Law Commons^™

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.

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 …

"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.

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 …

Comments On The History Of Plea Bargaining, Lynn M. Mather

Journal Articles

No abstract provided.

Bordenkircher V. Hayes: Ignoring Prosecutorial Abuses In Plea Bargaining, Stephen F. Ross

Journal Articles

In Bordenkircher v. Hayes, the United States Supreme Court upheld a conviction on a charge the prosecutor admittedly filed solely because the defendant refused to plead guilty to another set of charges. Hayes is a sudden departure from a line of cases in which the Court refused to allow prosecutorial charging decisions to be made to discourage a criminal defendant from exercising constitutional or procedural rights. The decision effectively removes plea bargaining from its constitutional premise: the "mutuality of advantage" between the prosecutor and the defendant. Rather than approving the broad exercise of prosecutorial discretion in plea negotiations, the …

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 …

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 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 …

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 …

Some Determinants Of The Method Of Case Disposition: Decision-Making By Public Defenders In Los Angeles, Lynn M. Mather

Journal Articles

No abstract provided.

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 …

Conspiracy And The First Amendment, David B. Filvaroff

Journal Articles

No abstract provided.

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 Logic Of Conspiracy—United States V. Spock, 416 F.2d 165 (1969)., Janet S. Lindgren

Journal Articles

Reprinted in Legal Concepts in Conspiracy: A Law Review Trilogy (Arno Press 1972).

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 …

Liability Without Fault: Logic And Potential Of A Developing Concept, Janet S. Lindgren

Journal Articles

No abstract provided.

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.

Introduction, Joseph O'Meara

Journal Articles

A symposium was held on February 29, 1964, devoted to the constitutional amendments proposed by the Council of State Governments. Very briefly these amendments would (1) vest power to amend the Constitution in State legislatures; (2) set up a "Court of the Union," composed of the chief justice of the supreme court of each of the 50 states, which would have authority to review "any judgment of the Supreme Court relating to the rights reserved to the states or to the people by this Constitution"; (3) take from the federal courts all jurisdiction over the apportionment of representation in State …

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.

The Rule Of Announcement And Unlawful Entry: Miller V. United States And Ker V. California, G. Robert Blakey Professor

Journal Articles

Mr. Justice Frankfurter, in his classic dissent in United States v. Rabinowitz, pointed out that "the safeguards of liberty have frequently been forged in controversies involving not very nice people." Few cases decided by the Supreme Court since Rabinowitz have better illustrated that observation than Miller v. United States and Ker v. California. This Article will consider the problems posed in the administration of federal criminal justice by the "liberty forged" in these two decisions.

Until the Miller decision in 1958, the Supreme Court had never squarely considered and decided a question of announcement and unlawful entry. It is therefore …

Doctrine Of Discovered Peril, William Burns Lawless

Journal Articles

The Indiana legislature has in substance adopted the Uniform Conditional Sales Law. Where the conditional seller of goods subsequently affixed to a freehold fails to record his contract, he has virtually no rights whatsoever as against subsequent purchasers and mortgagees. It is inescapable that the conditional seller's reservation of title under an unrecorded contract would be invalid as against, a subsequent mortgagee, and that he in no way could replevy the furnace, even though its removal would occasion little or no injury to the freehold. I have attempted to show it is a minority rule differing and distinct from the …

Derby's Cases On Criminal Law, Thomas Frank Konop

Journal Articles

In this review I have mentioned sins of omission as well as virtues of commission. These suggestions are not made by way of adverse criticism of Prof. Derby's excellent case book. I find the book very satisfactory. The new edition is on excellent paper and well-bound—a much desired improvement over the second edition.

Proposed Legislation For Enforcement Of Prohibition, Thomas Frank Konop

Journal Articles

Under date of November 21st, 1929, the Commission on Law Observance and Enforcement made a preliminary report to the President on observance and enforcement of prohibition. Under subdivision (D) of that report, the Commission offered three methods to relieve the congestion in the Federal Courts. Although the bills are constitutional, they will not relieve congestion. Instead, the will promote fraud and lower citizens' respect for the Federal Judiciary and the Constitution.

What Price Prohibition, Clarence Emmett Manion

Journal Articles

Prohibition assumes that our plan of government has not worked out and that it ought to be destroyed; the average citizen who has loved that form of government and fought for it in and out of the ranks is not prepared to accept the Prohibition theory. Sooner or later he will realize that as long as Prohibition is in vogue the goddess of American liberty is in chains. Formally or informally, in justification of our history Prohibition with all of its contemptible un-American ramifications must go down; and it will go down.