Mr. Seo was going to be convicted on virtually any instruction given to the jury. He was clearly making counterfeit currency, which is unambiguously a crime:
"Upon searching defendant’s motel room, the officer found several
pieces of linen paper on the floor and in the trash can; one had an outline of a $20 bill on
it. When the police searched the boxes and bags defendant had been loading
into the car, they found a loaded handgun registered to defendant in a computer bag.
They also found evidence defendant had been attempting to counterfeit $5 and $20 bills,
including some pieces of paper with these denominations printed on them. Other pieces
of paper had currency printed on them and had been cut into the shape of regular bills.
One piece of paper had the front and back of a $20 bill copied on to it. Some versions of
the bills were more complete than others as some did not have backs.
Defendant also had a piece of paper with four authentic $5 bills taped to it,
a template, and this template had been copied onto linen paper using an inkjet printer.
Linen paper is sometimes used in counterfeiting because its texture feels more like actual
currency than basic printer paper. Additional pieces of linen paper, as well as a laptop
computer and an inkjet printer, which is commonly used in counterfeiting currency, were
found in defendant’s possession. Police also recovered four bottles of paint, paint
brushes, a paint pen, and acetone nail polish remover. A United States Secret Service
Special Agent with training in identifying counterfeit currency opined that the inkjet
printer, linen paper, and acetone were items used in the manufacturing of counterfeit
currency."
You're going to jail for that one, my friend. (Albeit for only eight months, which is a fairly short sentence for this crime, IMHO.) Not surprisingly, the jury convicted him.
But the question remains: How exactly should we instruct the jury in these kinds of cases? The Court of Appeal does a great job here explaining that the trial court's instruction was based upon a case from over a century and a half ago that both wasn't very helpful and was seemingly outdated. As well as sets forth an alternative instruction that it suggests be used in future cases.
Great! Definite extra credit points for Justice Ikola. That helps to resolve both this case (in which any error was harmless anyway given the overwhelming evidence of guilt) as well as future cases.
Though I'm still left with the question: So what is the means rea requirement for this stuff.
To which the Court of Appeal provides an answer. But it's answer that's somewhat unsatisfying on a couple of different levels.
Mr. Seo says that the prosecution has to prove that he was (essentially) going to use this fake money; e.g., to defraud people. But the Court of Appeal reads the statute and says that's not true; that there's a more general intent requirement.
And I understand where that concept comes from. But it's one that's somewhat problematic.
So, for example, the Court of Appeal says that the prosecution isn't required to prove more specific criminal intent and instead need only prove that the defendant knew that the materials at issue (the printer, the ink, etc.) either "were or will be used in the counterfeiting of currency." (Sample of that text in the opinion: "Thus, to be convicted
of violating section 480(a), a defendant must knowingly possess an item (die, paper,
machine or apparatus) that he or she knew was or will be used in the counterfeiting of
currency. . . . Thus, section 480(a) does not require a specific intent to do a further act or
achieve a future consequence such as defrauding another.")
Let's take both parts of that, though. Because once you strip out a requirement of future intent to commit a crime, it seems like there's potentially huge liability here.
First, the "were used" part. According to the Court of Appeal, if I possess equipment that I know was ever used in counterfeiting, I'm guilty of a felony. Even if I wasn't the one who counterfeited the stuff and even if I have no intent whatsoever to ever counterfeit anything. I'm staring at a computer and printer in my office as I type this text. Let's say that the University of San Diego told me: "Oh, fun fact; we got those things at a police auction; they were formerly used by a notorious counterfeiter." So now I'm guilty of a felony if I keep typing on the thing, right? Similarly, if I go ahead and copy a $5 bill on the office copier (just for fun), and then tell everyone in the office "Ha, you can't use that printer anymore; if you do so, it's a felony," that works, right? Seems weird. Seems like the fact that I'm using something legitimately should make a difference, and I shouldn't be a felon just because I know that someone else in the past used the thing for a crime. I'm not a felon just because I own a car that used to be owned by a bank robber who used it. Why's my printer any different?
Second, the "will be used" part. Now, if I'm going to use it to counterfeit stuff, yeah, definitely, I'm guilty. Or ditto if I'm aiding and abetting someone. But the Court of Appeal's decision goes further than that. It says you're a felon if you possess the stuff knowing that anyone -- even people totally unrelated to you, and over whom you have no control -- are going to use the thing for counterfeiting. So if I write a letter to Dunder Mifflin and say: "You don't know me, but I'm going to buy some of your 9 x 12 paper to make counterfeit currency," and they believe me, then they're a felon unless they destroy all their 9 x 12 paper, right? Since otherwise they're in possession of items that they know "will be used" to make counterfeit currency. Or if I write an anonymous note to Kinko's that says "I'm positive that people are going to use one of your printers in the next 30 days to make counterfeit currency," then Kinko's is a felon unless it shuts down that department for a month or fails to have a supervisor actively watching the copiers the whole time to ensure that no illegal acts occur. Because once you know that your product "will be" used for a crime, you're liable too unless you either actively stop the office or affirmatively dispose of the item(s). That, too, just seems way to broad to me.
I get that there are certain things the possession of which we criminalize (e.g., stolen cars) even if the possessor didn't do the actual stealing. But I didn't think that non-stolen items (e.g., printers or paper) that have entirely legitimate uses and that are being used entirely legitimately fell into that same category. And I'm somewhat horrified to discover from today's opinion that, at least according to the Court of Appeal, I'm wrong. You're a felon if you know that your computer or printer ever was or ever will be used to counterfeit something -- even by someone totally not under your control (e.g., a thief in the night). Wow. Crazy.
And I'm not even entirely sure why we want (or need) to push the law that way. Mr. Seo would have been convicted even if the prosecution had to prove he intended to make make $5 bills to defraud people. 'Cause that's what he clearly was doing. Ditto for pretty much everyone who's caught making counterfeit currency. Why press the law so far to make a plethora of innocent people felons? Doesn't seem necessary.
But there you have it. After today, anyway, criminal liability for this stuff is a lot, lot broader than I suspect most everyone otherwise thought it would be.
