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Review of Falcon and the Winter Soldier with Mark Zaid

By
Josh Gilliland
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The Falcon and the Winter Soldier is everything from action packed spy story to character study of healing after extreme trauma. It is also filled with a multiverse of legal issues.

Mark Zaid joined me for our first video podcast on Get Vokl exploring these issues. Check out the video or recording below for our analysis of the Falcon’s rescue mission to save an Air Force officer, the conditions of Bucky’s pardon, and the legal mess after half of the planet went from missing to returned after The Blip.

Does the Insanity Defense Apply to Attempted Human Genocide?

By
Josh Gilliland
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Treason is too light a word to describe Dr. Newton Geiszler’s plan to destroy humanity in Pacific Rim Uprising. The issue for Dr. Geiszler is whether the his attorneys could successfully argue the insanity defense. The Kaiju in the room is whether the good Doctor was under the control of “Alice” or if his recreational Kaiju brain drifting was done by his own free will. The answer would determine if Geiszler did not understand the wrongfulness of his actions, thus not guilty by reason of insanity or guilty.

Dr. Newton Geiszler planned the destruction of humanity by using Jäger drones fused with cloned Kaiju brains to open multiple breaches to allow for a Kaiju invasion of Earth. Phase two of the plan was to ignite the Ring of Fire to cause an extinction level event.

Dr. Geiszler collaborated with hostile aliens that resulted in the massive property damage in Tokyo. Geiszler could be charged with collaboration, treason, and attempted genocide.

The insanity defense requires the defense to prove by clear and convincing evidence that Dr. Geiszler was unable to appreciate the nature and quality or the wrongfulness of his actions because of a severe mental disease or defect. 18 U.S.C.S. § 17. It should go without saying that hijacking building-sized robots to open an inter-dimensional portal for giant monsters to destroy all of humanity is a “wrongful act” that Dr. Geiszler should have understood.

The issue for Dr. Geiszler is whether he suffered from a mental defect due to his Kaiju drifting; if he was addicted to drifting with Alice; or if he purposely acted to destroy humanity.

Mental Defect from Drifting

The Defense could argue that Dr. Geiszler suffered brain damage from drifting with Alice, thus he could not understand the wrongfulness of destroying humanity. This would require expert testimony to explain how drifting works, how there is access to memories of both individuals, and how one can get lost in the drift. In the Defense’s favor is the fact Alice is the brain of an alien monster. An MRI could show the impact of drifting with Alice on Dr. Geiszler and possible brain damage. Moreover, Dr. Geiszler’s spooky Kaiju voice could be medical evidence of a mental disease from Alice. However, if there is no brain damage from the Kaiju drifting, there are still other options for the Defense.

The more challenging argument is that Alice was exerting some form of mind control over Dr. Geiszler. Cases where defendants attempt to offer expert testimony that a defendant was under the control of a cult, thus could not form the required mental intent for a crime, usually end with the expert’s testimony being excluded. See, People v. Vieira, 35 Cal. 4th 264, 266, (2005). The reason this sort of testimony is barred, is because the alleged mental disease would go the issue of the defendant’s mental intent, which is prohibited under California law. See, Vieira v. Chappell, 2015 U.S. Dist. LEXIS 14130, at *340-41 (E.D. Cal. Feb. 5, 2015), citing Cal. Penal Code § 28. This is different than a defendant not understanding the wrongfulness of his actions due to a mental disease, because intent goes to an element of a crime, not capacity to understand the act is wrong.

The issue of whether someone can be a victim of “mind control” is not one with case law helpful to Dr. Geiszler. In the writ of habeas corpus by the murderer of Senator Robert F. Kennedy, the Court analyzed the murderer’s claim of “hypnotic programming.” The Court noted that the theory someone could be hypnotized to commit murder and then to lose his or her memory of committing that murder was scientifically credible, but the petitioner did not provide any reliable evidence that actually happened. Sirhan v. Brazelton (C.D.Cal. 2013) 76 F. Supp. 3d 1073, 1123-1124. In the case of Dr. Geiszler, evidence would need to be offered that the “hypnotic programming” caused him to design and build one rogue Jäger; design drone Jägers programmed to launch an alien invasion; hundreds of DNA splicing micro-Kaiju; and wage war on humanity.

