LEGL Test 3 Review Flashcards
1
Q
Crime
A
Wrong against Society
2
Q
Elements of Crime
A
Mens Rea
Actus Reus
3
Q
Mens Rea
A
All about the guilty mind; person’s mental state at the time crime was committed
4
Q
Actus Reus
A
Physical act of committing a crime; voluntary and person must be conscious
- Sleeping walking is not conscious Crime not committed
5
Q
General Intent
A
Intention to do the act that constitutes the crime
6
Q
Specfic Intent
A
Intention to achieve the harmful result
Examples: Willful, Knowingly (voluntary and intentional)
7
Q
Reckless Conduct
A
Some states say: reckless is enough to statisy as a crime to be responabile
8
Q
Felony
A
i. Commenced by a Grand Jury Indictment (met before trial and discuss if there is probable cause to go to trial)
ii. Fine or Imprisonment 1 year or more
9
Q
Misdemeanor
A
i. Commenced when the government files a charge called an information (written accusation by prosecutor presented in court charging the accused person of a crime)
ii. Fine or imprisonment less than 1 year
10
Q
Pleas
A
a. Not Guilty
b. Guilty
c. Nolo Contendere
i. Stands for no contest
ii. Allows for sentencing as if there had been a guilty plea
iii. Allows you to avoid the cost of trial
11
Q
White Collar Crime
A
a. Any illegal offense that occurs in a business or professional setting that is committed to harm the business or for personal gain
*Most major corporations have ethical codes and extensive compliance programs to combat these types of crimes
12
Q
Fraud
A
- Defendant made a false statement.
- Defendant knew the statement was reckless or showed indifference to its truth.
- Defendant intended for the other party to rely on the false statement.
13
Q
Criminal v. Civil Fraud
A
Civil have to show reliance; Criminal don’t need to show
14
Q
Scheme to defraud
A
Plan designed to take from a person the tangible right of honest services
15
Q
Theft by Deception
A
- Creating or reinforcing a false impression.
- Failing to correct a false impression in a fiduciary relationship.
- Preventing access to relevant information in a transaction.
- Failing to disclose a known lien or legal impediment to a property transfer.
16
Q
Mail Fraud
A
Unlawful to use the U.S. Postal Service (or other any interstate carrier like FedEx or UPS) to defraud someone
EX: People fake invoices and send it to people and pretend that you owe money
17
Q
Wire Fraud
A
Unlawful to use any electronic means of interstate communication (e.g., radio, tv, phone call, text message, fax, internet, email) to defraud someone
EX: Telemarketers reach out and claim to sell and give their credit card info or social and negatively impacts them
18
Q
Securities Fraud
A
Rule 10b of the Securities and Exchange Commission and the Securities Exchange Act of 1934 make fraud in the purchase or sale of a security a federal crime
19
Q
Health Care Fraud
A
- Governed by the False Claims Act.
- Whistleblower suits aid investigations.
20
Q
Ex of Health Care Fraud
A
- Billing for services not actually performed
- Falsifying a patient’s diagnosis to justify tests, surgery, or other procedures that are not medically necessary.
- Uncoding or billing for a more costly procedure than the one actually performed.
