Discovery of Alibi Witnesses -- Fed. R. Crim. P. 12.1 Rule 12.1(a) of the Federal Rules of Criminal Procedure permits the government, on written demand, to discover before trial a defendant's alibi and alibi witnesses. However, in exchange for such discovery, the government must disclose to the defense the names and addresses of the witnesses upon whom it intends to rely to establish the defendant's presence at the scene of the offense, and any other witnesses to be relied on to rebut testimony by the alibi witnesses. Rule 12.1(b). The parties are under a continuing duty to notify each other of additional witnesses who should have been included among those originally disclosed. Rule 12.1(c). Because the Rule provides for mutuality of discovery, it should satisfy the constitutional requirements of the Fifth Amendment. See Williams v. Florida, 399 U.S. 78 (1970); Wardius v. Oregon, 412 U.S. 470 (1973). Non-compliance by either party may result in the exclusion of the testimony of the undisclosed witness (other than the defendant). Rule 12.1(d). See generally Taylor v. Illinois, 484 U.S. 400 (1988), on exclusion as a remedy for discovery abuses; United States v. Reed, 40 F.3d 1069 (10th Cir. 1994), cert. denied, 115 S. Ct. 1387 (1995). A finding of bad faith is not a prerequisite to exclusion, but it is an important factor in determining whether exclusion is appropriate. United States v. Johnson, 970 F.2d 907 (D.C. Cir. 1992). Courts may be reluctant to exclude reliable alibi testimony as a sanction for negligent conduct where the prejudice to the government would be minimal. See Bowling v. Vose, 3 F.3d 559 (1st Cir. 1993), cert. denied, 510 U.S. 1185 (1994). Non-compliance may be excused for good cause shown. Rule 12.1(e). The need to protect the safety of a government witness has been held to constitute good cause for nondisclosure. See United States v. Wills, 88 F.3d 704 (9th Cir.), cert. denied, 117 S. Ct. 499 (1996). If a defendant withdraws an alibi defense, the fact that he once intended to assert it may not be used against him in any civil or criminal proceeding. Rule 12.1(f). Insanity -- Present Statutory Test -- 18 U.S.C. § 17(a) The present statutory test was signed into law as part of the Insanity Defense Reform Act of 1984 on October 12, 1984, and is applicable to offenses committed after that date. See United States v. Samuels, 801 F.2d 1052, 1054 n.1 (8th Cir. 1986) (Ex Post Facto Clause bars application of the new statutory test and burden of proof to prior acts). This standard, now codified at 18 U.S.C. § 17(a), formerly 18 U.S.C. § 20(a), provides as follows: AFFIRMATIVE DEFENSE - It is an affirmative defense under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. The current standard eliminates entirely the volitional prong of the cognitive/volitional test of the ALI Model Penal Code, the capacity to conform conduct to the requirements of the law. It also requires that the mental disease or defect be "severe." This concept was added as a committee amendment "to emphasize that non-psychotic behavior disorders or neurosis such as an "inadequate personality, immature personality, or a pattern of antisocial tendencies do not constitute the defense." See S.Rep. No. 225, 98th Cong., 1st Sess. 229, reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3411; United States v. White, 766 F.2d 22 (1st Cir. 1985). This standard was intended to incorporate the conclusion of the case law that voluntary use of alcohol and drugs, even if they render the defendant unable to appreciate the nature and quality of the act, does not constitute insanity or any other legally valid affirmative defense. Id. The explicit provision that mental disease or defect does not otherwise constitute a defense is intended to ensure that the requirements of the standard are not circumvented in the guise of showing some other affirmative defense such as "diminished capacity." Id. This provision does not necessarily bar, however, the use of psychiatric testimony to negate specific intent, where specific intent is an element of the crime. See United States v. Cameron, 907 F.2d 1051, 1063-66 (11th Cir. 1990); United States v. Pohlot, 827 F.2d 889, 896-97 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988); United States v. Gold, 661 F. Supp. 1127, 1128-31 (D.D.C. 1987). Recent Entrapment Cases The two most recent Supreme Court cases on the entrapment defense are Mathews v. United States, 485 U.S. 58, 63 (1988) and Jacobson v. United States, 503 U.S. 540, 548 (1992). In Mathews, 485 U.S. at 62, the Court held that a defendant who denies commission of the crime is entitled to an entrapment instruction as long as there is sufficient evidence from which a reasonable jury could find entrapment. Thus, a defendant may raise inconsistent defenses, arguing that he did not commit the crime but that, if he did commit it, he was entrapped. Although entrapment is generally a jury question, Mathews, 485 U.S. at 63, the Court found entrapment as a matter of law in Jacobson, 503 U.S. at 550, where the defendant ordered child pornography after "he had already been the target of 26 months of repeated mailings and communications from Government agents and fictitious organizations." In the Court's view, the government had failed to prove beyond a reasonable doubt that Jacobson's predisposition "was independent and not the product of the attention that the [g]overnment had directed at [him][.]" Ibid. The unusual facts of Jacobson make it distinguishable from most sting operations, which involve fewer contacts with a defendant over a shorter period of time. Also, the Jacobson Court confirmed that its analysis was not "an innovation in entrapment law[.]" Id. at 549 n. 2. Statute of Limitations Defenses A statute of limitations is a statutory limitation on the prosecution of an offense if the formal prosecution is not commenced, usually by return of an indictment or filing of an information, within a specified period after the completion of the offense. Statutes of limitations have been said to be a defendant's primary safeguard against the possibility of prejudice from preaccusation delay. See United States v. Lovasco, 431 U.S. 783, 789 (1977). A statute of limitations establishes an arbitrary cutoff point; no showing of prejudice is required. Thus, a statute of limitations defense is fundamentally distinct from a claim that a pre-indictment delay violated due process, which involves an evaluation of the reason for the delay and any prejudice to the accused. Lovasco, supra. Statutes of limitations should also be distinguished from post-accusation rights to promptness, such as the constitutional right to a speedy trial and rights under the Speedy Trial Act. Compare USAM 9-17.000 (USAM Chapter on the Speedy Trial Act). Introduction to Federal Habeas Corpus Prisoners can file two different kinds of habeas petitions, "2255 petitions" and "habeas corpus petitions." First, prisoners may file 2255 petitions challenging the imposition of the sentence or sentences they are serving. These challenges must be filed in the same district court where the sentence being challenged was imposed. This kind of habeas petition is commonly called a "2255 petition" because it falls under 28 U.S.C. § 2255. The petition usually seeks to have the sentence or conviction vacated and may also request resentencing. 2255 petitions are discussed in Part B 9-37.011. The second kind of petition commonly filed by prisoners is a habeas corpus petition describing their complaints about their conditions of confinement in prison. It typically has nothing to do with the fairness of a prisoner's underlying conviction and it must be filed in the district where the prisoner is confined. It seeks to have the court (who "has the body" of the prisoner, hence the name "habeas corpus") order the current prison custodian to change the conditions of confinement for this prisoner or, if the custodian obtains no stay pending appeal, face the possibility that the prisoner will be released on bail. It is authorized under 28 U.S.C. § 2241. Availability of Habeas Corpus Writ -- Jurisdiction and Venue A Federal prisoner may contest the legality of his/her custody (conditions of confinement, duration of sentence) by petitioning the district court for a writ of habeas corpus. (28 U.S.C. § 2241). Such petition must be directed to the court of the judicial district in which the prisoner's custodian (usually a warden or jailer) may be reached by service of process. 28 U.S.C. § 2243. