Archives : 2005 : August

False Allegations of Child Molestation and Child Abuse: What is Real and What Only Appears to be Real, and How to Know the Difference

By: Edward Martinovich, Attorney at Law and Ariella Rosenberg

In 1986, a defendant was convicted of four counts of first-degree sexual offense and ordered to serve two life sentences. In 2001, after spending fourteen years in prison, this defendant was released, two years after his daughter, admitted that she had lied about her father molesting her. Although a medical examiner had found no evidence of the defendant’s alleged sexual abuse, the daughters story was so convincing that it held up until she finally admitted to the falsehood. Her excuse: she had lied to escape her strict, religious upbringing. The cost: 14 years of freedom and his reputation. His life was irreparably harmed.

A similar case occurred last year, when, after spending twelve years in prison, the defendant walked free. The defendant had been sentenced to forty years in prison in 1992 for molesting a 3-year-old girl. A few years ago, the alleged victim found out that the defendant was in prison and told a relative that she had been coerced into lying to authorities. Apparently, another relative, who had harbored a long-standing grudge against the defendant, had coached the girl.

Sadly, false accusations of molestation are a frequent reality in the criminal justice system. Besides detracting from credible cases of true sexual abuse, false accusations have put many innocent men and women behind bars, while destroying their families and ruining their lives. The motives for manipulating a child into making a false accusation can range from revenge over a broken relationship to a desire to gain full custody of a child. In cases where there are huge sums of money at stake, or in cases involving celebrities, such as the recent Michael Jackson trial, the motives often include a desire to obtain a financial winfall from a public figure.

Federal Law on Child Abuse Prevention

The Mondale Act of 1974, also known as the Child Abuse Prevention and Treatment Act (CAPTA), brought the phenomenon of child molestation to the public eye. 42 U.S.C.A. 5101. Before the passage of CAPTA, child abuse was concealed and rarely reported. With the Acts adoption, states were required to enact more effective child abuse laws, threatening to withhold funding should the provisions of the federal code not be incorporated into state law.

Although the Act is clearly beneficial to the plight of abused children, it is also vulnerable to abuse by those with unseemly agendas. Whereas the Act contains provisions for immunity for individuals making good faith reports of suspected or known instances of child abuse, anyone failing to report any incident of suspected child abuse can be convicted of a felony and have their professional license suspended. 42 U.S.C.A. 5106a. Understandably, the system encourages officials and experts to err on the side of reporting cases of potential child abuse. However, the combination of extreme pressure on officials not to miss a valid report of abuse and the relatively minor consequences faced by false accusers create a tension in the bureaucratic structure, thereby creating a legal nightmare for the wrongfully accused.

After spending twenty years in a California prison after a 1985 child molestation conviction, on defendant was released last year on his 61st birthday. Four of the defendants accusers, now adults, testified that overzealous criminal investigators manipulated them until they fabricated the stories of abuse. Doctors had never even examined the victims. The defendants case demonstrates a classic case of nervous and overanxious childcare officials fearing the legal consequences of failing to protect a truly abused child, only to overreact and lead children into false accusations of molestation.

Different states maintain different statutes regarding punishment for those who coach their children into false accusations against a spouse to gain advantage during a bitter divorce or custody battle. The phenomenon is common enough to have been given a name by mental health professionals: SAID syndrome (sexual allegations in divorce). It goes hand in hand with Parental Alienation Syndrome (PAS), a disorder made up of a combination of brainwashing of a child by one parent to incriminate the other, and of self-created contributions by the child in support of the alienating parents campaign of incrimination. PAS is almost exclusively seen in the context of child-custody disputes, during which false accusations of molestation often arise. Whereas the legal consequences for convicted molesters can include life in prison and lifetime registration as a criminal sex offender, oftentimes those who coerce a child into a false accusation face no more than a fine and less than a year in jail. Let us examine the high-stakes custody battle between a casino mogul and former playboy model wife. Although the judge in the initial trial found that the defendant had coached the couples twin daughters, then 4, to make false accusations of sexual abuse against their father, on appeal, judges still returned the twins to their mothers custody. In this case, the penalty his estranged wife suffered for forcing their children to lie was actually a victory, in that she gained custody of the children.

What To Do If You Are Falsely Accused

False allegations of child molestation are different from most other criminal allegations due to their sexual content, which makes them emotionally charged and highly sensitive. Moreover, since a mere touch of a child can form the basis for a molestation charge in most jurisdictions, these allegations rarely have any medical evidence to support them. Consequently, the trial becomes a battle between the words of a very sympathetic young child versus those of a less sympathetic adult. Add to this, general public paranoia and outrage fueled sometimes by incessant media coverage and you have a recipe for disaster. Therefore, when a child claims to have been abused, the accused is forced to become a public figure and come forward to proclaim his innocence, and, in some instances, be forced to testify at a trial. This creates unfairness within the criminal justice system, wherein the accused has a right to remain silent and is presumed innocent until proven guilty by the prosecution.

Those who have been falsely accused of crimes against children, especially crimes that are sexual in nature, have options. It is imperative to retain expert legal counsel early on in the process. This means at the beginning of an investigation by either the social service agency or law enforcement. What is done at the outset can dictate how and if a criminal prosecution will ensue. Of course, it goes without saying that anyone who is facing criminal prosecution should have an attorney who is experienced in handling these types of criminal cases. Many accused adults decide to plead no contest or guilty to false accusations of molestation under the mistaken belief that a plea does not constitute a criminal conviction. Further, they feel compelled to accept such a plea offer because it results in less custody time than they face if they went to trial and were convicted. What the uninformed person does not know is that a plea of no contest or a plea of guilty is a criminal conviction, which may result in the loss of ones right to appeal, the requirement of lifetime registration as a sex offender, and the public posting of ones name and place of residence. 42 U.S.C.A. 14071. A convicted sex offender may also be ordered to undergo treatment, may be barred from holding certain kinds of jobs, and may be ordered to stay away from children, including their own, regardless of whether or not they were the alleged victims, or to enjoy only supervised visits. Moreover, convicted sex offenders often are subject to searches, seizures, and interrogations by law enforcement every time that a sex crime occurs in the area in which they live. The bottom line is that before one makes a decision that has such far-reaching consequences, one must be absolutely certain that he has received the best counsel possible.