- Unbundling or billing each stage of a procedure as if it were a separate procedure
- Accepting kickbacks for patient referrals
- Billing a patient more than the copay amount
21
Q
Counterfeiting
A
i. Use of counterfeit access devices including bank cards, plates, codes, account numbers, or other means to initiate a transfer of funds is outlawed
ii. The use of an unauthorized access device is prohibited
1. Lost, stolen, expired, revoked, cancelled, or fraudulently obtained bank card
iii. Must result in at least $1000 being fraudulently obtained within a 1 year period
iv. No communication
22
Q
Bankruptcy Fraud
A
Certain conduct by the debtors, creditors, and others that are said to be a federal crime as per the U.S Code
Examples: Falsifying information in a bankruptcy proceeding, presenting a false claim in any bankruptcy proceeding, bribing a trustee, Concealment (intentional misrepresentation or withholding of a material fact that occurs dur to a silence of a party)
23
Q
Conspiracy
A
Two or more individuals knowingly agree on a plan or scheme or method for carrying out an illegal act (separte from underlying charge)
i. Have to intend to accomplish the objective of the conspiracy
a. Defendant willfully became a member of such conspiracy (can join at any point in time)
b. Requires an overt act (ex: one person from the group buys mask for a robbery)
i. Any act knowingly committed by at least one of the conspirators in an effort to carry out or accomplish some objective of the conspiracy
c. A person can be charged with conspiracy even if they don’t know all the details of the unlawful scheme
EX: Suits(pretenfin to be a lawyer), Home Alone(breaking into the house)
24
Q
Obstruction of Justice
A
Commission of an act with the intent to obstruct or interfere with the legislative or judicial process
b. Laws are designed to protect the integrity of: Legislative and judicial proceedings
and
Proceedings before federal departments or agencies
Examples: Changing records of phone calls that show you are guilty, altering/shredding documents that show guilty, testifying falsely, tampering with evidence, lying to a police officer
25
False Statement to a Bank
a. Law aims to protect banks and ensure the accuracuy of finanical information
b. A statement or report is false if it:
-Relates to a material fact and is untrue
-Is known to be untrue by the person making it
26
False Statement to a Federal Agency
a. Federal crime for anyone to wilfully and knowingly make a false or fraudulent statement to a department or agency of the United States.
b. Must be related to material fact
27
Larceny
Unlawful taking of personal property with the intendent to deprive the rightful owner of it permanently (shoplifting)
Commonly referred to as theft or stealing
28
Larceny Ex
Robbery
i. Larceny by violence or threat (using a gun
Burglary
i. Breaking or entering with the intent to commit a felony (most common form is larceny)
Embezzlement
i. Entrusted someone with access to money and abuse trust for their own personal gain
29
Racketeer Influenced and Corrupt Organizations Act (RICO)
a. Aimed at preventing organized crime (take down the entire group at once)
b. Imposes criminal and civil liability
c. A RICO violation occurs when a person, in connection with an enterprise, engages in a pattern of racketeering activity
i. must have engaged in at least 2 racketeering activities
Examples of Racketeering activities: Murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene material or controlled substances, counterfeiting, mail and wire fraud, obstruction of justice, tampering with a witness, victim or informant
Ex: Cases in GA: Donald trump, young thug
30
Cyber Crime
Person who intentionally accesses (or attempts to access) a computer without authorization or exceeds authorized access to obtain classified, restricted, or protected data
31
Electronic Theft - cyber crime
Hackers steal money, trade secrets, personnel records, customer lists, and company plans.
- Issuing corporate stock to yourself
32
Identitity theft - cyber crime
Using accessed information to commit fraud (using stolen information to create a new form of identify).
33
Endangering Workers
a. Occupational Safety and Health Act of 1970 imposes criminal sanctions for:
i. Willfully violating an OSHA standard that causes the death of an employee
ii. Giving advanced notice of an OSHA inspection
iii. Falsification of documents filed under OHSA
**Must have adequate safety precautions in place
34
Bribery
a. Bribery of a public official is illegal under federal law (18 USC 201)
b. Accepting a bribe to “fix” or “throw” a game is a fed. crime (18 USC 224)
i. Sports Bribery Program (FBI)
1.Investigates violations of federal statutes related to gambling and corruption in sports.