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-495 (1973). The jurisdiction of the district court is dependent on the ability of the court issuing the writ to exercise personal jurisdiction over the custodian. See 28 U.S.C. § 2241(a); Braden v. 30th Judicial Circuit Court, supra. Accordingly, the appropriate district for habeas jurisdiction and venue purposes is the one in which the prisoner is confined or where his/her current custodian is located, rather than the original sentencing court. The warden, not the Attorney General, Bureau of Prisons or Parole Commission, is usually the "custodian" in a habeas corpus case, and venue is best placed in the district where the prisoner is confined. See McCoy v. U.S. Board of Parole, 537 F.2d 962, 964-65 (8th Cir. 1976); Starnes v. Mcquire, 512 F.2d 918, 932 (D.C. Cir. 1974); Billiteri v. Board of Parole, 541 F.2d 938, 948 (2d Cir. 1976). When a claim is presented in a second or successive habeas corpus application, the government should seek its dismissal under 28 U.S.C. § 2244, as amended by § 106 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214, 1220. Successive Habeas Petitions As earlier enacted, 28 U.S.C. § 2255 provided that a habeas court was not required to entertain successive motions for habeas relief from the same prisoner. See also 28 U.S.C. § 2244 (which, prior to the 1996 amendment, contained a similar provision). In addition to adding the one year limitation period for habeas petitions, § 105 of the Act amends § 2255, with respect to second or successive motions. The amendment requires a Federal prisoner to convince the court of appeals that his second or successive motion relies on either (1) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" or (2) "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense." The new § 2255 incorporates the "gatekeeping" procedures for successive habeas petitions added by § 106 of the Act to 18 U.S.C. § 2244. In particular, the gatekeeping requirement provides that "[b]efore a second or successive application permitted by [the Act] is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." § 106(b)(3)(A) (codified at 28 U.S.C. § 2244(b)(3)(A)). The court of appeals may allow the application to be filed "only if it determines that the application makes a prima facie showing that [it] satisfies the requirements" of the Act. § 106 (b)(3)(c) (codified at 28 U.S.C. § 2244(b)(3)(C)). The issue is considered by a three-judge panel (§ 106(b)(3)(B) (codified at 28 U.S.C. § 2244(b)(3)(B)), which must issue its decision within 30 days. § 106(b)(3)(D), codified at 28 U.S.C. § 2244(b)(3)(D). The court's decision, granting or denying leave to file, is "not appealable" and "shall not be the subject of a petition for rehearing or for a writ of certiorari." § 106 (b)(3)(E) (codified at 28 U.S.C. § 2244(b)(3)(E)). The gatekeeping requirements are quite clearly procedural, because they merely state the requirements for filing a successive motion. See Warner v. United States, Nos. LR-C-96-220, LR-CR-88-84, 1996 WL 242889, *1 n.4 (E.D. Ark. May 10, 1996); United States v. Griffin, Nos. 91-CR-290 et al., 1996 WL 324726 (E.D. Wis. June 10, 1996). If the prisoner cannot meet the gatekeeping standards, his motion is not denied on the merits; instead, it simply may not be filed. See 28 U.S.C. § 2244(b)(3)(A). In that respect, the gatekeeping rules operate like the certificate of appealability provision, limiting judicial review as the prisoner moves away from his/her direct appeal, without changing the law governing his/her primary conduct or the law governing the procedures used at trial and sentencing. Even more than the certificate of appealability provision, however, the gatekeeping rules do not disturb any vested right. Especially in light of the stringent limits imposed by pre-Act law, it cannot seriously be maintained that a prisoner has a "vested right" to file endless numbers of § 2255 motions. Because the gatekeeping rules are simply procedural prerequisites to consideration of the merits of a second or successive motion and disturb no vested rights, the relevant procedural event is the filing of the motion. Consequently, the gatekeeping rules relating to second or subsequent petitions for habeas relief can properly apply to any second or successive petition filed on or after April 24, 1996, without regard to the date of the original conviction or any other preceding event. See Williams v. Calderon, 83 F.3d 281, 284 (9th Cir. 1996)(gatekeeping rules do not apply to habeas petition filed before the Act took effect); Warner v. United States, 1996 WL 242899 at *1 (E.D. Ark., May 10, 1996) (same); cf. United States ex rel. Maselli v. Reincke, 383 F.2d 129, 131 (2d Cir. 1967) (1966 amendments to 28 U.S.C. § 2254(d) and (e), requiring prisoner to produce transcript of state proceedings in district court, do not apply in a case on appeal from district court decision rendered before the amendments took effect). In Felker v. Turpin, Warden, 116 S.Ct. 2333 (1996), the Supreme Court addressed the question whether such "gatekeeping" provisions violate the Constitution's Suspension of the Writ clause, Art. I, § 9, cl.2, which provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended." Reasoning that "[t]he new restrictions on successive habeas petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice the "abuse of the writ" rule, the Court held that "[t]he added restrictions which the Act places on second habeas petitions are well within the compass of the evolutionary process [of that doctrine] and [therefore] do not amount to a `suspension' of the writ." Slip op. at 10-12. The Felker Court also rejected the claim that § 106 impermissibly restricts its habeas jurisdiction by precluding certiorari review of a decision by a lower court granting or denying an application to file a successive habeas petition. It reasoned that the statute did not deprive the Court of jurisdiction to entertain habeas petitions filed as original matters pursuant to 28 U.S.C. §§ 2241 and 2254. Sentencing Enhancement -- "Three Strikes" Law The following text was taken from a March 13, 1995, memorandum to all United States Attorneys from Assistant Attorney General Jo Ann Harris (Criminal Division) on the subject of the "Three Strikes" law. (18 U.S.C. § 3559(c)) MEMORANDUM FOR ALL UNITED STATES ATTORNEYS FROM: Jo Ann Harris Assistant Attorney General SUBJECT: "Three Strikes" An important purpose of the Anti-Violent Crime Initiative is to work with our state and local counterparts to take violent criminals off the streets. When a firearm is involved, we have long used the Armed Career Criminal Act, 18 U.S.C. § 924(e), to achieve the prolonged incarceration of armed, violent offenders. Under the Violent Crime Control and Law Enforcement Act of 1994, we have a powerful new federal tool, the so-called "Three Strikes, You're Out" provision, to help us deal with violent repeat offenders. This provision should play a key role in every district's anti-violent crime strategy. To help us make the most effective use possible of this potential tool, please ensure that state and local prosecutors are aware of the federal "Three Strikes" provision and your willingness to coordinate prosecutive decisions in cases that are "Three Strikes"-eligible. You should have in place a referral mechanism, perhaps through your violent crime working group, to ensure that appropriate "Three Strikes" cases are presented to you for potential prosecution. In determining whether to bring prosecutions under this statute, you should be guided by the Principles of Federal Prosecution. Trial of an eligible defendant under "Three Strikes will often provide a more effective punishment than a prosecution under,other federal statutes. For the state prosecutor, "Three Strikes" provides a vehicle to take the most dangerous offenders out of the community and keep them out. This is particularly important in states where prison overcrowding results in early release even for violent criminals. The "Three Strikes" statute is sufficiently important to our violence enforcement efforts that I want to underscore its key provisions. Under the federal "Three Strikes" provision, which is now codified at 18 U.S.C. § 3559(c), the defendant receives mandatory life imprisonment if he or she: is convicted in federal court of a "serious violent felony" and has two or more prior convictions in federal or state courts, at least one of which is a "serious violent felony." The other prior offense may be a "serious drug offense." Under the statute, a "serious violent felony" includes murder, manslaughter, sex offenses, kidnapping, robbery, and any offense punishable by 10 years or more which includes as an element the use of force or that, by its nature, involves a significant risk of force. The statute also enumerates certain nonqualifying felonies, including unarmed robbery offenses and arsons that posed no threat to human life. An unarmed robbery offense may serve as a basis for "Three Strikes" sentencing if the offense involved the threat of use of a firearm or other dangerous weapon -or the offense resulted in death or serious bodily injury to any person. If the government files in such a case, the defendant must establish by clear and convincing evidence that neither of those factors existed. An arson will not serve as the basis for "Three Strikes" sentencing if the defendant establishes by clear and convincing evidence that the offense posed no threat to human life and the