Terrorism or Terroristic Threat?

This post is about the Supreme Court of Michigan’s decision in People v. Osantowski, 481, Mich. 103, 748 N.W.2d 799 (2008) and the lower court decisions that brought the case to the state Supreme Court.

As this news story explains, in 2005 18-year-old Andrew Osantowski was convicted of “making a terrorist threat” in violation of Michigan Compiled Laws § 750.543m(1)(a). The statute says a “person is guilty of making a terrorist threat” if he or she “[t]hreatens to commit an act of terrorism and communicates the threat to any other person.”

Here, according to one of the briefs filed in the case, is how the charges arose:

Celia McGint, a 16-year old Idaho teenager gave her father, George McGinty, a police sergeant with Washington State University, a `packet of information’ including . . . Internet . . . conversations that she had had with `a person she was chatting with on line.’ After reviewing the document, Mr. McGinty turned it over to his WSU superiors, who forwarded the information to the Clinton [Michigan] Township Police Department [CTPD]. . . .

CTPD Captain Douglas Mills received a call from CTPD Lieutenant Bruce Wade. Wade informed Mills the CTPD had received a facsimile from WSU. The facsimile indicated that McGinty `had received . . . information regarding chat room conversations between his daughter’ and a Clinton Township teenager named Andrew Osantowski . . . Osantowski had made certain `threats’. The facsimile included a copy of the Internet `chat.’ Mills dispatched CTPD detectives to Chippewa Valley High School in Clinton Township, where Osantowski was a student. He also assigned Detective Jeffrey Barbera to serve as the officer-in-charge of the investigation.

David Cannan was the principal of Chippewa Valley. At about 8:30 a.m. [he] . . . learned of the Internet `chat’ involving Osantowski and that the conversations contained `several references to killing.’ Osantowski was a 12th grade student at Chippewa Valley. . . .

At about 10:00 a.m., CTPD detectives placed Osantowski under arrest. A few hours later, . . . Lieutenant Wade interviewed Osantowski at the police station. . . . Lieutenant Wade showed him the document and Osantowski `acknowledged making the remarks.’ He told Lieutenant Wade that he made these threats `[b]ecause [he] was mad.’ . . .

Detective Barbera obtained a search warrant for Osantowski's . . . house. . . . [T]he officers . . . . found a computer in Osantowski's bedroom. . . . In the attic crawl space accessible from the bedroom, [they] found an AK-47[,] . . . . a Mossberg 12-gauge shotgun and an Escort Legacy sports shotgun. . . . [and] substantial amounts of useable ammunition for all three weapons.

[The officers also] found a toolbox containing `about a dozen metal pipes. . . with caps on the ends of some of them, some with no caps with threaded ends, some have screws or nails taped to the outside of them.’ . . . In the same vicinity, [they] discovered a purple bag containing “two one-pound propane containers.’ . . .

At 3:00 p.m., Chippewa Valley cancelled all after-school activities and the CTPD secured the building. The CTPD officers, assisted by canines and deputies from the Macomb County Sheriff's Department searched the building. The following day. . . Chippewa Valley opened its doors. Only about 85% of [its] students attended school that day.

People v. Osantowski, Plaintiff-Appellee’s Answer to Application for Leave to Appeal, 2007 WL 4969062 (Michigan Supreme Court).

Osantowski was convicted of making a terrorist threat, using a computer to commit a crime and possession of a firearm during the commission of a felony. People v. Osantowski, supra. This is the issue that went to the Michigan Supreme Court:

[T]he trial court calculated the recommended minimum sentence range under the sentencing guidelines as 24 to 40 months. It sentenced defendant within this range to 30 months' to 20 years' imprisonment for both the conviction for making a terrorist threat and the conviction for the use of a computer during a crime. . . . [T]he prosecutor had argued that 100 points should have been scored for OV 20 because defendant had threatened to use an incendiary or explosive device; as a result, defendant's recommended minimum sentence range would have increased to 57 to 95 months. The trial court disagreed, concluding that a score of 100 points was appropriate only if the threats themselves also met the criteria to qualify as acts of terrorism. The court found that defendant's threats did not amount to acts of terrorism and that a score of zero points was appropriate for OV 20.

People v. Osantowski, supra. The prosecution relied on a Michigan statute which says the trial court must score 100 points in sentencing an offender if the he “committed an act of terrorism by using or threatening to use, . . . [an] incendiary device, or explosive device.” Michigan Compiled Laws § 777.49a(1)(a). After losing, the prosecution appealed the issue to the Court of Appeals, which reversed the trial court. People v. Osantowski, 274 Mich. App. 593, 736 N.W.2d 298 (Michigan Court of Appeals 2007), reversed by People v. Osantowski, supra. The Court of Appeals found that Osantowski’s “threats to use an incendiary or explosive device” required a score of 100 points. People v. Osantowski (Court of Appeals)..

