Essentials of Business Law 6th Edition Beatty Solutions Manual

Essentials of Business Law 6th Edition
Beatty Solutions Manual

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Chapter 7
CRIME
Unit 1 – The Legal Environment
Chapter 7 – Crime*
Chapter Overview
Chapter Theme
Criminal behavior extends far beyond the street crime that is fodder for television dramas—white collar
crime has a greater economic impact than street crime. Criminal law differs in important ways from civil
law, the subject of most of the text: the state prosecutes the wrongdoer, the wrongdoer can face lengthy
imprisonment or death, and rights embedded in the Constitution protect individuals accused by the state
of criminal behavior.
Approaching Criminal Law

Criminal law is a popular topic. Students have been exposed to it, primarily through media, for most of
their lives. Their knowledge and interest tend to focus on street crime. The text introduces a balanced
view, spending a number of pages on crimes that harm business and crimes committed by businesses.
When we think of crime, we imagine drug dealers and ban robbers; we do not think of corporate
executives sitting at polished desks. While “street crimes” are serious threats, they take second place to
white-collar crime, which costs society tens of billions of dollars annually.
Criminal law is a balancing act between making society safe and protecting us all from false accusations
and unfair punishment.
Guilty: A judge or jury’s finding that a defendant has committed a crime.
Criminal Procedure: The process by which criminals are investigated, accused, tried, and sentenced.
This chapter has three parts:
• Criminal procedure
• Crimes that harm businesses
• Crimes committed by businesses
7-1 Criminal Procedure

7-1 a Civil versus a Criminal Case
Criminal law: Prohibits and punishes conduct that threatens public safety and welfare.
Prosecution
Although a crime may give the victim a right to sue in civil court, only the government can prosecute a
crime and punish the perpetrator by sending him to prison. The government may also impose a fine, but
it keeps the fine and does not share it with the victim.
Burden of Proof
Beyond a reasonable doubt: The very high burden of proof in a criminal trial, demanding much more
certainty than required in a civil trial.
*Some footnotes added for reference; some footnotes appear in text only.
Chapter 7 Crime 2
In a civil case, the plaintiff must prove her case only by a preponderance of the evidence. But because the
penalties for conviction in a criminal case are so serious, the government must prove its case beyond a
reasonable doubt.
Right to a Jury
Bench trial: There is no jury; the judge decides the case.
A judge or jury decides the facts of a case. A criminal defendant has a right to a trial by jury for any charge
that could result in a sentence of six months or longer. The defendant may demand a jury trial or may
waive that right, in which case the judge will be the fact finder.
Felonies and Misdemeanors

Felony: A serious crime, for which a defendant can be sentenced to one year or more in prison.
Misdemeanor: A less serious crime, often punishable by less than a year in a county jail.
Restitution: A court order that a guilty defendant reimburse the victim for the harm suffered.
A felony is a serious crime, for which a defendant can be sentenced to one year or more in prison. Murder,
robbery, rape, drug dealing, money laundering, wire fraud, and embezzlement are felonies. A
misdemeanor is a less serious crime, often punishable by a year or less in a county jail. Public drunkenness,
driving without a license, and simple possession of one marijuana cigarette are considered misdemeanors
in most states.
Other than prison time, a court can also impose a fine that the government keeps and does not share with
the victim. It can order restitution, meaning that the defendant reimburses the victim for harm suffered.
The government can also limit the rights of convicted criminals in a surprisingly broad manner.
7-1b Conduct Outlawed

Crimes are created by statute (federal and state). The language of criminal statutes must be clear and
definite enough so that:
1. ordinary people can understand what conduct is prohibited, and
2. enforcement cannot be arbitrary and discriminatory
Case: Skilling v. United States1

Facts: Jeffrey Skilling was president and chief operating officer of Enron Corporation, the seventh largest
company in America in terms of revenue. At least, that is what everyone thought. Ten months into
Skilling’s term of office, Enron filed for bankruptcy protection. Its stock, which had been trading at $90
per share, became virtually worthless. A government investigation discovered that company executives
had conducted an elaborate conspiracy to prop up Enron’s stock price by overstating the company’s
finances.
1
561 U.S., 130 S. Ct. 2896 United States Supreme Court, 2010
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Chapter 7 Crime 3
Skilling was charged with a theft of honest services. Traditionally, this federal statute had been used to
prosecute public officials who took bribes or kickbacks. But then prosecutors began to charge employees
under this statute for having generally breached their duty to their employer—and that is what they
decided to do with Skilling. They alleged that his financial shenanigans constituted a theft of honest
services. He was convicted, sentenced to more than 24 years in prison, and ordered to pay $45 million in
restitution. Skilling appealed, arguing that the honest services statute was unconstitutionally vague. The
Fifth Circuit disagreed and affirmed his conviction. The Supreme Court granted certiorari.
Issue: Was the honest services statute unconstitutionally vague?
Excerpts from Justice Ginsburg’s Decision: To satisfy due process, a penal statute must define the
criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is
prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.
According to Skilling, [the honest services statute] meets neither of the two due process essentials. First,
the phrase “the right of honest services,” he contends, does not adequately define what behavior it
bars. Second, he alleges, [the honest services statute’s] standardless sweep allows policemen,
prosecutors, and juries to pursue their personal predilections, thereby facilitating opportunistic and
arbitrary prosecutions.
In the main, prosecutions under this statute involved fraudulent schemes to deprive another of honest
services through bribes or kickbacks. Confined to these paramount applications, [the honest services
statute] presents no vagueness problem. The Government urges us to go further by locating within [this
statute’s] compass another category of proscribed conduct: “undisclosed self-dealing by a public official
or private employee”—i.e., the taking of official action by the employee that furthers his own
undisclosed financial interests while purporting to act in the interests of those to whom he owes a
fiduciary duty.
Reading the statute
to proscribe a wider range of offensive conduct, we acknowledge, would raise the due process concerns
underlying the vagueness doctrine. To preserve the statute without transgressing constitutional
limitations, we now hold that [the honest services statute] criminalizes only the bribe-and-kickback core.
The Government did not, at any time, allege that Skilling solicited or accepted side payments from a
third party in exchange for making these misrepresentations. It is, therefore, clear that Skilling did not
commit honest-services fraud.
Question: What was Skilling’s argument?

Answer: That §1346 should be declared unconstitutional for vagueness.
Question: What is the Court’s response?
Answer: The Court agreed that in its current state, §1346 was unconstitutionally vague; however,
rather than invalidating the statute altogether, the Court limited the statute’s permissible reach. The
Court declared a “new definition” of honest services fraud as including only (1) bribery and (2)
kickback schemes. This new definition excluded such corporation actions as nondisclosure of a conflict
of interest, and general self-dealing.
7-1c State of Mind

Guilty: A judge or jury’s finding that a defendant has committed a crime.
Chapter 7 Crime 4
Voluntary Act
Voluntary Act: a defendant is not guilty of a crime if she was forced to commit it; she is not guilty if she
acted under duress. However, the defendant bears the burden of proving by a preponderance of the
evidence that she acted under duress.
Entrapment
Entrapment: When the government induces the defendant to break the law, the prosecution must prove
beyond a reasonable doubt that the defendant was predisposed to commit the crime.
Conspiracy
Conspiracy: If the police discover a plot to commit a crime, they can arrest the defendants before any
harm has been done. A defendant can be convicted of taking part in a conspiracy if:
• a conspiracy existed,
• the defendants knew about it, and
• some members of the conspiracy voluntarily took a step toward implementing it.
7-1d Gathering Evidence: The Fourth Amendment

Warrant: Written permission from a neutral officer to conduct a search.
Probable cause: It is likely that evidence of crime will be found in the place to be searched.
The Fourth Amendment to the Constitution prohibits the government from making illegal searches and
seizures of individuals, corporations, partnerships, and other organizations. The goal of the Fourth
Amendment is to protect the individual from the powerful state.
Warrant
As a general rule, the police must obtain a warrant before conducting a search. The warrant must specify
with reasonable certainty the place to be searched and the items to be seized. If the police search without
a warranty, they have, in most cases violated the Fourth Amendment. But even a search conducted with
a warrant violates the Fourth Amendment if:
• There was no probable cause to issue the warrant;
• The warrant does not specify with reasonable precision the place to be searched and the things
sought; or
• The search extends beyond what is specified in the warrant
The magistrate will issue a warrant only if there is probable cause. Probable cause means that, based on
all of the information presented, it is likely that evidence of a crime will be found in the place to be
searched.
Searches without a Warrant
There are seven circumstances under which police may search without a warrant:
• Plain View.
• Stop and Frisk.
• Emergencies.
• Automobiles.
• Lawful Arrest.
• Consent.
• No Expectation of Privacy.
Chapter 7 Crime 5
Technology and social media have created new challenges for the courts in determining what is a
reasonable expectation of privacy. For example:
• DNA Tests.
• Heat Seeking Devices.
• Digital Cameras.
• Cellphones.
• Computers.
• Email.
• Websites.
• Chats.
• Social Media.
• GPS Tracking.
Case: Rodriguez v. United States 135 S. Ct. 1609 United States Supreme Court, 2015
Facts: Driving along the Nebraska State Highway just after midnight, Dennys Rodriguez briefly swerved
onto the highway shoulder, which is a violation of Nebraska law. At 12:06 a.m., Officer Morgan Struble
pulled Rodriguez over for erratic driving. Struble questioned both Rodriguez and his passenger and ran a
records check on the car registration and their drivers’ licenses. Struble gave Rodriguez a warning ticket.
At 12:27 a.m., Struble finished explaining the warning to Rodriguez and returned the documents to the
two men. He then asked permission to walk his police dog around Rodriguez’s vehicle, but Rodriguez said
no. On the officer’s instructions, Rodriguez exited the vehicle. At 12:33 a.m., Struble led the dog twice
around the SUV. During the second circuit, the dog signaled the presence of drugs. After searching the
car, Struble found methamphetamine, an illegal drug.
At trial, Rodriguez argued that the dog sniff was illegal because Struble had effectively conducted a stop
and frisk after the traffic stop was over. But Struble did not have a clear and specific reason to suspect
criminal activity for a legal stop and frisk. Both the trial court and the appellate court disagreed with
Rodriguez. The Supreme Court granted certiorari.
Issue: Was the dog sniff legal?
Excerpts from Justice Ginsburg’s Decision:

A seizure for a traffic violation justifies a police investigation of that violation. The seizure remains lawful
only so long as unrelated inquiries do not measurably extend the duration of the stop. An officer, in other
words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But he may not do
so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify
detaining an individual.
Beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary inquiries
incident to the traffic stop. Typically, such inquiries involve checking the driver’s license, determining
whether there are outstanding warrants against the driver, and inspecting the automobile’s registration
and proof of insurance. These checks serve the same objective as enforcement of the traffic code:
Chapter 7 Crime 6
ensuring that vehicles on the road are operated safely and responsibly. A dog sniff, by contrast, is a
measure aimed at detecting evidence of criminal wrongdoing.
Traffic stops are especially fraught with danger to police officers, so an officer may need to take certain
negligibly burdensome precautions in order to complete his mission safely [such as asking the driver to
exit the car. But] the dog sniff could not be justified on the same basis. Highway and officer safety are
interests different in kind from the Government’s endeavor to detect crime in general or drug trafficking
in particular.
For the reasons stated the case is remanded for further proceedings consistent with this opinion.
Question: What are some ordinary inquiries incident to a traffic stop?

