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September 28, 2011

"As Federal Crime List Grows, Threshold of Guilt Declines"

P1-BC675_MENSRE_NS_20110926180027 The title of this post is the headline of this lengthy article from yesterday's Wall Street Journal.  Here are excerpts:

Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s.

One controversial new law can hold animal-rights activists criminally responsible for protests that cause the target of their attention to be fearful, regardless of the protesters' intentions.  Congress passed the law in 2006 with only about a half-dozen of the 535 members voting on it.

Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don't merely show that the accused took someone's property, but also show that he or she knew it belonged to someone else.  Over time, lawmakers have devised a sliding scale for different crimes.  For instance, a "willful" violation is among the toughest to prove.

Requiring the government to prove a willful violation is "a big protection for all of us," says Andrew Weissmann, a New York attorney who for a time ran the Justice Department's criminal investigation of Enron Corp.  Generally speaking in criminal law, he says, willful means "you have the specific intent to violate the law."     A lower threshold, attorneys say, involves proving that someone "knowingly" violated the law.  It can be easier to fall afoul of the law under these terms.

In one case, Gary Hancock of Flagstaff, Ariz., was found guilty in 1999 of violating a federal law prohibiting people with a misdemeanor domestic violence record from gun ownership. At the time of his domestic-violence convictions in the early 1990s, the statute didn't exist—but later it was applied to him. He hadn't been told of the new law, and he still owned guns. Mr. Hancock was convicted and sentenced to five years' probation.

His lawyer, Jane McClellan, says prosecutors "did not have to prove he knew about the law. They only had to prove that he knew he had guns." Upholding the conviction, a federal appellate court said that "the requirement of 'knowing' conduct refers to knowledge of possession, rather than knowledge of the legal consequences of possession."

In 1998, Dane A. Yirkovsky, a Cedar Rapids, Iowa, man with an extensive criminal record, was back in school pursuing a high-school diploma and working as a drywall installer. While doing some remodeling work, Mr. Yirkovsky found a .22 caliber bullet underneath a carpet, according to court documents. He put it in a box in his room, the records show.

A few months later, local police found the bullet during a search of his apartment. State officials didn't charge him with wrongdoing, but federal officials contended that possessing even one bullet violated a federal law prohibiting felons from having firearms. Mr. Yirkovsky pleaded guilty to having the bullet. He received a congressionally mandated 15-year prison sentence, which a federal appeals court upheld but called "an extreme penalty under the facts as presented to this court." Mr. Yirkovsky is due to be released in May 2013....

Overall, more than 40% of nonviolent offenses created or amended during two recent Congresses — the 109th and the 111th, the latter of which ran through last year — had "weak" mens rea requirements at best, according to a study conducted by the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers. The study, one of the few to examine mens rea, was extended to include the most recent Congress at the request of The Wall Street Journal.

Earlier this year, Justice Antonin Scalia, in a dissent from a Supreme Court decision upholding a firearms-related conviction, wrote that Congress "puts forth an ever-increasing volume" of imprecise criminal laws and criticized lawmakers for passing too much "fuzzy, leave-the-details-to-be-sorted-out-by-the-courts" legislation.

Lawmakers on both sides of the aisle worry about the weakening of mens rea. "Over my six years in Congress there have been many times when in discussions with members of Congress I say, 'Look, I know you want to show people how serious you are about crime, but don't put anything on the books that doesn't require criminal intent,'" says Rep. Louie Gohmert, (R., Tex.) a former state judge who wants the federal system reworked....

F. James Sensenbrenner, a Wisconsin Republican and chairman of the House crime subcommittee, said he wants to clean up the definition of criminal intent as part of a broader revamp of the criminal-justice system. There are crimes scattered among 42 of the 51 titles of the federal code, with varying standards of criminal intent. Still others are set by court decisions. "How the definition of mens rea is applied is going to be one of the more difficult areas to figure out a way to fix," he said.

The WSJ also has this very cool and very useful "Interactive Graphic", headlined "Tracking the Growth of Federal Criminal Sentences" which makes it much easier and much more fun to understand and assess federal sentencing patterns than anything I have ever seen put together by the US Sentencing Commission.

September 28, 2011 at 11:05 AM | Permalink


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Does anyone believe that a fellow "with an extensive criminal record" just happens to "find" some ammo "underneath a carpet" and then, for reasons unstated (why would that be?) makes the quite curious decision to "put it in a box in his room"?

Does this story seem a little fishy?

Posted by: Bill Otis | Sep 28, 2011 12:28:23 PM

There is a pretty substantial leap, or there should be, from "fishy" to "beyond a reasonable doubt" and a 15 year prison sentence. The point of the complaint about a lack of mens rea is that the quite large gap between those categories has been narrowed to the point where it's no longer a leap but merely a small step, and a virtually routine one.