The Michigan Supreme Court did not agree. It found that the “plain language” of the statute quoted above established that for a score of 100 points to be appropriate, the defendant must have

`committed an act of terrorism by using or threatening to use’ one of the enumerated substances or devices. . . . Thus, the use or threatened use must constitute the means by which the offender committed an act of terrorism. The statute does not state . . . that it applies if the offender `committed an act of terrorism by using or threatening to use, or threatened to use,’ the enumerated items. The statute also provides that . . . `act of terrorism’ means that term as defined by [Michigan Compiled Laws § 750.543b]. Under [§ 750.543b], a threat may constitute an act of terrorism; acts of terrorism must be violent felonies as defined by [§ 750.543b(h)], which specifies that a violent felony is one that includes as an element the `threatened use of physical force ... or the ... threatened use of . . . an explosive device, or an incendiary device.’ But not all threats are acts of terrorism, even if they qualify as violent felonies. To constitute an act of terrorism, a threat must be a violent felony and also must itself be `a willful and deliberate act’ that the offender `knows or has reason to know is dangerous to human life’ and `is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion.” [Michigan Compiled Laws § 750.543b(a).]

People v. Osantowski, supra.

The Michigan Supreme Court found that a score of 100 points is only justified when the defendant’s threats also constituted acts of terrorism. People v. Osantowski, supra. It then turned to the issue of whether Osantowski’s threats constituted acts of terrorism.

The Michigan Supreme Court began by noting that the trial court concluded that his threats “did not themselves constitute acts of terrorism”. People v. Osantowski, supra. After reviewing the evidence the trial court relied on, the Supreme Court held that the trial judge’s decision on the issue was not “clearly erroneous”:

The record shows defendant succeeded only in sending electronic messages to a teenager living in another state. The recipient's father, who happened to be a law enforcement officer in Washington, notified Michigan authorities. The prosecution correctly observes that, as a result of this notification, activities at defendant's high school were disrupted. But we cannot agree with the prosecution that these facts require the conclusion that defendant's threats constituted acts of terrorism for purposes of scoring OV 20. We accept the trial court's ruling that defendant did not commit an act of terrorism. Defendant would not `know[ ] or ha[ve] reason to know’ that his e-mail messages to another teenager were themselves `dangerous to human life,’ [Michigan Complied Laws § 750.543b(a)(ii)]. Nor did defendant actually intend his e-mailed threats to another teenager `to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion’. . . .

People v. Osantowski, supra. The Michigan Supreme Court therefore reversed the Court of Appeals’ decision and reinstated the trial judge’s sentencing decision. People v. Osantowski, supra.

As this news story explains, last April, a Michigan county court judge stopped Osantowski from being released from prison after serving the minimum term he was sentenced to (four and a half years). I don’t know if he’s out by now or not.

I think the Michigan Supreme Court got it right. I can see how a terrorist threat can constitute an act of terrorism when the threat itself is used to intimidate or coerce a civilian population or even harm people. Here, though. Osantowski wasn’t sending his threats to the people who were their target; he was sending them to someone in another state, someone he presumably never expected to have them sent to the police and the school in his area. That may qualify as a threat, but I don’t see it as a terrorist threat under the Michigan statute.

Taking the Fifth in a Civil Suit

As I assume everyone knows, the 5^th Amendment to the U.S. Constitution creates what is known as the privilege against self-incrimination. The privilege derives from the part of the 5^th Amendment that says no person “shall be compelled in any criminal case to be a witness against himself”.

On its face, then, the 5^th Amendment privilege against self-incrimination applies to criminal prosecutions. More precisely, it applies to prevent someone from being compelled to “be a witness” (e.g., give testimony) that can be used against him or her in a criminal prosecution. In 1924, in McCarthy v. Arndstein, 266 U.S. 34, the prosecution argued that “the constitutional privilege against self-incrimination does not apply in any civil proceeding.” The Supreme Court disagreed:

The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it.

McCarthy v. Arndstein, supra. So you can claim the 5^th Amendment in a civil proceeding – e.g., when called to testify at a civil trial or, more often, when you’re being deposed by a party to a civil proceeding – IF your answers to the questions you’re asked could be used to convict you of committing a crime. The premise behind the 5^th Amendment is that the privilege is violated not when you give the answers, but when the incriminating answers are used against you in a criminal prosecution.

And that brings to Eagle Hospital Physicians, LLC v. SRG Consulting, Hospitalist Physicians, ince and Steven R. Gerst, 561 F.3d 1298 (U.S. Court of Appeals for the Eleventh Circuit 2009). (For convenience’s sake, I’m going to refer to the case as Eagle v. Gerst, supra.). Here is how the lawsuit arose:

Eagle operates a business contracting hospitalists -- doctors who specialize in the . . . treatment of hospitalized patients -- out to hospitals with whom it establishes contractual relationships. Gerst, principal owner of SRG and Hospitalist Physicians, Inc., owns approximately 10% of Eagle. . . In July 1999, SRG and Eagle entered into a marketing and sales agreement (the `Agreement’) pursuant to which SRG would provide marketing and sales services to Eagle to develop business contacts with hospitals for Eagle. . . . . `SRG [was] responsible for locating potential contractors, educating them about Eagle's hospitalist programs, and performing any other services necessary to secure a hospitalist contract for Eagle.’ The Agreement provided that SRG would be paid a commission `[f]or each contract for hospitalist services executed between Eagle and another party which either SRG, or its agent, has secured on behalf of Eagle.’ . . .