Answer: checking driver’s licenses, determining whether there are any outstanding warrants against
the driver, and inspecting the automobile’s registration and proof of insurance.
Question: Is it legally permissible for an officer to make unrelated inquiries pursuant to a traffic stop?
Answer: Yes, as long as they do not extend the duration of the stop.
Question: Was the officer in reasonable fear for his safety?
Answer: No, no threat was apparent.
Question: Do you agree with the Supreme Court’s decision in this case?
Answer: Answers will vary.
Bonus Case: United States v. Jones 2
Facts: The Washington, D.C. police suspected Antoine Jones of being a drug dealer. Without a valid search
warrant, they attached a GPS tracking device to his car. For 28 days, they used the GPS to determine his
whereabouts. Based on this evidence, Jones was convicted of a conspiracy to deal cocaine and was
sentenced to life in prison. The appellate court reversed his conviction on the grounds that the police
should have obtained a warrant before attaching the GPS. The Supreme Court granted certiorari.
Issue: Was the warrantless use of a GPS an illegal search under the Fourth Amendment?
Excerpts from Justice Scalia’s Decision:

The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment.
The Government physically occupied private property for the purpose of obtaining information. We have
no doubt that such a physical intrusion would have been considered a “search” within the meaning of the
Fourth Amendment when it was adopted. [F]or most of our history the Fourth Amendment was
understood to embody a particular concern for government trespass upon the areas (“persons, houses,
papers, and effects”) it enumerates. The judgment of the Court of Appeals for the D.C. Circuit is affirmed.
Question: What language does a car fall under within the text of the Fourth Amendment?
Answer: An “effect.”
2
132 S. Ct. 945 United States Supreme Court, 2012
Chapter 7 Crime 7
Question: For what purpose did the Government physically occupy private property in this case?
Answer: The purpose of obtaining information.
Exclusionary Rule
Exclusionary Rule: Evidence obtained illegally may not be used at trial.
Under the exclusionary rule, evidence obtained illegally (or any information obtained as a result of this
illegal behavior) may not be used at trial.
Discussion: Exclusionary Rule

Many people have a fundamental conceptual problem with understanding the exclusionary rule: it only
applies to incriminating evidence. They would, presumably, support a (non-sensical) rule that excluded
non-incriminating evidence seized during an illegal search, but they believe that if incriminating evidence
is found, how can a search be illegal? It would, of course, serve no constitutional purpose to exclude from
trial evidence that has no bearing on a defendant’s guilt. The issue is to help those who stumble over this
fact understand why courts created the exclusionary rule. One can start by not calling an illegal search a
“technical violation” or “technical mistake.” We do not consider government’s seizure of a private
residence without compensation to be a technical violation of the due process clause, or banning of
peaceful political speech to be a technical violation of the First Amendment.
Question: How can it possibly make sense to exclude legitimate evidence because a police officer made a
mistake in getting a warrant? Aren’t we letting the criminal go free because the constable blundered?
Answer: The Supreme Court has created the exclusionary rule as a judicial remedy to protect all citizens
from potential police abuse. The theory is that if the police know in advance that illegally seized evidence
cannot be used at trial, they will have no motive to obtain such evidence, and will go about their
investigations lawfully.
Question: Does the Supreme Court think that all police want to abuse the average citizen?
Answer: No. What the court has said, by crafting the rule, is that one of the most valuable things there
is about living in a democratic society is the ability to live without fearing the police. We should be able
to sleep at night without worrying that our doors will be smashed in.
Question: I haven’t done anything wrong and am not worried about the police “smashing in my doors in
the middle of the night.” Why should I care about the exclusionary rule?
Answer: There’s a saying—”A liberal is a conservative who has just been arrested; a conservative is a
liberal who has just been mugged”—that, while obviously painting with overbroad strokes, contains an
important kernel of truth. Our relationship to the criminal justice system and our rights as citizens tend
to be grounded on personal experiences. Citizens of the United States, who live under the protection of
a Constitution that guarantees certain individual liberties from governmental intrusion, should not pick-
and-choose which Constitutional guarantees they will support.
Question: The difference between a lawful search or arrest and an unlawful one is often a warrant. What
is so special about a warrant?
Answer. The warrant requirement means that the police must obtain the permission of a neutral person
before conducting most searches or making most arrests. Because the police are charged with
responsibility to investigate crimes, they may have a vested interest in conducting investigations as
aggressively as possible. The warrant requirement means that someone who has no personal interest in
the investigation must first be convinced that there is probable cause to search some premises or make
an arrest.
Question: What might happen if there was no requirement for probable cause?
Answer: For example, police might reason that a certain percentage of students at a large university use
illegal drugs, and that therefore it would be profitable to stake out the campus and search everyone who
Chapter 7 Crime 8
enters it. Even if only a tiny percentage of students are carrying drugs, it might prove a good way to catch
criminals. The problem is that all of the innocent people would be forced to endure periodic searches.
Question: What is wrong with being searched if you don’t have anything to hide?
Answer: Being searched is—by definition—invasive. Some people might not mind it, but there are many
who do not want to feel that they live in a police state. Also, to allow police to search without a warrant
is to give them tremendous power, which some officers might abuse. For example, a particular policeman
might choose to search only minorities, or women, or students, or those living in a particular
neighborhood. Ours is supposed to be a society regulated by law, not by personal, police power.
Question: How many people go free because of the exclusionary rule?
Answer: Very few. As the text reports, most studies have shown that less than 1 percent of those
prosecuted go free because evidence is excluded. Courts deny the great majority of motions to suppress,
and in those few cases where they are allowed, the prosecution generally has additional evidence
sufficient to convict.
There are three exceptions to the exclusionary rule:

• Inevitable Discovery
• Independent Source
• Good Faith Exception
7-1e After Arrest

The Fifth Amendment
The Fifth amendment to the Constitution protects criminal defendants – both the innocent and the guilty
– in several ways:
Due Process: Requires fundamental fairness at all stages of the case.

Due Process – In the context of criminal law, due process sets additional limits. The requirement that the
prosecution disclose evidence favorable to the defendant is a due process rule. Similarly, if a witness says
that a tall white male robbed the liquor store, it would violate due process for the police to place the male
suspect in a lineup with four short women of color.
Self-Incrimination - The Fifth Amendment bars the government from forcing any person to testify against
himself. In other words, the police may not use mental or physical coercion to force a confession or any
other information out of someone.
Miranda Rights - The police cannot legally force a suspect to provide evidence against himself. But
sometimes, under forceful interrogation, he might forget his constitutional rights. In the following
landmark case, the Supreme Court established the requirement that police remind suspects of their rights
– the very same ones that we have all heard so many times on television shows.
Landmark Case: Miranda v. Arizona3

Facts: Ernesto Miranda was a mentally ill, indigent citizen of Mexico. The Phoenix police arrested him
at his home and brought him to a police station, where a rape victim identified him as her assailant.
Two police officers took him to an interrogation room but did not tell him that he had a right to have
a lawyer present during the questioning. Two hours later, the officers emerged with a written
confession signed by Miranda. At the top of the statement was a typed paragraph stating that the
3
384 U.S. 436; 1966 U.S. LEXIS 2817 SUPREME COURT OF THE UNITED STATES, 1966
Chapter 7 Crime 9
confession was made voluntarily “with full knowledge of my legal rights, understanding any statement
I make may be used against me.”
At Miranda’s trial, the judge admitted this written confession into evidence over the objection of
defense counsel. The officers testified that Miranda had also made an oral confession during the
interrogation. The jury found Miranda guilty of kidnapping and rape. He was sentenced to 20 to 30
years’ imprisonment. On appeal, the Supreme Court of Arizona affirmed the conviction. In reaching
its decision, the court relied heavily on the fact that Miranda did not specifically request a lawyer. The
Supreme Court of the United States granted certiorari.
Issues: Was Miranda’s confession admissible at trial? Should his conviction be upheld?
Excerpts from Justice Warren’s Decision: Our holding briefly stated it is this: the prosecution may not
use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination. By custodial interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of his freedom
of action in any significant way. As for the procedural safeguards to be employed, the following
measures are required. Prior to any questioning, the person must be warned that he has a right to
remain silent, that any statement he does make may be used as evidence against him, and that he
has a right to the presence of an attorney, either retained or appointed.
The defendant may waive these rights, provided the waiver is made voluntarily, knowingly and
intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes
to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is
alone and indicates in any manner that he does not wish to be interrogated, the police may not
question him. The mere fact that he may have answered some questions or volunteered some
statements on his own does not deprive him of the right to refrain from answering any further
inquiries until he has consulted with an attorney and thereafter consents to be questioned.
In a series of cases decided by this Court, the police resorted to physical brutality—beating, hanging,
whipping—and to sustained and protracted questioning incommunicado in order to extort
confessions. Only recently in Kings County, New York, the police brutally beat, kicked and placed
lighted cigarette butts on the back of a potential witness under interrogation for the purpose of
securing a statement incriminating a third party.
Unless a proper limitation upon custodial interrogation is achieved there can be no assurance that
practices of this nature will be eradicated in the foreseeable future. Not only does the use of the third
degree involve a flagrant violation of law by the officers of the law, but it involves also the dangers of
false confessions, and it tends to make police and prosecutors less zealous in the search for objective
evidence. As [an official] remarked: ‘If you use your fists, you are not so likely to use your wits.’
[C]oercion can be mental as well as physical, and the blood of the accused is not the only hallmark of
an unconstitutional inquisition. In a serious case, the interrogation may continue for days, with the
required intervals for food and sleep, but with no respite from the atmosphere of domination. It is
possible in this way to induce the subject to talk without resorting to duress or coercion.
Chapter 7 Crime 10
Even without employing brutality, the very fact of custodial interrogation exacts a heavy toll on
individual liberty and trades on the weakness of individuals. In [this case before the Court], the
defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation
procedures. It is obvious that such an interrogation environment is created for no purpose other than
to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of
intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity.
The current practice of incommunicado interrogation is at odds with one of our Nation’s most
cherished principles—that the individual may not be compelled to incriminate himself.
All these policies point to one overriding thought: the constitutional foundation underlying the
privilege is the respect a government—state or federal—must accord to the dignity and integrity of
its citizens. To maintain a fair state-individual balance, to respect the inviolability of the human
personality, our accusatory system of criminal justice demands that the government seeking to punish
an individual produce the evidence against him by its own independent labors, rather than by the
cruel, simple expedient of compelling it from his own mouth.
Miranda was not in any way apprised of his right to consult with an attorney and to have one present
during the interrogation, nor was his right not to be compelled to incriminate himself effectively
protected in any other manner. Without these warnings the statements were inadmissible. The mere
fact that he signed a statement which contained a typed-in clause stating that he had “full knowledge”
of his “legal rights” does not approach the knowing and intelligent waiver required to relinquish
constitutional rights.
Question: What happened to Miranda after the Supreme Court ruling?

