the officers may detain the person briefly for investigative purposes without violating the Fourth Amendment. During that detention—usually called a “Terry stop” because of the case in which the Supreme Court held that the Fourth Amendment permits such police action—officers may conduct a pat-down search of the detained person in order to determine whether he is carrying a weapon that could endanger the officers. 170 Plain view. If an officer sees contraband or other evidence in plain view (meaning that the item is readily visible to the officer without any special efforts), the officer may seize the item and will not violate the Fourth Amendment in doing so. Consensual searches. Searches that occur with the consent of a person who owns or possesses the relevant place or thing are considered reasonable. Therefore, one who consents to a search of her home, office, or car will normally be regarded as having forfeited any Fourth Amendment objection she might otherwise have been able to make. If there are co-occupants of a residence and any co-occupant gives law enforcement officers consent to search the property, the permission granted by that co-occupant will normally insulate the search against a Fourth Amendment challenge brought later by a nonpresent and nonconsenting co-occupant. As the Supreme Court recognized in Georgia v. Randolph, 547 U.S. 103 (2006), however, a consent to search provided by one co-occupant of a residence does not protect the search against a Fourth Amendment challenge by another co-occupant who was present at the time of the search and objected to its occurrence. If the police cannot (as the Randolph decision indicates) lawfully conduct a search of a residence when an on-the-premises co-occupant refuses to consent, does the Fourth Amendment permit the police to return to the home when the nonconsenting co-occupant is no longer present, obtain consent from another co-occupant, and conduct the search? The Supreme Court said “yes” in a 2014 case (Fernandez v. California, 134 S. Ct. 1126). Searches under exigent circumstances. Court have upheld warrantless searches of premises that law enforcement officers enter in order to protect persons present there if the officers reasonably believe those persons are at risk of imminent serious harm. The emergency nature of such a situation obviously would not allow time to obtain a warrant. The Supreme Court has ruled that the exigent circumstances exception can also apply to warrantless searches of premises entered by officers when they are in hot pursuit of a fleeing suspect. In Kentucky v. King, 563 U.S. 452 (2011), the Court held that this exception justified officers’ warrantless entry and search of an apartment. In that case, officers who had been pursuing a fleeing suspect entered the apartment when, after knocking on the door and announcing their presence, they heard sounds that made them think evidence was being destroyed. The Court concluded that the additional exigency of preventing evidence destruction helped to make the warrantless entry and search acceptable under the Fourth Amendment, even though the officers guessed wrong about which apartment the suspect they had been chasing had actually entered. In Missouri v. McNeely, 133 S. Ct. 1552 (2013), however, the Court rejected the state’s argument that concern about possible dissipation of evidence of blood alcohol content should justify applying the exigent circumstances doctrine to authorize a warrantless drawing of blood from a motorist suspected of driving under the influence of alcohol. Weighing that law enforcement concern against the invasive nature of a forced drawing of blood (as opposed to a noninvasive breath test) caused the Court to conclude that a warrant was necessary. DNA swabs in the booking process. In Maryland v. King, 133 S. Ct. 1958 (2013), the Supreme Court weighed in on a practice engaged in fairly frequently by law enforcement officers in recent years: taking a DNA sample from arrestees—usually those charged with crimes involving violence—without a warrant and as part of the booking process. The sample tends to be taken quickly through insertion of a swab inside the arrestee’s cheek. Upholding a Maryland law that permitted such warrantless use of the DNA swab on those arrested for violent crimes, a five-justice majority of the Supreme Court regarded the bodily intrusion as minimal and stressed the usefulness of the resulting evidence in accurately identifying the arrestee. The dissenters were troubled by what they regarded as the real (though unspoken) reason why the Court permitted the gathering of DNA evidence in this way: the usefulness of the resulting evidence in solving crimes other than the ones for which the arrestee was arrested—crimes for which law enforcement authorities otherwise had no reason to suspect the arrestee. Customs searches. Given the importance of controlling the nation’s borders and regulating the passage of persons and items into the country, government agents have fairly broad authority to conduct warrantless searches in the customs and border contexts. Administrative inspections of closely regulated businesses. Various statutes and regulations subject certain types of businesses to inspections by government agents in order to safeguard public health and welfare. To the extent that these inspections come within the scope of the relevant statutes and regulations, they are considered to be reasonable for Fourth Amendment purposes even though they occur without a warrant. Exclusionary Rule Explain what the exclusionary rule is. The exclusionary rule serves as the basic remedial device in cases of Fourth Amendment violations. Under this judicially crafted rule, evidence seized in illegal searches cannot be used in a subsequent trial against an accused 171 whose constitutional rights were violated.5 In addition, if information obtained in an illegal search leads to the later discovery of further evidence, that further evidence is considered “fruit of the poisonous tree” and is therefore excluded from use at trial under the rule established in Wong Sun v. United States (1963). Because the exclusionary rule may result in suppression of convincing evidence of crime, it has generated controversy. The rule’s supporters regard it as necessary to deter police from violating citizens’ constitutional rights. The rule’s opponents assert that it has no deterrent effect on police who believed they were acting lawfully. A loudly voiced complaint in some quarters has been that “because of a policeman’s error, a criminal goes free.” During roughly the past three decades, the Supreme Court has responded to such criticism by rendering decisions that restrict the operation of the exclusionary rule. For example, the Court has held that illegally obtained evidence may be introduced at trial if the prosecution convinces the trial judge that the evidence would inevitably have been obtained anyway by lawful means. The Court has also created a “good-faith” exception to the exclusionary rule. This exception allows the use of evidence seized by police officers who acted pursuant to a search warrant later held invalid if the officers reasonably believed that the warrant was valid. In Herring v. United States, 555 U.S. 135 (2009), the Court declined to apply the exclusionary rule to evidence obtained as a result of an arrest made pursuant to a rescinded arrest warrant where a police employee had negligently failed to remove the rescinded warrant from a law enforcement database but the arresting officer relied in good faith on the warrant’s supposed validity. Although the Court has not extended this good-faith exception to warrantless searches in general, it has declined to apply the exclusionary rule where the search was conducted in reliance on a statute that was later declared invalid or in reliance on earlier Court decisions that gave greater Fourth Amendment leeway to law enforcement officers than an otherwise controlling later decision did. Finally, Utah v. Strieff, 136 S. Ct. 2056 (2016), further illustrates the Supreme Court’s tendency in recent years to narrow the application of the exclusionary rule. In that case, a law enforcement officer detained a person without sufficient legal cause but quickly learned that there was an outstanding arrest warrant for the person. The officer then made the arrest, conducted a search incident to the arrest, and discovered that the arrestee was in possession of illegal drugs. In the drug possession prosecution that followed, the defendant argued that because the initial detention of him was without cause, the seized drugs should be excluded from evidence under the previously discussed fruit-of-the-poisonous-tree doctrine. The Supreme Court rejected that argument, holding instead that the detaining officer’s prompt discovery of the valid arrest warrant made the connection between the initial stop of the defendant and the officer’s discovery of the drugs too attenuated to warrant exclusion of the evidence. The USA PATRIOT Act Approximately six weeks after the September 11, 2001, terrorist attacks on the United States, Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. This statute, commonly known as the USA PATRIOT Act or as simply the Patriot Act, contains numerous and broad-ranging provisions designed to protect the public against international and domestic terrorism. Included in the Patriot Act are measures allowing the federal government significantly expanded ability, in terrorism-related investigations, to conduct searches of property, monitor Internet activities, track electronic communications, and obtain records regarding customers of businesses. Most, though not all, actions of that nature require a warrant from a special court known as the Foreign Intelligence Surveillance Court. The statute contemplates, however, that such warrants may be issued upon less of a showing by the government than would ordinarily be required, and may be more sweeping than usual in terms of geographic application. Moreover, warrants issued by the special court for the search of property can be of the so-called sneak and peek variety, under which the FBI need not produce the warrant for the property owner or possessor to see and need not notify an absent property owner or possessor that the search took place (unlike the rules typically applicable to execution of “regular” warrants). In addition, the Patriot Act permits warrants for “roving” wiretaps—ones that apply to various communications devices or methods that a person suspected of ties to terrorism may employ, as opposed to being restricted to a single communications device or method. The Patriot Act also calls for banks to report seemingly suspicious monetary deposits, as well as any deposits exceeding $10,000, not only to the Treasury Department (as required by prior law) but also to the Central Intelligence Agency and other federal intelligence agencies. In addition, the statute enables federal law enforcement authorities to seek a Surveillance Court warrant for the obtaining 172 of individuals’ credit, medical, and student records, regardless of state or federal privacy laws that would otherwise have applied. Commentators critical of the Patriot Act have argued that despite the importance of safeguarding the public against acts of terrorism, the statute tips the balance too heavily in favor of law enforcement. They have characterized the statute’s definition of “domestic terrorism” as so broad that various suspected activities not normally regarded as terrorism (or as harboring or aiding terrorists) could be considered as such for purposes of the federal government’s expanded investigatory tools. If that happens, the critics contend, Fourth Amendment and other constitutional rights may easily be subverted. Others with reservations about the statute maintain that its allowance of expanded monitoring of Internet activities and electronic communications and its provisions for retrieval of library records and other records normally protected by privacy laws could give the government ready access to communications and private information of many wholly innocent persons. In apparent recognition of the extraordinary action it was taking in a time of national crisis, Congress included provisions stating that unless they were renewed, portions of the Patriot Act would expire at the end of 2005. Congress has since renewed the bulk of the Patriot Act on more than one occasion and has made most of its provisions permanent in the sense of not requiring a renewal (though certain provisions, such as the one dealing with roving wiretaps, continue to require periodic renewals). With most of the Patriot Act having been made permanent, those who have raised civil liberties concerns may continue to seek repeal of part or all of the statute. Repeal seems unlikely, however, in a political environment that continues to be shaped in significant ways by the events of 2001. The expanded investigatory tools provided by the Patriot Act have existed alongside those provided by an older statute, the Foreign Intelligence Surveillance Act (FISA), which was enacted long before the September 11, 2001, attacks and has been amended various times both before and since. Under FISA, monitoring of a suspected terrorist’s electronic communications generally required that an individualized warrant be obtained from the previously mentioned Foreign Intelligence Surveillance Court (FISA Court), which operates in secret and whose decisions, unlike those of other courts, are not published. Applications for warrants from the FISA Court have historically been approved a very high percentage of the time. In December 2005, it was revealed that the White House had implemented a program of monitoring telephone calls of suspected terrorists when one party to the conversation was located outside the United States. This monitoring had occurred without an attempt by the government to obtain warrants from the FISA Court. Critics of this action by the government complained that it violated not only FISA but also the Fourth Amendment. The White House took the position, however, that the monitoring program was within the inherent powers of the executive branch. Disputes over the validity of the monitoring program led to discussions over possible amendments to strengthen or loosen FISA’s requirements. These discussions resulted in an amendment under which the FISA Court could issue blanket warrants for electronic monitoring of groups of terrorism suspects for set periods of time (as opposed to the previous sole option of individualized warrants). With such loosening of what it saw as FISA’s constraints, the government shut down its warrantless monitoring program and resumed going to the FISA Court for warrants. In 2008, Congress enacted a further amendment to FISA. This amendment expanded the government’s ability to monitor the phone calls of suspected terrorists, established FISA’s requirement of warrants from the FISA Court as the exclusive way of exercising this surveillance power, and provided immunity from legal liability for telephone companies that had assisted the government in the phone call monitoring activities for which FISA Court warrants had not been obtained. Revelations in 2013 and 2014 by ex–Central Intelligence Agency contractor Edward Snowden about formerly secret intelligence-gathering by the federal government furnished a further chapter in the ongoing saga of anti-terrorism-related surveillance. Snowden’s disclosures regarding the government’s collection and analysis of huge amounts of data from phone records led to debates about how much authority the government should or should not have in that sense. Later policy statements and legislative efforts have explored ways to limit and manage the government’s access to phone records and similar material in ways that would suitably account for the government’s terrorism-prevention interests and the public’s privacy interests. The Fifth Amendment Describe the basic protections afforded by the Fourth, Fifth, and Sixth Amendments. The Fifth and Fourteenth Amendments’ Due Process Clauses guarantee basic procedural and substantive fairness to criminal defendants. The Due Process Clauses are discussed earlier in this chapter and in Chapter 3. 