[T]he relationship . . . began to sour in 2002. . . . [T]he parties disagreed regarding the proper content for the website SRG maintained on Eagle's behalf, eaglehospitalphysicians.com. Eagle's CEO wrote to Gerst and requested the website be transferred from SRG to Eagle. When Gerst refused to give Eagle access to the website, Eagle registered and began developing its own website, ehphospitalists.com. SRG then registered 150 domain names containing versions of Eagle's name and trademarks, including ehphospitalist.com -- the singular form of Eagle's new site. Gerst informed Eagle that he would transfer the websites to Eagle only if Eagle paid him a large salary or gave him additional equity in Eagle. In his deposition, Gerst testified that, as a condition to transferring the domain names, he also requested hundreds of thousands of dollars from Eagle as compensation for the costs to create and maintain the websites, but later testified that the actual development costs were just over $67,000.

On October 21, 2003, Eagle sent written notice terminating the Agreement. Gerst responded that Eagle did not have the authority to unilaterally terminate the Agreement and that it therefore remained in effect.

In April 2004, Eagle filed the present suit, asserting claims under the Anti-cybersquatting Consumer Protection Act, the Federal Trademark Act of 1946 . . . and various state laws.

Eagle v. Gerst, supra. That brings us to the event that triggered the 5^th Amendment claim:

On September 26, 2005, Gerst submitted an affidavit to the court. Attached to the affidavit were email documents sent between Eagle personnel and Eagle's attorneys. The documents were protected by attorney-client privilege. Eagle deposed Gerst in an attempt to find out how and when he had obtained the privileged and internal emails. Gerst invoked the Fifth Amendment throughout the deposition and refused to explain how and when he had intercepted these emails, whether he had help doing so, and whether he continued to have the ability to intercept privileged internal and attorney-client email communications. Eagle filed a motion for sanctions [against Gerst and SRG].

Eagle v. Gerst, supra. The federal district court judge found that Gerst had engaged in “`behavior that disrupts the litigation and therefore is in bad faith.” Eagle v. Gerst, supra. He noted that the plaintiffs “`will never know the extent to which Dr. Gerst was able to “eavesdrop” on’ Eagle and its officers.” Eagle v. Gerst, supra. The judge “inferred from Gerst’s silence that he continued to maintain the ability to intercept communications and concluded that this ability created a “`disruption to [Eagle] and the litigation in general.’” Eagle v. Gerst, supra. The judge therefore imposed the sanction of striking Gerst’s answer to the plaintiff’s complaint, which meant he had defaulted on his obligation to respond to the allegations in the complaint. Given this default, the judge found that Gerst and SRG “admitted all well-pleaded claims contained in the complaint “ and so awarded damages and attorneys’ fees to Eagle. Eagle v. Gerst, supra.

Gerst appealed. (SRG wasn’t really a party to the 5^th Amendment issue he raised on appeal because corporations don’t have a 5^th Amendment privilege. In Hale v. Henkel, 201 U.S. 43 (1906), the Supreme Court held that corporations and other artificial entities do not have a 5^th Amendment privilege they are “creatures of the State’ with powers that are limited by the state. The Hale Court held, therefore, that corporations – unlike “natural persons” – cannot rely on the 5^th Amendment privilege.

On appeal, Gerst argued that the district court erred (i) in drawing adverse inferences from his claiming the 5^thEagle v. Gerst, supra. The first argument may seem like a good one because the Supreme Court has held that guilt cannot be inferred from a defendant’s invoking the 5^th Amendment in a criminal case. Griffin v. California, 380 U.S. 609 (1965). If juries could infer guilt from someone’s taking the 5^th Amendment privilege when asked about criminal activity, we’d essentially have no 5^th Amendment privilege. In other words, if you can infer I’m guilty because I invoked the privilege, then I have no privilege: If I invoke it, you can infer my guilt from that act; if I don’t invoke it, I’ll have to testify truthfully and implicate myself in a crime or lie under oath and commit perjury (a new crime). Amendment privilege (assuming he had intercepted and could continue to intercept Eagle’s communications) and (ii) by sanctioning him.

The Supreme Court has also held that this principle doesn’t apply in a civil proceeding. In Baxter v. Palmigiano, 425 U.S. 308 (1976), the Court said “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify”. And in Bilokumsky v. Tod, 263 U.S. 149 (1923), the Court said that the “[f]ailure to contest an assertion . . . is considered evidence of acquiescence”, i.e., agreement.

The Court of Appeals in the Eagle case began its ruling on the issue by noting that “in a civil suit such as this one, the court may draw adverse inferences against a party that invoked the Fifth Amendment.” Eagle v. Gerst, supra. It then held that the district court’s “inference that Gerst maintained the ability to monitor Eagle’s confidential emails was a permissible, reasonable inference.” Eagle v. Gerst, supra. So Gerst lost on that issue.

The Court of Appeals began its ruling on the sanctioning issue by noting that the “decision to invoke the Fifth Amendment [in a civil case] dos not have to be consequence-free.” Eagle v. Gerst, supra. It also noted, however, that in imposing consequences for invoking the privilege, a court “must not `so unduly burden the employment of silence as to make the decision to testify involuntary.’” Eagle v. Gerst, supra (quoting Wehling v. Columbia Broadcasting System, 608 F.2d 1984 (U.S. Court of Appeals for the Fifth Circuit 1979)). Dismissing a case for someone’s invoking the Fifth Amendment “violates the Constitution where the inferences drawn from Fifth-Amendment-protected silence are treated as a substitute for the need for evidence on an ultimate issue of fact.” Eagle v. Gerst, supra.

