Tagged: intent

Mens Rea: Does “Deliberate Indifference” Satisfy the Requirement of Knowledge?

Can indifference, even if deliberate, satisfy a criminal statute’s requirement of knowledge? This is the issue raised by the defendant in United States v. Clay, in which a petition for rehearing and rehearing en banc is presently pending. The defendants in Clay were prosecuted  under 18 U.S.C. § 1347(a), which states, in relevant part:

(a) Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody of control of, any health care benefit program,

in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.

(b) With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section. 

At trial, the court charged that the defendants could be found guilty based on “deliberate indifference.” The defendant were convicted and the conviction was affirmed by the Eleventh Circuit. See the Brief for Amici Curiae NACDL, Twelve Criminal and Business Law Professors, the Washington Legal Foundation and the Cato Institute listed below.

Related Readings:

A Tragic Case Tests the Powers of Statutory Interpretation

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

As noted here previously, the New York Court of Appeals recently reviewed People v. Jorgensen, a case of a woman whose reckless driving caused her unborn child to suffer injuries that led to the child’s death six days after birth. Among other charges, the prosecution sought to convict the woman of second-degree manslaughter for recklessly causing the death of “another person,” the person here being the defendant’s baby daughter. The first jury to hear the case failed to reach a unanimous verdict. The jury in a second trial returned a verdict of guilty, which was affirmed by the Appellate Division, Second Department.

The legality of the conviction presented the Court of Appeals with a matter of first impression. Case law in the Appellate Division had previously upheld manslaughter convictions of defendants whose reckless acts directed against a pregnant woman resulted in the death of the child after birth. The issue now was whether a similar manslaughter conviction could be lodged against a pregnant woman for her own recklessness.

Writing only for himself in dissent, Judge Fahey marshaled powerful arguments that the applicable N.Y. Penal Law statutes, when read together and in their plain meaning, demonstrated that the defendant was guilty of manslaughter. He noted that recklessness, as defined by N.Y. Penal Law § 15.05(3), provides responsibility for future consequences of a defendant’s disregard of substantial and unjustifiable risks, and the consequence in this case was the death of a person born shortly after the reckless act.

The Court’s majority, however, reversed the conviction. The majority did not dispute that the victim of defendant’s reckless conduct was a person under the law at the time she died. Indeed, the majority’s own report of the facts and issues refers to the victim as a “baby” and as a “child.” Nevertheless, as a predicate for moving beyond the plain meaning of the applicable statutes referenced by Judge Fahey, the majority purported to find an ambiguity in their references to “person.”

It seems, however, that the ambiguity found by the majority does not in fact involve possibly different meanings of the word “person” as used in the statutes. The majority does not explicitly identify conflicting meanings of “person.” Moreover, the majority does not dispute the propriety of the manslaughter convictions in the Appellate Division cases referenced above, but simply distinguishes them as not involving charges against a pregnant woman.

Instead, what concerned the majority was that other Penal Law provisions in which the legislature provided for a pregnant woman’s responsibility for harm caused to her fetus, such as through self-abortion acts, classify the offense in question as a misdemeanor and require proof of the pregnant woman’s intent. Accordingly, the majority framed the statutory interpretation issue as: “whether the legislature intended to criminalize a mother’s own reckless conduct” – not the conduct of another – in a situation such as in this case.

Because the only penal statutes that unambiguously hold a pregnant woman criminally responsible for the death of a child she is carrying do so in a very different context, require proof of her intent, and provide only for a misdemeanor charge, the majority decided that a felony conviction based on a pregnant woman’s recklessness is not supported “under the current statutory scheme.” In the majority’s view, manslaughter liability in a case such as this is a matter for the legislature to decide prospectively after full consideration. It should not be initiated by a prosecutor’s charging decision and decided by a court without sufficient guidance by the legislature.

A complication in this case was that the defendant, when taken to a hospital after the accident, consented to an emergency cesarean section. In doing so, she was trying to save her child’s life. But the fleeting success of this effort also provided the basis for a manslaughter charge against her.

Seven years ago, defendant’s careless act placed in mortal danger the daughter she had been carrying in her womb for 34 weeks. It took two jury trials before the prosecution could obtain a manslaughter conviction against her. Because of the statutory ambiguity found by the Court of Appeals, the defendant’s conviction is reversed, and she will not have to serve the three to nine year sentence set by the trial court.

Sometimes life imposes harsher suffering than any sentence provided by law would.

Related Readings:

NY Court of Appeals Addresses Another Statutory Presumption

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

New York State has codified several evidentiary presumptions authorizing courts to instruct a jury that it may infer a fact necessary for an element of a crime charged from supporting facts that the jury finds the prosecution has proved beyond a reasonable doubt. In conformance with federal due process requirements, the inferences to be drawn are not mandatory but permissive. This means that based on the evidence – including any facts adduced by the defense during cross-examination or rebuttal – the jury may, but is not required to, draw an inference that the element has been established.

