This is the first of six posts in which I will analyze the essay questions from the February 2013 California bar exam and will provide sample answers. Below is the first essay question from the California Bar website (here). As you can see, it was a criminal law question. I’ve bolded the facts that I thought were especially relevant. My general thoughts and sample answer are after the jump.
Essay Question
Max imports paintings. For years, he has knowingly bought and resold paintings stolen from small museums in Europe. He operates a gallery in State X in partnership with his three sons, Allen, Burt, and Carl, but he has never told them about his criminal activities. Each of his sons, however, has suspected that many of the paintings were stolen.
One day, Max and his sons picked up a painting sent from London. Max had arranged to buy a painting recently stolen by Ted, one of his criminal sources, from a small British museum.
Max believed the painting that they picked up was the stolen one, but he did not share his belief with the others.
Having read an article about the theft, Allen also believed the painting was the stolen one but also did not share his belief.
Burt knew about the theft of the painting. Without Max’s knowledge, however, he had arranged for Ted to send Max a copy of the stolen painting and to retain the stolen painting itself for sale later.
Carl regularly sold information about Max’s transactions to law enforcement agencies and continued to participate in the business for the sole purpose of continuing to deal with them.
Are Max, Allen, Burt, and/or Carl guilty of:
(a) conspiracy to receive stolen property,
(b) receipt of stolen property with respect to the copy of the stolen painting, and/or,
(c) attempt to receive stolen property with respect to the copy of the stolen painting?
Discuss.
General Thoughts
Be sure to read the call of the question and stick to it. Practice has probably made you used to open-ended, race-horse style questions for Crimes and Torts. Here, however, you have very specific questions. There is no need to address other possible crimes or Tom’s guilt for any crimes. For this reason, it’s frequently helpful to first read the questions before even reading the facts. That way you know exactly what you are looking for and can focus your thinking as you read through the facts.
Sample Answer
Note: I tried to cover all of the issues that I saw in detail. I did not write this under testing conditions, so I do not mean to imply that this is a "passing" answer. This is just meant to help you see some of the issues and potential analysis. Anything that you think I missed? Reach any different conclusions? Do you think it’s worth covering remotely possible defenses with regard to the conspiracy? (I do not think it was actually necessary to address either, but included them for reference). Please chime in with a comment.
A. CONSPIRACY TO RECEIVE STOLEN PROPERTY
A conspiracy is an agreement between two or more people to commit a crime. The crime of conspiracy has three basic elements: (1) an agreement between two or more persons; (2) the intent to enter into the agreement; and (3) the intent to pursue the unlawful objective.
Agreement and Intent to Enter Into Agreement
The agreement need not be express, but there must be a "meeting of the minds." No written or spoken words are required. The parties need not know each other's identities. The majority of jurisdictions require an overt act in order for an agreement to exist - any act, no matter how small, suffices. The minority of jurisdictions and common law do not require an overt act.
Here, Max operates his gallery in partnership with his sons. Max went with his sons to purchase the painting from Ted. They had a plan that they were following.
Thus, the parties had an agreement and the intent to enter into the agreement. The main question is which, if any, of the parties, had the intent to pursue an unlawful objective.
Intent to Pursue an Unlawful Objective
A conspiracy requires a specific intent to enter into an agreement to pursue an unlawful objective. It must be shown that the person had the specific intent/objective in mind. The person must knowingly believe that they have in fact agreed to do something which turns out to be a crime. Mistake of fact is a defense if the person did not believe that what they were going to do was committing a crime (i.e., if they had no intent to pursue an unlawful objective). The test is whether a crime would be committed if the facts were as the person believed them to be.
Here, Max knew that the painting was stolen. He clearly had the intent to pursue the unlawful objective of receiving stolen property. The issue is whether any of the other parties shared this unlawful objective such that a conspiracy was formed.