The Court of Appeals ultimately found that “Gerst’s assertion of the Fifth Amendment was not unduly burdened because the dismissal was not a punishment for invoking the Fifth Amendment.” Eagle v. Gerst, supra.

The [district] court did not enter a dismissal because of Gerst's use of the Fifth Amendment. Rather, Eagle had introduced evidence that Gerst had been improperly intercepting confidential emails of the opposing party and that Gerst refused to answer questions about whether he could continue to do so. This evidence of misconduct established that Gerst had disrupted the litigation, and the district court felt it was necessary in light of the disruption to strike Appellants' pleadings and enter a default judgment for Eagle. The dismissal issued as a result of the disruption, not as a direct result of Gerst's invocation of the Fifth Amendment. Under the circumstances in this case, the court assigned the proper evidentiary weight to Gerst's silence.

Eagle v. Gerst, supra. The Court of Appeals also found that even if the dismissal could be considered “to flow directly from Gerst’s invocation of the Fifth Amendment,” it was not improper under the circumstances at issue in the case. Eagle v. Gerst, supra. The district court found that Gerst acted in bad faith and that “severe sanctions were necessary because neither Eagle nor the court would know the extent of Gerst's activities or how Gerst's ability to continue to monitor communications would prejudice Eagle's position in the litigation.” Eagle v. Gerst, supra. The Court of Appeals was particularly concerned about the fact that the emails Gerst intercepted involved “communications between clients and their attorneys” and though dismissal was appropriate as a means of deterring similar action in the future. Eagle v. Gerst, supra.

Impossibility

Impossibility is another defense someone who has been charged with a crime can claim. As Wikipedia explains, U.S. criminal law traditionally distinguished between factual and legal impossibility.

Factual impossibility exists when circumstances of which the defendant was unaware made the commission of the crime he intended to carry out impossible. Assume, for example, that John Doe is beyond fed up with his neighbor, Ralph Roe. Doe (not being the most stable person in the world) decided the only solution is for him to kill Roe, so he buys a gun and spends a few weeks watching Roe to learn his schedule. He learns Roe sits outside in his backyard after dinner, so one night Doe takes his gun and goes into the backyard and shoots Roe, fully intending to kill him. What Doe didn’t know is that Roe died half an hour earlier of a heart attack.

It was factually impossible, given the circumstances, for Doe to commit murder because murder consists of purposely killing another human being. Doe didn’t kill a human being; he shot a corpse (which might be prosecuted as abuse of a corpse). The way the law deals with factual impossibility is to say to someone like Doe, “Okay, you didn’t commit murder but you tried your best to commit murder, so we’re going to prosecute you for attempting to murder Roe.”

As I explained in an earlier post, attempt is an incomplete (or inchoate) crime; when you’re charged with attempt you either never got to the point of trying to commit the target crime (Doe is arrested after he bought the gun and learned Roe’s schedule but before he does anything else) OR you did your best to commit the target crime but circumstances beyond your knowledge and control prevented you from carrying out that crime. The best we can do in the latter situation is to charge you with attempting to commit the target crime, i.e., the crime you tried to commit.

Legal impossibility is different. As one court noted, “Legal impossibility . . . arises only when the defendant’s objective is to do something that is not a crime.” In re Doe, 855 A.2d 1100 (District of Columbia Court of Appeals 2004). Or, as another court put it, legal impossibility ““occurs when the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime.” United States v. Oviedo, 525 F.2d 881 (U.S. Court of Appeals for the Fifth Circuit 1976).

Legal impossibility is a complete defense to a charge of actually committing a crime (Doe’s killing Roe) or one of attempting to commit a crime (Doe’s attempting to kill Roe but being arrested before he tried to do so and before Roe died of natural causes). It’s a defense for a very simple reason: In either instance, there’s no crime to charge the person with.

Assume, for example, that I’m driving my car down an Interstate in Wyoming. I think the speed limit on that highway is 65, so when I’m going 70 mph I believe I’m committing the (very small) crime of speeding. What I don’t know is that the speed limit in Wyoming (at least according to Wikipedia) is 75 mph. So by driving my car at 70 mph, I didn’t violate the Wyoming speed limit and therefore can’t be charged with speeding; and since what I did isn’t a crime in Wyoming, I can’t be charged with attempting to speed in Wyoming. It would be factual impossibility if I KNEW the Wyoming speed limit is 75 mph and thought I was driving my car at 80 mph but, unknown to me, my speedometer was set wrong; I thought I was going 80 when I was actually going 70. There, I couldn’t be charged with actually speeding but I could be charged with attempting to speed because I tried to go faster than what I new the speed limit to be. I can’t be charged with attempting to speed in the earlier example because what I did – driving at 70 mph and intending to drive my car at that speed – isn’t a crime.

If that sounds confusing, that’s because it is. Factual impossibility is easy; legal impossibility is pretty murky.

