Archives : 2005 : July

Digital Piracy: Why You Might Be a Pirate and Not Even Know It

By Colin McKibbin, Attorney at Law and Dan Rhoads

Music and movie bootleggers on street corners are as common in some cities as panhandlers, ticket scalpers, and jaywalkers. Unlike patrons of street vendors, computer or digital file sharers fail to understand the fact that they are breaking the law. Even less known than the governing laws are the vast networks of online pirates that have made a virtual blood sport of distributing illegally obtained files.

Spurred by the entertainment industry, which blames huge losses on piracy, legislatures are bringing down the ax on all levels of electronic piracy. The danger is that consumers can become unwitting defendants when the public does not understand the piracy laws and the actions that can be considered violations of those laws.

All types of media are susceptible to piracy. In fact, the federal laws against the sharing of computer files arose as a response to a situation at M.I.T., where a student created a bulletin board where users could postand downloadcopyrighted software such as WordPerfect and Excel (Schleimer). The laws passed in response were aimed at protecting copyright owners in the music, motion picture, and videogame industries.

Exclusive Rights and Fair Use

Federal law governs the legal questions surrounding copyright infringement since it is the federal government that issues and regulates copyrights.

The owner of a copyright of an artistic work, such as a motion picture or a song or a musical composition, is usually its creator. The copyright owner has the exclusive rights to reproduce the copyrighted work, to prepare derivative works based upon the copyrighted work, to distribute copies of the work to the public, and to perform or display the work publicly. 17 U.S.C. 106.

Fair use standards protect users of copyrighted material where the purpose is criticism, comment, news reporting, teaching . . ., scholarship, or research. 17 U.S.C. 107. Use is most likely legal when it is not for profit and does not affect the potential or actual market value of the work.

Infringement laws are based upon violations of the copyright owners exclusive rights.

Reproduction and Distribution

The channels through which digital files are spread on the Internet have only recently come to light. At the top of the pyramid of piracy are release groups, which are comprised of the most tech-savvy, secretive, paranoid online pirates out there (Healey), according to the MPAAs John Malcolm. Once an illegal copy reaches a release group, highly skilled technicians [are] responsible for compressing and packaging the media file (Howe).

The compressed files are then moved on to topsites, which are extremely secretive and exclusive. Outside of a pirate elite and the Feds who track them, few know that topsites exist (Howe). Couriers eventually transfer the files from the topsites to dump sites, where more people have access. Only then, after having been duplicated thousands of times, do the files reach the peer-to-peer networks.

Movie Piracy

Although the prevalence of high-tech methods of movie piracy is increasing, the traditional street-corner bootlegger is still in business.

One man sold mangos and hot dogs on the street before he turned to selling DVDs. He expected to sell up to 20,000 copies a week for $1 to $5 each. He sold the copies that he made at a wholesale price to vendors in downtown Los Angeles. When the LAPD raided his home, along with investigators from the Motion Picture Association of America (MPAA), they confiscated nearly 19,000 DVDs, a professional copy machine, 10 DVD burner towers, hundreds of spindles with master copies of films . . . and scores of blank DVDs.

Bootleggers like this risk prosecution under the No Electronic Theft (NET) Act of 1997. The NET Act prohibits infringement by the reproduction or distribution . . . during any 180-day period of . . . copyrighted works which have a total retail value of more than $1,000. 17 U.S.C. 506(a)(1)(B).

As part of the same operation, the police also arrested a woman, who allegedly downloaded the publicity art for the sleeve inserts. Her actions, if true, infringed the copyright of the artist(s) who conceived and/or created the design.

The old-fashioned method of videotaping a film while inside a theater still occurs today. About 90% of pirated movies are taped in theaters with camcorders (Piracy Suspect Claims Tapings Werent Illegal). One man would pose as an employee of the MPAA to get into pre-release screenings. After taping a movie, he then sold the DVDs internationally over the Internet, getting up to $100 apiece.

The Family Entertainment and Copyright (FE&C) Act of 2005 makes it a federal crime to use or attempt to use a video camera in a movie theater. 18 U.S.C. 2319B(a). A person convicted for this offense can be fined and/or imprisoned for up to 3 years on a first offense or 6 years for a subsequent offense.

Due to an emphasis on quality, the online movie pirates disfavor copies that have been recorded by camcorders. In general, they get their booty from one of three sources: industry insiders, projectionists, or agents placed inside disc-stamping plants and retail outlets (Howe).

Illegal Music Sharing

The NET Act makes it clear that file sharing is illegal. It prohibits copyright infringement for purposes of commercial advantage or private financial gain. 17 U.S.C. 506(a)(1)(A). The term financial gain has been expanded to include receipt, or expectation of receipt . . . of other copyrighted works. 17 U.S.C. 101. Anyone still using P2P networks to share copyrighted files violates this law.

Also, if a concertgoer records, transmits, or distributes a taping of a live performance for purposes of commercial advantage or private financial gain, he or she is violating federal law, unless the performer has consented to the recording. 18 U.S.C. 2319A(a). Anyone who traffics in illegal recordings of live performances can be fined and imprisoned for up to 5 years for a first offense or 10 years for a subsequent offense.

Videogame Piracy

In 2004, digital pirates hacked into Valves corporate server and obtained a version of Half-life 2. As the file trickled down through topsites and into dump sites, One file became 30 files became 3,000 files became 300,000 files as Valve stood helplessly by watching its big Christmas blockbuster turn into a lump of coal (Howe).

If caught, the perpetrators of this scheme could be charged under the NET Act. The Act criminalizes the distribution of a work being prepared for commercial [release] by making it available on a computer network accessible to members of the public, if [the actor] knew or should have known that the work was intended for commercial distribution. 17 U.S.C. 506(a)(1)(C). A violator can be fined and imprisoned for as many as 10 years if the violation is not his first. 18 U.S.C. 2319(d).

RICO Risk

The Racketeer Influenced and Corrupt Organizations (RICO) Act has been amended to encompass organized copyright infringement. 18 U.S.C. 1961(1)(B). Clearly, release groups and the people associated with them can be charged with RICO violations. 18 U.S.C. 1962(c). It also appears that groups of file sharers formed on P2P networks come within the scope of RICO.

