Law Commons^™

Nuclear Weapons, Lethal Injection, And American Catholics: Faith Confronting American Civil Religion, Thomas L. Shaffer

Journal Articles

But, still, honor is important among us. "He was an honorable man" is still a moving thing to say, at a (man's) funeral. The notion, and the liturgy that invokes the notion, show us believers that civil religion has a hold on us, and that we need a place where we can sit down together and think things out.2 6 This argument of mine needs to get beneath simple contrasts between biblical faith and civil religion. We believers need to reason together, plopped down as we are in the middle of the present. We believers include naval officers and lawyers …

Federal Criminal Conspiracy, Todd R. Russell, O. Carter Snead

Journal Articles

Under 18 U.S.C. § 371, it is a crime for "two or more persons [to] conspire . . . to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose."

This Article first outlines, in Section I, the basic elements of a conspiracy offense under § 371. Defenses available to challenge charges brought under the statute are discussed in Section III of the Article. Section IV presents the evidentiary and constitutional guidelines governing admissibility of co-conspirator hearsay testimony at trials involving conspiracy charges. Section V surveys …

Reflections On Reves V. Ernst & Young: Its Meaning And Impact On Substantive, Accessory, Aiding Abetting And Conspiracy Liability Under Rico, G. Robert Blakey, Kevin P. Roddy

Journal Articles

In March 1993, accountants, attorneys and other professionals—who generally view RICO with suspicion—breathed a sigh of relief when they read the Washington Post: "People who lose money in thrifts and other businesses that go belly up because of wrongdoing can no longer use [RICO] to sue lawyers, accountants, or other advisers who played key roles in the enterprise." Unfortunately, this terse description of the Supreme Court's decision issued the previous day in Reves v. Ernst & Young may persuade professionals that they dropped an anchor in a tranquil safe-harbor, far from an exposure to the perils of the private enforcement …

Federal Criminal Law: The Need, Not For Revised Constitutional Theory Or New Congressional Statutes, But The Exercise Of Responsible Prosecutive Discretion, G. Robert Blakey

Journal Articles

My basic point is that major aspects of systems of legal justice deal with antisocial behavior. That an aspect of these systems may be categorized as “criminal,” “civil,” “state,” “federal,” or “international,” is relevant principally to a question of legal theory or governmental organization, which is fundamentally secondary to the character of the behavior itself. In short, we have to look at the behavior first–and only then ask questions of legal theory or governmental organization.

We should not be talking about “federalization.” That is a constitutional question to which we now have a fairly clear constitutional answer. Little or no …

Shaping Today's Forfeiture Law: A Conversation With Senator Mcclellan, G. Robert Blakey

Journal Articles

In any society, the government's ability to interfere with life, liberty or property is always open for full discussion. In this conversation, Professor Blakey discusses property in the context of organized and white-collar crime, in addition to criminal forfeiture, and frames his discussion around his work with Senator John McClellan on drafting the Organized Crime Control Act.

Introduction: The Ancient Roots Of Modern Forfeiture Law, Jimmy Gurule

Journal Articles

Civil forfeiture is one of the most potent weapons available to prosecutors in the “war on drugs” and against traditional organized crime. Unlike criminal forfeiture it is in rem and based on a legal fiction that property used in violation of law must be held responsible for harm that it has caused. The conceptual underpinnings of civil forfeiture are long established and can be traced back to English common law, but they also create the potential for abuse. There is currently federal legislation that considers scaling back the reach of civil forfeiture and recent Supreme Court decisions have also limited …

The Money Laundering Control Act Of 1986: Creating A New Federal Offense Or Merely Affording Federal Prosecutors An Alternative Means Of Punishing Specified Unlawful Activity?, Jimmy Gurule

Journal Articles

The purpose of the Money Laundering Control Act of 1986 was to make the hiding and reinvestment of illegal profit made from a criminal enterprise into a new federal offense. The act targets conduct that occurs after the underlying crime. It is not intended to be an alternative means of punishing the crime itself. Courts must closely adhere to this legislative intent if they seek to properly and consistently apply the law. They must be aware of several key aspects of the law: 1) The financial transaction requirement under section 1956(c)(3) of the act includes the transportation of proceeds from …

Depravity Thrice Removed: Using The 'Heinous, Cruel, Or Depraved' Factor To Aggravate Convictions Of Nontriggermen Accomplices In Capital Cases, Richard W. Garnett

