By: Collin McKibben, Attorney at Law & Helen Kim
In 1825, the United States Supreme Court stated that courts of no country shall execute the penal laws of another. Today, this principle has been extended to penal judgments as well. However, while the principle seems to mean that U.S. courts shall not directly enforce foreign penal laws or judgments, U.S. courts may choose to rely on foreign penal laws or judgments where applicable.
In Small v. United States, 544 U.S. 385 (2005), the Supreme Court evaluated the language of 18 U.S.C.S. 922(d)(1) which states: It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year. Specifically, the Court evaluated whether the statutory reference convicted in any court included a conviction entered in a foreign court. The Court looked to the commonsense notion that Congress generally legislates with domestic concerns in mind, Id., at 388, and the Supreme Court adopted a presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial application. Id. Although Small did not involve an extraterritorial application of U.S. law, the Court used a similar assumption to evaluate the scope of the statutory reference, convicted in any court. The Court noted that foreign penal convictions differed from domestic penal convictions in many ways, thereby creating an inconsistency in the American notion of fairness. Id., at 389. Hence, the Court held that the phrase convicted in any court referred only to domestic courts and not to foreign courts. Id., at 394.
Under California Penal Code Section 12021(a)(1), Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country who owns, purchases, receives or has in his or her possession or under his or her custody or control any firearm is guilty of a felony. There are exceptions to the rule: a convicted felon who is currently a peace officer may be permitted to carry firearms, or exigent circumstances may allow a convicted felon to temporarily possess firearms. The question arises when an individual has a conviction entered in a foreign court. In some instances, an offense would be considered a felony in a foreign jurisdiction, while the same offense would be considered a misdemeanor in California. Thus, an individual who was convicted of a felony in a foreign jurisdiction would be unable to carry firearms in California, even though the same offense is considered a misdemeanor in California.
For instance, in People v. Shear, 71 Cal.App.4th 278 (1999), the defendant challenged the trial courts conviction of violating CPC 12021 (a)(1) because he was previously convicted of a felony in Arizona but the same act was not punishable as a felony in California. The court in Shear determined that a conviction of a felony in a foreign jurisdiction was sufficient to satisfy the felony classification of CPC 12021 (a)(1) and thus the statute applied to any person convicted of a felony under the laws of the United States, of the state of California, or any other state, government, or country. Shear, 71 Cal.App.4th at 282.
The defendant also argued that his right to possess firearms was restored in Arizona and under the Full Faith and Credit Clause of the U.S. Const. Art. IV Section 1 California should honor Arizonas law and he should be able to carry firearms in California. Shear, 71 Cal.App.4th 278. In Sun Oil Co. v. Wortman, 486, U.S. 717, 722 (1988), the court stated that the Full Faith and Credit Clause did not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. The court in Thurman v. Thomas, 27 Cal. 3d 285, 296 (1980), also stated that the classification of a foreign conviction was controlled by foreign law. Similarly, the court in Shear determined that the Full Faith and Credit Clause did not preclude California from carrying out its public policy of prohibiting convicted felons carry firearms in its state because the defendant was able to possess firearms in another jurisdiction.
Prior convictions from foreign jurisdictions can also be used to enhance a defendants sentence if the prior conviction contains all of the elements of any serious felony under California law. Fisher v. Jones, U.S. App. LEXIS 9727 (9th Cir. 1996). Even a felony conviction for military offense satisfied the felony classification in CPC 12021 (a)(1). United States v. MacDonald, 992 F.2d 967 (9th Cir. 1993).
In Shear, Thurman, and Fisher, these cases all involved domestic laws. Hence, although the cases involved conflicting interstate penal laws and judgments, the courts were not concerned with discrepancies that arose to varying notions of fairness. However, in Small, the Supreme Court recognized that the discrepancies between domestic laws and foreign laws were significant enough so that it would be fundamentally unfair to apply foreign penal laws and judgments in U.S. courts.