For these reasons, a seasoned legal expert is crucial to help fight false accusations. A smart attorney will prepare a roadmap of the strategy to be used to defend against these types of allegations. A good attorney will discuss with the client what resources will be needed to wage the war against the governments charges. One most certainly will consider the need for medical, psychological and sociological experts. Experts can evaluate and analyze medical or scientific evidence. Experts can conduct an in-depth evaluation of the client. Experts can educate a judge and jury as to the nature of child witnesses and the subject of suggestibility of children. Experts can review and analyze video, audio and written accounts of a childs interview to determine whether the proper interviewing techniques were employed and whether or not a child is credible.

A smart attorney will also counsel the client as to how to conduct himself and what proactive steps to take prior to any trial in order to prepare for certain phases of the case. It is important to note that one who is accused should never confront the child or any other witness about the investigation. A simple conversation may lead to charges of violation of an order of protection, which orders are routinely issued in these types of cases, as well as accusations of intimidating a witness or endangering the welfare of a child.

A smart attorney may also discuss the possibility of having the client submit to a polygraph test (records the bodys responses to truths and lies to judge credibility) and/or a plethysmograph test (records sexual responses to pedophilic material to determine whether any sexually based mental health disorders may be present). Some of these tests and their results may not be legally admissible in court; however, they may be successfully used in discussions with a prosecutor prior to the filing of a criminal complaint to affect the decision as to whether and what types of charges are filed or in negotiation and mitigation once the criminal prosecution has begun.

If I am innocent of the allegations, why do I need a lawyer?

A person who is being investigated for a crime he or she did not commit can benefit from hiring an attorney as soon as possible, even before charges are brought. In particular, in investigations of sexual crimes, such as child molestation, it is important to have the benefit of counsel as early as possible. As a person under investigation, your most important protection is your right to hold the government to the burden of proving its case without any voluntary statement from you.

Your attorney can communicate on your behalf to the investigators. False allegations of child abuse and child molestation sometimes occur when a family member is engaged in a child custody or divorce proceeding. Although many states have laws that impose sanctions for making such accusations, (for example, California Family Code Section 3027.1)(*1) many accusations are still made because it is often difficult for the court to conclude that the allegation was made in bad faith, and not out of an exercise of caution in response to some statement by the child.

If child abuse investigators are contacting you, they have already concluded they have some basis to believe the accusations are true. Investigative agencies are not legally required to follow up on all accusations they receive, and often reject fanciful and contrived allegations without contacting the suspect. If the allegation is false but sufficiently believable for investigators to proceed, the accuser has most likely provided a wealth of factual detail to support the allegations. In questioning a suspect, investigators rarely provide the accused with reports of the allegations, and are even permitted to mislead the accused in an effort to prompt the accused to give a statement. Your statement may inadvertently corroborate relatively minor details, providing sufficient evidence for an arrest to occur.

If you are falsely accused of child molestation it is important to take precautions. Falsely accused persons often mistakenly believe that hiring counsel will cause the authorities to assume the suspect must be guilty. In truth, investigators, prosecutors, and courts must respect your right to counsel and your right to remain silent. They cannot infer that your statement would have implicated you merely because you have retained counsel, or you have declined to give a statement. On the other hand, any statement a falsely accused suspect gives may supply inadvertent corroboration to the accusations, and therefore allow the authorities to obtain probable cause for arrest.

Furthermore, there is no guarantee as to the length of time an accused person will be questioned or under what circumstances. Investigators who believe they can break down a suspects resistance to admitting the truth of a crime may prolong questioning for many hours. They may also question the accused about a wide range of topics, which may appear to not even relate to the present situation. They may conduct the interview in a very uncomfortable setting, even leaving the accused isolated for many hours in an effort to overcome resistance and make the suspect feel hopeless. Finally, investigators are trained at obtaining statements and admissions that are favorable to the prosecution, and may succeed in doing so, even when the accused is innocent.

Due to the current legal and political environment described above and the significant consequences of a sex crimes criminal conviction a criminal defense attorneys assistance could prevent formal charges.

A person investigated for child molestation should remember that only conversations with his or her attorney and the attorneys staff and investigators are privileged against discovery. Any conversation with police investigators, child protective services, family, friends and the alleged victim can be admitted into court as evidence of admissions (*2) or prior inconsistent statements. Even minor deviations between a different persons accounts of the accusers side of the story can appear significant in a later trial.

Frequently police set up a call from the alleged victim to the suspect and monitor the call for any type of incriminating statement, which may be used in the subsequent criminal prosecution. A person is under no obligation whatsoever to cooperate with authorities in his own criminal prosecution and by allowing an attorney to speak for him, the falsely accused may very well save himself from a criminal conviction. An attorney may even be able to supply evidence in your favor, such as statements from other witnesses, or arrange for a psychological evaluation showing that you do not have the personality profile of a person who victimizes children.

The vast majority of those convicted of criminal charges have made some type of statement in investigators, while conversely those who exercise their right to remain silent have a much stronger likelihood of avoiding a criminal prosecution.

As our discussion reveals, the crime of child molestation and other crimes against children are serious offenses that are not to be taken lightly under any circumstances. Given the gravity of the offenses and the severity of the possible consequences, those who have been falsely accused of child molestation or similar crimes must have an experienced attorney at their side in order to prepare and execute an effective defense.

*1. California Family Code 3027.1.  False accusations of child abuse or neglect during child custody proceedings; knowledge; penalties

(a) If a court determines, based on the investigation described in Section 3027 or other evidence presented to it, that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney’s fees incurred in recovering the sanctions, against the person making the accusation. For the purposes of this section, “person” includes a witness, a party, or a party’s attorney.

(b) On motion by any person requesting sanctions under this section, the court shall issue its order to show cause why the requested sanctions should not be imposed. The order to show cause shall be served on the person against whom the sanctions are sought and a hearing thereon shall be scheduled by the court to be conducted at least 15 days after the order is served.