And that brings us to U.S. v. Iorio, 2008 WL 4006726 (U.S. District Court for the Middle District of Pennsylvania 2008). In 2008, Iorio was indicted for “attempting to entice a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct” in violation of 18 U.S. Code § 2251(a). U.S. v. Iorio, supra. Note that he was charged with attempting to violate the statute, not with violating it. The attempt charge arose from these facts:

From March 2007 until February 2008, a law enforcement agent posing as the mother of a ten year old child, and later the fictitious child herself, corresponded with [Iorio] via computer. In the course of these conversations, [he] sent the law enforcement agent child pornography and expressed interest in videotaping himself having sex with the child. No actual minor ever existed. No meeting was ever arranged. . . .

U.S. v. Iorio, supra.

Iorio moved to dismiss this charge, arguing that the statute “requires the involvement of an actual minor, and no minor was involved.” U.S. v. Iorio, supra. The district judge who had the case granted the motion and dismissed the count; the government then obtained a superseding indictment (i.e., a new indictment against Iorio based on the same facts) in which the § 2251(a) count was phrased differently than in the first indictment. U.S. v. Iorio, supra.

Iorio moved to dismiss this charge, as well; his argument primarily focused on the claim that the dismissal of the original charge was a decision on the merits that barred the government from trying again. It wasn’t really a double jeopardy argument because jeopardy doesn’t attach for the purposes of that principle until the trial begins. Iorio’s argument was based on what’s known as res judicata which, according to Wikipedia, translates as “`a matter [already] judged’”. It simply means that once something’s been decided, it can’t be raised again.

The judge in the case found that the dismissal of the first version of the § 2251(a) charge “was clearly in error”. U.S. v. Iorio, supra. In ruling on Iorio’s motion to dismiss the § 2251(a) count in the superseding indictment, she explained that Iorio was

charged not with the substantive offense of enticement codified at § 2251(a), but rather the distinct inchoate offense of attempting to violate that statute. The crime of attempt requires the satisfaction of two elements: (1) the defendant must act with the culpability required for the underlying offense, and (2) . . . must engage in conduct that constitutes a substantial step towards commission of that offense. . . . This court's previous opinion held that the involvement of an actual minor is required to sustain a conviction for attempting to violate § 2251(a). Indeed, the plain language in the statutory definition of minor requires the involvement of an actual minor for the substantive offense. . . . [B]ecause [Iorio] is charged with attempting to violate the statute, rather than the completed crime, the government need only establish that [he] acted with the requisite mens rea and took a substantial step towards commission of the underlying offense. Thus in order to secure a conviction, the government must prove that [Iorio] believed he was communicating with an actual minor, but no actual minor need be involved.

U.S. v. Iorio, supra. The judge found she erred in dismissing the original charge, which meant that the dismissal in no way barred the government from bringing the new charge.

She also noted that Iorio’s argument as to the lack of an actual minor implicated the defense of impossibility:

At common law, the defense of impossibility could be raised as an affirmative defense to a crime of attempt. However, the law distinguished between factual impossibility, which is no defense, and legal impossibility, which is a complete defense. . . .

[T]he facts of this case suggest a claim of factual, rather than legal impossibility. Here, there is no dispute that the government agent held herself out as a ten year old child. The fact that the agent was actually an adult female is an extraneous circumstance allegedly unknown to [Iorio]. Thus this case presents a claim of factual, rather than legal impossibility. By contrast, if it were alleged that the Defendant was under the mistaken belief that it was illegal to entice a twenty year old, and the agent had held herself out as a twenty year old, then [Iorio] could successfully assert a defense of legal impossibility, because the intended act, even if completed, would not have constituted a crime.

U.S. v. Iorio, supra.

Defendants charged with violating § 2251(a) or similar state provisions by attempting to entice a minor to engage in sexual conduct often try to use the defense of impossibility to have the charge dismissed. They, like Iorio, say that since they were communicating with an adult, not a minor, it was impossible for them to have committed the crime of enticing an actual minor. If a defendant, like Iorio, is charged with attempting to commit the crime, he will lose on that argument because factual impossibility is not a defense to an attempt charge.

The same will be true if the defendant is charged under a statute that incorporates the factual impossibility issue into its definition of the offense. Here, for example, is Idaho’s “enticing of children over the Internet” statute:

A person aged eighteen (18) years or older shall be guilty of a felony if he or she knowingly uses the internet to solicit, seduce, lure, persuade or entice by words or actions, or both, a minor child under the age of sixteen (16) years or a person the defendant believes to be a minor child under the age of sixteen (16) years to engage in any sexual act . . . where such act is a violation of . . . [the] Idaho Code.

Idaho Code § 18-1509A(1) (emphasis added). Instead of defining the crime of enticement and making it another crime to commit enticement, statutes like these incorporate factual impossibility by making it a crime to entice (i) a real child or (ii) someone the perpetrator believes to be a real child.

Necessity

As Wikipedia explains, necessity is an affirmative defense to a criminal charge. That means it is a defense which the defendant must raise and which the defendant must prove; a court won’t instruct a jury on an affirmative defense unless the defendant has introduced evidence sufficient to warrant a reasonable jury’s acquitting on the basis of the defense.

As an affirmative defense, necessity operates the same way as self-defense or defense of property. All three defenses are used to show that while the defendant committed a crime (e.g., assault, property damage or even murder) he/she was justified in doing so.