Not the easiest defense.

Addicted to Drifting

The Defense could argue that Dr. Geiszler had become addicted to drifting with Alice as a form of the insanity defense. Drug addiction can be argued as a form of the insanity defense if the drug addiction had 1) destroyed the defendant’s ability to distinguish between right and wrong; or 2) has made him act under a delusional compulsion. Mincey v. Head, 206 F.3d 1106, 1120 n.19 (11th Cir. 2000), citing Shirley v. State, 149 Ga. App. 194, 253 S.E.2d 787, 788 (1979). Drug addiction can also be a “psychiatric disorder” that can justify the involuntary commitment of “mentally ill” persons. Jackson v. Indiana, 406 U.S. 715, 722-23, (1972).

Medical expert testimony would be need to be offered to demonstrate Dr. Geiszler either had his ability to know right from wrong destroyed from recreational Kaiju drifting or was acting under a delusional compulsion. Considering Dr. Geiszler went home, talked to a giant brain in a jar in his bedroom he named Alice before drifting, “delusional compulsion” sounds like a good argument. Moreover, the fact the Defendant secretly built a drone army with cloned Kaiju brains would take obsessive-compulsive behavior to a new level.

World on Fire

There is the possibility that Dr. Geiszler knew right from wrong and simply turned evil. This is most disturbing possibility, because it would mean that a hero turned into a villain. Eradicating all live on Earth is not something one does lightly. Dr. Geiszler spent ten years on his plan, which included acquiring a Kaiju brain, having a custom tank for it installed in his apartment, and building drift technology so he could commune with Alice. Those look like intentional actions, some of which were either done to develop a connection with Alice or feed an addiction to drifting with Alice.

Defending the an Indefensible Act 

There is no defense for the attempted genocide of humanity. However, that does not mean Dr. Geiszler should be denied a right to an attorney and a fair trial for his actions. The hallmark of a civil society is that the legal system treats anyone accused of a crime with due process of law. Granted, there is a Category 5 amount of evidence against Geiszler, but he deserves his day in court.

Did Killmonger Commit Treason Against the US?

By
Josh Gilliland
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Black Panther is an amazing comic book movie that presents a complex issue of treason: Eric Killmonger is a US Born citizen, whose father was a prince of Wakanda. Eric served as a Navy SEAL and in the CIA, thus took an oath to uphold and defend the United States Constitution.

Killmonger was employed by the armors dealer Ulysses Klaw to engage in murder, theft, and obstruction of justice in England and South Korea. Killmonger then raised the legal stakes by challenging King T’Challa for the rule of Wakanda.

There are significant legal issues for a US Citizen to overthrow a foreign kingdom, even if the citizen has a claim of dual citizenship. There is an even larger issue with directing an attack on the United States.

Killmonger Violated the Logan Act with Overthrowing King T’Challa 

The Logan Act prohibits US citizens from directly or indirectly commencing correspondence with a foreign government with the “intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States…” 18 USCS § 953.

Eric Killmonger’s actions to overthrow the lawful government of Wakanda, followed by destabilizing the country with the destruction of the Wakandan Heart Shaped Herb, and declaring war on the United States and other US allies, took influencing foreign governments to defeat the measures of the United States to levels never seen before, in fact or fiction. This also raised the issue that Killmonger committed treason against the United States.

Acts of Treason

The United States Constitution defines the crime of treason as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

Congress has stated that:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $ 10,000; and shall be incapable of holding any office under the United States.

18 USCS § 2381.

Eric Killmonger had been a Navy SEAL, and if not on active duty, was at least subject to recall. Moreover, as a CIA operative, Killmonger had taken an oath to upload and defend the United States Constitution from enemies foreign and domestic. This is where treason becomes odd, because the United States and Wakanda were not enemies or engaged in acts of war. That changed when Killmonger overthrew King T’Challa and directed the country of Wakanda to arm its spies in the United States and other countries to effectively conquer the world for a new Wakandan Empire. These actions are also enlistment to serve in armed hostility against the United States, with the twist that the enlistment was overthrowing a foreign government to become the head of state. 18 USCS § 2390.

