Question Analysis
Al, Bob and Charlie planned to bring 50 cases of whiskey ashore from a ship anchored in the harbor near their town and sell it to a local bar owner. They believed the whiskey had been produced abroad and was subject to a federal import duty. They also knew that smuggling items into this country without paying duty required by the Tariff Act is a crime. In fact, however, the whiskey in this shipment had been produced in the United States. (Factual impossibility)
The three met at Al’s house on Monday and agreed to bring the whiskey ashore by rowboat on Friday night. On Wednesday, however, Bob called Al to say that he and his wife were going to visit relatives that weekend and Bob would not be able to help bring the whiskey ashore. Al said that was all right, that he and Charlie could handle the boat and the whiskey, but that Bob would naturally be cut out of the profits on this job.
When Charlie learned from Al that there would be just the two of them he became apprehensive, but he was afraid of what Al might do to him if he tried to back out.
Therefore, on Thursday, Charlie informed the police of Al’s plan and did not show up on Friday night. Al was arrested on Friday night as he came ashore, alone, with the whiskey and was loading it into a truck he had stolen from a nearby Coast Guard parking lot.
Al, Bob and Charlie have been charged with theft of the truck and conspiracy to import dutiable goods without payment of duty.
Al has also been charged with attempt to import dutiable goods without payment of duty. He has told Len, his lawyer, that he plans to testify that he knew all along that the whiskey was produced in the United States.
Based on the above facts:
Should Al, Bob or Charlie be convicted of:
Conspiracy to violate the Tariff Act? (#1)
Theft of the truck? Discuss. (#2)
Should Al be convicted of attempt to import dutiable goods without payment of duty in violation of the Tariff Act? (#3) Discuss.
If Al persists in testifying that he knew the whiskey was produced in the United States, what, if anything, should Len do? (#4) Discuss.
Outline
1. Conspiracy to violate the Act
2. Theft
3. Attempt to violate the Act
4. Len Should Do
Comments
This Criminal Law and Professional Responsibility crossover question is similar to February 2013 Q1 (involving conspiracy, target crime and attempt) and February 2013 Q2 (involving false testimony).
Model Answer
1. Conspiracy to violate the Act
Conspiracy requires (i) an agreement, express or implied, to accomplish an unlawfulobjective or to accomplish a lawful objective with unlawful means, (ii) an intent to agreeto commit conspiracy, (iii) an intent to achieve the unlawful objective, (iv) an overt act infurtherance of the objective of the conspiracy.
(1) Agreement
Here, A, B and C agreed to a plan to bring 50 cases of whiskey ashore which they believed to have been produced abroad.
(2) Intent to agree to the conspiracy and to achieve the unlawful objective
Here, A, B, and C intended to agree to the plan with the knowledge that they were subject to a federal import duty and that smuggling items into this country without paying duty required by the Tariff Act is a crime.
(4) Overt act in furtherance of the objective
Here, the three met at Al’s house on Monday and agreed to bring the whiskey ashore by rowboat on Friday night which constituted an overt act in furtherance of the objective.
2. Theft
(1) A
(2) B
1) Co-cospirator liability
2) Withdrawal
(3) C
1) Withdrawal
3. Attempt to violate the Act
(1) A- specific intent with substantial step
4. L's Professional Responsibility
(1) Mandatory Withdrawal (exception to duty of confidentiality)
1) ABA: tell client not to do so, attempt to withdraw from the case, and finally tell the judge if the attempt to draw is unsuccessful.
2) CA: not tell the judge but must allow his client to testify in a narrative fashion and must counsel the client not to lie
(2) Permissive Withdrawal
1) ABA: C persists in action involving L's services that the L reasonably believes is fraudulent or criminal or other good cause exists
2) CA: The client engages in conduct that makes it unreasonably difficult for the lawyer to represent him
(3) Duty of Fairness
A L who knows the client intends to engage in fraudulent or criminal activity shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal