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May 2013 Archives

Criminal Law of the Day - Criminal Conspiracy

The criminal law of the day is Criminal Conspiracy.  A Conspiracy can be implicated in just about any type of criminal case.  For questions about your case, call 207.775.4255 or visit www.GetZerillo.com. §151. Criminal conspiracy

1.    A person is guilty of criminal conspiracy if, with the intent that conduct be performed that in fact would constitute a crime or crimes, the actor agrees with one or more others to engage in or cause the performance of the conduct and the most serious crime that is the object of the conspiracy is:
A. Murder. Violation of this paragraph is a Class A crime; 
B. A Class A crime. Violation of this paragraph is a Class B crime; 
C. A Class B crime. Violation of this paragraph is a Class C crime; 
D. A Class C crime. Violation of this paragraph is a Class D crime; or 
E. A Class D or Class E crime. Violation of this paragraph is a Class E crime.             
2.    If the actor knows that one with whom the actor agrees has agreed or will agree with a 3rd person to effect the same objective, the actor is deemed to have agreed with the 3rd person, whether or not the actor knows the identity of the 3rd person.                        
3.    A person who conspires to commit more than one crime is guilty of only one conspiracy if the crimes are the object of the same agreement or continuous conspiratorial relationship.            
4.    A person may not be convicted of criminal conspiracy unless it is alleged and proved that the actor, or one with whom the actor conspired, took a substantial step toward commission of the crime. A substantial step is any conduct which, under the circumstances in which it occurs, is strongly corroborative of the firmness of the actor's intent to complete commission of the crime; provided that speech alone may not constitute a substantial step.                        
5.    Accomplice liability for crimes committed in furtherance of the criminal conspiracy is to be determined by the provisions of section 57.                        
6.    For the purpose of determining the period of limitations under section 8, the following provisions govern.
A. A criminal conspiracy is deemed to continue until the criminal conduct that is its object is performed, or the agreement that it be performed is frustrated or is abandoned by the actor and by those with whom the actor conspired. For purposes of this subsection, the object of the criminal conspiracy includes escape from the scene of the crime, distribution of the fruits of the crime, and measures, other than silence, for concealing the commission of the crime or the identity of its perpetrators. 
B. If a person abandons the agreement, the criminal conspiracy terminates as to the actor only when:
(1) The actor informs a law enforcement officer of the existence of the criminal conspiracy and of the actor's participation therein; or
(2) The actor advises those with whom the actor conspired of the actor's abandonment. Abandonment is an affirmative defense. 
7.    It is not a defense to prosecution under this section that another person with whom the actor is alleged to have conspired has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is not subject to prosecution as a result of immaturity, or is immune from or otherwise not subject to prosecution.                        
8.    It is a defense to prosecution under this section that, had the objective of the criminal conspiracy been achieved, the actor would have been immune from liability under the law defining the offense, or as an accomplice under section 57.

IRS Case Presents Interesting 5th Amendment Question

Here is an interesting article from the National Law Journal about the potential waiver of 5th Amendment rights by an IRS official:

IRS Official May Have Unwittingly Lost Right to Silence By Matthew Huisman The National Law Journal May 23, 2013 When Lois Lerner of the Internal Revenue Service invoked her Fifth Amendment right against self-incrimination before a House committee on Wednesday, she did so after making a brief statement. Those remarks have triggered a debate over whether Lerner waived her Fifth Amendment rights. While case law on the subject is limited and fuzzy, most practitioners agree that Lerner risks being held in contempt. "She's gambling here," said Robert Kelner, head of Covington and Burling's election and political law practice. "By making these partial statements before the committee she has at a minimum taken the risk that the committee would hold her in contempt and that a court would later side with the committee." Appearing before the House Committee on Oversight and Government Reform, Lerner protested her innocence before invoking the Fifth Amendment, acting upon the advice of her lawyer, William Taylor III, a Zuckerman Spaeder white-collar defense partner in Washington. The hearing was in response to a May 14 report by the U.S. Department of Treasury's inspector general on the unfair targeting of conservative political groups that applied for tax-exempt status. Lerner heads the IRS exempt organizations office. "I have not done anything wrong. I have not broken any laws," Lerner said. Oversight Chairman Darrell Issa (R-Calif.) said during the hearing that, as far as he was concerned, Lerner had waived her Fifth Amendment rights by making that statement. He told several news organizations that he would recall Lerner to testify. "At this point, I believe you have not asserted your rights, but effectively waived your rights," Issa said. His office did not respond to a request for comment. Typically, witnesses appearing before a panel hearing would invoke the Fifth Amendment without making a statement. Practitioners agreed that in a trial, witnesses are not allowed to provide partial testimony before invoking their rights. "You can't use the Fifth Amendment as a sword and a shield," said Stephen Ryan, head of the government strategies practice at McDermott. George Washington University Law School professor Orrin Kerr, in a post on The Volokh Conspiracy blog, pointed to the 1999 Supreme Court ruling in Mitchell v. U.S. that a witness "may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details." Stanley Brand, founding partner of the Brand Law Group, said via email that "the issue will be whether her statements constitute testimony." He continued, "In any event, if she insists on standing on her rights, the only way for the committee to test this is through the congressional contempt process." The committee would now have to vote to hold Lerner in contempt. Assuming the panel found her in contempt, the full House would have to agree. The matter would then be referred to the U.S. attorney for the District of Columbia, Ronald Machen Jr., who would have the option to take it before the U.S. District Court. Since precedent on the issue is scarce, most practitioners considered it best to err on the side of caution. "The real point is that this is a somewhat fuzzy area of the law, which is why generally lawyers take the conservative approach," Kelner said. "I'm sure her counsel gave this careful thought and it may well be the case that she is able to defend the proposition to waive the privilege."
This presents a very interesting situation. It is extremely important to preserve your 5th Amendment rights in many cases.
Here is a video I did a few years ago on how to assert your right to remain silent: http://www.youtube.com/watch?v=_GzKXOWxtJo&feature=share&list=UUsBCcRGdIK5kF85Hmk1B85Q
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More Client Congratulations From Felony Drunk Driving Client

Here is another note of congratulations to Attorney Amy Robidas and Paralegal Andy Ambrose from a recent client who's felony OUI case was just successfully completed:

Dear Andy,
Thank you for your attention to this matter.  Also please pass on my thanks to Amy and
others for their help in regards to my case.I feel like I was in good hands and sincerely 
appreciate that fact.
 
 
For more on Zerillo Law, LLC, go to www.GetZerillo.com.