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Source: Image courtesy of Tara Storm.

treason

Levying war against the United States or adhering to the enemy by providing the enemy with aid and comfort.

C H A P T E R 1 3 Crimes against the Government Bribery, of course, connotes a voluntary offer to obtain gain, where extortion connotes some

form of coercion.

- U.S. v. Adcock, cited in Section 3

1. CRIMES INVOLVING NATIONAL SECURITY

L E A R N I N G O B J E C T I V E S

1. Define the elements of treason, and analyze treason’s evidentiary requirements and grading.

2. Define the elements of sedition, and analyze sedition grading. 3. Define the elements of various forms of sabotage, and analyze sabotage grading. 4. Define the elements of espionage, and analyze espionage grading.

The government is tasked with keeping the nation safe from domestic and international attacks on the government and citizens. National security is an issue that affects the entire country, so most of the reg- ulation in this area is federal, rather than state.[1] Criminal statutes protecting the government can en- croach on the individual freedom to protest government action and can also affect privacy interests, which subjects them to enhanced constitutional scrutiny similar to the crimes against the public re- viewed in Chapter 12. This section explores crimes against the nation, such as treason, sedition, sabot- age, and espionage. Section 2 examines terrorism and the USA PATRIOT Act. The last section of this chapter discusses other crimes against the government that are primarily state regulated, such as per- jury, bribery, and obstruction of justice.

1.1 Treason Article III § 3 of the US Constitution defines treason and specifies the evidentiary requirements for any treason trial. The founding fathers wanted to ensure that the government would not charge an in- dividual with treason without significant and reliable proof. Treason was punishable by death in Eng- land, so it was a constant threat to anyone who disagreed with the ruling party. Although the treason clause in the Constitution is modeled after the early English law defining treason, it omits a section that criminalized “imagining the death of the King” and also limits Congress’s authority to extend or ex- pand the crime of treason or to lighten the evidentiary requirements.

The pertinent section of the Constitution states, “Treason against the United States shall consist only in levying War against them, or, in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Treason Elements and Grading

The criminal act element required for treason is levying war against the United States or adhering to the enemy by giving aid and comfort.[2] Prosecutions for treason are practically nonexistent, so case law in this area is dated, yet still constitutes viable precedent. In U.S. v. Burr, 25 F Cas 55 (1807), a case involving then-vice president Aaron Burr’s prosecution for treason, the US Supreme Court held that levying war means an actual assembling of men, not a conspiracy to levy war, nor a mere enlistment of

men. In Haupt v. U.S., 330 U.S. 631 (1947), the US Supreme Court held that the defendant’s acts of harboring and sheltering his son in his home, helping him to purchase an automobile, and obtain em- ployment constituted providing aid and comfort to the enemy because the defendant’s son was a spy and saboteur. The criminal intent element required for treason is most likely the general intent or knowingly to commit an act of levying war or the specific intent or purposely to betray the United States by giving aid and comfort to enemies.[3] The Constitution specifies the evidentiary requirements that two witnesses testify to an overt act of treason or that the defendant confess in open court, al- though this is not set forth in the federal treason statute.[4] As stated in Cramer v. U.S., 325 U.S. 1, 34, 35 (1945), “Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,” and it is not enough that the elements of treason can be inferred from the witness statements. Treason is graded as a felony that can merit the death penalty or prohibit the defendant from ever holding federal office.[5]

Example of a Case Lacking Treason Elements and Evidentiary Requirements Benedict is identified as a person of interest in a treason case. A government agent posing as an enemy spy invites Benedict to dinner, and they discuss the decline of the United States and whether or not they should “do something about it.” At the conclusion of the dinner, Benedict picks up the tab. There- after, Benedict is arrested for treason and refuses to incriminate himself by responding to law enforce- ment interrogation. It is unlikely that Benedict will be convicted of treason in this case. Benedict paid for the government agent’s dinner, which could constitute providing aid to the enemy. However, Bene- dict indicated a hesitancy to take further action, which does not satisfy the requirement that he act with the specific intent or purposely to betray the United States. In addition, only the government agent can testify as to Benedict’s act of paying for a meal because Benedict is asserting his right to remain silent. Therefore, the constitutional requirement that two witnesses testify about the overt act charged as treason is not satisfied. The intent element and evidentiary requirement for treason are lacking, so Be- nedict probably will not be subject to prosecution for and conviction of this offense.

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sedition

Incitement of insurrection or revolution by force or violence.

F I G U R E 1 3 . 1 Crack the Code

1.2 Sedition Sedition criminalizes the incitement of insurrection or revolution by seditious speech or writings and, as such, is subject to the restrictions set forth in the First Amendment. The first federal law prohibiting sedition was the Sedition Act enacted in 1798 and repealed by Thomas Jefferson after his election as president. The current federal statute criminalizing sedition was originally enacted in 1940 and is codified at 18 U.S.C. § 2385. Conspiracy to commit sedition is codified at 18 U.S.C. § 2384. Many states have similar provisions.[6] Like treason, sedition is rarely prosecuted.

The criminal act element required for sedition is either advocating, aiding, teaching, organizing or printing, publishing, or circulating written matter that advocates, aids, or teaches the overthrow of the US government or any state, district, or territory thereof by force or violence.[7] The criminal intent ele- ment required for sedition is the general intent or knowingly to advocate, aid, teach, or organize, or

CHAPTER 13 CRIMES AGAINST THE GOVERNMENT 349

sabotage

Destroying or damaging property or producing defective property that impedes the US national defense or ability to participate in or prepare for war.

the specific intent or purposely to print, publish, or circulate written matter that advocates, aids, or teaches the violent government overthrow.[8] In Yates v. U.S., 354 U.S. 298 (1957), the US Supreme Court held that only advocacy directed at promoting unlawful action could be constitutionally prohib- ited. Advocacy of an “abstract doctrine” was protected by the First Amendment as free speech.[9] Sedi- tion is graded as a felony that can prohibit the defendant from obtaining employment with the US gov- ernment for a minimum of five years postconviction.[10]

Example of Sedition

Mo, a disgruntled immigrant who has been denied citizenship, decides he wants to overthrow the US government and supplant it with a new government that will grant the citizenship privileges he desires. Mo prints up leaflets advocating the overthrow of the government by placing a series of bombs in stra- tegic and specifically named places and passes them out every Saturday in front of varied places known for ethnic diversity throughout the city. Mo has most likely committed sedition in this example. Mo printed written matter advocating the overthrow of the US government by unlawful action, using force and violence. Mo’s intent was to get rid of the current government so that he could gain citizenship, which is specific intent or purposely. Thus Mo’s conduct probably constitutes sedition, and he may be subject to prosecution for and conviction of several counts of this offense.

F I G U R E 1 3 . 2 Diagram of Sedition

1.3 Sabotage Sabotage is criminalized at 18 U.S.C. § 2151 et seq., which includes several different forms of this offense. Many states have similar provisions.[11] In general, sabotage is destroying, damaging, or defect- ively producing (criminal act and harm) property with the specific intent or purposely, general intent or knowingly, or negligently to impede the nation’s ability to prepare for or participate in war and na- tional defense and is detailed in the following United States Codes:

< 18 U.S.C. § 2152 focuses on destroying or damaging harbor-defense property. < 18 U.S.C. § 2153 focuses on destroying or damaging war material, premises, or utilities. < 18 U.S.C. § 2154 focuses on producing defective war materials, premises, or utilities. < 18 U.S.C. § 2155 focuses on destroying or damaging national defense material, premises, or

utilities. < 18 U.S.C. § 2156 focuses on producing defective national defense material, premises, or utilities.

