Criminal Law Ninth Edition Book Cover Here Chapter 13 United States Criminal Code: Other Offenses Copyright © 2010, Elsevier Inc. All rights Reserved 1 13.2 Adultery and Fornication Title 18 § 2421 includes a penalty for one who knowingly transports an individual in interstate or foreign commerce with intent that such individual engage in “any sexual activity for which any person can be charged with a criminal offense.” This applies to adultery if adultery is a crime under the state law. Copyright © 2010, Elsevier Inc. All rights Reserved 2 13.2 Prostitution 18 U.S.C. § 2421—Transportation generally Whoever knowingly transports any individual in interstate or foreign commerce, or any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both. Copyright © 2010, Elsevier Inc. All rights Reserved 3 13.2 Prostitution 18 U.S.C. § 2422—Coercion and enticement Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both. Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both Copyright © 2010, Elsevier Inc. All rights Reserved 4 13.2 Prostitution It is not double jeopardy to convict a defendant under both sections 2421 and 2422, because these are separate and distinct offenses. It is not improper to convict one defendant of two violations for the single act of transporting a minor female and an adult woman across the state line for purposes of prostitution. Copyright © 2010, Elsevier Inc. All rights Reserved 5 13.2 Prostitution 18 U.S.C. § 2423 Transportation of Minors Transportation with intent to engage in criminal sexual activity. A person who knowingly transports any individual under the age of 18 years in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so shall be fined under this title or imprisoned not more than fifteen years, or both. Copyright © 2010, Elsevier Inc. All rights Reserved 6 13.2 Prostitution United States v. Scisum The defendant appealed his conviction, arguing that the definition of “intent” was too vague. The reviewing court held that the word “intent” was of common enough usage to be clear to a reasonable lay juror. The court advised, however, that the government must prove that the defendant formed intent before the defendant transported the person across state lines. Copyright © 2010, Elsevier Inc. All rights Reserved 7 13.2 Prostitution United States v. Taylor The court indicated that if a person knowingly transports a person for the purposes of prostitution or another sex offense, the transporter assumes the risk that the victim is a minor, regardless of what the victim says or how the victim appears. Copyright © 2010, Elsevier Inc. All rights Reserved 8 13.2 Prostitution Title 18 § 1384 authorizes the secretaries of the Army, Navy, and Air Force to designate areas within a reasonable distance of any military or naval camp, station, or post, where prostitution and other related offenses shall be prohibited, and provides a fine or imprisonment for failure to comply with such directive. Copyright © 2010, Elsevier Inc. All rights Reserved 9 13.2 Obscenity Chapter 71 of the United States Code (“Obscenity”) comprehensively lists and defines offenses dealing with obscenity and related issues. Section 1460—Possession with intent to sell, and sale of, obscene matter on federal property. Section 1461—Mailing obscene or crime-inciting matter. Section 1462—Importation or transportation of obscene matters. Section 1463—Mailing indecent matter on wrappers or envelopes. Section 1464—Broadcasting obscene language Section 1465—Transportation of obscene matters for sale or distribution. Section 1466—Engaging in the business of selling or transferring obscene matter. Copyright © 2010, Elsevier Inc. All rights Reserved 10 13.2 Obscenity Chapter 71 of the United States Code (“Obscenity”) comprehensively lists and defines offenses dealing with obscenity and related issues. Section 1466A—Obscene visual representation of the sexual abuse of children. Section 1467—Criminal forfeiture. Section 1468—Distributing obscene material by cable or subscription television. Section 1470—Transfer of obscene materials to minors. Section 2252A—Certain activities relating to material involving the sexual exploitation of minors. Copyright © 2010, Elsevier Inc. All rights Reserved 11 13.2 Obscenity Miller v. California Obscenity was defined by answering the following questions: Does the material appeal to prurient interests? Does it depict “hard-core” sexual acts previously defined by state law in a patently offensive way? Does it lack serious literary, artistic, political, scientific, or other value? Copyright © 2010, Elsevier Inc. All rights Reserved 12 13.2 Obscenity The Eleventh Circuit Court of Appeals decided that § 1461, which prohibits knowingly using the mail for obscene materials, applies to persons who order obscene materials through the mail, even if they are for personal use. Copyright © 2010, Elsevier Inc. All rights Reserved 13 13.2 Obscenity United States v. Schein The