Chapter Eleven
Crimes Against Property
Chapter Eleven: Learning Objectives
• Know that crimes against other people’s property
are of three types: taking property, damaging or
destroying property, and invading property.
• Understand that the crime of theft grew out of
the general social concern with violent crimes
against persons.
• Know that the federal mail fraud statute defines
false pretenses much more broadly than common
law fraud.
Learning Objectives
• Know that it’s illegal to receive stolen property only if
you intend to keep it permanently.
• Appreciate that the heart of robbery is the use of
actual or threatened force to obtain someone else’s
property right now.
• Understand that extortion differs from robbery in
that the threat is to use force some time in the
future.
• Know that arson is a felony; criminal mischief is a
misdemeanor.
Learning Objectives
• Understand that the heart of both burglary and
criminal trespass is invading other people’s
property, not taking, destroying, or damaging it.
• Understand that criminal trespass used to be limited
to unauthorized invasions of physical property, but
now it includes unauthorized access to electronic
information systems.
• Know that identity theft is the most prevalent crime
in the United States.
• Appreciate that intellectual property theft results in
billions of dollars in losses each
Categories of Crimes Against Property
• 3 Primary Types
1. Taking other people’s property
1.
2.
3.
4.
Theft
Robbery
Fraud
Receiving stolen property
2. Damaging or destroying other people’s property
1.
2.
Arson
Criminal mischief
3. Invading other people’s property
1.
2.
Burglary
Criminal trespass
• Cybercrime
– New ways of committing crimes against property
Larceny
• Oldest form of property crime
• Stealing with stealth
• Common law larceny elements
– Taking
– Carrying away
– Property of another
– Without consent and without knowledge
– Intent to deprive victim of possession
Larceny
• Only covered cases where person
unlawfully took property of victim, didn’t
cover cases where victim gave the
property to the offender (who then
didn’t give it back)
Larceny
• Tangible property
– Personal property like jewelry
• Intangible property
– Paper worth nothing in itself, but is proof of
something of value
• Stocks
• Bonds
• Promissory notes
Embezzlement
• Crime filled in gaps as society became more
industrialized
• Directed at breaches of trust
• Involves person who was in lawful possession
of property unlawfully converting it to their
own use (making it theirs)
• Originally directed at bank clerks and other
bailees (people who are entrusted property) it
has been the cornerstone of abuse of
trust/white collar crimes
False Pretenses
• Deceiving others into giving up ownership
(not just possession) of their property
• Actus reus: deceiving
– Larceny = taking
– Embezzlement = converting
– False Pretenses = deceiving
• Deception requires lying to another in order to get the
ownership of their property
• Common law false pretenses was originally
common law fraud (misdemeanor)
Larceny and Theft
• Most states have consolidated the common
law crimes of larceny, embezzlement, false
pretenses into one offense—Theft
• Consolidated theft statutes
– Eliminates need to separate theft into distinct
offenses based upon the nature of actus reus.
– Theft actus reus = taking, carrying away,
converting, swindling
Theft
• Theft mens rea
–Purposely, knowingly, intentionally
–Acquiring someone else’s property
–In order to permanently deprive the
owner of his or her possession
People v. Olivio/Gasparik/Spatzier (1981)
Summary of case holding
• Shoplifters do not need to leave the store to
be guilty of larceny. Shoplifters treat
merchandise in a manner inconsistent with
the owner’s continued rights without walking
out of the store.
• The taking of property in the self-service store
context can be established by evidence that a
customer exercised control over merchandise
wholly inconsistent with the store’s continued
rights.
Federal Mail Fraud
• Federal Mail Fraud statute defines false pretenses more
broadly than common law fraud.