173 Privilege against Self-Incrimination List the components of the Miranda warnings and state when law enforcement officers must give those warnings. In another significant provision, the Fifth Amendment protects against compelled testimonial self-incrimination by establishing that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” This provision prevents the government from coercing a defendant into making incriminating statements and thereby assisting in his own prosecution. In Miranda v. Arizona (1966), the Supreme Court established procedural requirements—the now-familiar Miranda warnings—to safeguard this Fifth Amendment right and other constitutional guarantees. The Court did so by requiring police to inform criminal suspects, before commencing custodial interrogation of them, that they have the right to remain silent, that any statements they make may be used as evidence against them, and that during questioning they have the right to the presence and assistance of a retained or court-appointed attorney (with court appointment occurring when suspects lack the financial ability to retain counsel).6 Incriminating statements that an in-custody suspect makes without first having been given the Miranda warnings are inadmissible at trial. (The exclusionary rule is thus the remedy for a Miranda violation.) If the suspect invokes her right to silence, custodial interrogation must cease. If, on the other hand, the suspect knowingly and voluntarily waives her right to silence after having been given the Miranda warnings, her statements will be admissible. The right to silence is limited, however, in various ways. For example, the traditional view that the Fifth Amendment applies only to testimonial admissions serves as the basis for allowing the police to compel an accused to furnish nontestimonial evidence such as fingerprints, samples of body fluids, and hair. Supreme Court decisions have recognized further limitations on the right to silence. For instance, the right has been held to include a corresponding implicit prohibition of prosecutorial comments at trial about the accused’s failure to testify. Although Supreme Court decisions still support this prohibition, the Court has sometimes allowed prosecutors to use the defendant’s pretrial silence to impeach his trial testimony. For example, the Court has held that the Fifth Amendment is not violated by prosecutorial use of a defendant’s silence (either prearrest or postarrest, but in advance of any Miranda warnings) to discredit his trial testimony that he killed the victim in self-defense. More recently, in Salinas v. United States, 133 S. Ct. 2174 (2013), the Court held that there was no Fifth Amendment violation when the prosecutor at a murder trial commented on the defendant’s failure, during a pre-custody and prearrest interview, to answer a police officer’s question about a shotgun and shell casings found at the scene of the crime, even though he did respond to other questions posed by the officer. Further inclination to narrow Miranda’s applicability and effect has sometimes been displayed by the Supreme Court during roughly the past three decades. In one case, for example, the Court upheld a suspect’s waiver of his Miranda rights and approved the use of his confession at trial, despite the police’s failure to notify the suspect that an attorney retained for him by a family member was seeking to contact him. Another decision established that an undercover police officer posing as a fellow inmate need not give a jailed suspect the Miranda warnings before asking questions that could lead to incriminating admissions. In Berghuis v. Thompkins, which follows, a five-justice majority of the Supreme Court holds that a suspect who wishes to invoke his Miranda right to remain silent must unambiguously invoke that right—a rule characterized by the four dissenting justices as “counterintuitively” requiring a suspect to speak up in order to indicate that he wants to remain silent. Berghuis v. Thompkins 560 U.S. 370 (U.S. Sup. Ct. 2010) Approximately a year after a Southfield, Michigan, shooting in which one person was killed and another was wounded, suspect Van Chester Thompkins was arrested. While Thompkins was in custody, police officers interrogated him. At the beginning of the interrogation, one of the officers, Detective Helgert, informed Thompkins of his Miranda rights set forth in the Miranda decision. Officers began questioning Thompkins. At no point did Thompkins state that he wished to remain silent, that he did not want to talk with the police, or that he wanted an attorney. Thompkins was largely silent during the interrogation, which lasted approximately three hours. However, he did give a few limited verbal responses such as “yeah,” “no,” or “I don’t know.” On occasion, he communicated by nodding his head. 174 Roughly two hours and 45 minutes into the interrogation, Helgert asked Thompkins, “Do you believe in God?” Thompkins made eye contact with Helgert and said “Yes,” as his eyes (according to the record) “well[ed] up with tears.” Helgert also asked, “Do you pray to God?” Thompkins said “Yes.” Helgert then asked, “Do you pray to God to forgive you for shooting that boy down?” Thompkins answered “Yes” and looked away. Thompkins refused to make a written confession, and the interrogation ended approximately 15 minutes later. In a Michigan trial court, Thompkins was charged with first-degree murder, assault with intent to commit murder, and certain firearms-related offenses. He moved to suppress the statements made during the interrogation (i.e., to have the statements ruled inadmissible at trial). He argued that he had invoked his Fifth Amendment right to remain silent, that the police officers were therefore required to end the interrogation at once, that he had not waived his right to remain silent, and that his inculpatory statements were involuntary. The trial court denied the motion. The jury found Thompkins guilty on all counts. He was sentenced to life in prison without parole. On appeal, Thompkins contended that the trial court erred in refusing to suppress his pretrial statements under Miranda. The Michigan Court of Appeals rejected the Miranda claim and affirmed the conviction. The Michigan Supreme Court denied discretionary review. Thompkins later filed a petition for a writ of habeas corpus in the U.S. District Court for the Eastern District of Michigan. Again he contended that his Miranda rights had been violated. The federal district court ruled against Thompkins, who appealed to the U.S. Court of Appeals for the Sixth Circuit. The Sixth Circuit reversed, ruling for Thompkins on his Miranda claim because his “persistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights.” The U.S. Supreme Court granted certiorari. Kennedy, Justice [In Miranda, the Court] formulated a warning that must be given to suspects before they can be subjected to custodial interrogation. The substance of the warning still must be given to suspects today. All concede that the warning given in this case was in full compliance with these requirements. The dispute centers on the response—or nonresponse—from the suspect. Thompkins makes various arguments that his answers to questions from the detectives were inadmissible. He first contends that he invoked his privilege to remain silent by not saying anything for a sufficient period of time, so the interrogation should have ceased before he made his inculpatory statements. This argument is unpersuasive. In the context of invoking the Miranda right to counsel, the Court in Davis v. United States, 512 U.S. 452, 459 (1994), held that a suspect must do so “unambiguously.” [Davis established that if] an accused makes a statement concerning the right to counsel “that is ambiguous or equivocal” or makes no statement, the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights. The Court has not yet stated whether an invocation of the right to remain silent can be ambiguous or equivocal, but there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that “avoid[s] difficulties of proof and . . . provide[s] guidance to officers” on how to proceed in the face of ambiguity. Davis, 512 U.S., at 458–459. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression if they guess wrong. Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights “might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation.” Moran v. Burbine, 475 U.S. 412, 425 (1986). But “as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process” (quoting Burbine). Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his right to cut off questioning. Here he did neither, so he did not invoke his right to remain silent. We next consider whether Thompkins waived his right to remain silent. Even absent the accused’s invocation of the right to remain silent, the accused’s statement during a custodial interrogation is inadmissible at trial unless the prosecution can 175 establish that the accused “in fact knowingly and voluntarily waived [Miranda] rights” when making the statement. North Carolina v. Butler, 441 U.S. 369, 373 (1979). The waiver inquiry has two distinct dimensions: waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception,” and [must be] “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it” (quoting Burbine). Some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement. In addition, Miranda stated that “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” The course of decisions since Miranda, informed by the application of Miranda warnings in the whole course of law enforcement, demonstrates that waivers can be established even absent formal or express statements of waiver. The main purpose of Miranda is to ensure that an accused is advised of and understands the right to remain silent and the right to counsel. One of the first cases to decide the meaning and import of Miranda with respect to the question of waiver was North Carolina v. Butler. Butler interpreted the Miranda language concerning the “heavy burden” to show waiver in accord with usual principles of determining waiver, which can include waiver implied from all the circumstances. The prosecution therefore does not need to show that a waiver of Miranda rights was express. Butler made clear that a waiver of Miranda rights may be implied through “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.” The Court in Butler therefore “retreated” from the “language and tenor of the Miranda opinion,” which “suggested that the Court would require that a waiver . . . be ‘specifically made.’” [Citation omitted.] If the state establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate a valid waiver of Miranda rights. The prosecution must make the additional showing that the accused understood these rights. Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent. The record in this case shows that Thompkins waived his right to remain silent. There is no basis in this case to conclude that he did not understand his rights; and on these facts it follows that he chose not to invoke or rely on those rights when he did speak. First, there is no contention that Thompkins did not understand his rights; and from this it follows that he knew what he gave up when he spoke. There was more than enough evidence in the record to conclude that Thompkins understood his Miranda rights. Thompkins received a written copy of the Miranda warnings; Detective Helgert determined that Thompkins could read and understand English; and Thompkins was given time to read the warnings. Thompkins, furthermore, read aloud the fifth warning, which stated that “you have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” He was thus aware that his right to remain silent would not dissipate after a certain amount of time and that police would have to honor his right to be silent and his right to counsel during the whole course of interrogation. Those rights, the warning made clear, could be asserted at any time. Helgert, moreover, read the warnings aloud. Second, Thompkins’ answer to Detective Helgert’s question about whether Thompkins prayed to God for forgiveness for shooting the victim is a “course of conduct indicating waiver” of the right to remain silent (quoting Butler). If Thompkins wanted to remain silent, he could have said nothing in response to Helgert’s questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation. The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Police are not required to re-warn suspects from time to time. Third, there is no evidence that Thompkins’s statement was coerced. Thompkins does not claim that police threatened or injured him during the interrogation or that he was in any way fearful. Thompkins knowingly and voluntarily made a statement to police, so he waived his right to remain silent. In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. Sixth Circuit’s judgment reversed; case remanded with instructions to deny petition for writ of habeas corpus. Sotomayor, Justice, with whom Justices Stevens, Ginsburg, and Breyer join, dissenting Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results . . . find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded. 176 Production of Records The preceding discussion of the privilege against self-incrimination applies to criminal defendants in general. The Fifth Amendment’s scope, however, has long been of particular concern to businesspersons charged with crimes. Documentary evidence often is quite important to the government’s case in white-collar crime prosecutions. To what extent does the Fifth Amendment protect business records? More than a century ago, the Supreme Court held, in Boyd v. United States (1886), that the Fifth Amendment protects individuals against compelled production of their private papers. In more recent years, however, the Court has drastically limited the scope of the protection contemplated by Boyd. The Court has held various times that the private papers privilege is personal and thus cannot be asserted by a corporation, partnership, or other “collective entity.” Because such entities have no Fifth Amendment privilege against self-incrimination, the Court has held that when an organization’s individual officer or agent has custody of organization records, the officer or agent cannot assert any personal privilege to prevent their disclosure. This rule holds even if the contents of the records incriminate her personally. Finally, various decisions allow the government to require business proprietors to keep certain records relevant to transactions that are appropriate subjects for government regulation. These “required records” are not entitled to private papers protection. They may be subpoenaed and used against the record keeper in prosecutions for regulatory violations. The Court’s business records decisions during the past four decades cast further doubt on the future of the private papers doctrine. Instead of focusing on whether subpoenaed records are private in nature, the Court now considers whether the act of producing the records would be sufficiently testimonial to trigger the privilege against self-incrimination. In Fisher v. United States (1976), the Court held that an individual subpoenaed to produce personal documents may assert his Fifth Amendment privilege only if the act of producing the documents would involve incriminating testimonial admissions. This is likely when the individual producing the records is in effect certifying the records’ authenticity or admitting the existence of records previously unknown to the government (demonstrating that he had access to the records and, therefore, possible knowledge of any incriminating contents). In United States v. Doe (1984), the Court extended the act-of-production privilege to a sole proprietor whose proprietorship records were subpoenaed. The Court, however, held that normal business records were not themselves protected by the Fifth Amendment because they were voluntarily prepared and thus not the product of compulsion. In view of Doe’s emphasis on the testimonial and potentially incriminating nature of the act of producing business records, some observers thought that officers of collective entities under government investigation might be able to assert their personal privileges against self-incrimination as a way to avoid producing incriminating business records. Braswell v. United States (1988) dashed such hopes, however, as the Court refused to extend its Doe holding to cover a corporation’s sole shareholder who acted in his capacity as custodian of corporate records. The Court held that Braswell (the sole shareholder), having chosen to operate his business under the corporate form, was bound by the rule that corporations and similar entities have no Fifth Amendment privilege. Because Braswell acted in a representative capacity in producing the requested records, the government could not make evidentiary use of his act of production. The government, however, was free to use the contents of the records against Braswell and the corporation. Double Jeopardy Another important Fifth Amendment provision is the Double Jeopardy Clause, which prevents a second criminal prosecution for the same offense after the defendant has been acquitted or convicted of that offense. Moreover, it bars the imposition of multiple punishments for the same offense. The Double Jeopardy Clause does not, however, preclude the possibility that a single criminal act may lead to more than one criminal prosecution. One criminal act may produce several statutory violations, all of which may give rise to prosecution. For example, a defendant who commits sexual assault may also be prosecuted for battery, assault with a deadly weapon, and kidnapping if the facts of the case indicate that the relevant statutes were violated. In addition, the Supreme Court has long used a “same elements” test to determine what constitutes the same offense. This means that a single criminal act with multiple victims (e.g., a restaurant robbery in which several patrons are robbed) could result in several prosecutions because the identity of each victim would be an additional fact or element of proof in each case. In addition, the Double Jeopardy Clause does not protect against multiple prosecutions by different sovereigns. A conviction or acquittal in a state prosecution does not prevent a subsequent federal prosecution for a federal offense arising out of the same event, or vice versa. Finally, the Double Jeopardy Clause does not bar a private plaintiff from pursuing a civil case (normally for one or more of the intentional torts discussed in Chapter 6) against a defendant who was criminally prosecuted by the government for the same alleged conduct. The headline-dominating criminal and civil cases against O. J. Simpson during the 1990s furnish perhaps the best-known example of this principle. 