Business Law Alternate Edition Text and Summarized Cases 12th Edition Miller Solutions Manual

Business Law Alternate Edition Text
and Summarized Cases 12th Edition

Miller Solutions Manual
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CHAPTER 9
CRIMINAL LAW AND CYBER CRIME
ANSWERS TO QUESTIONS
AT THE ENDS OF THE CASES
CASE 9.1—QUESTIONS (PAGE 163)

THE ETHICAL DIMENSION
Given that Sisuphan returned the cash and the checks, was it fair of the dealership’s general manager to
terminate Sisuphan’s employment? Why or why not? It is hard to imagine that Sisuphan’s employer
would ever be criticized on ethical grounds for firing Sisuphan in these circumstances. Sisuphan had
many responsibilities at the dealership, among them handling financial transactions with customers and
receiving payments from them. By taking the cash and checks from McClelland’s sale, even with the
intention of returning them, he put them to a use other than his employers intended and thereby
violated the trust they placed in him. The general manager and general sales manager of the dealership
both confessed that they trusted Sisuphan and “were shocked that he had taken the money.” Even if
Sisuphan had returned the money within the twenty-four hour period (and thus, according to the
general manager, would not face criminal charges), Sisuphan’s actions would be cause for termination in
almost any employment environment.
THE LEGAL ENVIRONMENT DIMENSION

Why was Sisuphan convicted of embezzlement instead of larceny? What is the difference between
these two crimes? One of the key differences between embezzlement and larceny has to do with the
element of possession. Larceny involves the wrongful taking of property in the possession of another, as
does robbery (the latter crime involves the violent taking of the property). Embezzlement, in contrast,
involves the wrongful appropriation of property that has been entrusted to the person appropriating it,
typically an employee. In other words, the property is already in the perpetrator’s possession.
CASE 9.2—QUESTION (PAGE 172)

THE GLOBAL DIMENSION
67
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68 UNIT TWO: TORTS AND CRIMES
The right to remain silent has long been a legal hallmark in Great Britain as well as in the United States.
In 1994, however, the British Parliament passed an act that provides that a criminal defendant's silence
may be interpreted as evidence of his or her guilt. British police officers are now required, when making
an arrest, to inform the suspect, "You do not have to say anything. But if you do not mention now
something which you later use in your defense, the court may decide that your failure to mention it now
strengthens the case against you. A record will be made of everything you say, and it may be given in
evidence if you are brought to trial." Should U.S. law also change to allow a defendant’s silence during
questioning to be considered as an indication of guilt? Why or why not? Yes, because in combination
with other circumstances—a smirk, arrogance, bravura, or physical evidence—silence would seem to
indicate guilt. No, because it seems contrary to the U.S. principle that a suspect is innocent until proven
guilty, because it seems to run counter to basic constitutional rights under the First, Fourth, Fifth, and
Sixth Amendments, and because silence may seem to indicate guilt but it may also indicate reticence,
fear, shock, ignorance, misunderstanding, miscomprehension, or disability.
CASE 9.3—QUESTIONS (PAGE 176)

WHAT IF THE FACTS WERE DIFFERENT?
If Armstrong had not looked through the cardboard box before the police searched it, would the
contents of the box have been admissible? Why or why not? Probably not. According to the court, the
police search of the box was legitimate because the defendant’s girlfriend had previously conducted a
private search of the box. Without this private search, the government would not have been able to
assert the private search doctrine. Therefore, the officers’ searching the box without a warrant would
have been considered unreasonable under the Fourth Amendment, and the contents of the box would
have been excluded as “fruit of the poisonous tree.”
THE LEGAL ENVIRONMENT DIMENSION

Why was the evidence in the box crucial to the government’s prosecution of Oliver? Because Oliver
was charged with identity theft, the evidence of the victims’ names, Social Security numbers, and credit
and debit cards was an essential element of the crime. To establish identity theft, the government had
to prove that Oliver (1) knowingly used (2) the means of identification of another person (3) without
lawful authority (4) during and in relation to a mail fraud offense. Without the evidence in the box, the
government might not have been able to establish that Oliver had committed identity theft (although it
still could have proven mail fraud).
ANSWERS TO QUESTIONS IN THE REVIEWING FEATURE