2. Helps ensure the integrity of college and professional sports.
35
Kickbacks
Payments made to a person who facilated a transaction
EX: Giving a building contract a contract and gives a certain % to fund someone campaign
Video: Tim Donugy fixing games
36
4th Amendment
Illegal Seaches and Seizure
- Protects individuals and corporations from unreasonable searches and seizures by the government
- Police must have a warrant before search where people have resonable expctatins of privacy
-The police must show probable cause that the search will yield evidence of a crime
-Expectations of privacy
-Private residence: Yes, needs a warrant as homes have high expectations of privacy
-Commercial premises: Job; Police can search without warrant as expectation of privacy is very limited
37
Exceptions to 4th Amendemnt
Exceptions:
- Consent Searches
-Motor Vehicles Searches (in some cases); can check is evidence is in plain view
-Evidence in Plain View
-Exigent Circumstances: Circumstance where evidence is being destroyed or hidden, person is a threat to others
-Police making an arrest
Case: Riley v. California
Guy was stopped for no tag and found he had a suspended license. Searched his car, and was arresting the guy and looked at the guys phone (need a warrant for phone)(can search their car if you are arresting them for the officer protection)
*At a point in the airport, you are consenting to a warrantless search
38
5th Amendment
Grand Jury
Requires an indictment by a grand jury for felony charges.
Grand Jury Composition:
Comprised of 23 citizens.
Presence: 16 must be present to hear evidence and vote.
Indictment Requirement: At least 12 must concur for an indictment.
Functions:
Determines if there is probable cause.
Serves as an investigative body.
Confidentiality:
Grand jury proceedings are confidential.
Exceptions: Transcripts can be used if a witness changes their testimony at trial.
Self-Incrimination:
Protects the accused from being compelled to testify against themselves ("Right to Remain Silent").
Limitations:
Does not protect against producing physical evidence.
Does not protect against producing business records.
Corporations do not have this protection.
Exception: Sole proprietorships.
39
Miranda Rights - 5th Amendement
a. You have the right to remain silent
b. Anything you say can be used against you in court. You have to the right to talk to a lawyer for advice before we ask you any questions
c. You have the right to have a lawyer with you during questioning.
d. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish
e. If you decide to answer questions w/out a lawyer present you have the right to stop answering at any time
Mere silence doesn’t invoke your Miranda Rights
- You have to clearly articulate that you are invoking your Miranda rights
- If you were answering questions then be silent if they ask if you murdered someone then it can be used against you since you did not invoke my Miranda rights
40
Double Jeopardy- 5th Amendement
Individuals cannot be tried twice by the same government entity for the same crime based on the same factual situation
-Can be bring a case through criminal and civil and isn’t double jeopardy or the federal government and state government can both serve you a case and won’t be double jeopardy
41
6th Amendment
i. Speedy and public trial
ii. Trial by jury
iii. Be Informed of the charge against oneself
iv. Confront the accuser
v. Subpoena(order) witness in your favor
vi. Have the assistance of an attorney
42
8th Amendement
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted
Case: Furman v. Georgia
- Illustrates what principles should be used to determine if a punishment should be deemed cruel and usual
- Punishment is “cruel” and “unusual” if
a. So, serve as to degrade human dignity
b. Inflicted completely in an arbitrary manner
c. Largely rejected by society
d. Patently unnecessary
*If you are mentally handicap or under 18 when crime was committed Can’t receive death penalty
43
Intellectual Property
“Promote the Progress of Science and useful Arts, by securing, for limited times, to Authors and Inventors, the exclusive Rights to their respective Writings and Discoveries.”
Why?
Incentivize new inventions
44
Federal Sentencing Guidelines
Purpose: Ensure similar crimes reiceve simialr sentnece
45
Trade Secrets
Any form of knowledge or infromation that has economic value from not being generally known to others or readily ascertainable by proper means.The owner has to make reasonable efforts to maintain secrecy .”