350 CRIMINAL LAW

extraterritorial

Outside the United States.

Both 18 U.S.C. §§ 2153 and 2154 have the attendant circumstance that the conduct occur during war or a national emergency. All the sabotage statutes grade sabotage as a felony, with sentences ranging from five to thirty years’ incarceration in federal prison.

Sabotage is prosecuted more often than treason and sedition, and there have been some extremely interesting criminal sabotage cases, including sabotage indictments against a corporation manufactur- ing defective raincoats for the armed forces during wartime, a sabotage trial for the burning of an ROTC building on the Washington University campus after the Kent State University riots, a sabotage trial for defendants who stole copper wire from a railroad track that was used to ship war materials, and the sabotage indictment of Osama bin Laden for extraterritorial (outside the United States) activity.

Example of Sabotage

Review the example in Section 1 with Mo. Add to this example and imagine that Mo gets no response to his fliers and becomes enraged. He decides to get back at the United States for not allowing him to become a US citizen by harming its national security and exposing it to attack by enemy forces. He thereafter hacks into the computer system used by the US Department of Defense and damages it so that it is out of commission for two weeks. Mo has most likely committed the federal crime of sabot- age. Mo damaged national defense material with the specific intent or purposely to interfere with the nation’s security and defense, which is prohibited under 18 U.S.C. § 2155, whether or not it is wartime or during a national emergency. Thus Mo may be subject to prosecution for and conviction of this offense and could face many years of incarceration for his conduct.

F I G U R E 1 3 . 3 Diagram of Sabotage

CHAPTER 13 CRIMES AGAINST THE GOVERNMENT 351

espionage

Spying on the US government during peace or wartime.

1.4 Espionage Espionage, also known as “spying,” is criminalized at 18 U.S.C. § 792 et seq. Originally part of one of the early versions of the Sedition Act of 1918, the crime of espionage has a colorful history and many interesting criminal prosecutions similar to criminal sabotage. Federal espionage statutes criminalize various acts, depending on whether the conduct occurs during peace or during war. During times of peace, it is criminal espionage to gather, transmit, or attempt to gather or transmit defense information (criminal act) with general intent or knowingly, or with the specific intent or purposely that it will be used to damage the United States or assist any foreign nation.[12] During times of war, it is criminal es- pionage to collect, record, publish, or communicate information about military activities or to attempt any of the foregoing (criminal act) with the specific intent or purposely that the information will be transmitted to the enemy.[13] Espionage is graded as a felony, with potential sentencing of life in prison or the death penalty.[14]

Some interesting criminal espionage cases are the Rosenberg case, where a married couple con- spired to pass nuclear secrets to the Soviets and were later executed pursuant to the death penalty, the Hanssen case, where an FBI agent sold state secrets to Moscow for $1.4 million in cash and diamonds, and the Aragoncillo case, where a White House employee stole intelligence documents from White House computers and e-mailed them to the Philippines.

Example of Espionage

Review the example given in Section 1 with Mo and his computer hacking. Change the example so that before Mo damages the US Department of Defense computer system, he copies some information from different top-secret sites and sends them to operatives in an enemy nation with this message: “I have stolen this information directly from the US Department of Defense. I have also disabled their com- puter system, which will probably take some time to repair. Now is an excellent time to attack the Un- ited States.” He thereafter severely damages the computer system. In this example, Mo has most likely committed both sabotage and espionage. As stated in Section 1, Mo probably committed sabotage when he damaged national defense material with the specific intent or purposely to interfere with the nation’s security and defense. When Mo copied top-secret information and sent it to an enemy nation, along with informing the nation that the US Department of Defense computer system was disabled, he gathered and transmitted information with the specific intent or purposely that it be used to injure the United States. Thus Mo has probably committed both sabotage and espionage and may be subject to prosecution for and conviction of these offenses.

Video of the President Informing the Nation bin Laden Is Dead

President Obama on the Death of Osama bin Laden

President Obama’s speech explaining Osama bin Laden’s death is shown in this video:

View the video online at: http://www.youtube.com/v/ZNYmK19-d0U

352 CRIMINAL LAW

T A B L E 1 3 . 1 Comparing Treason, Sedition, Sabotage, and Espionage

Crime Criminal Act or Harm Criminal Intent Attendant Circumstance(s)

Treason* Levy war, or give aid and comfort to enemies

Most likely, general intent or knowingly to levy war, specific intent or purposely to betray the United States with aid and comfort

Sedition Advocating or printing matter that advocates the forceful or violent overthrow of the US government

General intent or knowingly to advocate, specific intent or purposely when printing matter that advocates the forceful or violent overthrow of the US government

Sabotage Varies: either destroying, damaging, or producing defective property that impedes US defense capabilities

Varies: specific intent or purposely, general intent or knowingly or negligently

Certain conduct must take place during war or a national emergency

Espionage Spying Varies: either general intent or knowingly, or specific intent or purposely that information will be transmitted to the enemy

Certain conduct must take place during war

*Includes the evidentiary requirement of the testimony of two witnesses or the defendant’s confession in open court

K E Y T A K E A W A Y S

< The criminal act element required for treason is levying war against the United States or adhering to the enemy by giving the enemy aid and comfort. The criminal intent element required for treason is most likely the general intent or knowingly to commit an act of levying war, or the specific intent or purposely to betray the United States by giving aid and comfort to enemies. Treason also has the constitutional evidentiary requirement that two witnesses corroborate the acts of treason or that the defendant confess in open court. Treason is graded as a felony.

< The criminal act element required for sedition is advocating, aiding, teaching, organizing, or printing, publishing, or circulating written matter that advocates, aids, or teaches the overthrow of the US government by force or violence. The criminal intent element required for sedition is the general intent or knowingly to advocate, aid, teach, or organize or the specific intent or purposely to print, publish, or circulate written matter that advocates, aids, or teaches the forceful or violent government overthrow. Sedition is graded as a felony.

< The criminal act and harm elements required for sabotage vary but are generally damaging, destroying, or producing defective property that impedes the US national defense or ability to participate in or prepare for war. The criminal intent element required for sabotage also varies but is either specific intent or purposely, general intent or knowingly, or negligent intent, depending on the criminal act. Some forms of sabotage require the attendant circumstance that the conduct occurs during wartime or a national emergency. Sabotage is graded as a felony.

< Espionage is spying (criminal act) with general intent or knowingly, or the specific intent or purposely to transmit information to another nation. Some forms of espionage require the attendant circumstance that the conduct occurs during wartime. Espionage is graded as a felony.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Stephanie stands in front of a mosque and advocates for the overthrow of the US government. Is Stephanie committing sedition? Why or why not?

2. Read U.S. v. Kabat, 797 Fed.2d 580 (1986). Did the US Court of Appeals for the Eighth Circuit uphold the defendants’ convictions for sabotage when, as nuclear protestors, they intentionally damaged US missiles? Why or why not? The case is available at this link: http://scholar.google.com/ scholar_case?case=5276967647790252481&q= sabotage+%222155%22&hl=en&as_sdt=2,5&as_ylo=1992.

3. Read In re Squillacote, 790 A.2d 514 (2002). Did the District of Columbia Court of Appeals hold that conspiracy to commit espionage and attempted espionage are crimes of moral turpitude that could support the defendant’s disbarment? The case is available at this link: http://scholar.google.com/ scholar_case?case=8408409521873710428&q= espionage+%22793%22&hl=en&as_sdt=2,5&as_ylo=2000.

CHAPTER 13 CRIMES AGAINST THE GOVERNMENT 353

USA PATRIOT Act

Federal statutory scheme enacted after September 11, 2001, that strengthens existing laws targeting terrorism or terroristic conduct. Stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.