Costs of Digital Piracy

The MPAA estimates that piracy annually costs the industry $3.5 billion. The Recording Industry Association of America (RIAA) claims that its loss to global piracy is $4.2 billion a year. The revenue loss translates directly into lay-offs, beginning with the most expendable workers.

Conclusion

To protect the industries that thrive on the production of intellectual property, the government has shown an increased seriousness in policing digital piracy. Users of widely available online services find themselves confused by the prospect of prosecution. What seemed an innocuous form of good, clean fun at the turn of the millennium is now being treated as a serious federal crime.

Anyone who shares copyrighted files on a P2P network must understand that that conduct is every bit as illegal as buying a bootleg copy of a DVD or CD from a street vendor. Those who have used P2P networks illegally should be aware that the statute of limitations under the NET Act is 5 years. The best way to avoid prosecution is to conform with the law as soon as possible.

The federal law is complex, and involves many rules and requirements that the novice, or inexperienced, attorney would not know or understand. Even an attorney familiar with a particular practice in a state criminal court may not be familiar with the federal courts procedures. If a prosecutor exercises his discretion and chooses to file charges in the federal court, it is wise to consult an attorney who can advise on the best way to proceed. In some instances, an attorney can get involved in the investigative phase to assist prior to the filing of charges. In some instances, obtaining legal counsel early on in the legal process can assist someone in minimizing the potential consequences of these devastating laws.

Works Cited: Jon Healey, Digital Piracy Raids Net Arrests, Los Angeles Times, 1 July 2005, at C10.

Jeff Howe, The Shadow Internet, Wired Magazine, issue 13.01.

Lorenza Munoz, 3 Arrested in DVD Piracy Raid, Los Angeles Times, 15 June 2005, at C2.

Lorenza Munoz & David Rozensweig, Motion Picture Bootlegger Convicted, Los Angeles Times, 30 June 2005, C1. Piracy Suspect Claims Tapings Werent Illegal, Los Angeles Times, 22 June 2005, C2.

Joseph Schleimer & Kenneth Freundlich, Criminal Prosecution of On-line File-sharing, Journal of Internet Law, August 2001.

Solicitation of Prostitution Solicitation, Prostitution, Pimping and Pandering

By Vince Imhoff, Esq. & Dan Rhoads

In 1993, an undercover Beverly Hills police officer posing as a wealthy Japanese businessman contacted Heidi Fleiss. He offered to pay $6,000 so that Fleiss would send four women to meet him and some colleagues at a hotel. In June, Fleiss sent the women to the Beverly Hills Hilton, where the men had a room. The undercover agents posed as clients and specifically asked for sex.

Once the women agreed, other agents stormed in from the adjacent room and arrested the women, whose actions the police had recorded. The next day, Fleiss was arrested and charged with, among other things, five counts of pandering. She pled not guilty to all counts but was indicted. At trial, Fleiss raised a defense of entrapment; and the jury was split. In a compromise, the jurors voted to convict Fleiss for three of the pandering counts. The judge sentenced her to three years in prison and a fine of $1,500.

What is pandering?

In California, pandering is a felony punishable by three, four, or six years in the state prison. Cal. Penal Code 266i(a). The most basic pandering offense is “procur[ing] another person for the purpose of prostitution.” 266i(a)(1). The statute also prohibits causing, inducing, persuading, or encouraging others through promises, threats, violence, or any scheme to become involved in prostitution. 266i(a)(2)-(6).

Pandering versus Pimping

A person who arranges a meeting between a prostitute and a john and who takes a cut of the prostitute’s revenue can be charged with both pimping and pandering. In California, pimping means knowingly receiving compensation from another’s prostitution. The California law describes pimping in two ways.

First, “[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution, or from money loaned or advanced to or charged against that person . . . is guilty of pimping.” Cal. Penal Code 266h(a). So, a person who makes any part of his or her living through revenues generated by prostitution is a pimp in violation of the law.

Second, any person “who solicits or receives compensation for soliciting for the person is guilty of pimping.” Id. This section means that a person who works to find clients for prostitutes is illegally pimping.

Sex in the Champagne Room?

In the 1990s, Steve Kaplan’s Gold Club in Atlanta was the most illustrious gentlemen’s club in the country. Kaplan cultivated the club’s allure by establishing a client base full of superstar athletes, like former basketball players Patrick Ewing and Dennis Rodman and baseball player Andruw Jones. Kaplan sought the loyalty of those athletes by arranging sex between them and the club’s dancers.

In 2001, federal prosecutors charged Kaplan and many of his accomplices, including dancer Jacklyn Bush, with violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act. Included in the predicate offenses were violations of most of Georgia’s anti-prostitution statutes.

One story about Kaplan’s business methods involves Rodman. A former dancer, Amanda Pappas, testified that she was paid $500 to have sex with Rodman and Bush. A limousine took the retired athlete and the two dancers to his hotel and later returned them to the club. Rodman paid Pappas in the club’s “gold bucks,” which Bush exchanged for cash.

The club’s operations, including soirees like the one with Rodman, implicated both Bush and Kaplan in various crimes. By performing a sexual act for money or other items of value, Bush committed prostitution under Georgia law. Ga. Code 16-6-9. Kaplan was guilty of keeping a place of prostitution because he exercised control over the club, which offered seclusion or shelter for the practice of prostitution. 16-6-10. By gaining the patronage of famous athletes, which raised the profile of the Gold Club, Kaplan knowingly received a thing of value from a prostitute, “without lawful consideration, knowing it was earned in whole or in part from prostitution,” in violation of Georgia’s pimping law. Ga. Code 16-6-11. Kaplan was also guilty of pandering.

Contact with the Customer

Managers at a California gentlemen’s club fared better than Kaplan when a court decided that no prostitution was involved in their business. Brent Wooten, a manager at the Flesh Club, was charged with pimping and pandering after undercover officers paid to watch two of the club’s strippers perform sex acts on each other. The charges were dropped when the court found that no prostitution had occurred.

