Criminal Procedure II, Professor Moskovitz,
Fall, 1996, Final Examination
Essay Question I
Recommended
time: About 60 minutes
To: My law clerk From:
Matilda Waltz, Esq.
A federal grand jury indicted my client, Jess James (J) on the following charge:
On or about April 1, 1998, Jess James committed the crime of carjacking, in
violation of 18 United State Code, §421 *, by pointing a gun at Polly Post (P) in San
Francisco, California, and demanding that she surrender a motor vehicle to James, which
she thereupon did.
At trial, Post testified as follows:
A: I work for the Post Office. On April 1, I was delivering the mail on my usual route. I had just
parked my truck on Mission Street when a man pointed a gun at me and said, "Give me your keys
and take a hike, mailgirl." I gave him the keys to the truck and walked away. He got in the truck and
drove off. Later, I found the truck a few blocks away. The mailbag and all the mail in it were gone.
The whole thing happened real fast, and I looked more at the gun than the guy's face. But I did see
his face for a moment, and I think it was James, the man at the defense table.
James testified as follows:
A: It wasn't me. I was out of town that day, visiting friends in Los Angeles.
The Assistant U.S. Attorney argued to the jury: "You heard Ms. Post identify James as
the man who took her truck, mail and mailbag at gunpoint. She's a credible witness, so you
should do your duty and convict."
During my closing argument to the jury, I argued: "James told you the truth. He wasn't
even in San Francisco during these crimes. Ms. Post couldn't positively identify him. Anyway,
whoever took that truck didn't mean to hang onto it very long, as it was dumped just a short
distance away."
The jury acquitted
him.
After the trial, the grand jury issued another indictment against James:
On or about April 1, 1998, Jess James committed the crime of robbery of a postal
employee, in violation of 18 United State Code, §567*, by pointing a gun at Polly Post (P), a
U.S. Postal Service employee in San Francisco, California, and demanding that she surrender
Postal Service property to James, which she thereupon did.
The testimony was pretty much the same as at the first trial. The jury acquitted James
again.
And now, guess what? A third indictment was issued against James:
On or about April 1, 1998, Jess James committed the crime of theft of mail, in
violation of 18 U.S.C. §983***, by pointing a gun at Polly Post, a U.S. Postal Service
employee in San Francisco, California, and demanding that she surrender mail to James,
which she thereupon did.
I'd like to file a motion to dismiss this indictment on the ground that it is barred by double
jeopardy. What arguments should I make, what are the best arguments the U.S. Attorney can make
in rebuttal, and how is the Court likely to rule?
* §421 provides: "Carjacking: Anyone who takes a motor vehicle by force or fear, with intent to
keep said vehicle, is punishable by 10 years in prison."
** §567 provides: "
Robbery of Postal Employee: Anyone who takes U.S. Postal Service property
from any Postal Service Employee by force or fear, with intent to keep said property, is
punishable by 8 years in prison."
*** §983 provides: "Theft of Mail: Anyone who takes mail from the possession of the U.S. Postal
Service, with intent to keep said property, is punishable by 5 years in prison."
Essay Question II
Recommended time: About 60 minutes
Please criticize any feature(s) of the American criminal justice system which we discussed
in this course. Propose and defend any changes which you think are appropriate.
Include the following in your
discussion:
1. If any of your proposals for change would require changes in other features of our system,
discuss those changes too.
2. Would your proposal(s) require amending the Constitution or overruling any Supreme Court
cases we read?
If you believe that our system is just fine the way it is, defend that position.
Have a nice summer!