Federal Law & Legal System – Page 152 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: What If the Defendant Thought He Was Breaking the Wrong Law?

Post author:Michael M. O'Hear
Post published:June 20, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

When Doli Pulungan attempted to export 100 military-grade riflescopes to Indonesia in 2007, he knew he was breaking the law. He was just wrong about which law. His clients told him there was a ban on military exports to Indonesia, but the ban actually expired in 2005. Instead, Pulungan violated a different law that requires a license in order to export “defense articles.” Thus, his elaborate ruse of shipping through Saudi Arabia in order to evade the nonexistent Indonesia embargo did him no good. A jury ultimately convicted him of “willfully” attempting to violate the export license law, and a judge sentenced him to four years’ imprisonment.

But was his violation truly “willful”? On appeal, the government conceded that “willfully” means “with knowledge that a license is required,” but argued that the evidence established Pulungan had this knowledge. The government relied chiefly on Pulungan’s dishonesty with business associates about what he intended to do with the riflescopes and his intent to violate the nonexistent embargo. But Pulungan’s dishonesty is readily explained by his belief that he was violating the wrong law. Thus, as the Seventh Circuit saw it in United States v. Pulungan (No. 08-3000), the government was really invoking the doctrine of transferred intent: “As the prosecutor sees things, an intent to violate one law is as good as the intent to violate any other.” The court, per Chief Judge Easterbrook, was unmoved by this use of the transferred intent doctrine and overturned Pulungan’s conviction.

Thoughts on Yeager: Role of Appellate Judges, Special Verdict Forms, and the Significance of a Hung Jury

Post author:Michael M. O'Hear
Post published:June 20, 2009
Post category:Criminal Law & Process Judges & Judicial Process U.S. Supreme Court

enron Last week, in Yeager v. United States, the Supreme Court resolved a longstanding tension between two aspects of Double Jeopardy law: the collateral estoppel doctrine, which precludes relitigation of issues previously found in the defendant’s favor, and the hung jury rule, which permits relitigation of charges as to which a jury cannot reach agreement.

Yeager, an Enron employee, was charged with multiple counts of fraud and insider trading. The counts were factually linked: Yeager’s alleged fraud was that he knowingly participated in making false statements to investors regarding the performance of a new Enron project, while his alleged insider information was his knowledge that the project was not actually going so well. At trial, the jury acquitted Yeager of fraud, but hung on insider trading. A long line of Supreme Court cases permits retrial when the jury hangs, and the government indeed sought to take advantage of this Double Jeopardy exception by recharging Yeager with insider trading.

Yeager nonetheless presented a Double Jeopardy defense, invoking the collateral estoppel rule of Ashe v. Swenson. In Yeager’s view, the first jury necessarily determined that the government failed to prove he knew the falsity of the statements made to investors. If he did not know about the gap between what investors were told and the actual state of affairs, then the government’s insider trading theory would collapse. In the government’s view, however, the first jury might have acquitted instead based on doubt about whether Yeager actually participated in making the false statements; uncertainty about what the jury actually decided in its acquittal would preclude application of Ashe. The district court agreed with the government’s view, but the Fifth Circuit reversed. The Supreme Court then affirmed, holding that application of the collateral estoppel doctrine was not affected by the seeming inconsistency in the jury’s treatment of the fraud and insider trading counts.

Besides its holding, three aspects of Yeager strike me as worthy of note.

Bork Reconsidered, Part II

Post author:Edward A. Fallone
Post published:June 16, 2009
Post category:Constitutional Interpretation U.S. Supreme Court

In an earlier post, I compared the nominations of Judge Sonia Sotomayor and Judge Robert Bork in order to make some observations about the role of stare decisis and its relationship to judicial activism. My argument was that a respect for the wisdom of past practice and a preference for incremental change will allow Judge Sotomayor to avoid being tagged as a radical jurist unworthy of confirmation. In contrast, Judge Bork had a record that left him vulnerable to such a charge (even if unwarranted). Also worthy of mention here is Professor David Papke’s earlier recollection of Professor Bork in the classroom.

In the discussion that follows, I will continue to use the Sotomayor/ Bork comparison in order to draw out the manner in which the Supreme Court’s interpretation of the Second Amendment threatens to undermine the very philosophy of constitutional interpretation that is most closely associated with Judge Bork.

Opponents of the Sotomayor nomination have seized on the Second Amendment as an issue with which to attack her. Portraying her as an opponent of the constitutional right to own firearms is a strategy that will certainly succeed in energizing the base of the Republican Party. If she rises to the bait during her confirmation hearings, and expresses any skepticism over the correctness of the District of Columbia v. Heller case – striking down the DC handgun ban– then efforts to paint her as a liberal jurist who is out of the mainstream might gain some traction with the public.