As Wikipedia explains, a defendant who raises the defense of necessity argues that he or she “should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm”. In self-defense, the actor was preventing harm to himself or herself; in defense of property, the actor was preventing damage to someone’s property.

The Model Penal Code (which, as I’ve noted, is a template of criminal laws that was drafted by the American Law Association) renamed the necessity defense and slightly altered its substance. Section 3.02 of the Model Penal Code creates the “choice of evils” defense. Under § 3.02(1), “[c]onduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that . . . the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged”.

Here’s a simple example of the defense of necessity (or choice of evils): Your spouse is having a major heart attack and you know he/she needs to get to the emergency room as soon as possible; you also know that if you call and wait for an ambulance you’ll lose precious time. So you put your spouse into a car and drive 50 miles an hour down a street with a 35-mile per hour speed limit and get to the hospital much faster than the ambulance would have gotten to you. You committed the “crime” (very minor crime) of speeding but, by doing so, you saved your spouse’s life. If you can show that what you did saved your spouse’s life and that he/she would have died (or suffered some lasting impairment) had you not done what you did, then you qualify for the necessity/choice of evils defense. Basically, you say you had a choice of a greater evil (death/impairment) or a smaller evil (speeding) and you choice the smaller evil to avoid the greater one.

And that brings us to People v. Ackenheil, 2002 WL 31716533 (California Court of Appeals 2002). Here are the facts that led to Blair Ackenheil’s being charged with theft of computer data in violation of California Penal Code § 502(c)(2):

Roger Van Fleet owns Purifying Systems, a company that sells and maintains water treatment equipment. Ackenheil worked for Purifying Systems . . . . He installed and maintained residential and commercial water treatment equipment. . . .

Purifying Systems sold Bruner equipment. Van Fleet was given Bruner dealer binders that were necessary for the proper installation and service of Bruner equipment,. . . . Van Fleet was required to sign a confidentiality agreement to receive the binders. . . .

Purifying Systems stored . . . customer information in computer files. . . . Debra Pinick, maintained the. . . files. . . . Ackenheil did not access the computer as part of his duties.

When Van Fleet obtained the names of potential customers at trade shows, Pinick entered this information into a computer file titled `Commercial Trade Show.’ When Van Fleet purchased a list of potential customers . . . Pinick created a file containing this information. The file was known as the `Bruce Dean List.’ Van Fleet also directed the creation of other computer files containing information about its current customers. This information included the type of equipment they owned, services previously performed and the date of the next scheduled service. These files were entitled `Resale’ and `Indust.’ Two computer files containing customer information about water systems that had been installed in tracts of . . . . were entitled `Kyle Carter’ and `Castle and Cooke.’

On January 8, 2000, Ackenheil downloaded a copy of all of these files onto three floppy disks and took the disks home.

On January 10, Ackenheil [told] Van Fleet . . . he was going to work for a competitor. . . . [but later said] he did not really want to change jobs. Van Fleet agreed to allow Ackenheil to `work’ the Bruce Dean List and to pay him a percentage of revenues generated from customers on the list. Ackenheil agreed to stay . . . Ackenheil did not tell Van Fleet that he had downloaded the computer files and taken them home. . . .

[O]n January 24 . . . Van Fleet found a [resignation] from Ackenheil taped to his office door. . . . Van Fleet noticed that . . . Bruner binders and service manuals were missing. Van Fleet had the computer system checked and discovered that several files had been copied on January 8. Ackenheil was the only employee who worked that day. . . .

On February 15, a search warrant was executed on Ackenheil's home. Officers found . . . Bruner binders, service manuals, . . . price lists, . . . and the three computer disks containing the files that Ackenheil had copied from the Purifying Systems's computer.

People v. Ackenheil, supra.

On March 8, Ackenheil was charged with computer theft under California Penal Code § 502(c)(2). That section says that anyone who “[k]nowingly accesses and without permission . . . copies . . . any data from a computer” or a computer system commits a crime under California law.

Ackenheil wanted to use the defense of necessit when the case went to trial. He based his claim to such a defense on the premise that when he copied the computer files he was gathering evidence to be used to file a complaint about the work Purifying Systems was doing. After being indicted (in late March), Ackenheil had someone test water quality at a Burger King where Purifying Systems had installed a water treatment system; the test showed that the Burger King’s water “had an excessively high nitrate concentration.” People v. Ackenheil, supra.

When he testified at trial, Ackenheil said that when he called one agency, he was told

by an unnamed employee that he needed to have specific information about the alleged wrongdoing in order for them to investigate. . . .

Ackenheil testified that he downloaded the computer files . . . and took them home to obtain information necessary to file complaints about Purifying Systems. He had Van Fleet's permission to access the computer and to copy the computer files. . . . Yet, he copied the files on a Saturday because he did not want anyone to know what he was doing. . . .

Ackenheil testified that he had not filed any written complaints or given the floppy disks containing Purifying Systems's computer data to a governmental employee before the search warrant was executed because `I was working with my attorney. I had started a new job. I had a lot of things to do and that wasn't foremost on my list.’ . . .

People v. Ackenheil, supra.