These actions would be treason, plus supporting an Insurrection or Rebellion in the United States by sending advanced Wakandan weapons to arm US Citizens to overthrow the Government of the United States. Federal law prohibits anyone from inciting or engaging “in any rebellion or insurrection against the authority of the United States…” The punishment is fine or imprisonment, plus barring that individual from holding any office in the United States. 18 USCS § 2383. 

There are no cases where US service members overthrow a government and declare war on the United States. However, there are many cases of treason. One such instance was a first generation Japanese-American citizen who was found guilty of committing treason during World War II. The Defendant had traveled to Japan on a US Passport in 1939 to attend college. The Defendant started college in Japan in the March of 1941. The Defendant had renewed his US Passport twice and was registered with the Japanese police as an alien while in college. The Defendant did not finish school until 1943.  Kawakita v. United States, 343 U.S. 717, 720-721 (U.S. 1952).

Oeyama Nickel Industry Co., Ltd. employed the Defendant during the war as an interpreter who berated and physically harmed US prisoners of war who were used as slave labor. The POWs were forced to mine and process 200 carloads of ore a day in the Japanese war effort against the United States. The Defendant did not simply act as a translator towards the POW’s. His actions included, “swearing at the prisoners, beating them, threatening them, and punishing them for not working faster and harder, for failing to fill their quotas, for resting, and for slowing down.” Kawakita, at *737.

The United States Supreme Court held that the Defendant committed treason against the United States, because his actions were aimed at getting more work out of prisoners of war in order to give the Empire of Japan aid in making weapons to be used against the United States. While the Defendant’s actions were small, it is the nature of the act that is important for treason. As Justice Douglas explained:

These were not acts innocent and commonplace in appearance and gaining treasonable significance only by reference to other evidence, as in Cramer v. United States, supra. They were acts which showed more than sympathy with the enemy, more than a lack of zeal in the American cause, more than a breaking of allegiance to the United States. They showed conduct which actually promoted the cause of the enemy. They were acts which tended to strengthen the enemy and advance its interests. These acts in their setting would help make all the prisoners fearful, docile, and subservient. Because of these punishments the prisoners would be less likely to be troublesome; they would need fewer guards; they would require less watching. These acts would tend to give the enemy the “heart and courage to go on with the war.”

Kawakita, at *741-742, quoting Lord Chief Justice Treby in Trial of Captain Vaughan, 13 How. St. Tr. 485, 533.

While Killmonger’s plan failed and no Americans were killed, that does not change the fact Killmonger ORDERED an attack on the United States after overthrowing King T’Challa. These actions are treason and the US Government would have been in the right to ask for Killmonger’s extradition.

Star Wars Battlefront 2: It’s Treason, Then

By
Thomas Harper
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SPOILER ALERT: Spoilers for the Battlefront 2 single player campaign follow below.

*Now this is the story all about how Iden’s life got flipped, turned upside down*

Commander Iden Versio, the central character of Star Wars Battlefront 2, goes through quite the roller coaster ride during the single player campaign. In short order, she goes from leader the elite Special Forces team known as Inferno Squad and hero of the Empire, to a marked fugitive who stands accused of treason. By all accounts, Commander Versio is in deep bantha poodoo. But while the accusations against her are severe, does Iden have a legitimate defense? 

First up, lets take a look at the facts of her case. After the second Death Star is obliterated, Operation Cinder, Emperor Palpatine’s dastardly contingency plan, kicks in. Operation Cinder calls for wiping out a number of Imperial worlds, including Vardos, Iden Versio’s homeworld.

Iden is naturally horrified at the mission, but her father, Admiral Garrick Versio, dismisses her concerns about the mission, showcasing the very finest in blind allegiance. Admiral Versio puts the Emperor’s plan in motion. He activates a network of satellites above Vardos that trigger massive storms designed to destroy everything on the planet. The Admiral then issues a direct order for Iden to travel to the surface and evacuate a single Imperial official, Protectorate Gleb.

Once on Vardos, Commander Versio decides to go beyond her father’s orders to save a number of civilians. Gideon Hask, another Inferno Squad member, confronts Iden and accuses her of treason for betraying Inferno Squad’s orders. Iden refuses to yield, shoots Hask in the leg as a parting gift, and quickly becomes hunted as a traitor.

The forecast on Vardos? Cloudy with a chance of apocalypse.