177 The Global Business Environment If an arrestee who is a foreign national makes incriminating statements to law enforcement authorities without having been informed of his right under an international agreement to have his detention reported to his country’s consulate, does the exclusionary rule apply? The U.S. Supreme Court confronted that question in Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). The relevant international agreement in Sanchez-Llamas was the Vienna Convention on Consular Relations, which was drafted in 1963 with the purpose, as set forth in its preamble, of “contribut[ing] to the development of friendly relations among nations, irrespective of their differing constitutional and social systems.” Approximately 170 countries have subscribed to the Vienna Convention. The United States became a party to it in 1969. Article 36 of the Vienna Convention provides that “if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.” Thus, when a national of one country is detained by authorities in another, the authorities must notify the consular officers of the detainee’s home country if the detainee so requests. Article 36 further provides that “[t]he said authorities shall inform the [detainee] without delay of his rights under this sub-paragraph.” The Convention also states that the rights provided by Article 36 “shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” Moises Sanchez-Llamas, a Mexican national, was arrested in Oregon in 1999 for alleged involvement in an exchange of gunfire in which a police officer was wounded. Following the arrest, police officers gave Sanchez-Llamas the Miranda warnings in both English and Spanish. However, the officers did not inform Sanchez-Llamas that he could ask to have the Mexican Consulate notified of his detention. Article 36 of the Vienna Convention was thus violated. During the interrogation that followed the issuance of the Miranda warnings, Sanchez-Llamas made incriminating statements that led to attempted murder charges, as well as various other charges, against him. After he made the incriminating statements and the formal charges were filed, Sanchez-Llamas learned of his Article 36 rights. He then moved for suppression of his incriminating statements (i.e., for an order that those statements be excluded from evidence at the trial) because of the Article 36 violation. The Oregon trial court denied the suppression motion. Sanchez-Llamas was convicted and sentenced to prison. After the appellate courts in Oregon affirmed, the U.S. Supreme Court agreed to decide the case. Assuming that—but without deciding whether—individuals have a right to invoke Article 36 in a judicial proceeding (as opposed to nations enforcing the Convention through political or other appropriate channels), the Supreme Court held in Sanchez-Llamas that the exclusionary rule was not a proper remedy for an Article 36 violation. The Court noted that the Vienna Convention itself said nothing about the exclusionary rule as a remedy. Instead, through the statement that Article 36 rights are to be “exercised in conformity with the laws and regulations of the receiving State,” the Convention left the implementation of Article 36 to domestic law. The Court stated that it “would be startling” if the Convention were interpreted as requiring suppression of evidence as a remedy for an Article 36 violation, because “[t]he exclusionary rule as we know it is an entirely American legal creation.” The Court stressed that there was “no reason to suppose that Sanchez-Llamas would be afforded the relief he seeks here in any of the other 169 countries party to the Vienna Convention.” (Presumably, then, a U.S. national should not assume that the exclusionary rule will apply to his case if he is arrested in another Vienna Convention nation and makes incriminating statements to law enforcement officers without having been informed of his Article 36 rights.) The Court emphasized that “[b]ecause the [exclusionary] rule’s social costs are considerable, suppression is warranted only where the rule’s “‘remedial objectives are thought most efficaciously served.’” [Case citations omitted.] The Court emphasized that “[w]e have applied the exclusionary rule primarily to deter constitutional violations”—normally those involving unreasonable searches in violation of the Fourth Amendment or incriminating statements of accused persons whose Fifth Amendment rights had been violated because their confessions were not voluntary or because they had not been given the Miranda warnings. No such problems attended the incriminating statements made by Sanchez-Llamas. From the Court’s perspective, “[t]he violation of the right to consular notification . . . is at best remotely connected to the gathering of evidence,” and “there is likely to be little connection between an Article 36 violation and evidence or statements obtained by police.” The Court reasoned that even if law enforcement officers fail to provide detained foreign nationals notice of their Article 36 rights, the same general interests served by Article 36 would be safeguarded by other protections available to persons in the situation in which Sanchez-Llamas found himself. The Court stressed that “[a] foreign national detained on suspicion of crime, like anyone else in our country, enjoys under our system the protections of the Due Process Clause[,] . . . is entitled to an attorney, and is protected against compelled self-incrimination.” Finally, the Court stated that Vienna Convention rights could be vindicated in ways other than suppression of evidence. The Court observed that a defendant could make an Article 36 argument “as part of a broader challenge to the voluntariness of his statements to police,” and that if a defendant alludes to a supposed Article 36 violation at trial, “a court can make appropriate accommodations to ensure that the defendant secures, to the extent possible, the benefits of consular assistance.” Having concluded that the exclusionary rule was not an appropriate remedy for the Article 36 violation at issue, the Court upheld the conviction of Sanchez-Llamas. 178 The Sixth Amendment Describe the basic protections afforded by the Fourth, Fifth, and Sixth Amendments. The Sixth Amendment applies to criminal cases in various ways. It entitles criminal defendants to a speedy trial by an impartial jury and guarantees them the right to confront and cross-examine the witnesses against them. The Sixth Amendment also gives the accused in a criminal case the right “to have the assistance of counsel” in her defense. This provision has been interpreted to mean not only that the accused may employ her own attorney but also that an indigent criminal defendant is entitled to court-appointed counsel. Included in the previously discussed Miranda warnings is a requirement that the police inform the accused of his right to counsel before custodial interrogation begins. Edwards v. Arizona (1981) established that once the accused has requested the assistance of counsel, he may not as a general rule be interrogated further until counsel is made available to him. The Supreme Court later held that the Edwards rule against further questioning is triggered only by an unambiguous request for counsel.7 In McNeil v. Wisconsin (1991), the Court provided further latitude for law enforcement officers by holding that if a defendant has made an in-court request for an attorney’s assistance regarding a crime with which he has been formally charged, that request does not preclude police interrogation of him—in the absence of counsel—regarding another unrelated crime. Finally, an accused is entitled to effective assistance of counsel. This means that the accused is entitled to representation at a point in the proceedings when an attorney may effectively assist him, and to reasonably competent representation by that attorney. Inadequate assistance of counsel is a proper basis for setting aside a conviction and ordering a new trial, but the standard applied to these cases makes ineffective assistance of counsel claims difficult ones for convicted defendants to invoke successfully. White-Collar Crimes and the Dilemmas of Corporate Control Introduction White-collar crime is the term used to describe a wide variety of nonviolent criminal offenses committed by businesspersons and business organizations. This term includes offenses committed by employees against their employers, as well as corporate officers’ offenses that harm the corporation and its shareholders. It also includes criminal offenses committed by corporate employers and employees against society. Each year, corporate crime costs consumers billions of dollars. It takes various forms, from consumer fraud, securities fraud, mail or wire fraud, and tax evasion to price-fixing, environmental pollution, and other regulatory violations. Corporate crime presents our legal system with various problems that we have failed to resolve satisfactorily. Corporations form the backbone of the most successful economic system in history. They dominate the international economic scene and provide us with substantial benefits in the forms of efficiently produced goods and services. Yet these same corporations may pollute the environment, swindle their customers, mislead investors, produce dangerously defective products, and conspire with others to injure or destroy competition. How are we to achieve effective control over these large organizations so important to our existence? Increasingly, we have come to rely on the criminal law as a major corporate control instrument. The criminal law, however, was developed with individual wrongdoers in mind. Corporate crime is organizational in nature. Any given corporate action may be the product of the combined actions of many individuals acting within the corporate hierarchy. It may be that no individual had sufficient knowledge to possess the mens rea necessary for criminal responsibility under usual criminal law principles. Moreover, criminally penalizing corporations raises special problems in view of the obvious inability to apply standard sanctions such as imprisonment to legal entities. Evolution of Corporate Criminal Liability The law initially rejected the notion that corporations could be criminally responsible for their employees’ actions. Early corporations, small in size and number, had little impact on public life. Their small size made it relatively easy to pinpoint individual wrongdoers within the corporation. As corporations grew in size and power, however, the social need to control their activities grew accordingly. Corporate criminal liability evolved and expanded in two ways. First, legislatures enacted statutes creating regulatory offenses that did not require proof of mens rea. Second, courts began holding corporations responsible for violating criminal laws that previously had been applied only to humans. Although those laws required proof of mens rea, courts tended to conclude that the mens rea requirement regarding a corporate defendant could be satisfied by imputing the criminal intent of employees to the corporation in a fashion similar to the imposition of tort liability on corporations under the respondeat superior doctrine.8 179 Ethics in Action The highly publicized financial scandals involving Enron, WorldCom, and other firms mentioned near the beginning of this chapter involved conduct that in some instances was alleged to be criminal. Regardless of whether criminal violations occurred, the alleged conduct was widely perceived to be questionable on ethical grounds and motivated by a desire for short-term gains notwithstanding the costs to others. Consider the broad-ranging and sometimes devastating effects of the perceived ethical lapses and the related legal proceedings (civil and/or criminal) faced by the firms and certain executives. These effects included: The crippling or near-crippling blow to the viability of the firms involved. The collapse in value of the firms’ stock and the resulting loss to disillusioned and angry shareholders who felt they had been hoodwinked. The harm to the professional and personal reputations of the individuals involved in the business decisions that triggered legal scrutiny and raised serious ethical concerns. The job losses experienced by large numbers of employees who had nothing whatsoever to do with the questionable actions that effectively brought down the firm or made massive layoffs necessary. The effects on the families of those who lost their jobs. The lack of confidence on the part of would-be investors in the profit figures and projections put forth every day by corporations—including those that have done nothing irregular. The ripple effects of the above on the economy generally. Corporations now may face criminal liability for almost any offense if the statute in question indicates a legislative intent to hold corporations responsible. This legislative intent requirement is sometimes problematic. Many state criminal statutes may contain language suggesting an intent to hold only humans liable. For example, manslaughter statutes often define the offense as “the killing of one human being by the act of another.” When statutes are framed, however, in more general terms—such as by referring to “persons.”—courts are generally willing to apply them to corporate defendants. Corporate Criminal Liability Today Under the modern rule, a corporation may be held liable for criminal offenses committed by employees who acted within the scope of their employment and for the benefit of the corporation. A major corporate criminal liability issue centers around the classes of corporate employees whose intent can be imputed to the corporation. Some commentators argue that a corporation should be criminally responsible only for offenses committed by high corporate officials or those linked to them by authorization or acquiescence. (Nearly all, if not all, courts impose criminal liability on a corporation under such circumstances.) This argument reflects fairness notions, for if any group of corporate employees can fairly be said to constitute a corporation’s mind, that group is its top officers and directors. The problem with imposing corporate liability only on the basis of top corporate officers’ actions or knowledge is that such a policy often insulates the corporation from liability. Many corporate offenses may be directly traceable only to middle managers or more subordinate employees. It may be impossible to demonstrate that any higher level corporate official had sufficient knowledge to constitute mens rea. Recognizing this problem, the federal courts have adopted a general rule that a corporation may be criminally liable for the actions of any of its agents, regardless of whether any link between the agents and higher level corporate officials can be demonstrated. Problems with Punishing Corporations Despite the legal theories that justify corporate criminal liability, the punishment of corporations remains problematic. Does a criminal conviction stigmatize a corporation in the same way it stigmatizes an individual? Perhaps the only stigma resulting from a corporate criminal conviction is felt by the firm’s employees, many of whom are entirely innocent of wrongdoing. Is it just to punish the innocent in an attempt to punish the guilty? Consider, for instance, the effects that innocent employees of the Arthur Andersen firm experienced as a result of Andersen’s obstruction of justice conviction in 2002. Although the conviction was overturned by the Supreme Court in 2005 because of faulty jury instructions (see the chapter’s earlier discussion of criminal intent), the Andersen firm had already been knocked out of existence. Many partners of the firm acquired positions elsewhere, but nonpartner employees of the firm no doubt experienced hardship despite having had nothing to do with any alleged wrongdoing. Concern about preservation of the firm and minimizing hardship for employees appeared to motivate another leading accounting firm, KPMG, to take 180 the unusual step of acknowledging possibly criminal behavior before being formally charged in connection with certain questionable tax shelters designed by the firm. By acknowledging wrongdoing, it was thought, the firm might be able to head off further criminal difficulty and remain viable as a firm. Similar motivations probably help explain BP’s decision to plead guilty to criminal charges in connection with the Deepwater Horizon oil-drilling disaster, Volkswagen’s previously noted decision to enter such a plea, and Toyota’s decision to enter into a deferred prosecution agreement with the government in regard to the firm’s actions in the sudden-acceleration saga. (See the discussion of these cases near the outset of the chapter.) What about the cash fine, the primary punishment imposed on convicted corporations? Most critics of corporate control strategies maintain that fines imposed on convicted firms tend to be too small to provide effective deterrence. These critics urge the use of fines keyed in some fashion to the corporate defendant’s wealth. Larger fines may lead to undesirable results, however, if the corporate defendant ultimately passes along the fines to its customers (through higher prices), shareholders (through lower dividends or no dividends), or employees (through lower wages). Moreover, fines large enough to threaten corporate solvency may harm employees and those economically dependent on the corporation’s financial well-being. Most of those persons, however, neither had the power to prevent the violation nor derived any benefit from it. Moreover, the managers responsible for a violation may avoid the imposition of direct burdens on them when the fine is assessed against the corporation. Still other deficiencies make fines less-than-adequate corporate control devices. Fine strategies assume that all corporations are rationally acting profit-maximizers. Fines of sufficient size, it is argued, will erode the profit drive underlying most corporate violations. Numerous studies of actual corporate behavior suggest, however, that corporations are not always rational actors. Moreover, many for-profit corporations may not be profit-maximizers all the time. Mature firms with well-established market shares may embrace goals other than profit maximization, such as technological prominence, increased market share, or higher employee salaries. In addition, the interests of managers who make corporate decisions and establish corporate policies may not coincide with the long-range economic interests of their corporate employers. The prospect that their employer could have to pay a substantial fine at some future point may not trouble top managers, who tend to have relatively short terms in office and are often compensated in part by large bonuses keyed to year-end profitability. Individual Liability for Corporate Crime Individuals who commit crimes while acting in corporate capacities have always been subjected to personal criminal liability. Most European nations reject corporate criminal liability and rely exclusively on individual criminal responsibility. In view of the problems associated with imposing criminal liability on corporations, individual liability may seem a more attractive control device. Besides being more consistent with traditional criminal law notions about the personal nature of guilt, individual liability may provide better deterrence than corporate liability if it enables society to use the criminal punishment threat against those who make important corporate decisions. The prospect of personal liability may cause individuals to resist corporate pressures to violate the law. If guilty individuals are identified and punished, the criminal law’s purposes may be achieved without harm to innocent employees, shareholders, and consumers. Problems with Individual Liability Attractive as it may sound, individual liability also poses significant problems when applied to corporate acts. Identifying responsible individuals within the corporate hierarchy becomes difficult—and frequently impossible—if