defendant was convicted of mailing obscene materials. The defendant appealed, claiming that similar material had been shown at an exhibit funded by the government’s National Endowment for the Arts, and that his tapes promoted sexual safety. The reviewing court rejected the defendant’s arguments. Copyright © 2010, Elsevier Inc. All rights Reserved 14 13.2 Obscenity United States v. Schein The court held that: Obscene material is not protected by the First Amendment. The fact that the photographs of urolagnic pornography were shown at exhibits funded by the National Endowment for the Arts did not establish that videotapes containing graphic depictions of urination, masturbation, and oral and anal sex among homosexual males were not obscene. Merely promoting safe sex does not bring the material within the exception noted in the Miller case. Mere availability of similar material means nothing more than other persons are engaged in similar activity. Copyright © 2010, Elsevier Inc. All rights Reserved 15 13.2 Obscenity United States v. Thomas The federal court made it clear that section 1465, as amended, applies to computer-generated images moved from the defendants’ computer bulletin board in one state to a personal computer in another state. Copyright © 2010, Elsevier Inc. All rights Reserved 16 13.2 Obscenity United States v. X-Citement Video The Supreme Court dealt with the question of whether the offender had to know the performer was a minor, or whether the verb “know” related to knowingly transport, receive, or distribute. The Supreme Court held that “knowing” refers to the knowledge that one of the performers in the material was underage. Copyright © 2010, Elsevier Inc. All rights Reserved 17 13.2 Obscenity United States v. Hersh The circuit court held that a conviction for receipt and possession of child pornography was supported by evidence that the defendant knowingly received and possessed computer files containing images, that the images were received via the Internet, and the images portrayed real minors engaged in sexually explicit conduct, and that the defendant was aware of such. The act requires the introduction of evidence that shows that the visual depiction involves the use of a minor engaging in sexually explicit conduct, and such visual depiction is of such conduct. Copyright © 2010, Elsevier Inc. All rights Reserved 18 United States v. Fox 13.2 Obscenity One federal court held that it was not unconstitutional to apply the child pornography definition to computergenerated images. Ashcroft v. Free Speech Coalition The Supreme Court ruled on the question and concluded that the provision violated First Amendment freedoms because it was overbroad and not closely related to the purpose of the statute, which was to protect children. Copyright © 2010, Elsevier Inc. All rights Reserved 19 13.2 Abortion The laws restricting and/or criminalizing abortions are state laws. The Freedom of Access to Clinic Entrances Act was passed to protect individuals from demonstrators at abortion clinics and family planning centers. Copyright © 2010, Elsevier Inc. All rights Reserved 20 13.2 Abortion 18 U.S.C. § 248 Prohibited activities—Whoever— by force or threat or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services; by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious freedom at a place of religious worship; or intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services, or intentionally damages or destroys the property of a place of religious worship. Copyright © 2010, Elsevier Inc. All rights Reserved 21 13.2 Abortion Other federal statutes that relate to abortion are: 18 U.S.C. § 1461 Prohibits the mailing of articles or things designed, adapted, or intended to produce abortion. 18 U.S.C. § 1462 Prohibits bringing into the United States any drug, medicine, article, or thing designed, adapted, or intended to produce abortion. Copyright © 2010, Elsevier Inc. All rights Reserved 22 18 U.S.C. § 2101 13.2 Riot and Related Offenses Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent: To incite a riot; or To organize promote, encourage, participate in, or carry on a riot; or To commit any act of violence in furtherance of a riot; or To aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of the riot; and who either, during the course of any such travel or use thereafter, performs or attempts to perform and other overact act for any purpose specified above. Copyright © 2010, Elsevier Inc. All rights Reserved 23 13.3 Riot and Related Offenses Title 18 § 2102 defines the term “riot.” To assure that the First Amendment provisions are not violated, the definition of the term “to incite a riot” includes a statement that this shall not be deemed to mean the mere oral or written advocacy of ideas or expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit any such act or acts. The federal riot act has been upheld as not in violation of the U.S. Constitution. Copyright © 2010, Elsevier Inc. All rights Reserved 24 13.3 Riot and Related Offenses In interpreting the provisions of title 18 §§ 2101 and 2102, a federal circuit court considered two issues: Are interstate telephone calls to summon others to participate in a riot proscribed by the federal anti-riot act? What amounts to a “riot” for the purposes of the act? Copyright © 2010, Elsevier Inc. All rights Reserved 25 13.3 Disorderly Conduct Title 18 § 1752 Provides a fine or imprisonment not exceeding six months, or both, if any person is found guilty of entering or remaining in any building or grounds designated by the Secretary of the Treasury as a temporary residence of the president or other persons protected by the Secret Service in violation of regulations. Copyright © 2010, Elsevier Inc. All rights Reserved 26 13.3 Disorderly Conduct This section also makes it unlawful for any person or persons with intent to impede or disrupt the orderly conduct of government business or official functions, to engage in disorderly or disruptive conduct in, or within such proximity to any building or grounds designated as a temporary residence for the president or other person protected by the Secret Service. Copyright © 2010, Elsevier Inc. All rights Reserved 27 13.3 Drug Laws Prior to 1970, there were numerous separate federal drug control statutes on the books, each of which was aimed at a particular set of drug problems. The Narcotics Manufacturing Act of 1960, which set up a licensing system for narcotic drug manufacturers, relied upon the commerce power rather than the power to tax. In 1965, amendments to the Food, Drug and Cosmetic Act, dealing with dangerous drugs, were found to be within the power of Congress to regulate interstate commerce. Copyright © 2010, Elsevier Inc. All rights Reserved 28 13.3 Drug Laws The Comprehensive Drug Abuse Prevention and Control Act of 1970 created for the first time an all-encompassing scheme covering both narcotics and dangerous drugs. The provisions of this section, authorizing the Secretary of Health, Education, and Welfare to make scientific evaluations and recommendations regarding the classification of a drug, were challenged but held to be constitutional. Copyright © 2010, Elsevier Inc. All rights Reserved 29 13.3 Drug Laws In 1984, 1986, 1988, and again in 1990, federal legislation was drafted to make it less difficult to prosecute violators and to increase the penalties. In 1986, Congress enacted a very comprehensive law titled the Anti-Drug Abuse Act of 1986. In addition to creating new offenses, the main thrust of the act was to increase the penalties for drug offenders. Legislation was enacted that authorized the Department of Defense to assist in enforcing the drug laws. Copyright © 2010, Elsevier Inc. All rights Reserved 30 13.3 Drug Laws The Anti-Drug Abuse Act of 1988 further strengthened the authority of enforcement agents to continue the war on drugs. In addition to increasing penalties for personal use of drugs, the act included the death penalty for those convicted of drug-related killings. A new provision added a federal penalty for endangering human life while illegally manufacturing drugs and provides a mandatory life term for threetime felony drug offenders. Copyright © 2010, Elsevier Inc. All rights Reserved 31 13.3 Drug Laws Uniform Schedule of Controlled Substances Title 21 § 812 of the U.S. Code establishes five schedules of controlled substances, known as schedules I, II, II, IV and V. The criteria for determining which drug was to be placed in each schedule are set out in the statute and are similar to the criteria used in establishing the schedules for the respective states. Copyright © 2010, Elsevier Inc. All rights Reserved 32 Schedule of Drugs: Controlled Substances Act of 1970 13.3 Drug Laws Schedule I No established medical usage, cannot be used safely, great potential for abuse. Heroin, LSD, Mescaline, Peyote, Quaaludes, Psilocybin, Marijuana, Hashish, etc. Schedule II High potential for abuse, currently accepted medical use. Opium, Morphine, Codeine, Cocaine, PCP, Ritalin, Preludin, etc. Schedule III Some potential for abuse, accepted medical use, potential for psychological addiction. Anabolic steroids, cold medicines & pain relievers containing codeine Schedule IV Low potential for abuse, medical uses. Valium, Librium, Equanil, Stimulants Schedule V Prescription drugs with low potential for abuse. Cough and other medicines with low levels of opium, morphine, or codeine Copyright © 2010, Elsevier Inc. All rights Reserved 33 13.3 Drug Laws 21 U.S.C. § 844 It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription order, from a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter II of this chapter. Copyright © 2010, Elsevier Inc. All rights Reserved 34 13.3 Drug Laws 21 U.S.C. § 841 Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— to manufacture, distribute, dispense or possess with intent