Since Gideon Hask’s angry proclamation isn’t exactly a formal indictment, how exactly would Commander Versio be charged? As a military officer, Iden would be subject to the Uniform Code of Military Justice (UCMJ). In the real world, the UCMJ is the body of law that governs the conduct of all military members. Service members who break the law can face courts-martial, which are federal trials, complete with a military judge and panel (jury) of senior service members. Iden has firsthand experience with the Imperial military justice system, having been court-martialed once before as a part of a covert Inferno Squad operation.

Interestingly, the UCMJ has no specific article covering treason. That doesn’t mean Iden gets off scot-free, though. While it may seem odd that the military’s criminal code doesn’t cover treason, the omission was not a mistake. Treason is one of only three crimes identified in the U.S. Constitution, along with piracy and counterfeiting.

Have you been accused of piracy, treason, and/or counterfeiting? You’re Jabba the Hutt’s kind of scum! Apply for a job with Hutt Enterprises today!

Despite its mention in the Constitution, the actual criminal offense of treason is codified in 18 U.S. Code § 2381. Section 2381 uses the Constitutional definition of treason:

“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.”

Although treason and many other federal crimes don’t appear in the UCMJ, prosecutors can still charge them. In real world courts-martial, Article 134 of the UCMJ is used as a means of charging federal offenses that are not covered in the UCMJ. Therefore, even though treason is not an offense in the military code, Iden could still be charged with treason as part of a court-martial.

While the Empire could certainly charge Iden with treason, do they have a solid case against her? In order to commit treason, one has to owe allegiance to the country. American citizenship is sufficient to trigger that obligation. As a citizen of Vardos, which was a loyal Imperial system, Iden would owe the same allegiance to the Empire.

U.S. military officers also owe allegiance by virtue of their oath of office, which is taken upon receiving a commission:

“I, (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

As a commissioned Imperial officer, Iden Versio would have undoubtedly sworn to a similar oath when she graduated from the Imperial Academy on Coruscant. Thus, it’s safe to say Iden owed allegiance to the Empire.

Professor Obi-Wan’s crash course on treason.

Next, what acts could Imperial prosecutors use as evidence of treason? When you break the statute down, there are two ways to commit treason: (1) By levying war, or (2) By giving aid and comfort to enemies. The term “levying war” is borrowed from English law. It means, “the assembling of a body of men for the purpose of effecting by force a treasonable object….”

Setting aside Iden’s later decision to join the Rebellion, prosecutors would have a difficult time proving that Iden levied war against the Empire by saving civilians. Iden did not incite or organize civilians to go to war against the Empire. The civilians did not arm themselves or use force at Iden’s request. Instead, they simply wanted to get off world to avoid annihilation. While she may have violated her superior officer’s order, Iden’s compassionate act doesn’t amount to levying war against the Empire.

Prosecutors would have similar trouble proving that Iden provided aid and comfort to enemies of the Empire. While Iden obviously provided aid to civilians, they were not enemies of the Empire. The whole point behind Iden’s defiant act was that the people of Vardos were loyal citizens who deserved protection. When Operation Cinder started, Vardos civilians had not lifted a finger against the Empire, yet they suddenly found themselves in the crosshairs of the Emperor’s wrath for no sensible reason. During the Vardos mission gameplay, citizens appear confused and scared, pleading with Imperial troops to let them leave as terrifying storms formed above. These are not the actions of enemies, but of the loyal citizens who are fearful for their lives. Imperial prosecutors could not reasonably claim that those same citizens suddenly became enemies simply because the Emperor decreed that the planet should be destroyed.

Palpatine can be awfully cranky when he doesn’t get his way.

Iden also lacked the mens rea, or guilty mind needed to commit treason. When confronted by Hask, Iden declared that it was the Empire’s job to save civilians from things like Operation Cinder. To her, the people of Vardos were still Imperial citizens who deserved to be protected from its military. The Emperor’s order did nothing to change that in Iden’s mind, which means that her actions were intended to be a measure of loyalty, not betrayal, of the Empire.

In the end, the crime of treason requires more than just defying the order of a superior officer. Iden’s choice to save Imperial civilians from imminent death simply does not amount to treason. Carl Sandburg once said, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” In Iden’s case, Imperial prosecutors would likely be doing a lot of pounding and yelling indignantly, albeit in very pleasant British accents.