Allen read an article about the painting and believed it was stolen. For Allen to be guilty, it must be shown that he knowingly believed that he had in fact agreed to do something that turned out to be a crime. Allen believed that the painting was stolen. Therefore, he knowingly believed that in agreeing to go with Tom and his brothers to purchase the painting that he would be committing a crime.
Burt knew that Ted had stolen the painting that Max wished to purchase. However, without Max’s knowledge, he had arranged for Ted to send Max a copy of the stolen painting and to retain the stolen painting itself for sale later. He knew that they would not actually be receiving stolen property, but would only be getting a copy. Therefore, Burt did not actually have the intent to pursue the unlawful objective of receiving stolen property with Max and his brothers.
Carl could argue that he did not have an “unlawful” objective because, although participating in unlawful activity, it was for the sole purpose of providing information to law enforcement. Nonetheless, he still had the intent to pursue an unlawful objective regardless of the purpose for which he was participating. He likely would still profit off of the dealings. However, the facts do not indicate that Carl had any knowledge that the painting they were purchasing from Tom was stolen. The facts state that each of Max’s sons had suspected that many of the paintings that they sold were stolen. They also state that Carl regularly sold information to law enforcement about Max’s transactions. The specific intent required for conspiracy cannot be inferred (i.e., just based on the prior dealings). Therefore, absent more facts indicating that Carl had reason to believe that the painting was stolen, it does not appear that Carl had the specific intent to pursue an unlawful objective with Max and his brothers.
Thus, the court will likely find that only Max and Allen had the intent to pursue an unlawful objective as part of a conspiracy.
Conclusion
The court will likely find that Max and Allen entered into a conspiracy to receive stolen property. They had an agreement and the intent to purchase stolen property. While Burt knew about the stolen painting, he made separate arrangements with Tom and did not have the intent to pursue an unlawful objective with Max and his brothers. While Carl was part of the agreement, the facts do not indicate that he knew about the stolen painting and had the intent to pursue an unlawful objective.
Burt Defense: Withdrawal
If the court somehow found Burt guilty of conspiracy, he might try to raise the defense of withdrawal. In order to raise this defense, the co-conspirator must inform all other co-conspirators of his intent to withdraw and notice must be given while there is still time for the others to abandon their criminal plans. Withdrawal only relieves liability for crimes committed after a successful withdrawal – the co-conspirator is still liable for the conspiracy itself and any reasonably foreseeable crimes that have already been committed in furtherance of the conspiracy. Here, Burt did not give notice of his intent to withdraw from the conspiracy. He secretly made his arrangements with Tom. Thus, Burt would be unsuccessful in raising this defense if the court were to find him to have been part of the conspiracy with Max and Allen.
Carl Defense: Crime Prevention
If the court somehow found Carl guilty of conspiracy, he might try to raise the defense of crime prevention. This defense allows the use of non-deadly force to reasonably prevent a serious breach of peace. It allows the use of deadly force to prevent a dangerous felony involving serious risk of life. However, the defense of crime prevent would not seem to apply here as that more relates to the use of force to prevent a crime (e.g., punching a robber to prevent theft of a purse). Here, Carl was not so much preventing crime as participating in a crime and then selling information. Thus, Carl would be unsuccessful in raising this defense if the court were to find him to have been part of the conspiracy with Max and Allen.
B. RECEIPT OF STOLEN GOODS
A person is guilty of receipt of stolen property if he (1) receives stolen goods, (2) knowing that they are stolen and (3) with the intent of permanently depriving the owner of the goods. The person must receive possession and control of the goods. Manual possession is not required (i.e., a person can possess goods when put in a certain location or when arranging for sale from the thief to a third party). The person must have knowledge that the goods were obtained in a manner constituting a criminal offense (i.e., robbery, embezzlement, larceny by trick). There must be the intent to permanently deprive the owner of his or her interest in the goods. The goods must be stolen. If they are not actually stolen, then the person can be found guilty of attempted receipt of stolen goods, but not the offense itself.