Such presumptions are potentially decisive for a defendant’s fate and should be carefully considered by the courts. Prior to submitting a case to the jury, trial courts must decide whether the evidence presented was sufficient to instruct the jury on a statutory presumption. Subsequently, appellate courts often are tasked with reviewing whether such an instruction, if given and may have determined the jury’s guilty verdict on the related charge, was improper and constituted an error requiring reversal of the conviction on that charge.

As discussed earlier, in June of this year the NY Court of Appeals, in a 5-2 decision, upheld a conviction pursuant to Penal Law § 265.03(1)(b) for possession of a loaded firearm with the intent to use it unlawfully against another person, where the conviction on this charge was based on an evidentiary presumption under Penal Law § 265.15(4) stating that “[t]he possession by any person of any … weapon … is presumptive evidence of intent to use the same unlawfully against another.” As noted previously, the Court did not fully address a possible constitutional issue regarding the application of the presumption in that case because the issue was not raised on appeal.

Recently the Court of Appeals heard People v. Kims, Slip. Op. 07196 (N.Y. Oct. 23, 2014) that, among other issues, involved the applicability of another statutory presumption. Penal Law § 220.25(2) provides, in summary, that the presence of certain controlled substances in open view in a non-public room under circumstances evincing an intent to prepare such substances for sale is “presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance ….”

The permissive inference allowed by section 220.25(2) has come to be termed the “drug factory” presumption. The New York State Legislature enacted this presumption in 1971 to aid prosecutors in proving a possession charge in circumstances where police did not find a controlled substance on the person of a defendant at the time the defendant was arrested. The presumption nevertheless permits a jury to find “constructive possession” in circumstances where the defendant is in “close proximity” to other facts regarding controlled substances mentioned in the statute.

Presumption in section 220.25(2) applies to any person in close proximity to a controlled substance in the circumstances set forth and is similar to presumption in section 265.15(4) that assigns criminal responsibility for any person in a vehicle in which a firearm is found. The presumptive criminal responsibility extended in these sections to a broad scope of persons provides prosecutors with plea-bargaining opportunities to turn associated persons against one another.

In People v. Kims, the Court of Appeals focused on the fact that the defendant was apprehended by police after exiting his apartment, in which police subsequently found controlled substances and was not trying to avoid arrest by fleeing the location. Under these circumstances, the Court agreed with the Fourth Department’s decision that the defendant, when apprehended, was not in “close proximity” to the controlled substances.

Accordingly, the Court unanimously affirmed the Appellate Division Fourth Department’s decision holding that the trial court erred when instructing the jury on Penal Law § 220.25(2)’s presumption. Relying on its previous decision in People v. Martinez, 628 N.E.2d 1320 (N.Y. 1993), the Court reasoned that in this case the trial court’s error in instructing the jury was not harmless because the jury’s verdict was based on the constructive possession inference. The Court affirmed the Fourth Department’s reversal of the convictions based on the presumption and ordered retrial on these charges, while affirming the defendant’s conviction on other charges.

Caveat Chatter: Digital Communication and Mens Rea in United States v. Valle

POST WRITTEN BY: Jake B. Sher (’16), Pace Law School

JSher_valle imageIn a recent post, we discussed issues of mens rea as they related to internet search history. Digital communications, however, have also recently come under scrutiny. In the hands of an adroit prosecutor, they are equally as revealing and equally powerful evidence as an individual’s internet search history.  Yet, when the prosecution relies exclusively on online communications to prove a defendant’s mens rea beyond a reasonable doubt, a skilled defense team may be able to raise issues surrounding the actual context of the communications that may preclude a conviction.

In an opinion and order issued on June 30, 2014 Judge Paul Gardephe of the Southern District of New York conditionally granted former NYPD Officer Gilberto Valle’s motion for a new trial on his conviction for conspiracy to commit kidnapping. The prosecution relied heavily on a mountain’s worth of digital communications between Valle and his alleged co-conspirators. Unfortunately, none of the evidence against Valle had any corroboration outside of the electronic world, and Valle never finalized any of his alleged “plans.” As a result, Valle’s defense counsel contended that his online activities constituted morbid fantasy role-playing, not conspiracy. The government conceded that some of Valle’s communications were fantastical, but argued that some were manifestations of Valle’s specific intent to commit the alleged crime of kidnapping.