Congress has stated that any provision in 18 U.S.C. 921 regarding firearms shall not occupy the field in which such provision operates to the exclusion of law of any State on the same subject matter, unless there is a direct and positive conflict between such provisions and the law of the State so that the two cannot be reconciled or consistently stand together. Furthermore, the regulation of firearms by felons is within the historic police powers of the state and not pre-empted by federal law. Helmer v. Miller, 19 Cal. App. 4th 1565 (1993). Thus California courts have the authority to clarify the statutory language of convicted in any court in CPC 12021(a)(1) and determine whether it encompasses international felony convictions. While California courts have accepted interstate felony convictions, they may rule differently on international felony convictions in accordance with public policy and the fundamental notion of fairness as perceived by the American people.
Symeon C. Symeonides, Choice of Law in the American Courts in 2005: Nineteenth Annual Survey, 53 Am. J. Comp. L. 559, 577 (2005).
By: Collin McKibben, Attorney at Law & Ariella Rosenberg
Everyone is familiar with the term citizens arrest: we have seen it on TV, read about it in books, and even heard about it in social circles. Surprisingly, however, almost nobody really understands what a citizens arrest is, or legally, what it represents.
A citizen’s arrest is an arrest performed by a civilian who lacks official government authority to make an arrest (as opposed to an officer of the law). An arrest, as defined by Black’s Law Dictionary, is “The apprehending or detaining of a person in order to be forthcoming to answer an alleged or suspected crime.” Ex parte Sherwood, (29 Tex. App. 334, 15 S.W. 812).
Although generally the person making a citizens arrest must be a citizen, in certain states, a citizens arrest can be carried out by a civilian who is not a citizen (for example, an alien or illegal immigrant). A citizens arrest does not necessarily mean an arrest made by a single individual who happens to witness a crime. For example, a department store may also carry out a citizens arrest in the course of apprehending a shoplifter.
The right to making a citizens arrest goes back to our roots in English common law. Historically, before the modern infrastructure of police departments, citizen’s arrests were an important part of community law enforcement. Today, citizens arrests are still legal in every state, although state laws pertaining to citizens arrests are not uniform. In general, all states permit citizens arrests if a criminal felony (defined by the government as a serious crime, usually punishable by at least one year in prison) is witnessed by the citizen carrying out the arrest, or if a citizen is asked to help apprehend a suspect by the police. Variations of state law arise in cases of misdemeanors, breaches of the peace, and felonies not witnessed by the arresting party.
For example, California Penal Code mandates:
A private person may arrest another: 1. For a public offense committed or attempted in his presence. 2. When the person arrested has committed a felony, although not in his presence. 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it. (C.P.C. 837).
In contrast, New York State Consolidated Laws hold that:
Any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence. (N.Y.C.L. 140.30).
Unlike the California statute, which only permits citizens arrests in cases of felony, New York law extends the possibility for making a citizens arrest to any offense committed in [ones] presence. Additionally, in cases where the citizen has not necessarily witnessed the crime being committed, California law allows citizens arrests when a citizen has reasonable cause for believing the person arrested to have committed [a felony], whereas New York law applies only to situations in which person has in fact committed a felony. Distinctions such as these are importantunwarranted citizens arrests can result in repercussions (such as law suits) for well-meaning citizens who attempt to make arrests without understanding local laws. It is important to be familiar with the laws in your particular state should you want to carry out a citizens arrest, or should a citizen try to unlawfully detain you.
Once a person has committed an offense meriting a citizens arrest (under the applicable state law), the arresting party must follow certain guidelines to detain and deliver to authorities the suspect in question. Acceptable guidelines for carrying out a citizens arrest also vary by state. In general, the arresting party must notify the suspect as to why he or she is being arrested, and may enter the building or private residence where the suspect is residing, using a reasonable amount of force to apprehend the suspect. In California, for example, To make an arrest, a private person, if the offense is a felonymay break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired. (C.P.C., 844). In New York, A person may arrest another person for an offenseat any hour of any day or night. 2. Such person must inform the person whom he is arresting of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical. 3. In order to effect such an arrest, such person may use such physical force as is justifiable pursuant to subdivision four of section 35.30 of the penal law. (N.Y.C.L. 140.35).