The case turned on two definitions. First was the definition of ‘prostitution’ as including “any lewd act between persons for money or other consideration.” Cal. Penal Code 647(b). Then, based on case precedent, the court held that, “a lewd act, an element of prostitution, requires touching between the prostitute and the customer, even if the customer is simply an observer of sexual acts between two prostitutes.” Wooten v. Superior Court, 93 Cal. App. 4th 422, 431 (4th Dist. 2001). The court concluded that, “because there were no lewd acts, i.e. no touching between the dancers and the customers, the conduct alleged herein failed to constitute ‘prostitution.’” Wooten, 93 Cal. App. 4th at 436.

The prosecution answered that one of the dancers had offered to perform a sex act on one of the officers. The court agreed that such an offer, if true, would constitute prostitution; but the defendants/club managers were charged with pimping and pandering. The court ruled, “that offerstanding aloneis insufficient to support a charge of pimping or pandering because there was no evidence that defendants knew that [the dancer] had made such an offer.” Wooten, 93 Cal. App. 4th at 438.

In a nod to strip clubs, the legislature added a provision stating that committing prostitution “does not include sexual conduct engaged in as part of any stage performance, play, or other entertainment open to the public.” Cal. Penal Code 653.20(a).

Solicitation

Solicitation originally meant an offer of sexual services by a prostitute. However, modern courts have held that “a statute making it an offense to solicit an act of prostitution is equally applicable to a man soliciting a prostitute as to the prostitute herself.” 63 Am. Jur. 2d Prostitution 9.

Some statutes clearly state which behavior they prohibit. On the eve of Super Bowl XXXIII, Falcons safety Eugene Robinson drove to Key Biscayne and offered an undercover officer $40 for oral sex. Under Florida law, Robinson was guilty of an attempt “to purchase the services of any person engaged in prostitution.” Fla. Stat. 796.07(2)(i).

California has a blanket solicitation statute, which applies both to prostitutes and their clients. Reyes v. Municipal Court, 117 Cal. App. 3d 771 (2nd Dist. Year). The misdemeanor of solicitation has three elements. First, a person must have specific intent to engage in an act of prostitution. Second, the person must “manifes[t] an acceptance of an offer or solicitation to so engage.” Cal. Penal Code 647(b). Finally, some act must be done “in furtherance of the commission of an act of prostitution.” Id.

Act in Furtherance of Prostitution

When a statute requires an act in furtherance, the corroborative act can become an issue to dispute at trial. Most courts agree that, “the clarifying or corroborative act need not occur after the agreement was made.” In re Cheri T., 70 Cal. App. 4th 1400 (2nd Dist. 1999). Merely getting into a car before an offer is made is not an act in furtherance, but telling a driver to drive to a dark place is. Id. A masseuse who quotes prices for sex acts during a massage, but leaves on her clothes and does not actually perform any sexual acts, has not done an act in furtherance of prostitution. Adams v. Commonwealth, 208 S.E.2d 742 (Va. 1974).

Effects of Prostitution Charges

Prostitution and solicitation are misdemeanors, but pimping and pandering are felonies. If a minor under 16 is involved in the offense, the defendant might have to register as a sex offender.

A person who wants to fight prostitution charges needs a dedicated criminal defense attorney who will make the prosecution prove all the elements of the crime charged. The worst effect of a conviction on a prostitution charge is usually the stain of such a lurid offense on a person’s criminal record.

The Self-Defense Justification

By Vince Imhoff, Esq., and Dan Rhoads

In December 1984, Bernhard Goetz, a slight 37-year-old white man, boarded a subway train in the Bronx, which four young black men were already riding. The youths were on their way to Manhattan to rob videogame machines with sharpened screwdrivers they were carrying. One of them demanded $5 from Goetz and threatened him with a screwdriver when Goetz refused.

Goetz, who had been mugged and injured three years earlier and who feared being maimed, pulled out an unlicensed .38 caliber pistol and fired four shots, one at each of the youths, the first three of which struck their targets. Once Goetz noticed that his fourth target had not been hit, he said, You seem to be all right; heres another, and fired a shot that severed the mans spinal cord. People v. Goetz, 497 N.E.2d 41, 44 (NY Ct. App. 1986).

Bernhard Goetz became known as the Subway Vigilante, and his case divided both New York and the nation. Those who were frustrated by the New York polices failure to fight crime backed Goetz. Others, who viewed the episode as a racial issue, vilified him.

A grand jury indicted Goetz on attempted murder, assault, and illegal gun possession. When the case eventually went to trial, Goetz claimed self-defense. The jury found in his favor and convicted him only for the gun charge, for which he served 8 months in jail.

The Law of Self-Defense

The New York self-defense law is typical of American justification statutes. It says that a person may use force when and to the extent he reasonably believes such to be necessary to defend himself . . . from what he reasonably believes to be the use or imminent use of unlawful physical force by another person. N.Y. Penal Law 35.15(1). The defense usually does not apply when the person using force was the aggressor. As in the Goetz case, deadly physical force is prohibited unless the person reasonably believes that the other is using or is about to use deadly force, or that the other is committing or about to commit a burglary, kidnapping, forcible sexual intercourse, or robbery. 35.15(2).

The phrase reasonably believes was a source of controversy in Goetz. The appellate court determined that a determination of reasonableness must be based on the circumstances facing a defendant or his situation. Goetz, 497 N.E.2d at 52. These circumstances may include knowledge the defendant had about the other, the physical attributes of all people involved, and any prior experiences. Because the defense successfully depicted the situation as a group of young men threatening one smaller individual who had previously been injured in a mugging, the jury acquitted.

Limitations on Self-Defense

Noting that self-defense is a law of necessity, the D.C. Circuit Court of Appeals has said, the right of self-defense arises only when the necessity begins, and equally ends with the necessity. U.S. v. Peterson, 483 F.2d 1222, 1229 (D.C. Cir. 1973). An incident inside a prison illustrates the imminence requirement.

Nelson Flores-Pedroso continually threatened a fellow inmate, Charles Haynes, sometimes in front of guards who did nothing. One day, Pedroso told Haynes that, after food service, Pedroso would finish what he started. U.S. v. Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998). So, during food service, Haynes snuck up on Pedroso and poured scalding oil onto Pedrosos head. Noting that later and imminent are opposites, Id., the court rejected Haynes self-defense justification.