to manufacture, distribute or dispense a controlled substance; or to create, distribute, dispense or possess with intent to distribute or dispense, a counterfeit substance. Copyright © 2010, Elsevier Inc. All rights Reserved 35 13.3 Drug Laws Section 859 includes a separate provision prohibiting distribution of a controlled substance to a person less than 21 years of age. Section 860 makes it a separate violation for one to distribute or manufacture a controlled substance in, on, or within 1,000 feet of the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university. Copyright © 2010, Elsevier Inc. All rights Reserved 36 13.3 Drug Laws Section 861 makes it unlawful for any person at least 18 years of age to knowingly and intentionally “employ, hire, use, persuade, induce, entice, or coerce” anyone under 18 to violate the provisions of the law. Copyright © 2010, Elsevier Inc. All rights Reserved 37 13.3 Drug Laws Title 18 § 2118 imposes a penalty on anyone who takes or attempts to take from the person or presence of another by force or violence or by intimidation any material or compound containing any quantity of a controlled substance belonging to or in the care, custody, control, or possession of a person registered with the Drug Enforcement Administration. Copyright © 2010, Elsevier Inc. All rights Reserved 38 13.3 Drug Laws Federal statutes provide for the forfeiture of property used to facilitate drug-related offenses and for the forfeiture of proceeds from drug transactions. The Court concluded that asset forfeiture in drug cases did not violate the double jeopardy clause in that it was not an additional penalty for the commission of a criminal act, but rather a separate civil action, remedial in nature and expressly sanctioned by Congress. Copyright © 2010, Elsevier Inc. All rights Reserved 39 13.3 Wiretapping and Eavesdropping In 1929 and again in 1931, Congress introduced legislation designed to protect against interception of telephone communications by the use of wiretaps. However, it was not until 1934, when Congress passed the Federal Communications Act, that wiretapping was made illegal. Copyright © 2010, Elsevier Inc. All rights Reserved 40 13.3 Wiretapping and Eavesdropping 18 U.S.C. § 2510 No person not being authorized by the sender shall intercept any communication or divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. Copyright © 2010, Elsevier Inc. All rights Reserved 41 13.3 Wiretapping and Eavesdropping Title 18 §§ 2510 through 2522 contain provisions that prohibit intentional interception or attempts to intercept any wire or electronic communication and includes criminal penalties for violations of the statutes and detailed provisions for exceptions. Title 18 U.S. Code § 2511 prohibits the interception and disclosure of wire, oral, or electronic communications and includes criminal as well as civil penalties. Copyright © 2010, Elsevier Inc. All rights Reserved 42 13.3 Wiretapping and Eavesdropping This section also has provisions for exceptions with detailed requirements for each exception. Subsection 2(c) of the statute provides that it shall not be unlawful for a person acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. Subsection (2)(d) provides that it shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any state. Copyright © 2010, Elsevier Inc. All rights Reserved 43 In response to harassment and stalking 13.3 Other Offenses Against the Public Peace Violence Against Women Act National Stalker and Domestic Violence Reduction Act It is a Federal crime to cross state lines with the intent to injure or harass another It is a Federal crime to cross state lines to violate a protective order Copyright © 2010, Elsevier Inc. All rights Reserved 44 13.4 Terrorism USA Patriot Act In October 2001, the 107th Congress enacted Public Law 107-56, which is titled “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.” This lengthy act amends existing statutes concerning terrorism and adds additional provisions to the law. Copyright © 2010, Elsevier Inc. All rights Reserved 45 13.4 Terrorism The numerous sections of the act are included under 10 titles. Title I—Enhancing Domestic Security Against Terrorism Title II—Enhanced Surveillance Procedures Title III—International Money Laundering Abatement and Antiterrorist Financing Act of 2001 Title IV—Protecting the Border Title V—Removing Obstacles to Investigating Terrorism Copyright © 2010, Elsevier Inc. All rights Reserved 46 13.4 Terrorism The numerous sections of the act are included under 10 titles. Title VI—Providing for Victims of Terrorism, Public Safety Officers, and their Families Title VII—Increased Information Sharing for Critical Infrastructure Protection Title VIII—Strengthening the Criminal Laws Against Terrorism Title IX—Improved Intelligence Title X—Miscellaneous Copyright © 2010, Elsevier Inc. All rights Reserved 47 18 U.S.C. § 1621 13.5 Perjury and Related Offenses Whoever— having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, certificate by him subscribed, is true, willfully and contrary to such oaths states or subscribes any material matter which he does not believe to be true; or in any declaration, certificate, verification, or statement under a penalty of perjury as permitted under section 1746 of title 28, U.S. Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years or both. Copyright © 2010, Elsevier Inc. All rights Reserved 48 13.5 Perjury and Related Offenses 18 U.S.C. § 1622 Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned not more than five years, or both. Copyright © 2010, Elsevier Inc. All rights Reserved 49 13.5 Perjury and Related Offenses 18 U.S.C. § 1001 Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the government of the United States, knowingly and willfully— Falsifies, conceals, or covers up by any trick, scheme, or device a material fact; Makes any materially false, fictitious, or fraudulent statement or representation; or Makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry. Copyright © 2010, Elsevier Inc. All rights Reserved 50 13.5 Bribery and Related Offenses Chapter 11 of title 18 of the U.S. Code is titled “Bribery, Graft and Conflicts of Interest.” It includes ethical standards of conduct for government employees and laws relating to: bribery of public officials and witnesses, bribery in sporting contests, acceptance or solicitation to obtain appointment of public office, acceptance of loan or gratuity by bank examiner. Copyright © 2010, Elsevier Inc. All rights Reserved 51 13.5 Bribery and Related Offenses Gratuities Section 201(c)(1)(a) sets forth the elements of an illegal gratuity offense applicable to the gratuity giver. Section 201(c)(1)(b) sets forth the elements applicable to a gratuity recipient. To prove an illegal gratuity offense, the government must demonstrate: A thing of value; Was given, offered or promised to; A public official; and For or because of any official act performed or to be performed by such public official. Copyright © 2010, Elsevier Inc. All rights Reserved 52 13.5 Obstructing Justice Chapter 73 of title 18 of the U.S. Code has 14 sections relating to the obstruction of justice. Obstruction of justice is governed principally by 18 U.S.C. §§ 1501 through 1818, which forbid the obstruction of justice and protect the integrity of proceedings before the federal judiciary and other governmental bodies. Copyright © 2010, Elsevier Inc. All rights Reserved 53 13.5 Obstructing Justice 18 U.S.C. § 1503 governs any obstruction of justice affecting jurors, officers of the court, and judges. The elements of a § 1503 offense are: A nexus with a pending federal judicial proceeding; That the defendant knew of or had notice about the proceeding; and That the defendant acted corruptly with intent to obstruct or interfere with the proceedings or due administration of justice. Copyright © 2010, Elsevier Inc. All rights Reserved 54 13.5 Escape Chapter 35 of title 18 of the U.S. Code includes a provision relating to the escape of prisoners in the custody of an institutional officer, a second provision making it a crime to rescue a person who has been lawfully arrested, and a third provision making it possible to punish an officer who voluntarily allows a prisoner to escape. Copyright © 2010, Elsevier Inc. All rights Reserved 55 13.5 Resisting Arrest Title 18 § 111 makes resisting arrest a felony punishable by a fine or imprisonment of not more than eight years, or both, if a person is convicted of forcibly assaulting, resisting, opposing, impeding, or intimidating an officer in the performance of his or her official duties. If deadly force or a dangerous weapon is used, the imprisonment may be increased to 20 years. Copyright © 2010, Elsevier Inc. All rights Reserved 56 13.5 Resisting Arrest Title 18 § 111 makes resisting arrest a felony punishable by a fine or imprisonment of not more than eight years, or both, if a person is convicted of forcibly assaulting, resisting, opposing, impeding, or intimidating an officer in the performance of his or her official duties. If deadly force or a dangerous weapon is used, the imprisonment may be increased to 20 years. Copyright © 2010, Elsevier Inc. All rights Reserved 57 1 Environmental Crimes (EPA) As governments have become more concerned with the protection of the quality of water, land, and air, regulations and laws have increased. Copyright © 2010, Elsevier Inc. All rights Reserved 58 13.6 Environmental Crimes (EPA) The Clean Air Act (CAA) Imposes penalties on those who knowingly violate federal or state regulations designed to achieve ambient air quality standards established by the U.S. Environmental Protection Agency (EPA). The CAA mandates that the EPA prescribe national air quality standards, although states are free to adopt more stringent protection. Each state then is required to adopt an implementation plan of its own