AT THE END OF THE CHAPTER
1A. State of mind
CHAPTER 9: CRIMINAL LAW AND CYBER CRIME 69
Yes, because he was the corporate officer responsible for the project and had the power to prevent the
criminal violation. Corporate directors and officers are personally liable for the crimes they commit, and
can also be held liable for the crimes of employees under their supervision. Because Hanousek was the
corporate officer responsible for every detail of the “6-mile” quarry, he had the power to prevent the
criminal violation. Therefore, Hanousek can be held criminally negligent for the backhoe operator
puncturing the pipeline.
2A. Theory of liability

Under the responsible corporate officer doctrine, a corporate officer can be held liable for a crime
because he was in a responsible relationship to the corporation and could have prevented the violation.
The corporate officer does not have to intend the crime or even know about it, to incur liability under
this doctrine.
3A. Liability of employee

No, because he did not have the required mental state (mens rea) and was corporate officer in a
responsible position to prevent the criminal violation. Criminal liability requires a guilty act at the same
time as the defendant had a wrongful mental state. The backhoe operator pierced the pipeline (the
guilty act), but he did not have a wrongful mental state because he was simply doing his job and may not
even have been aware of the pipeline. A court would not apply the same standard to an employee as it
would to a responsible corporate officer who “knew or should have known” of the existence of the
pipeline. Because both elements of criminal liability (guilty act and wrongful mental state) did not occur,
the backhoe operator could not be charged with a crime.
4A. Ignorance of the law

No, because Hanousek was the corporate officer responsible for the project and should have known the
requirements of the law. Because Hanousek was in a responsible position at the corporation and in
charge of the 6-mile quarry, a court would find that he “should have known” the requirements of the
law. Therefore, lack of knowledge of the requirements of the CWA would not operate as a defense in his
case.
ANSWER TO DEBATE THIS QUESTION IN THE REVIEWING FEATURE AT THE END OF THE
CHAPTER
One legal observer claimed that all Americans may be breaking the law regularly without
knowing it because of overcriminalization, particularly by the federal government. Should Congress
rescind many of the more than four thousand federal crimes now on the books? Discuss fully. Difficult
times require drastic measures. This nation now has over 300 million residents who move frequently.
Moreover, the pervasiveness of the Internet means that business fraud is increasing at a rapid rate.
Consequently, the federal government must step in to make sure that criminal actions do not go
unpunished. That’s why so many new federal crimes have been added to the body of criminal statutes.
The Constitution reserves for the states police powers for activities within state boarders. Crimes
have always been defined by state and local governments. Just because we have a larger population
that has access to the Internet does not mean that Congress should be in the business of creating so
many federal crimes. Moreover, many new federal criminal statutes do not require intent—a
cornerstone of the prosecution of most crimes for ages.
ANSWERS TO QUESTIONS AND CASE PROBLEMS

AT THE END OF THE CHAPTER
9-1A. Types of cyber crimes

(Chapter 9—Pages 175–177)
(a) This is vishing, a form of identity theft. The traditional crimes of theft (robbery, burglary,
larceny, and other) consist of wrongfully taking and carrying away another’s personal property with the
intent of depriving the owner permanently of it. Unique to crimes of identity theft is that they involve
taking another’s identity, and unique to cyber variations of the offense is that the criminal acts are
committed with computers, often online. A stolen identity is typically used to commit more crimes.
(b) As in the previous problem, this is a form of identity theft. This problem describes a
factual situation referred to as phishing. In such a set of circumstances, once an unsuspecting individual
responds by entering the requested information, the phisher can use it to pose as that person or to steal
the funds in his or her bank or other account.
(c) Here is identity theft in the form of employment fraud. In this scenario, the goal is to trick
the recipient into revealing enough information for the perpetrator to steal his or her identity and
commit still other offenses—emptying the individual’s accounts, spending money in his or her name, or
otherwise taking advantage of his or her identity to obtain something undeserved or accomplish a
criminal end.
9-2A. Property crimes

(Chapter 9—Page 162)
The answer is (e). Receiving stolen property requires illegal activity on the part of more than one
person. Receiving stolen property (if the recipient knows it is stolen) is a crime that necessarily involves
both the recipient and the person who stole the property.
9-3A. QUESTION WITH SAMPLE ANSWER: Cyber scam