(c) The remedy provided by this section is in addition to any other remedy provided by law.

*2. An admission is any statement made by a criminal defendant outside of court. An admission need not even be a statement adverse to the defendants interest. For example, California Evidence Code Section 1220 defines an admission by a party as:

1220. Admission of party

Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.

This rule is very advantageous to a criminal prosecutor, because while any alleged statement of the defendant can be admitted, because the defendant is a party to the case, the accuser is not a party to the case, and his or her statements out of court are therefore not admissible under this rule.

A prior inconsistent statement is also admissible. California Evidence Code Section 1235 provides:

1235. Inconsistent statements

Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing

CALCRIM Instruction No. 318 explains to juries that all versions of a witnesss statement, whether spoken live in court, or introduced as a prior inconsistent statement are admitted for the jury to consider for their potential truth. This also allows jurors to decide if the version presented in court by the witness is to be believed:

318. Prior Statements as Evidence

*3. You have heard evidence of [a] statement[s] that a witness made before the trial. If you decide that the witness made (that/those) statement[s], you may use (that/those) statement[s] in two ways:

1. To evaluate whether the witness’s testimony in court is believable; AND

2. As evidence that the information in (that/those) earlier statement[s] is true.

This rule applies to any witness who testifies on either side of the case, or whose hearsay statements are admitted through another witnesss testimony.

3. All criminal courts allow the accused to admit evidence of his or her good character as a defense to crimes. Juries may find a verdict of Not Guilty based on good character alone, for example, CALCRIM Instruction 350 reads in part: Evidence of the defendants character for _______ <insert character trait> can by itself create a reasonable doubt In the California case of People v. Stoll (1989) 49 Cal.3d 1136, 783 P.2d 698, 265 Cal.Rptr. 111, the California Supreme Court found that a defendant may introduce evidence of a psychologists expert opinion, based on interviews of the client and standardized psychological testing that the defendant is not sexually deviate:

we found prejudicial error in the exclusion of expert opinion testimony that defendant is “not a sexual deviate” where offered to prove that he did not commit lewd and lascivious acts upon a child. (Stoll, supra, 49 Cal.3d at 1152).

Sex Offender Registration: Is Sex Offender Registration Constitutional?

By: Tony Partipilo, Attorney at Law and Ariella Rosenberg

In 2002, David Ballard of Texas was sentenced to life in prison for his habitual failure to register with authorities as a convicted sex offender. Ballard was arrested in 1990 for the sexual assault of a teenage girl. He plead guilty to the charge and was sentenced to 10 years on probation. After violating his probation in 1993, he received six years in prison and was released on parole in 1998.

As a requirement of his parole, Ballard signed paperwork indicating a lifetime duty to register himself annually as a sex offender. After failure to register in 2001 when he moved to a new house, Ballard was arrested on charges of trying to evade authorities and a jury gave him the maximum sentence life in prison. On appeal, Ballards lawyer challenged the punishment, and in June his sentence was reduced to 12 years.

Federal Law for Registering Sex Offenders

In the last decade, federal law governing the registration of convicted sex offenders has grown stricter. In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. 42 U.S.C. 14071. The law required the registration of persons convicted of offenses listed in the statute, which include criminal offenses against a victim who is a minor and sexually violent offenses. 42 U.S.C. 14071(a)(1). States were given three years from September 1, 1994, to comply with the new law. 42 U.S.C. 14071(g)(1).

In 1996, Congress amended the Wetterling Act and passed H.R. 2137, more popularly known as Megans Law. Named for a 7-year-old victim, who was raped and killed by a convicted child molester living across the street from her family, the amendment required every state to develop some procedure for notifying the public when a sex offender is released into their community. The Amendment further provided that the information collected under a State registration program may be disclosed for any purpose permitted under the laws of the State. 42 U.S.C. 14071 (e)(1). Additionally, the State shall release relevant information that is necessary to protect the public concerning a specific person required to register under this section. 42 U.S.C. 14071 (e)(2). Since the passage of the 1996 law, all states have passed some form of Megans Law, adopting different procedures for the disclosure of sex offender information.

Under the current terms of federal law, a person required to register as a sex offender must comply until 10 years have elapsed since the person was released from prison or placed on parole, supervised release, or probation, or for life if the person has 1 or more prior convictions for an offense described, has been convicted of an aggravated offense described, or has been determined to be a sexually violent predator. 42 U.S.C. 14071 (b)(6).

Failure to register under a State program or failure to keep registration current shall be subject to criminal penalties in any State in which the person has so failed. 42 U.S.C. 14071 (d).

Is Sex Offender Registration Constitutional?

With the national enactment of Megans Law has come a backlash of challenges to states interpretations of the federal code. Convicted sex offenders have argued that registration requirements violate their fundamental rights. However, courts throughout the United States have generally upheld registration provisions.

In Michigan, a convicted sex offender, filed suit challenging the constitutionality of the 1994 Michigan Sex Offender Registration Act, MCLA 28.721, et seq., which requires convicted sex offenders to register with the local law enforcement agency where they reside. The Court rejected Lannis claim that the Act constituted cruel and unusual punishment, and also rejected arguments that the law violated the equal protection clause or the due process clause. Lanni v. Engler, 994 F. Supp. 849, 855 (E.D. Mich. 1998). Additionally, the Court rejected Lannis claim that the registration requirement was a form of double jeopardy, finding that the requirement was not overwhelmingly punitive and that the implied purpose is mainly regulatory. Lanni, 994 F. Supp. at 855.

Two recent Supreme Court rulings have also turned down challenges from sex offenders who argued that they deserved a chance to prove they werent dangerous and avoid having their pictures and addresses put on the Internet in state registration systems. In a 6-3 vote, justices rejected arguments by two Alaska sex offenders who contended that the Alaska registration law, which requires convicts to give police personal information four times a year or risk prison time, constituted a second form of punishment. Smith v. Doe, 538 U. S. 84 (2003).

