1 Book Cover Here Copyright © 2010, Elsevier Inc. All rights Reserved Chapter 8 Offenses Involving...

1

Book CoverHere

Copyright © 2010, Elsevier Inc. All rights Reserved

Chapter 8

Offenses Involving Theft and Deception

Criminal LawNinth Edition

2Copyright © 2010, Elsevier Inc. All rights Reserved

Introduction

In the United States, theft offenses make up the great majority of crimes.

At early common law in England, larceny was the only criminally punishable form of theft.

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Larceny

Common Law Larceny was defined as the felonious taking, by

trespass and carrying away by any person, of the personal goods or things of another from any place, without the owner’s consent and with the felonious intent to permanently deprive the owner of his or her property and to convert it to the taker’s own use or to the use of some person other than the owner.


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Larceny

Common Law The property taken must be personal property. The property must belong to another. It must be taken by trespass from the possession of

another and carried away from the place it occupies. The taking and removal must be accompanied by the

intent to deprive the owner of the property.


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Larceny

Model Penal Code All theft offenses are consolidated into a single

offense. Grading of Theft Offenses

Felony of the third degree Amount exceeds $500. Property stolen is a firearm, automobile, airplane, motorcycle,

motorboat, or other motor-propelled vehicle. Receiving stolen property, if the receiver is in the business of

buying or selling stolen property.


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Larceny

State Statutes, Codes, and Cases Definitions vary, but the general elements are fairly

consistent. Many states have followed the Model Penal Code and

consolidated most of the theft offenses into one statute.

The degree of punishment is determined by the value of the property as well as the number of previous theft convictions.


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Larceny

Larceny A/R

Unlawful; taking; of property; of another; without permission M/R

Intent to permanently deprive (specific intent)


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Robbery

Common Law Elements

Trespass Taking Carrying Away Personal Property Of Another With Intent to Steal From the Person or Presence of Another By Violence or Intimidation


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Robbery

Model Penal Code Robbery is considered under a separate heading from

the consolidated theft statute. A felony of the second degree

Except that it is a felony of the first degree if, in the course of committing the theft, the actor attempts to kill anyone, or purposely inflicts, or attempts to inflict, serious bodily injury.


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Robbery

State Statutes, Codes, and Cases Elements

Taking and Asportation Personal Property of Another With Intent to Permanently Deprive Using Force or Threat of Force from their Person or in their

Presence Lattimore v. United States (1996)


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Robbery

Robbery A/R

Taking, property, of another, without permission, in presence or from person, with force or threat of force

M/R Intentional (specific intent)


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Embezzlement

In embezzlement, the perpetrator acquires possession of the property lawfully, but converts it to his or her own use.

Model Penal Code Consist essentially of two elements

Obtaining property upon an agreement and/or subject to a known legal obligation to make a specified payment or other disposition; and

Dealing with the property as one’s own and failing to make the required payment or disposition.


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Embezzlement

State Statutes, Codes, and Cases To sustain a conviction of embezzlement, it must be

shown that the accused was the agent or bailee of the victim and had, at one time, lawfully possessed the victim’s property but then intentionally converted the victim’s property to his own use.

Elements of embezzlement Fraudulent Intent Appropriation or Conversion By One in Lawful Possession Property of Another


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Embezzlement

Embezzlement A/R

Conversion or appropriation, of property of another, lawfully obtained

M/R Intent to deprive lawful owner (specific intent)


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Obtaining Property by False Pretenses

Common Law The crime did not exist. In 1757, the British Parliament created the crime of

false pretenses to protect victims of unscrupulous criminals who used deception to obtain property.

False pretenses is defined as obtaining property of another knowingly and designedly, by false pretence or pretences, with intent to cheat or defraud any person or persons of the same.


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Model Penal Code Defined as theft by deception.

State Statutes, Codes, and Cases Elements

Obtaining money, goods, or things of value of another By false representation With intent to defraud the owner


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Obtaining Property by False Pretenses A/R

Obtaining money, goods, or things of value of another; by false representation; knowing the same to be false

M/R Intent to defraud (specific intent)


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Extortion

Common Law The traditional definition of extortion was obtaining

money or other things of value by misuse of official power or position.


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Extortion

Model Penal Code A person is guilty of theft if he purposely obtains

property of another by threatening to: Inflict bodily injury on anyone or commit any other criminal

offense; or Accuse anyone of a criminal offense; or Expose any secret tending to subject any person to hatred,

contempt, or ridicule, or to impair his credit or business repute; or

Take or withhold action as an official, or cause an official to take or withhold action; or


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Extortion

Model Penal Code A person is guilty of theft if he purposely obtains

property of another by threatening to: Bring about or continue a strike, boycott, or other collective

unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act; or

Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or

Inflict any other harm which would not benefit the actor.