Posted by: Gritsforbreakfast | Sep 28, 2011 12:41:36 PM

all this does is show how far over the edge this criminal govt has gotten and how overdue for a major change we are!

Posted by: rodsmith | Sep 28, 2011 1:38:57 PM

I think it was a bad decision on his part but perhaps not fishy. I still find a .22 round periodically when I go through old hunting jackets from my teen years (20+ years ago). Of course, if it was now illegal for me to possess one I would get rid of it immediately instead of putting it in a box (I think what would also be relevant is some clarification. Did he find it on the job as a drywall installer or was he renovating his own home and found it?).

In any event, I do not see intent. A .22 caliber bullet is very tiny, the next step down being an air rifle. I am not sure how much trouble he intended to get into with that. 15 years seems excessive. If the state was going to ignore it, I fail to see why the Feds needed to be involved.

Posted by: TarlsQtr | Sep 28, 2011 1:47:47 PM

Bill behind your left ear, yes thats it, that little yellow button, that
is your Pre-Booker Guideline Over ride control switch... At times you need to press it in firmly for 5 seconds, then you can operate in a more normal mode..

The feds have gone totally over board on there statues....there sentenceing is roughtly 2-5 times longer than similar state sentences( time served), and there supervised release, you don't get credit for what you do serve, in most cases...

Bill you need to press the button, now and leave it on for for at least a week or 2. I know it will be scarry for you to come out of that lilly white vacuum
that you live in, but try it...Its called having a life and not assuming that everyone in the world has bad intentions...for every act..

Bill you are a sheep, a follower and do not contribute anything positive to the world....A legend in your own mind.....Always wondered why an ex USAO hung around this site stomping on peoples miseries.... NO LIFE....

I think you need to get ahold of yourself Bill...Before that big monster of a guy whom you appealed (you commented on, long time ago)and got the Career Offender tag and sentence applied, gets out... Maybe thats why you are like cold bold callahan (dirty Harry bill) always assuming the worst in everyone..
Bill you don't have any clever lines and get old real fast..

I think you need to date G.I. Jane, after a few @ss kickings by a Demi type, maybe even EWE would smell the roses....Maybe...BYYYEEE BIIILL

Posted by: Josh2 | Sep 28, 2011 2:23:18 PM

Josh2 --

OK, that's cool. Now does the story sound fishy or not?

Posted by: Bill Otis | Sep 28, 2011 2:58:03 PM

TarlsQtr --

Finding a bullet in a hunting jacket is one thing. Allegedly finding it under a rug is another.

In addition, for a law-abiding hunter to find a bullet is one thing. For a person with "an extensive criminal record" (but not hunting experience we're told about) to "find" it is another.

And to keep it for months -- what's that about?

I agree that 15 years seems excessive, IF what we're getting here is the whole story. It was precisely to invite people to think about that that I asked whether what is obviously a truncated account seems fishy.

One reason I ask this, although not the only one, is that much of the media rendition of the Troy Davis case simply omitted huge amounts of relevant evidence, and said nothing more than that "seven of the nine witnesses recanted." But when you look at the full circumstances of the "recantations," and at the very substantial amount of inculpatory evidence that the media never hinted existed (but Judge Moore's opinion spells out), you can understand why Davis got not one single vote on the SCOTUS.

Moral of story: It's risky to make up your mind about a case when the rendition of it has as many holes in it as this one obviously does.

Posted by: Bill Otis | Sep 28, 2011 3:13:14 PM

@Bill....I would have to say if the locals didnot pursue it, why should the feds.. I donot think the story sounds fishy at all...Think about it...In rural areas where people hunt or plink with a .22, they have the shells in their shirt pockets, pants, old coats....Why is it improbable that this guy found a shell under the carpet either his place or another and tossed in a box at home....He didn't have a gun and the shell was in a place that fits his story.... (Very few people know that possession of shells can get them in a Federal case, if they have a Domestic assault case...I would like to see this taken off the federal gammitt totally...)

More important is that the Feds statues are way too broad, in that they could lasso this guy for the ACCA term...

It doesn't matter what his backgroud was....He didn't do anything and there was no intent to do so....It is odd that the police should be at his apt, but as the sketchy matter states, he had a full and colorful background... Obviously, if he had 3 prior felonies at the time the .22 shell was found....

Its cases like this that piss off the public and the way the Feds operate and spend money....Its all pretty much behind closed doors when they craft these

Look at the FSA, 2 levels for running a drug house....HAve to be kidding....AT that point a person already collected several felonies and likely enhancements....That was just tossed in there at the last minute by someone
who had an axe to grind, politically....How about if any threats were involved, thats also I believe a 2 level increase...(FSA) WOW, I can just see a low level mule singing to the USA...Yes he said he would kick my tail if I didn't do this....REALLY...a 2 level enhancement for that... It will happen and am sure it already has..