• Using the mail to perpetuate a scheme to defraud or for
obtaining money or property
• Used by government to deal with Ponzi schemes
– Schemers tell investors they’re buying assets like real
estate, stocks, etc, but they aren’t They use the money to
pay earlier investors…
– Huge increase in the amount of ponzi schemes and their
prosecutions
• Financial circumstances of last two years has caused many of these
to collapse and come to attention of authorities
Federal Mail Fraud (continued)
• Thefts, frauds, swindles are both criminal
wrongs and civil wrongs
• U.S. v. Coughlin highlights differences in
handling these actions in civil system and
criminal system
US v. Coughlin/U.S. v. 340 St. Bees Drive
(2008/2009)
Criminal/Civil Summary of case holdings
• Opinion in criminal case: jury acquitted Coughlin on
3 counts of mail fraud, and hung on the other
counts including on charge of making a false claim
to victims compensation fund. (apparently they
found him to be believable/credible witness)
• Civil case: court held that there was probable cause
to believe that Coughlin submitted false written
statements and made material misrepresentations
to the VCF in order to obtain funds to which he was
not entitled….court let case continue.
Robbery
• Robbery is the combined crimes of theft and assault
• Theft is accomplished under force or threat of force
• Actus Reus: use of force or threat of force to take
property of another
• How much force is necessary to accomplish
robbery
– Just enough force to accomplish the taking
– Any amount of force beyond that necessary to
accomplish the taking
– Pick pocketing isn’t robbery because there is no
force or threat of force, person doesn’t realize their
property is being taken
State v. Curley (1997)
Summary of case holding
• Although we have cases saying that even
slight amount of force is sufficient (Minority
Rule – Massachusetts), we also have cases in
which a taking of property from the person of
a victim has not been held to be robbery
• Adhered to majority rule
– Robbery is committed when attached property is
snatched or grabbed by sufficient force so as to
overcome “the resistance of attachment”.
Summary of case holding
• The court explored the matter of “the
resistance of attachment”:
– The concept should be construed in light of the
idea that robbery is an offense against the
person, and something about that offense should
reflect the increased danger to the person that
robbery involves (over the offense of larceny)
• Not aware…no resistance offered
• Aware…resists, and thief struggles to separate from
owner
Extortion
• Theft by threats of future harm
• Extortion differs from robbery in that the threatened
harm is to occur at some later point where in
robbery the threatened harm is to occur now
• Extortion mens rea:
– Specific intent to take someone else’s property by
means of threat
• Extortion actus reus:
– Wide range of threats by which taking of property
is accomplished
Extortion
• Extortion (Model Penal Code):
– Threats can be indirect
– Threats don’t have to involve victim, can be
harm toward another person
– Threats don’t have to involve physical
injury, can involve exposing someone to
shame or ridicule
Receiving Stolen Property
• Actus reus
– Receiving the property
• Mens rea
– Varies amongst the states
– Some states require the receiver know the property is
stolen
– Some states its enough if receiver believe goods were
stolen
– Look at circumstances surrounding to determine whether
the person knew or should have known that the goods
were stolen
Receiving Stole Property
(continued)
• Mens rea (continued)
– Some states require receivers be reckless or
negligent about whether the property was stolen
• Disregarded the risk that it was stolen
• Were unaware of the risk that it was stolen but should
have been aware of the risk
– Receivers have to intend to keep the property
permanently
Sonnier v. State (1992)
Summary of case holding
• Texas law requires that receiver knew that
property was stolen
• Looked at all the circumstances of the case
and concluded that state did not produce
sufficient evidence to prove that defendant
knew that the stereo speakers were stolen.