The classic example of an imminent threat is the aiming of a gun. In the early 1990s, rapper Snoop Dogg was charged as an accomplice in the murder of Philip Woldermarian. Represented by Johnnie Cochran, Snoop and his confederates were acquitted of murder when they convinced the jury that the deceased had pointed a gun at them.

In any jurisdiction, a defendant claiming self-defense must have lacked a legal alternative to violating the law. U.S. v. Bailey, 444 U.S. 394, 410 (1980). In other words, if walking away is an option, self-defense is not a justification.

In the summer of 2005, a 13-year-old Pony League baseball player killed a 15-year-old spectator with a baseball bat after the older boy harassed him. The 15-year-old, named Jeremy Rourke, was 510, 190 pounds, and white. The 13-year-old defendant, whose name is withheld because of his age, was 51, 90 pounds, and black.

After the younger boys team lost a game, Rourke harassed the defendant by using a racial slur and telling him, You suck (13-Year-Old). Rourke shoved the minor, who said that he was not in the mood to be messed with. Rourke said, What are you going to do about it?, (Id.), and shoved the boy again.

The young defendant testified that he feared assault: in his words, I thought he was going to beat me up (Defendant). So, he pulled out an aluminum bat and hit Rourke once in the leg. Rourke bent over and balled his hand into a fist, at which time the younger boy swung again and hit Rourke in the head. Rourke died from his injuries.

Although people familiar with the league agreed that Jeremy Rourke was a bully and a troublemaker, although he stood a head taller and was 100 pounds heavier than his assailant, and although he initiated the conflict by harassing the defendant and using a racial slur, the self-defense claim failed. Los Angeles County Superior Court Judge Richard Naranjo said, when the opportunity was there to avoid further confrontation, [the defendant] did not take that opportunity (Ballplayer). The boy was convicted for second-degree murder.

Battered Women

The self-defense claims of women who kill the men that consistently assault them begin with the principle that a determination of reasonableness must be based on the circumstances facing a defendant or [her] situation. Goetz, supra. The question presented is whether or not the circumstances facing battered women justify a relaxation of the imminence requirement.

Only during the last two decades of the twentieth century did the courts begin to allow testimony of Battered Womans Syndrome (BWS) in such cases. See, e.g., State v. Kelly, 478 A.2d 364 (NJ 1984). Although courts in most jurisdictions are increasingly open to BWS evidence, critics insist that, Such relativization of ethical standards is . . . impossible for the law to adopt if it is to maintain its moral basis (Morse).

Summary

Self-defense can be a justification for an assault when a person has a reasonable expectation that he is about to be injured. The type of defense must be appropriate in light of the perceived threat. Thus, the use of deadly force in self-defense is permissible only where the person perceives imminent death or serious bodily injury.

Because the reasonability of the perception of the threat depends upon the persons circumstances and situation, the law of self-defense has some flexibility. In cases of battered women or children, courts have allowed evidence of the abuse to help explain the defendants disposition. However, the attempt to expand self-defense by limiting the imminence requirement has met with resistance.

Self-defense is actually a difficult justification to prove. Because of the value of human life, juries tend to err in favor of the deceased, unless countervailing societal factors, such as frustration with law enforcement, prevail. In any case, it takes a skilled attorney and advocate to argue to a jury that an assault or a killing was justified.

Caitlin Liu, Defendant, 13 Says He Feared Assault, Los Angeles Times, 8 July 2005, B1.

Caitlin Liu, 13-Year-Olds Lawyer Argues Self-defense, Los Angeles Times, 7 July 2005, B3.

Caitlin Liu and Hector Becerra, Ballplayer, 13, Convicted of Fatal Beating with Bat, Los Angeles Times, 9 July 2005, A1.

Stephen Morse, The New Syndrome Excuse Syndrome, Criminal Justice Ethics, Winter/Spring 1995, p. 13.

Statutory Rape Sorting Out the California Unlawful Sexual Intercourse Law

By Vince Imhoff, Esq., and Dan Rhoads

Age Aint Nothing but a Number: The title of Aaliyahs first album was a not-so-subtle justification of her relationship with R. Kelly. When she was 15 and he was 25, the two were married secretly; but her parents annulled the marriage when they found out about it. Years later, R. Kelly was arrested when a videotape that allegedly featured a sexual encounter between him and a young teenage girl surfaced. This arrest came after Kelly settled a suit with a woman who claimed that Kelly impregnated her when she was 16.

Like R. Kelly, Roman Polanski has enjoyed celebrity long after being charged for statutory rape. Polanksi plied a 13-year-old girl with alcohol and Quaaludes before having sex with her at Jack Nicholsons house. Out on bail, Polanski fled to France and has never returned to the United States to face his sentence.

Statutory Rape Penal Code, Section 261.5(a)

Because Polanskis victim was under 14, his crime against her was actually lewd or lascivious acts committed with a child. In California statutory rape, or unlawful sexual intercourse, is: an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. . . . [A] minor is a person under the age of 18 years. Cal. Pen. Code 261.5(a).

Taking the statute literally, whenever unmarried minors consent to sex, they would both be guilty. However, [f]or there to be a violation of [ 261.5], one minor must be denominated a perpetrator and the other a victim. The fact that a minor may be a victim does not ipso facto exclude a minor from being charged as a perpetrator. In re T.A.J., 62 Cal. App. 4th 1350, 1364 (1998).

The question that this reasoning raises is: when both parties are consenting minors, which one is the perpetrator?

Due to the reasons underlying the law of statutory rape, the male is at greater risk to be dubbed the perpetrator. Until 1993, the statutory rape laws singled out women as the victims, making men the de facto perpetrators in all cases of underage heterosexual intercourse.

Like most states, California has made its law gender-neutral. Now, although boys who are alleged victims are not viewed the same way as girls who are victims, explains Mike Sinacore, under the law there is no distinction (CBS News). Sinacore is the prosecutor in the case against Debra Lafave, a 23-year-old schoolteacher in Florida who had sex with a 15-year-old male student.

Crimes and Punishments for Statutory Rape Convictions

Where the perpetrator is no more than 3 years older or younger than the victim, statutory rape is a misdemeanor. Cal. Pen. Code 261.5(b). When the minor is more than 3 years younger than the perpetrator, the offense is a wobbler, which means that it can be charged as either a misdemeanor or a felony.