defendant reasonably believed that it posed no threat to human life. A "serious drug offense" includes continuing criminal enterprise, violations of Title 21 involving distribution, manufacture, or possession with intent to distribute significant quantities of controlled substances, or equivalent state offenses. There is a sequencing requirement in the statute: each offense relied upon, except the first, must have been committed after the conviction of the preceding serious violent felony or serious drug offense. The predicate convictions must be final. Sentencing under the statute is triggered by notice filed by the prosecutor with the court prior to trial or plea of guilty in accord with the procedures contained in 21 U.S.C. S 851(a). We suggest that you file notice only after receiving certified copies of the prior convictions or otherwise verifying the validity of the convictions on which you intend to rely. Section 851(a) of Title 21 requires the filing of an information with the court prior to trial or prior to the entry of a plea of guilty, stating in writing the convictions to be relied upon for sentencing. A copy must be served on the defendant or counsel for the defendant. The statute does not apply to persons subject to the criminal jurisdiction of an Indian tribal government for offenses committed in Indian country where federal jurisdiction is predicated solely on Indian country, unless the governing body of the tribe has elected that the provision have effect over land and persons subject to the criminal jurisdiction of the tribe. Furthermore, you should aggressively use all available federal violent felony provisions, including the Hobbs Act, to achieve prolonged incarceration for "Three Strikes"-eligible defendants. Under 18 U.S.C. § 1951, the Hobbs Act covers a robbery that in any way affects interstate commerce, including the robbery of a convenience store or other commercial establishment. While the Department has promoted use of the Hobbs Act robbery provision primarily in cases involving criminal organizations or gangs, you also should consider using it where a defendant's criminal history would support a life sentence under "Three Strikes." These decisions, of course, should be carefully coordinated with state and local prosecutors, taking into account the availability in each case of a state statute that will result in prolonged incarceration of the defendant. The Hobbs Act also prohibits an attempt or conspiracy to commit such a robbery. To assist us in evaluating how the "Three Strikes" provision is being used, please continue to notify Tom Roberts, in the Terrorism and Violent Crime Section, at (202) 514-0849, concerning potential "Three Strikes" cases. When you file a "Three Strikes" case, please send an urgent report to the attention of the Director of the Executive Office for United States Attorneys. Motor Vehicle and Aircraft Theft -- Definition of "Stolen" The term "stolen" should not be construed in the technical sense of common law larceny. Stolen covers all theft offenses regardless of whether such was in the nature of larceny, embezzlement, or false pretenses. See United States v. Turley, 352 U.S. 407 (1957). See also Bell v. United States, 462 U.S. 356 (1983). What is required is a felonious taking or conversion of another's property right in the vehicle regardless of how the perpetrator may originally have come into possession of the vehicle. Although property interests obviously include the concepts of "title" and "possession," a financial company's "secured interest" in the vehicle has been deemed a sufficient property interest in the vehicle when the owner disposed of the vehicle contrary to the loan agreement. See United States v. Bunch, 399 F. Supp. 1156 (D.Md.), aff'd, 542 F.2d 629 (4th Cir. 1976). However, the statute does not cover situations where a person, engaging in a fraud upon the insurance company in concert with the vehicle's owner, disposes of a vehicle and the owner reports the vehicle as stolen since the insurance company had no property interest in the vehicle at the time of its disposal. See United States v. Bennett, 665 F.2d 16 (2d Cir. 1981). Moreover, the vehicle must retain its stolen character during the transportation under 18 U.S.C. § 2312 or the receipt, possession, concealment, storing, bartering, selling or disposal under 18 U.S.C. § 2313. It has been held that total recovery by law enforcement or the owner's agent, in contrast with merely being placed under observation by law