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Extortion

State Statutes, Codes, and Cases Modern statutes have expanded the crime of extortion

to include what is generally called “blackmail.” Elements

Obtaining money or property of another By threats or coercion To perform certain enumerated acts (or not to perform duties

required by one’s office) The threat causes victim to surrender property


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Extortion

Extortion A/R

Obtain money or thing of value; by threats or coercion to perform or not perform enumerated acts; and property is given in response to threat

M/R Intent (specific intent)


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Receiving Stolen Property

Common Law Under the early English laws, there was no separate

and distinct offense of receipt of stolen property, but the receiver was subject to indictment and punishment as an accessory to the theft itself.

Statutes were soon created to establish the crime of receiving stolen property.

The elements generally included: Receiving stolen property Knowing it to have been stolen With the intent to deprive the owner of it


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Model Penal Code A person is guilty of theft if he purposely receives,

retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed of with purpose to restore it to the owner.

Receiving means acquiring possession, control of title, or lending on the security of the property.


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State Statutes, Codes, and Cases All states have statutory provisions that prohibit

receiving stolen property and provide for those who violate the statute, there are differences in the wording of the various statutes.

Common elements Receipt of property; The property was actually stolen; The receiver knew at the time that such property had been

stolen; and Felonious intent on the part of the receiver.


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Receipt of Stolen Goods A/R

Receipt (possession or constructive possession) of stolen goods

M/R Knowledge (that goods are stolen); intent (felonious, i.e., no

intent to return goods to owner)


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Other Crimes Involving Theft

Operating a motor vehicle without the owner’s consent

Theft of services Theft of property lost, mislaid, or delivered by

mistake


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Forgery and Related Offenses

Common Law Forgery belonged to the class of

misdemeanors called cheats Blackstone’s definition included the elements

currently recognized: “the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.”


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Forgery and Related Offenses Model Penal Code

A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:

(a) alters any writing of another without authority; or (b) makes, completes, executes, authenticates,

issues, or transfers any writing so that it purports to be the act of another who did not authorize that act;

(c) utters any writing which he knows to be forged in a manner specified in paragraphs (a) or (b).


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State Statutes, Codes, and Cases Modern statutes have expanded the types of

documents that can be forged and have increased the penalty of the crime. The essential elements of forgery remain unchanged from the earliest cases.


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Forgery A/R

Fraudulent or false writing or alteration of a writing or document

Courts have insisted that the forgery or the alteration be material; that is, it must have prejudicial effect.

M/R Intent to defraud


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Related Crimes Uttering a forged instrument Criminal simulation Misuse of credit cards Identity theft Computer crimes—state


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False Advertising

Common Law Not a crime at common law The phrase caveat emptor (let the buyer

beware) described the situation between the consumer and merchant. A consumer was expected to know that advertisers may exaggerate or even lie about their product.


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False Advertising

Model Penal Code Consolidated several older crimes relating to

cheating and deceptive practices into one comprehensive statute.

Criminality of the conduct is making “misleading” statements.

It is an affirmative defense to prosecution if the defendant proves, by a preponderance of the evidence, that his or her conduct was not knowingly or recklessly deceptive.


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False Advertising

State Statutes, Codes, and Cases The elements of the crime, as stated in most

statutes and ordinances, are: Publication of False or misleading statement or representation Concerning merchandise or anything of value For purpose of sale, barter, or exchange Intent to deceive or mislead any other person


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False Advertising

False Advertising A/R

Publication of false or misleading statement or representation concerning merchandise or anything of value for the purpose of sale, barter, or exchange

M/R Intent to deceive or mislead another person


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Commercial Bribery

Common Law Bribery was a crime but was limited to the

offering, giving, receiving, or soliciting anything of value with intent to influence the recipient’s action as a public official.

Statutes were enacted later to control commercial bribery, outlawing collusion and kickbacks in commercial and business affairs.


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Commercial Bribery

Model Penal Code More comprehensive than the traditional

statutes relating to commercial bribery. A person who solicits, accepts, or agrees to

accept a consideration must do so “knowingly violating or agreeing to violate a duty of fidelity” in certain specified relationships.


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Commercial Bribery

State Statutes, Codes, and Cases Basically the same elements as common law

bribery of a public official except that the person who receives the benefit is a private

party but is in a fiduciary relationship with an innocent victim.

A fiduciary relationship is in which the party owes the other a duty to put their interest above all others, even oneself


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Commercial Bribery

Commercial Bribery A/R

Giving or offering to give anything of value to a private agent, employee, or fiduciary

M/R Intent to influence the fiduciary’s action in relation

to the principal’s or employer’s affairs


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Miscellaneous Business Offenses

Almost all of these crimes are purely statutory; common law did not cover most of the types of business frauds we are protected from today.

Examples include: Fraud in insolvency Receiving deposits in a failing financial institution Defrauding creditors


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