Journal Articles

In Tison v. Arizona, the Tison brothers' appeal from their death sentences, the U.S. Supreme Court held that a nontriggerman convicted of first-degree felony murder could constitutionally be executed if he was a major participant in the crime and if he exhibited a reckless disregard for human life. This decision blurred the bright-line rule announced just five years earlier in Enmund v. Florida, which limited the death penalty to defendants who kill, attempt to kill, or at least intend to kill. Tison thus dramatically increased the exposure of nontriggermen to capital punishment, undercutting the death penalty's limited purpose of identifying …

Symposium: Law And The Continuing Enterprise: Perspectives On Rico: Foreword, G. Robert Blakey

Journal Articles

The past twenty years witnessed a sea change in the way that organized crime is investigated, prosecuted, and sanctioned, both criminally and civilly. RICO allowed the law to catch up with the rest of society. In the twentieth century, organizations, not people, control the important elements of society such as: government, commerce and labor. Until the passage of RICO, organizations as such were seldom the fcus of the law-outside of, perhaps, the antitrust statutes. This is no longer true.

RICO, however, is not limited to the activities of traditional Mafia families. It does not matter to a racketeering victim what …

Foreword: Debunking Rico's Myriad Myths, G. Robert Blakey

Journal Articles

Foreword: In January of 1931, Warner Brothers-First National released a film entitled Little Caesar. Based on a book by W. R. Burnett, the movie, loosely portraying the life of Alphonse Capone, starred Edward G. Robinson in its title role, Caesar Enrico Bandello, also known as "Little Caesar," or “Rico.” Robinson, as he lies dying, utters one of the most famous end lines in film history: “Mother of Mercy–is this the end of Rico?” Likewise, no one who looks at this Symposium–or others7-or the seemingly inevitable march of RICO reform (chloroform?) legislation through Congress–or the endless efforts of the federal …

What's Next?: The Future Of Rico, G. Robert Blakey, John C. Coffee, Paul E. Coffey, L. Gordon Crovitz

Journal Articles

Editor's Note: After the presentation of the articles, the symposium concluded with a structured debate and an open discussion. The participants in the debate were Professor Blakey and Mr. Crovitz. The ensuing discussion was moderated by Professor Coffee and featured Professor Blakey, Mr. Coffey, and Mr. Crovitz, as well as questions from the audience. The edited transcript is presented here.

An Analysis Of The Myths That Bolster Efforts To Rewrite Rico And The Various Proposals For Reform: Mother Of God - Is This The End Of Rico?, George Robert Blakey Professor, Thomas A. Perry

Journal Articles

In 1970 Congress enacted the Organized Crime Control Act, Title IX of which is known as the Racketeer Influenced and Corrupt Organizations Act, or RICO. At first, the Department of Justice moved slowly to use RICO in criminal prosecutions. Today, RICO is the prosecutor's tool of choice in organized crime, political corruption, white-collar crime, terrorism, and neo-Nazi and anti-Semitic hate group prosecutions. The Department of Justice also is implementing the civil provisions of the Act. The private bar did not begin to bring civil RICO suits until about 1975. When it did, a firestorm of controversy broke out, and today …

Equitable Relief Under Civil Rico: Reflection On Religious Technology Center V. Wallersheim: Will Civil Rico Be Effective Only Against White-Collar Crime?, G. Robert Blakey, Scott D. Cessar

Journal Articles

The Court of Appeals for the Ninth Circuit held in Religious Technology Center v. Wollersheim that Congress did not intend to give private civil RICO plaintiffs any right to injunctive relief. This Article argues that the Wollershiem’s reasoning is flawed for being inconsistent with the text, the legislative history, and the purpose of RICO. In addition, it argues that it is inconsistent with statutory interpretation principles advanced by the Supreme Court. In particular, it discusses the case’s facts, provides an overview of civil RICO, examines and critiques Wollersheim’s reasoning, and addresses the adverse policy, economic, and political consequences of Wollersheim …

Labor Racketeering And Labor Law: State Regulation V. Federal Rights: An Analysis Of Brown V. Hotel And Restaurant Employees Union Local 54, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Brown v. Hotel and Restaurant Employees, 468 U.S. 491 (1984). The author expected the Court to decide which interest prevails where there is a conflict between New Jersey's regulation of labor unions in order to reduce the influence of organized crime in the labor sector and federally granted rights to organize and bargain collectively.