Once the suspect has been taken into custody (by the citizen), it is the citizens responsibility to deliver the suspect to the proper authorities in a timely fashion. In California, A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him or her to a peace officer. (C.P.C. 847). In New York, a citizen must also act without unnecessary delay to deliver a suspect to an officer of the law. (N.Y.C.L. 140).
Making a citizen’s arrest maliciously or with insufficient evidence of wrongdoing by the arrested individual can lead to civil or criminal penalties. Additionally, it is in violation of a suspects rights for a citizen making an arrest to use unnecessary force, to intentionally harm the suspect, to hold the suspect in unsafe conditions, or to delay in turning the suspect over to authorities. A citizen making an arrest is acting in the place of an officer of the law, and as such, is required to uphold the same rights and civil liberties as an officer of the law must uphold.
A citizen who violates a suspects rights, or who violates the applicable state law in detaining the suspect, (for example, arresting a suspect for a misdemeanor when the state statute requires a felony for a citizens arrest), risks being sued or even charged with a crime. Additionally, if it is found that the arresting party did not meet the pertinent state requirements for a citizens arrest, any contraband found on the suspect will have been found illegally, and charges may be dropped entirely.
If you feel that you have been unfairly arrested by a citizen, or if you have been charged with illegally detaining a suspect during an illegitimate citizens arrest, it is important to seek the counsel of an experienced attorney. A good attorney will demonstrate familiarity with state laws, and as such will help you to ensure the best possible outcome of your case.
By: Colin McKibben, Attorney at Law
In his closing argument in State of California v. O.J. Simpson, Johnnie Cochran told the jury how they should view Detective Vannaters testimony: You cant trust him. You cant believe anything he says because it goes to the core of this case. When you are lying at the beginning, you will be lying at the end. The book of Luke talks about thatif you are untruthful in small things, you should be disbelieved in big things. Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425 (1996).
Nevertheless, the United States Supreme Court has ruled that the Police can lie to you in order to extract a confession, Frazier v. Cupp, 394 U.S. 731, 739 (1969). The only place an officer cannot lie is while testifying under oath in court, and criminal defense attorneys occasionally catch an officer lying, even on the witness stand. Police are only required to advise you of your Constitutional rights under Miranda v. Arizona, 384 U.S. 436, if you are in custody and being interrogated about the offense for which you are being confined. This point is usually determined to be the point in which the suspect is placed under arrest, or the suspect would reasonably conclude that he or she is under arrest and not free to leave. Detectives are very good at creating the illusion that you are free to go, when actually, you are not. For example, the detective may tell you that you are free to go at any time, but that it would benefit you to provide your side of the story as the evidence does not look to be in your favor, therefore you can be pursuaded into continuing the interrogation.
During interrogations, police who use this tactic may lie about the facts of a case. For example, where you have an 18 year old male who has a 15 year old girlfriend, the officer will tell him that they have evidence that he raped her, when in fact, they do not. The 18 year old tells the officer that they had consensual sex and that there was no rape involved; now the officer has a confession as to Statutory Rape that came straight from the mouth of the suspect. In trying to exonerate himself from the charge of Rape, the 18 year old legally confessed to the lesser crime of Statutory Rape. In Frazier v. Cupp, 394 U.S. 731, 739 (1969), the officer was able to extract a confession from the criminal defendant by lying about the strength of the case. During interrogation, the officer lied to the criminal defendant and told him that his cousin, had confessed to the possession of cocaine with intent to distribute, also implicating the criminal defendant in the crime. The criminal defendant then also confessed to the crime in reliance of the officers false statement. The Court determined that the criminal defendants confession was voluntary and the fact that he was given his Miranda rights prior to making the confession was relevant to a finding of waiver and voluntariness. Id.
Police officers are also allowed to fabricate evidence to support a deception. In re D.A.S., 391 A.2d 255, (D.C. App. 1978) the police pretended to compare the defendants fingerprints to a fingerprint on the victims checkbook and pronounced them a match when in truth, no fingerprints were recovered from the checkbook. The defendant confessed to the robbery and the Court held that the police deception did not by itself invalidate a voluntary confession. Id. at 258. Confessions are not invalid or inadmissible, even if they are obtained by deception or trickery, as long as the means employed are not calculated to produce an untrue statement. Only if the deception, combined with other factors, coerces the suspect or defendant to confess, will the court deem the confession inadmissible. Id., at 259.
