News Letters

MISTAKE OF FACT AS A DEFENSE

The defense of mistake of fact is used when a defendant is accused of committing a particular crime and the defendant admits that he or she committed another crime, which other crime is different from the particular crime and is not a lesser-included offense of the particular crime. The defense is based on the defendant's belief that he or she was committing another crime, which crime is less serious than the crime with which the defendant is charged.

An example of the defense of mistake of fact is when a defendant is charged with possession of a controlled substance or drugs and the defendant claims that he or she believed that he or she was in the possession of stolen property. The defendant claims that he or she does not have the necessary intent to be convicted of the offense of possession of a controlled substance because he or she thought that he or she was in the possession of stolen property.

The defense of mistake of fact does not allow a defendant to evade all criminal liability for an offense. The defendant can be convicted of the offense with which the defendant believed that he or she was committing, even if the defendant was not charged with the offense and even if the offense is not a lesser-included offense of the offense with which the defendant was charged. The defense only prevents the defendant from being convicted of the more serious crime with which the defendant was charged. The defendant may still be convicted of the lesser offense.

The defense of mistake of fact is not a true defense. A defendant does not deny the commission of an offense. The defendant only denies the commission of the offense with which the defendant is charged. However, when the defendant raises the defense, it may eliminate the defendant's criminal liability for an offense because it raises a reasonable doubt regarding the prosecution's proof of an essential element of the offense.

By asserting the defense of mistake of fact, a defendant is generally deemed to have waived his or her right to be charged with the offense that the defendant believed that he or she was committing. In most cases, however, the defendant agrees in writing to waive his or her right to be indicted for the less serious offense after he or she has asserted the defense.

A defendant who claims the defense of mistake of fact is entitled to a jury instruction on the defense. If the jury believes the defendant's evidence, the jury may only convict the defendant of the offense that the defendant admitted. If the jury does not believe the defendant's evidence, the jury may convict the defendant of the offense with which he or she was charged.

FEDERAL HABEAS CORPUS RELIEF

Criminal Law & Procedure: Habeas Corpus: Exhaustion of Remedies

Criminal Law & Procedure: Habeas Corpus: Cognizable Issues

A state prisoner who has been incarcerated for a criminal offense by a state court may challenge his or her conviction by filing a petition for habeas corpus relief in a federal court. The federal court has jurisdiction over the prisoner's custody in a state correctional institution if the incarceration constitutes a violation of the United States Constitution or the laws of the United States . The prisoner's federal habeas corpus petition seeks to secure the release of the prisoner from an unlawful custody. However, in order to be able to file the federal habeas corpus petition, the prisoner must be in custody, the custody must be unlawful, and the prisoner must have exhausted his or her state remedies.

Although federal habeas corpus proceedings are usually the result of a criminal prosecution, the proceedings are not criminal proceedings. The proceedings are separate civil proceedings, which are governed by the Federal Rules of Civil Procedure. They are generally filed against a state officer who has custody of a prisoner, such as a superintendent or a warden of the correctional institution in which the prisoner is incarcerated.

A state prisoner is not entitled to federal habeas corpus relief unless the prisoner is in custody pursuant to a state court's judgment. Although the prisoner does not need to be in physical custody, the prisoner's physical movements must be legally or physically restrained. A prisoner who has been paroled or who is on probation is considered to be in custody for purposes of federal habeas corpus relief.

A state prisoner is not entitled to federal habeas corpus relief unless his or her custody violates the United States Constitution or the laws of the United States . A violation of a state's laws cannot be reviewed in a petition for federal habeas corpus relief. Claims that are recognized in a petition for federal habeas corpus relief generally involve constitutional questions such as the prisoner's due process rights, right to a jury trial, or right to counsel.

A state prisoner is not entitled to federal habeas corpus relief unless he or she has exhausted all his or her state remedies. This means that all the prisoner's claims must have already been litigated in the state courts. The claims must be based on the same facts and legal theories. If the state claims were based on different facts or different legal theories, the prisoner has not exhausted his or her state remedies.

A state prisoner has not exhausted his or her state remedies if he or she has a right under state law to raise a claim. The prisoner has exhausted his or her state remedies if he or she has proceeded through the state's entire appellate process on the same claim that is being presented in his or her petition for federal habeas corpus relief. The prisoner will also be deemed to have exhausted his or her state remedies if he or she can prove that there is no available or effective remedy for his or her claim in the state courts or by proving that presenting the claim to the state courts would be futile.