Department of Homeland Security

Federal agency tasked with enforcing terrorism laws.

2. CRIMES INVOLVING TERRORISM

L E A R N I N G O B J E C T I V E S

1. Identify three federal statutory schemes targeting terroristic conduct. 2. Ascertain the function of the Department of Homeland Security. 3. Define international and domestic terrorism. 4. Identify crimes involving terrorism. 5. Identify potential constitutional challenges to the USA PATRIOT Act.

In recent years, crimes involving terrorism have escalated both in the United States and abroad. The federal government’s response has been to enact comprehensive criminal statutes with severe penalties targeting terroristic conduct. In this section, federal statutes criminalizing acts of terrorism are re- viewed, along with potential constitutional challenges.

2.1 Statutory Schemes Targeting Terrorism Before the September 11, 2001, terrorist attacks on the United States, the primary federal statutes crim- inalizing terrorism were the Omnibus Diplomatic Security and Antiterrorism Act of 1986 and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which was enacted after the Ok- lahoma City bombings. After September 11, 2001, Congress enacted the USA PATRIOT Act, which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.

The USA PATRIOT Act changed and strengthened existing laws targeting terrorism and enhanced US capabilities to prosecute terrorism committed abroad. Specifically, the USA PATRIOT Act in- creases federal jurisdiction over crimes committed outside the United States,[15] creates new crimes in- volving financial support of terrorism or terrorists abroad,[16] and provides for the civil forfeiture of as- sets connected to terrorism.[17] Other fundamental changes incorporated in the USA PATRIOT Act are the expansion of government surveillance capabilities, including telephone interception and scrutiny of e-mails.[18]

In 2002, Congress created the Department of Homeland Security (DHS) under the authority of the Homeland Security Act. DHS enforces provisions of federal laws against terrorism and includes the following agencies: the Secret Service, Customs, the Federal Emergency Management Agency, Un- ited States Coast Guard, Border Patrol, Transportation Security Administration, and Citizenship and Immigration Services.[19]

354 CRIMINAL LAW

international terrorism

Violent acts committed outside the United States that would be criminal if committed in the United States and that appear to be intended to influence a civilian population or government by intimidation or to affect the conduct of government by mass destruction, assassination, or kidnapping.

American national

US citizen or individual owing permanent allegiance to the United States.

domestic terrorism

Violent acts committed inside the territorial jurisdiction of the United States that appear to be intended to influence a civilian population or government by intimidation or to affect the conduct of government by mass destruction, assassination, or kidnapping.

weapon of mass destruction

Any destructive device or weapon designed to cause death or serious bodily injury through the release of chemicals, toxins, or radioactivity.

Criminal Terroristic Conduct

International terrorism is defined as violent acts committed outside the United States that would be criminal if committed in the United States, and that appear to be intended to influence a civilian popu- lation or government by intimidation, or to affect the conduct of government by mass destruction, as- sassination, or kidnapping.[20] Specific crimes such as murder, attempted murder, and conspiracy to commit murder committed against an American national (defined as an American citizen or indi- vidual who owes permanent allegiance to the United States)[21] while outside the United States are graded as high-level felonies with all ranges of sentencing options available, including the death pen- alty.[22] Domestic terrorism is defined exactly the same as international terrorism, except that the vi- olent acts are committed within the territorial jurisdiction of the United States.[23] Prohibited as terror- ism are the use of a weapon of mass destruction, which is defined as any destructive device or weapon designed to cause death or serious bodily injury through the release of chemicals, toxins, or ra- dioactivity,[24] bombings of places of public use—including public transportation systems[25] —financing of terrorism,[26] harboring or concealing terrorists,[27] or attempt or conspiracy to do any of the foregoing. All these crimes are graded as serious felonies.

Example of Terrorism Zacarias Moussaoui, a French citizen, was the only defendant prosecuted for the September 11, 2001, terrorist attacks. Although Moussaoui was not onboard any of the planes that crashed into the World Trade Center, Pentagon, and a Pennsylvania field because he was in federal custody, he was indicted[28] for several counts of conspiracy to commit terrorism and aircraft piracy and pleaded guilty to all charges. Specifically, Moussaoui pleaded guilty to conspiracy to commit acts of terrorism transcending national boundaries, conspiracy to commit aircraft piracy, conspiracy to destroy aircraft, conspiracy to use weapons of mass destruction, conspiracy to murder US employees, and conspiracy to destroy prop- erty of the United States. After the extended trial, during which Moussaoui attempted to represent himself, and the resulting guilty pleas, the jury carefully considered and recommended against the death penalty for Moussaoui, who was thereafter sentenced to life in prison.[29] Moussaoui later moved to withdraw his guilty pleas, but his motion was rejected by the US District Court for the Eastern Dis- trict of Virginia,[30] whose decision was later affirmed by the US Court of Appeals for the Fourth Cir- cuit.[31]

CHAPTER 13 CRIMES AGAINST THE GOVERNMENT 355

F I G U R E 1 3 . 4 Moussaoui Indictment

Constitutional Challenges to the USA PATRIOT Act

Portions of the USA PATRIOT Act provide for enhanced government surveillance capabilities, which are considered a search, so constitutional implications are present pursuant to the Fourth Amend- ment, which prohibits unreasonable search and seizure. In addition, provisions of the Act that prohibit financing terrorists and terrorism have been attacked as violative of the First Amendment’s protection of free speech, free association, and freedom of religion. Litigation involving these challenges is ongo- ing and was filed on behalf of citizens by the American Civil Liberties Union (ACLU).[32]

F I G U R E 1 3 . 5 Diagram of Crimes Involving National Security and Terrorism

356 CRIMINAL LAW

K E Y T A K E A W A Y S

< Three statutory schemes targeting terroristic conduct are the Omnibus Diplomatic Security and Antiterrorism Act of 1986, the Antiterrorism and Effective Death Penalty Act of 1996, and the USA PATRIOT Act.

< The Department of Homeland Security enforces terrorism laws.

< The definition of international terrorism is violent acts committed outside the United States that would be criminal if committed in the United States and that appear to be intended to influence a civilian population or government by intimidation, or to affect the conduct of government by mass destruction, assassination, or kidnapping. The definition of domestic terrorism is exactly the same, except the criminal acts take place within the territorial jurisdiction of the United States.

< Examples of crimes involving terroristic conduct are murder, use of a weapon of mass destruction, bombing places of public use, financing terrorism, harboring a terrorist, and conspiracy or attempt to commit any of the foregoing.

< The USA PATRIOT Act expands government surveillance capabilities, so it is subject to a Fourth Amendment challenge as an unreasonable search, and also prohibits financing terrorism, so it is subject to a First Amendment challenge as a prohibition on free speech, freedom of religion, and freedom to associate.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Joshua shoots and kills Khalid in front of the Pakistani Embassy in Washington, DC. Is this an act of domestic terrorism? Why or why not?

2. Read Humanitarian Law Project v. Reno, 205 F.3d 1130 (2000). Did the US Court of Appeals for the Ninth Circuit uphold 18 U.S.C. § 2339, which prohibits providing material support to terrorists? What were the constitutional challenges to this federal statute? The case is available at this link: http://scholar.google.com/scholar_case?case=6926778734800618484&q= convicted+%222339%22&hl=en&as_sdt=2,5&as_ylo=2000.