When the perpetrator is 21 or older and the minor is younger than 16, a misdemeanor charge can be penalized by 1 year in county jail. 261.5(d). A felony charge for such an offense carries a punishment of 2, 3, or 4 years in prison. Id.

In cases where the age difference is more than 3 years, but either the perpetrator is under 21 or the minor is over 16, a felony charge can be punished by either 16 months, 2 years, or 3 years in prison. 261.5(d). If charged as a misdemeanor, the offender faces up to 1 year in jail. Id.

Civil Penalties for Adults Guilty of Statutory Rape

Adults guilty of statutory rape might also face fines and civil penalties.

The civil penalties increase with the difference in age between the perpetrator and the minor. When the perpetrator is an adult and the minor is fewer than 2 years younger, the maximum civil penalty is $2,000. Cal. Pen. Code 261.5(e)(1)(A). Where the difference in age is between 2 and 3 years, the perpetrator may be fined up to $5,000. 261.5(e)(1)(B). If the minor is more than 3 years younger than the adult, the penalty can be as much as $10,000. 261.5(e)(1)(C). The stiffest civil penalty, a $25,000 maximum, is invoked where the perpetrator is over 21 years old and the minor is under 16. 261.5(e)(1)(D).

Statute of Limitations for Misdemeanor Statutory Rape

In the case of misdemeanor statutory rape, the statute of limitations is 1 year from the occurrence. Whenever statutory rape may be charged as a felony, meaning whenever the age difference between the parties is more than 3 years, the statute of limitations is 3 years.

Mistake of Fact

Although statutory rape was historically a strict-liability crime, California now recognizes a defense where the perpetrator participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief. People v. Hernandez, 39 Cal. Rptr. 361, 364 (1964). This acceptance coincided with the raising of the age of consent. Accordingly, the crime of committing lewd or lascivious acts with a child under the age of 14, Cal. Pen. Code 288(a), remains a strict-liability offense.

Conclusion

The purpose of statutory rape laws has historically been to protect young women, who lacked the maturity to consent to sex. Although most states have changed their statutes to make them gender-neutral, males remain at a higher risk for being prosecuted for engaging in teenage peer sex.

Because of the need for bright lines in the law, teenage couples must wait to have sex until each turns 18 to avoid breaking the law. The laws purpose is to protect minors and not to prohibit relationships in which one party is much older than the other.

In California, there is no peer-sex exemption; so, one minor can be prosecuted for having sex with another consenting minor. An adult found guilty of statutory rape faces civil penalties in addition to jail time.

Because of the way the law is set up, the prosecutor has broad discretion in trying statutory rape offenders. The prosecutor can choose not to bring charges where they are not appropriate. In many cases, the state also has the decision of whether to charge the crime as a misdemeanor or a felony. If the prosecutor chooses to take a hard line, a person accused of statutory rape should hire a defense attorney who will be aggressive in protecting the defendants rights.

Marijuana Laws Possession, Distribution, Transportation, and Cultivation

By Vince Imhoff, Esq., & Dan Rhoads

Jay gets into his car carrying a small bag of marijuana in his pocket. After driving for a few miles, his car breaks down; and Jay calls his friend Dee. Jay offers to exchange some of his marijuana for a ride back to his house, and Dee agrees. Back home, Jay prepares the marijuana by pulling the usable leaves off the stem.

In possessing marijuana and transporting it, Jay has committed two misdemeanor offenses. Jay also faces two felony countscultivation and possession for saleeach of which is punishable by up to 3 years in prison. Dee faces prosecution for at least 1 misdemeanor and possibly a felony. The risk of severe punishment lies in Californias anti-marijuana statutes.

Possession of Marijuana

Possessing not more than 28.5 grams of marijuana is a misdemeanor punishable by a fine of not more than $100. Cal. Health & Safety Code 11357(b). For a violation on school grounds, the fine can be as high as $500; and the defendant can serve up to 10 days in jail. 11357(d). Possession of more than 28.5 g, for personal use, carries a maximum fine of $500 and/or 6 months in the county jail. 11357(c).

The law recognizes joint possession; so, more than one person can be convicted for possession of the same bag. In People v. Villalobos, 245 Cal. App. 2d 561 (1966), an officer observed ten men huddled together in a location that was known to be a hangout for marijuana smokers. As the officer approached the group, a paper sack was thrown into the air; and the men scattered. The officer did not see who threw the sack and could not say that any specific member of the group had possessed the sack before it was thrown.

Because of joint possession, the officer could reasonably conclude that the sack was the common property–or at least in the common possession–of the entire group of ten men. Villalobos, 245 Cal. App. 2d at 564. However, the magistrate decided that Villalobos could not be convicted for possession of the sacks contents because the defendant was not shown to have been more than a spectator or hanger-on. Id. So, the state instead prosecuted him for marijuana debris that was found in his pocket.

Fortunately for Villalobos, the laws against drug possession do not refer to useless traces or residue. People v. Leal, 64 Cal. 2d 504, 512 (1966). So, the 50 mg of marijuana that were scraped from Villalobos pocket would not support a conviction for possession.

The usability requirement has been consistently upheld. Charred marijuana seeds cannot be used as a basis for conviction because they are useless for either a narcotic effect or for growing the plant. People v. Pohle, 20 Cal. App. 3d 78 (1971). Marijuana soaked in alcohol as a remedy for arthritis or rheumatism cannot support a conviction for possession because it cannot be used as a narcotic nor converted to a usable form. People v. Vargas, 36 Cal. App. 3d 499 (1973).

Marijuana Possession for Sale

Possession of marijuana with the intent to sell is a felony punishable by detention in state prison for either 16 months, 2 years, or 3 years. Cal. Health & Safety Code 11359. Sale of drugs includes transfers for things other than money. People v. Peck, 61 Cal. Rptr. 2d 1 (1996). Intent to sell includes an intent that another person will sell the marijuana that the first person possesses. U.S. v. Sandoval-Venegas, 292 F.3d 1101 (9th Cir. 2002).