Rico Civil Fraud Action In Context: Reflections On Bennett V. Berg, G. Robert Blakey

Journal Articles

In Bennett v. Berg, the United States Court of Appeals for the Eighth Circuit, as a matter of "first impression in the Circuit Courts of Appeals," faced and resolved a number of significant issues in the construction of Title IX, the Racketeer Influenced and Corrupt Organizations (hereinafter "RICO") provisions of the Organized Crime Control Act of 1970. In Bennett, the plaintiffs, residents in a "life care" retirement village, sought treble damages and equitable relief under 18 U.S.C. § 1964 from a number of defendants, including named individuals, a not-for-profit corporation, the John Knox Village, attorneys, accountants, the firm of Snyder, …

Effective Assistance Of Counsel: In Quest Of A Uniform Standard Of Review, Theresa L. Springmann, John Eric Smithburn

Journal Articles

Nearly a decade ago, the United States Supreme Court in McMann v. Richardson held that the sixth amendment right to counsel was a right to effective assistance of counsel. The Court declared that criminal defense attorneys must act "within the range of competence demanded of attorneys in criminal cases, '' and that trial judges must "strive ... to maintain proper standards of performance by attorneys ... in their courts." The Court has not elaborated, however, on what conduct the right to effective counsel requires of both defense counsel and the trial judge, or the procedure by which appellate review can …

Racketeer Influenced And Corrupt Organizations (Rico): Basic Concepts - Criminal And Civil Remedies, G. Robert Blakey, Brian Gettings

Journal Articles

This article will present a brief overview of the legislative history of RICO, the Racketeer Influenced and Corrupt Organizations, and its structure, including its standards and basic concepts. The article will then consider the criminal sanctions authorized under RICO and discuss specific aspects of the RICO civil suit as well as some of the problems that may be expected to arise in it. The objective of the article is to provide the reader with a short introduction to RICO, one of the most sophisticated statutes ever enacted by Congress.

Freezing The Status Quo In Criminal Investigations: The Melting Of Probable Cause And Warrent Requirements, Fernand N. Dutile

Journal Articles

This article will trace the development of what can be called the "freezing the status quo" concept in the United States Supreme Court. That concept provides for intermediate level intrusions based on intermediate levels of justification, permitting law enforcement to isolate an event and exploit its opportunities for fruitful investigation. The article will begin with a discussion of two early cases which hinted at the Supreme Court's willingness to adopt the "freezing the status quo" doctrine as a means of justifying certain police activity in the absence of probable cause. Next, the Court's decisions in Terry v. Ohio and subsequent …

"On The Waterfront": Rico And Labor Racketeering, G. Robert Blakey, Ronald Goldstock

Journal Articles

Labor racketeering in America is a pervasive, persistent problem not easily controlled by conventional criminal statutes. The authors examine the applicability of the Racketeer Influenced and Corrupt Organizations statute (RICO) to the problem of labor racketeering and look at the recent case of United States v. Scotto as an example of the Act's application in this area. The authors conclude that to the extent that it is used appropriately and with discretion, RICO provides the flexibility to be an important law enforcement tool against labor racketeers.

The Burden Of Proof In Criminal Cases: A Comment On The Mullaney-Patterson Doctrine, Fernand N. Dutile

Journal Articles

The United States Supreme Court's recent ventures into the constitutional requirements concerning the burden of proof in criminal cases justify consideration of their prescriptions, of their consistency and of the constitutional limits of burden-shifting.

Mullaney and Patterson mark not the end of the inquiry but rather its beginning. Although they undoubtedly resolve, whether well or badly, a large number of burden of proof situations, those resolved may be the easier and the more obvious, not the more difficult and the more subtle. In any event, however, these two landmark cases will at least have alerted us to the complex problems …

The Development Of The Federal Law Of Gambling, G. Robert Blakey, Harold A. Kurland

Journal Articles

The Commission on the Review of the National Policy Toward Gambling, believing that the States should have the primary responsibility for determining what forms of gambling may legally take place within their borders, recently suggested that the federal government should prevent interference by one State with the gambling policies of another, and should act to protect identifiable national interests.

Although this broad recommendation reinforces the role the federal government has traditionally played in regulating gambling, the Commission also proposed specific amendments to the cur- rent federal gambling laws. Should Congress act upon the Commission's report or otherwise attempt a comprehensive …

Sentencing In Indiana: Appellate Review Of The Trial Court's Discretion, John Eric Smithburn

Journal Articles

Two significant developments, legislative and judicial, have taken place in Indiana criminal law in recent months which may offer an effective response to the problem of unguided discretionary sentencing. The Indiana Penal Code has been revised to require that the trial court, before sentencing a convicted felon, conduct a separate hearing for the purpose of determining the appropriate sentence and to make a record of the hearing which must include a statement of the court's reasons for selecting the sentence imposed. The General Assembly has also provided specific directives which the trial court must consider in determining a proper sentence …