3. Read Humanitarian Law Project v. U.S. Department of Justice, 352 F.3d 382 (2003). In this case, the same federal statute was analyzed (18 U.S.C. § 2339) as in Humanitarian Law Project v. Reno, in Exercise 2. Did the US Court of Appeals for the Ninth Circuit uphold the statute in the face of a Fifth Amendment challenge that the statute deprived the defendants of due process of law? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=2048259608876560530&q= convicted+%222339%22&hl=en&as_sdt=2,5&as_ylo=2000.

3. PERJURY, BRIBERY, AND OBSTRUCTION OF JUSTICE

L E A R N I N G O B J E C T I V E S

1. Define the elements of perjury. 2. Identify the issues commonly encountered in a perjury prosecution. 3. Identify a potential defense to perjury. 4. Define perjury by inconsistent statements and subornation of perjury. 5. Analyze perjury and subornation of perjury grading. 6. Define the elements of bribery, identify the primary difficulty in a prosecution for this offense,

and analyze bribery grading. 7. Define the elements of various forms of obstruction of justice, and analyze obstruction of

justice grading.

Crimes against the administration of justice impede the government’s ability to carry out the important functions of prosecuting and convicting criminals, which, in turn, destroys citizens’ confidence that the US legal system is effective in ensuring individual safety and security. This section analyzes perjury, bribery, and obstruction of justice, along with the issues commonly encountered when prosecuting these offenses. Additional statutes criminalizing contempt of court, resisting arrest, and escape are also available for review.

CHAPTER 13 CRIMES AGAINST THE GOVERNMENT 357

perjury

A false material statement made under oath in a judicial or official proceeding or in a certified writing with awareness of the falsity of the statement or the specific intent to deceive.

3.1 Perjury History and Elements Witness testimony is important in a variety of settings. Juries depend on witness testimony to reach a fair and impartial verdict in civil and criminal trials, and grand juries depend on witness testimony to indict defendants for criminal conduct. Thus modern laws of perjury are calculated to ensure that wit- nesses testify truthfully so that justice can be done in each individual case.

In the Middle Ages, the witnesses were the jurors, so the criminalization of false witness testimony did not occur until the sixteenth century when the idea of a trial by an impartial jury emerged. The first common-law prohibition against witness perjury criminalized false testimony, given under oath, in a judicial proceeding, about a material issue. This definition was also incorporated into early American common law.[33]

In modern times, every state prohibits perjury, as well as the federal government.[34] Most state statutes or state common law, in states that allow common-law crimes, define perjury as a false material statement (criminal act), made with the specific intent or purposely to deceive, or the general intent or knowingly that the statement was false, in a judicial or official proceeding (attendant circumstance), under oath (attendant circumstance).[35] The Model Penal Code defines perjury as a false material statement, that the defendant does not believe to be true, made under oath in any official proceeding (Model Penal Code § 241.1(1)). The biggest issues commonly encountered in any perjury prosecution are proving the validity of the oath, the defendant’s criminal intent, the materiality of the false state- ment, and any requirement of corroborative evidence.

Necessity of a Valid Oath

The defendant must be under oath when making the statement at issue in any perjury prosecution, and the oath must be administered by someone of legal authority or someone authorized to take evidence under oath,[36] including a referee, hearing examiner, commissioner, notary, or other person author- ized to take evidence in connection with an official or judicial proceeding.[37] Federally and in many jurisdictions, the false statement can be written, as long as it is certified, such as a signature on an in- come tax return[38] or a report.[39] The Model Penal Code also considers a false written statement per- jury, as long as the document containing the statement is made upon oath or affirmation (Model Penal Code § 241.1(3)). In spite of the attendant circumstance requirement that the statement be made un- der oath, many jurisdictions disallow a defense to a prosecution for perjury based on the assertion that the oath or affirmation was administered or taken in an irregular manner.[40] The Model Penal Code has a similar provision (Model Penal Code § 241.1(3)). In addition, many jurisdictions have a provision that witnesses who refuse to take an oath shall have the option of making a nonreligous affirmation that has the same legal effect as the oath.[41] The Model Penal Code allows for an “oath or equivalent affirm- ation” (Model Penal Code § 241.1(1)).

Perjury Criminal Intent

As stated previously, in many jurisdictions, the defendant must know that a statement is false or must make the statement with the specific intent or purposely to deceive. When the intent requirement is general intent or knowledge that the statement is false, proof that the statement is false could give rise to an inference of intent.[42]

Materiality Requirement

Perjury generally requires a false statement that is material, which means that it substantially affected or could substantially affect the outcome of the proceeding.[43] In many jurisdictions and federally, ma- teriality is a question of fact for the trier of fact, which could be a jury.[44] The Model Penal Code defines materiality as a statement that could have affected the course or outcome of the proceeding and declares that materiality should be a question of law, which means it should be determined by a judge, not a jury (Model Penal Code § 241.1(2)). Typically, it is not a defense to perjury that the defendant did not know that the statement was material.[45] The Model Penal Code has a similar provision (Model Penal Code § 241.1(2)).

Corroborative Evidence Requirement

Some jurisdictions have a requirement of corroborative evidence for perjury, which necessitates the testimony of two witnesses to support a conviction, similar to a treason conviction.[46] The Model Pen- al Code also has this corroborative evidence requirement (Model Penal Code § 241.1(6)).

358 CRIMINAL LAW

Defense of Retraction

Many jurisdictions provide a defense to perjury if the defendant retracts his or her false statement in the course of the same proceeding in which it was made before it becomes manifest that the falsifica- tion will be exposed.[47] The Model Penal Code has a similar provision (Model Penal Code § 241.1(4)).

Example of a Case Lacking an Element of Perjury

Marcus is a witness in a civil suit for damages against Lindsay. Macy’s department store is suing Lind- say for the alleged theft of a diamond necklace. Marcus takes an oath sworn by the court commissioner. He thereafter testifies that he saw Lindsay try on the necklace and then walk out of the store without paying for it. When the Macy’s attorney asks Marcus what he was doing at Macy’s, Marcus responds that he was buying some jewelry as a gift for his wife. In actuality, Marcus was shopping for jewelry as a gift for his girlfriend. Marcus has probably not committed perjury in this case. Marcus is testifying as a witness in a civil rather than criminal trial, but this satisfies the perjury requirement that the testimony be offered during a judicial or official proceeding. Before testifying, Marcus took an oath that was ad- ministered by a court commissioner, also satisfying the perjury requirement that the defendant take an oath administered by someone with the legal authority or authorization to take evidence under oath. Marcus’s statement is false, and he made the statement with knowledge of its falsity, which satisfies the perjury criminal intent requirement. However, Marcus’s statement does not appear to be material to this judicial proceeding because the reason for Marcus’s presence at Macy’s will not affect the outcome of Lindsay’s civil theft trial (usually called the tort of conversion). Thus Marcus is probably not subject to prosecution for and conviction of perjury, based on his testimony in this case.

Example of Perjury

Review the example in Section 3 with Marcus. Change this example so that Marcus testifies that he did not see Lindsay walk out of the Macy’s department store without paying for the necklace because he does not want to admit that he was shopping for jewelry to buy his girlfriend. Anthony, the Macy’s civil trial attorney, cross-examines Marcus, and forces him to admit that he saw Lindsay steal the necklace, and that he was lying previously. Marcus has most likely committed perjury in this example. Marcus made a false statement, under a validly administered oath, in a judicial proceeding, with knowledge of its falsity. Marcus’s statement was material because, if believed, it would have helped exonerate Lindsay in her civil case. In many jurisdictions, the trier of fact, which could be a judge or jury, determines whether or not the statement is material. Marcus’s admission that he was lying is not a retraction that could serve as a defense because it was not made until the lie was about to be exposed. Thus all the ele- ments of perjury appear to be present, and Marcus may be subject to prosecution for and conviction of this offense.