enforcement, will terminate the stolen character. See United States v. Muzii, 676 F.2d 919 (2d Cir. 1982); United States v. Dove, 629 F.2d 325 (4th Cir. 1980). However, in the Violent Crime and Law Enforcement Act of 1994, Pub. Law 103-322, Congress enacted a provision, now codified at 18 U.S.C § 21, which provides that for purposes of title 18, whenever it is an element of an offense that property was stolen and defendant knew of its stolen character, such element can be established as a result of an "official representation" of its stolen character. Assault/Use of Dangerous Weapon During Bank Robbery Although 18 U.S.C. § 2113(d) commonly is characterized as armed bank robbery there had been some question as to whether the words "use of a dangerous weapon or device" modified the words "assaults any person," as well as the words "puts in jeopardy the life of any person." The Supreme Court has adopted the view that the phrase "by use of a dangerous weapon or device" must be read, regardless of punctuation, as modifying both the assault provision and the putting in jeopardy provision. Simpson v. United States, 435 U.S. 6, 11-12 n.6 (1976). In view of this language in Simpson, a bank robbery involving an assault and battery resulting in serious injury, but where no dangerous weapon or device is used, apparently could not be successfully prosecuted under 18 U.S.C. § 2113(d). In the past, there had been considerable uncertainty as to what constitutes use of a dangerous weapon or device under 18 U.S.C. § 2113(d). Clearly, a loaded, operable firearm is a "dangerous weapon." However, uncertainty arose where, for example, the dangerous weapon or device turned out to be a toy gun, a hoax bomb device, unloaded or inoperable firearm, or where law enforcement officers failed to recover the weapon. This uncertainty was partially clarified by the Supreme Court's decision in McLaughlin v. United States, 476 U.S. 16 (1986), which held that an unloaded handgun is a "dangerous weapon" within the meaning of § 2113(d). The rationale of the McLaughlin decision can be extended to situations involving simulated weapons such as authentic appearing toy guns and hoax bomb devices. In situations in which the weapon used in a bank robbery is not recovered, a prosecution under subsection 2113(d) still may be sustained based on credible eyewitness testimony that the defendant carried a gun during the robbery. See Brewer v. United States, 36 F.3d 266 (2d Cir. 1994); Robinson v. United States, 20 F.3d 270 (7th Cir. 1994); Kirvan v. United States, 997 F.2d 963 (1st Cir. 1993); Parker v. United States, 801 F.2d 1382 (D.C. Cir. 1986), cert. denied, 479 U.S. 1070 (1987). It is important to note that the "toy" weapon must actually be displayed to satisfy the "use" requirement of § 2113(d). Possession of a toy gun that is concealed throughout the robbery is not considered "use" within the meaning of the armed robbery statute. United States v. Perry, 991 F.2d 304 (6th Cir. 1993). Post-Conviction Restoration of Civil Rights A frequently litigated issue under § 922(g)(1) is whether a convicted felon is exempt from the prohibitions of the statute because of a post-conviction restoration of civil rights under State law. In accordance with 18 U.S.C. § 921(a)(20), a conviction does not disqualify an individual from possessing firearms if the person convicted "has had civil rights restored." In § 922(g)(1) cases based upon a State felony conviction, courts have uniformly looked to the law of the State where the conviction was obtained to determine whether the defendant's civil rights have been restored and whether such action has nullified the conviction's incidental prohibition on firearms possession. With respect to Federal felony convictions, the Supreme Court declared in Beecham v. United States, 511 U.S. 368 (1994), that only Federal law can nullify the effect of the conviction through expungement, pardon, or restoration of civil rights. This is so, the Court ruled, even though there is no Federal procedure for restoring the civil rights of Federal felons. In United States v. Ramos, 961 F.2d 1003, 1009 (1st Cir.), cert. denied, ___U.S.