The Court also ruled 9-0 that Connecticut did not have to hold separate hearings to determine the risk posed by convicted sex offenders who have completed their prison sentences before putting them in a registry. Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). Regardless of the severity of their crime, Connecticut sex offenders are all subject to the registration procedures provided for under the Connecticut version of Megans Law.

Conclusion

Despite the concerns of the ACLU and some federal and Supreme Court judges, the courts tend to consistently prioritize public safety over the rights of past sex offenders. In Congress, Senator Orrin Hatch and Representative Mark Foley have recently sponsored the Sex Offender Registration and Notification Act. If passed, this bill would further increase the registration requirements for sex offenders, requiring more frequent updates and lengthening the minimum duration to register from ten to twenty years. The bill would also introduce the use of tracking devices for first-time offenders and add a mandatory annual update to the taking of a sex offenders photograph and fingerprints.

Given the state of the law, where both the states and their federal counterparts are passing legislation for harsher sentences for those who fail to comply with mandatory registration requirements, it is crucial that anyone facing prosecution for a sexually based offense consult an attorney experienced in defending these types of charges. Moreover, any person who has been convicted of a sexual offense, whether or not it is a misdemeanor or a felony, should consult with an attorney to insure that they are in compliance with the current registration requirements in their jurisdiction. As the Ballard case demonstrates, failure to comply with registration requirements could lead to prison sentences that are even greater than the time imposed and served for the initial crime for which they were convicted.

Shoplifting – It seems like such a simple decision at first

By: Donna Ortlieb, Esq. and Natalie Banach

It seems like such a simple decision at first.

You look around and all the other store clerks are busy with other customers, no one is looking your way, and the item you want isn’t even worth that much.

So you look around once more, stealthily swipe the item into your jacket pocket, walk around the store for a few more minutes and make an inconspicuous exit.

But then the security guard taps you on your shoulder and the next thing you know the store is pressing charges. It’s only shoplifting, you think. But it’s not that simple.

Petty Theft Can Carry Hefty Consequences

In a world where the intricacies of the legal system can be as convoluted as the most advanced mathematical concept, any criminal charge or conviction can carry a wealth of hidden consequences. Often referred to as the “collateral consequences” of a criminal conviction, these implications can come into play under a variety of circumstances. Whether its limited employment opportunities or a change in legal status, the establishment of a criminal record carries with it far-reaching consequences.

The legal definition of shoplifting differs from state to state, but usually refers to the theft of property which is worth less than $500 and which occurs with the intent to deprive the owner of that piece of property. As a result , whether it’s a $2 dollar candy bar, a $15 dollar CD, or a $100 television, a charge of petty theft can be brought against the perpetrator.

Punishments for Criminal Charges

There are a variety of potential outcomes associated with a criminal charge and they include, but are not limited to: a criminal investigation with no arrest, an arrest but dismissal of the case because of a procedural mistake made on the part of the police, an arrest followed by a plea bargain made with the government where the person pleads “guilty” in exchange for a lighter sentence, an arrest followed by a trial where the person is found “not guilty”, or an arrest followed by a trial and a guilty verdict and conviction. In the case of a guilty verdict or a plea bargain, the result is a conviction and a criminal record is established.

Consequences for Shoplifting

In some rare cases shoplifting-related offenses can carry additional options. It may be possible to ultimately get a charge withdrawn or stayed and thus stave off a criminal record. Such alternative options can depend on the circumstances of the offense, the person’s personal background, and the jurisdiction in which the person was charged. But once again, such alternatives are rare and, for the most part, if a person chooses to shoplift the chances of gaining a criminal record are high.

One of the most troublesome collateral consequences of a criminal record can come into play when employment is considered. Federal law and most state agencies now requires background checks and allow disqualification based on conviction in a wide variety of employment areas including education, healthcare services, child and eldercare, financial institutions and transportation. In fact, according to the Sentencing Project, a non-profit organization recognized for its criminal justice system policy analysis, the inability to find or maintain a job has been one of the main reasons for recidivism.

The capability of employers to run background checks has also increased in recent years with the surge of companies, even some online, offering quick and easy record checks. Thus, a criminal background will almost surely be found and considered in most employment decisions. While more than half of the states bar an employer from disqualifying a potential employee on the sole basis of his criminal record, it is important to note that a wide variety of exceptions exist. In fact, not only do many state laws allow for a multitude of exemptions to such discriminatory practices, but there are few means of enforcement. Therefore, some employers have little incentive to not make employment decisions based on the existence of a candidates criminal record.

Permanence of a Criminal Record

Once someone has been labeled a criminal, it may well be impossible to erase that record. While opportunities for expungement do exist, they are rare, require court filings, and do not necessarily eradicate the conviction for all purposes. In order to get a criminal record expunged, meaning a notation is made in the record which states it is off limits to everyone except law enforcement personnel, numerous applications and guidelines have to be met. The Sentencing Project further reports that while every jurisdiction has at least some way for a criminal offender to mitigate the collateral consequences of a conviction, relief mechanisms such as expungement or pardons, are inaccessible and unreliable to the vast majority of people. Moreover, in many states, the ability to expunge or seal a record is offered only to first offenders, minor offenders sentenced only to probation or misdemeanants. In any case, the establishment of a criminal record is often difficult to eradicate or mitigate.

In retrospect, it may seem as if the choice to shoplift is not so simple and is instead fraught with ever-widening consequences. The decision to shoplift may mean free merchandise in the near future, but can in reality mean a lifetime of employment opportunities eradicated. Once established, a criminal record is often difficult if not impossible to erase, and a free CD or purse may no longer seem worth it.

RICO: Racketeering Influenced and Corrupt Organizations Act

By: Ed Martinovich Esq. & Dan Rhoads

The Gentle Don, Alphonse Frank Tieri, ascended through the ranks of the Genovese crime family by being both an effective gangster and an elusive criminal defendant. After one early conviction for robbery, Tieri was acquitted in nine consecutive trials. But in 1980, Tieri became the first person charged under the Racketeering Influenced and Corrupt Organizations (RICO) Act (the Act). He was found guilty in 1981 and sentenced to 10 years in prison, but he died less than three months later while out on bail.