for that state. If a state implementation plan is approved by the EPA, its requirements become federal law and are fully enforceable in federal court. Copyright © 2010, Elsevier Inc. All rights Reserved 59 13.6 Environmental Crimes (EPA) The Clean Air Act (CAA) A CAA violation occurs when a source emits pollution in excess of levels established by regulation. Criminal sanctions apply to any person who: Violates the CAA by making false statements, Fails to report as required, Tampers with EPA monitoring devices, or Fails to pay fees owed to the United States. Copyright © 2010, Elsevier Inc. All rights Reserved 60 13.6 Environmental Crimes (EPA) Criminal sanctions may be imposed on both the organizations and the individuals responsible for the actions of an organization. Copyright © 2010, Elsevier Inc. All rights Reserved 61 13.6 Environmental Crimes (EPA) Safe Drinking Water Act (SDWA) Designed to regulate levels of harmful contaminants in public water systems and the underground injection of contaminants into ground water that supplies public drinking water. The EPA is required to establish national primary drinking water regulations, and discharges must obtain permits for underground injection of contaminants. Copyright © 2010, Elsevier Inc. All rights Reserved 62 13.6 Environmental Crimes (EPA) Safe Drinking Water Act (SDWA) The act also regulates the amount of lead found in drinking water coolers, and penalizes tampering with public water systems. The act requires the EPA to establish minimum standards to prevent the contamination of underground water resources. Failure to comply with the standards could lead to civil penalties as well as criminal penalties. Copyright © 2010, Elsevier Inc. All rights Reserved 63 13.6 Environmental Crimes (EPA) Clean Water Act (CWA) Was enacted to restore and maintain the chemical, physical, and biological integrity of the nation’s waters by minimizing the effects of water pollution. The CWA is also referred to as the Federal Water Pollution Control Act. Under the terms of the act, federal, state, and local authorities are authorized to establish programs that prohibit or regulate the discharge of pollutants into the water of the United States. In administering and enforcing the CWA, the EPA and the Army Corps of Engineers share responsibility. Copyright © 2010, Elsevier Inc. All rights Reserved 64 13.6 Environmental Crimes (EPA) Clean Water Act (CWA) The Corps has the nondiscretionary duty to regulate discharge of dredged or fill material by issuing permits after applying guidelines established by the EPA and has the authority to enforce permit violations. The EPA holds the ultimate responsibility for wetlands protection, has authority to seek penalties for unpermitted discharges of pollutants into United States waters and, after consulting with Corps of Engineers, can block or overrule the Corps decision to issue permits Copyright © 2010, Elsevier Inc. All rights Reserved 65 13.6 Environmental Crimes (EPA) Toxic Substance Control Act (TSCA) The purpose of the act is to prevent toxic substances in commerce from presenting an “unreasonable risk of injury to health or the environment,” and to stem the tide of chemical substances and mixtures considered “imminent hazards.” The act also requires private industries that manufacture toxic substances to generate data with respect to the effects of the toxic chemicals. Copyright © 2010, Elsevier Inc. All rights Reserved 66 13.6 Environmental Crimes (EPA) Resource Conservation and Recovery Act (RCRA) Establishes a detailed scheme for federal regulation of all wastes, including hazardous wastes. It sets standards that govern the generation, treatment, storage, transportation, and disposal of hazardous wastes. Copyright © 2010, Elsevier Inc. All rights Reserved 67 13.6 Antitrust and Securities Violations (SEC) The Sherman Act of 1890 was enacted to prevent sabotage of the free enterprise system. The central purpose of antitrust laws is to prevent any acts that take away the freedom of purchasers to buy in the open market and to maintain freedom of competition. The criminal provision of the present Sherman Act provides for criminal sanctions against any person “who shall make any contract or engage in any combination or conspiracy” in restraint of interstate commerce. Copyright © 2010, Elsevier Inc. All rights Reserved 68 13.6 Antitrust and Securities Violations (SEC) To prove a criminal violation, the government must establish four elements: Two or more entities formed a combination or a conspiracy; The combination or conspiracy produces, or potentially produces, an unreasonable restraint of trade or commerce; The restrained trade or commerce is interstate in nature; General intent. Copyright © 2010, Elsevier Inc. All rights Reserved 69 13.6 Antitrust and Securities Violations (SEC) State Antitrust Laws States can enforce antitrust laws in two ways: by prosecution for violations of state