Seeking Law Students for the Mock Trial of the Winter Soldier

By
Josh Gilliland
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0

We are looking for six law students to join us for the Mock Trial of the Winter Soldier at San Diego Comic Fest, February 12-15, 2016. The Prosecution (The Avengers) and the Defense (The Defenders) will each be made up of three law students. Students may also serve as the bailiff, clerk (and time keeper), and court reporter.

The mock trial will focus on the insanity defense on whether James “Bucky” Barnes was unable to appreciate the wrongfulness of his acts in Captain America The Winter Soldier, due to a severe mental disease or defect.

United States Magistrate Judge Paul Grewal will preside over the mock trial. The expert witnesses are Dr. Andrea Letamendi, from The Arkham Sessions and Dr. Janina Scarlet, from Super-Hero Therapy.

If you are a current law student interested in participating, please review our program outline and contact us on the form below:


We are also seeking attorney coaches to help mentor the law students and witnesses. If interested, please contact us on the following form:

Mock Trial Overview

The Trial of the Winter Soldier is based on the film Captain America The Winter Soldier, with additional facts taken from The Winter Soldier storyline in Captain America to define other victims.

The trial will focus only on the Prosecution and Defense Opening Statements (3 minutes each), direct examination of the Defense and Prosecution Expert Witnesses (10 minutes, each, minus time for objections), cross-examination of the expert witnesses (5 minutes), and re-direct of the expert witnesses (2 minutes).

Objections, offers of proof, and the judge’s decision are excluded from the time. All Objections are based on the Federal Rules of Evidence and any relevant privileges under Federal or California law.

Each side will make a 5-minute closing argument as to the Defendant’s guilt, limited to facts established in the film, specifically referenced events from the comics, and the expert testimony as to whether James Buchanan Barnes understood the wrongfulness of his actions at the time he committed the charges. 

Case Overview

James Buchanan Barnes is charged with collaboration as a prisoner of war, multiple counts of murder, terrorism, insurrection, and treason. Barnes’ crimes span over 70 years of levying war against the United States with the terrorist organization HYDRA.

The Government will argue that James Barnes was a willful participant in Secretary Alexander Pierce’s plan to overthrow the United States government, which included the planned assassination President Mathew Ellis, all of Congress (minus Senator Stern), the United States Supreme Court, and several million United States citizens from Washington, DC, to New York City.

The Defense will argue that Defendant Barnes was legally insane at the time of the alleged criminal actions. Barnes is now competent to stand trial.

Both witnesses are qualified as experts pursuant to Federal Rule of Evidence Rule 702. All testimony and expert reports must comply with Federal Rules of Evidence Rules 703, 704, and 705.

Goal of Defense Expert Witness

The Defense Expert witness must prove by clear and convincing evidence that at the commission of all charged crimes that James Buchanan Barnes was unable to appreciate the nature and quality or the wrongfulness of his acts due to a severe mental disease or defect. 18 USCS § 17.

The Defense Expert must explain the nature of Defendant Barnes’ injuries dating back to World War 2 and effects of HYDRA experimentation. The expert’s opinion should include whether being cryogenically frozen could cause Defendant Barnes from being unable to understand the wrongfulness of his actions. The testimony should also explain how electric shock therapy impacted Barnes’ ability to appreciate the nature of his actions.

The expert witness should prepare a report of no more than three page explaining the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications that will be the basis of the direct and cross examinations. The witness qualifications can be a CV that does not count as one of the three pages.

Goal of Government Expert Witness

The Government’s Expert Witness will rebut the Defense Witness that James Buchanan Barnes was insane in the events leading up to the launch of the Project Insight Helicarriers. The Government will focus on the fact Secretary Pierce’s orders were illegal on their face and should not have been followed.

The Government’s witness should explore that someone with amnesia can still know right from wrong, despite not remembering his/her identity. Moreover, the Expert can compare Barnes’ mental state to Charles J. Guiteau (US v Guiteau, 1 Mackey 498, at *546) and Sirhan Bishara Sirhan (People v. Sirhan (1972) 7 Cal.3d 710, 727, overruled on other grounds).

The expert witness should prepare a report of no more than three page explaining the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications that will be the basis of the direct and cross examinations. The witness qualifications can be a CV that does not count as one of the three pages.