___, 113 S. Ct. 364 (1992), the court held that the term "restored" in § 921(a)(20) requires the State to make an "individualized official judgment" that the defendant should be excepted from the prohibitions of § 922(g)(1). The Criminal Division takes the position that where State law contains any provision purporting to restore civil rights -- either upon application by the defendant or automatically upon the completion of a sentence -- it should be given effect. It is not necessary that the State issue an individualized certificate reflecting the judgment of State officials regarding an individual defendant. The Ramos case should be limited to its unique facts and not extended in attempts to nullify the effect of other State schemes for civil rights restoration. A State restoration document that is absolute on its face should disqualify the affected State felon from prosecution under § 922(g)(1) unless the facts of the case strongly support a finding that the felon had actual notice of his/her continuing State firearms disability despite the terms of the restoration document. Culpable States of Mind -- 18 U.S.C. § 1028 There are three different terms used in 18 U.S.C. § 1028 to connote the culpable state of mind requirement for an offense. They are: (A) "knowingly"; (B) "knowing"; and (C) "with the intent." The first two are, for all practicable purposes, the same. Knowingly: The first five subsections of section 1028(a) start with this term. A knowing state of mind with respect to an element of the offense is (1) an awareness of the nature of one's conduct, and (2) an awareness of or a firm belief in the existence of a relevant circumstance, such as the "stolen," the "produced without lawful authority," or "false" nature of the identification document. The knowing state of mind requirement may be satisfied by proof that the actor was aware of a high probability of the existence of the circumstance (e.g., stolen or false nature of the document), although a defense should succeed if it is proven that the actor actually believed that the circumstance did not exist after taking reasonable steps to ensure that such belief was warranted. Section 1028 follows the approach of the Model Penal Code (§ 2.02(7)) in dealing with what has been called "willful blindness," the situation where the actor, aware of the probable existence of a material fact, does not take steps to ascertain that it does not exist. Willful blindness would require an awareness of a high probability of the existence of the circumstance. United States v. Jewell, 532 F.2d 697, 700 n. 7 (9th Cir.), cert. denied, 426 U.S. 951 (1976). Knowing -- This term appears in sections 1028(a)(2) and (a)(6). As such, it applies to a knowledge of a relevant circumstance (e.g., the character of the document as "stolen" or "produced without lawful authority"). The above discussion of "knowingly" is equally applicable to "knowing." With the Intent -- This term, which appears in sections 1028(a)(3), (a)(4), and (a)(5), is intended to mean the same culpable state of mind as that described by the term "purpose" in the Model Penal Code (§ 2.02). The distinction between "with the intent" (i.e., "purpose") and a "knowing state of mind" was restated by Justice Rehnquist: As we pointed out in United States v. United States Gypsum Co., 438 U.S. 422, 445 (1978), a person who causes a particular result is said to act purposefully if `he consciously desires that result, whatever the likelihood of that result happening from his conduct,' while he is said to act knowingly if he is aware `that the result is practically certain to follow from his conduct, whatever his desire may be as to that result. United States v. Bailey, 444 U.S. 394, 404 (1980). Murder -- Definition and Degrees Section 1751(a) of Title 18 incorporates by reference 18 U.S.C. §§ 1111 and 1112. 18 U.S.C. § 1111 defines murder as the unlawful killing of a human being with malice, and divides it into two degrees. Murder in the first degree is punishable by death. In any case in which the death penalty may be applicable, it is necessary for the United States Attorney to follow the procedures set forth in USAM 9-10.000. The Attorney General must authorize the United States Attorney to seek the death penalty in any case. Any other kind of murder is murder in the second degree and is punishable by any term of imprisonment including life. Manslaughter Defined Section 1112 of Title 18 defines manslaughter as the unlawful killing of a human being without malice. Manslaughter is of two kinds: voluntary and involuntary. Voluntary manslaughter is punishable by imprisonment for not more than ten years or a fine under Title 18, or both, and involuntary manslaughter is punishable by imprisonment for not more than six years, a fine under Title 18, or both. Dangerous Proximity Test The dangerous proximity test