This is fraud committed in e-mail sent via the Internet. The elements of the tort of fraud are (1) the
misrepresentation of material facts or conditions made with knowledge that they are false or with
reckless disregard for the truth, (2) the intent to induce another to rely on the misrepresentation, (3)
justifiable reliance on the misrepresentation by the deceived party, (d) damages suffered as a result of
the reliance, and (4) a causal connection between the misrepresentation and the injury. If any of this e-
mailer’s recipients reply to her false plea with money, it is likely that all of the requirements for fraud
will have been met. The sort of fraud described in this problem is similar to the “Nigerian letter fraud
scam” noted in the text. In this type of scam, an individual sends an e-mail promising its recipient a
percentage of money held in a bank account or payable from a government agency or other source if he
or she will send funds to help a fictitious official transfer the amount in the account to another bank.
The details of the scam are often adjusted to current events, with perpetrators referring to news-making
conflicts, tax refunds or payments, and other occurrences.
9-4A. White-collar crime

(Chapter 9—Pages 162–163)
Walsh’s acts fit the definition of embezzlement and may fall within the definitions of other theft crimes.
Walsh was convicted in an Ohio state court of “theft by deception,” a term that encompasses
embezzlement and other crimes, and sentenced to a term of incarceration and ordered to pay
$186,276.84 in restitution to Helm. Walsh appealed to a state intermediate appellate court, which af-
firmed the conviction. The court “reiterate[d] that appellant was in a unique position to commit
undetected theft as the corporate comptroller. Appellant controlled and monitored the finances of the
company. Appellant's hand picked assistant collaborated with him in the theft.” The court also stated,
“Our review of the record shows voluminous documentation establishing appellant engaged in a clear
pattern of issuing and executing thousands of dollars in payments from Helm accounts for unauthorized
personal benefit. Appellant tapped corporate accounts to pay off his many personal credit cards, took
unauthorized salary increases, cash payouts, and tuition reimbursements.” About Walsh’s claims, the
court concluded, “The record shows these arguments are wholly unsupported and defy all logic. . . . We
are not persuaded by appellant's transparent efforts to shift blame and mitigate [the amount of his
theft]. Appellant's conviction is supported by legally sufficient evidence in the record. His conviction was
not against the manifest weight of the evidence.”
9–5A. Credit cards

Sharapka pled guilty to crimes of identity theft, mail fraud, and other offenses. Use of the stolen credit-
card numbers constituted identity theft, which occurs when a wrongdoer steals a form of identification
and uses it to access the victim’s financial resources. Mail fraud involves (1) mailing or causing someone
else to mail a writing—something written, printed, or photocopied—for the purpose of executing a
scheme to defraud and (2) a contemplated or an organized scheme to defraud by false pretenses.
Sharapka caused the vendors and credit-card companies to mail receipts, bills, and other documents, as
well as goods, through his organized scheme to defraud by false pretenses. His victims included the
fourteen vendors who sent merchandise when he used the stolen credit-card numbers. These sellers
suffered direct financial losses. This is because the legitimate holder of a credit card is not usually
responsible for the cost of a purchase made if the number is stolen. The loss is borne by the merchant or
the credit-card company. Most credit-card companies require the merchant to cover the cost, especially
if the address to which an item is sent does not match the billing address of the card. In this case,
Sharapka had the goods sent to Mail Boxes, Etc. outlets, the addresses of which did not match the billing
addresses. Sharapka was sentenced to 121 months’ imprisonment, a sentence that was affirmed on his
appeal to the U.S. Court of Appeals for the First Circuit.
9–6A. Intellectual property

Klimecek committed copyright infringement (or “piracy”) and was not entitled to have his sentence
reduced on the ground that he was a “minor participant” in the scheme. He was an essential participant
in the operation: if he had not bought the hardware and software components, set up the server,
connected it to the Internet, and paid half of the monthly Internet service fees, the unauthorized
dissemination of others’ copyrighted works could not have occurred. Even if other participants also set
up servers and provided copyrighted materials, this meant that Klimecek did no less than the “average”
participant. His claim that he did not understand the full scope of the operation was undercut by his
admission that he knew users around the world were accessing his group’s server. He further
participated in the scheme by making Czech movies and music available. The court found him to be
“crucial” to the operation and sentenced him to thirty months’ imprisonment (no reduction). The U.S.
Court of Appeals for the Seventh Circuit affirmed the sentence.
9–7A. Fourth Amendment