When the prosecution learned, prior to trial, that Ackenheil wanted to raise a necessity defense, it filed a motion seeking to bar him from doing so. The trial court held a hearing at which both sides presented arguments on the issue; the trial judge ultimately held that Ackenheil “had failed to show that the situation presented an imminent danger and that `no reasonable jury could find from these facts the defense of necessity.’” People v. Ackenheil, supra. Ackenheil was convicted and appealed, arguing, in part, that the trial judge erred in not letting him raise a necessity defense. People v. Ackenheil, supra.

The Court of Appeals agreed with the trial judge:

Ackenheil failed to proffer evidence from which a reasonable jury could have found that . . . he . . . acted to prevent an imminent evil. Ackenheil waited two years to report the defect in the restaurant's water system after he helped install it. During this period, he serviced the water system on a regular basis yet took no steps to rectify the problem. . . .

Furthermore, Ackenheil downloaded the computer files in December and January and acquired the written materials around this time. Yet, when the search warrant was executed . . . he had not given the . . . computer files to any governmental official or agency. In fact, Ackenheil testified he had been too busy to review the wrongfully appropriated materials. . . .

Ackenheil cites no decisional authority in which the necessity defense was held to apply where the alleged emergency situation was ongoing, Ackenheil waited for years before acting . . . and then, after committing the charged offense, still did nothing to halt the alleged evil for months. . . . [W]e decline to extend the necessity defense to such situations.

People v. Ackenheil, supra.

Ackenheil’s effort to raise a necessity defense failed for the reason such efforts usually fail: To establish the defense, a defendant has to show it was immediately necessary to take action, which constituted a crime, to avert a greater evil. “Necessary” means the person had no viable alternative. Court almost always find that the defendant had some viable alternative, primarily because they want to limit the use of the defense. After all, it’s a pretty scary thought to think that we can literally take the law into our own hands if we think it’s “necessary” to do so.

"Criminal Simulation," Copyright and "Criminal Tools"

I’ve done a couple of posts on the crime usually known as possession of burglar’s tools. This post is about a related offense and how it applies, or doesn’t apply, to copyright violations.

As I explained in my first post on the topic, state criminalize the possession of burglar’s tools for two reasons: One is that it lets them stop someone who has burglar’s tools before he or she goes ahead and commits burglary; this, as I noted in that first post, means the possession of burglar’s tools crime is a kind of inchoate (incomplete) crime.

The other reason states criminalize the possession of burglar’s tools is that it gives a prosecutor an additional charge to bring against someone who has actually committed burglary. (Courts have held that burglary and possession of burglar’s tools are two distinct crimes, since one can commit burglary without possessing burglar’s tools and can possess burglar’s tools without having committed burglary. See State v. Reid, 1997 WL 722786 (Tennessee Court of Criminal Appeals 1997).)

And that brings us to State v. Chappell, 2009 WL 3217907 (Ohio Court of Appeals 2009).

Chappell was indicted in a four-count indictment on two counts of criminal simulation of music and movies in violation of [Ohio Revised Code § 2913.32], one count of receiving stolen property (a laptop computer) in violation of [Ohio Revised Code § 2913.51), and one count of possessing criminal tools (i.e., money, an automobile, hard drives, a laptop computer, and packaging material) in violation of [Ohio Revised Code § 2923.24The charges stemmed from allegedly bootlegged DVDs and CDs found in Chappell's car during the execution of a search warrant.

State v. Chappell, supra.

Chappell moved to dismiss the receiving stolen property and criminal simulation charges, and the trial court granted both motions. State v. Chappell, supra. I have no idea why the court dismissed the receiving stolen property charge, since the opinion doesn’t say; my guess is that the evidence didn’t prove Chappell knew the laptop was stolen when he possessed. It.

The opinion doesn’t tell me why the trial court dismissed the criminal simulation charges, but I have a pretty good idea why it did so. The criminal simulation was brought under this Ohio statute:

(A) No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of the following:

(1) Make or alter any object so that it appears to have value because of antiquity, rarity, curiosity, source, or authorship, which it does not in fact possess;

(2) Practice deception in making, retouching, editing, or reproducing any photograph, movie film, video tape, phonograph record, or recording tape;

(3) Falsely or fraudulently make, simulate, forge, alter, or counterfeit any wrapper, label, stamp, cork, or cap prescribed by the liquor control commission. . . .

(4) Utter, or possess with purpose to utter, any object that the person knows to have been simulated as provided in division (A)(1), (2), or (3) of this section.

(B) Whoever violates this section is guilty of criminal simulation. . . .

Ohio Revised Code § 2913.32.

I hadn’t heard of criminal simulation before. According to a law review article, many states have adopted criminal simulation statutes as a way to penalize the falsification or fabrication of works of art and antiquities. Lilli Hsieh, Jennifer McCarthy & Elizabeth Monkus, Intellectual Property Crimes, 35 American Criminal Law Review 899 (1998). The article says the criminal simulation offense is essentially intended to extent the concept of forgery to items other than “written documents and checks.” Intellectual Property Crimes, supra. Criminal simulation, then, is essentially a forgery crime.

So why did the trial court dismiss the criminal simulation charges against Chappell? I think it was because the court found that the charges were pre-empted by federal law.