Circumstantial evidence and reasonable inferences drawn from that evidence can be used as evidence of intent. Narcotics experts, usually law-enforcement officers, may give their opinion about the possessors intent as testimony. Circumstances tending to prove intent to sell include the quantity of narcotic, equipment found with it, and place it was found. People v. de la Torre, 73 Cal. Rptr. 704 (App. 2 Dist. 1968).

Marijuana Transportation or Distribution

Illegal distribution includes transporting, importing into the state, selling, furnishing, administering, or giving away marijuana, or attempting to do any of those things. The punishment for illegal distribution of more than 28.5 g is imprisonment in the state prison for 2, 3, or 4 years. Cal. Health & Safety Code 11360(a). If the amount is less than 28.5 grams, the punishment is a $100 fine. 11360(b).

One can be guilty of transporting marijuana without ever possessing it. For example, Sharon Botos drove her friend Kent Wenger to the airport after he had stayed at her house for several days. At the gate, a deputy U.S. marshal became suspicious of Wenger and eventually asked to search his luggage. One of his bags was locked, and Wenger at first denied having the key. But when the deputy marshal asked Wenger what he had in his pocket, Wenger pulled out a roach-clip with three keys attached to it. One of them opened the locked suitcase, which contained 6 kilos of marijuana.

Botos indictment for transporting marijuana was upheld. The court reasoned that the circumstances indicated that she knew what the suitcase held. Based upon those circumstances and on Wengers testimony, Botos was convicted. The court noted, her actual possession of the marijuana was irrelevant to the conviction for transporting it. People v. Botos, 27 Cal. App. 3d 774, 780 (1972).

Cultivation, Harvesting, or Processing of Marijuana

A person who unlawfully plants, cultivates, harvests, dries, or processes any marijuana is guilty of a felony. Cal. Health & Safety Code 11358. Although the cultivation statute seems to implicate conduct at the top of the distribution chaini.e., growing marijuana plantsit also applies to the casual user. This is so because of the word processes.

In People v. Tierce, the court held, one who removes the leaves from marijuana plants in order to render the leaves usable for smoking is engaged in processing the drug and thus violates the provisions of [the cultivation statute]. Tierce, 165 Cal. App. 3d 256 (1985). Although the defendant in the case argued that the statute could not have intended to subject casual smokers to felony charges, the court disagreed.

Back to Jay

In addition to maximum fines of $100 for each count of possession and transportation, Jay could be sentenced to prison time. Because he intended to trade marijuana for a ride from Dee, Jay would face a prison sentence of at least 16 months for violating 11359. Jay also committed a felony when he processed the marijuana. If a prosecutor could prove everything Jay did, he would face at least 2 years and 8 months in prison for his exploits during that one day.

Although simple possession is no longer punished severely, violating some marijuana laws leads to serious charges. Due to the scope that the courts have given to some of those laws, seemingly victimless actions can constitute felony offenses. When facing prison time, a person needs a defense attorney who will be a zealous advocate; or he is left to rely on the mercy of a prosecutor or a judge.

Methamphetamine Laws

By Vince Imhoff, Esq., & Dan Rhoads

I. PROPOSED NEW LAWS

In June, Riverside County, California, passed an ordinance that would require retail buyers of specific cold medicines to register their personal information with the drugstore. Literally overnight, the board of supervisors rescinded the measure when the countys lawyers pointed out that the state has exclusive authority to regulate drug sales. The House of Representatives is mulling a proposed law that would be similar to the Riverside ordinance, at least in spirit.

Desperate Measures

The ordinance would have required customers who buy even one package of cold medication that includes pseudoephedrine, phenylpropanolamine or related compounds to provide their names, addresses, telephone numbers, and drivers license numbers to a store clerk (Ramos). The store would have been required to keep the records available for request by law enforcement for three years.

The final version is quite different. It merely requires convicted methamphetamine makers to pay for the cleanup of their hazardous labs and establishes a county fund for rewards to tipsters who help with successful prosecution of meth producers (Rosenblatt).

Although the ordinance raised privacy concerns, its sudden death was due to jurisdictional defects. Congress faces no such barrier.

Federal Law for Methamphetamines

Because the methamphetamine problem has grown from a regional scourge to a national epidemic, Congress is passing federal legislation to confront the issue. An example of a pending law is the Combat Meth Act.

The Combat Meth Act would, among other things:

• classify pseudoephedrine as a Schedule V drug, meaning products containing pseudoephedrine must be kept behind a pharmacy counter and sold only by a pharmacist or pharmacy technician (Feinstein Press Release);
• require customers to present proof of identification and to sign a written log containing the date of the transaction, the name of the buyer, and the amount of the substance purchased;
• limit consumers to buying only nine grams of products containing pseudoephedrine over a thirty-day period; and
• create Special Assistant U.S. Attorney positions under which prosecutors could bring legal action against manufacturers and distributors in federal court.

The legislation is patterned after a similar Oklahoma law that has been given partial credit for an eighty percent decline in meth lab seizures in the state.

Privacy Concerns Raised by Combat Meth Act

Although the Combat Meth Act is not as intrusive as Riversides ordinance would have been, it still raises privacy concerns. The requirements unnecessarily stigmatize people who need medicine or who care for others that need medicine, and such a stigma might prevent people from seeking the treatment they need. Also, the law makes specific medicines available only during pharmacy hours, thus harder to obtain when needed.

According to the American Legislative Exchange Council (ALEC), such actions will violate consumer privacy and will create undue burdens on retailers and pharmacists, all while limiting access for patients and not accomplishing the goal of ending the production of methamphetamine (ALEC Press Release).

Effects of Restricting Access

It is true that making the precursors less accessible has in the past led to lower production levels. In the late 1980s, federal and state lawmakers created laws to make it harder for people to buy the chemicals needed to create methamphetamine (Conaughton). As a result, the Mexican drug-trafficking organizations (DTOs) were forced to get the precursors from other countries, such as China, India, Poland, and Germany (N.D.I.C.).

The restrictions cut down the number of superlabs in the United States, but they also prompted the spread of mini-labs that operate out of homes (Conaughton). Given the fact that the large-scale operations, which are responsible for practically all the methamphetamine in the area, have already been made to look overseas for their ingredients, the new laws potential impact on them is dubious.