we follow traditional notions and require proof of criminal intent. Business decisions leading to corporate wrongs often result from the collective actions of numerous corporate employees, none of whom had complete knowledge or specific criminal intent. Other corporate crimes are structural in the sense that they result from internal bureaucratic failures rather than the conscious actions of any individual or group. Proving culpability on the part of high-level executives may be particularly difficult. Bad news sometimes does not reach them; other times, they consciously avoid knowledge that would lead to criminal responsibility. It therefore may be possible to demonstrate culpability only on the part of middle-level managers. Juries may be unwilling to convict such individuals, however, if they seem to be scapegoats for their unindicted superiors. The difficulties in imposing criminal penalties on individual employees have led to the creation of regulatory offenses that impose strict or vicarious liability on corporate officers. Strict liability offenses dispense with the requirement of proof of criminal intent but ordinarily require proof that the defendant committed some wrongful act. Vicarious liability offenses impose criminal liability on a defendant for the acts of third parties (normally, employees under the defendant’s personal supervision), but may require proof of some form of mens rea, such as the defendant’s negligent or reckless failure to supervise. Statutes often combine these two approaches by making corporate executives liable for 181 the acts or omissions of corporate employees without requiring proof of criminal intent on the part of the employees. Critics of strict liability offenses often argue that mens rea is a basic principle in our legal system and that it is unjust to stigmatize with a criminal conviction persons who are not morally culpable. In addition, critics doubt that strict liability statutes produce the deterrence sought by their proponents. Such statutes may reduce the moral impact of the criminal sanction if they apply it to relatively trivial offenses. Moreover, they may not result in enough convictions or sufficiently severe penalties to produce deterrence because juries and judges are unwilling to convict or punish defendants who may not be morally culpable. Although statutes creating strict liability offenses are generally held constitutional, they are disfavored by courts. Most courts require a clear indication of a legislative intent to dispense with the mens rea element. For instance, in United States v. Certified Environmental Services, Inc., 753 F.3d 72 (2d Cir. 2014), a federal court of appeals vacated the convictions of a corporation and affiliated individuals on charges of regulatory violations having to do with asbestos-removal and related matters. Emphasizing the importance of the element of criminal intent, the appellate court held that the trial court had erred in refusing to allow evidence going toward possible good faith on the part of the defendants. This erroneously rejected evidence included evidence of the defendants’ attempts to gain appropriate guidance from regulatory authorities on their obligations under relevant laws and regulations. Strict liability offenses are also criticized on the ground that even if responsible individuals within the corporation are convicted and punished appropriately, individual liability unaccompanied by corporate liability is unlikely to achieve effective corporate control. If immune from criminal liability, corporations could benefit financially from employees’ violations of the law. Individual liability, unlike a corporate fine, does not force a corporation to give up the profits flowing from a violation. Thus, the corporation would have no incentive to avoid future violations. Incarcerated offenders would merely be replaced by others who might eventually yield to the pressures that produced the violations in the first place. Corporate liability, however, may sometimes encourage corporate efforts to prevent future violations. When an offense has occurred but no identifiable individual is sufficiently culpable to justify an individual prosecution of him or her, corporate liability is uniquely appropriate. New Directions The preceding discussion suggests that future efforts at corporate control will continue to include both corporate and individual criminal liability. It also suggests, however, that new approaches are necessary if society is to gain more effective control over corporate activities. Various novel criminal penalties have been utilized in the individual liability setting. For example, white-collar offenders have sometimes been sentenced to render public service in addition to, or in lieu of, being incarcerated or fined. Some have even suggested the licensing of managers, with license suspensions as a penalty for offenders. The common thread in these and other similar approaches is an attempt to create penalties that are meaningful yet not so severe that judges and juries are unwilling to impose them. Ethics in Action Enron employee Sherron Watkins received considerable praise from the public, governmental officials, and media commentators when she went public with her concerns about certain accounting and other business practices of her employer. These alleged practices caused Enron and high-level executives of the firm to undergo considerable legal scrutiny in the civil and criminal arenas. In deciding to become a whistleblower, Sherron Watkins no doubt was motivated by what she regarded as a moral obligation. The decision she made was more highly publicized than most decisions of that nature but was otherwise of a type that many employees have faced and will continue to face. You may be among those persons at some point in your career. Various questions, including the ones set forth below, may therefore be worth pondering. As you do so, you may find it useful to consider the perspectives afforded by the ethical theories discussed in Chapter 4. When an employee learns of apparently unlawful behavior on the part of his or her employer, does the employee have an ethical duty to blow the whistle on the employer? Do any ethical duties or obligations of the employee come into conflict in such a situation? If so, what are they, and how does the employee balance them? What practical consequences may one face if he or she becomes a whistleblower? What role, if any, should those potential consequences play in the ethical analysis? What other consequences are likely to occur if the whistle is blown? What is likely to happen if the whistle isn’t blown? Should these likely consequences affect the ethical analysis? If so, how? 182 A promising suggestion regarding corporate liability involves imaginative judicial use of corporate probation for convicted corporate offenders. For example, courts could require convicted corporations to do self-studies identifying the source of a violation and proposing appropriate steps to prevent future violations. If bureaucratic failures caused the violation, the court could order a limited restructuring of the corporation’s internal decision-making processes as a condition of obtaining probation or avoiding a penalty. Possible orders might include requiring the collection and monitoring of the data necessary to discover or prevent future violations and mandating the creation of new executive positions to monitor such data. Restructuring would minimize the previously discussed harm to innocent persons that often accompanies corporate financial penalties. In addition, restructuring could be a more effective way to achieve corporate rehabilitation than relying exclusively on a corporation’s desire to avoid future fines as an incentive to police itself. The Federal Sentencing Guidelines, discussed earlier in this chapter in Figure 1, contain good reasons for corporations to institute measures to prevent regulatory violations. This is true even though, as Figure 1 indicates, the Supreme Court’s 2005 decision in Booker made the Guidelines advisory rather than mandatory. Under the subset of rules known as the Corporate Sentencing Guidelines, organizations convicted of violating federal law may face greatly increased penalties for certain offenses, with some crimes carrying fines as high as roughly $300 million. The penalty that may be imposed on an organization depends on its “culpability score,” which increases (thus calling for a more severe penalty) if, for example, high-level corporate officers were involved in the offense or the organization had a history of such offenses. Even apart from the potentially severe penalties, however, the Corporate Sentencing Guidelines provide an incentive for corporations to adopt compliance programs designed “to prevent and detect violations of the law.” The presence of an effective compliance program may reduce the corporation’s culpability score for sentencing purposes. Prior to the time the Corporate Sentencing Guidelines were developed, courts generally concluded that the existence of a compliance program should not operate as a mitigating factor in the sentencing of a convicted organization. In recent years, the Justice Department has made increased use of deferred prosecution agreements (DPAs), under which corporations avoid formal criminal charges and trials in return for their agreement to pay monetary penalties and submit to outside monitoring of their activities. Proponents of DPAs see them as a way to encourage more responsible behavior from corporations without the “hammer.” of the criminal sanction. Critics, however, see the increased use of DPAs as sending a signal to corporations that they may engage in wrongful activities but still have available, in a figurative sense, a “get-out-of-jail-almost-free” card. As noted in earlier discussion, Toyota entered into a DPA dealing with the automaker’s responses to the sudden acceleration problem in some of its vehicles. Important White-Collar Crimes Regulatory Offenses Numerous state and federal regulatory statutes on a wide range of subjects prescribe criminal as well as civil liability for violations. For instance, the federal Food, Drug, and Cosmetic Act obligates pharmaceutical companies to report safety data regarding their medications to the Food and Drug Administration (FDA) and bars such companies from promoting their medications for uses other than those approved by the FDA. In 2012, GlaxoSmithKline pleaded guilty to criminal charges in which the government alleged that the firm had violated these obligations. The charges that the government considered filing against GM in recent years included an alleged failure to disclose material safety information to the National Highway Traffic Safety Administration under provisions in federal law that impose such a disclosure obligation. Other major federal regulatory offenses are discussed in later chapters. These include violations of the Sherman Antitrust Act, the Securities Act of 1933, the Securities Exchange Act of 1934, and certain environmental laws. Fraudulent Acts Many business crimes involve some fraudulent conduct. In most states, it is a crime to obtain money or property by fraudulent pretenses, issue fraudulent checks, make false credit statements, or give short weights or measures. Certain forms of fraud in bankruptcy proceedings, such as false claims by creditors or fraudulent concealment or transfer of a debtor’s assets, are federal criminal offenses. The same is true of securities fraud and extortion. Sekhar v. United States, which appears earlier in the chapter, deals with what does and does not constitute extortion under the federal Hobbs Act. In addition, the federal mail fraud and wire fraud statutes make criminal the use of the mail, telephones, e-mail, or other similar means of communication to accomplish a fraudulent scheme. In United States v. Anderson, which follows, the court outlines the elements the government must prove in mail fraud and wire fraud prosecutions and analyzes the factual record of the case in light of those elements. The court also addresses sentencing issues under the Federal Sentencing Guidelines. 183 United States v. Anderson 2014 U.S. App. LEXIS 4994 (5th Cir. 2014) A federal grand jury returned a 12-count indictment against spouses Andrea and Norman Anderson. Count 1 alleged that the Andersons conspired to commit wire fraud, in violation of 18 U.S.C. § 1349. Counts 2 through 12 alleged that they committed wire fraud, in violation of 18 U.S.C. § 1343. At the Andersons’ jury trial, the government adduced evidence indicating that the Andersons ran a Ponzi scheme under which various persons were defrauded. According to the government’s evidence, the Andersons represented to potential victims that they were successful investors and that they wanted to help others find similar success. They would usually tell their victims that Andrea Anderson had a sister, supposedly named “Lenore Lawrence,” who purportedly worked at Goldman Sachs. They also claimed that they had a sizable investment account at Goldman Sachs. The Andersons further represented that “Lenore” would be the one purchasing the stocks for which the victims were paying. Victims provided their money to the Andersons’ personal bank accounts in a variety of ways, including wire transfers, cashier’s checks, personal checks, and cash. The evidence further indicated that the Andersons sent the victims e-mails confirming the making of payments and that they sometimes asked for more money in order to complete transactions. The Andersons did own a few investment accounts at TD Ameritrade. Some victims received money from their investments, but usually this was money taken from one victim and given to another. As a U.S. Secret Service special agent testified, “[t]he same day . . . that funds came in from one investor, the money went right back out to another investor.” At other times, instead of sending the principal and interest back to the victim as promised, the Andersons would claim that they had reinvested the money because “[n]ow is not the time not to invest.” Victims also received e-mails supposedly sent by Lenore Lawrence, claiming that the victims’ instructions (to sell off stocks and return their money) were being followed. No one ever met Lawrence or spoke to her on the phone, however. Some victims demanded their money back repeatedly but to no avail. Andrea Anderson sometimes responded by forwarding e-mails that were supposedly from Goldman Sachs employees. These e-mails were not genuine. According to the evidence, Andrea Anderson would meet with Goldman Sachs employees and act as though she wanted to open an account. When the Goldman Sachs employees would e-mail her to follow up on their initial meeting, Anderson would modify those e-mails and forward them to the victims. The evidence also revealed that Goldman Sachs did not employ a “Lenore Lawrence” and that the Andersons did not own an investment account at Goldman Sachs. Although the evidence showed that the Andersons did invest some of the money, they never made noteworthy returns on their investments and mostly experienced losses. The Andersons had no other source of income. It appeared that they used the victims’ money for personal expenses. Ultimately, according to the evidence, 11 victims lost a total of approximately $915,000. The jury convicted the Andersons on all 12 counts. The district court sentenced each of them to 57 months of imprisonment and ordered that they pay $915,000 in restitution. The Andersons appealed their convictions and their sentences to the U.S. Court of Appeals for the Fifth Circuit, which issued an unsigned Per Curiam opinion. Per Curiam The Andersons first argue that the evidence is insufficient to sustain the jury’s verdict of guilty on the 12 counts of conviction. We must affirm [the jury’s verdict] if a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt. The Andersons were convicted of one count of conspiracy to commit wire fraud under 18 U.S.C. § 1349. To prove a conspiracy to commit wire fraud, the government had to prove beyond a reasonable doubt that (1) two or more persons made an agreement to commit wire fraud; (2) that the defendant knew the unlawful purpose of the agreement; and (3) that the defendant joined in the agreement willfully, in other words, with the intent to further the unlawful purpose. The agreement may be silent and does not need to be formal or spoken. “An agreement may be inferred from concert of action, voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances.” [Case citation omitted.] The Andersons were also convicted of 11 counts of wire fraud under 18 U.S.C. § 1343. To prove wire fraud, the government had to prove beyond a reasonable doubt (1) a scheme to defraud; and (2) the use of, or causing the use of, wire communications in furtherance of the scheme. Additionally, even though not within the language of § 1343, “materiality of falsehood is an element” of the crime. “A material statement has a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.” “Violation of the wire-fraud statute requires the specific intent to defraud, i.e., a ‘conscious knowing intent to defraud.’” [Case citations omitted throughout paragraph.] [Regarding] the conspiracy conviction, the Andersons assert that there is insufficient evidence as to all the essential elements. However, the government points to evidence from which a rational 184 trier of fact could have drawn the necessary inferences. Several victims testified that the Andersons worked in tandem. For example, victim Phillip Douglas was introduced to the Andersons by another victim, his ex-girlfriend Deborah Ford. “She just said [that she was investing with] Andrea and Norman, because they were like one. One person, basically. They were a couple.” Victim Rafael Green testified that he was in frequent e-mail contact with Andrea Anderson, that she forwarded him a “Goldman Sachs” e-mail, and that he later received repayment from Norman Anderson, as promised by the e-mail. [Various other victims testified that both Andersons communicated with them about their investments and in response to complaints by them.] Not only that, but both spouses were making material misrepresentations. Both spouses met with victims Tom Parrish and his wife: “They told us that they . . . had a private family hedge fund with Andrea’s sister and her cousin, her sister Lenore, and