was adopted by Judge Learned Hand in a case in which the defendant was arrested before passing classified government documents, which were in the defendant's purse, to her paramour. It is as follows: (P)reparation is not attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime. United States v. Coplon, 185 F.2d 629, 633 (2d Cir. 1950) (quoting Holmes, J., in Commonwealth v. Peaslee, 177 Mass. 267, 272 (1901)), cert. denied., 342 U.S. 920 (1952)). Hobbs Act -- Generally The Hobbs Act prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce "in any way or degree." Section 1951 also proscribes conspiracy to commit robbery or extortion without reference to the conspiracy statute at 18 U.S.C. § 371. The statutory prohibition of "physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section" is confined to violence for the purpose of committing robbery or extortion. United States v. Franks, 511 F.2d 25, 31 (6th Cir. 1975) (rejecting the view that the statute proscribes all physical violence obstructing, delaying, or affecting commerce as contrasted with violence designed to culminate in robbery or extortion). The extortion offense reaches both the obtaining of property "under color of official right" by public officials and the obtaining of property by private actors with the victim's "consent, induced by wrongful use of actual or threatened force, violence, or fear," including fear of economic harm. See Evans v. United States, 504 U.S. 255, 265, 112 S.Ct. 1181, 1188 (1992) (only a private individual's extortion of property by the wrongful use of force, violence, or fear requires that the victim's consent be induced by these means; extortion of property under color of official right does not require that a public official take steps to induce the extortionate payment). Although the Hobbs Act was enacted in 1946 to combat racketeering in labor-management disputes, the extortion statute is frequently used in connection with cases involving public corruption, commercial disputes, and corruption directed at members of labor unions. Proof of "racketeering" as an element of Hobbs Act offenses is not required. United States v. Culbert, 435 U.S. 371, 98 S.Ct. 1112 (1978). However, a violation of the Hobbs Act may be part of a "pattern of racketeering activity" for purposes of prosecution under the Racketeer Influenced and Corrupt Organizations (RICO) statute (18 U.S.C. § 1961, et seq.). Case law Long ago it was ruled settled law that all who aid, abet, procure, or advise the commission of a crime are guilty as principals. United States v. Snyder, 14 F. 554, 556 (C.C.Minn. 1882). This is the rule whether the crime is created by statute or by the common law. Id. When Congress creates a statutory criminal law it must be assumed that it is done with the aforestated well-settled rules of law in view, and if so, with the intent that aiders and abettors, as well as the actual doers of the crime, may be punished under it. Id. The rule that all procurers and abettors of statutory offenses are punishable under the statutes, even though not expressly referred to in the statute, is supported by authority. Id. Learned Hand, in his written opinion in United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938), reviewed the history of common law of accessory liability. He noted that the early definitions demanded that the accessory associate himself in some sort with the venture, that he participate in it as in something that he wishes to bring about, and that he seek by his action to make it succeed. Id. Judge Hand noted that all the words used, even the colorless "abet," carry on implication of purposive attitude towards it. Id. The word "abet" is a French derivation of two words meaning "to bait." Blacks Law Dictionary 5 (6th ed. 1990). It is defined as "[t]o encourage, incite, or set another on to commit a crime. Id. Judge Hand's pronouncement of the elements of aiding and abetting were reaffirmed by the Supreme Court in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769-70, 93 L.Ed. 919 (1949). There, the court stated that the theory of aiding and abetting is well ingrained in the law. Id., 386 U.S. at 618, 69 S.Ct. at 769. Though a conviction under 18 U.S.C. § 2, is based on an aiding and abetting theory, those convicted as aiders and abettors are deemed responsible as principals. See Standefer, 447 U.S. at 19, 100 S.Ct. at 2005; United States v. Lyons, 53 F.3d 1198, 1201 (11th Cir.), cert. denied, __ U.S. __, 116 S.Ct. 262, 133 L.Ed.2d 185 (1995).