Targeting the Bulls Eye

A law targeting high-volume transactions would be more likely to disrupt the supply of methamphetamine. In 2003, Canada passed legislation to control the distribution of precursor chemicals by investigating pharmaceutical companies suspected of selling ingredients to DTOs. In the first year after the law took effect, seizures of meth tablets dropped by about fifty percent (Rood).

The superlabs must continue to be the focus of law enforcement measures. In March 2004, sheriffs deputies served a warrant on a meth lab in a two-story barn on a 10-acre parcel southeast of Perris. They found enough methamphetamine to produce 120 pounds of the illegal drug (Hall).

Each of the three men apprehended was convicted for manufacturing a controlled substance, for possession of a controlled substance for sales, and for related conspiracy charges. Each defendant was sentenced to 15 years. The shutdown of the laboratory put a significant dent in methamphetamine distribution in and around Southwest County (Id.).

By targeting large-scale operations, law enforcement allocates its resources where they have the greatest impact.

II. CALIFORNIA LAWS

Because California, particularly Riverside and San Bernardino Counties, has become the methamphetamine capital of the United States (N.D.I.C.), the state has the most comprehensive anti-meth legislation. Because methamphetamine is a synthetically manufactured substance, the law necessarily addresses all levels of production and distribution. The laws reflect the idea that each successive step toward manufacturing meth is a more serious crime meriting increased punishment. People v. Perez, 29 Cal. Rptr. 3d 423, 430 (2005).

Manufacturing of Methamphetamine

Manufacturing methamphetamine carries the stiffest penalties among the anti-meth laws. A person who manufactures, produces, or prepares methamphetamine can be imprisoned for 3, 5, or 7 years and fined up to $50,000. Cal Health & Safety Code 11379.6.

In addition to restricting access to chemicals like pseudoephedrine, California has criminalized its possession with intent to manufacture methamphetamine or any of its analogs. Cal. Health & Safety 11383(c)(1). In addition to criminalizing substances like pseudoephedrine, which can be precursors to making methamphetamine, the courts have also allowed prosecution when a defendant possessed chemicals essential to making the precursor chemicals.

When sheriffs deputies searched Lisa McCalls cabin, they found boxes of ephedrine tablets, sinus medication containing pseudoephedrine, and the type of equipment used to manufacture methamphetamine. People v. McCall, 8 Cal. Rptr. 3d 337, 339 (2004). McCall was arrested for possession of hydriodic acid with intent to manufacture methamphetamine, even though she had not yet processed the acid, under the provision that, possession of essential chemicals sufficient to manufacture hydriodic acid . . . shall be deemed to be possession of hydriodic acid.

The California Supreme Court upheld the law and McCalls conviction. Later, the legislature changed the language of the statute to say, Any person who possesses immediate precursors sufficient for the manufacture of . . . hydriodic acid . . . with intent to manufacture methamphetamine is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years. Cal. Health & Safety Code 11383(f).

It is illegal also to furnish substances, laboratory glassware or apparatus, or chemicals for manufacturing methamphetamine. A person guilty of furnishing precursor chemicals with knowledge or the intent that the recipient will use the substance [unlawfully to] manufacture a controlled substance is guilty of a felony. Cal. Health & Safety Code 11104(a). Someone who furnishes the laboratory equipment or precursor chemicals, with knowledge of their purpose, is guilty of a misdemeanor. Cal. Health & Safety Code 11104(b).

Methamphetamine Distribution or Transportation

Distributing controlled substances such as methamphetamine carries a penalty of 2, 3, or 4 years in state prison. Distributing includes transporting, importing into the state, selling, furnishing, administering, giving away, or offering to do any of those things. Cal. Health & Safety Code 11379.

Transporting a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character. People v. LaCross, 109 Cal. Rptr. 2d 802 (2001). Any quantity large enough for one person to use qualifies as a usable quantity. Any movement of the drug from one place to another constitutes transportation, even if a person is just walking across a parking lot with meth in his jacket. People v. Ormiston, 129 Cal. Rptr. 2d 567 (2003).

Possession of Methamphetamines

Possession for sale is a felony punishable by detention in state prison for either 16 months, 2 years, or 3 years. The elements of possession for sale are (1) possession of the dangerous drug, (2) for the purpose of selling it. People v. Allen, 254 Cal. App. 2d 597, 602 (1967). Although in some situations, the circumstances make a sellers purpose obvious, the vagueness of the law can invite prosecutorial overreaching.

At trial, police officers may testify as to factors that point to an intent to sell. People v. Harris, 99 Cal. Rptr. 2d 618 (2000). These factors include the quantity, packaging, and normal use of an individual. However, an officer may not opine about intent without any evidence supporting the opinion. People v. Newman, 95 Cal. Rptr. 12 (1971).

Simple possession carries the least severe penalties. Although it is punishable as a felony, the maximum punishment, absent aggravating factors, is imprisonment in a county jail for . . . not more than one year or in the state prison, Cal. Health & Safety Code 11377, and a fine of up to $70.

Conclusion

Methamphetamine is a growing danger. Its use leads to addiction, crime, and child abuse. Its manufacture causes pollution and can lead to explosions. Trade in methamphetamine involves large, international drug-trafficking organizations.

In order to meet the threat, legislatures are pulling out all the stops. While all the laws are well-intentioned, and most are appropriate, some raise concerns over privacy or require questionably low evidentiary standards.

Defending against a prosecution for a meth-related crime is an uphill climb due to both the laws and the stigma that attaches to such charges.

Works Cited:

ALEC Press Release, ALEC Urges Caution on the Combat Meth Act (22 June 2005).

Gig Conaughton, Meth Problem Growing for Women, Children, Supes Told, North County Times, 20 October 2004.

John Hall, Three Sentenced in Meth Lab Case, North County Times, 4 February 2005.

National Drug Intelligence Center (N.D.I.C.), California Central District Drug Threat Assessment: Methamphetamine, May 2001.

Feinstein Press Release, Talent-Feinstein Bill Would Limit Access to Key Ingredient Used to Make Meth (26 January 2005).