her cousin Joy. That one of them worked for Goldman Sachs, and the other worked for BlackRock in New York City.” Both statements were false. The record is replete with similar evidence. Given all this evidence, a rational trier of fact could have found all three elements of conspiracy to commit wire fraud beyond a reasonable doubt. As to the substantive crime of wire fraud, the Andersons argue there is insufficient evidence to show the specific intent to defraud. However, a rational trier of fact could have found this specific intent beyond a reasonable doubt simply from the fact that the Andersons were lying about their connection to Goldman Sachs, among other things. These lies were intended to get people to invest with them. The evidence at trial was sufficient to support the Andersons’ convictions on all counts. The Andersons claim, however, that Count 1 of the indictment should have been dismissed because it fails to state an offense. They argue that 18 U.S.C. § 1349 is a penalty provision only, and that it is unconstitutional to apply it as a criminal offense because it gives no notice to the public of what constitutes a conspiracy to commit wire fraud. Enacted as part of the Sarbanes–Oxley Act of 2002, 18 U.S.C. § 1349 provides: “Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” According to the Andersons, the fatal flaw in this language is that it does not contain the requirements of a conspiracy [as set forth in certain other federal laws specifically requiring proof that two or more persons must have worked together in an effort to defraud or otherwise violate the law and that at least one of the conspirators must have engaged in some overt act in furtherance of the alleged conspiracy]. [T]he Andersons complain that § 1349 does not contain the essential elements of an overt act or even conspiratorial agreement between two or more people. The government responds by explaining that § 1349 parallels 21 U.S.C. § 846, a freestanding drug conspiracy offense. The two provisions are almost identical. Section 846 provides: “Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” Like § 1349, § 846 lacks an overt act requirement. But the Supreme Court has held that there is no constitutional problem with the lack of an overt act requirement in § 846, and has upheld convictions under that provision. The Supreme Court has similarly found other conspiracy statutes lacking an overt act requirement constitutional. Similarly, we have clarified [in earlier decisions] that § 1349 indeed does not contain an overt act requirement, and have refused to dismiss an indictment where the defendant was arguing that being charged under both § 1349 and [another federal statute dealing with conspiracies] violated the prohibition on multiplicity. [Citations omitted throughout paragraph.] That § 1349 does not contain an explicitly stated requirement of two or more persons agreeing should not be problematic given that § 846 and similar conspiracy statutes also do not have this language. Finally, the fact that “attempts” and “conspires” are is not a problem because even the Andersons’ prime example [of a conspiracy statute that lays out the requirements more specifically] does not define “conspire.” The Andersons’ contention that § 1349 is [merely a] penalty provision because of the circumstances of its legislative birth is also unpersuasive. Section 1349 was originally in Title IX of the Sarbanes–Oxley Act of 2002, which was entitled “White-Collar Crime Penalty Enhancements.” However, as the Supreme Court has previously clarified, the heading of a statute is only helpful if there is some doubt about the meaning of the statute. [Case citation omitted.] Here, this is no ambiguity. Section 1349 is clearly a freestanding criminal charge. The Andersons’ contention that the district court erred by not dismissing the indictment fails. [In challenging the sentences imposed on them,] the Andersons contend that the district court erred in calculating the number of victims. Under [the U.S. Sentencing Guidelines], if the offense involved 10 or more victims, the offense level is increased by two levels [and the potential punishment is therefore more severe]. The commentary to [the Sentencing Guidelines] defines “victim” as, among other things, “any person who sustained any part of the actual loss.” “Actual loss” is defined as “the reasonably foreseeable pecuniary harm that resulted from the offense.” [Citations omitted.] We review a district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. No clear error has occurred if the district court’s finding is plausible in light of the record as a whole. The Andersons contend that there were just 9, not 11, victims because [one investor] 185 combined his investments with those of two other investors. At the sentencing hearing, the district court rejected this argument [and concluded that there were 11 victims]. This factual finding is clearly plausible in light of the record as a whole. The district court did not clearly err in finding that there were at least 10 victims, justifying the [potential penalty] enhancement [under the Sentencing Guidelines]. The Andersons also argue that the district court imposed a substantively unreasonable sentence. It is well-settled that the Sentencing Guidelines are advisory, and sentencing decisions are examined for reasonableness. “Properly calculated within-Guidelines sentences enjoy a presumption of reasonableness that is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” [Case citation omitted.] When a district court imposes a within-Guidelines sentence, we “infer that the judge has considered all the factors for a fair sentence . . . , and it will be rare for a reviewing court to say such a sentence is unreasonable.” [Case citation omitted.] Here, the district court sentenced the Andersons to 57 months in prison, a within-Guidelines sentence. The district court [stated that] it found the sentences reasonable “in view of the nature and circumstances of the offense.” As to both sentences, the court found that they would “serve as just punishment, promote respect for the law, and deter future violations of the law.” Given the within-Guidelines sentences and the district court’s consideration of [relevant factors], the Andersons have not overcome the presumption of reasonableness. Convictions of defendants affirmed; sentences imposed on them affirmed. The Sarbanes–Oxley Act In response to a series of highly publicized financial scandals and accounting controversies involving Enron, Arthur Andersen, Global Crossing, WorldCom, and other firms, Congress enacted the Sarbanes–Oxley Act of 2002. The Sarbanes–Oxley Act created the Public Company Accounting Oversight Board and charged it with regulatory responsibilities concerning public accounting firms’ audits of corporations. The statute also established various requirements designed to ensure auditor independence; bring about higher levels of accuracy in corporate reporting of financial information; and promote responsible conduct on the part of corporate officers and directors, auditors, and securities analysts. Additional portions of the broad-ranging Sarbanes–Oxley Act were given separate and more informative titles such as the Corporate and Criminal Fraud Accountability Act and the White-Collar Crime Penalty Enhancement Act. In those other portions of the statute, Congress: Established substantial fines and/or a maximum of 20 years of imprisonment as punishment for the knowing alteration or destruction of documents or records with the intent to impede a government investigation or proceeding. Made it a crime for an accountant to destroy corporate audit records prior to the appropriate time set forth in the statute and in regulations to be promulgated by the Securities and Exchange Commission. Classified debts resulting from civil judgments for securities fraud as nondischargeable in bankruptcy. Lengthened the statute of limitations period within which certain securities fraud cases may be filed. Provided legal protections for employees who act as whistleblowers regarding instances of fraud engaged in by their employers or, as the Supreme Court held in Lawson v. FMR LLC, 134 S. Ct. 1158 (2014), by other firms that use them on an outside-contracting basis for advice or services such as auditing. Established substantial fines and/or imprisonment of up to 25 years as the punishment for certain securities fraud offenses. Increased the maximum term of imprisonment for mail fraud and wire fraud to 20 years. Made attempts and conspiracies to commit such offenses subject to the same penalties established for the offenses themselves. Enhanced the penalties for certain criminal violations of the Securities Exchange Act of 1934. Instructed the U.S. Sentencing Commission to review the Federal Sentencing Guidelines’ treatment of obstruction of justice offenses, white-collar crimes, and securities fraud offenses, in order to ensure that deterrence and punishment purposes were being adequately served. Bribery and Giving of Illegal Gratuities State and federal law has long made it a crime to offer public officials gifts, favors, or anything of value to influence official decisions for private benefit. In 1977, Congress enacted the Foreign Corrupt Practices Act (FCPA), 186 which criminalized the offering or giving of anything of value to officials of foreign governments in an attempt to influence their official actions. Individuals who violate the FCPA’s bribery prohibition may be fined up to $250,000 and/or imprisoned for a maximum of five years. Corporate violators of the FCPA may be fined as much as $2 million. Chapter 45 discusses the FCPA in more depth. As explained in the nearby Global Business Environment box, the 1990s marked the emergence of international agreements as additional devices for addressing the problem of bribery of government officials. In recent years, various high-profile companies and their executives or other employees have been the subject of federal investigations for potential violations of the FCPA. Regardless of whether such investigations lead to actual criminal charges, these firms and the individuals associated with them incur substantial legal costs and may take significant hits to their reputations. The experience sometimes convinces investigated companies that enhancement of their legal-compliance programs is a prudent step to lessen the danger of future problems of a similar nature. Most states in the United States also have commercial bribery statutes. These laws prohibit offering or providing kickbacks and similar payoffs to private parties in order to secure some commercial advantage. RICO Identify the elements that the government must prove in a criminal RICO case and that a private plaintiff must prove in a civil RICO case. When Congress passed the Racketeer Influenced and Corrupt Organizations Act (RICO) as part of the Organized Crime Control Act of 1970, lawmakers were primarily concerned about organized crime’s increasing entry into legitimate business enterprises. RICO’s broad language, however, allows the statute to be applied in a wide variety of cases having nothing to do with organized crime. As a result, RICO has become one of the most controversial pieces of legislation affecting business. Supporters of RICO argue that it is an effective and much-needed tool for attacking unethical business practices. Its critics, however, see RICO as an overbroad statute that needlessly taints business reputations. Critics also argue that RICO has operated unduly to favor plaintiffs in civil litigation rather than serving as an aid to law enforcement. Criminal RICO Under RICO, it is a federal crime for any person to (1) use income derived from a “pattern of racketeering activity” to acquire an interest in, establish, or operate an enterprise; (2) acquire or maintain an interest in an enterprise through a pattern of racketeering activity; (3) conduct or participate in, through a pattern of racketeering activity, the affairs of an enterprise by which he is employed or with which he is affiliated; or (4) conspire to do any of the preceding acts. RICO is a compound statute because it requires proof of “predicate” criminal offenses that constitute the necessary pattern of racketeering activity. Racketeering activity includes the commission of any of more than 30 state or federal criminal offenses. Although most offenses that qualify (e.g., arson, gambling, extortion) have no relation to normal business transactions, such offenses as mail and wire fraud, securities fraud, and bribery are also included. Thus, many forms of business fraud may be alleged to be a racketeering activity. To show a pattern of such activity, the prosecution must first prove the defendant’s commission of at least two acts of racketeering activity within a 10-year period. The pattern requirement also calls for proof that these acts are related and amount to, or pose the threat of, continuing racketeering activity. Courts have interpreted the statutory term enterprise broadly, so that it includes not only corporations but also partnerships, unincorporated associations, and sometimes organizations with no set hierarchy. The RJR Nabisco case, which follows shortly, deals with whether RICO applies only to actions within the United States or whether it may have extraterritorial application. Defendants found guilty of RICO violations are subject to substantial fines and/or imprisonment. In addition, RICO violators risk the forfeiture of any interest gained in any enterprise as a result of a violation, as well as forfeiture of property derived from the prohibited racketeering activity. To prevent defendants from hiding assets that may be forfeitable upon conviction, federal prosecutors may seek pretrial orders freezing a defendant’s assets. Some RICO critics argue that the harm such a freeze may work on a defendant’s ability to conduct business, coupled with the threat of forfeiture of most or all of the business upon conviction, has led some defendants to make plea bargains rather than risk all by fighting prosecutions they believe to be unjustified. Civil RICO Under RICO, the government may also seek various civil penalties for violations. These include divestiture of a defendant’s interest in an enterprise, dissolution or reorganization of the enterprise, and injunctions against future racketeering activities. RICO’s most controversial sections, however, allow private individuals to recover treble damages (three times their actual loss) and attorney’s fees for injuries caused by a statutory violation. To qualify for recovery under RICO, a plaintiff must prove that the defendant violated RICO’s provisions (as explained above) and that the plaintiff was “injured in his business or property by reason of” the RICO violation. A direct causation link must exist between the RICO violation and the harm experienced by the plaintiff. 187 The Global Business Environment At varying times since the 1977 enactment of the Foreign Corrupt Practices Act, the United States has advocated the development of international agreements designed to combat bribery and similar forms of corruption on at least a regional, if not a global, scale. These efforts and those of other nations sharing similar views bore fruit during the past decade. In 1996, the Organization of American States (OAS) adopted the Inter-American Convention Against Corruption (IACAC). When it ratified the IACAC in September 2000, the United States joined 20 other subscribing OAS nations. The IACAC prohibits the offering or giving of a bribe to a government official in order to influence the official’s actions, the solicitation or receipt of such a bribe, and certain other forms of corruption on the part of government officials. It requires subscribing nations to make changes in their domestic laws, in order to make those laws consistent with the IACAC. The United States has taken the position that given the content of the Foreign Corrupt Practices Act and other U.S. statutes prohibiting the offering and solicitation of bribes as well as various other forms of corruption, its statutes already are consistent with the IACAC. The Organization for Economic Cooperation and Development (OECD) is made up of 29 nations that are leading exporters. In 1997, the OECD adopted the Convention on Combating Bribery of Officials in International Business Transactions. The OECD Convention, subscribed to by the United States, 28 other OECD member nations, and five nonmember nations, prohibits the offering or giving of a bribe to a government official in order to obtain a business advantage from the official’s action or inaction. It calls for subscribing nations to have domestic laws that contain such a prohibition. Unlike the IACAC, however, the OECD neither prohibits the government official’s solicitation or receipt of a bribe nor contains provisions dealing with the other forms of official corruption contemplated by the IACAC. In 1999, the Council of Europe adopted the Criminal Law Convention on Corruption, which calls upon European Union (EU) member nations to develop domestic laws prohibiting the same sorts of behaviors prohibited by the IACAC. Many European Union members have signed on to this convention, as have three nonmembers of the EU. One of those is the United States. Because the IACAC, the OECD Convention, and the Criminal Law Convention are relatively recent developments, it is too early to draw firm conclusions about whether they have been effective international instruments for combating bribery and similar forms of corruption. Much depends upon whether the domestic laws contemplated by these conventions are enforced with consistency and regularity. Aided by the Supreme Court’s refusal in Sedima, S.P.R.L. v. Imrex Co. (1985), to give a narrowing construction to the broadly phrased RICO, private plaintiffs have brought a large number of civil RICO cases in recent years. In Sedima, the Court rejected some lower federal courts’ approach of requiring civil RICO plaintiffs to prove that the defendant had actually been criminally convicted of a predicate offense. The Court also rejected the argument that civil RICO plaintiffs should be expected to prove a “distinct racketeering injury” as a precondition of recovery. The Court acknowledged lower courts’ concern about RICO’s breadth and noted the fact that most civil RICO cases are filed against legitimate businesses