I. Culpability

Chain conspiracy rationale: limited Kotteakos wheel defense. It involves several layers of personnel dealing with a single subject matter, as opposed to a specific person. The middlemen (business men) all knew they were indispensable cogs in the machinery through which this illegal scheme was effectuated. The Court said that “in every practical sense the unique facts of this case reveal a single conspiracy of which the several agreements were essential and integral steps.” A chain. The longer the chain, the more tenuous the distant links.

1. 
   this is a criminal law statute run by the US attorneys
   
2. 
   it has a civil aspect for victims to sue another for injuries resulting from RICO violations (even allows one corporation to sue another for fraud cases – i.e. mail fraud is a RICO violation)
   
3. 
   US can also sue civilly to get an injunction restraining activity to prevent further violations (used very effectively, especially for labor racketeering): (1) there is a different burden of proof and this is an advantage in civil cases, (2) discovery is an advantage that exists in civil, but not criminal.
   

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  Increases your vulnerability in terms of punishment (20 years under RICO and double counting for violating RICO and conspiring to violate RICO vs. five under conspiracy)
  
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  Mandatory forfeiture of all profits of crime
  
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  You can join in one trial type of activity that couldn’t be joined otherwise (if it were under the Ketteakos rule, in fact RICO makes the prosecution of these wheel type conspiracy as one big conspiracy possible – contrary to what the court allowed in Ketteakos)
  
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  RICO also builds on the Pinkerton rule of accomplice liability, allowing people who wouldn’t usually be thought of as co-conspirators to be tried together.
  

§1961(5) “pattern of racketeering activity” requires at least two acts of racketeering activity (this need not be multiple different schemes, just two offenses)

§1962(a) this means criminals can’t use money from crime to go legitimate. It was a response to Congress’s concern that organized crime was infiltrating legitimate businesses through investment.

§1962(b) this is to stop criminals from muscling their way in to a business without a monetary investment, extortion and take over through racketeering.

§1962(c): this section is used the most, it goes after running your business as a racketeering activity and criminals can’t participate in an enterprise through racketeering activity. Used for organizations unrelated to business, pure gangs.

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  The big question was if RICO lets you prosecute people involved only in crime (not business)? The Supreme Court ruled that an enterprise can be exclusively criminal, thus you can actually get all criminals, creates the crime of being a criminal (this is where RICO really gives prosecutors power).
  
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  It’s not an agreement to do crimes that is a violation, but an agreement to participate in an enterprise involved in crime.
  
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  An enterprise however isn’t just a group in agreement (conspiracy) it’s more permanent with its own personality.
  

V. Affirmative Defenses

Who bears the burden for the defense?

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  After the  introduces the defense, the  bears the burden to disprove beyond a reasonable doubt the defense.
  
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  Under the code there are none that the  bears the entire burden for, but the option is open: battered women syndrome that must be proven by the .
  

Self Defense:

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  Subjective standard: if the  honestly believes he needs to use deadly force. This is very difficult for the prosecution to disprove beyond a reasonable doubt.
  
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  Objective standard: if a reasonable person would believe something (the need to use deadly force) if he was in the same situation. The situational requirement leaves a lot of room for  to bring in subjective elements.
  
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    If you didn’t act reasonably, you’d be acting negligently.
    
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    What if the person could never have attained the reasonable standard? (battered women).
    
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  MPC 3.04(2)(b) self-defense, doesn’t have the word reasonably in it. However 3.09 says if the actor is reckless or negligent in having such a belief his self-defense is not justifiable.
  
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    MPC uses an objective theory, but it is not fully objective, based on the ’s subjective beliefs. However these subjective beliefs must be reasonable as another would see them.
    
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    Liability is based on ’s mental state (recklessness or negligence), but there is an objective standard to these (negligence: gross deviation from how a reasonable person would behave in his situation).
    
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    While NY’s code resulted in all-or-nothing and thus an acquittal, under the MPC Goetz could have been got for manslaughter (210.3) or negligent homicide (210.4).
    

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  Perfect vs. imperfect self defense distinction is here:
  
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    Perfect is fully justified self-defense.
    
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    Imperfect is  truly believed they had to kill to avoid imminent threat but their belief was not reasonable (MPC recognizes these defenses because  could be convicted of negligent homicide instead of higher crime, your belief was negligent).
    