Under the Fourth Amendment, a police officer must obtain a search warrant to search private property.
In the case of a traffic stop, it seems unreasonable to require an officer to obtain a warrant to search
one of the vehicle’s occupants. But it seems reasonable to apply some standard to prevent police
misconduct. An officer might be held to a standard of probable cause, which consists of reasonable
grounds to believe that a person should be searched. In some situations, however, an officer may have a
reasonable suspicion short of probable cause to believe that a person poses a risk of violence. In a traf-
fic-stop setting, for example, this risk would not stem from the normal reaction of a person stopped for
a driving infraction, but from the possibility that evidence of a more serious crime might be discovered.
A criminal’s motivation to use violence to prevent the discovery could be great. And because the vehicle
is already stopped, the additional intrusion is minimal. Under these circumstances, a limited search of
the person for weapons would protect the officer, the individual, and the public. Thus, an officer who
conducts a routine traffic stop could perform a patdown search of a passenger on a reasonable suspicion
that the person may be armed and dangerous. In this case, a jury convicted Johnson of the charge, but a
state appellate court reversed the conviction. The United States Supreme Court reversed the appellate
court’s judgment and remanded the case.
9–8A. Sentencing guidelines

The appellate court vacated the lower court’s decision and remanded the case. “Unfortunately, the
district court did not provide us anything close to a sufficient explanation of its rationale….” The trial
judge improperly rejected the evidence that justified the sentences recommended without comment.
Because the evidence of damage suffered by the government from the bidding scheme was rejected by
the trial court for purposes of sentencing, the judge ignored the recommendation of imprisonment. A
judge may deviate from the Sentencing Guidelines, but must provide adequate justification for the
sentence imposed. Because of procedural errors, the failure to explain why the evidence that allowed
conviction was not accepted for purposes of sentencing, the sentence was vacated and remanded to the
district court for reconsideration. This case illustrates the ongoing tension in the application of the
Sentencing Guidelines. The appeals court did not order the Guidelines to be strictly followed, as they are
asserted to be “advisory.” However, the court made clear that the judge would, at a minimum, have to
provide strong justification for deviating significantly from the Guidelines.
9–9A. Fourth Amendment

Yes, a cross-gender strip search is unreasonable if there is no emergency situation to justify it. The
federal appellate court held that the search performed on Byrd was unreasonable as a matter of law and
violated Byrd's rights under the Fourth Amendment to be free from unreasonable searches. Whether a
search is reasonable under the Fourth Amendment requires a case-by-case analysis and a “balancing of
the need for the particular search against the invasion of personal rights that the search entails.”
Although strip searches are sometimes permissible, the court recognized that they are a “‘frightening
and humiliating’ invasion…even when conducted ‘with all due courtesy.’” Here, there was no emergency
situation, and “although valid reasons to search the inmates existed generally, there was no justification
given for conducting a cross-gender strip search.” In addition, “the manner in which the search was
conducted weighs in favor of a determination of unreasonableness.” The female officer who performed
the search was dressed in jeans and a white T-shirt and was unidentified (other than by the name
printed on the back of the T-shirt). Ten to fifteen non-participating officers watched the strip search,
and at least one person videotaped the search. The court did not say what circumstances would justify a
cross-gender strip search, but the circumstances would definitely have to constitute an emergency, such
as a riot or a natural disaster. In addition, there would need to be some reason for a particular officer to
conduct the search immediately rather than wait for another officer whose gender is the same as that of
the person to be searched.
9–10A. A QUESTION OF ETHICS