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perjury by inconsistent or contradictory statements

The defendant makes inconsistent statements under oath in a judicial or official proceeding.

subornation of perjury

Procuring another to commit perjury.

F I G U R E 1 3 . 6 Diagram of Defenses to Perjury

Perjury by Inconsistent Statements

Some jurisdictions criminalize perjury by inconsistent or contradictory statements, which is slightly different from criminal perjury.[48] Perjury by inconsistent statements is easier to prove than traditional perjury because the prosecution can simply offer evidence that the defendant made state- ments that are inconsistent, in a judicial proceeding, after taking a validly administered oath. Corrob- orative evidence is not required, and the prosecution does not have the burden of proving that one of the statements is false, just that one or the other was false and not believed by the defendant to be true.[49] The Model Penal Code has a similar provision (Model Penal Code § 241.1(5)).

Example of Perjury by Inconsistent Statements Review the example with Marcus in Section 3. If Marcus’s jurisdiction criminalizes perjury by incon- sistent statements, Marcus could most likely be prosecuted for this offense. Marcus made two incon- sistent statements while under a validly administered oath in Lindsay’s conversion trial, which is a judi- cial proceeding. In Marcus’s criminal perjury by inconsistent statements prosecution, the prosecutor need only offer evidence of the inconsistent statements to the trier of fact. The prosecutor does not have to provide corroborative evidence and does not have the burden of proving that the first statement was false, which will simplify and expedite the trial and may subject Marcus to conviction of this offense.

Subornation of Perjury

Most jurisdictions criminalize subornation of perjury, which is typically procuring another to com- mit perjury (criminal act) with specific intent or purposely, or general intent or knowingly, and factu- ally and legally causing the resulting harm that perjury is in fact committed.[50]

Example of a Case Lacking an Element of Subornation of Perjury Review the example given with Marcus in Section 3. Add to this example and assume that Marcus begs Janelle, another witness in Lindsay’s conversion trial, to say that she did not see him at Macy’s the day Lindsay stole the necklace. Janelle flatly refuses. Marcus has not committed subornation of perjury in this case. Although Marcus tried to procure Janelle to commit perjury, with specific intent or pur- posely, Janelle did not cooperate and did not commit the perjury. Thus the harm element of

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bribery

Offering, conferring, agreeing to confer, or soliciting, accepting, or agreeing to accept a benefit to or from a designated individual for the purpose of influencing decision making.

commercial bribery

Bribery of an employee for the purpose of influencing on-the-job conduct.

pecuniary

Monetary.

subornation of perjury is lacking, and Marcus can be prosecuted only for attempted subornation of per- jury or solicitation to commit perjury, rather than the completed offense.

F I G U R E 1 3 . 7 Comparison of Perjury by Inconsistent Statements and Subornation of Perjury

Perjury Grading

Perjury is generally graded as a felony,[51] with a potential sentencing enhancement for committing perjury that causes another to be sentenced to prison or the death penalty.[52] The Model Penal Code grades perjury as a felony of the third degree (Model Penal Code § 241.1(1)). Subornation of perjury is also graded as a felony.[53] However, because of the procedural difficulties in successfully convicting a defendant of perjury and subornation of perjury, these crimes are not often prosecuted. Nonetheless, the threat of a felony conviction still serves as a deterrent and helps to ensure that witnesses testify truthfully in judicial and official proceedings and give accurate statements in certified writings.

3.2 Bribery Elements Bribery is often compared to extortion, yet extortion is considered a crime of threatened force or viol- ence, while bribery involves financial inducement.[54] At early common law, bribery was the receiving or offering any undue reward by or to any person in a public office in order to influence his or her be- havior in office and induce him or her to act contrary to the known rules of honesty and integrity.[55] In modern times, many criminal statutes define bribery as conferring, offering, agreeing to confer, or soli- citing, accepting, or agreeing to accept any benefit upon a public official (criminal act) with the specific intent or purposely or the general intent or knowingly to form an agreement or understanding that the public official’s vote, opinion, judgment, action, decision, or exercise of discretion will be influenced by the benefit.[56] The crime of bribery is often extended to apply to persons other than public officials, such as employees, agents, or fiduciaries for the purpose of influencing the bribed individual’s on-the- job conduct.[57] This type of bribery is typically called commercial bribery.[58] Bribery can also cover members of a state legislature,[59] any judicial officer, juror, referee, umpire,[60] or witness[61] when a bribe is conferred or offered, asked for, received, or agreed to be received to influence their vote or de- cision. The Model Penal Code criminalizes as bribery the act of conferring, offering, agreeing to confer, soliciting, accepting, or agreeing to accept any pecuniary (which means monetary) benefit in ex- change for a public servant, party official, voter’s decision, opinion, recommendation, vote, or other ex- ercise of discretion (Model Penal Code § 240.1(1)). The Model Penal Code also criminalizes as bribery the act of conferring, offering, agreeing to confer, soliciting, accepting, or agreeing to accept any benefit in exchange for a judicial or administrative officer’s decision, vote, recommendation, or other exercise of official discretion (Model Penal Code § 240.1(2)).

Prosecutorial Burden in Bribery Prosecutions

Similar to perjury, bribery is notoriously difficult to prove, which is a factor prosecutors must consider when deciding whether or not to charge an individual(s) with this offense. The most difficult bribery element to prove beyond a reasonable doubt is the criminal intent element of specific intent or

CHAPTER 13 CRIMES AGAINST THE GOVERNMENT 361

purposely or general intent or knowingly to enter into an agreement that influences the bribed indi- vidual’s decision.

Example of Bribery

Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macy’s de- partment store. Isabel thereafter buys an expensive watch, has it wrapped, walks up to the judge, and offers it to him as a gift. Isabel has most likely committed bribery in this case. Although the judge did not accept Isabel’s “gift,” most states criminalize as bribery the offer of any benefit, so the act of bribery is complete when Isabel proffers the watch. In addition, based on these facts, Isabel’s connection to the judge is only through her perjury prosecution, so her act appears calculated to influence his decision in that case, especially because the watch is expensive and not merely a token. Note that a prosecutor is required to prove beyond a reasonable doubt Isabel’s specific intent or purposely or general intent or knowingly to enter into an agreement with the judge influencing his decision, which is challenging even under the obvious circumstances apparent in this case.

Another Example of Bribery

Review the example with Isabel in Section 3. Add to this example and assume that the judge graciously accepts Isabel’s gift and thereafter rules in her favor, acquitting her of perjury. In this example, both the judge and Isabel have likely committed bribery because most states criminalize the conferring, offering, and accepting and receiving a bribe as the criminal act elements. Thus both Isabel and the judge may be subject to prosecution for and conviction of this offense, and the judge’s acquittal of Isabel will ease the prosecutor’s burden in proving the specific intent or purposely or general intent or knowingly to enter into an agreement corruptly influencing the decision making in this case.

Example of a Case Lacking an Element of Bribery

Isabel notices a gentleman struggling to pay his bill at a local coffee shop. Isabel steps up and charitably offers to pay the gentleman’s bill. Later in the day, while watching her son’s professional baseball game, Isabel notices that the umpire looks familiar. After pondering it for a few minutes, she realizes that he is the same gentleman who could not pay his bill at the coffee shop. Isabel and the umpire probably have not committed bribery in this case. Although Isabel gave the umpire money, and he was the decision maker in her son’s baseball game, Isabel did not give the money, nor did the umpire accept it, with the specific intent or purposely or general intent or knowingly to enter into an agreement influencing the umpire’s decisions. Thus the criminal intent element for bribery appears to be lacking, and neither Isa- bel nor the umpire are subject to prosecution for and conviction of this offense.