Answer: He was retried without the confession but due to witness testimony and other evidence, he
was convicted and sentenced to serve 20 – 30 years in prison. He was paroled in 1972.
Question: What was Miranda’s life after parole?
Answer: He autographed “Miranda cards” and was stabbed to death in an argument in a bar in January
1976.
Right to a Lawyer
As Miranda made clear, a criminal defendant has the right to a lawyer before being interrogated by the
police. The Sixth Amendment guarantees the right to a lawyer at all important stages of the criminal
process. Because of this right, the government must appoint a lawyer to represent, free of charge, any
defendant who cannot afford one.
Indictment
Grand jury: A group of ordinary citizens who decide whether there is probable cause the defendant
committed the crime with which she is charged.
Indictment: The government’s formal charge that the defendant has committed a crime and must stand
trial.
If the grand jury determines that there is probable cause, an indictment issues. Because the grand jury
never hears the defendant’s evidence, it is relatively easy for prosecutors to obtain an indictment.
Chapter 7 Crime 11
Arraignment
At an arraignment a clerk reads the formal charges of the indictment. The defendant must enter a plea to
the charges. At this stage, most defendants plead not guilty.
Plea Bargaining
Plea Bargain: An agreement in which the defendant pleads guilty to a reduced charge, and the prosecution
recommends to the judge a relatively lenient sentence.
In the federal court system, about 97% of all prosecutions end in a plea bargain. Such a high percentage
has led to some concern that innocent people may be pleading guilty to avoid the risk of tough mandatory
sentences. A judge need not accept the bargain, but usually does.
Discovery
If the defendant does not plead guilty, the prosecution is obligated to hand over any evidence favorable
to the defense that the defense attorney requests. The defense has a more limited obligation to inform
the prosecution.
Trial and Appeal

When there is no plea bargain, the case must go to trial. The mechanics of a criminal trial and appeal are
similar to those for a civil trial, described in Chapter 6, on dispute resolution.
Double Jeopardy
Double jeopardy: A criminal defendant may be prosecuted only once for a particular criminal offense.
The prohibition against double jeopardy means that a defendant may be prosecuted only once for a
particular criminal offense. The purpose is to prevent the government from destroying the lives of
innocent citizens with repetitive prosecutions.
Discussion: Double Jeopardy

Question: What does double jeopardy mean?
Answer: A criminal defendant may be prosecuted only once for a criminal offense.
Question: I recall reading about cases where people were prosecuted by a state and by the federal
government for the same offense. Why doesn’t that violate double jeopardy?
Answer: To qualify as double jeopardy a second prosecution must be done by the same sovereign
that prosecuted the first. There is no prohibition against a different sovereign prosecuting the same
defendant, based on the same incident. In the Rodney King trials in Los Angeles, the police officers
were first charged by the state of California. Their acquittal led to the 1992 Los Angeles riots. The
United States then prosecuted the officers for civil rights violations and obtained convictions against
two. Because the United States is a different sovereign from California, there was no double jeopardy
problem.
Question: Is that fair?
Answer: Some argue that it is not fair; it is, however, legal.
Question: O. J. Simpson was acquitted after the most highly publicized trial in history, yet he was
then sued by the families of the victims. Didn’t that violate double jeopardy?
Answer: No. The families filed a civil lawsuit. That is not a criminal prosecution and there is no double
jeopardy issue.
Chapter 7 Crime 12
Punishment
The Eighth Amendment prohibits cruel and unusual punishment. Courts are generally unsympathetic to
claims under this provision. For example, the Supreme Court has ruled that the death penalty is not cruel
and unusual as long as it is not imposed in an arbitrary or capricious manner.4
Another important case under the Eighth Amendment involved California’s “three strikes” law, which
dramatically increases sentences for repeat offenders. Gary Ewing, on parole from a nine-year prison
term, was prosecuted for stealing three golf clubs worth $399 each. Because he had prior convictions, his
crime, normally a misdemeanor, was treated as a felony. Ewing was convicted and sentenced to 25 years
to life. The Supreme Court ruled that this sentence was not cruel and unusual and that the three strikes
law was a rational response to a legitimate concern about crime.5
The Eighth Amendment also outlaws excessive fines. Forfeiture is the most controversial topic under this
clause. Forfeiture is a civil law proceeding that is permitted by many different criminal statutes. Once a
court has convicted a defendant under certain criminal statutes—such as a controlled substance law—
the government may seek forfeiture of property associated with the criminal act.
To determine if forfeiture is fair, courts look at three factors:
• Whether the property was used in committing the crime
• Whether it was purchased with proceeds from illegal acts, and
• Whether the punishment is disproportionate to the defendant’s wrongdoing
7-2 Crimes That Harm Businesses (And Their Customers)

Businesses must deal with four major crimes: larceny, fraud, arson, and embezzlement.
7-2a Larceny
Larceny: the trespassory taking of personal property with the intent to steal it.
7-2b Embezzlement
Embezzlement: The fraudulent conversion of property already in the defendant’s possession.
7-2c Fraud
Fraud: Deception for the purpose of obtaining money or property.
Fraud refers to a variety of crimes, all of which involve the deception of another person for the purpose
of obtaining money or property. Types of fraud include wire and mail fraud, insurance fraud, Internet
fraud, auctions, identity theft, and phishing.
Wire Fraud and Mail Fraud

These are additional federal crimes involving the use of interstate mail, telegram, telephone, radio or
television to obtain property by deceit.
4
Gregg v. Georgia, 428 U.S. 153 (S. Ct. 1976).
5
Ewing v. California, 538 U.S. 11 (S. Ct. 2003).
Chapter 7 Crime 13
Insurance Fraud
One example is a “swoop and squat” fraud scheme in which the perpetrator purposely causes an accident
so that they can collect on the insurance. Often, a dishonest doctor is part of the team.
Internet Fraud
The Internet’s anonymity8 and speed facilitate fraud. Common scams include advance fee scams, the sale
of merchandise that is either defective or nonexistent, the so-called Nigerian letter scam, billing for
services touted as “free,” and so on. Other common forms are:
Auctions – Shilling is an increasingly popular online auction fraud. Shilling means that a seller either bids
on his own goods or agrees to cross-bid with a group of other sellers. It is prohibited because the owner
drives up the price of his own item by bidding on it.
Identity Theft – This is one of the scariest crimes against property. Thieves steal the victim’s social security
number and other personal information such as bank account numbers and mother’s maiden name, which
they use to obtain loans and credit cards. Victims have the difficult task of proving that they were not
responsible for the debts and they may even find themselves unable to obtain a credit card, loan, or job.
Phishing
Phishing: A fraudster sends a message directing the recipient to enter personal information on a website
that is an illegal imitation of a legitimate site.
Spear phishing: Phishing that involves personalized messages that look as if they have been sent by
someone the victim knows.
7-3d Arson
Arson: The malicious use of fire or explosives to damage or destroy real estate or personal property.
7-3e Hacking
Hacking: Gaining of unauthorized access to a computer system.
Hacking is a crime under the federal Computer Fraud and Abuse Act of 1986 (CFAA).6 The CFAA prohibits:
• Accessing a computer without authorization and obtaining information from it,
• Computer espionage,
• Theft of financial information
• Theft of information from the U.S. government,
• theft from a computer,
• Computer fraud,
• Intentional, reckless, and negligent damage to a computer,
• Trafficking in computer passwords, and
• Computer extortion
Courts are now in the process of figuring out how to interpret the CFAA. In the following case, a former
employee clearly violated his company’s policies, but did he commit a crime? You be the judge.
6
18 U.S.C. Section 1030.
Chapter 7 Crime 14
You Be The Judge: United States v, Nosal7

Facts: David Nosal worked for an executive search firm, Korn/Ferry (K/F). Shortly after he left the
company to start a competing business, he convinced some of his former colleagues to log into the
company’s confidential database and give him customer names and contact information. K/F had
authorized the employees to access the database, but not to disclose confidential client information to
outsiders.
The government charged Nosal with aiding and abetting his former colleagues in violating a provision of
the CFAA that prohibits employees from exceeding their authorized access to a computer with intent to
defraud. The trial court granted Nosal’s motion to dismiss. The government appealed.
You Be the Judge: Did Nosal commit a crime when he aided and abetted others in violating a workplace
policy on computer use?
Argument for the Defendant: This provision of the CFAA can mean one of two things: (1) either it is a
crime to access unauthorized data or, (2) in a more expansive view, it can apply to anyone who is legally
entitled to access data, but who then uses this data in an unauthorized manner. That is what happened
here. The K/F employees were authorized to access the confidential database, but they were not
permitted to send it to Nosal.
Congress enacted the CFAA primarily to address the growing problem of computer hacking, i.e.,
“intentionally trespassing into someone else’s computer files.” But, under the government’s view,
everyone who uses a computer in violation of company policy, which may well include everyone who
uses a computer, would be a criminal. According to the government, if an employer keeps certain
information in a separate database that can be viewed on a computer screen, but not copied or
downloaded and an employee copies the information to a thumb drive, he could be charged with a
crime.
The computer gives employees new ways to procrastinate, by g-chatting with friends, playing games,
shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use
policies. Under the broad interpretation of the CFAA, such minor violations would become federal crimes.
While it is unlikely that you will be prosecuted for watching cat videos on your work computer, you could
be. How will an employee know the difference between a minor personal use and a criminal act?
Employees who call family members from their work phones will become criminals if they send an email
instead. They can read the sports section of USA Today at work, but they’d better not visit ESPN.com. And
Sudoku enthusiasts should stick to printed puzzles, because visiting www.dailysudoku.com from their work
computers might give them more than enough time to hone their Sudoku skills behind bars.
Facebook prohibits its users from sharing login information. Are we going to cart every violator off to
prison? The terms of service on dating websites prohibit inaccurate or misleading information. If you
describe yourself as “tall, dark and handsome,” when you are actually short and homely, could you end up
wearing a handsome orange prison jumpsuit?
7
676 F.3d 854 United States Court of Appeals for the Ninth Circuit, 2012.
Chapter 7 Crime 15
Argument for the Government: This statute explicitly requires an intent to commit fraud. Therefore, it
has nothing to do with reading ESPN.com, playing Sudoku, checking email, or fibbing on dating sites.
Instead, the K/F employees knowingly exceeded their access to a protected company computer and they
did so with an intent to defraud.
This distinction is not complicated. A bank teller is entitled to access money for legitimate banking purposes,
but not to take the bank’s money for himself. A new car buyer may be entitled to take a vehicle around
the block on a test drive but not to drive it to Mexico on a drug run.
Holding: Judgment for Nosal.
Question: What does CFAA stand for?