You took my previous post remarkably well...But ....

Hang'em Hang'em High (continue with my Clint eastwood theme)

Posted by: Josh2 | Sep 28, 2011 3:36:40 PM

This is my favorite all time case on uncharged relevant conduct. Yes the guy wasnot the local favorite to say the least.. But he shouldnot have gotten anything close to this..

Google this: Duck Hunter gets 30 yrs..

Posted by: Josh2 | Sep 28, 2011 3:40:12 PM

To read "bullet" ruling--on Google screen, go to More--go down to Scholar--you can type in this case: US v. Yirkovsky, 259 F. 3d 704 - Court of Appeals, 8th Circuit 2001 (actually can type in Yirkovsky and bullet--and pull up the ruling)
I too believe the sentencing was especially harsh. He appealed under the 8th Amendment. My reading of recent 8th amendment rulings is that there IS no longer ANYTHING that applies as an 8th Amendment violation (as long as it is time in prison or a monetary penalty). The judges seem to either say, "eh, don't like it, but gotta do it" OR "well, if we twist the statutes into a pretzel, we can see that as this punishment seems to go only a little bit, ok a lotta bit over---but I can justify it, I think, so I'll go for it" decisions.
But as the subject of this post is that "Threshold Declines" for guilt---again I will state that as a Federal Defendant who just went thru trial and was acquitted of all charges, that it was terrifying to be accused of buying a boat
and lending my sister money. I DID do these things. My case was All About the
"Knowing"--( the prosecution had zero direct evidence that I "knew" what I was doing was a crime. I had to go through a three year ordeal because they concluded what I was doing with my money Might be Fishy if you look at it in a certain light.) My "void for vagueness" pretrial motion to dismiss the charges was denied, as the judge said it was "premature"---meaning the only way to decide was at trial. Anyway, you can be accused of "knowingly" violating the law by spending money "wrong".

Posted by: folly | Sep 28, 2011 6:25:35 PM

The Yirkovsky case is not an isolated incident. There is at least one other example of a defendant who received 15 years in prison for possessing a single bullet, without a gun or any other contraband present. This one occurred in Corpus Christi, Texas. In that case, if I recall correctly, someone had found a bullet on the ground and put it in the ashtray of his car. As I heard it described, it was old, weathered, and it wasn't even clear that it would have fired. But it was enough to put someone away for a decade and a half.

Posted by: C.A.J. | Sep 28, 2011 9:26:07 PM

Not from me, but from Father Finigan ( http://the-hermeneutic-of-continuity.blogspot.com/2007/07/whatever-happened-to-mortal-sin.html ):

"So first of all, some basics. For a sin to be a mortal sin, there must be all three of the following:

Grievous matter – the thing must be serious in itself. Sometimes the Church clarifies this question. For example, it is the teaching of the Church that in sexual sins, there is no “light matter”
Perfect knowledge – the person must know that the act is a sin and that it is serious.
Full consent – the person must give the full consent of their will to the act. This would not be present if they acted under force or fear, for example.

A number of problems have arisen in recent years. Some theologians have contradicted the teaching of the Church about the gravity of some sins – or even whether they are sinful at all. Contraception would be an example where this has happened."

First, who are people that still speak Latin? Church officials. So the use of any Latin phrase in any legal utterance promotes one religion, and violates the Establishment Clause. Any latin should void the legal utterance as unconstitutional in our secular nation.

Second, intent is not any entity that exists in nature. I understand many real entities are invisible, but all leave some verifiable evidence of their presence.

Lastly, it does not matter if the hunter shooting another was drunk or whether the other's wife hired him to do that for $10,000. From an incapacitation/utilitarian view, the careless hunter may be far more dangerous. His incarceration may have a far greater return on investment.

So all crime should cause real damage and all should be strict liability to avoid a supernatural concept, intent.

Posted by: Supremacy Claus | Sep 29, 2011 3:47:33 AM

I propose to add another crime to list of Federal offenses. Lawyer rent seeking. It should be a capital crime.

Posted by: Supremacy Claus | Sep 30, 2011 1:29:12 AM

"Bill you are a sheep, a follower and do not contribute anything positive to the world....A legend in your own mind.....Always wondered why an ex USAO hung around this site stomping on peoples miseries.... NO LIFE...."

LOL. Isn't that the truth! :-)

People with extensive criminal records don't find things - they especially would not put something anywhere even if they did find it - so the fact that he found a bullet makes his actions dubious.

Posted by: Huh? | Oct 6, 2011 5:27:03 PM

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