Judge Gardephe observed that “Valle’s depraved, misogynistic … fantasies about his wife, former college classmates, and acquaintances undoubtedly reflect a mind diseased.” United States v. Valle, No. 12 Cr. 847 (PGG), 2014 WL 2980256, 2014 U.S. Dist. LEXIS 89650 (S.D.N.Y. June 30, 2014). His observation notwithstanding, however, the judge granted Valle’s motion for a new trial. He did so based on the theory that the government neither demonstrated proof beyond a reasonable doubt that Valle’s chats reflected true criminal intent as opposed to fantasy role-play, and that the government’s evidence was insufficient to distinguish the real communications from the conceded fantasy communications. (emphasis added). In Valle, the Court wrote:

Valle’s visits to Internet sites devoted to death, violence, and kidnapping; his possession of images depicting acts of sexual violence against women; his computer searches regarding kidnapping methods; and his 89 computer folders containing Facebook images of women he knew, all graphically illustrate his depraved interests.  The Government did not, however, meet its burden … the Government offered no evidence that would have permitted a reasonable juror to determine whether someone who is truly interested in kidnapping a woman would be more likely to engage in these activities than someone who is merely interested in fantasizing about kidnapping and committing acts of sexual violence against women.

Even digital communications that may appear damningly unassailable require corroboration or further investigation. As Learned Hand once ruminated, “it does not follow, because a jury might have found [the defendant] guilty of the substantive offence, that they were justified in finding him guilty of a conspiracy to commit it.” United States v. Crimmins, 123 F.2d 271, 273 (2d Cir. 1941).

Proof of mens rea may require something more than digital evidence alone, even if a jury is convinced of a defendant’s guilt. As a result, the prosecution in Valle fell short of building their case for a conviction as a matter of law, a fact that Valle’s attorneys managed to exploit in floating an argument sufficient to warrant a re-trial.

Cases and Related Readings:

The Electronic Footprints of the Mind: Justin Ross Harris, Search History, and Mens Rea

POST WRITTEN BY: Jake B. Sher (’16), Pace Law School

ImageThe District Attorneys of the Information Age have a new tool at their disposal: the internet search histories of their defendants. Used correctly, this tool can grant unprecedented insight into an individual’s mental state regarding an alleged crime. The most recent debate on the issue involves Justin Ross Harris, whose high-profile case about his son’s death by exposure initially suggested a negligent mens rea at best. Investigators got a hold of the internet search history and cell phone data, finding evidence that Harris was communicating with several women while his son was still alive in the vehicle, and allegedly had looked at websites that advocated against having children. Harris’ acts have subjected him to murder charges.

The use of internet search history to secure a conviction is undoubtedly a powerful tool, and its use is nothing new. For instance, Melanie McGuire’s searches for “how to purchase guns?” and “how to commit murder;” Steven Zirko’s extensive search history, or Jared Lee Loughner’s “assassin” research.

Taken in context, internet searches can give important insights into the mind of the individual conducting the search. Taken out of context, however, a person’s internet search history may result in a wrongful conviction. The Eastern District of Wisconsin granted a prisoner’s habeas corpus petition, releasing him from a life sentence for his wife’s murder where his alleged internet search history for “ethelyne glycol poisoning” occurred on the morning of his wife’s death.  The District Court cast doubt on the reliability of the search history for purposes of determining intent, particularly in the context of letters and reports to police suggesting Mrs. Jensen’s concerns about his internet search history. The District Court determined that the admission of such evidence to the exclusion of evidence suggesting Mrs. Jensen was suicidal and had access to Mr. Jensen’s computer at the time that the internet search occurred constituted a violation of the defendant’s Sixth Amendment rights:

… viewed in isolation, the State’s computer evidence against Jensen was quite convincing. But that was not the only evidence the jury heard about the computer. The jury also heard Jensen’s statement to one of the investigators in which he denied any knowledge of the searches for poison and claimed that Julie also used the computer and accessed the internet, information that was confirmed by one of Julie’s friends … Jensen told the investigator that the computer was not password protected and that Julie entered information on a financial program called Quicken and was interested in medical information. … The defense pointed out evidence in the internet history of a search for “suicide” on November 10, 2008, which was also the first day on which the word ethylene glycol appears in the internet history.

Jensen v. Schwochert, No. 11-C-00803, 2013 WL 6708767, 2013 U.S. Dist. LEXIS 177420  (E.D. Wis. Dec. 18, 2013). (Court’s Official Copy)

Searches by individuals online create inadvertent communication between the searching individual and the corporation owning and operating the search engine. It is important to note that the evidence unearthed from internet data may provide just enough information to obfuscate the truth. As Orin S. Kerr stated with regards to digital evidence,

communications normally will not indicate who or what sent or received them, or the context in which they were sent or received.

While internet search histories are helpful tools for obtaining circumstantial evidence regarding the individual’s state of mind conducting the search, they are imperfect vehicles in that process; courts must balance their admission against the Constitutional Rights of the individual conducting the search. In our continued pursuit of the equitable administration of justice in the Internet Age, the words of Justice Cardozo remain resonant:

When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.

Shepard v. United States, 290 U.S. 96, 104 (1933).

Related Readings:

Cases: