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Wednesday, June 24, 2009

It's Never to Early to Start Thinking About Exam Questions . . . .

Over at the Marquette Law School Faculty Blog, I've been tracking new criminal cases in the Seventh Circuit since October.  This is the first time that I've ever systematically read a court's advance sheets.  (As an aside, though, I was charmed by the story I heard in law school - perhaps apocryphal - that Arthur Corbin passed away at age 93 in the Yale Law Library while reading the latest contracts advance sheets; ever since, I've thought of that as the ideal way for a law professor to go.  As an aside to the aside, how can it be that Wikipedia lacks an entry on Corbin?  Homer Simpson gets a 5,000-word treatment with 130 footnotes, but there is nothing on one of the true giants of contract law.)

Anyway, my Seventh Circuit blogging project has been an enlightening one.  I've come to appreciate that there are interesting things happening in criminal law outside of sentencing (the normal focus of my scholarly attention).  I've also come to appreciate how firmly established is the norm of judicial minimalism, at least in the sorts of cases I've been reading.  Most of the opinions frame and analyze the issues in thoroughly case-specific ways.  The questions are usually presented in terms of abuse of discretion or sufficiency of the evidence, and the answer is almost always "yes, the court could do this without abusing its discretion" or "yes, the evidence would permit a fact-finder to decide this way."  Only rarely are issues framed as purely legal questions, in which the court ends up saying something of real interest to anyone besides the litigants in the case at hand.  (Harmless error and forfeiture doctrines are also frequently invoked to avoid straightforward legal conclusions.)

Most weeks, though, I am able to find at least one case that tickles my fancy for one reason or another.  Sometimes, this is because the case presents what seems a good fact pattern for my Crim Law class.  So, for those diligent Crim Law profs out there who are already thinking ahead to next year, here are a couple of recent cases that might make good grist for classroom discussion or examination.

First, there is the Case of the Man Who Thought He Was Breaking the Wrong Law

22 U.S.C. § 2778 regulates the export of "defense articles."  Subsection (b) imposes a licensing requirement on exporters of defense articles.  Subsection (c) establishes criminal penalties for "any person who willfully violates any provision of this section."  In 2007, Doli Pulungan concocted a scheme to export certain riflescopes to buyers in Indonesia.  He believed the scheme to be unlawful, but apparently for the wrong reason: he thought he was violating an embargo on arms shipments to Indonesia that actually expired in 2005.  Pulungan lied to business associates about the nature of his scheme and arranged for transshipment through Saudi Arabia in order to disguise the fact that Indonesia was the ultimate destination.  He was later convicted under 2778(c) for exporting the riflescopes without a license. 

So, what exactly is the state-of-mind requirement of 2778(c)?  In other words, how should a court interpret "willfully"?  (In Pulungan, on appeal, the government conceded that 2778(c) defined a specific intent crime that requires knowledge of both the licensing law and the legal status of the items exported as regulated defense articles.) 

Can the government establish the requisite state of mind?  Is the transferred intent doctrine helpful here - in other words, can Pulungan's intent to violate the expired embargo be transferred to 2778?  (The Seventh Circuit strongly suggested the answer was no, but did not offer a square holding to that effect.)

What if 2778(c) were structured as a strict-liability crime - would there be a constitutional problem with Pulungan's conviction?  In this regard, note that 2778 authorizes the President to promulgate a list of the defense articles for which an export license is required.  The list includes "riflescopes manufactured to military specifications," but does not identify any particular types of riflescopes that fall within this category.  Nor has the government published the criteria it uses to determine whether a riflescope has been manufactured to military specifications.

And, apart from 2778, could Pulungan be prosecuted for attempted violation of the Indonesia embargo that expired in 2005?

Second, there is the Case of the Stuffed Drawing Box.  A Wisconsin casino sponsored a drawing for a $10,000 prize.  The rules of the drawing specified various ways that entry forms could be obtained - basically, the more one played blackjack or the slot machines, the more entry forms would be received.  Darwin Moore and Bruce Knutson used an alternative approach: they made literally thousands of photocopies of the official entry form.  By the time of the drawing, Moore and Knutson had their names on more than 60 percent of the entry forms.  With the odds stacked in their favor, they walked off with the $10,000 prize - but not before Moore's ex-girlfriend tipped off the authorities.  Moore and Knutson were convicted of theft.  (This apparently was a federal crime because it was theft from an "Indian gaming establishment.")

But was this really a trespassory taking?  Nothing in official rules expressly forbade photocopied entries.  On the other hand, it's clear that the casino intended the drawing as a way to drum up more business for its blackjack tables and slot machines, and that Moore and Knutson's scheme was contrary to that intent.  Does an implicit intent count for establishing criminal liability?  There may be an interesting analogy to Topolewski v. State, 109 N.W. 1037 (Wis. 1906), a wonderful case of attempted entrapment of a thief that I teach in Criminal Law.

The Seventh Circuit nonetheless affirmed the conviction, relying on the "expressio unius" canon: by listing certain ways that patrons could obtain entry forms, the rules should be interpreted to exclude any other ways (including photocopying).  But, as long as we are invoking canons of statutory construction to interpret the drawing rules, why not also look to the rule of lenity?  (I might note that Crim is the only statutory law class in our first-year curriculum, so I like to use the class as a vehicle for teaching basic statutory interpretation.)

There are also interesting policy questions here about where to draw the line between lawful and unlawful sharp practices, which I usually approach through the false pretenses cases.

Posted by Michael O'Hear on June 24, 2009 at 04:15 PM | Permalink


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