Answer: The Computer Fraud and Abuse Act.
Question: What is hacking?
Answer: The gaining of unauthorized access to a computer system.
7-3 Crimes Committed by Business

A corporation can be found guilty of a crime based on the conduct of any of its agents, who include anyone
undertaking work on behalf of the corporation. An agent can be a corporate officer, an accountant hired
to audit a statement, a sales clerk, or almost any other person performing a job at the company’s request.
If an agent commits a criminal act within the scope of his employment and with the intent to benefit
the corporation, the company is liable. This means that the agent himself must first be guilty.
7-3a Making False Statements

It is illegal to make false statements or engage in a cover up during any dealings with the United States
government.
7-3b Workplace Crimes

The most important statute regulating the workplace is the federal Occupational Safety and Health Act
of 1970 (OSHA), which sets safety standards for many industries.
7-3c RICO
Racketeer Influenced and Corrupt Organizations Act (RICO): A powerful federal statute, originally aimed
at organized crime, now used in many criminal prosecutions and civil lawsuits.
Racketeering acts: Any of a long list of special crimes, such as embezzlement, arson, mail fraud, wire fraud,
and so forth.
RICO is one of the most controversial statutes ever written. Congress passed the law primarily to prevent
gangsters from taking money they earned illegally and investing it in legitimate businesses. RICO prohibits
u sing two or more racketeering acts to accomplish any of these goals: (1) investing in or acquiring
legitimate businesses with criminal money; (2) maintaining or acquiring businesses through criminal
activity; or (3) operating businesses through criminal activity.
It is a two-step process to prove that a person or an organization has violated RICO.
Chapter 7 Crime 16
• The prosecutor must show that the defendant committed two or more racketeering acts, which are
any of a long list of specified crimes: embezzlement, arson, mail fraud, wire fraud, and so forth. Thus,
if a gangster ordered a building torched in January and then burned a second building in October, that
would be two racketeering acts. If a stockbroker told two customers that Bronx Gold Mines was a
promising stock, when she knew that it was worthless, that would be two racketeering acts.
• The prosecutor must then show that the defendant used these racketeering acts to accomplish one
of the three purposes listed above. If the gangster committed two arsons and then used the insurance
payments to buy a dry cleaning business, that would violate RICO. If the stockbroker gave fraudulent
advice and used the commissions to buy advertising for her firm, that would violate RICO.
7-3d Money Laundering

Money laundering: Using the proceeds of criminal acts either to promote crime or conceal the source of
the money.
Discussion: Money Laundering Cases and Prosecutorial Ethics

Federal prosecutors have sharply increased the number of people they charge with money laundering.
Because more people are funneling drug money out of the country? Not necessarily, argue defense
lawyers. They say that prosecutors are now routinely adding on money laundering charges to cases that
used to be routine fraud cases. For example, a medical supply company bills the federal government for
prosthetic devices that it never delivered. Formerly, that would have been a simple Medicare fraud case.
Today, though, it is likely to be a Medicare fraud and money laundering case. Prosecutors in such a case
argue that the money obtained illegally from the federal government is used to invest in and maintain a
legitimate business, and that is money laundering. If the medical supply company uses money obtained
from fraudulent bills to pay the rent on its company headquarters, it has laundered the money.
What is the big deal? Time in prison. A simple fraud conviction typically results in a sentence of five
years or less; a money laundering conviction can increase the penalty to 20 years in prison. In addition, a
prosecutor who tacks on a money laundering charge puts extra pressure on the defendant to plea bargain,
because the penalty for a conviction could be so high.
Defense lawyers claim that this practice is unethical, in that Congress intended stiff money laundering
penalties for big-time drug dealers who gravely damage our country by importing harmful substances. A
small business dealer who cheats once or twice should not be treated like a drug kingpin. Prosecutors
respond that they are ethically required to charge the most serious provable crime, and that Congress
wrote the money laundering statute broadly in order to discourage all fraud, not just drug-related
offenses.
Bonus Case: United States v. Kennard 8
Facts: The reverend Abraham Kennard bilked hundreds of churches out of millions of dollars through a
phony grant scheme. Abraham created the Network International Investment Corporation and then
approached churches and other nonprofits with an offer: for every $3,000 in membership fees that an
organization paid to the Network, the Network would award $500,000 in grants. Abraham told investors
that the grants were possible because he had secured wealthy investors who would provide financing,
and that the Network expected to earn a profit from its Christian resorts. More than 1,600 churches and
other nonprofits paid Abraham over $8.7 million.
8 472 F.3d 851, 11th Circuit Court of Appeals, 2006.

Chapter 7 Crime 17
Abraham deposited the money into an escrow account in the name of his lawyer, and then transferred
the money into another account in the name of Promotional Times International, Ltd., which was
controlled by Abraham’s brother Laboyce Kennard.
The investors never received their money and Abraham was found guilty of various crimes. Laboyce was
found guilty of money laundering. He appealed, arguing there was insufficient proof that he knowingly
laundered money.
Issue: Was there sufficient evidence that Laboyce knowingly laundered money?
Holding: Yes, conviction affirmed. Laboyce claims that there was not enough evidence for a jury to find
beyond a reasonable doubt either the existence of a criminal agreement or his knowing participation in
it.
To convict Laboyce on the money laundering conspiracy charge, the prosecution had to prove that some
agreement existed to launder the proceeds of Abraham’s fraud scheme, and that Laboyce knowingly
participated in that agreement. The extent of Laboyce’s knowledge of the details in the conspiracy does
not matter if the prosecution can show that he knew the essential objectives of the conspiracy.
There was sufficient evidence to prove that Laboyce knowingly participated in the agreement to launder
the proceeds from Abraham’s fraud. Laboyce set up the Promotional account and made large deposits to
that account of cashier’s checks from Abraham and checks drawn on the escrow account. Laboyce made
most of the withdrawals from the Promotional account including cashier’s checks made payable to
Abraham.
Laboyce was also involved in Network events. For example: Laboyce went with Abraham to a Network
meeting in Charlotte, North Caroline at which Abraham gave Network members fake checks instead of
the promised grant money; Laboyce videotaped Abraham at a fake groundbreaking ceremony for a
Network resort which was used to hold off member complaints; Laboyce “worked security” at a Network
meeting where Abraham told the members their grants would be delayed again; and Laboyce was present
at a meeting where Abraham told him that an FBI investigation of the Network led to a seizure of the
escrow account.
This evidence, according to the court, was enough for a jury to find beyond a reasonable doubt that
Laboyce knowingly participated in the conspiracy to launder the proceeds of the fraud.
Question: What is money laundering?

Answer: Money laundering is taking the profits of certain crimes and either (1) using the money to
promote crime or (2) attempting to conceal the source of the money.
Question: How did the money laundering occur here?
Answer: Payments received from members based on a fraudulent investment scheme was passed
through two accounts to hide their source and relationship to Abraham.
Question: If Laboyce did not commit the fraud, what crime did he commit?
Answer: Laboyce was charged with conspiring to commit money laundering.
Question: How is that different than money laundering?
Answer: Conspiracy to launder money involves an agreement to launder money, and Laboyce’s
knowing and voluntary participation in that agreement.
Chapter 7 Crime 18
7-3e Hiring Illegal Workers

It is illegal to knowingly employ unauthorized workers.
7-3f Foreign Corrupt Practices Act

Under the Foreign Corrupt Practices Act (FCPA), it is illegal for any employee or agent of a U.S. company
(and some foreign companies) to give anything of value to any foreign official for purposes of influencing
an official decision (unless the payment was merely intended to facilitate a routine governmental action.)
The FCPA has two principal requirements:

• Bribes: The statute makes it illegal for U.S. companies and citizens (& some others) to bribe
foreign officials to influence a government decision. A promise to pay a bribe violates the statute.
• Recordkeeping: All publicly traded companies – whether they engage in international trade or
not -- must keep accurate and detailed records to prevent hiding or disguising bribes. These
records must be available for inspection by U.S. officials. However, note that a grease or
facilitating payment for a routine governmental action is permitted.
7-3g Other Crimes

Other crimes may be found throughout the text. Recent federal and state statutes are designed to punish
those who harm the environment.
7-3h Punishing a Corporation

Fines
The most common punishment for a corporation is a fine. This makes sense in that the purpose of a
business is to earn a profit, and a fine, theoretically, hurts. But most fines are modest by the present
standards of corporate wealth.
Compliance Programs
Federal Sentencing Guidelines: The detailed rules that judges must follow when sentencing defendants
convicted of federal crimes.
Compliance program: A plan to prevent and detect improper conduct at all levels of the company.
Chapter 7 Crime 19
The Federal Sentencing Guidelines are the detailed rules that judges must follow when sentencing
defendants convicted of crimes in federal court. The guidelines instruct judges to determine whether, at
the time of the crime, the corporation had in place a serious compliance program, that is, a plan to prevent
and detect criminal conduct at all levels of the company.
Chapter Conclusion
Crime has an enormous impact on society. Companies are victims of crimes, and sometimes they commit
criminal actions. Successful business leaders are ever-vigilant to protect their company from those who
wish to harm it, whether from the inside or out.
Multiple Choice Questions

1. In a criminal case, which statement is true?
A. The prosecution must prove the government’s case by a preponderance of the evidence.
B. The criminal defendant is entitled to a lawyer even if she cannot afford to pay for it herself.
C. The police are never allowed to question the accused without a lawyer present.
D. All federal crimes are felonies.
Answer: B.
2. The police are not required to obtain a warrant before conducting a search if:
A. a reliable informant has told them they will find evidence of a crime in a particular location.
B. they have a warrant for part of a property and another section of the property is in plain view.
C. they see someone on the street who could possibly have committed a criminal act.
D. someone living on the property has consented to the search.
Answer: D.
3. Under the exclusionary rule, which statement is true?

A. Evidence must be excluded from trial if the search warrant is defective, even if the police believed
at the time of the search that it was valid.
B. The prosecution cannot use any evidence the police found at the site of the illegal search but it
can use any evidence the police discover elsewhere as a result of the illegal search.
C. Any statements a defendant makes after arrest are inadmissible if the police do not read him his
Miranda rights.
D. If a conviction is overturned because of the exclusionary rule, the prosecution is not allowed to
retry the defendant.
Answer: C.
4. Henry asks his girlfriend, Alina, to drive his car to the repair shop. She drives his car all right—to Las
Vegas, where she hits the slots. Alina has committed:
A. fraud
Chapter 7 Crime 20
B. embezzlement
C. larceny
D. a RICO violation
Answer: C.
5. Which of the following elements is required for a RICO conviction?