In order to extract confessions, police may also attempt to persuade the suspect or defendant that her conduct was less blameworthy than anticipated. Deborah Young, Unnecessary Evil, 28 Conn. L. Rev. 425, 433 (1996). Police may lie about the victim to diminish the suspects fear of confessing. In People v. Jordan, 597 N.Y.2d 807 (N.Y. App. Div. 1993), the police told the defendant that he may be able to save the victim if he told the police exactly what happened. The police falsely told the defendant that the victim had just received eighteen stitches for her knife wound and would soon be out of the hospital, when in actuality, the victim had died. The defendant confessed to stabbing the victim believing that he would be charged with assault and not murder. The court affirmed the murder conviction, holding that, “mere deception by the police is not alone sufficient to render a confession inadmissible unless accompanied by a promise or threat that could induce a false confession.” Id. at 808.
In Massiah v. United States, 377 U.S. 201 (1964), federal agents used an informant as a secret conspirator to listen in on the criminal defendants conversations. He made incriminating statements to the informant, not knowing that the informant was secretly working with the federal agents. At the time the statement was made, the criminal defendant was out on bail and had already secured an attorney. The Court held that because the criminal defendant had secured an attorney and had already been indicted, federal agents could not attempt to elicit a confession without the presence of the criminal defendants retained counsel. Id., at 204.
The Court is reluctant to bar such police tactics and confessions because of the assumption that an innocent person of normal intelligence will not admit to a crime she did not commit. Patrick M. McMullen, Questioning the Questions: The Impermissibility of Police Deception in Interrogations of Juveniles, 99 Nw. U.L. Rev. 971, 974 (2005). However, the Court has recognized the inherently coercive nature of police interrogations, thereby mandating the police to provide Miranda warnings to suspects and defendants to lessen such coercion. The intimidation is even greater on juveniles. The power of police to deceive juvenile suspects during interrogations is significant since kids may be even more impressionable and confused. Juveniles are more likely than adults to defer to the wishes of adult authority figures and are more susceptible to suggestions of guilt. Id., at 975. Juveniles are more likely to believe things that adults, especially powerful authority figures, tell them. Many kids are taught to trust police officers and to have faith in them as enforcers of law. They are not raised to believe that officers will resort to deception in order to carry out the law. Id., at 997. Thus juveniles are easily pressured into admitting guilt or agreeing to false information. Unfortunately, the interrogation room is one of the few places where the Court has been unwilling to protect juveniles from their own bad or premature decisions. In Fare v. Michael C., 442 U.S. 707 (1979) the Supreme Court decided that juvenile confessions were to be assessed under the totality of circumstances standard and thus age was only one of many factors that come into play when assessing the admissibility of juvenile confessions.
Police deception may be helpful in eliciting confessions from guilty suspects. However, such manipulation also extracts false confessions, especially from juveniles. Placing false hope in young suspects by promises of leniency and misrepresentation of evidence are effective in inducing such false confessions. Patrick M. McMullen, Questioning the Questions, 99 Nw. U.L. Rev. 971, 988 (2005). The vast majority of evidence that prosecutors obtain against defendants comes straight from their own mouths because of the Police interrogation methods discussed.
For these reasons, it is best to obtain the services of a skilled criminal defense attorney before an opportunity for questioning arises, or any charges are filed. After discussing with the client what is known about the scope of the investigation, the attorney should start by advising the detective that the defendant is represented by counsel, and not to talk to his client without that counsel present. If you have no inkling that you might be investigated or charged with a crime prior to being contacted by law enforcement, it is very important that you consult an attorney before speaking to authorities. While an officer may imply that failure to speak immediately will result in arrest, a person cannot be arrested for exercising the right to remain silent. Police can only arrest a person if probable cause exists, and the choice to remain silent cannot be part of that analysis. If the officers already have probable cause, they would not need to question you. If they do not, the statement you make could well supply it.