Stephanie Ramos and Hector Becerra, Buying Cold Pills? Fill Out This Form, Los Angeles Times, 29 June 2005, at A27.

Lee Rood, California Scarred by Meth Combat, Des Moines Register, 24 November 2003.

Susannah Rosenblatt and Stephanie Ramos, Meth Measure Wouldnt Burden Shoppers, Los Angeles Times, 30 June 2005, at B10.

Assault and Battery: Legal Considerations

By: Vince Imhoff, Esq. & Mike Riddell

In late 2004, Cameron Diaz and her pop-star boyfriend, Justin Timberlake, were walking out of a Sunset Strip nightclub when they encountered a paprazzi photographer. Diaz, the Charlies Angels star, hit the photographer in the neck, tripped him over, and stole his camera. Timberlake, looking at the photographer bleeding on the ground, yelled, What are you gonna do, man?

The crimes of assault and battery have been permeating American mass media for decades. Recently, Oscar winning actor Russell Crowe threw his cell phone at a hotel clerk and could face up to eight years in jail. Even decades ago, celebrity sex symbol Zsa Zsa Gabor made headlines when she slapped a police officer whom had just pulled her over. From nightly reports of gang violence to full coverage of celebrity trials, assault and battery are, unfortunately, a significant part of American society. Most recall the now infamous National Basketball Association brawl between the Indiana Pacers and Detroit Pistons fans in November of 2004. As a result of the melee, in which Pacer players charged Piston fans in the stands and on the court, five Pacers were charged with misdemeanor assault and battery.

What is Assault?

At its most simple level, an assault is merely an attempted battery; and, although it is more complex, a battery can generally be described as a successful and completed assault. For example, when Russell Crowe threw his phone at the hotel clerk, it became an assault upon the action of throwing. Since the hotel clerk was subsequently hit with the phone, the battery became complete because contact resulted. Therefore, an assault can be committed without a battery, but the reciprocal is not true: a battery cannot be committed without an assault.

Since 1872, the California Legislature has defined assault as an unlawful attempt, combined with present ability, to do violent injury on the person of another. Cal. Pen. Code 240 (2005). The California Supreme Court recently interpreted this language to mean that a defendant is guilty of assault only if he or she intends to commit an act which would be indictable as a battery. People v. Williams, 26 Cal. 4th 779, 787 (Cal. 2001). This means that the defendant must intend to commit an act likely to result in physical force and injury to another person. For Russell Crowe to be convicted, the prosecution would have to show that Crowe intended to hit the clerk with his phone. For a conviction of assault, it is the intent and not the resulting harm or contact which is dispositive. Thus, assault is often referred to as an attempted battery and can occur without the commission of a battery.

What is Battery?

However, every battery necessarily includes an assault. A battery in California is any willful and unlawful use of force or violence upon the person of another. Cal. Pen. Code 242 (2005). California case law has long established that merely touching a person may constitute a battery, even if it does not result in any bodily harm or pain. People v. Bradbury, 91 P. 497 (Cal. 1907). In People v. Martinez, a barefoot defendant kicked a motorcycle police officer, who was wearing motorcycle boots, in the shin. 3 Cal. App. 3d 886 (Cal. App. 1970). The court held that the kicking of the officer satisfied the definition of battery, although there was no injury suffered. The requirement of force can be either direct, like punching or kicking, or can be indirect. For instance, driving a car and forcing a passenger to jump from the moving vehicle constitutes a battery, even if there is no actual contact. See People v. Wright, 52 C.A.4th 203 (Cal. App. 1996).

Though most celebrities generally plea-bargain their way out of any jail-time, a simple battery and simple assault are both misdemeanors, punishable by a $1,000 or $2,000 fine and imprisonment in county jail for up to six months. There are different levels of punishment: whereas a common incident involving an injured photographer is the lowest levelAn assault by any means of force likely to produce great bodily injury is a felony punishable by up to four years imprisonment and up to a $10,000 fine. Cal. Pen. Code 245(a) (2005). Like simple assaults, a felony assault may be committed without any resulting physical injury. The main issue is whether the force used was likely to produce great bodily harm, and not whether great bodily harm was produced.

A battery is a felony when the victim sustains serious bodily injury, and punishment is imprisonment for up to four years. Cal. Pen. Code 243(d) (2005). The legislature has defined serious bodily injury to include loss of consciousness, concussion, bone fracture, loss of function of an organ, disfigurement, and any wound requiring suturing.

Felonies for Aggravated Assault and Battery

Modern statutes have created felonies for aggravated assault and aggravated battery which carry more severe penalties. An aggravating circumstance is usually when there is serious or grave intent or when the defendant is using extraordinarily dangerous means. The most common form of aggravating circumstance is an assault with a deadly weapon. Committing an assault with a deadly weapon, defined as an instrument likely to produce death or great bodily injury, results in felony assault. Cal. Pen. Code 245 (2005). Additionally, there are several other statutes designed to enhance the punishment for assault and battery if the offense is committed against particular people. For example, committing an assault with a deadly weapon against a police officer can increase the sentence for up to ten years.

Because every completed battery includes assault, a defendant committing a battery usually cannot be separately convicted for an assault. However, when the degrees of the assault and battery differ, there can be two separate convictions for assault and battery.

For example, while it may seem that felony battery and felony aggravated assault are interrelated, a felony of aggravated assault focuses on the amount of force used, and a felony battery focuses on the actual injury inflicted. In 1984, juvenile Ronnie N. shot a pedestrian in the mouth with a B.B. gun and was charged with both felony aggravated assault and felony battery. In re Ronnie N., 174 Cal. App. 3d, 731 (1985). In considering whether he could be convicted of both, the court reasoned that the force causing serious bodily injury does not necessarily have to be deadly force. The court illustrated that the act of someone pushing another, resulting in serious bodily injury, may not have the required deadly force to result in an aggravated assault. Therefore, the aggravated assault is not included in a felony battery and the two offenses could be tried separately.

At its most basic level, an assault is an act intending to cause physical injury. When the act is completed and contact results, the assault then becomes a battery. An assault can occur without a battery if no physical contact occurs, but a battery automatically includes an assault. As we have seen however, there are many varying degrees of assault and battery; and a defendant can be convicted of both separately.