46
To win a trade secrets case:
Establish that the Trade Secret Exists:
a. The information must be secret and the business must take reasonable measures to keep it a secret
Examples of preserving secrecy:
i. Lock written material
ii. Secure computer-stored knowledge with firewalls and encryption
iii. Regulate visitors
iv. Ask employees, customers, and business partners to sign nondisclosure agreements
v. Impose confidentiality restrictions
2. Demonstrate Misappropriation
a. Misappropriation occurs when one improperly acquires or discloses secret information
Examples:
Burglary, Espionage, Computer Hacking , Breach of duty (e.g., employment relationship/contract)
c. Own Creation is not misappropriation
- You create a chick fila sandwich on your own
47
Patents
A patent is associated with an inventive act, and conveys a right to exclude others from making, using, selling or importing the covered invention
- A patent is an exclusive right created by statute and conveyed by the U.S. Patent and Trademark Office (PTO) for a limited period of time
48
Types of Patents
Utility
a. function of invention
b. 20 years from filing date
Design
a. Appearance
b. 15 years from the issue date
Plant
a. New, variety of plants that can reproduce asexually
b. 20 years from filing date
49
America Invents Act
1. In 2011, Former President Obama signed into law the America Invents Act.
2. This was the first substantial revision to the U.S. Patent Law since 1999
Key Change: Switch from a first to invent system to a first to file system
50
Patentable Subject Matter
Validity of a patent can be tested by scrutinizing its subject matter
Subject Matter that CAN be Patented:
a. Process (can be controversial)
b. Machine
c. Article of Manufacture or
d. Composition of Matter (or improvement thereto)
Subject matter that CAN’T be patented:
a. Laws of Nature
b. Natural phenomena
c. Abstract Ideas
d. Mathematical algorithms or formulas
51
Trademarks
i. Marks on what is produced to represent the origin of goods and services
ii. Recognizability or distinctiveness is the function of trademarks
52
Type of Trademarks: Trademark
mark, word, picture, or design that attaches to goods to indicate their source
53
Type of Trademarks: Service Mark
a mark associated with a service. Ex: United Airlines
54
Type of Trademarks: Certification Mark
a mark used by someone other than the owner to certify the quality of goods or service ex: organic sticker
55
Type of Trademarks: Collective Mark
mark represents membership in a certain organization or association. Ex: NFL
56
Type of Trademarks: Trade dress
the look or design of a product or service. I.e. the color or shape of a product
ex: Coca Cola bottle shape
57
Trademark Registration
1. Register with US Patent & Trademark Office
2. PTO places the mark in the Official Gazette
3. If existing owners raise objections, there is a hearing
4. If mark is acceptable, PTO registers mark in Principal Register
5. ***Note: Trademarks enjoy potentially unlimited protection but you must notify the PTO that trademark is still in use every 6 years and renew the trademark registration every 10 years
6. When can the PTO deny Registration?
a. The mark is the same or similar to another mark
b. If it contains certain prohibited or reserved names or designs
c. If it merely describes a product or service
58
What if your trademark registration is denied?
You can still use your mark but it would be considered an unregister trademark
- trademark rights are derived from use not registration
- can still sue for trademark infringement of an unregistered trademark, but only in the state where the owner does business
- if registers you have rights in all 50 states and all US territories
59
Can You Register Descriptive Terms or a Person’s Name as a Trademark?
a. Generally, the PTO will not accept a person’s name or descprtive term for protection on the Principal Register.
b. Exception: If the descriptive term is listed on the PTO’s Supplemental Register for 5 years AND acquires a secondary meeting
c. Secondary refers to a public meaning that is different from its meaning as a person’s name or as a descriptive term, a public meaning that makes the name or term distinctive
i. Examples: Ford, Levi, Disney
60
Trademark Enforcement: Civil Violation
a. Infringement
i. Remedies include damages and injunctions and orders to destroy infringing products
b. Generic marks cannot be protected
61
Trademark Enforcement: Criminal Violation
Manufacturing and trafficking counterfeit trademarked products (I.e. imitation Rolex watches)
62
Trademark Infringement
1. Plaintiff must prove that Defendant’s use has created a “likelihood of confusion” with the plaintiff’s trademark.
2. Courts use a multifactored test that considers elements such as:
a. Defendant’s intent
b. Proof of actual consumer confusion
63
Trademark Confusion
Case: Kraft Foods Group Brands LLC. V. Cracker Barrel Old Country Store Inc.
a. Plaintiff filed a suit against the defendant claiming that consumer will be confused by the similarly of the logos and Kraft will be blamed
What can a Defendant argue?