By Vince Imhoff, Attorney at Law and Jay Mykytiuk, Attorney at Law
After voting to convict Martha Stewart on obstruction of justice charges, one juror told reporters that he believed the decision was a victory for the little guys. In denying Stewarts subsequent request for a new trial, the court expressed doubt that the jurors statement revealed an agenda to punish the wealthy. But was the judge too quick to dismiss the possibility that jurors convicted Stewart, a wealthy and successful CEO, at least partially on the basis of her wealth and success? Might it be possible that in the seemingly endless wake of highly publicized corporate scandalsEnron, Worldcom, Adelphijurors have become predisposed to punish wealthy defendants, regardless of actual guilt? To deny the possibility is to deny both human nature and a potential flaw in the American jury system.
The Sixth Amendment to the Constitution guarantees the accused in federal criminal trials a right to a speedy public trial in front of an impartial jury. Contrary to common belief, however, this right does not include a trial by a jury of ones peers. Historically, a defendants jury was composed of persons of his own social and economic class. In pre-Revolution England for example, trials involving titled nobility took place in the House of Lords. But consistent with American ideals of equality, our jury system operates as if we are all peers of one another, regardless of sex, race, religion, and wealth. For wealthy white-collar defendants, the practical effect of this egalitarianism is to place their fates in the hands of 12 jurors with whom they may share little in the way of common experience.
The common presumption is that wealthy defendants, by virtue of their ability to hire the best legal counsel, have an advantage at trial. While that argument may have some merit, wealth can be a double-edged sword. Resentment against wealthy corporate defendantsespecially those accused of crimes that resulted in financial loss to regular peoplemay outweigh any advantage gained by their wealth.
Public sentiment surrounding a Topeka, Kansas case of alleged corporate malfeasance illustrates the bias that wealthy corporate defendants may face in the post-Enron-era, and the uphill battle they face in finding an impartial jury. There, in what some called the Kansas-Enron, David Wittig was accused of looting a local utility. A local citizen expressed her frustration that “people at the top” get away with stripping a company and leaving the “little people” to pay the price. [Chicago Tribune, June 19, 2005] As a Topeka defense attorney aptly pointed out: “The tougher the economic times, the easier it is to dislike these guysYou put these guys making millions in front of a jury and the feeling becomes, Well, obviously they are not doing this legally.
This attitude is not isolated, and it indicates that attorneys of wealthy corporate defendants face an uphill battle at trial before the first piece of evidence is even presented.
Although the court has a duty to assure the accused a fair trial, the challenge falls to defense attorneys to identify potential jurors who are open to hearing the evidence and willing to hold the state to the burden of proving the case beyond a reasonable doubt. In cases where communities are saturated with pre-trial press coverage, the challenge is far more difficult. By the time Enron corporate executives faced trial, given the extensive news coverage, and investigative reports in magazines, newspapers, and many different television networks, many potential jurors may have already decided the defendants were guilty.
Voir Dire is the process of questioning potential jurors so that the attorneys for the State and the accused can challenge and remove jurors in the selection process. There is a risk, particularly in high profile cases, that jurors who have a particular agenda may shape their answers to avoid challenges for cause. Even if potential jurors assure the judge and attorneys that they are not already biased against wealthy defendants, there is no guarantee of their honesty. There is always a risk that some potential jurors in high-profile cases have sufficient social motives, or even mere desire to seek attention to know what to say to pass muster. Even social pressure in the selection process can stifle potential jurors from admitting their biases to the rest of the venire panelit is a common belief that many people hide secret judgmental beliefs, but few people will publicly admit to harboring such views.
Defusing resentment against the a perception that a client is privileged or believed her wealth placed her above the law both in the media and before thejury is essential to obtaining a fair trial in corporate malfeasance trials. A skilled attorney learns to probe potential jurors for their willingness to set aside considerations of wealth and privilege, and to see the clients humanity. Such attorneys also encourage jurors to picture the charge as something that could happen to them. For example, focusing a jury in a tax-fraud trial on the fact that everyone finds tax forms ambiguous and confusing, can help them relate to questionable deductions they may also have claimed in the past. Strategies such as these are essential to offering a client perceived as wealthy or privileged to receive a fair trial.