After Tieris death, Anthony Fat Tony Salerno became the Genovese boss; but the RICO statute would land Salerno behind bars as well. Rudy Giuliani, then a U.S. Attorney in New York, charged Salerno, along with the leaders of all five families of the American mob, for RICO violations. The Commission trial, U.S. v. Salerno, 505 U.S. 317 (1992), lasted from 1985 until 1987, when all eight defendants were found guilty. The RICO convictions of Tieri, Salerno, and the rest marked the beginning of the drastic decline in the dominance of the American mafia.

The RICO Law

In 1970, Congress passed the RICO Act in response to a perception that traditional conspiracy law provided inadequate tools for combating sophisticated criminal enterprises. Kadish & Schulhofer, Criminal Law and Its Processes, 7th ed. (2001). Indeed, the ability of mobsters like Tieri to elude punishment frustrated lawmakers and law enforcers alike.

The RICO statute has three substantive provisions. The most prevalent of these is subsection (c), which forbids any person employed by or associated with any [interstate] enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprises affairs through a pattern of racketeering activity or collection of unlawful debt. 18 U.S.C. 1962(c). Subsection (a) basically prohibits laundering money generated through racketeering. Subsection (b) criminalizes the acquisition of an interest in an enterprise through racketeering or unlawful debt-collection. Subsection (d) makes it illegal to conspire to violate any of the first three.

What RICO added to conspiracy law was a substantive offense which ties together . . . diverse parties and crimes. U.S. v. Elliott, 571 F.2d 880, 902 (5th Cir. 1978). Where before RICO, the mafias activities consisted of various conspiracies with no legal connection, the Act made it illegal to participate, directly and indirectly, in the affairs of the enterprise by committing two or more predicate crimes. Id. To be found guilty, a person by his words or actions, must have objectively manifested an agreement to participate. Id., 571 F.2d at 903.

Racketeering

The predicate crimes in the original RICO law reflect the fact that the Acts original target was the mafia. They include (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance . . . and (B) bribery, counterfeiting, theft from interstate shipment, embezzlement from pension funds, extortion, gambling crimes, obstruction of justice, and fraud. 18 U.S.C. 1961. Since 1988, the Act has expanded to encompass: peonage and slavery, sexual exploitation of children, fraud relating to illegal immigration, and all manner of copyright infringement.

Pattern

A pattern of activity requires proof that the racketeering predicates are related, and that they . . . pose a threat of continued criminal activity. H.J., Inc. v. Northwestern Bell, 492 U.S. 229, 239 (1989). Criminal conduct is related if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events. 18 U.S.C. 3575(e). Activity can be continuous in two different ways.

Continuity can be either close-ended or open-ended. Close-ended continuity refers to a period of time, and no case . . . has held the requirement to be satisfied by a pattern of activity lasting less than a year. Religious Technology v. Wollersheim, 971 F.2d 364, 366 (9th Cir. 1992). Open-ended continuity can be shown by either a distinct threat of long-term racketeering activity or by an ongoing entitys regular way of doing business. H.J., 492 U.S. at 242.

RICO Enterprise

A RICO enterprise can be any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity. 18 U.S.C. 1961(4). That last phrase was critical in bringing informal organizations like the mafia under the Acts purview. To be associated in fact, a group must have: (1) a common or shared purpose; (2) some continuity of structure and personnel; and (3) an ascertainable structure distinct from that inherent in a pattern of racketeering. Atlas Pile Driving v. DiCon Financial, 886 F.2d 986, 995 (8th Cir. 1989).

Criminal Penalties for Racketeering

The Act allows for discretion in punishing and gives the state broad powers to seize the property of a convicted defendant. A person convicted under RICO will be either fined or imprisoned not more than 20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment), or both. 18 U.S.C. 1963(a). In addition, the person must forfeit essentially anything of value that he obtained through violations of 1962. Id.

Summary

Created to fight the mafia, RICO is now useful in prosecuting members of street gangs, drug-trafficking organizations, and terrorist cells. RICO is also applied to cases of informal groups of individuals acting out a criminal purpose.

Roughly, a violation of RICO consists of (i) intentional participation (ii) in an enterprise (iii) engaging in a pattern (iv) of racketeering activity. Intentional participation is shown through a persons words and actions. An enterprise can be either a legal entity or an informal group. Relatedness and continuity form the pattern. The statute defines racketeering activity by enumerating an ever-expanding list of substantive state and federal offenses.

The Acts criminal penalties include either a fine or imprisonment or both, along with seizure of anything of value that was obtained through racketeering. RICO also includes harsh civil remedies. For example, a person injured by anothers RICO violation shall recover threefold the damages he sustains and the cost of the suit. 18 U.S.C. 1964(c).

The RICO Act is a relatively young statute that is interpreted through still-developing doctrines. Many states have enacted laws based on RICOs blueprint, but RICO itself is tried by federal prosecutors in district court. A defendant facing a RICO charge needs a defense attorney skilled in federal law who is familiar with the statute, its history, and the case law.

Traveling with Weapons: Federal Statutes and Regulations

By Colin McKibbin, Esq., and Dan Rhoads

In 2000, 66-year-old Betty Jean Smith checked some luggage at Portland International Airport and boarded an Alaska Airlines flight to Anchorage. When a baggage handler tossed Betty’s luggage into the cargo hold, her loaded .357-caliber Ruger, one of two guns in the bag, discharged. The bullet pierced the floor of the passenger cabin and lodged in a diaper bag beneath someone’s seat, but no one was hurt.

Smith was charged with reckless endangerment and with concealing a weapon without a permit. She faced only state misdemeanor charges; however, under current federal law, Betty could have faced up to 10 years in federal prison.

Federal Laws

A person who places, or attempts to place, a loaded firearm on an aircraft “in property not accessible to passengers in flight,” such as the cargo hold, commits a federal felony. 49 U.S.C. 46505(b)(2). Loaded firearms include starter pistols or cap guns. 49 U.S.C. 46505(a). A person convicted under this section can be fined and imprisoned for up to 10 years. 49 U.S.C. 46505(b).