Here, the painting that Max and his sons obtained from Tom was not actually the stolen painting, but was a copy of the painting. As noted above, one of the key elements to be found guilty of receipt of stolen property is the actual receipt of stolen property. Therefore, when Max and his son’s received the painting from Tom, they did not actually receive stolen property.
Thus, because Max, Allen, Burt, and Carl did not actually receive “stolen property” when they received the copy of the painting from Tom, they cannot be found guilty of receipt of stolen property.
C. ATTEMPTED RECEIPT OF STOLEN GOODS
A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. An attempt consists of two elements: (1) a specific intent to commit the crime and (2) an overt act in furtherance of that intent. Attempted receipt of stolen goods requires the specific intent to commit the crime of receipt of stolen goods.
An overt act is one that is beyond mere preparation for the offense. The traditional test is the proximity test that requires an act to be dangerously close to success. The majority rule follows the MPC test which requires a substantial step toward the commission of the crime or a substantial step in the direction of the commission of the crime (i.e., mere preparation is not enough).
Factual impossibility is not a defense. The majority rule is that legal impossibility is a defense. Abandonment is not a defense after substantial steps have been taken.
Max
Max had the specific intent to commit the crime of receipt of stolen goods. Max had arranged to buy a painting recently stolen by Ted, one of his criminal sources. He went to pick up the painting from Ted and believed it to be the stolen painting. This was part of his business – he regularly bought and resold stolen paintings.
Max made an overt act in furtherance of that intent. He made arrangements with Ted to have the painting sent to him from London. He and his sons went to pick up the painting. He was dangerously close to completing the crime. But for the fact that the paintings were switched out, he would have committed the crime.
As noted above, factual impossibility is not a defense. Max cannot argue that he is not guilty of attempted receipt of stolen goods because the painting that he received was a copy.
Thus, the court would likely find Max guilty of attempted receipt of stolen property.
Allen
Allen had the specific intent to commit the crime of receipt of stolen goods. Allen read an article about the painting and believed it was stolen. Allen believed that the painting was stolen. Therefore, he knowingly believed that in agreeing to go with Tom and his brothers to purchase the painting that he would be committing a crime and he continued with the plan.
Allen made an overt act in furtherance of that intent. Believing that the painting was stolen, he went with Max and his brothers to retrieve the painting that had been sent from London. He was dangerously close to completing the crime. But for the fact that the paintings were switched out, he would have committed the crime.
Thus, the court would likely find Allen guilty of attempted receipt of stolen property.
Burt
With regard to the copy of the stolen painting, Burt did not have the specific intent to commit the crime of receipt of stolen goods. Without Max’s knowledge, Burt had arranged for Ted to send Max a copy of the stolen painting and to retain the stolen painting itself for sale later. He knew that they would not actually be receiving stolen property, but would only be getting a copy. Therefore, Burt did not actually have the specific intent to receive stolen property with Max and his brothers.
Thus, the court would not likely find Burt guilty of attempted receipt of stolen property with regard to the copy of the painting.
Carl
Carl could argue that he did not have the specific intent to commit the crime of receipt of stolen property because, although participating in the crime, it was for the sole purpose of providing information to law enforcement. Nonetheless, he still had the intent to commit the crime regardless of the purpose for which he was participating. Intent is a different concept than purpose or motive.
However, the facts do not indicate that Carl had any knowledge that the painting they were purchasing from Tom was stolen. The facts state that each of Max’s sons had suspected that many of the paintings that they sold were stolen. They also state that Carl regularly sold information to law enforcement about Max’s transactions. The specific intent required for receipt of stolen property cannot be inferred (i.e., just based on the prior dealings). Therefore, absent more facts indicating that Carl had reason to believe that the painting was stolen, it does not appear that Carl had the specific intent to receive stolen property.
Thus, the court would not likely find Carl guilty of attempted receipt of stolen property with regard to the copy of the painting.
No comments:
Post a Comment