rather than against “the archetypal, intimidating mobster.” Nevertheless, the Court observed that “[t]his defect—if defect it is—is inherent in the statute as written, and its correction must lie with Congress.” Various RICO reform proposals have been unsuccessfully introduced in Congress. A 1995 reform measure that did become law, however, established that a civil RICO case cannot be based on conduct that would have been actionable as securities fraud unless the conduct amounting to securities fraud had resulted in a criminal conviction. In RJR Nabisco, Inc. v. European Community, which follows, the Supreme Court considers whether RICO’s substantive provisions may have extraterritorial application and, if so, whether the civil damages remedy provision of RICO also applies in that manner. RJR Nabisco, Inc. v. European Community 136 S. Ct. 2090 (U.S. Sup. Ct. 2016) The case described here rested on allegations that RJR Nabisco, Inc. and numerous related entities (collectively referred to here as RJR) participated in a global money-laundering scheme that involved various groups. The European Community and 26 of its member states (collectively referred to here as the EC) sued RJR in the U.S. District Court for the Eastern District of New York, alleging that RJR had violated RICO. The complaint alleged a scheme under which Colombian and Russian 188 drug traffickers smuggled narcotics into Europe and sold the drugs for euros that, through a series of transactions involving black-market money brokers, cigarette importers, and wholesalers, were used to pay for large shipments of RJR cigarettes into Europe. In other variations of this scheme, RJR allegedly dealt directly with drug traffickers and money launderers in South America and sold cigarettes to Iraq in violation of international sanctions. The complaint also alleged that RJR acquired Brown & Williamson Tobacco Corporation for the purpose of expanding these illegal activities. According to the EC’s complaint, RJR engaged in a pattern of racketeering activity consisting of numerous acts of money laundering, material support to foreign terrorist organizations, mail fraud, wire fraud, and violations of the Travel Act. RJR and the other participants in the scheme allegedly formed an association that was engaged in interstate and foreign commerce and was therefore an enterprise for purposes of RICO. More specifically, the complaint alleged that RJR violated each of RICO’s substantive prohibitions (which are summarized in this chapter’s text and in the following edited version of the Supreme Court’s opinion). These violations allegedly harmed the EC in various ways, including through competitive harm to state-owned cigarette businesses, lost tax revenue from black-market cigarette sales, harm to European financial institutions, currency instability, and increased law enforcement costs. Therefore, the EC sought to recover damages under RICO’s civil remedy provision, 18 U.S.C. § 1964(c). RJR moved to dismiss the complaint, arguing that RICO does not apply to racketeering activity occurring outside U.S. territory or to foreign enterprises. The district court agreed and dismissed the RICO claims as impermissibly extraterritorial. The U.S. Court of Appeals for the Second Circuit disagreed, however, and reinstated the RICO claims. Because circuit courts of appeals had come to differing conclusions on whether RICO’s provisions apply extraterritorially, the U.S. Supreme Court granted RJR’s request that it decide the case. Alito, Justice We are asked to decide whether RICO applies extraterritorially—that is, to events occurring and injuries suffered outside the United States. RICO is founded on the concept of racketeering activity. The statute defines “racketeering activity” to encompass dozens of state and federal offenses, known in RICO parlance as predicates. These predicates include any act indictable under specified federal statutes, as well as certain crimes chargeable under state law, and any offense involving bankruptcy or securities fraud or drug-related activity that is punishable under federal law. [Citations omitted.] A predicate offense implicates RICO when it is part of a pattern of racketeering activity—a series of related predicates that together demonstrate the existence or threat of continued criminal activity. RICO’s § 1962 sets forth four specific prohibitions aimed at different ways in which a pattern of racketeering activity may be used to infiltrate, control, or operate “a[n] enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” Section 1962(a) makes it unlawful to invest income derived from a pattern of racketeering activity in an enterprise. Section 1962(b) makes it unlawful to acquire or maintain an interest in an enterprise through a pattern of racketeering activity. Section 1962(c) makes it unlawful for a person employed by or associated with an enterprise to conduct the enterprise’s affairs through a pattern of racketeering activity. Finally, § 1962(d) makes it unlawful to conspire to violate any of the other three prohibitions. Violations of §1962 are subject to criminal penalties, and civil proceedings to enforce those prohibitions may be brought by the Attorney General. Separately, RICO creates a private civil cause of action that allows “[a]ny person injured in his business or property by reason of a violation of section 1962” to sue in federal district court and recover treble damages, costs, and attorney’s fees. § 1964(c). The question of RICO’s extraterritorial application really involves two questions. First, do RICO’s substantive prohibitions, contained in § 1962, apply to conduct that occurs in foreign countries? Second, does RICO’s private right of action, contained in § 1964(c), apply to injuries that are suffered in foreign countries? We consider each of these questions in turn. It is a basic premise of our legal system that, in general, “United States law governs domestically but does not rule the world.” [Citation omitted.] This principle finds expression in a canon of statutory construction known as the presumption against extraterritoriality: Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application. The question is not whether we think “Congress would have wanted” a statute to apply to foreign conduct “if it had thought of the situation before the court,” but whether Congress has affirmatively and unmistakably instructed that the statute will do so. [Citation omitted.] There are several reasons for this presumption. Most notably, it serves to avoid the international discord that can result when U.S. law is applied to conduct in foreign countries. But it also reflects the more prosaic “commonsense notion that Congress generally legislates with domestic concerns in mind.” [Citation omitted.] We therefore apply the presumption across the board, “regardless of whether there is a risk of conflict between the American statute and a foreign law.” [Citation omitted.] 189 [Our precedents] reflect a two-step framework for analyzing extraterritoriality issues. At the first step, we ask whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially. If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute’s focus. If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. What if we find at step one that a statute clearly does have extraterritorial effect? A finding of extraterritoriality at step one [means that] step two’s “focus” inquiry [will not be undertaken]. The scope of an extraterritorial statute thus turns on the limits Congress has (or has not) imposed on the statute’s foreign application, and not on the statute’s focus. With these guiding principles in mind, we first consider whether RICO’s substantive prohibitions in §1962 may apply to foreign conduct. [W]e find that the presumption against extraterritoriality has been rebutted—but only with respect to certain applications of the statute. The most obvious textual clue is that RICO defines racketeering activity to include a number of predicates that plainly apply to at least some foreign conduct. These predicates include the prohibition against engaging in monetary transactions in criminally derived property, which expressly applies, when “the defendant is a United States person,” to offenses that “tak[e] place outside the United States.” [Citation omitted.] Other examples include the prohibitions against the assassination of government officials and the prohibition against hostage taking, which applies to conduct that occurred outside the United States if either the hostage or the offender is a U.S. national, if the offender is found in the United States, or if the hostage taking is done to compel action by the U.S. government. At least one predicate—the prohibition against “kill[ing] a national of the United States, while such national is outside the United States”—applies only to conduct occurring outside the United States. [Citations omitted.] We agree with the Second Circuit that Congress’s incorporation of these (and other) extraterritorial predicates into RICO gives a clear, affirmative indication that §1962 applies to foreign racketeering activity—but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially. Put another way, a pattern of racketeering activity may include or consist of offenses committed abroad in violation of a predicate statute for which the presumption against extraterritoriality has been overcome. We emphasize the important limitation that foreign conduct must violate a predicate statute that manifests an unmistakable congressional intent to apply extraterritorially. Although a number of RICO predicates have extraterritorial effect, many do not. The inclusion of some extraterritorial predicates does not mean that all RICO predicates extend to foreign conduct. RJR resists the conclusion that RICO’s incorporation of extraterritorial predicates gives RICO commensurate extraterritorial effect. It points out that RICO itself does not refer to extraterritorial application; only the underlying predicate statutes do. [However, the] presumption against extraterritoriality does not require us to adopt such a constricted interpretation. While the presumption can be overcome only by a clear indication of extraterritorial effect, an express statement of extraterritoriality is not essential. Context can be consulted as well. [C]ontext is dispositive here. Congress has not expressly said that § 1962(c) applies to patterns of racketeering activity in foreign countries, but it has defined “racketeering activity”—and by extension a “pattern of racketeering activity”—to encompass violations of predicate statutes that do expressly apply extraterritorially. Short of an explicit declaration, it is hard to imagine how Congress could have more clearly indicated that it intended RICO to have (some) extraterritorial effect. This unique structure makes RICO the rare statute that clearly evidences extraterritorial effect despite lacking an express statement of extraterritoriality. We therefore conclude that RICO applies to some foreign racketeering activity. A violation of § 1962 may be based on a pattern of racketeering that includes predicate offenses committed abroad, provided that each of those offenses violates a predicate statute that is itself extraterritorial. RJR contends that, even if RICO may apply to foreign patterns of racketeering, the statute does not apply to foreign enterprises. [According to RJR], RICO requires a domestic enterprise. [We reject this argument.] RICO’s extraterritorial effect is pegged to the extraterritoriality judgments Congress has made in the predicate statutes, often by providing precise instructions as to when those statutes apply to foreign conduct. [Hence, we conclude,] based on RICO’s text and context, that Congress intended the prohibitions in [§ 1962] to apply extraterritorially in tandem with the underlying predicates, without regard to the locus of the enterprise. Applying these principles, we agree with the Second Circuit that the complaint does not allege impermissibly extraterritorial violations of §§ 1962(b) and (c). The alleged pattern of racketeering activity consists of five basic predicates: (1) money laundering, (2) material support of foreign terrorist organizations, (3) mail fraud, (4) wire fraud, and (5) violations of the Travel Act. The Second Circuit observed that the relevant provisions of the money laundering and material support of terrorism statutes expressly provide for extraterritorial application in certain 190 circumstances, and it concluded that those circumstances are alleged to be present here. The court found that the fraud statutes and the Travel Act do not contain the clear indication needed to overcome the presumption against extraterritoriality. But it held that the complaint alleges domestic violations of those statutes because it “allege[s] conduct in the United States that satisfies every essential element of the mail fraud, wire fraud, and Travel Act claims.” [T]he alleged pattern of racketeering activity [outlined in the EC’s complaint] consists entirely of predicate offenses that were either committed in the United States or committed in a foreign country in violation of a predicate statute that applies extraterritorially. The alleged enterprise also has a sufficient tie to U.S. commerce, as its members include U.S. companies, and its activities depend on sales of RJR’s cigarettes conducted through the U.S. mails and wires, among other things. [Therefore, the EC’s allegations that RJR violated § 1962 do not involve an impermissibly extraterritorial application of RICO.] We stress that we are addressing only the extraterritoriality question. We have not been asked to decide, and therefore do not decide, . . . whether the complaint in fact makes out violations of the relevant predicate statutes. We now turn to RICO’s private right of action, on which [the EC’s] lawsuit rests. Section 1964(c) allows “[a]ny person injured in his business or property by reason of a violation of section 1962” to sue for treble damages, costs, and attorney’s fees. Irrespective of any extraterritorial application of § 1962, we conclude that §1964(c) does not overcome the presumption against extraterritoriality. A private RICO plaintiff therefore must allege and prove a domestic injury to its business or property. The Second Circuit thought that the presumption against extraterritoriality did not apply to § 1964(c) independently of its application to §1962, reasoning that the presumption “is primarily concerned with the question of what conduct falls within a statute’s purview.” [We conclude instead that we must] separately apply the presumption against extraterritoriality to RICO’s [civil] cause of action despite our conclusion that the presumption has been overcome with respect to RICO’s substantive prohibitions. “The creation of a private right of action raises issues beyond the mere consideration whether underlying primary conduct should be allowed or not, entailing, for example, a decision to permit enforcement without the check imposed by prosecutorial discretion.” [Citation omitted.] As we have observed in other contexts, providing a private civil remedy for foreign conduct creates a potential for international friction beyond that presented by merely applying U.S. substantive law to that foreign conduct. Consider antitrust. In that context, we have observed that “[t]he application . . . of American private treble-damages remedies to anticompetitive conduct taking place abroad has generated considerable controversy” in other nations, even when those nations agree with U.S. substantive law on such things as banning price fixing. F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U.S. 155, 167 (2004). Numerous foreign countries—including some [EC members]—advised us in Empagran that “to apply [U. S.] remedies would unjustifiably permit their citizens to bypass their own less generous remedial schemes, thereby upsetting a balance of competing considerations that their own domestic antitrust laws embody.” Id. We received similar warnings in [a securities fraud case in which France informed us through an amicus curiae brief] that “most foreign countries proscribe securities fraud” but “have made very different choices with respect to the best way to implement that proscription,” such as “prefer[ring] ‘state actions, not private ones’ for the enforcement of law.” Allowing foreign investors to pursue private suits in the United States, we were told, “would upset that delicate balance and offend the sovereign interests of foreign nations.” [Citation omitted.] Allowing recovery for foreign injuries in a civil RICO action, including treble damages, presents the same danger of international friction. This is not to say that friction would necessarily result in every case, or that Congress would violate international law by permitting such suits. It is to say only that there is a potential for international controversy that militates against recognizing foreign-injury claims without clear direction from Congress. [The EC argues] that concerns about international friction are inapplicable in this case because here the plaintiffs are not foreign citizens seeking to bypass their home countries’ less generous remedies but rather the foreign countries themselves. [H]owever, our interpretation of §1964(c)’s injury requirement will necessarily govern suits by nongovernmental plaintiffs that are not so sensitive to foreign sovereigns’ dignity. We reject the notion that we should forego the presumption against extraterritoriality and instead permit extraterritorial suits based on a case-by-case inquiry that turns on or looks to the consent of the affected sovereign. Nothing in § 1964(c) provides a clear indication that Congress intended to create a private right of action for injuries suffered outside of the United States. The statute provides a cause of action to “[a]ny person injured in his business or property” by a violation of § 1962. § 1964(c). The word “any” ordinarily connotes breadth, but it is insufficient to displace the presumption against extraterritoriality. The statute’s reference to injury to “business or property” also does not indicate extraterritorial application. If anything, by cabining RICO’s private cause of action to particular kinds of injury—excluding, for example, personal injuries—Congress signaled that the civil remedy is not coextensive with § 1962’s substantive prohibitions. 