Bribery When No Authority to Act Is Present

In many states and under the Model Penal Code, it is no defense to bribery that the individual bribed does not have the authority to act or make the decision that is the subject of the bribe (Model Penal Code § 240.1).[62]

Example of Bribery When No Authority to Act Is Present

Review the example with Isabel and the judge in Section 3. Change this example and assume that the “judge” in question is an imposter who is merely masquerading as a judge to live out a lifelong fantasy. Isabel and the “judge” may still be prosecuted for and convicted of bribery in many jurisdictions and under the Model Penal Code because lack of authority is typically not a defense to bribery under mod- ern statutes criminalizing this offense.

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obstruction of justice

Interfering with the administration of justice by impeding law enforcement procedure, criminal prosecution, or conviction of criminal defendants.

F I G U R E 1 3 . 8 Diagram of Defenses to Bribery

Bribery Grading

Bribery is typically graded as a felony[63] with enhancements for bribery that is carried out with a larger sum of money[64] or bribery that results in someone’s prosecution or incarceration for a felony.[65] When a state legislator[66] or a public official[67] commits bribery, it is typical to disqualify that indi- vidual from his or her office for life, in addition to any other sentence.

3.3 Obstruction of Justice Obstruction of justice takes many forms and is a classic example of an offense against the adminis- tration of justice. States and the federal government exercise broad latitude in enacting statutes that criminalize interference with any aspect of law enforcement procedure or the prosecution and convic- tion of criminal offenders. Some typical examples of obstruction of justice are as follows: giving false identification to a law enforcement officer,[68] impersonating a law enforcement officer,[69] refusing to aid a law enforcement officer when requested,[70] giving false evidence,[71] hiding or concealing oneself and refusing to give evidence,[72] tampering with evidence,[73] and tampering with a witness[74] or jur- or.[75] All these acts are generally supported by specific intent or purposely or general intent or know- ingly. The Model Penal Code prohibits threatening unlawful harm to any person or public servant with purpose to influence his decision, opinion, recommendation, vote, or other exercise of discretion (Model Penal Code § 240.2). Obstruction of justice offenses are most often graded as a misdemeanor or felony, depending on the offense.

CHAPTER 13 CRIMES AGAINST THE GOVERNMENT 363

Example of Obstruction of Justice

Barry Bonds, a baseball player and record-breaking home run hitter for the San Francisco Giants, was found guilty by a federal jury for obstruction of justice, based on his refusal to answer a question dur- ing a grand jury investigation of his steroid use.[76] Bonds was also charged with three counts of per- jury, but the jury could not agree to convict, resulting in a mistrial on all three counts.[77] The perjury charges stemmed from Bonds’s claim while testifying under oath that he never knowingly used ster- oids, never knowingly used human growth hormones, and was never injected with a substance by any- one other than his trainer. The obstruction of justice conviction resulted from Bonds’s evasive answer to the question of whether his personal trainer had ever injected him with steroids.[78] Instead of an- swering yes or no to this question, Bonds began reminiscing about his friendship with the trainer, who went to prison four times in five years for also refusing to testify in the investigation.[79] The perjury charges support the obstruction of justice charge, so the defense asked for a court dismissal of the ob- struction of justice conviction in order to clear the way for an appeal.[80] Note that Bonds’s obstruction of justice charge of evading the question and refusing to give evidence appears easier to prove than the perjury charges, which have a daunting criminal intent requirement, as discussed in Section 3.

The Barry Bonds Verdict Video

Associated Press: Bonds Guilty of Obstruction, Jury Hung on Others

The verdict in the federal Barry Bonds case is explained in this video:

3.4 Additional Crimes against the Government Additional crimes against the government that impair the orderly administration of justice are con- tempt,[81] resisting arrest,[82] and escape.[83] Review the statutes in the endnotes for common elements and grading of these offenses.

View the video online at: http://www.youtube.com/v/KwcxpgJA6o4

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F I G U R E 1 3 . 9 Diagram of Perjury, Bribery, and Obstruction of Justice

CHAPTER 13 CRIMES AGAINST THE GOVERNMENT 365

K E Y T A K E A W A Y S

< Most jurisdictions define perjury as a false material statement (criminal act), made with specific intent or purposely to deceive, or the general intent or knowingly that the statement was false, in a judicial or official proceeding, or in a certified writing (attendant circumstance), under oath (attendant circumstance).

< The issues commonly encountered in any perjury prosecution are proving the validity of the oath, the defendant’s criminal intent, or the materiality of the false statement, and any requirement of corroborative evidence.

< Many jurisdictions provide a defense to perjury if the defendant retracts his or her false statement in the course of the same proceeding in which it was made before it becomes manifest that the falsification will be exposed.

< Perjury by inconsistent statements is when the defendant makes statements that are inconsistent (criminal act), in a judicial proceeding (attendant circumstance), after taking a validly administered oath (attendant circumstance). The prosecution does not need to prove which statement is false for this offense. Subornation of perjury is procuring another to commit perjury (criminal act), with specific intent or purposely, or general intent or knowingly, and factually and legally causing the resulting harm that perjury is actually committed.

< Perjury is generally graded as a felony, with a potential sentencing enhancement for committing perjury that causes another to be sentenced to prison or the death penalty. Subornation of perjury is also graded as a felony.

< Many criminal statutes define bribery as conferring, offering, agreeing to confer, or soliciting, accepting, or agreeing to accept, any benefit upon a public official (criminal act) with the specific intent or purposely, or the general intent or knowingly to form an agreement or understanding that the public official’s decision making will be influenced by the benefit. The crime of bribery is often extended to apply to persons other than public officials, such as employees, agents, or fiduciaries for the purpose of influencing the bribed individual’s on-the-job conduct, which is called commercial bribery. Bribery can also cover members of a state legislature, any judicial officer, juror, referee, umpire, or witness. The primary issue in a bribery prosecution is proving the defendant’s criminal intent to enter into an agreement that influences the bribed individual’s decision making. Bribery is typically graded as a felony, with enhancements for a bribe that is a large sum of money or bribery that results in incarceration for a felony, along with a disqualification from office.

< Some typical examples of obstruction of justice are as follows: giving false identification to a law enforcement officer, impersonating a law enforcement officer, refusing to aid a law enforcement officer when requested, giving false evidence, hiding or concealing oneself and refusing to give evidence, tampering with evidence, and tampering with a witness or juror. All these acts are generally supported by specific intent or purposely, or general intent or knowingly. Obstruction of justice is graded anywhere from a misdemeanor to a felony, depending on the offense.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Susannah, a Hollywood movie star, is a witness in a civil personal injury case. Susannah saw a car accident and is subpoenaed to testify that the defendant was at fault. After the court commissioner administers an oath to tell the truth, Susannah takes the witness stand. She knows the case will generate significant publicity, so Susannah shaves ten years off of her age when asked routine background questions by the prosecutor. If Susannah is thereafter caught in this lie and prosecuted for perjury, what will be the primary issue in her perjury prosecution? How will this issue be resolved?

2. Read State v. Carr, 172 Conn. 458 (1977). In this case, the defendant was convicted of bribery when he paid an undercover detective to refrain from investigating narcotics crimes in the area. The defendant appealed, claiming the jury should have been instructed on the lesser included offense of offering gifts to state police officers. Did the Supreme Court of Connecticut uphold the defendant’s bribery conviction? Why or why not? The case is available at this link: http://scholar.google.com/ scholar_case?case=14705028387089517508&q= %22State+v.+Carr%22&hl=en&as_sdt=2,5.