Dangerous Weapon

It is also a federal felony to be on, or attempt to get on, an aircraft while having on one’s person or property “a concealed dangerous weapon that is or would be accessible to the individual in flight.” 49 U.S.C. 46505(b)(1). Since it would be impossible to list everything that could constitute a dangerous weapon, the legislature has left it to the courts to define the term on a case-by-case basis. U.S. v. Dishman, 486 F.2d 727, 730 (9th Cir. 1973). Therefore, it would be wise to contact an attorney familiar with federal laws involving this type of conduct before one goes on an airline flight. When in doubt as to whether an item is a permissible one, caution should be the rule of the day.

At least one court has provided some guidance. The dangerous character of an object “is determined by its capacity to inflict death or injury,” Id., or by the fact that it can easily and quickly be made likely to inflict such injury. Dishman, supra, 486 F.2d at 732.

Unloaded guns are considered dangerous weapons. When flight attendant Barbara Waddell submitted her carry-on bag for inspection, she had forgotten that, because of a recent move, she had packed an unloaded revolver into the bag. The gun was antique, at least 70 years old, and could neither be fired nor restored to firing condition. The judge held that an antique gun could be a dangerous weapon on board an aircraft because “[e] ven an inoperative gun could be used to threaten a passenger or flight crewmember.” In re Waddell, 1990 WL 656289, 3 (F.A.A. 1990). However, if the defendant presents evidence that the gun is not dangerous, the government must prove at least that the gun so appeared. Id. at 4.

A BB gun is also a dangerous weapon. Erik Clark, a 19-year-old man, tried to sneak a loaded BB gun onto a plane, apparently to impress his friends. He was arrested and sentenced to five years’ probation and fined $1,000. Other objects that have been considered dangerous weapons by the courts include: a tear gas gun with one or more tear gas cartridges, U.S. v. Brown, 508 F.2d 427, 430 (8th Cir. 1974); a belt-buckle knife, U.S. v. Hedrick, 207 F. Supp. 2d 710, 714 (S.D. Oh. 2002); and a stun gun or taser, U.S. v. Wallace, 800 F.2d 1509 (9th Cir. 1986).

Concealed Weapon

A passenger who gets onto or attempts to get onto an airplane with a concealed dangerous weapon breaks the law. A concealed weapon is “one which is hidden from ordinary observation.” U.S. v. Flum, 518 F.2d 39 (8th Cir. 1975). It does not matter whether or not the passenger intended to conceal the weapon. Further, “concealment can occur even though an airline passenger tenders his hand luggage for inspection.” U.S. v. Brown, 508 F.2d 427, 432 (8th Cir. 1974). To put it plainly, a weapon may be considered concealed unless the passenger first declares his possession of it.

Attempting to Get On Aircraft with a Weapon

As Delores Wilkinson walked from the ticket counter to the departure gate, she passed numerous signs stating that attempting to board a commercial aircraft is a federal crime. Unaware that she had her husband’s loaded pistol in her carry-on bag, Wilkinson put the bag through the X-ray machine. Airport security found the pistol, and Wilkinson was charged with attempting to board a plane with a concealed dangerous weapon. Wilkinson argued that she was too far from the plane to be considered attempting to board it, but the court rejected her argument. The fact that she purchased a ticket and proceeded toward the gate for the purpose of boarding her flight constituted an attempt. U.S. v. Wilkinson, 389 F. Supp. 465, 467 (W.D. Pa. 1975).

Explosive or Incendiary Device

Finally, no one may have on his person, nor may anyone place, attempt to place, or “attemp [t] to have placed an explosive or incendiary device” on an aircraft. 49 U.S.C. 46505(b)(3). Even if the device does not work, its possession can be found to be unlawful. U.S. v. Mena, 933 F.2d 19, 27 (1st Cir. 1991).

Hours before leaving for the airport, Martin Bradley secretly placed a bomb into his wife’s packed, locked suitcase. Mrs. Bradley did not discover the bomb until after she had arrived at her destination and unpacked the suitcase. Mr. Bradley was charged with placing an explosive device on an airplane; however, the court ruled that he had to be tried in Virginia, where the airport was located, as opposed to Maryland, where he put the bomb into the suitcase. U.S. v. Martin, 540 F. Supp. 690 (D. Md. 1982).

Traveling with Weapons

Only authorized officials may board planes while carrying weapons. However, passengers whose gun rights are intact may transport unloaded firearms in checked baggage. The federal regulations require that:

“(i) the passenger declares to the aircraft operator . . . before checking the baggage that the passenger has a firearm in his or her bag and that it is unloaded; (ii) the firearm is unloaded; (iii) the firearm is carried in a hard-sided container; and (iv) the container in which it is carried is locked, and only the passenger retains the key or combination.” 49 C.F.R. 1540.111(c).

Conclusion

Inevitably, post-9/11 regulation of the skies has tightened the rules concerning the carrying of weapons onto an aircraft. The new laws have broadened the scope of punishable conduct, and one can expect courts to err on the side of the prosecution, especially in current times when Western democracies are fighting enemies that use the instrumentalities of transportation as weapons. However, we are advised that constitutional freedoms remain intact and that the airlines do allow law-abiding citizens to travel with weapons, pursuant to predetermined guidelines. We would caution anyone traveling by airplane to consult an attorney familiar with the relevant laws before bringing any weapon or weapon-like item onto an airplane. As we have seen from our discussion in this article, mistakes do happen, and sometimes people are exploited. Ask Barbara Waddell, Delores Wilkinson, and poor Mrs. Bradley. Mistake and lack of intent do not protect the accused in court. Only an attorney experienced and knowledgeable in the federal criminal law can properly defend the unwitting carrier of a weapon from the governments prosecution. Given the potential consequence of ten or more years in federal prison, not having a seasoned advocate at your side could prove devastating.

Terrorist Threats: When Is a Threat Criminal?

By Vince Imhoff, Esq., and Dan Rhoads

Despite its name, the crime of terrorist threats does not necessarily implicate al Qaeda or other terrorist organizations for their inflammatory speech or their attempts at political blackmail. Instead, the offense has more to do with situations involving domestic violence, hate crimes, bomb threats, and school violence. The question presented as to when is a threat actually a violation of the criminal law presents a tension between an individuals free-speech rights and the government’s duty to protect its citizens.