A. Investment in a legitimate business
B. Two or more criminal acts
C. Maintaining or acquiring businesses through criminal activity
D. Operating a business through criminal activity
Answer: B.
Case Questions
1. You Be the Judge: WRITING PROBLEM. An undercover drug informant learned from a mutual
friend that Philip Friedman “knew where to get marijuana.” The informant asked Friedman three
times to get him some marijuana, and Friedman agreed after the third request. Shortly thereafter
Friedman sold the informant a small amount of the drug. The informant later offered to sell Friedman
three pounds of marijuana. They negotiated the price and then made the sale. Friedman was tried for
trafficking in drugs. He argued entrapment. Was Friedman entrapped?
Argument for Friedman: The undercover agent had to ask three times before Friedman sold him a
small amount of drugs. A real drug dealer, predisposed to commit the crime, leaps at an opportunity
to sell. If the government spends time and money luring innocent people into the commission of
crimes, all of us are the losers.
Argument for the Government: Government officials suspected Friedman of being a sophisticated
drug dealer, and they were right. When he had a chance to buy three pounds, a quantity only a dealer
would purchase, he not only did so, but bargained with skill, showing a working knowledge of the
business. Friedman was not entrapped—he was caught.
Answer: Friedman argued entrapment, claiming that there was no evidence of his predisposition to
traffic in drugs. The Alabama Supreme Court ruled against him. The court noted that Friedman
admitted to occasional use of marijuana, that he had been able quickly to locate marijuana to resell
to the agent, and that he showed a sophisticated knowledge of the drug when bargaining over the
price of three pounds. The court held that there was no evidence of entrapment. Friedman v. State,
654 So.2d 50, 1994 Ala. Crim. App. LEXIS 179 (1994).
2. Conley owned video poker machines. Although they are outlawed in Pennsylvania, he placed them in
bars and clubs. He used profits from the machines to buy more machines. Is he guilty of money
laundering?
Answer: Yes. It is money laundering to take the proceeds of illegal acts and either conceal them or,
as he did, use them to promote additional crimes.
Chapter 7 Crime 21
3. Shawn was caught stealing letters from mailboxes. After pleading guilty, he was sentenced to two
months’ in prison and three years’ supervised release. One of the supervised release conditions
required him to stand outside a post office for eight hours wearing a signboard stating, “I stole mail.
This is my punishment.” He appealed this requirement on the grounds that it constituted cruel and
unusual punishment. Do you agree?
Answer: The appeals court affirmed the sentence on the grounds that it did not violate standards of
decency. United States v. Gementera, 379 F.3d 596 (2004).
4. While driving his SUV, George Xinos struck and killed a pedestrian. He then fled the scene of the
crime. A year later, the police downloaded information from his car’s onboard computer which they
were able to use to convict him of the crime. Should this information have been admissible at trial?
Answer: A California court ruled that Xinos did have a reasonable expectation of privacy and the
data was not admissible in court. because the computer had simply been recording his movements
on a public road. People v. Xinos, 192 Cal. App. 4th 637 (Cal. App. 6th Dist. 2011).
5. Police arrested Hank on a warrant issued in a neighboring county. When they searched him, the
police found drugs and a gun. Only later did the police discover that when they had used the
warrant, it was not valid because it had been recalled months earlier. The notice of recall had not
been entered into the database. Should the evidence of drugs and a gun be suppressed under the
exclusionary rule?
Answer: No. The police conduct at issue here comes under one of the exceptions to the
exclusionary rule –the good faith exception. The police acted under what appeared to be a valid
warrant, and there was no indication that it had been recalled.
Discussion Questions
1. Under British law, a police officer must now say the following to a suspect placed under arrest: “You
do not have to say anything. But if you do not mention now something which you later use in your
defense, the court may decide that your failure to mention it now strengthens the case against you.
A record will be made of anything you say and it may be given in evidence if you are brought to trial.”
What is the goal of this British law? What does a police officer in the United States have to say, and
what difference does it make at the time of an arrest? Which approach is better?
2. ETHICS You are a prosecutor who think it is possible that Naonka, in her role as CEO of a brokerage
firm, has stolen money from her customers, many of whom are not well-off. If you charge her and her
company with RICO violations, you know that she is likely to plea bargain because otherwise her assets
and those of the company may be frozen by the court. As part of the plea bargain, you might be able
to get her to disclose evidence about other people who might have taken part in this criminal activity.
But you do not have any hard evidence at this point. Would such an indictment be ethical? Do the
ends justify the means? Is it worth it to harm Naonka for the chance of protecting thousands of
innocent investors?
Chapter 7 Crime 22
3. Officer Trottier stopped Marie Winfield for driving 20 miles over the speed limit. He then became
suspicious because her son would not make eye contact and she was eating a Powerbar in a
“hurried manner.” The officer asked for and Winfield granted him permission to search her car.
During the search, he found a letter, which he read. Has he committed an illegal search?
Answer: The court ruled that it was illegal – permission to search a car does not mean permission to
read a letter. Winfield v. Trottier, 710 F.3d 49 (2d Cir. 2013).
4. Mickle pleaded guilty to rape. The judge sentenced him to prison for five years and also ordered that
he undergo a vasectomy. Was this cruel and unusual punishment?
Answer: The appeals court ruled that this sentence was cruel and unusual. Although the operation in
itself is not cruel (indeed, many men voluntarily undergo it), when imposed as punishment, it is
degrading and in that sense cruel. It is also an unusual punishment. Mickle v. Henrichs, 262 F. 687
(1918).
5. Ramona was indicted on charges of real estate fraud. During a legal search of her home, the police
found a computer with encrypted files. Would it be a violation of her Fifth Amendment right against
self-incrimination to force her to unencrypt these files?
Answer: The courts are divided on this topic. This court did order Fricosu to unencrypt the files on
the theory that she was already incriminated because the police knew the laptop was hers. United
States v. Fricosu, 841 F. Supp. 2d 1232 (D. Colo. 2012). But a different court ruled that a man suspected
of having child pornography on his computer did not have to unencrypt the files. United States v. Doe,
670 F.3d 1335 (11th Cir. Fla. 2012)
6. Suppose two people are living together: the suspect and a tenant. If the tenant consents to a police
search of the premises, then the police are not required to first obtain a warrant. What if the
suspect and the tenant disagree, with the tenant granting permission while the suspect forbids the
police to enter? Should the police be required to obtain a warrant before searching? Or what if the
suspect denies permission to enter but the police go back later and the tenant consents?
Answer: In the first situation, the S. Ct. ruled that if the suspect is standing there and denies consent,
the police may not conduct a search. Georgia v. Randolph, 547 U.S. 103 (U.S. 2006). As for the 2nd
situation, in 2014, the S. Ct. refused to extend Georgia v. Randolph’s requirement of a co-occupant
consent to a situation where the objecting occupant is absent from the property. The decision has
implications for people who live with others. Co-occupants should be aware that their fellow co-
occupants may consent to a police search if they are not there, even if they previously objected to the
consent search. Fernandez v. California, 34 S.Ct. 1126 (2014).
7. Hiring relatives of foreign officials for no-show jobs is a violation of the FCPA. But what about hiring
children of government officials into real jobs? Is that also a violation? The U.S. government is
investigating JPMorgan Chase & Co.’s practice of hiring the children of top Chinese officials in Hong
Kong. What are the rules in this situation? What should they be?
Answer: According to the WSJ, “Factors that would help a company fend off bribery inquiries would
include proof that there was a vacant position to start with (as opposed to the company having
created a new position for the official's relative); that the relative was qualified to fill it; and that the
relative performed the duties of the position satisfactorily, legal experts said.” Of concern would be
any evidence of a quid pro quo around the time of hiring.
Chapter 7 Crime 23
8. A police officer in North Carolina stopped Nick’s car because it had a broken brake light. Nick
allowed the officer to search the car and, during the search, the officer found cocaine. It turns out
that the original stop was invalid because drivers in North Carolina are allowed to drive with only
one brake light. The cop did not know the law. Does the exclusionary rule prevent the cocaine from
being admissible in court?
Answer: If the original stop was illegal, then the search following from it, even though Nick gave
permission, cannot stand. The exclusionary rule will apply.
Suggested Additional Assignments

Research: Corporate Crime
Students should find a newspaper or magazine article involving crime committed by a business or
corporate executive. What are the economic costs of the (alleged) crime? What penalties can the state
impose for the crimes? Are they penalties too harsh or too weak when compared to penalties for street
crime? How should the law deal with the defendants’ conduct?
Research: Computer Crime
Students should find a newspaper or magazine article involving a computer crime, such as online fraud,
online identity theft, or use of sites such as Craigslist and MySpace to perpetrate crimes. What new issues
and/or obstacles are raised when crime is committed online? What new problems might the computer
raise for law enforcement?
Research: Revolving Door?
Students should research recidivism rates for U.S. prisons. What percentage of prisoners return to prison
for committing new crimes? Do recidivism rates differ by the type of crime a person committed? By age
of the prisoner when committed to prison? By race? By education? By sex? By the type of penal
environment in which the prisoner served time?
Field Work: Criminal Court
Students should visit a criminal session of a local trial court and observe court proceedings for a minimum
of two hours. (It is likely easier for students in an urban environment to complete this assignment, but
students near county seats should also have access to criminal court sessions.) Students should attempt
to find a criminal trial, sentencing, or pre-trial motions. They should sit, observe, and compare what they
see with the images they’ve formed of criminal court from the media.
Another random document with
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during our stay amongst the ice. When I say “in a rush” it is only
relatively speaking. For a rush was impossible in our circumstances.
The pilot’s room offered good sleeping accommodation for two people
if they went to bed quietly and carefully. There were so many uprights,
struts, and pipes that our bedroom had the appearance of a birdcage.
The making of a miscalculated movement landed one against a pipe or
a strut, sometimes both. In addition to this one could not stand at full
height. To speak of a rush under such conditions is therefore stupid.
The sight which met us when we put our heads through the trap-door
was interesting, but not altogether inviting. It was interesting to note
how much four desperate men can straighten out. The pool we had
made was now covered with ice in the center of which N 25 was stuck.
The pressure was tremendous and a catastrophe seemed
unavoidable. Gathering all his strength, Riiser-Larsen sprang like a
tiger. He jumped high in the air in order to land anywhere on the ice
which jammed the seaplane. The result was always the same. The ice
broke under him without resistance. Omdal had got hold of a tool (I
don’t know which one) and helped his comrade splendidly with its aid.
Larsen pushed for all he was worth against the seaplane’s nose and
tried to free it from the ice pressure. By this united work they managed
to loosen the machine about 45° and thereby lighten the pressure
against the sides. In the meantime Ellsworth and I were occupied in
putting the provisions and equipment on the old ice. We were masters
of the situation at last, but it was a near thing that time.
To return to our old quarters was unthinkable, so we looked round
for a safe place somewhere else. We lay in a favorable position for
crossing to N 24 and decided it might be wise to pursue this course.
There was a possibility that we might reach it by way of the new ice,
but this seemed unlikely after our last experience. However we would
try our best to get over because it would be an advantage to be able to
use N 24’s petrol without transporting it. Moreover it appeared that
conditions across there were calmer and offered a safer resting place.
That this was not the case we shall see later.
Thus we began again to hack and to level and by breakfast time
the track was finished. Exactly as though we ourselves had dispersed
it the fog lifted, and we could soon start. This reminds me of an
amusing occurrence, amusing for others, but not exactly for me. On
account of the small accommodation in the machines it was necessary
for us always to move about in tabloid form, bent, drawn together and
compact. The result of this was cramp, sometimes in the legs, in the
thighs, in the stomach, in the back. These attacks came on at the most
inopportune moments and the martyr was a never-failing object of
general amusement. Everything was ready that morning for departure
and I suddenly remembered my glasses which I had forgotten in the
mess and which I now rushed to fetch. But it was a mistaken move on
my part. My first hasty jerk gave me cramp in both thighs with the
result that I could not move from the spot. I heard titters and giggles
and notwithstanding the infernal pain I could not do otherwise than join
in the general amusement.
The second start was not more fortunate than the first. The ice
broke all the way and N 25 became famous as an icebreaker. One
good result came from it, however, namely, that we got near to the
other machine. That presented a sad appearance as it lay there lonely
and forlorn with one wing high in the air, and the other down on the ice.
They had been lucky enough to get its nose up on to a grade of the old
ice floe, but the tail lay right out in the ice.
The conditions here seemed quite promising. We had an open
waterway about 400 meters long with fine new ice quite near. The third
attempt to start was undertaken the same afternoon but without result.
We decided to join up the waterway and the new ice. It was possible
that the great speed one could attain on the waterway would carry one
up onto the ice and if that happened there was a big chance of rising in
the air as the track would then have become about 700 meters long. At
2 a.m. on the 4th June we started the work, continuing all day. As by
eventide we had got the track finished, down came the fog and
prevented us from starting. A little later the ice got rather lively,
beginning to screw during the night. Fortunately it was only the new-
frozen ice, but even it was eight inches thick. There were pipings and
singings all round us as the ice jammed against the machine. The
methods and tools we now used were most original. Dietrichson armed
himself with a four-yard-long aluminium pole with which he did
wonderful work. Omdal used the film camera tripod, which was very
heavy, ending in three iron-bound points. Every blow therefore was
trebled and was most effective. Riiser-Larsen was the only one who
had brought rubber boots with him; these reached to his waist. As the
ice encroached it was met by ringing blows. The battle against it
continued the whole night and by morning we could once again look
back upon a conquest. Meantime the old ice had crept up nearer to us.
It now appeared as though the “Sphinx” was taking aim at us; this was
an ugly forbidding iceberg, formed in the shape of the Sphinx. The
movements of the ice had caused the sides of the waterway to set
together and our starting place was ruined again. The fog lay thick on
the 5th of June while fine rain was falling. The ice cracked and piped
as though it would draw our attention to the fact that it still existed.
Now what should one do?
With his usual energy Riiser-Larsen had gone for a walk that
afternoon amongst the icebergs accompanied by Omdal; they wished
to see if they could find another place which could be converted into a
starting place. They had already turned round to return home, as the
fog was preventing them from seeing anything, when suddenly it lifted
and there they stood in the center of the only plain which could be
used. This was 500 meters square and not too uneven to be made
level by a little work and patience. They came back happy and full of
hope and shouted to the “Sphinx”: “You may be amused and smile
even when others despair—even when the position is hopeless we still
sing with pleasure aha! aha! aha! Things are improving day by day.”
The “Sphinx” frowned! It did not like this!
COLLECTING SNOW BLOCKS FOR A RUN-WAY
The way to the plain which the two men had found was both long
and difficult, but we lived under conditions where difficulties frightened
us no more. First of all the machine must be driven there—about 300
meters through new ice to a high old plain. Here we would have to
hack out a slide to drive the machine up. From here the road crossed
over to the Thermopylæ Pass, which was formed by two moderately
sized icebergs, and ended in a three-yards-wide ditch over which the
machine must be negotiated on to the next plain. On the other side
one could see the last obstacle which must be overcome in the form of
an old crack about five yards wide with sides formed of high icebergs
and loose snow—rotten conditions to work in. Early on the morning of
the 6th the work was started. After breakfast we took all our tools and
attacked the old ice where the grade should be built. In order to get to
this spot we had to pass round a corner which took us out of sight of
N 25. Under general circumstances one would not have left the
machine unattended, but conditions were otherwise than general and
we had no man we could spare. Singing “In Swinemunde träumt man
im Sand,” the popular melody associated with our comfortable days in
Spitzbergen, we used our knives, axes, and ice-anchor to the best
advantage, and fragments of ice flew in all directions. It is with pride
and joy that I look back on these days, joy because I worked in
company with such men, proud because our task was accomplished.
Let me say quite frankly and honestly that I often regarded the
situation as hopeless and impossible. Ice-walls upon ice-walls raised
themselves up and had to be removed from our course; an
unfathomable gulf seemed to yawn before us threatening to stop our
progress. It had to be bridged by cheeky heroes who, never grumbling,
tackled the most hopeless tasks with laughter and with song.
TRYING OUT OUR BULB SEXTANTS