191 The Second Circuit did not identify anything in § 1964(c) that shows that the statute reaches foreign injuries. Instead, the court reasoned that § 1964(c)’s extraterritorial effect flows directly from that of § 1962. This reasoning . . . fails to appreciate that the presumption against extraterritoriality must be applied separately to both RICO’s substantive prohibitions and its private right of action. It is not enough to say that a private right of action must reach abroad because the underlying law governs conduct in foreign countries. Something more is needed, and here it is absent. Section 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries. The application of this rule in any given case will not always be self-evident, as disputes may arise as to whether a particular alleged injury is “foreign” or “domestic.” But we need not concern ourselves with that question in this case. As this case was being briefed before this Court, [the EC] filed a stipulation in the district court waiving their damages claims for domestic injuries. The district court accepted this waiver and dismissed those claims with prejudice. [The EC’s] remaining RICO damages claims therefore rest entirely on injury suffered abroad and must be dismissed. Second Circuit decision reversed; case remanded for further proceedings. Computer Crime Describe the major elements that must be proven in order to establish a violation of the Computer Fraud and Abuse Act. As computers have come to play an increasingly important role in our society, new opportunities for crime have arisen. In some instances, computers may be used to accomplish crimes such as theft, embezzlement, espionage, and fraud. In others, computers or the information stored there may be targets of crimes such as unauthorized access, vandalism, tampering, or theft of services. The law’s response to computer crimes has evolved with this new technology. For example, computer hacking—once viewed by some as a mischievous but clever activity—can now lead to significant prison sentences and fines. The technical nature of computer crime complicates its detection and prosecution. Traditional criminal statutes have often proven inadequate because they tend not to address explicitly the types of crime associated with the use of computers. Almost all states have now enacted criminal statutes specifically outlawing certain abuses of computers. Common provisions prohibit such acts as obtaining access to a computer system without authorization, tampering with files or causing damage to a system (e.g., by spreading a virus or deleting files), invading the privacy of others, using a computer to commit fraud or theft, and trafficking in passwords or access codes. On the federal level, computer crime has been prosecuted with some success under existing federal statutes, primarily those forbidding mail fraud, wire fraud, transportation of stolen property, and thefts of property. As has been true at the state level, successful prosecution of these cases often depends on broad interpretation of the statutory prerequisites. Another federal law deals more directly with improper uses of computers. Among the crimes covered by this federal statute are intentionally gaining unauthorized access to a computer used by or for the U.S. government, trafficking in passwords and other access devices, and using a computer to obtain government information that is protected from disclosure. It is also a crime to gain unauthorized access to the computer system of a private financial institution that has a connection with the federal government (such as federal insurance for the deposits in the financial institution). In addition, the statute criminalizes the transmission of codes, commands, or information if the transmission was intended to damage such an institution’s computers, computer system, data, or programs. The federal Computer Fraud and Abuse Act (CFAA) allows the imposition of criminal and civil liability on one who “knowingly, and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value.” In addition, the CFAA provides that criminal and civil liability may attach to one who transmits a program, information, code, or command knowingly, intentionally, and without authorization, if the act results in damage to a computer system used by the government or a financial institution or otherwise in interstate commerce. For a case applying the CFAA, see the nearby Cyberlaw in Action box. 192 CYBERLAW IN ACTION May an employee who violates his employer’s restrictions on computer access and use be held criminally responsible under the federal Computer Fraud and Abuse Act (CFAA)? The federal courts of appeals that have considered this question have disagreed on the correct answer to it. Here, we consider United States v. Nosal, in which the Ninth Circuit Court of Appeals rejected the government’s attempt to hold the defendant criminally responsible under the CFAA. According to other federal courts of appeal, however, the same CFAA provision addressed in Nosal contemplates criminal responsibility in cases with facts very similar to those in Nosal. For several years, David Nosal was an executive at Korn/Ferry International, an executive search firm. When Nosal left his job at Korn/Ferry, he signed a separation agreement and an independent contractor agreement. Under these contracts, he agreed to serve as an independent contractor for Korn/Ferry and promised not to compete with the firm for one year. In return, Korn/Ferry agreed to make certain payments to Nosal. Shortly after leaving the firm, Nosal recruited three Korn/Ferry employees to help him start a competing business. According to the allegations in the indictment referred to below, these employees utilized their user accounts to access the Korn/Ferry computer system and obtain trade secrets and other proprietary information belonging to Korn/Ferry. The particular information obtained by the employees—and allegedly transferred to Nosal—included source lists, names, and contact information from a confidential Korn/Ferry database that the firm regarded as among the world’s most comprehensive databases of information regarding executive candidates. The indictment alleged that Korn/Ferry engaged in considerable efforts to keep the database confidential, required its employees to enter into agreements that confined use and disclosure of information in the database to purposes connected with Korn/Ferry’s business, and otherwise alerted employees that accessing Korn/Ferry information in the database without authority to do so was prohibited. A federal grand jury indictment charged Nosal and one of the Korn/Ferry employees with violations of the CFAA (18 U.S.C. § 1030). The CFAA prohibits a variety of computer crimes, most of which involve accessing computers without authorization or in excess of authorization and then taking some prohibited action. The particular subsection under which Nosal was charged, § 1030(a)(4), calls for criminal liability to be imposed on one who “knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value.” According to the indictment, Nosal’s co-conspirators exceeded their authorized access to Korn/Ferry’s computer system by obtaining information from it in order to defraud their employer and help Nosal establish a competing business. Nosal moved to dismiss the indictment, arguing that “the CFAA was aimed primarily at computer hackers and . . . does not cover employees who misappropriate information or who violate contractual confidentiality agreements by using employer-owned information in a manner inconsistent with those agreements.” Nosal argued that the Korn/Ferry employees could not have acted “without authorization” and could not have “exceed[ed] authorized access” because they had permission under certain circumstances to access the computer system and the information present there. A federal district court agreed with this argument, while acknowledging that courts had split on how to interpret § 1030(a)(4). Opting for the interpretation that an employee does not exceed authorized access to a computer system by accessing information unless the employee is without authority to access the information under any circumstances, the district court dismissed various counts in the indictment because the Korn/Ferry employees did have authority to access the database in question under certain circumstances. The federal government appealed to the U.S. Court of Appeals for the Ninth Circuit. A Ninth Circuit panel initially interpreted § 1030(a)(4) in a manner favorable to the government’s case, but the court granted a request that it rehear the case en banc (i.e., by the full Ninth Circuit). On rehearing, the court changed course and went Nosal’s way. In United States v. Nosal, 676 F.3d 854 (9th Cir. 2012), the court stressed that the CFAA was fundamentally an anti-hacking statute and that the relevant statutory language should be interpreted in light of that statutory nature and purpose. According to the Ninth Circuit, the “exceeds authorized access” language in the relevant statutory section applied only to hacking instances in which the alleged violator did not have permission to access the computer system and its contents under any circumstances. The Ninth Circuit’s interpretation of the statute meant that Nosal and his supposed co-conspirators did not violate the statute because they did have authorization from their employer to access the relevant database, even though they then violated the employer’s restrictions on use of the database. Nosal and the Korn/Ferry employees may have misappropriated information, the court reasoned, but they did not violate the CFAA provision because it was meant to reach only hacking, not misappropriation. In rejecting the government’s argument that the “exceeds authorized access” language should be interpreted as applying to instances in which someone legitimately has access to a computer system and its contents but then exceeds the system owner’s restrictions on how the contents can be used, the Ninth Circuit expressed concern that the government’s proposed interpretation could make criminals of many employees who have access to their employer’s computer system but then sometimes use it for personal purposes such as checking Facebook, looking up scores of sporting events, or playing games. Purposes of that nature, the court noted, may be likely to violate many employers’ use policies even though such uses probably occur with considerable frequency each day. The Ninth Circuit stressed that interpreting “exceeds authorized access” as prohibiting only hacking-type behavior would avoid such anomalous results. 193 The court conceded that other circuits (the Fifth, Seventh, and Eleventh) had adopted the government’s preferred view of the “exceeds authorized access” language and that a case such as the one before it would come out differently under those other circuits’ approach. Their approach, however, was too broad an interpretation of the statutory language for the Ninth Circuit to countenance. Hence, the court concluded, there was no CFAA violation in Nosal. (The court noted that it was not addressing whether Nosal might face responsibility on another charge brought by the government: for an alleged violation of a trade secrets statute.) The dissenting judges in Nosal vehemently disagreed. They asserted that the majority was preoccupied with unrealistic hypotheticals in which employees who were Facebook users and sports score seekers might be criminally prosecuted by the government if they made such uses of their employer’s computer system and the employer’s policy prohibited such uses. Apart from the extreme unlikelihood that the government would ever target such users for prosecution, the dissenters noted that the majority was overlooking the critical element of an intent to defraud—an element arguably present in Nosal but not in the Facebook-type hypotheticals the majority emphasized. In addition, the dissenters reasoned that instances in which employees seek to help someone else set up a business that competes with their employer (the situation in Nosal) are readily distinguishable from the hypotheticals about which the majority was worried. The split among the circuits on how to interpret the “exceeds authorized access” language in the CFAA could be resolved by the Supreme Court, of course, if the Court would agree to decide an appropriate case at some point. Problems and Problem Cases Ahmad Ressam attempted to enter the United States by car ferry at Port Angeles, Washington. Hidden in his rental car’s trunk were explosives that he intended to detonate at the Los Angeles International Airport. After the ferry docked, a customs official questioned Ressam. On the customs declaration form the official instructed Ressam to complete, Ressam identified himself by a false name and falsely referred to himself as a Canadian citizen even though he was Algerian. Ressam was then directed to a secondary inspection station, where another official performed a search of his car. This search uncovered explosives and related items in the car’s spare tire well. Ressam was later convicted of a number of crimes, including the felony of making a false statement to a U.S. customs official and the offense of carrying an explosive “during the commission of?” the just-noted felony, in violation of 18 U.S.C. § 844(h)(2). The latter offense was Count 9 in the indictment against Ressam. The U.S. Court of Appeals for the Ninth Circuit set aside Ressam’s conviction on Count 9 because it interpreted the word during, as used in § 844(h)(2), as including an implicit requirement that the explosive be carried in relation to the underlying felony. The Ninth Circuit concluded that because Ressam’s carrying of explosives did not relate to the underlying felony of making a false statement to a customs official, the conviction on Count 9 could not stand. Did the Ninth Circuit correctly interpret the “during the commission of” language in the statute on which Count 9 was based? A California Highway Patrol officer stopped the pickup truck occupied by Lorenzo and Jose Navarette because it matched the description of a vehicle that an anonymous 911 caller had recently reported as having run her off the road. As he and a second officer approached the truck, they smelled marijuana. They searched the truck’s bed, found 30 pounds of marijuana, and arrested both Navarettes. The Navarettes moved to suppress the evidence, arguing that the anonymous call to 911 did not give rise to a reasonable suspicion on the part of the officer and that the traffic stop therefore violated the Fourth Amendment. They further argued that if the traffic stop violated the Fourth Amendment, the evidence obtained in the search should be excluded under the fruit-of-the-poisonous-tree doctrine. The Navarettes’ motion was denied. They were later convicted of drug-possession offenses. On appeal, the Navarettes reiterated their objection to the traffic stop and their objection to the use of the evidence obtained in the search. Did the traffic stop violate the Fourth Amendment? Should the evidence obtained in the ensuing search have been suppressed? A federal grand jury was investigating “John Doe,” president and sole shareholder of “XYZ” corporation, concerning possible violations of federal securities and money-laundering statutes. During the investigation, the government learned that XYZ had paid the bills for various telephone lines, including those used in Doe’s homes and car. Grand jury subpoenas calling for the production of documents were then served on the custodian of XYZ’s corporate records, on Doe, and on the law firm Paul, Weiss, Rifkind, Wharton & Garrison (Paul–Weiss), which represented Doe. These subpoenas sought production of telephone bills, records, and statements of account regarding certain telephone numbers, including those used by Doe. The district court determined after an evidentiary hearing that the documents sought were XYZ’s, and not Doe’s. 194 Paul–Weiss, which had received copies of these documents from its client, refused to produce them, arguing that it was exempted from doing so by Doe’s privilege against self-incrimination. Was Paul–Weiss correct in its assertion? William Parks, a special agent of the U.S. Customs Service, was investigating allegations that Bet-Air Inc. (a seller of spare aviation parts and supplies) had supplied restricted military parts to Iran. Parks entered Bet-Air’s property and removed a bag of shredded documents from a garbage dumpster. The dumpster was located near the Bet-Air offices in a parking area reserved for the firm’s employees. To reach the dumpster, Parks had to travel 40 yards on a private paved road. No signs indicated that the road was private. In later judicial proceedings, Parks testified that at the time he traveled on the road, he did not know he was on Bet-Air’s property. When reconstructed, some of the previously shredded documents contained information seemingly relevant to the investigation. Parks used the shredded documents and the information they revealed as the basis for obtaining a warrant to search the Bet-Air premises. In executing the search warrant, Parks and other law enforcement officers seized numerous documents and Bet-Air records. A federal grand jury indicted Bet-Air’s chairman, Terence Hall, and other defendants on various counts related to the alleged supplying of restricted military parts to Iran. Contending that the Fourth Amendment had been violated, Hall filed a motion asking the court to suppress (i.e., exclude) all evidence derived from the warrantless search of the dumpster and all evidence seized during the search of the Bet-Air premises (the search pursuant to the warrant). The federal district court denied Hall’s motion. Following a jury trial, Hall was convicted on all counts and sentenced to prison. He appealed, again arguing that the Fourth Amendment was violated. How did the appellate court rule? Was there a Fourth Amendment violation? For approximately 20 years, Efrain Santos operated an illegal lottery in Indiana. He employed a number of helpers to run the lottery. At bars and restaurants, Santos’s runners gathered bets from gamblers, kept a portion of the bets as their commissions, and delivered the rest to Santos’s collectors. Collectors, one of whom was Benedicto Diaz, then delivered the money to Santos, who used some of it to