This article will attempt to answer the question so as to give individuals guidance in their dealings with other people. It will not resolve the tension because in matters of law there always exists the need to balance individual rights against the rights of the government to govern to protect the citizenry at large.

Generally, a person makes a terrorist threat by threatening a violent crime with the purpose of terrorizing another or of causing public panic or inconvenience. Model Penal Code 211.3.

In California, under Penal Code Section 422, a criminal threat has five elements:

• 1. the accused willfully threatened to commit the crime that will result in death or great bodily injury; and
• 2. the accused made the threat with the specific intent that it be taken as a threat; and
• 3. the threat is so unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and the immediate prospect of execution; and
• 4. the threat actually caused sustained fear in the victim; and 5. the sustained fear was reasonable.

Willful Threat To Commit a Crime that Will Result in Death or Great Bodily Injury

Thus, it is clear that not just any threat qualifies. It must be a true threat. A threat that is real and genuine. Only a person who “willfully threatens to commit a crime which will result in death or great bodily injury to another person” may be charged with making criminal threats. Cal. Penal Code 422. Such a threat may be “made verbally, in writing, or by means of an electronic communications device” Id.

Therefore, calling in a bomb threat and threatening to shoot a person are just two examples of the kind of threat that the law makes illegal. Threatening to slash someone’s tires probably would not, on its own, be sufficient to be considered a criminal threat.

Specific Intent

The person making the threat must have the specific intent that his statement “is to be taken as a threat, even if there is no intent of actually carrying it out Cal. Penal Code 422. Consequently, if someone points an imitation firearm at another and threatens to shoot, it is no defense that the threatener knew that his gun was harmless. If his purpose is to make the other person feel threatened, the specific intent element is satisfied.

Therefore, a high-school student’s drawing of a police officer being shot was ruled not to be a criminal threat. The officer had previously cited the student for possessing marijuana. Over a month later, the student drew a young man shooting an officer who was wearing that officers badge number. He turned in the drawing for credit in his art class. Although the student first said that he did not expect the officer ever to see the drawing, he admitted that it would be reasonable to expect that she would. The court ruled that this evidence was not “sufficient to establish that, at the time he acted, the minor harbored the specific intent that the painting would be displayed to [the officer].” In re Ryan D., 100 Cal. App. 4th 854, 864 (3rd Dist. 2002).

Unequivocal, Unconditional, Immediate, and Specific

The threat, both on its face and under the circumstances, must be “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat.” Cal. Penal Code 422. This third element is the one that is most often disputed in prosecutions under the criminal threats provision of Californias Penal Code. Thus, court opinions have illuminated its meaning.

“Unequivocal”: A minor’s commitment to juvenile detention was reversed when the court found that his dark poetry did not constitute a criminal threat. The minor showed to some female classmates a poem in which he had written, “I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I’m BACK!!” One of the students felt threatened and told a teacher. The school then took action. The California Supreme Court held that the poem was not criminal. On its face, the threat was not unequivocal because the persona says, “I can,” as opposed to, “I will kill students.” Under the circumstances, the poem was not unequivocally threatening.

Given that there was no animosity between the students nor any “immediate prospect of execution of a threat to kill,” the poem was not “sufficiently unequivocal to convey . . . an immediate prospect that minor would bring guns to school and shoot students.” In re George T., 93 P.3d 1007, 1009, 1018 (2004).

“Unconditional”: Despite what the statute says, the courts have held that a conditional threat can be criminal. In People v. Bolin, the prosecution argued that a letter the defendant sent his daughter’s baby’s father was a criminal threat. Among other things, the letter said, “If you ever touch my daughter again, I’ll have you permanently removed from the face of this Earth.” Bolin, 956 P.2d 374, 402 (Ca. 1998). Rejecting the defendant’s argument that his conditional threat was not criminal, the court stressed that the threat must only be so unconditional as to convey a gravity of purpose and an immediate possibility of carrying out the threat.

Reasonable, Sustained Fear

A criminal threat must cause the victim a “sustained fear for his or her own safety or for his or her immediate family’s safety.” Cal. Penal Code 422. ‘Sustained’ means “a period of time that extends beyond what is momentary, fleeting, or transitory.” People v. Allen, 33 Cal. App. 4th 1149, 1156 (2nd Dist. 1995). That fear must be reasonablein other words, it must be a fear that any reasonable person in the victim’s situation would feel. The threat “does not have to be the sole cause of the victim’s fear” and actions taken after a threat may contribute to the victim’s fear. People v. Solis, 90 Cal. App. 4th 905, 1015 (2nd Dist. 2001).

In situations where the final two elements of the crime of criminal threats are not present, the speaker may be charged with an attempt to make a criminal threat. People v. Benitez, 105 Cal. Rptr. 2d 242, 251 (3rd Dist. 2001). Consequently, if the intended victim is deaf, or overconfident in his ability to defend himself, or suicidal, a criminal threat might not provoke sustained fear. However, if the threatener intends to cause such fear, the threat is a criminal attempt.

Conclusion

Laws prohibiting terroristic threats must be narrow in scope to avoid infringing First Amendment rights. Only when a person threatens a crime, and that threat meets the requirements discussed above, can the person be prosecuted. In distinguishing between protected First Amendment speech and the unprotected criminal threats, courts will look closely at the context in which the words are spoken and the surrounding circumstances.

In California, the offense of criminal threats can be charged as either a misdemeanor or a felony, depending upon prosecutorial discretion. Thus, the law considers it a wobbler. In addition, if it is charged as a felony, it is considered a serious felony and a strike under the law, and thus has consequences that reach far beyond the case at hand. When a prosecutor insists on bringing charges, the defendant needs an attorney who will fight at every stage of the proceedings to minimize the devastating effects of a conviction.

New York: Can a Convicted Sex Offender Expunge the Sex Offense Conviction?