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  The court focuses on the reasonableness of her not leaving and her credibility ( is usually not credible so BWS is important).
  
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  Usually ignores reasonableness of her belief that she was in imminent danger: rather the woman us portrayed psychologically incapacitated.
  

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  BWS puts the victim on trial by linking him to battery men and a history of men who battered: big in a juries mind.
  
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  Women who kill their mates could actually be addressed as an exception within existing criminal law without the introduction BWS.
  
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    BWS seems like an excuse: women are excused because of psychological problem (people with syndrome will have a different subjective reasonable and different perceptions) she’s not justified though (it wasn’t right but excused).
    
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    Current move is toward a specification of the objective reasonableness to what battered women as group see as reasonable (so it’s a subjectifaction of the defense but not down to the individual level just to the group level).
    

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  “your own shoes,” where  is justified to use force when he reasonably believes it’s necessary based on who he reasonably took to be the victim (similar to MPC).
  
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    Encourages intervention.
    
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    Based on ’s subjective beliefs, but this belief must be reasonable (as another person would see) for  would get off (if belief is unreasonable could get negligent or reckless homicide).
    
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  “other person’s shoes,” where  is justified based on if the other person in fact had a right to use defensive force.
  
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    Seems like SL, you intervene at your peril (not used by MPC).
    

MPC 3.04(b)(ii)(1): if using deadly force, there is a duty to retreat, not one if using less force.

Defense of Property:

People v. Ceballos:  used a booby trap to defend his garage where he claimed he slept from a thief.  wants to argue defense of property from someone coming by surprise. He also argues that since he could use deadly force against this directly he should be able to do so indirectly (if not there with a trap). Court refused this saying a trap couldn’t judge need for deadly force.

MPC 3.06(5): booby trap’s use must be reasonable under the circumstances as  believes them to be, and the device cannot do deadly harm.

Force in Law Enforcement:

Tennessee v. Garner: cop shot a fleeing burglar who he knew to be unarmed. TN statute said this was OK.  argued this was an unconstitutional statute because it was an unreasonable seizure of criminal (seized his life). Restricted police use of deadly force to:

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  Cop believes suspect poses a significant threat to cop or another
  
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  Force is necessary to make arrest or prevent escape.
  
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  Basically court said the threat needs to be an immediate one, however this only appears to apply to nonviolent felons and not violent.
  

Risk to Innocents:

If you kill a bystander accidentally and you acted reasonably, it can be dealt with by an excuse.

Choice of Evils (in between excuse and justification):

Necessity defense:  says they had no choice, if they didn’t act a greater evil would befall them and society as a whole. It doesn’t fit comfortably into justification or excuse.

MPC 3.02 – includes choice of evils and lesser evil doctrine. Broader than common law because it rejects immanency requirement. Doesn’t justify taking innocent life to protect your own. MPC only permits a necessity defense to save greater numbers than those harmed (quantitative starts with 2).

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  Deals with a reasonable person in this situation (subjectifies the objective standard). What if the person is not reasonable?
  

MPC 2.08(1): it isn’t a defense unless it is used to rebut mens rea of purposefully or knowingly. Similar to common law where drunkenness could negate specific intent crimes (there is an additional specific consequence intended).

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  MPC is much cleaner than specific vs. general intent because crimes can be classified as either: assault can be specific (a particular result of bodily harm) or general (just a violent act).
  

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  This establishes a cognitive test about a defect in reason: if the  had the ability to know what he did was wrong or if he didn’t know what he was doing (must know difference between right and wrong).
  
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    It is societal (objective) and not individual norms that are the standard.
    
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    Does this look at legal or moral wrongness?
    
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    Criticized because it lacks degrees of incapacity (some may be able to verbalize illegality, or not wholly lack cognition but still be insane).
    
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    Who bears burden of proof?
    
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      Prosecution: it is very hard to prove someone isn’t insane beyond a reasonable doubt. This is the normally way with affirmative defenses.
      
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      : must prove he is insane by a preponderance of the evidence.  can do this because he has access to all the subjective evidence (much harder for ).
      
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    What constitutes a disease? hard to define, this test doesn’t ID.
    

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  Supposed to apply to cases where  knew wrongness, but was overcome say by a deific command.
  
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  This gave real prominence to psychiatrists who could testify to determinism and that a person couldn’t act any other way. Creates a medical test and almost a directed verdict (instead of the jury doing a legal/moral test).