Section 301(a) of Title 17 of the U.S. code says that

all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

Section 301(a) and related provisions of federal law completely pre-empt state law when it comes to civil copyright claims. As Wikipedia explains, this means there is no state civil cause of action for copyright infringement. As Wikipedia notes, Congress took this step in 1976 because it believed “national uniformity” is essential in the area of copyright law. See Ritchie v. Williams, 395 F.3d 283 (U.S. Court of Appeals for the Sixth Circuit 2005). In deciding whether a civil state cause of action is pre-empted by federal law, a federal court compares the elements of the state cause of action and a federal copyright claim; if the elements are indistinguishable, the state cause of action is pre-empted. See Ritchie v. Williams, supra.

Pre-emption isn’t limited to civil causes of action. As another law review article explains, “[s]tate criminal copyright laws are . . . pre-empted by federal law if the conduct would also be considered criminal infringement under the Copyright Felony Act.” Joseph W. Cormier, Richard Kozell & Jessica L. McCurdy, Intellectual Property Crimes, 46 American Criminal Law Review 761 (2009). In Crow v. Wainwright, 720 F.2d 1224 (U.S. Court of Appeals for the Eleventh Circuit 1983), a federal court of appeals held that federal copyright law pre-empted Crow’s state criminal conviction for dealing in stolen property. The charges against Crow were based on his selling q bootleg eight-track tape (of Tammy Wynette). Crow v. Wainwright, supra. CBS held the copyright on the bootleg tape; Crow argued that “because the only `stolen property’ involved in the case was the copyright of CBS (and not the physical tape itself), the Copyright Act precludes Florida from prosecuting him and renders his conviction void.” Crow v. Wainwright, supra. The U.S. Court of Appeals for the Eleventh Circuit agreed, which meant the conviction could not stand.

That brings us back to Chappell: I think the trial court dismissed the criminal simulation counts because it found they were pre-empted by federal copyright law. It is logical to assume that committing “criminal simulation of music and movies” is indistinguishable from copyright infringement. “Criminal simulation of music and movies” must involve making copies of songs and movies; and as Wikipedia explains, copyright infringement consists of copying a copyright-protected work when doing so is not authorized by one of the defenses or limitations to copyright infringement.

My theory that the trial court relied on pre-emption in dismissing the criminal simulation counts is also supported by what happened with the possession of criminal tools count. Chappell moved to dismiss the possession of criminal tools count but the trial court denied that motion. Chappell filed a motion to compel a response to his

motion for a bill of particulars, in which he had asked the State to identify . . . his alleged criminal purpose in using the alleged criminal tools. In its supplemental bill of particulars, the State asserted that it intended to introduce evidence at trial that Chappell possessed the criminal tools with the intent to violate federal copyright infringement law.

State v. Chappell, supra. (A motion for a bill of particulars is the way a defendant asks the prosecution to give him more information about the facts it will rely on to prove him guilty on one or more charges.)

The trial court then granted Chappell’s motion to dismiss the possession of criminal tools charge, holding that “the intent to use an item criminally must arise from an intended violation of Ohio law and that `the State is not free to use the law of any jurisdiction or federal law in order to support its claim’”. State v. Chappell, supra. The prosecution appealed the dismissal of the possession of criminal tools charge, the Ohio Court of Appeals held that it was correctly dismissed:

Ohio . . . has no common law offenses. . . . `[N]o conduct constitutes a criminal offense . . . unless it is defined as an offense in the Revised Code.’ [Ohio Revised Code § 2901.03(A)]. `An offense is defined when one or more sections of the Revised Code state a positive prohibition or enjoin a specific duty, and provide a penalty for violation of such prohibition or failure to meet such duty.’ [Ohio Revised Code § 2901.03(B)]. . . .

Under these sections, . . . prosecution under Ohio law must emanate from violations of offenses defined in the Revised Code. . . . Violating federal copyright law is not defined as an offense in the Revised Code nor does the Code provide any penalty for it. Thus, even assuming Chappell possessed tools and intended through their use to violate federal copyright law, such intent is not a crime that can be prosecuted . . . under the Ohio Revised Code, as there would have been no intended violation of state law.

State v. Chappell, supra.

It seems to me that Chappell’s argument is at least implicitly a pre-emption argument. His attorney got the prosecutor to admit that he was going to rely on federal copyright law in proving the possession of criminal tools charge. Possessing criminal tools for the purpose of committing copyright infringement doesn’t seem to be a crime under federal law, so the offense the prosecutor sought to convict Chappell of probably wasn’t actually pre-empted by federal law. That is, it probably didn’t constitute a copyright infringement crime, as such . . . for the same reason courts have held that the possession of burglar’s tools crime isn’t the same crime as burglary. I can possess tools with the intent to infringe someone’s copyright without infringing a copyright, and I can probably infringe a copyright without possessing copyright infringement tools.

The problem here is that you can’t commit the crime of possessing criminal tools unless you possessed those tools with the intent to commit a crime in that jurisdiction. Since copyright infringement is not, and cannot be, a crime under Ohio law, Chappell simply possessed . . . items . . . that could not be used to commit a crime (at least not the crime of possessing criminal tools) in Ohio. Even if he believed he was possessing criminal tools, his belief isn’t enough to transform what isn’t a crime under the law into a crime.