FAST IN THE ICE
At 1 p.m. we went on board for soup. The ice was then calm. The
“Sphinx” lay in the same position. Oh! how good the thick pemmican
soup tasted! Five hours’ hard work on a cup of chocolate and three
small oatcakes gives one a good appetite. At 4 p.m. Dietrichson went
on board to fetch something, and on his return remarked that it
seemed to him that the old ice was approaching the seaplane. Now,
he, during the last days, had suffered a little from snow blindness and
we thought accordingly he had made a mistake. It was indeed a
mistake. We should have gone at once and looked into the matter.
One must however remember that every second is precious and that
we grudged stopping work. At 7 p.m. we went on board to eat our three
biscuits. The sight which then met us would have filled the bravest
heart with despair. The great pack had approached the seaplane to
within some meters. The “Sphinx” seemed to bow and chuckle with
amusement. Now it would have us! But it had laughed too soon. The
six men that it now looked upon were not the same six who some days
ago had arrived through the air from a place full of life’s comforts; the
six now were hardened by obstacles, weariness and hunger, and they
feared nothing on earth, not even the “Sphinx.” “Hurrah! heroes.
Hurrah for home and all we hold dear. The devil take the ‘Sphinx.’” And
so the work began and in its performance we got more self-confident
than ever before, as we managed to turn the heavy machine round in
the course of a few minutes. What task each person specially
performed it is difficult to say, but it was a Herculean task. We lay
down, we pulled, we toiled, we scratched. “You shall go round!” Before
we realized it there it was, turned 180° and the course set for the new
slide. The “Sphinx” hung its head and looked sad; but the next day it
lay exactly on the spot where N 25 had lain. During this performance
N 24 was pushed on to the plain beside which it had lain. Still a little
more leveling and the slide was ready. To shouts of joy the machine, in
the evening at eleven o’clock, was driven over the track and stopped
exactly beside the Thermopylæ Pass. To-morrow there would not be
much to be done.
The 7th of June. Norway’s Day! At home they would be wearing
light summer clothes and enjoying life, while flags flew over the whole
land from the North Cape to Neset. But don’t think that we forgot this
day. No! From the N 25’s highest point our silk flag flew and our
thoughts—oh! don’t let us think at all of them!
The side of the pass was formed by two gigantic icebergs which
would have to be more than half cut down before the wings could pass
over and the great ditch had to be filled up with ton after ton of snow.
But the 7th of June is a good day to work for homesick folk. The knives
are driven with greater certainty, the axes swung with greater power,
and in a remarkably short time the ice giants dwindled to dwarfs. We
experienced a very exciting episode on this occasion. While Riiser-
Larsen drove the machine over the snow glacier Dietrichson went past
and did not get out of the way. At the last moment he threw himself
down flat on the ground and the tail-skid passed so near to him that I
could not see daylight between. It was in the words’ fullest meaning a
narrow escape. “I saw you all right,” remarked the pilot later. “But I
could not stop in the middle of the bridge.” That his words were true
was proved by looking back and noting that the bridge was no longer
there. It was a delightful feeling to sit on a “flynder” and rush across the
snow plains. It was not often we got the satisfaction, as we usually had
to stand by ready to push or haul the machine over the snow. But this
intermediate plain was hard and the pilot could manage to steer with
the wheel. And thus we stood before the last ditch which had to be
filled and leveled. It took us six hours before it was finished and the
machine landed in safety on the big plain. It had been thawing the
whole day and was uncomfortably warm for working, but one could
always throw some clothes off. We were not so particular about our
appearance.
The 8th of June brought us fog and half a degree of heat. It
drizzled the whole time and we were exceptionally uncomfortable. We
were now faced by another hard task, namely, turning the machine
round in the deep wet snow. We were unused to this work and
consequently were fairly clumsy. In addition to this we had to decrease
our daily rations from 300 to 250 grammes, insufficient to keep up our
strength. Our work in the deep wet snow of this plain was wearying.
More wearying than ever before. Do you remember, comrades, how
we made the turning platform? You will scarcely have forgotten that?
The machine had to be driven up to the starting place and then swung
round 180° to face the right direction. The snow as already said was
deep and wet, and any turning of the machine under these conditions
was hardly possible. What should we do now? There was only one
thing to be done, namely, to dig down to the ice and turn the machine
on that. The snow here was from two to three feet deep and every
spadeful was a heavy weight to lift, particularly as we used the big
shovels. We cleared a circular place with a diameter of fifteen meters.
That got the name “turning-table.” Had we solved our problem by this
you might have forgotten the turning-table by now, but when we tried to
turn the machine, we found that the skids caught in the ice and
stopped the whole progress. Again we were faced with the question
—“What shall we do?” And some one was struck by a bright idea—to
lay a snow-skate underneath. We all agreed the idea was good, but to
accomplish it was not easy. We must lift the machine and it weighed
four and one-half tons. But even that did not frighten us. It was not to a
great height that we had to lift it—just about two centimeters, but only
five men were available while the sixth must place the snow-skate
underneath. Never mind, come on, my heroes. Lay your shoulders to
the wheel and lift. And then five backs are bent in unison, and one!
two! three!—we had got it up on the snow-skate at last. We continued
working steadily, regardless of time’s flight, from 4 a.m. on the 8th of
June to 4 a.m. the next day. During that time starting place No. 5 was
worked on, tried, and approved. The fog lay thick and heavy while the
drizzle continued all day on the 9th, but Riiser-Larsen insisted that the
track should be completed. Think now what a problem we had before
us when we started to work that morning. A track—500 meters long—
twelve meters broad—should be made in wet snow three feet in depth.
The snow cleared away from the track must be thrown at least six
yards away from each side so that it should not get in the way of the
machine. We had lived on 250 grammes daily for several days so you
will not be astonished when I say that by evening we were absolutely
worn out. I watched, with wonder, the two giants who wielded the
shovels all day. We others did what we could, but our work was trifling
compared to theirs. On the 11th we set to again after breakfast, but we
could not keep up this strenuous work; an observer would have
noticed at once that he had a number of worn-out people before him.
The clang of the spades got slower, the rest-intervals longer and
longer till in the end we stood quite still and stared at each other. It
seemed an impossibility to get the snow shoveled aside in a
reasonable time. Whilst we stood discussing it, Omdal walked up and
down in the snow. It was only a chance that he did so, but a chance
which brought about important results. “See,” he shouted suddenly,
“this is what we can do instead of shoveling.” The place where he had
trekked was quite hard and with a little frost would give a splendid
surface. In the afternoon we started our great trek. Foot by foot of the
track of soft wet snow was trodden into a solid road. It was still
thawing, but we knew that if it turned frosty it would become a perfect
track—and it was only natural to expect that frost would come. To
make the surface even we had to remove long and high stretches of
ice-formation containing tons upon tons of ice. On the 14th of June as
we laid down our tools I don’t think I exaggerate when I say that all in
all we had removed 500 tons of ice and snow. That day we made two
starts, 6 and 7, but the foundation was still too soft as we had had no
constant frost. Certainly the temperature that day had been as low as
-12° c., but then it rose immediately after to 0° again. It was impossible
to get up sufficient speed to rise, the machine sank down into the
snow, and in a number of places dragged the whole of the underlying
snow with it. Now will it freeze or not?
The 15th of June was fixed as the latest day for our next attempt to
start. If that was not successful we must collaborate and decide what
could be done. There were not many courses to choose. Either we
must desert the machine and attempt to reach the nearest land, or we
must stay where we were and hope for an opportunity to rise in the air.
We had performed the miracle of leaving Spitzbergen with one month’s
provisions, and yet after four weeks had passed we found we had
provisions for six weeks. We could thus hold out until the 1st of
August. In my lifetime I have often been faced by situations where I
found it difficult to decide on the right course of action, but to choose in
this case with any degree of certainty was more difficult than the
making of any previous decision. The first alternative—to set off in
search of land—appeared to me to be the most sensible as, should our
provisions run out, it was possible further south that we might find
edible animal life. In addition this plan had the great advantage that it
would occupy our thoughts with the work we had ahead. Against this
plan the fact of our modest equipment and our probably weakened
condition must be weighed. When I privately considered these two
alternatives I always came to the conclusion that to look for land was
the most sensible, but as soon as I decided on this course a voice
whispered in my ear: “Are you mad, Boy? Will you leave a complete
and good machine, filled with petrol, and go down into the high broken
ice where you know you may perish miserably? A waterway may open
up before you to-morrow and then you will be home in eight hours’
time.” Will any one blame me for my indecision when I found it so
difficult to choose.
On the evening of the 14th we unloaded everything on the ice
except the most necessary, and that we placed in a canvas boat. We
kept sufficient petrol and oil for eight hours, one canvas boat, two
shotguns, six sleeping bags, one tent, cooking utensils and provisions
for a few weeks. Even our splendid ski-shoes had to be set aside as
they were too heavy. Of our clothes we only kept what we could not do
without. All told it amounted to about 300 kg.
On the 15th of June we had a temperature of -3° c. with a little
breeze from the southeast, just the very wind we required. The track
was frozen fine and hard during the night, but the sky was not too
promising—low-lying clouds—but what in all the world did we care
about the sky! The thickest fog would not have kept us back. In this
light the track was very difficult to see; small black objects were
therefore placed at each side so that the pilot would be certain to make
no mistake. A little too much to one side or the other could be fatal. At
9:30 p.m. everything was clear and ready for a start. The solar-
compasses and the engines started. They were three-quarters warmed
up. I cast a last glance over the track and walked along it to pass the
time. It ran from northeast towards southeast. A few yards in front of
the machine there was a small crack across the ice. It was only a few
inches wide, but there it was, and at any moment it might open and
separate the little corner we stood upon from all the rest. For the
distance of 100 meters the track rose quite gradually in order to
become level. Two hundred meters away, on the floe’s southeast end,
there also lay a crack right across, but this was of a much more
serious nature, and had caused us many uneasy moments. It was
about two feet wide and filled with water and mush. This seemed to
show that it was connected with the sea and could give us a few
unpleasant surprises sooner or later. Should this crack widen and tear
away 200 meters of our track, the latter would be entirely ruined. The
floe ended in a three-foot broad water-lane; on the other side of it,
direct in the line of the track, lay a flat forty-meter long plain, which one
will understand was far from ideal, but absolutely the best which the
place could offer us. At 10:30 everything was in order. In the pilot’s
seat sat Riiser-Larsen, behind him Dietrichson and I, in the petrol tank
Omdal and Feucht, and Ellsworth in the mess. Dietrichson was to
navigate us homewards and should really have taken his place in the
observer’s seat in front of the pilot. But as that was too exposed in
view of the nature of the task we were undertaking, his place was
allotted further back at the start. This was undeniably a most anxious
moment. As soon as the machine began to glide one could notice a
great difference from the day before. The hasty forward glide was not
to be mistaken. One hundred meters off, we started at top-speed,
2,000 revolutions a minute. It trembled and shook, shivered and piped.
It was as though N 25 understood the situation. It was as though the
whole of its energy had been gathered for one last and decisive spring
from the floe’s southern edge. Now—or never.
We rushed over the three-meter wide crack, dashed down from the
forty-meter broad floe and then? Was it possible? Yes, indeed! The
scraping noise stopped, only the humming of the motor could be
heard. At last we were in flight. A smile and a nod and Dietrichson
disappeared into the observation compartment.
And now started the flight which will take its place amongst the
most supreme in flying’s history. An 850-kilometer flight with death as
the nearest neighbor. One must remember that we had thrown
practically everything away from us. Even though we had managed by
a miracle to get away with our lives, after a forced landing, still our
days were numbered.
The sky was low and for two hours we were compelled to fly at a
height of fifty meters. It was interesting to observe the ice conditions,
so we eased down. We believed that in different places we observed
from the sky we could distinguish open water all around us. But it was
not the case. Not a drop was to be seen anywhere, nothing but ice in a
chaotic jumble all around. It was interesting also to see that the floe,