CRIMES COMMITTED ABOARD AIRCRAFT

Transportation Law: Air Transportation: Airports & Airways

A person is guilty of a federal offense if he or she commits certain crimes aboard an aircraft. Such crimes include murder, attempted murder, manslaughter, attempted manslaughter, maiming, sexual abuse, assault, embezzlement, theft, receiving stolen property, and robbery. These offenses are punishable as federal offenses, even if they are not connected with aircraft piracy or attempted aircraft piracy.

In order to be convicted of a federal offense aboard an aircraft, the aircraft must be in flight and the offense must be committed within the special aircraft jurisdiction of the United States . An aircraft is considered to be in flight from the time that its external doors are closed after embarkation until such time as one of its doors are opened for disembarkation. An aircraft is also considered to be in flight in the event of a forced landing from the time that its external doors are closed after embarkation until authorities take responsibility for the aircraft.

The United States government has special aircraft jurisdiction over any civil aircraft of the United States , over any aircraft of the United States armed forces, or over any other aircraft that is located in the United States . The United States government also has special aircraft jurisdiction over any foreign aircraft or any aircraft that is located outside the United States under the following circumstances: (1) if the aircraft's next scheduled destination is in the United States; (2) if the aircraft's last point of departure was in the United States; (3) if the aircraft lands in the United States with an individual on board who has committed an offense under the Convention for the Suppression of Unlawful Seizure of Aircraft, which convention is also known as the Hague Convention; or (4) if the aircraft lands in the United States with an individual on board who has committed an offense against the aircraft, such as destroying, damaging, or interfering with air navigational facilities or knowingly communicating false information that endangers the safety of the aircraft. The United States government further has special aircraft jurisdiction over any other aircraft that is leased without a crew to a lessee who has his or her principal place of business in the United States or who has his or her permanent residence in the United States .

A defendant may be prosecuted for crimes that are committed aboard an aircraft in the federal district over which the aircraft was flying at the time of the offense. However, if the aircraft was diverted as a result of the offense, venue may also be proper in the federal district in which the aircraft landed.

Crimes that are committed aboard an aircraft generally apply to assaults and other offenses that are committed against passengers of the aircraft. However, the crimes may also be committed against flight crew members or flight attendants. If the crimes are committed against the flight crew members or the flight attendants, they may be prosecuted as a separate offense or they may be a lesser-included offense of the offense of interfering with flight crew members or flight attendants.

Criminal Forfeitures

Criminal forfeiture actions are generally thought of as a quasi-criminal matter. Criminal forfeiture involves the literal forfeiture of the defendant's personal or real property. Probable cause must be shown to support the seizure of property subject to forfeiture.

There are various types of items that may be subject to criminal forfeiture. Some of the types of items include:

• bank accounts
• autos, boats, trailers and other recreational vehicles used in connection with the criminal activity
• other instrumentalities used in the commission of the crime
• real property, including things growing on or affixed to the land or found in the land
• tangible and intangible personal property, including rights, privileges, interests, claims, and securities
  

Typically, criminal forfeiture statutes provide for the restraint of the asset rather than the seizure of the forfeitable asset prior to the defendant's conviction. If a restraining order, injunction or the like is not sufficient to prevent the assets from dissipation, a seizure warrant may be issued.

Forfeiture and Sentencing

Under federal law, the court imposing sentence upon the defendant may order that he forfeit any property involved in the offense or any property that is traceable to the property sought to be forfeited. Further, the court may order the defendant to forfeit any proceeds obtained directly or indirectly, as a result of violating the law.

Forfeiture is most commonly imposed with respect to convictions under the Racketeer Influenced and Corrupt Organizations (RICO) statute. In accordance with a RICO conviction, the defendant is required to forfeit:

• any interest or security in property or contractual rights of any kind affording a source of influence over any enterprise, which the defendant has established, operated, controlled or participated in
• any property constituting or derived from any proceeds that the defendant obtained directly or indirectly from racketeering activity or unlawful debt collection

The defendant may not only be subject to forfeiture of personal or real property, but may also be fined. It is within the trial court's discretion to impose a fine along with forfeiture of property. However, the fine may not exceed twice the gross profits or other proceeds.

SELF-DEFENSE

Self-defense is a defense that may be claimed by a defendant when the defendant reasonably believes that force is necessary for his or her protection against another person's use or attempted use of unlawful force. Self-defense means that the defendant is justified in using force against the other person.

Justification based on self-defense depends on the existence of a necessity, on the circumstances under which the force was used, and on the degree and type of force that was used. The amount of force that is used must be proportionate to the amount of force that a defendant encountered. The defendant is justified in using more force against another person only when the other person has used severe force against the defendant.