Practice Tips for Law Students

Opening Statements are to outline the case theory and theme; Closing Argument is for argument. Students should follow the best practice that on direct examination the witness does 90% of the talking and the lawyer only 10% for asking questions. Cross-examination should have the lawyer exercising witness control by asking specific questions of the opposing expert witness.

Use of Trial Presentation Technology

Trial exhibits, opening statements, closing arguments, and jury instructions may be presented with trial presentation software, such as TrialPad or ExhibitView5 apps for tablets, or Trial Director for a laptop computer. Trial exhibits will include the expert witness reports and other provided images or video. Exhibits must first be shown without any mark-ups prior to identification or presentation to the jury and then can be marked.

Key Facts

James Buchanan Barnes was ordered by Alexander Pierce to 1) Kill Nicholas Fury, Director of SHIELD; 2) Kill Captain Steve Rogers and Natasha Romanoff; 3) Kill Captain Rogers in order to launch the Project Insight Helicarriers.

Alexander Pierce was the leader of HYDRA. James Buchanan Barnes followed Pierce’s orders, which resulted in the death of Nick Fury, and 19 SHIELD air and ground crew members.[1] Defendant Barnes attempted to stop Captain Rogers, severely Rogers with multiple gunshot wounds. If Barnes has stopped Rogers, millions of US citizens would have been killed within minutes.

In addition to the above, Defendant Barnes committed the following known crimes:

November 5, 1954: Killed three US soldiers in Berlin as a field test;

January 11, 1955: Killed entire UN Diplomatic Negotiation Team in Cairo;

May 14, 1955: Assassinated NATO General James Keller;

January 1, 1956: Assassinated British Ambassador Dalton Graines in Madripoor;

April 1, 1956: Assassinated French Defense Minister Jacques Dupuy;

May 12, 1956: Assassinated Algerian Peace Conference Envoy in Paris;

February 17, 1957: Assassinated US Colonel Jefferson Hart in Mexico City; and

March 12, 1973: Assassinated US Senator Harry Baxtor.

Charges 

Count 1: Collaboration with the Enemy

James Buchanan Barnes willfully collaborated with HYDRA since his capture in 1945.

Statutory Authority:

Collaboration with the enemy in violation of Article of War 96 and the Uniform Code of Military Justice Article 134. UNITED STATES v. GALLAGHER (U.S.A.B.R. 1957) 23 CMR 591, 596.

Count 2: Terrorism  

James Buchanan Barnes willfully committed domestic acts of terrorism by 1) assassinating Nicholas Fury; 2) attempting to publicly kill Captain Steven Rogers, Natasha Romanoff, and Samuel Wilson in downtown Washington, DC, with reckless regard for human life on buses and city streets; 3) Assisting in the launch of the Project Insight Helicarriers.

Statutory Authority:

The term “domestic terrorism” means activities that–

(A)  involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B)  appear to be intended–

(i)  to intimidate or coerce a civilian population;

(ii)  to influence the policy of a government by intimidation or coercion; or

(iii)  to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C)  occur primarily within the territorial jurisdiction of the United States.

18 USCS § 2331(5)

Count 3: Acts of Terrorism Transcending National Boundaries

James Buchanan Barnes willfully committed acts of terrorism transcending national boundaries by 1) murdering Nicholas Fury 2) assaulting Nicholas Fury, Captain Steven Rogers, Natasha Romanoff, and Samuel Wilson with dangerous weapons; and 3) conspiring to launch the Project Insight Helicarriers.

Statutory Authority:

(a)  Prohibited acts.

(1)  Offenses. Whoever, involving conduct transcending national boundaries and in a circumstance described in subsection (b)–

(A)  kills, kidnaps, maims, commits an assault resulting in serious bodily injury, or assaults with a dangerous weapon any person within the United States; or

(B)  creates a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the United States or by attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States; in violation of the laws of any State, or the United States, shall be punished as prescribed in subsection (c).

(2)  Treatment of threats, attempts and conspiracies. Whoever threatens to commit an offense under paragraph (1), or attempts or conspires to do so, shall be punished under subsection (c).

(b)  Jurisdictional bases.