By: Edward Martinovich, Esq. and Ariella Rosenberg

Convicted sex offenders in Binghamton, New York could risk re-arrest if they pull off the highway to a gas station or stop for a cup of coffee. How can this occur, you wonder? The New York legislature just passed a new law that makes it illegal for convicted sex offenders to live, work, or even drive in the city. Binghamton, NY is not unique in the passage of such laws. The goal of these types of laws is to restrict the offenders ability to live in or pass through local communities; communities within which women and children reside. The emotional tension runs so deep that when one local community passes such a law, the neighboring communities do the same. The end result is few if any communities remain where a convicted sex offender can put down roots and continue his rehabilitation while out on parole. Thus, it is very important for one who has been convicted of a sex offense to know and understand the many laws that affect his life and his movement.

What Is Expungement?

Criminal records can have a profound and lasting effect on an individuals life, be it on an employment application or in a background check, or by someones prying eyes looking at them on the internet. Even without a conviction, a criminal record often reveals any arrest or citation, despite the fact that the accused may have been acquitted of the crime in question or the case may have been dismissed. To address the harsh consequences of this situation, New York State has incorporated the process of expungement into its criminal code.

Expungement generally is used to describe the process by which some convictions can be dismissed or some criminal records can be sealed. When a criminal record is sealed pursuant to a court order, the effect of the sealing is that the general public cannot access the record. However, sealed records may be used by government agencies when background checks are performed for government jobs or when law enforcement agencies are investigating criminal allegations. Thus, even in cases where a sealing is ordered, it is not sealed for all purposes. More importantly, the rules change when a juvenile (under 18 year old) is involved versus when an adult criminal record is involved. Sealing in the juvenile court is not commonly referred to as expungement.

Further, although a conviction may be changed to a dismissal as a result of the expungement process, the words on the record may still remain. Thus, the arrest and the dismissal may still appear when the individuals criminal background check is run.

Moreover, the rules and requirements of expungement, and even the very definition of expungement, vary from state to state. This article is devoted to the New York State provisions of expungement as they specifically relate to sex offense convictions. For issues arising outside the state of New York, and for answers to legal questions in all states, it is always advisable to contact an attorney licensed to practice law in the state at issue and experienced in the subject matter of the inquiry.

Who Is Eligible?

Juvenile Offenders and Youthful Offenders

Juvenile offenders in New York can be as young as 13 years old, when they are alleged to have committed the most serious of crimes (i.e., 1st degree murder). Youthful offenders are at least 16 and less than 19 years old. Every youth is eligible except in certain circumstances. It is a determination of the court to decide whether a youth will be treated as a youthful offender and will be granted a youthful offender sentence. When a youth receives youthful offender adjudication, it is a substitute for a criminal conviction. See NY Criminal Procedure Law Section720.10. However, in situations where a youth has been convicted of rape in the first degree, sodomy in the first degree or aggravated sexual abuse, the court must consider a number of factors before youthful offender treatment is granted. These factors are: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution. Where the court determines that the eligible youth is a youthful offender, the court shall make a statement on the record of the reasons for its determination, a transcript of which shall be forwarded to the state division of criminal justice services, to be kept in accordance withthe executive law. NY CPL Section 720.10(3).

In cases where a defendant is granted youthful offender status, all records are automatically sealed upon adjudication. See NY CPL 720.35. This provision exists to insure that young offenders do not carry the stigma of a criminal record with them throughout their lives.

N.Y. Crim. Proc. Law 720.15(1) provides generally for the sealing of records involving juvenile offenders and youthful offenders, and for the privacy of the proceedings conducted against these younger offenders.

Adults

The sealing of all records in a criminal case, including those involving sexual offenses, occurs when the outcome of the case is favorable to the defendant, that is, when all of the charges have been dismissed, where there has been a complete acquittal, or where there has been an overturning of the judgment of conviction after an appeal or other court order. NY CPL 160.50. In such cases, the defendant has the right to the sealing of every photograph, all fingerprints and palm prints, and all official records and papers. See NY CPL 160.5 (1) (a-e).

Much more difficult than cases of acquittal is the possibility of expungement where an actual conviction has been entered. In cases where there is a conviction for an infraction or a violation (not a misdemeanor or a felony), except the violations of loitering and driving while impaired, the sealing of records is permissible. See NY CPL 160.55. There are certain instances where a misdemeanor conviction may be reduced to a violation after the period of probation is over and all the terms are completed. If this occurs, then the sealing of records will also occur pursuant to law.

There are certain sexual offenses that are defined as misdemeanors (and not felonies) by New York State. These include sexual misconduct, defined as sexual conduct with another person without their consent and sex with animals and dead human bodies (NY Penal Law Section 130.20); forcible touching, defined as intentionally, and for no legitimate purpose, forcibly touching the sexual or other intimate parts of another for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire (NY PL130.52); sexual abuse in the third degree, defined as sexual contact without consent (NY PL130.55); and sexual abuse in the second degree, which is sexual contact with a person incapable of consent or of a minor under 14 (NY PL 130.60). There may exist situations where these can be reduced to violations; however, in all motions to reduce the charge the prosecutor may oppose the motion. Further, even in cases that are reduced to violations and thus are technically appropriate for sealing, the prosecutor can also present arguments to the court as to why the interests of justice demand that the records not be sealed. Therefore, in practical application, in cases originally involving misdemeanor sex offenses, the expungement or sealing of the records may not occur.

Further, in cases where there is a conviction of a felony sexual offense, the possibility for expungement is even more limited. Expungement is usually only available if one has received a pardon from the governor.

What You Can Do

As one can see from the brief discussion herein, the law and procedure governing the expungement or sealing of records in New York is quite complex and involves more exceptions than rules, especially in matters involving unlawful sexual conduct. Thus, it is always good judgment to seek the advice and counsel of an attorney licensed to practice law in New York State, and one experienced in the area of criminal law generally and sex crimes more specifically. If you think that your case may be eligible for expungement, contact an attorney. Expungement does not occur automatically. It requires in most cases a written motion or application pursuant to stringent legal requirements. To promote ones individual rights, you must be proactive in seeking legal guidance to ensure the best possible chances of clearing your record.