A defendant must generally admit that he or she committed an intentional act in order to claim self-defense and in order to be entitled to a jury instruction on self-defense. The defendant must also claim that his or her intentional act was justified. However, the defendant may deny certain allegations regarding his or her intentional act and be entitled to a jury instruction on self-defense.

A reasonable belief that force is necessary for a defendant's protection does not require actual danger to the defendant. If the defendant's belief is reasonable, the defendant is entitled to use force to protect himself or herself. A belief is reasonable if an ordinary and prudent person would have had the same belief under the circumstances. The defendant's belief is based on his or her apprehension at the time of the danger. The danger does not have to be real. It may be an apparent danger. The danger must be viewed from the defendant's perspective in order to determine what a reasonable person would have done under the circumstances.

A defendant may be entitled to use deadly force against another person. Deadly force means force that is intended or known to cause death or serious bodily injury or that is capable of causing death or serious bodily injury. Serious bodily injury is an injury that creates a substantial risk of death, of serious permanent disfigurement, or of loss or impairment of a bodily member of organ. A defendant is entitled to use deadly force if he or she would be justified in using non-deadly force, if a reasonable person would not have retreated, and if the defendant reasonably believed that deadly force was necessary in order to protect the defendant against the other person's use of unlawful deadly force. However, the defendant cannot use deadly force unless he or she formed a reasonable belief that he or she was in danger of death or serious bodily injury. The defendant may base his or her belief on the other person's words or actions.

A defendant is generally required to retreat before he or she uses deadly force against another person, if the defendant could safely retreat and if a reasonable person would have retreated under the circumstances. If a reasonable person would have retreated, the defendant is not entitled to a jury instruction on self-defense. The defendant's duty to retreat depends upon his or her location at the time of an incident and upon the circumstances. The duty to retreat does not apply to the use of non-deadly force.

A defendant is not entitled to use force if he or she was merely responding to a verbal provocation. However, verbal threats may justify the use of force if the threats are accompanied by acts that show an intent to carry out the verbal threats.

A defendant is not entitled to use force if he or she is acting in response to a lawful assertion of force, such as in the case of a search or an arrest of the defendant. If the defendant is being arrested or is being searched by a law enforcement officer, the defendant is not entitled to use force, even if the arrest or search is unlawful. The defendant is only entitled to resist arrest if the law enforcement officer uses excessive force before the defendant resists his or her arrest. The defendant must know that the person who was using excessive force was a law enforcement officer. If the defendant did not know the identify of the person who was making the arrest, the defendant is entitled to use force, even if the person is a law enforcement officer.

A defendant is not entitled to use force if he or she consents to the force that is being used by another person. Examples of consent to the use of force include medical treatment or mutual combat, such as a boxing match. However, in order for the defendant to have consented to force in a boxing match, the defendant must have agreed to engage in mutual combat.

A defendant is also not entitled to use force if he or she provoked another person into using unlawful force against the defendant. However, the defendant may be entitled to use force, even if he or she provoked the other person, if the defendant shows that he or she abandoned his or his encounter with the other person and if the other person continued to use unlawful force against the defendant. Provocation on the part of the defendant means that the defendant intended to provoke the other person and that the defendant engaged in some act towards the other person.

In order to be entitled to a jury instruction on self-defense, a defendant must show that he or she reasonably believed that the use of force was necessary. Such a showing may be introduced by the defendant's testimony or by other evidence. The defendant is not entitled to a jury instruction on self-defense unless another person committed some type of overt act that led the defendant to believe that force was necessary. In some states, the defendant may introduce evidence of the other person's violent or aggressive character. However, if the defendant introduces evidence of the other person's violent character, the prosecution is entitled to introduce evidence of the other person's peaceful character.

After a defendant meets his or her burden of proof with regard to evidence that justifies the use of force, the prosecution may produce evidence that the defendant was not entitled to act in self-defense. The prosecution's burden is only a burden of persuasion and not a burden of proof, however. The prosecution does not have to prove that the defendant was not entitled to act in self-defense. The prosecution may show that the defendant previously used force against another victim or previously committed other unrelated offenses that show the defendant's propensity for violence.

Self-defense is a defense that is normally presented at the guilt stage of a defendant's criminal proceedings. It may not be used at the penalty stage of the proceedings in order to mitigate the defendant's punishment for an offense. However, in some states, the defendant may claim self-defense at the penalty stage for an offense that is punishable by the death penalty.