(a) Omole’s conduct can be perceived as arrogant—a display of a feeling of superiority—and
lacking empathy for others, particularly those victims to whom he sent the e-mail. There is no indication
that he had any sense of what it takes to live in society without cheating, stealing from, and victimizing
others. To behave ethically requires at least a willingness to refrain from illegal conduct and a degree of
empathy for others. Omole’s conduct showed that his character lacked these qualities. In other words,
he seems to have had no ethical principles. It might be countered that he was twenty years old and that
his behavior reflected only the self-centeredness of youth.
It might be pointed out that if Omole had put the ingenuity and energy he expended on his illegal
scheme to legal, practical use, he might have engineered a successful business. Instead, his lack of ethics
robbed himself and others of money and property, as well as the opportunity to trust and be trusted and
to do business in good faith.
(b) Omole’s sentence was too lenient. He perpetrated a sophisticated scheme that involved
planning, execution, and avoidance of detection. He defrauded more than 100 individuals out of
$90,000—which could be described as their “hard-earned money”—and would likely have cheated them
and others out of more if he had not been stopped. He may have been only twenty years old, but this
age is not a unique characteristic. He had a previous conviction for Internet fraud. He expressed
contempt towards his victims and the trial court. These facts argue against a reduced sentence. Omole
appears to be the sort of offender who deserves the punishment that the law prescribes. This suggests
that the sentence was unreasonable. On the government’s appeal, the U.S. Court of Appeals for the
Seventh Circuit vacated the sentence and remanded the case for resentencing.
ANSWER TO VIDEO QUESTION NO. 9–11
Twelve Angry Men

(a) The jurors are deliberating on whether to convict the defendant. One juror says that at the
beginning of the trial he felt that the defendant was guilty and that “nobody proved otherwise.”
Does a criminal defendant have to offer evidence of his or her innocence? What must the
prosecution show to establish that a defendant is guilty? How does the burden of proof differ in
criminal and civil cases? In a criminal case, a defendant does not have to offer any evidence at
trial. The prosecution has the burden of proving the defendant’s guilt beyond a reasonable doubt.
If the jury views the evidence in the case as reasonably permitting either a guilty or a not guilty
verdict, then the jury’s verdict must be not guilty. In other words, the government (prosecutor)
must prove beyond a reasonable doubt that the defendant has committed every essential
element of the offense with which she or he is charged. If the jurors are not convinced of the
defendant’s guilt beyond a reasonable doubt, they must find the defendant not guilty. In a civil
case, the plaintiff usually must prove his or her case by a preponderance of the evidence. Under
this standard, the plaintiff must convince the court that based on the evidence presented by both
parties, it is more likely than not that the plaintiff’s allegation is true.
(b) It is clear that all of the jurors except one (Henry Fonda) believe that the defendant is
guilty. How many jurors does it usually take to render a verdict in a criminal case? Usually,
criminal cases require a unanimous verdict by the jury.
(c) When the holdout juror says that under the U.S. Constitution, “the defendant does not
even have to open his mouth,” to which provision is he referring? The juror is referring to the
Fifth Amendment, which guarantees the privilege against self-incrimination.
(d) Is it wrong for a group of jurors to bully or persuade another juror of the defendant’s guilt
or innocence? Explain. While it may be morally wrong (unethical), it obviously does happen in
real juries, and it is not necessarily illegal unless other juror misconduct was involved.

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CRIMINAL LAW AND CYBER CRIME

CASE 9.1—QUESTIONS (PAGE 163)

THE LEGAL ENVIRONMENT DIMENSION

CASE 9.2—QUESTION (PAGE 172)

CASE 9.3—QUESTIONS (PAGE 176)

THE LEGAL ENVIRONMENT DIMENSION

ANSWERS TO QUESTIONS IN THE REVIEWING FEATURE

1A. State of mind

2A. Theory of liability

3A. Liability of employee

4A. Ignorance of the law

ANSWERS TO QUESTIONS AND CASE PROBLEMS

9-1A. Types of cyber crimes

9-2A. Property crimes

9-3A. QUESTION WITH SAMPLE ANSWER: Cyber scam

9-4A. White-collar crime

9–5A. Credit cards

9–6A. Intellectual property

9–7A. Fourth Amendment

9–8A. Sentencing guidelines

9–9A. Fourth Amendment

9–10A. A QUESTION OF ETHICS

ANSWER TO VIDEO QUESTION NO. 9–11

Twelve Angry Men

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