The Sixth Circuit just handed down a case that involves unusual questions of pleading in a criminal indictment, United States v. Teh. Defendant Thian Teh was arrested at the Detroit airport after flying in to the country from Malaysia. Customs had previously seized shipments of counterfeit DVDs sent to defendant's business in Oklahoma. When his luggage was searched at the airport, Customs officials found four boxes with 756 DVDs and 284 DVD sleeve packages. The DVDs were counterfeit and of poor quality. Defendant claimed he didn't know what was in the boxes and that a friend had asked him to deliver them to the friend's daughter. There was bench trial; defendant was convicted and appealed.
Defendant was charged with "fraudulently or knowingly import[ing] ... merchandise contrary to law." He was charges with violating 18 USC 545, which pretty much states what I just quoted. But what was the law that defendant acted contrary to? Obviously the copyright act, but the government never referred to any statute other than Section 545, nor specified at any time how the proof met the contrary to law element of Section 545. This failure, the court of appeals noted, "[w]ithout question ... caused considerable confusion for Teh, the government, and the district court." The indictment did allege that the DVDs were "counterfeit" and "in violation of ... copyrights," but as defendant pointed out "a copyright is not a law."
In the end, the court of appeals confirmed the conviction, as a kind of harmless error, but there is nothing harmless in this type of counterfeiting: it is a cancer on the motion picture industry, and a quite appropriate use of government resources to stop it. Hopefully, in light of the Teh case, some of those resources will be allocated to proper drafting of indictments.
H.T. to C.E. Petit.
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I do not do criminal work, but questions of the government meeting its legal obligations interest me. I have read many anecdotal reports over the years of basic and inexplicable inadequacies of this type.
If I were to represent a criminal defendant in court, the very first thing I would look for is a citation of all allegedly violated statutes and an assertion of factual events which constituted such a violation. 99% of the time that's a formality, but as occasionally happens, it turns out that a local prosecutor has been prosecuting defendants for a crime which doesn't actually exist, or under a fact pattern which doesn't violate the law.
Given the strong protections against double-jeopardy, errors of this sort, harmless or not, can be exploited by criminal defense attorneys quite powerfully, whether to free someone who hadn't actually broken the law, or to avoid conviction for someone who had but whose prosecutor was careless. It's a lot more important than it looks.
M
(One reasonably illustrative example is that of Joshua Krawiek, a case in Washington state some years ago. See: http://www.proliberty.com/observer/20020101.htm)
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