Crimes Against Property Chapter Eleven Crimes Against Property

Chapter Eleven: Learning Objectives Know that crimes against other people’s property are of three types: taking property, damaging or destroying property, and invading property.   Understand that the crime of theft grew out of the general social concern with violent crimes against persons. Know that the federal mail fraud statute defines false pretenses much more broadly than common law fraud.

Learning Objectives Know that it’s illegal to receive stolen property only if you intend to keep it permanently. Appreciate that the heart of robbery is the use of actual or threatened force to obtain someone else’s property right now. Understand that extortion differs from robbery in that the threat is to use force some time in the future. Know that arson is a felony; criminal mischief is a misdemeanor.

Learning Objectives Understand that the heart of both burglary and criminal trespass is invading other people’s property, not taking, destroying, or damaging it. Understand that criminal trespass used to be limited to unauthorized invasions of physical property, but now it includes unauthorized access to electronic information systems. Know that identity theft is the most prevalent crime in the United States. Appreciate that intellectual property theft results in billions of dollars in losses each

Categories of Crimes Against Property 3 Primary Types Taking other people’s property Theft Robbery Fraud Receiving stolen property Damaging or destroying other people’s property Arson Criminal mischief Invading other people’s property Burglary Criminal trespass Cybercrime New ways of committing crimes against property

Larceny Oldest form of property crime Stealing with stealth Common law larceny elements Taking Carrying away Property of another Without consent and without knowledge Intent to deprive victim of possession

Larceny Only covered cases where person unlawfully took property of victim, didn’t cover cases where victim gave the property to the offender (who then didn’t give it back)

Larceny Tangible property Intangible property Personal property like jewelry Intangible property Paper worth nothing in itself, but is proof of something of value Stocks Bonds Promissory notes

Embezzlement Crime filled in gaps as society became more industrialized Directed at breaches of trust Involves person who was in lawful possession of property unlawfully converting it to their own use (making it theirs) Originally directed at bank clerks and other bailees (people who are entrusted property) it has been the cornerstone of abuse of trust/white collar crimes

False Pretenses Deceiving others into giving up ownership (not just possession) of their property Actus reus: deceiving Larceny = taking Embezzlement = converting False Pretenses = deceiving Deception requires lying to another in order to get the ownership of their property Common law false pretenses was originally common law fraud (misdemeanor)

Larceny and Theft Most states have consolidated the common law crimes of larceny, embezzlement, false pretenses into one offense—Theft Consolidated theft statutes Eliminates need to separate theft into distinct offenses based upon the nature of actus reus. Theft actus reus = taking, carrying away, converting, swindling

Theft Theft mens rea Purposely, knowingly, intentionally Acquiring someone else’s property In order to permanently deprive the owner of his or her possession

People v. Olivio/Gasparik/Spatzier (1981) Summary of case holding Shoplifters do not need to leave the store to be guilty of larceny. Shoplifters treat merchandise in a manner inconsistent with the owner’s continued rights without walking out of the store. The taking of property in the self-service store context can be established by evidence that a customer exercised control over merchandise wholly inconsistent with the store’s continued rights.

Federal Mail Fraud Federal Mail Fraud statute defines false pretenses more broadly than common law fraud. Using the mail to perpetuate a scheme to defraud or for obtaining money or property Used by government to deal with Ponzi schemes Schemers tell investors they’re buying assets like real estate, stocks, etc, but they aren’t They use the money to pay earlier investors… Huge increase in the amount of ponzi schemes and their prosecutions Financial circumstances of last two years has caused many of these to collapse and come to attention of authorities

Federal Mail Fraud (continued) Thefts, frauds, swindles are both criminal wrongs and civil wrongs U.S. v. Coughlin highlights differences in handling these actions in civil system and criminal system

US v. Coughlin/U.S. v. 340 St. Bees Drive (2008/2009) Criminal/Civil Summary of case holdings Opinion in criminal case: jury acquitted Coughlin on 3 counts of mail fraud, and hung on the other counts including on charge of making a false claim to victims compensation fund. (apparently they found him to be believable/credible witness) Civil case: court held that there was probable cause to believe that Coughlin submitted false written statements and made material misrepresentations to the VCF in order to obtain funds to which he was not entitled….court let case continue.

Robbery Robbery is the combined crimes of theft and assault Theft is accomplished under force or threat of force Actus Reus: use of force or threat of force to take property of another How much force is necessary to accomplish robbery Just enough force to accomplish the taking Any amount of force beyond that necessary to accomplish the taking Pick pocketing isn’t robbery because there is no force or threat of force, person doesn’t realize their property is being taken

State v. Curley (1997) Summary of case holding Although we have cases saying that even slight amount of force is sufficient (Minority Rule – Massachusetts), we also have cases in which a taking of property from the person of a victim has not been held to be robbery Adhered to majority rule Robbery is committed when attached property is snatched or grabbed by sufficient force so as to overcome “the resistance of attachment”.

Summary of case holding The court explored the matter of “the resistance of attachment”: The concept should be construed in light of the idea that robbery is an offense against the person, and something about that offense should reflect the increased danger to the person that robbery involves (over the offense of larceny) Not aware…no resistance offered Aware…resists, and thief struggles to separate from owner

Extortion Theft by threats of future harm Extortion differs from robbery in that the threatened harm is to occur at some later point where in robbery the threatened harm is to occur now Extortion mens rea: Specific intent to take someone else’s property by means of threat Extortion actus reus: Wide range of threats by which taking of property is accomplished

Extortion Extortion (Model Penal Code): Threats can be indirect Threats don’t have to involve victim, can be harm toward another person Threats don’t have to involve physical injury, can involve exposing someone to shame or ridicule

Receiving Stolen Property Actus reus Receiving the property Mens rea Varies amongst the states Some states require the receiver know the property is stolen Some states its enough if receiver believe goods were stolen Look at circumstances surrounding to determine whether the person knew or should have known that the goods were stolen

Receiving Stole Property (continued) Mens rea (continued) Some states require receivers be reckless or negligent about whether the property was stolen Disregarded the risk that it was stolen Were unaware of the risk that it was stolen but should have been aware of the risk Receivers have to intend to keep the property permanently

Sonnier v. State (1992) Summary of case holding Texas law requires that receiver knew that property was stolen Looked at all the circumstances of the case and concluded that state did not produce sufficient evidence to prove that defendant knew that the stereo speakers were stolen.

Arson Common Law Arson Malicious and willful burning of the house or outhouse of another Burning Fire had to reach the structure but did not have to burn down Of another At common law, it was not a crime to burn down your own home Dwelling Had to be a place of residence

Arson Modern Arson Includes all types of buildings, vessel, vehicle Property doesn’t have to be another’s Crime against possession and occupancy not just ownership Burning requirements have been relaxed: Starting a fire, even if it never touches the structure Includes explosions

Arson (continued) Arson actus reus: Arson mens rea: “Burning” Williams v. State (1992) Only physical damage caused by fire was smoke throughout house, but under statute, it was sufficient for arson Arson mens rea: Common law (many states follow it) Malicious and willful burning General intent Intent to set afire (not the intent to burn down the building)

Arson (continued) Degrees of Arson Model Penal Code First Degree Burning homes or occupied structures where there is danger to human life Second degree Burning unoccupied structures, vehicles and boats Model Penal Code Divides arson degrees based on blameworthiness Intend to destroy the buildings (not just set fire) = First Degree Intend to just set fire = Second degree

Criminal Mischief Common law crime of malicious mischief Modern law Misdemeanor (Felony Levels in NYS) Destroying or damaging tangible property Modern law Three types of criminal mischief: Destroying or damaging property by fire, explosive or other dangerous act Tampering with tangible property Deception or threat that causes someone to suffer monetary loss

Criminal Mischief (continued) Actus reus: Mirrors the three types of modern criminal mischief Mens rea: Statutes vary greatly Some statutes contain all the Model Penal Code mental states Grading Based on mental state Based on value of property Based on nature of property destroyed

Commonwealth v. Mitchell (1993) Summary of case holding Evidence was sufficient to show that defendants intentionally spray painted graffiti on walls of building and that was factually sufficient to support a conviction, under Pennsylvania law, for criminal mischief. The court also focused on legislative intent to apply the Sections independently…using the term “or”…as well as the level of intent…reckless or negligent

Burglary Common Law Burglary Breaking and entering Dwelling place Of another At night With intent to commit a felony therein

Burglary (continued) Modern Burglary Not just homes, now includes all kinds of structures and stores Day or night Doesn’t have to be the property of another Breaking and entering requirement has been relaxed and now includes entering and remaining unlawfully (surreptitious remaining)

Jewell v. State (1996) Summary of case holding The burglary statute’s requirement that the dwelling be that “of another person” was satisfied by evidence that Jewell’s entry was unlawful. Although Jewell may previously have had some property interest in the marital property, he nevertheless burglarized the home when he entered to commit crimes against his estranged wife and her boyfriend (Wife purchased the house before the marriage, marriage was in dissolution, he moved out, locks were changed, and he forcibly entered through a window)

Burglary (continued) Mens rea Specific intent Two elements Intent to commit the breaking and entering or remaining Intent to commit a crime once inside the structure broken into Note: Statutes vary state to state - some say intend to commit theft, some say intend to commit a felony, some say intent to commit a crime (very general) therein

Burglary (continued) Don’t have to complete the crime that you intended once you get inside Degrees of Burglary Varies among states Nature of structure entered Whether person was armed when entered Nature of crime intended upon entry

Criminal Trespass Broader and less serious than burglary Not limited to occupied buildings No intent to commit crime in addition to the trespass Actus reus: Unlawful entering Unlawful remaining Heart of crime is unwanted presence Mens Rea Varies Knowingly enters without authority, specific intent to enter without authority, strict liability for entering without authority

Cybercrimes Identity Theft Crime committed most often in U.S. Huge costs in terms of time and money for victim Motivations for stealing identity not limited to financial motives Difficulty in apprehending

Remsburg v Docusearch, Inc. Summary of case holding Because of potential risks of misconduct, an investigator must exercise reasonable care in disclosing a information concerning a third person to a client Cause of action exists for person who had information disclosed that they expected would remain private (Social Security Number, but not name and address) Person who obtains a person’s work address by means of pretextual phone calling and then sells the information may be liable (there is cause of action)

Intellectual Property Theft Intellectual property = person’s ideas and their practical application (copyright, patents, trademarks, etc) Intellectual Property is theft costly Unreported or undetected Vocabulary specific to how Intellectual Property theft occurs Rustad: spoofing, piggybacking, data diddling, salami attack, e-mail flood attack, password sniffing, worm