which from first to last had given us freedom, was the only floe within a
radius of many miles which could have been of any use to us. N 24 got
a farewell wave and was lost to sight for ever. Everything worked
excellently, the engines went like sewing machines and gave us
unqualified confidence. Both solar-compasses ticked and worked, and
we knew that if only the sun would appear, they would be of invaluable
assistance to us. The speedometers were placed. By the wheel sat the
pilot, cool and confident as always. In the navigating compartment was
a man I trusted absolutely, and by the engines two men who knew their
work perfectly. Ellsworth spent his time making geographical
observations and photographs. I myself managed to get what was
impossible on the journey north, a splendid opportunity to study the
whole flight. The course was set towards Spitzbergen’s north
coastland, around Nord Kap. In the two first hours we steered by the
magnetic compass. This had been considered an impossibility,
hitherto, so far north, but the result was excellent. When the sun broke
through after two hours and shone direct on the solar-compass, it
showed us how exactly we had steered. For three hours the
atmosphere had been clear, but now it turned to thick fog. We rose to a
height of 200 meters, flying over it in brilliant sunshine. Here we
derived much benefit from the solar-compasses and were able to
compare their readings with the magnetic-compass. We had fog for an
hour and then it cleared again. The condition of the ice was as on the
northern trip, small floes, with icebergs on all sides. There was
apparently no system in its formation; everything was a jumble. There
was more open water than on the northern tour, but no waterways,
only basins.
In 82° N. Lat. the fog descended again. The pilot tried for some
time to fly under it, and this was a flight which would have delighted
people who seek nerve-splitting thrills. The fog came lower and lower
till at last it stretched right over the icebergs. With a speed of about
120 miles at a low altitude one gets a new impression of flying. With a
rush we passed over the top of the icebergs one after the other. At a
great height one does not notice the terrific speed. One is, on the
contrary, astonished how slowly one appears to be traveling. Several
times icebergs peeped up directly under us, so close in fact that I
thought, “We shall never clear that one!” But the next moment we were
across it. There could not have been more than a hair’s breadth to
spare. At last the conditions became impossible; fog and ice blended
into one. We could see nothing. There was another matter as well
which was of special weight, namely, the nearness of Spitzbergen.
Should we fly into the high cliff walls with a speed of 120 kilometers
there would not be much left of us. There was only one thing to do—to
fly over the fog and that was exactly what the pilot decided to do.
Up 100 meters high—and we were above the fog in brilliant
sunshine. It was observable soon that the fog was thinning, it began to
lift more and more in big masses, and soon we could see territory
under it. It was not inviting; nothing but small ice with a little water.
When I speak of the impossible landing conditions it is only to show
that to land here would have meant certain death. Such a landing
would have crushed the machine and sent it to the bottom. The fog
lifted steadily and soon disappeared entirely. It was a fresh southerly
breeze which brought about this welcome change. The fog had lain
thickest in the south, but now that began to move away as well. Large
sections of it tore themselves away from the great mass and
disappeared in small driving clouds. Where was Spitzbergen? Had we
steered so mistakenly that we had flown to the side of it? It was quite
possible. One had no experience in the navigation of the air in these
regions. Over and over again the general opinion of the magnetic
compass’s uselessness in this district came back to my mind as I sat
there. The solar-compass had—as soon as we got the sun—shown a
reading in agreement with the magnetic compass, but it was set at
——? At what? If only I knew! There was probably no ground for
anxiety, yet I felt dubious. We ought to see land by now. We had not
enough petrol to last long—and still no land. Then suddenly a big
heavy fog-cloud tore itself away and rose slowly, disclosing a high
glittering hill-top. There was scarcely any doubt. It must be
Spitzbergen. To the north lay some islands. They coincided with
Syvöene and the land stretched out in a westerly direction. But even if
it were not Spitzbergen, it was still land—good, solid land. From the
islands there stretched a dark strip northwards. It was water—the great
open sea. Oh! what a delightful feeling—sea and land and no more
ice. Our course lay southwards, but to get more quickly away from the
ugly conditions beneath us, the course was set westwards and
downwards to the open sea. It was more than a clever move on the
part of the pilot—it was refreshing to see how instinct came to his aid—
because the controls were showing signs of wear. It is enough to say
before we had got right across the sea the controls jammed and an
immediate landing was necessary. The wind blew with a cold blast
from what we learned later was Hinlopen Strait and the sea was high
and rough. The forced landing was accomplished with all the
assurance and experience which always distinguished our pilot. We
left our places and all went aft in order to allow the nose to lift as high
as possible. The pilot was the only one left forward. He flew most
carefully, guiding the boat and maneuvering it against the highest
waves, which were of tremendous dimensions. We who were aft kept
warm and dry, but it was a different matter for the man at the wheel.
Time after time the waves lashed over him, wetting him to the skin in a
few minutes. It was not “spray” which we shipped when the waves
broke over us. Unused as I was to maneuvers of this kind I expected
every moment to see the bottom stove in. It was seven in the evening
when the forced landing was accomplished, and it was not until eight
that we reached land. It was a fairly shoal bay we entered and the
landing places it offered us were not of the best. We found a sloping
side of the coast ice where we could climb ashore. The wind now died
away and the sun shone on the heavy stones which lay on the beach.
Here and there a little fresh rill ran between them singing as it
descended from the hillsides. The sweet voices of birds fitted in with
our gentle mood of eventide and inspired in us a feeling of solemnity.
There was no need to look for a church wherein to praise God the
Almighty and offer up to Him our burning thanks. Here was a spot
amidst His own wonderful nature. The sea lay smooth and calm with
here and there tremendous pieces of ice protruding from the water.
The whole scene made an ineradicable impression on us which we
shall never forget. The plane was moored to a large piece of ice so
that it swung free, and all of us went ashore. There were two things
which it was necessary for us to do in our own interests. First to
discover our whereabouts and then to have a little food. The chocolate
and the three biscuits we had taken at 8 a.m. no longer satisfied us.
While Dietrichson “took the sun” the rest of us got the meal ready—a
repetition of breakfast. How good it tasted! How fine it was to jump
about among the big rocks! We became children again. All around lay
driftwood which we could use for firing if we remained here any time.
The ninety liters of petrol which we had must be used sparingly.
Omdal, who had been our cook during the whole trip, wished to set
the Primus going, as there was still a little drop of petrol left in it, and
he was busy with it when suddenly Riiser-Larsen shouted, “There is a
ship.” And truly there in the east round the nearest point came a little
cutter, gliding along. Had misfortune earlier been our lot luck seemed
now to overwhelm us. It was now 9 p.m. and Dietrichson had just
completed his observations. We found that we were exactly at Nord
Kap on Nordostland, the very spot we had steered for in the morning.
Thus the flight was a master-stroke on the part of the man who
directed the machine, while the navigator shares the distinction with
him. It was a splendid deed! But—the little cutter had changed her
course and apparently had not noticed us. She moved quickly and was
probably fitted with a motor engine. What should we do? What should
we do to communicate with it? “Nothing easier,” said the flying-men.
“Just sit tight and you shall see.” In a second everything was brought
on board the plane, the motor started and we rushed over the sea
stopping exactly beside the cutter. It was the cutter “Sjöliv” of Balsfjord
—Captain Nils Wollan. A jolly-boat was lowered and with two men
rowed across to us. They seemed in doubt as to who we could be,
dirty and bearded as we were. But when I turned slightly round I
exposed my profile—and they knew us at once. Would they tow us
down to King’s Bay as our petrol was almost done? They would be
delighted to do this, in fact Wollan would have certainly towed us to
China if we had asked him, so glad was he to see us, so beaming with
kindness and goodwill. We had a rope attached to N 25 and we all
went on board the “Sjöliv.” There for the first time we felt that the
expedition was finished. Quietly and calmly we shook hands with each
other—it was a handshake that said much. We were received by all
the crew with hearty welcome and shown down to the cabins. While
this part of the ship was not exactly a ballroom, the cabins on “Sjöliv”—
2 × 2 meters—compared with what we had had in the last four weeks,
were roomy and comfortable. These good people cleared out of them
absolutely and handed over the whole place to us. In the two broad
bunks four of us were able to sleep, while two found berths in the
men’s quarters. “Will you have coffee?” was the first question. Would
we! Yes, certainly, and as quickly as possible with a smoke thrown in.
We had been tobaccoless for the last days and now were longing for a
smoke. The first coffee was not an unqualified success; the coffee pot
was set on the fire to warm and, on a mighty roll the cutter gave, it flew
straight onto Riiser-Larsen’s back. He was thus the first to get coffee,
but if he appreciated the honor, his language expressed a totally
different opinion. They apologized to us for the egg pancake and the
seal-flesh which comprised the next course, but apologies were
unnecessary. All the food disappeared as though a whirlwind had
passed over the table—and this, despite the fact that we had decided
to eat sparingly after our long restriction.
The towing of N 25 proceeded satisfactorily in the beginning, but
during the night a southerly breeze came up blowing directly down
from the hills. The waves increased steadily and as we steered
westwards towards Hinlopen Strait we decided that we must turn
landwards and anchor. We only got to bed at 5:30 a.m., after traversing
an endless number of roods.
At eleven o’clock the next morning we were up again. It was
blowing a gale and we lay badly. We decided therefore that we should
go into the nearest bay to find a calm and safe harborage for N 25, let
it remain there while we went on to King’s Bay for assistance, return
for the seaplane and fly it down. The nearest harbor was Brandy Bay.
We looked at each other as much as to say, “Can we really permit
ourselves to enter a place with such a name?” The ice here lay at the
bottom of the Bay and we towed the machine safely through it. At 8
p.m. we steered for King’s Bay. It was a windy passage through
Hinlopen Strait. The sea was high and rough and the “Sjöliv” enjoyed
herself royally. If our feelings agreed with hers, I should not like to say.
On the 17th we sailed along Spitzbergen’s north coast in summer
sunshine and warmth. We passed a few vessels and asked if they had
seen “Hobby”—but “No, they had not.”
As we passed Virgo-havn we hoisted all our flags and the little
“Sjöliv” was in gala attire. We wanted to honor the memory of the man
who, for the first time, sought to reach the Pole through the air—
Salomon August Andrëe. Was there any one in the world who had
more right to honor the memory of this man than we six who stood
here looking over the place from which he set out on his sad
expedition. I scarcely think so. We lowered our flag and continued.
At 11 p.m. we rounded Cape Mitra and there lay King’s Bay before
us. It was a wonderful sensation to sail back through the Bay and see
all the old well-known places again. The ice had vanished, melted by
the sunshine as loon and auk gamboled in its rays. Anxiety was rife
among us as we sailed in as to whether “Hobby” was here or not? The
skipper looked out, came back and announced that “Hobby” was not
here; only a coal-boat lay by the quay. As we approached one or other
of us went continually to look out; suddenly some one cried, “Yes,
there is ‘Hobby.’ And another boat lies there also, but I can’t distinguish
which it is.” Our relief was great. There lay “Hobby” and many of our
dear friends were near. “Hullo,” some one cried from above, “the other
boat is the Heimdal.’” “No, you must be mad. What would the ‘Heimdal’
be doing here?” answered another. We had not the slightest idea what
awaited us. Nearer and nearer we approached. “Shall we raise the
flag?” said the skipper. “No,” I answered, “there is no reason to do so.”
But a little later some one said, “Surely we must greet the naval flag.”
“Yes, naturally. I have forgotten my good manners on the trip,” I had to
admit. So up went the flag and the “Sjöliv” approached the quay. We
continually had our glasses directed on the ships ahead; suddenly
some one exclaimed, “Good gracious, two flying machines are lying
there.” And, true enough, there lay two Hansa-Brandenburgers ready
for flight. Surely they were destined for a North Coast charting survey,
as that had been discussed last year. Yes, that seemed quite possible!
That we were the reason for all this excitement never entered our
minds. We came on nearer and nearer. We could now see that they
were beginning to direct glasses on us from the Coast, showing
interest in the little cutter. As we sailed in one of our people who saw a
comrade on board the “Hobby” shouted, “Hullo, Finn, how is everything
at home?” That was the signal for great excitement. We saw them run
round each other in jubilation, shouting and gesticulating. What in the
world was the reason for all this? Soon we were to know. The motor
stopped and the “Sjöliv” sailed up alongside “Hobby.”
MEMBERS OF THE EXPEDITION ARRIVING AT KING’S BAY

The reception we received will never be forgotten, not even when
other things fill our thoughts. Our friends wept, they took hold of us,
they looked at us with unbelieving glance—“But, Great God, is it you?”
They simply did not realize that we had returned. But they explained
how they had waited and waited, insisting that they had never given us
up, while in their hearts they knew they had. And suddenly there we
stood among them—the dead returned to life. No wonder that the
reaction was great. Not one sensible word was said during the first half
hour. There stood all our dear old friends: Captain Hagerup, Lieutenant
Horgen, Zapffe, Ramm, Berge, etc. They looked so happy. And there
were the dear fellows who had been sent to our relief: Captain Blom of
the “Heimdal” and First Lieutenant F. Lutzow-Holm with the air fleet.
ROALD AMUNDSEN AND LINCOLN ELLSWORTH AT THE

RECEPTION BY THE KING OF NORWAY
The last to come down, not because he wished to be late, but
because it took him a long time to traverse the road from the Director’s
house, was our dear host, Stakkars Knutsen. He had run so fast that
he had to stand for a time to regain his breath. It was a warm reunion.
Among all who had missed us in that time there was scarcely anybody
whom our absence had made more uneasy. Late and early, we were
told, he had scanned the horizon looking for us. Never had we been
out of his thoughts. Big, strong man as he was, he had the warmest
and softest of hearts. No wonder then that the meeting with Knutsen
was regarded as an outstandingly important incident.
We had to be photographed from all sides, although a record
would appear on the plate of a month’s whiskers and dirt. In an hour
both would have vanished. And so we set off to our old King’s Bay
quarters where we had passed unforgettable days before our
departure. It was like a delightful dream to see it again. Every day as
we had sat in our little mess on N 25 taking our humble meal, it was
remarked on every side, “Oh! if only we were back at Knutsen’s.” And
now we were there. We felt we wanted to pinch ourselves and ask, “Is
this really possible? Can you really eat as many biscuits as you wish?”
There was no time to shave and wash first. No! Berta had now taken
command, and we should first and foremost have food. As we stepped
into the room, cheering broke out. The Station welcomed us back, and
never has our National Anthem sounded finer than it did as we stood in
the little square room listening to the tones of what is our dearest
hymn. I believe there was not one dry eye in the company. “Gud sygne
dig landet vaart. Vi gir dig med glede alt.”
On the next day about three or four o’clock the steam bath was
ready and a change was effected; hair and whiskers disappeared. We
were all very thin, but we noticed it now more distinctly. It looked as
though Riiser-Larsen could have put his collar twice round his neck—
the same size collar which had even been tight for him when he set out
for the north.
What time we went to bed that night I really cannot say, but I do
know that when I came out next morning and looked around, one of
the finest sights met me, making an ineradicable impression. On the
flagstaff, right before the house, waved our big, beautiful National flag
in a light summer breeze. The sun was blazing down and the glaciers
around shone like silver in its rays. All seemed to be in festal dress.
The hills blushed with the finest little flowers, and the birds twittered
and sang. In the harbor lay the boats fully be-flagged. Yes! it was

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Approaching Criminal Law

7-1 Criminal Procedure

Felonies and Misdemeanors

7-1b Conduct Outlawed

Case: Skilling v. United States1

Issue: Was the honest services statute unconstitutionally vague?

Question: What was Skilling’s argument?

7-1c State of Mind

7-1d Gathering Evidence: The Fourth Amendment

Issue: Was the dog sniff legal?

Excerpts from Justice Ginsburg’s Decision:

Question: What are some ordinary inquiries incident to a traffic stop?

Bonus Case: United States v. Jones 2

Excerpts from Justice Scalia’s Decision:

Discussion: Exclusionary Rule

There are three exceptions to the exclusionary rule:

7-1e After Arrest

Due Process: Requires fundamental fairness at all stages of the case.

Landmark Case: Miranda v. Arizona3

Question: What happened to Miranda after the Supreme Court ruling?

Trial and Appeal

Discussion: Double Jeopardy

7-2 Crimes That Harm Businesses (And Their Customers)

Wire Fraud and Mail Fraud

You Be The Judge: United States v, Nosal7

Holding: Judgment for Nosal.

Question: What does CFAA stand for?

7-3 Crimes Committed by Business

7-3a Making False Statements

7-3b Workplace Crimes

It is a two-step process to prove that a person or an organization has violated RICO.

7-3d Money Laundering

Discussion: Money Laundering Cases and Prosecutorial Ethics

Bonus Case: United States v. Kennard 8

8 472 F.3d 851, 11th Circuit Court of Appeals, 2006.

Question: What is money laundering?

7-3e Hiring Illegal Workers

7-3f Foreign Corrupt Practices Act

The FCPA has two principal requirements:

7-3g Other Crimes

7-3h Punishing a Corporation

Multiple Choice Questions

3. Under the exclusionary rule, which statement is true?

5. Which of the following elements is required for a RICO conviction?

Suggested Additional Assignments

TRYING OUT OUR BULB SEXTANTS

MEMBERS OF THE EXPEDITION ARRIVING AT KING’S BAY

ROALD AMUNDSEN AND LINCOLN ELLSWORTH AT THE

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