(1)  Circumstances. The circumstances referred to in subsection (a) are–

(A)  the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;

(B)  the offense obstructs, delays, or affects interstate or foreign commerce, or would have so obstructed, delayed, or affected interstate or foreign commerce if the offense had been consummated;

(C)  the victim, or intended victim, is the United States Government, a member of the uniformed services, or any official, officer, employee, or agent of the legislative, executive, or judicial branches, or of any department or agency, of the United States;

(D)  the structure, conveyance, or other real or personal property is, in whole or in part, owned, possessed, or leased to the United States, or any department or agency of the United States;

(E)  the offense is committed in the territorial sea (including the airspace above and the seabed and subsoil below, and artificial islands and fixed structures erected thereon) of the United States; or

(F)  the offense is committed within the special maritime and territorial jurisdiction of the United States.

(2)  Co-conspirators and accessories after the fact. Jurisdiction shall exist over all principals and co-conspirators of an offense under this section, and accessories after the fact to any offense under this section, if at least one of the circumstances described in subparagraphs (A) through (F) of paragraph (1) is applicable to at least one offender.

(c)  Penalties.

(1)  Penalties. Whoever violates this section shall be punished–

(A)  for a killing, or if death results to any person from any other conduct prohibited by this section, by death, or by imprisonment for any term of years or for life;

(B)  for kidnapping, by imprisonment for any term of years or for life;

(C)  for maiming, by imprisonment for not more than 35 years;

(D)  for assault with a dangerous weapon or assault resulting in serious bodily injury, by imprisonment for not more than 30 years;

(E)  for destroying or damaging any structure, conveyance, or other real or personal property, by imprisonment for not more than 25 years;

(F)  for attempting or conspiring to commit an offense, for any term of years up to the maximum punishment that would have applied had the offense been completed; and

(G)  for threatening to commit an offense under this section, by imprisonment for not more than 10 years.

(2)  Consecutive sentence. Notwithstanding any other provision of law, the court shall not place on probation any person convicted of a violation of this section; nor shall the term of imprisonment imposed under this section run concurrently with any other term of imprisonment.

(d)  Proof requirements. The following shall apply to prosecutions under this section:

(1)  Knowledge. The prosecution is not required to prove knowledge by any defendant of a jurisdictional base alleged in the indictment.

(2)  State law. In a prosecution under this section that is based upon the adoption of State law, only the elements of the offense under State law, and not any provisions pertaining to criminal procedure or evidence, are adopted.

18 USCS § 2332b

Count 4: Bombings of Places of Public use, Government facilities, Public Transportation Systems and Infrastructure Facilities

James Buchanan Barnes willfully used 1) firearms and explosives on US Route 29, expanding onto the city streets of Washington, DC; 2) used explosives on the airfield of the Triskelion ; and 3) the attempted terrorist actions resulted in the destruction of the Triskelion.

Statutory Authority:

(a)  Offenses.

(1)  In general. Whoever unlawfully delivers, places, discharges, or detonates an explosive or other lethal device in, into, or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility–

(A)  with the intent to cause death or serious bodily injury, or

(B)  with the intent to cause extensive destruction of such a place, facility, or system, where such destruction results in or is likely to result in major economic loss,
shall be punished as prescribed in subsection (c).

(2)  Attempts and conspiracies. Whoever attempts or conspires to commit an offense under paragraph (1) shall be punished as prescribed in subsection (c).

(b)  Jurisdiction. There is jurisdiction over the offenses in subsection (a) if–

(1)  the offense takes place in the United States and–

(A)  the offense is committed against another state or a government facility of such state, including its embassy or other diplomatic or consular premises of that state;

(B)  the offense is committed in an attempt to compel another state or the United States to do or abstain from doing any act;

(C)  at the time the offense is committed, it is committed–

(i)  on board a vessel flying the flag of another state;

(ii)  on board an aircraft which is registered under the laws of another state; or

(iii)  on board an aircraft which is operated by the government of another state;

(D)  a perpetrator is found outside the United States;

(E)  a perpetrator is a national of another state or a stateless person; or

(F)  a victim is a national of another state or a stateless person;

18 USCS § 2332f

Count 5: Murder 

James Buchanan Barnes willfully killed: 1) Nicholas Fury; 2) 19 SHIELD airman; 3) three US soldiers in Berlin as a field test on November 5, 1954: 4) an entire UN Diplomatic Negotiation Team in Cairo on January 11, 1955; 5) NATO General James Keller on May 14, 1955; 6) British Ambassador Dalton Graines in Madripoor on January 1, 1956; 7) French Defense Minister Jacques Dupuy on April 1, 1956; 8) Algerian Peace Conference Envoy in Paris on May 12, 1956; US Colonel Jefferson Hart in Mexico City on February 17, 1957; and US Senator Harry Baxtor on March 12, 1973.