Arson
• Common Law Arson
– Malicious and willful burning of the house or
outhouse of another
– Burning
• Fire had to reach the structure but did not have to burn
down
– Of another
• At common law, it was not a crime to burn down your
own home
– Dwelling
• Had to be a place of residence
Arson
• Modern Arson
– Includes all types of buildings, vessel,
vehicle
– Property doesn’t have to be another’s
– Crime against possession and occupancy
not just ownership
– Burning requirements have been relaxed:
• Starting a fire, even if it never touches the
structure
• Includes explosions
Arson (continued)
• Arson actus reus:
– “Burning”
• Williams v. State (1992)
– Only physical damage caused by fire was smoke throughout
house, but under statute, it was sufficient for arson
• Arson mens rea:
– Common law (many states follow it)
• Malicious and willful burning
– General intent
• Intent to set afire (not the intent to burn down the
building)
Arson (continued)
• Degrees of Arson
– First Degree
• Burning homes or occupied structures where there is
danger to human life
– Second degree
• Burning unoccupied structures, vehicles and boats
• Model Penal Code
– Divides arson degrees based on blameworthiness
• Intend to destroy the buildings (not just set fire) = First
Degree
• Intend to just set fire = Second degree
Criminal Mischief
• Common law crime of malicious mischief
– Misdemeanor (Felony Levels in NYS)
– Destroying or damaging tangible property
• Modern law
– Three types of criminal mischief:
1. Destroying or damaging property by fire, explosive or
other dangerous act
2. Tampering with tangible property
3. Deception or threat that causes someone to suffer
monetary loss
Criminal Mischief (continued)
• Actus reus:
• Mirrors the three types of modern criminal mischief
• Mens rea:
– Statutes vary greatly
– Some statutes contain all the Model Penal Code
mental states
• Grading
– Based on mental state
– Based on value of property
– Based on nature of property destroyed
Commonwealth v. Mitchell (1993)
Summary of case holding
• Evidence was sufficient to show that
defendants intentionally spray painted graffiti
on walls of building and that was factually
sufficient to support a conviction, under
Pennsylvania law, for criminal mischief.
• The court also focused on legislative intent to
apply the Sections independently…using the
term “or”…as well as the level of
intent…reckless or negligent
Burglary
• Common Law Burglary
– Breaking and entering
– Dwelling place
– Of another
– At night
– With intent to commit a felony therein
Burglary (continued)
• Modern Burglary
– Not just homes, now includes all kinds of
structures and stores
– Day or night
– Doesn’t have to be the property of another
– Breaking and entering requirement has been
relaxed and now includes entering and remaining
unlawfully (surreptitious remaining)
Jewell v. State (1996)
Summary of case holding
• The burglary statute’s requirement that the dwelling
be that “of another person” was satisfied by
evidence that Jewell’s entry was unlawful.
• Although Jewell may previously have had some
property interest in the marital property, he
nevertheless burglarized the home when he entered
to commit crimes against his estranged wife and her
boyfriend (Wife purchased the house before the
marriage, marriage was in dissolution, he moved out,
locks were changed, and he forcibly entered through
a window)
Burglary (continued)
• Mens rea
– Specific intent
– Two elements
• Intent to commit the breaking and entering or
remaining
• Intent to commit a crime once inside the
structure broken into
– Note: Statutes vary state to state - some say intend
to commit theft, some say intend to commit a
felony, some say intent to commit a crime (very
general) therein
Burglary (continued)
• Don’t have to complete the crime that you
intended once you get inside
• Degrees of Burglary
– Varies among states
• Nature of structure entered
• Whether person was armed when entered
• Nature of crime intended upon entry
Criminal Trespass
•
•
•
•
Broader and less serious than burglary
Not limited to occupied buildings
No intent to commit crime in addition to the trespass
Actus reus:
– Unlawful entering
– Unlawful remaining
– Heart of crime is unwanted presence
• Mens Rea
– Varies
• Knowingly enters without authority, specific intent to
enter without authority, strict liability for entering
without authority
Cybercrimes
• Identity Theft
– Crime committed most often in U.S.
– Huge costs in terms of time and money for victim
– Motivations for stealing identity not limited to
financial motives
– Difficulty in apprehending
Remsburg v Docusearch, Inc.
Summary of case holding
• Because of potential risks of misconduct, an investigator must
exercise reasonable care in disclosing a information
concerning a third person to a client
• Cause of action exists for person who had information
disclosed that they expected would remain private (Social
Security Number, but not name and address)
• Person who obtains a person’s work address by means of
pretextual phone calling and then sells the information may
be liable (there is cause of action)
Intellectual Property Theft
• Intellectual property = person’s ideas and
their practical application (copyright, patents,
trademarks, etc)
• Intellectual Property is theft costly
• Unreported or undetected
• Vocabulary specific to how Intellectual
Property theft occurs
– Rustad: spoofing, piggybacking, data diddling,
salami attack, e-mail flood attack, password
sniffing, worm