The Mistake Of Fact Defense And The Reasonableness Requirement, Margaret F. Brinig

Journal Articles

This article examines specifically the mistake of fact defense and its disparate treatment under these two systems of justice. The British approach is to retain a subjective element in the mistake of fact defense, while American courts impose an objective "reasonableness" requirement. The substantive criminal law approach, utilizing the concept of mens rea, will be discussed first, and will be followed by a treatment of recent American constitutional developments in the area of burden of proof standards in their criminal context. Finally, two factually similar rape cases, one British and one American, will be analyzed to show the present contrasting …

Criminal Redistribution Of Stolen Property: The Need For Law Reform, G. Robert Blakey, Michael Goldsmith

Journal Articles

The development of sophisticated fencing systems for the sale of stolen property to consumers has paralleled the industrialization of society. Although crimes against property and attempts to control them have ancient origins, most theft before the Industrial Revolution was committed for immediate consumption by the thieves and their accomplices rather than for redistribution in the market-place. Society's small population, inadequate transportation and communication systems, and technological inability to mass produce identical goods constrained large-scale fencing because there were few buyers and because stolen property could be readily identified. The unprecedented economic and demographic growth in eighteenth-century Europe, however, removed these …

Criminal Law And Procedure--Bringing It Home, Fernand N. Dutile

Journal Articles

When I first began teaching six years ago at the Catholic University Law School, one of the two sections of Criminal Law and Procedure assigned to me was approximately 33 % larger than the other. I remember feeling a considerable difference in atmosphere in the two sections, due to the numbers involved. In the smaller section, discussion seemed more intimate, more coherent, more shared by all the students. I felt able to know students better and more quickly. It is stunning now to realize that the larger section in that 1966-67 school year numbered 32 students! When I left Catholic …

Codification, Reform, And Revision: The Challenge Of A Modern Federal Criminal Code, John L. Mcclellan

Journal Articles

The four chief factors influencing the quality of American justice were identified by Dean Roscoe Pound as personnel, administration, procedure, and the substantive law. It is certain that better judges, prosecutors, and enforcement officers, better organization of courts, better administrative methods, and more adequate administrative personnel must come first in any effective program for the improvement of our nation's system of criminal justice. At the same time, the men who staff that system will be guided by an authoritatively prescribed criminal procedure, and they will be giving effect to an authoritatively prescribed criminal law. An archaic code of procedure and …

The Organized Crime Act (S. 30) Or Its Critics: Which Threatens Civil Liberties, John L. Mcclellan, G. Robert Blakey

Journal Articles

On January 23, 1970, the Senate passed by the overwhelming vote of 73 to 1, S. 30, the Organized Crime Control Act of 1969. During the debate in the Senate, S. 30 was subjected to indiscriminate charges that it would, in the words of the American Civil Liberties Union, "make drastic incursions on civil liberties" and that it ran "counter to the letter and spirit of the Constitution."

Certain newspaper commentators and a prominent mayor have echoed those charges, and recently a report critical of several key titles of S. 30 was published by the Committee on Federal Legislation of …

Jury Consideration Of Parole, Fernand N. Dutile

Journal Articles

Under our system of criminal justice, a jury faces two basic decisions: the determination of guilt and, in many cases, the selection of an appropriate penalty for the convicted. In both instances the jurors' impressions of the parole system could be crucial. For example, the jury's notion—correct or incorrect—that the defendant will be eligible for parole very quickly if sentenced to prison may cause it to compromise on the issue of guilt. In cases where the jury has discretion in setting the penalty, this notion may seduce it into selecting the death penalty over life imprisonment.

There are additional problems …

Introduction To The Symposium: Riots, Joseph O'Meara

Journal Articles

This is the tenth in our series of annual symposia, each dealing with a highly controversial problem of urgent national concern. Of these ten symposia, this is the third having to do with crime. The extent of our concern with this cancerous problem is demonstrated by that fact. My own belief is that the rising incidence of crime is our country's number one domestic problem.

Recent Decisions (Criminal Law-Confessions-Reaffirmation Of Inadmissible Confession Also Held Inadmissible), Fernand N. Dutile

Journal Articles

Examining Killough v. United States, 315 F. 2d 241 (D.C. Cir. 1962) which held that the oral reaffirmation of a day-old confession obtained from the defendant without representation by counsel was inadmissible in a federal trial. Professor Dutile notes that this case marked a "further extension" of the exclusionary principle.