pay the salaries of collectors (including Diaz) and to pay the lottery winners. These payments to runners, collectors, and winners formed the basis of a 10-count indictment against Santos and Diaz filed in the U.S. District Court for the Northern District of Indiana. A jury found Santos guilty of running and conspiring to run an illegal gambling business, as well as one count of conspiracy to launder money and two counts of money laundering. Diaz pleaded guilty to conspiracy to launder money. The relevant provision of the federal money-laundering statute reads as follows: Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity . . . with the intent to promote the carrying on of specified unlawful activity . . . shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both. After the district court sentenced Santos and Diaz to prison, the U.S. Court of Appeals for the Seventh Circuit affirmed the convictions and sentences. Santos and Diaz later attacked the validity of the convictions and sentences by seeking a writ of habeas corpus. In the habeas corpus proceeding, the district court rejected all of their claims except for one, a challenge to their money-laundering convictions. The district court concluded that the money-laundering statute’s prohibition of transactions involving criminal “proceeds” applies only to transactions involving criminal profits, not criminal receipts. Applying that holding to the cases of Santos and Diaz, the district court found no evidence that the transactions on which the money-laundering convictions were based (Santos’s payments to runners, winners, and collectors and Diaz’s receipt of payment for his collection services) involved profits, as opposed to receipts, of the illegal lottery. Accordingly, the district court vacated the money-laundering convictions. The Seventh Circuit affirmed. The U.S. Supreme Court granted the government’s petition for a writ of certiorari in order to address this question: whether the term proceeds in the federal money-laundering statute means “receipts” or, instead, “profits.” How did the Supreme Court rule? 195 Police officers arrested Rodney Gant for driving with a suspended license. After they handcuffed him and locked him in the back of a patrol car, the officers searched his car and discovered cocaine in the pocket of a jacket on the backseat. Gant was charged with possession of a narcotic drug for sale and possession of drug paraphernalia (the plastic bag in which the cocaine was found). Gant moved to suppress the evidence seized from his car on the ground that the warrantless search violated the Fourth Amendment. The state resisted Gant’s motion by arguing that the search of the car was constitutionally valid pursuant to U.S. Supreme Court decisions allowing a warrantless search incident to arrest and a warrantless search of an arrestee’s vehicle if the search was contemporaneous with the arrest. Gant argued that the search of his vehicle should be held a violation of the Fourth Amendment because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. An Arizona trial court held that the search of the car did not violate the Fourth Amendment. Therefore, the court denied Gant’s suppression motion. The case proceeded to trial, and a jury convicted Gant. He was sentenced to prison. After protracted state-court proceedings, Arizona’s highest court concluded that Gant’s conviction could not stand because the search of his car was unreasonable for Fourth Amendment purposes. The U.S. Supreme Court agreed to decide the case. How did the Supreme Court rule regarding the search of Gant’s car? Did the search violate the Fourth Amendment? Ideal Steel Supply Corporation sold steel mill products along with related supplies and services. Its principal competitor was National Steel Supply Inc. Both Ideal and National had stores in New York City. Ideal sued National for allegedly violating the Racketeer Influenced and Corrupt Organizations Act (RICO), whose § 1962(c) makes it unlawful for “any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” Another RICO provision, § 1964(c), recognizes a private right of action in favor of “[a]ny person injured in his business or property by reason of a violation” of the statute’s substantive restrictions. In its complaint, Ideal alleged that National had adopted a practice of failing to charge the requisite New York sales tax to cash-paying customers. This practice supposedly allowed National to reduce its prices without affecting its profit margin. Ideal asserted that National submitted fraudulent tax returns to the New York State Department of Taxation and Finance in an effort to conceal its conduct. According to Ideal’s complaint, National’s submission of the fraudulent tax returns constituted various acts of mail fraud and wire fraud. (Mail fraud and wire fraud are forms of “racketeering activity,” according to RICO.) Ideal contended that National’s conduct amounted to a “pattern of racketeering activity” for purposes of § 1962(c) because the fraudulent returns were submitted on an ongoing and regular basis. The complaint asserted that the allegedly unlawful racketeering scheme gave National a competitive advantage over Ideal in terms of sales and market share, and that Ideal had therefore been injured “by reason of” the scheme for purposes of § 1964(c), the private right of action provision. Ruling that Ideal’s complaint failed to state a claim upon which relief could be granted, a federal district court granted National’s motion to dismiss the case. The U.S. Court of Appeals for the Second Circuit reversed, concluding that Ideal had adequately pleaded a causation link between the alleged pattern of racketeering activity and the harm experienced by Ideal. The U.S. Supreme Court granted National’s petition for certiorari. How did the Supreme Court rule on whether Ideal had adequately pleaded the necessary causation link? Muniz was arrested on a charge of driving under the influence of alcohol. He was taken to a booking center, where he was asked several questions by a police officer without first being given the Miranda warnings. Videotape (which included an audio portion) was used to record the questions and Muniz’s answers. The officer asked Muniz his name, address, height, weight, eye color, date of birth, and current age. Muniz stumbled over answers to two of these questions. The officer then asked Muniz the date of his sixth birthday, but Muniz did not give the correct date. At a later point, Muniz was read the Miranda warnings for the first time. He was later convicted of the charged offense, with the trial court denying his motion to exclude the videotape (both video and audio portions) from evidence. Assume that the video portion of the tape violated neither the Fifth Amendment nor Miranda. Should all or any part of the audio portion of the tape (which contained Muniz’s stumbling responses to two questions plus his incorrect answer to the sixth birthday date question) have been excluded as a violation of either the Fifth Amendment or Miranda? 196 A federal statute, 18 U.S.C. § 1037, prohibits a variety of misleading electronic mail–related actions in commercial settings. These include instances in which a person who, with knowledge of doing so, “materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages” (prohibited by § 1037(a)(3)) or “registers, using information that materially falsifies the identity of the actual registrant, for five or more electronic mail accounts or online user accounts or two or more domain names, and intentionally initiates the transmission of multiple commercial electronic mail messages from any combination of such accounts or domain names” (prohibited by § 1037 (a)(4)). Violators of these prohibitions may be punished by fines or imprisonment, or both. A federal indictment charged that Michael Twombly and Joshua Eveloff violated §§ 1037(a)(3) and (a)(4). The government claimed that Twombly leased dedicated servers using an alias, including one server from Biznesshosting Inc. and that shortly after it provided logon credentials to Twombly, Biznesshosting began receiving complaints regarding spam electronic mail messages originating from its network. These spam messages allegedly numbered approximately 1 million, followed several days later by another 1.5 million. The spam messages contained computer software advertising and directed recipients to the website of a company with a Canadian address. The government maintained that this site was falsely registered under the name of a nonexistent business and that the messages’ routing information and “From” lines had been falsified. As a result, the government contended, recipients, Internet service providers, and law enforcement agencies were prevented from identifying, locating, or responding to the senders. When Biznesshosting investigated the complaints, it traced the spam to the server leased by Twombly. A search conducted by the FBI allegedly uncovered roughly 20 dedicated servers leased by Twombly using false credentials. According to the government, Twombly leased the servers for an unnamed person—later determined to be Eveloff—and received payment from that person for each set of logon credentials provided. Under the government’s theory of the case, both Twombly and Eveloff caused the spam messages to be sent. Twombly and Eveloff moved for dismissal of the indictment on the ground that §§ 1037(a)(3) and (a)(4) were unconstitutionally vague. Did their argument have merit? Suspicious that marijuana was being grown in eventual defendant DK’s home, federal agents used a thermal imaging device to scan his home from a public street. The agents sought to determine whether the amount of heat emanating from the home (which was part of a triplex) was consistent with the amount emanated from high-intensity lamps typically used for indoor marijuana growth. The scan showed that the roof and a side wall were relatively hot compared with the rest of the home and substantially warmer than the neighboring units. Based in part on the thermal imaging results, a federal magistrate judge issued a warrant to search the home, where the agents found marijuana growing. After being indicted on a federal drug charge, DK unsuccessfully moved to suppress the evidence seized from his home. He then entered a conditional guilty plea under which, on appeal, he could challenge the use of the thermal imaging device and the validity of the resulting warrant. The government took the position that the use of the device, when operated from a public street, was not a search for purposes of the Fourth Amendment and that DK therefore did not have a basis for his Fourth Amendment–based challenge. Was the government correct in this argument? John Park was CEO of Acme Markets Inc., a national retail food chain with approximately 36,000 employees, 874 retail outlets, and 16 warehouses. Acme and Park were charged with five counts of violating the federal Food, Drug, and Cosmetic Act by storing food shipped in interstate commerce in warehouses where it was exposed to rodent contamination. The violations were detected during FDA inspections of Acme’s Baltimore warehouse. Inspectors saw evidence of rodent infestation and unsanitary conditions, such as mouse droppings on the floor of the hanging meat room and alongside bales of Jell-O, as well as a hole chewed by a rodent in a bale of Jell-O. The FDA notified Park of these findings by a letter. Upon checking with Acme’s vice president for legal affairs, Park learned that the Baltimore division vice president was investigating the situation immediately and would be taking corrective action. An FDA inspection three months after the first one disclosed continued rodent contamination at the Baltimore warehouse despite improved sanitation there. The criminal charges referred to above were then filed against Acme and Park. Acme pleaded guilty; Park refused to do so and proceeded to trial. After being convicted on each count, Park appealed. A federal court of appeals overturned his conviction. Was the appellate court correct in doing so? 197 Patrice Seibert’s 12-year-old son, Jonathan, had cerebral palsy. When Jonathan died in his sleep, Seibert feared charges of neglect because there were bedsores on his body. In Seibert’s presence, two of her teenage sons and two of their friends devised a plan to conceal the facts surrounding Jonathan’s death by incinerating his body in the course of burning the family’s mobile home. Under the plan, the fire would be set while Donald Rector, a mentally ill teenager who lived with the family, was asleep in the mobile home. The fire and the presence of Rector’s body would eliminate any indication that Jonathan had been the victim of neglect. Seibert’s son Darian and a friend set the fire as planned, and Rector died. Five days later, police officers awakened Seibert at 3:00 A.M. at a hospital where Darian was being treated for burns. An officer arrested Seibert but, in accordance with instructions from Officer Hanrahan, refrained from giving Miranda warnings at the time of the arrest. After Seibert had been taken to the police station and left alone in an interview room for 15 minutes, Hanrahan questioned her for 30 to 40 minutes without giving Miranda warnings. During this questioning, Hanrahan squeezed Seibert’s arm and repeated this statement: “Donald [Rector] was also to die in his sleep.” When Seibert finally admitted that she knew Rector was meant to die in the fire, she was given a 20-minute coffee and cigarette break. Hanrahan then turned on a tape recorder, gave Seibert the Miranda warnings, and obtained a signed waiver of rights from her. He resumed the questioning with “OK, Patrice, we’ve been talking for a little while about what happened on Wednesday, the twelfth, haven’t we?” Hanrahan then confronted Seibert with her pre-Miranda-warnings statements about the plan to set the fire and the understanding that Rector would be left sleeping in the mobile home. Specifically, Hanrahan referred to Seibert’s pre-Miranda-warnings statements by asking, in regard to Rector, “[D]idn’t you tell me he was supposed to die in his sleep?” and “So he was supposed to die in his sleep?” Seibert answered “Yes” to the second of these post-warnings questions. After being charged with murder for her role in Rector’s death, Seibert sought to have her pre-Miranda-warnings statements and her post-Miranda-warnings statements suppressed (i.e., excluded from evidence) as the remedy for supposed Fifth Amendment and Miranda violations. At the hearing on Seibert’s suppression motion, Hanrahan testified that he decided to withhold Miranda warnings and to resort to an interrogation technique he had been taught: question first, then give the Miranda warnings, and then repeat the question “until I get the answer that she’s already provided once.” Hanrahan acknowledged that Seibert’s ultimate statement was “largely a repeat” of information obtained prior to the giving of the Miranda warnings. The Missouri trial court suppressed Seibert’s pre-Miranda-warnings statements but permitted use of her post-warnings statements. A jury convicted Seibert, and the Missouri Court of Appeals affirmed. However, the Missouri Supreme Court reversed, holding that Seibert’s post-warnings statements should have been suppressed as well.The U.S. Supreme Court agreed to decide the case at the request of the state of Missouri. How did the Supreme Court rule on the suppression issue? Police officers set up a controlled buy of crack cocaine outside an apartment complex. An undercover officer watched the deal take place from an unmarked car in a nearby parking lot. After the buy occurred, the undercover officer radioed uniformed officers to move in on the suspect. He told them that the suspect was moving toward the breezeway of an apartment building, and he urged them to get there quickly before the suspect entered an apartment. In response, the uniformed officers drove into the parking lot, left their vehicles, and ran to the breezeway. As they entered it, they heard a door shut and detected a very strong odor of burnt marijuana. At the end of the breezeway, the officers saw two apartments, one on the left and one on the right; they did not know which apartment the suspect had entered. Because they smelled marijuana smoke emanating from the apartment on the left, they approached that apartment’s door. One of the officers who approached the door later testified that they loudly banged on the door and announced, “This is the police.” This officer said that the officers then could hear people and things moving inside the apartment. These sounds led the officers to believe that drug-related evidence was about to be destroyed. After announcing that they would enter the apartment, the officers kicked in the door and entered. They found three people in the front room, including eventual defendant HK. (The suspect they had been chasing was not among the three, however.) During a protective sweep of the apartment, the officers saw marijuana and powder cocaine in plain view. In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia. HK was later charged with drug-possession and drug-trafficking offenses. He unsuccessfully sought to have the evidence suppressed as the result of a search that, in his view, violated the Fourth Amendment. After being convicted, he appealed and renewed his arguments about the search and the evidence obtained. Did the warrantless entry of the apartment violate HK’s Fourth Amendment rights? Should the evidence obtained in the search have been suppressed? 198 Edmund Boyle was indicted on numerous counts of RICO violations stemming from his involvement with a group of other persons in numerous bank robberies. The group, which was not a corporation or other recognized legal entity, did not have a formal structure. Neither did it have a set hierarchy among its members. The members involved in the bank robberies shifted from one incident to another and thus did not always involve the same persons. There were, however, some group members—such as Boyle—who typically were involved in the robberies. A jury convicted Boyle on 11 counts. On appeal, he argued that because the supposed group was not a legal entity and had neither a formal structure nor a hierarchy, it was not an enterprise for purposes of RICO’s required elements. Therefore, he argued, he should not have been convicted. Was he correct in this argument?