antitrust laws or by suing as plaintiffs in federal court under the federal law. Copyright © 2010, Elsevier Inc. All rights Reserved 70 1 Antitrust and Securities Violations (SEC) Securities Exchange Violations The Securities Act of 1933 and the Securities and Exchange Act of 1934 required that publicly traded securities be registered and the trading of such stock be regulated, including the requirement to provide accurate information to purchasers. The Securities and Exchange Commission (SEC) is the federal agency that regulates securities trading. Copyright © 2010, Elsevier Inc. All rights Reserved 71 13.6 Antitrust and Securities Violations (SEC) Securities Fraud An offender violates the law when he or she: Makes a material false statement or omission Knowingly, with intent to defraud That causes another party damages If it is an omission, the party had a duty to disclose the information Copyright © 2010, Elsevier Inc. All rights Reserved 72 13.6 Antitrust and Securities Violations (SEC) Insider Trading Perhaps the most frequent type of securities violation is insider trading. This is when someone who owns more than 10 percent of the stock in a publicly traded company buys or sells their shares. This is not illegal unless the person does so based on insider information not available to the general public. Congress enacted the Insider Trading Sanctions Act of 1984, which increased penalties for this offense. Copyright © 2010, Elsevier Inc. All rights Reserved 73 13.6 Antitrust and Securities Violations (SEC) Sarbanes-Oxley Act of 2002 The Sarbanes-Oxley Act created new federal offenses in the area of securities violations. The laws are directed toward individuals who destroy documents when they are under investigation for securities fraud or insider trading. It also requires that the chief officers of corporations certify that financial statements comply with SEC regulations, increases the penalties for fraud and conspiracy, and has a provision to protect whistleblowers in a corporation when such people expose illegal acts such as fraud or other financial improprieties. Copyright © 2010, Elsevier Inc. All rights Reserved 74 13.6 Occupational Safety and Health (OSHA) In December 1970, Congress enacted the Occupational Safety and Health Act (OSHA). Congress had determined that legislation was necessary due to the trend of increasing employee deaths and injuries in the late 1960s. OSHA includes a general duty clause that requires employers to furnish their employees with a working environment free from recognized hazards. Copyright © 2010, Elsevier Inc. All rights Reserved 75 13.6 Occupational Safety and Health (OSHA) State Laws The enactment of federal statutes left unanswered the question of to what extent OSHA preempted state criminal sanctions. Although states are preempted by OSHA from regulating workplace safety, the application of certain state criminal sanctions against employers is not preempted. Copyright © 2010, Elsevier Inc. All rights Reserved 76 13.6 Occupational Safety and Health (OSHA) Fair Labor Standards Act The Fair Labor Standards Act (FLSA) of 1938 prohibits an employer from failing to pay minimum wages or overtime compensation to an employee, failing to keep individual work records for each employee, discriminating on the basis of sex by paying different wages for equal work, or using oppressive child labor. Copyright © 2010, Elsevier Inc. All rights Reserved 77 13.6 Occupational Safety and Health (OSHA) Maximum Hour Standards 29 U.S.C. § 207 Except if otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in a production of goods for commerce, or is employed in an enterprise engaged in commerce or the production of goods for commerce, for a workweek longer than 40 hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate of not less than one or onehalf times the regular rate at which he is employed. Copyright © 2010, Elsevier Inc. All rights Reserved 78 13.6 Occupational Safety and Health (OSHA) “Whistle-Blower” Protection Makes it unlawful for an employer to discharge or discriminate against an employee due to the employee’s filing of an FLSA complaint. According to a circuit court, the purpose of this statute is not merely to vindicate the rights of the complaining party, but to foster an environment in which employees are unfettered in their decision to voice grievances without fear of economic retaliation or reprisal. Copyright © 2010, Elsevier Inc. All rights Reserved 79 13.6 Food and Drug Violations (FDA) The FDA is the federal agency that protects consumers from unsafe or adulterated food or drugs and investigates violations of the Food, Drug, and Cosmetic Act (FDCA). The crimes that are addressed by the FDA include: manufacturing, introducing, delivering or receiving adulterated or misbranded food, drugs, or cosmetics into interstate commerce; and, refusal to permit FDA food inspections. Copyright © 2010, Elsevier Inc. All rights Reserved 80