3. Read People v. Silverberg, 771 N.Y.S. 2d 274 (2003). In this case, the defendant was convicted of witness tampering for a single telephone call he made to an attorney that implied he would send letters to a grievance committee if the attorney did not drop charges against him. Did the Supreme Court of New York uphold the defendant’s conviction? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=3089258849772766127&q= %22witness+tampering%22&hl=en&as_sdt=4,33&as_ylo=2003.

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L A W A N D E T H I C S

Should Former President Clinton Have Been Criminally Prosecuted for Perjury and Obstruction of Justice?

On May 6, 1994, Paula Jones filed a civil lawsuit for sexual harassment against then-president Bill Clinton. The US Supreme Court ruled that the president was not immune to this lawsuit, allowing it to continue.[84] An in- vestigation pursuant to the Jones lawsuit revealed that the president was currently having an affair with a White House intern, Monica Lewinsky.[85] During a Jones lawsuit deposition, the president stated under oath that he did not have sexual relations with Ms. Lewinsky pursuant to the definition of sexual relations given by the questioning attorneys.[86] He also stated that he could not recall ever being alone with Lewinsky at the White House.[87] After the deposition, he was involved in an effort to get Ms. Lewinsky a federal job outside Washington, DC.[88] Although the Jones lawsuit was dismissed, the president was evasive when asked ques- tions regarding the Lewinsky affair during a grand jury investigation instigated by Prosecutor and former Soli- citor General Kenneth Starr. The evening of the grand jury investigation, the president appeared on national TV and admitted, “Indeed, I did have a relationship with Ms. Lewinsky that was not appropriate. In fact, it was wrong. It constituted a critical lapse in judgment and a personal failure on my part for which I am solely and completely responsible.”[89] The House of Representatives later impeached Clinton for perjury and obstruc- tion of justice, based on the statements he made at the grand jury investigation and his conduct during the Jones deposition. After a trial in the Senate, he was acquitted of both counts and thereafter served out his term as president.[90] He was never criminally prosecuted for perjury or obstruction of justice outside the im- peachment procedure, although he was later disbarred for his behavior.[91]

1. Is it ethical to allow the president to avoid a criminal prosecution for perjury and obstruction of justice while he is in office? Why or why not?

Check your answer using the answer key at the end of the chapter.

Clinton Declaration and Admission Videos

Clinton: “I did not have sexual relations with that woman…”

In this video, President Clinton denies that he had sexual relations with Monica Lewinsky:

View the video online at: http://www.youtube.com/v/KiIP_KDQmXs

CHAPTER 13 CRIMES AGAINST THE GOVERNMENT 367

President Clinton Apologizes to the Nation

In this video, President Clinton admits that he had an inappropriate relationship with Monica Lewinsky:

4. END-OF-CHAPTER MATERIAL

Summary

The federal government protects national security by primarily regulating crimes against the United States. One of the only crimes defined in the Constitution, treason, prohibits levying war against the United States, most likely with general intent or knowingly, or providing aid and comfort to the enemy with the specific in- tent or purposely to betray the United States, and is graded as a serious felony with all sentencing options available, including capital punishment. The Constitution specifies the evidentiary requirement that treason be proven by the testimony of two witnesses or the defendant’s confession in open court. Sedition criminalizes the advocating, aiding, organizing, or teaching with general intent or knowingly, or publishing, printing, or cir- culating writings that advocate, aid, or teach with specific intent or purposely the forceful or violent overthrow of the US government and is graded as a serious felony that can prohibit the defendant from holding federal office for five years postconviction. Sabotage is destroying, damaging, or defectively producing specified property with specific intent or purposely, general intent or knowingly, or negligently to impede national de- fense and is graded as a serious felony. Espionage is gathering or transmitting defense information with gen- eral intent or knowingly or the specific intent or purposely to damage the United States or assist any foreign nation, during peace or war, and is graded as a serious felony with all range of sentencing options available, in- cluding capital punishment.

The federal government also primarily regulates terrorism and terroristic acts using the Omnibus Diplomatic Security and Antiterrorism Act of 1986, the Antiterrorism and Effective Death Penalty Act of 1996, and the USA PATRIOT Act. The Department of Homeland Security enforces criminal laws targeting terrorism. Terrorism is vi- olent acts committed inside (domestic) or outside (international) the United States that appear to be intended to influence a civilian population or government by intimidation or to affect the conduct of government by mass destruction, assassination, or kidnapping. Currently prohibited as terrorism or terroristic conduct are murder, use of a weapon of mass destruction, bombing places of public use, financing terrorism, harboring a terrorist, and conspiracy or attempt to commit any of the foregoing. The USA PATRIOT Act expands govern- ment surveillance capabilities, so it is subject to a Fourth Amendment challenge as an unreasonable search, and also prohibits financing terrorism, so it is subject to a First Amendment challenge as a prohibition on free speech, freedom of religion, and freedom to associate.

The state and federal government both criminalize conduct that impedes the administration of justice, includ- ing perjury, bribery, and obstruction of justice. Perjury is typically defined as a false material oral or written statement made under oath or affirmation with the specific intent or purposely to deceive, or the general in- tent or knowingly that the statement is false, in a judicial or official proceeding or in a certified writing. The biggest issues encountered in a perjury prosecution are proving the validity of the oath, the defendant’s crim- inal intent, the materiality of the false statement, and any requirement of corroborative evidence. One defense to perjury is retraction of the false material statement during the same judicial or official proceeding before it becomes manifest that the falsity will be exposed. Many jurisdictions also criminalize perjury committed by in- consistent statements made under oath or affirmation in an official or judicial proceeding and subornation of perjury, which is procuring another to commit perjury with specific intent or purposely. Perjury and suborna- tion of perjury are typically graded as felonies. Bribery is conferring, offering, agreeing to confer, or soliciting,

View the video online at: http://www.youtube.com/v/7r4e5Wg4PDI

368 CRIMINAL LAW

accepting, or agreeing to accept a benefit upon a public official, employee, legislator, participant in a judicial proceeding, or sports official with the specific intent or purposely, or the general intent or knowingly to in- fluence the bribed individual’s decision making. The most difficult bribery element to prove is the criminal in- tent element. Bribery is typically graded as a felony. Obstruction of justice crimes interfere with the orderly ad- ministration of justice. Examples of obstruction of justice offenses are giving false identification to a law en- forcement officer, impersonating a law enforcement officer, refusing to aid a law enforcement officer when re- quested, giving false evidence, hiding or concealing oneself and refusing to give evidence, tampering with evidence, and tampering with a witness or juror, with specific intent or purposely, or general intent or know- ingly. Obstruction of justice is graded as a misdemeanor or felony, depending on the offense.

Y O U B E T H E U S A

You are an assistant US attorney starting your first day on the job. You have been presented with four case files and told to review them and recommend criminal prosecutions based on the facts. Read each one and then decide which crime should be prosecuted. Check your answers using the answer key at the end of the chapter.

1. The defendant, an army intelligence analyst stationed near Baghdad, Iraq, downloaded thousands of classified Iraq and Afghanistan documents and confidential cables and released them to an ex-computer hacker who thereafter exposed them to the public. Which crime should be prosecuted: treason or obstruction of justice? Read about this case at this link: http://coto2.wordpress.com/2011/03/02/ bradley-manning-charged-with-22-crimes-including-capital-offense-aiding-the-enemy.