1. The mark is not distinctive
2. There is little chance of the public being confused
3. The use if a fair use
64
Federal Trademark Dilution Act
Prohibits the usage of a mark that is the same as or similar to another’s “famous” trademark to dilute its significance, reputation, and goodwill
65
Types of Dilution: Blurring
when usage of a mark blurs distinctiveness of a famous mark
66
Types of Dilution: Tarnishment
When usage of a mark creates a negative impression about the famous company
67
Copyrights
i. Property right in creative expression that protects creators
ii. Property rights in a copyright afford an author, artist, or other creator a monopoly in the right to copy and market their creative expression for a limited time
1. Work must be original
2. Must be fixed in a tangible medium of expression
3. Must show creative expression
68
How long does copyright protection last?
If you are induvial- lasts for authors lifetime and + 70 years ; if you are a company it lasts 95 years form publication or 120 years from creation whichever one expires first
69
Case: Skidmore v. Led Zeppelin
a. Skidmore (trustee of Randy California Estate) claimed the band Led Zeppelin copied part of Randy song in
b. Did this person have access to you song? Was it substantially similar to mine?
70
Fair Use Defense
Copyright Act
a. Specifies that fair use of copyrighted materials is not an infringement of the owner’s property
i. Fair use includes copying for:
1. Criticism
2. Comment
3. News reporting
4. Teaching
5. Scholarship
6. Research
ii. Factors considered by the courts:
1. Purpose and character of the use
2. Nature of the copyrighted work
3. Amount and substantiality of the portion used in relation to the copyright work as a whole
4. Effect of the use upon the potential market for the copyrighted work
71
Music Copyright is made up of 2 different parts:
Composition- generally song lyrics
Master- recorded song (what we listen to on Spotify, Apple Music, or the radio)
o Taylor Swift only owns composition for her earlier albums not rights to her master. She couldn’t sing her old songs, so she is now recording her old songs
*4 cord sequence can’t prove copying since it’s the music building blocks
72
International Intellectual Property Rights
Once you have Intellectual Property Right Protection, is that protection automatic internationally as well? No
2. World Trade Organization (WTO)
a. Administers Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
i. Requires member countries to provide protection for all forms of intellectual property
3. World Intellectual Property Organization (WIPO) administers:
a.Patent Cooperation Treaty (PCT)
b.Madrid System for International Registration of Marks
73
Closely Held
Organizations owned by only a few persons
Examples: Family-owned and family-operated business
74
Publicly Held
Businesses owned by hundreds or thousands of persons
Example: Business whose stock is traded on a public exchange
75
Autual Authority
Authority that is incidental to express authority (arises from the position held and by the history of express authority)
EX: Person is a manager at the restaurant; manager needs to buy sugar on company car
76
Implied Authority
Authority that is incidental to express authority (arises from the position held and by the history of express authority)
Ex: Person is a manager at the restaurant; manager needs to buy sugar on company card
77
Apparent Authority
a. Authority perceived by a third party when no actual authority exists
b. Note, Agent would be liable to principal
i. Manager is fired and tries to buy a lot of company card ; people at store doesn’t know that he was fired unless they were informed that the manager doesn’t have authority anymore
78
Tort Liability
Called Respondeat Superior
General rule: an agent who causes harm to a third party may create liability owed by the principal to the third party
TEST: Whether the employee was in the scope of his/her employment when the tort occurred?
a. Frolic and detour --> Used as a defense by employers
ex: Employee of Amazon was driving to deliver packages then was texting/driving and hit someone; he was in scope of employment so Amazon is liable