2. The defendant typed up notes while her husband was analyzing sketches of a top-secret bomb’s design for the purpose of passing the design on to another nation. Which crime should be prosecuted: conspiracy to commit espionage or sabotage? Read about this case at this link: http://law2.umkc.edu/ faculty/projects/ftrials/rosenb/ROS_ACCT.HTM.

3. The defendant, a cosmetic company, paid Chinese officials to obtain direct licensing of its product in China. Which crime should be prosecuted: harboring terrorists abroad or bribery? Read about this case at this link: http://fashionablyjust.com/2011/05/avon-bribery-case-in-china-an-embarrassment.

4. The defendant, a corrections officer, lied to federal law enforcement during an investigation of her role in the assault of an inmate. Which crime should be prosecuted: perjury or obstruction of justice? Read about this case at this link: http://www.stltoday.com/news/local/crime-and-courts/ article_3d7cd11a-8f67-11df-bc07-00127992bc8b.html.

Cases of Interest

< Kawakita v. U.S., 343 U.S. 717 (1952), discusses a treason conviction based on the treatment of American POWs: http://scholar.google.com/scholar_case?case=14270191881160802490&q= %22treason%22&hl=en&as_sdt=2,5.

< U.S. v. Rosen, 445 F.Supp.2d 602 (2006), discusses prosecution under the Espionage Act: http://scholar.google.com/scholar_case?case=18013989744527722325&q= %2218+U.S.C.+793%22&hl=en&as_sdt=2,5.

< Schultz v. Sykes, 638 N.W. 2d 604 (2001), discusses the dismissal of a civil case based on subornation of perjury: http://scholar.google.com/scholar_case?case=3885876526561644390&q=%22subornation +of+perjury%22&hl=en&as_sdt=2,5&as_ylo=2000.

Articles of Interest

< Treason prosecutions in modern times: http://www.nysun.com/editorials/time-of-treason/41533

< The trial of Faisal Shahzad: http://www.csmonitor.com/USA/Justice/2010/1005/Life-sentence-for -Faisal-Shahzad-could-join-shoe-bomber-in-Colorado

< The extension of certain portions of the USA PATRIOT Act: http://www.washingtonpost.com/politics/ patriot-act-extension-signed-into-law-despite-bipartisan-resistance-in-congress/2011/05/27/ AGbVlsCH_story.html

< The famous perjury trial of Alger Hiss: http://www.history.com/this-day-in-history/alger-hiss -convicted-of-perjury

CHAPTER 13 CRIMES AGAINST THE GOVERNMENT 369

< High-profile bribery cases: http://www.reuters.com/article/2010/04/01/bribery-usa-cases-idUSN 0121072820100401

< The criminal prosecution of a sitting president: http://www.justice.gov/olc/sitting_president.htm

Websites of Interest

< The U.S. v. Lindh case: http://notablecases.vaed.uscourts.gov/1:02-cr-00037/Index.html < Information about terrorism: http://www.fema.gov/hazard/terrorism/index.shtm

< Information about the USA PATRIOT Act: http://civilrights.uslegal.com/usa-patriot-act

< The Department of Homeland Security: http://www.dhs.gov/index.shtm

Statistics of Interest

< Terrorism: http://www.fbi.gov/stats-services/publications

< Bribery: http://www.oecd.org/infobycountry/0,3380,en_2649_37447_1_1_1_1_37447,00.html

Answers to Exercises

From Section 1

1. Stephanie has not committed sedition because she did not advocate for the use of force or violence or the commission of an unlawful act. Stephanie’s speech is most likely protected because she might be envisioning a peaceful government overthrow by legitimate means.

2. The US Court of Appeals for the Eighth Circuit upheld the defendants’ convictions for sabotage, stating that the specific intent or purposely to impede the US national defense could be gleaned from the defendants’ conduct in deliberately damaging the missiles.

3. The District of Columbia Court of Appeals upheld the defendant’s disbarment based on convictions for crimes of moral turpitude, and stated that other than treason, no act was more base, vile, or depraved than an intentional act to breach the confidentiality of national defense secrets that have come into the hands of an individual.

Answers to Exercises

From Section 2

1. Whether or not this is an act of terrorism requires more information. Although the killing takes place in front of the Pakistani Embassy within the territory of the United States, this evidence is not enough to prove that Joshua intended his conduct to influence a civilian population or government by intimidation or to affect the government’s conduct by assassination. The location of the shooting could be a pure coincidence, and Joshua could have a nonterroristic motive for the killing, such as a personal hatred or malice toward Khalid.

2. The US Court of Appeals for the Ninth Circuit upheld the statute, which was in place before September 11, 2001, and under AEDPA prohibited domestic material support to terrorists and terroristic organizations. The court held that the statute was not an unconstitutional prohibition on the right of free association or expression under the First Amendment, nor did it violate federal due process under the Fifth Amendment by granting the secretary of state unfettered and unreviewable authority to designate organizations as terroristic. However, the court affirmed the US District Court’s decision that portions of the statute defining “personnel” and “training” were unconstitutionally vague.

3. The US Court of Appeals for the Ninth Circuit upheld the statute against a Fifth Amendment due process challenge by construing the statute to require proof that the defendant act with the general intent or knowledge of the terrorist organization’s designation or of the unlawful activities that caused it to be so designated.

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Answers to Exercises

From Section 3

1. The primary issue in Susannah’s perjury prosecution is the materiality of her false statement made under oath in a judicial proceeding. While Susannah was asked her age during routine background questions, her lie might still be material if her advanced age affected her vision because Susannah is testifying about an important personal observation. In many jurisdictions, the trier of fact, which could be a jury, determines the materiality of this statement.

2. The Supreme Court of Connecticut upheld the defendant’s bribery conviction, holding that offering gifts to state police officers is not a lesser included offense of bribery because it requires specific intent, and bribery under Connecticut law is not a specific intent crime.

3. The New York Supreme Court reversed the defendant’s conviction because the defendant did not have a complaint filed against him, so the “witness” was not about to testify in a judicial proceeding, which is required under the witness tampering statute.

Answer to Law and Ethics Question

1. The criminal prosecution of a sitting president would set a good example for the citizens of the United States, but it would pose an immense disruption to the orderly functioning of the government without a leader or commander in chief of the armed forces and would also expose the nation to a security risk. The US Supreme Court decision to allow a civil lawsuit against the president forced him to spend time away from office attending depositions that were protracted and inordinately time consuming. If the case had not been dismissed, the president would have expended an additional amount of time and effort in preparing for and defending against the Jones lawsuit. A similar and even more time-consuming disruptive process would ensue if a sitting president were to be criminally prosecuted. Not only would the criminal prosecution require a series of procedures from arrest, indictment, and discovery through pretrial motions, hearings, and the trial itself, but if the president were to be convicted, the consequences to the nation would be irreparable. It might not be ethical to spare a sitting president a criminal prosecution when a “normal person” would not be spared, but the ethical concerns are outweighed by the important interests at stake, and most countries would protect their leaders from this type of legal action while in office.

Answers to You Be the USA

1. This conduct aids the enemy, rather than impeding the administration of justice by interfering with law enforcement procedure, criminal prosecution, or conviction, so the proper crime to prosecute is treason.

2. Copying a top-secret design and providing it to another nation is spying, rather than destroying, damaging, or producing defective property to impede national defense, so the proper crime to prosecute is conspiracy to commit espionage.

3. This payment is made for the purpose of influencing a public official’s decision, rather than harboring a terrorist abroad, so the proper crime to prosecute is bribery.

4. The defendant was not under oath when she made the false statement. She was giving false evidence and impeding a law enforcement investigation, so the proper crime to prosecute is obstruction of justice.

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ENDNOTES

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