Statutory Authority:

(a)  Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

(b)  Within the special maritime and territorial jurisdiction of the United States,

Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;

Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.

18 USCS § 1111

Count 6: Treason

James Buchanan Barnes willfully levied war against the United States by participating in air piracy of the Project Insight Helicarriers to be used against the United States. 

Statutory Authority:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $ 10,000; and shall be incapable of holding any office under the United States.

18 USCS § 2381 

Count 7: Rebellion or Insurrection

James Buchanan Barnes willfully engaged in rebellion against the United States in the mutiny and air piracy of the Project Insight conspiracy. 

Statutory Authority:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

18 USCS § 2383 

Count 8: Enlistment to Serve Against the United States 

James Buchanan Barnes willfully served in armed hostility against the United States in the mutiny and air piracy of the Project Insight conspiracy. 

Statutory Authority:

Whoever enlists or is engaged within the United States or in any place subject to the jurisdiction thereof, with intent to serve in armed hostility against the United States, shall be fined under this title or imprisoned not more than three years, or both.

18 USCS § 2390

Defenses:

Insanity Defense

(a)  Affirmative defense. It is an affirmative defense to a prosecution 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.

(b)  Burden of proof. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

18 USCS § 17

[1] The world believes Nick Fury is dead in the MCU.

The 4th Amendment in Hot Pursuit of Agent Carter

By
Josh Gilliland
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2

What did we learn on the Agent Carter episode “A Sin to Err”? First, Howard Stark has a serious addiction to women. A psychologist could have a field day analyzing what failed emotion connection Howard had with his mother that turned him into a serial womanizer. Jarvis should have a workers comp and hostile workplace complaints against Stark for all the slapping he endured from jaded lovers.

The second big take away is the Constitution had a very big role in the episode.

Agent Sousa actually tried arresting Agent Carter by specifically stating charges against her: Treason, Espionage, and Adding and Abetting “Public Enemy Number 1” Howard Stark.

All of those charges would be supported by probable cause, plus a few other charges, such as kidnapping, obstruction of justice, and battery of a government agent. A Federal Prosecutor could probably tack a few more onto the criminal complaint.

The SSR’s failed attempt to capture Peggy Carter landed multiple agents in the hospital (plus probably a lot of bruised misogynist egos for being beat up by a “woman”). Agent Carter also effectively emasculated Agent Sousa, which might impact their future working relationship.

Now for the big question: Could the SSR Agents conduct a warrantless search of Agent Carter’s apartment after the failed arrest?

The answer is YES.

The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

USCS Const. Amend. 4.

The SSR went after Agent Carter in what was a traditional “hot pursuit” with a suspect fleeing law enforcement.

Revel in the geek irony of US v Carter, where the Court summarized that exceptions to the warrant requirements of the Fourth Amendment include: consent searches, searches incident to an arrest, searches concomitant to the “hot pursuit” of a felon, emergency searches for the protection of an arresting officer, and searches to prevent the imminent destruction or removal of evidence. United States v. Carter (D.C.Cir. 1975) 522 F.2d 666, 673.

The search of Agent Carter’s apartment would be considered an “exigent circumstance” and thus a reasonable exception to the Fourth Amendment.

The SSR was in an active pursuit by someone suspected of multiple crimes, who could take out a diner full of Federal Agents. Moreover, the concern whether Agent Carter had any of Howard Stark’s advanced weapons would be a concern for public safety. Furthermore, there was a legitimate concern to preserve evidence pertaining to national security from being lost or destroyed.

What would not be ok was detaining the landlord Miriam Fry. There was no evidence that Fry was involved in any wrongdoing. It is a huge stretch for the SSR Agents to argue that Fry being “annoying” to them was obstructing justice. While removing Fry for safety reasons would be a plausible argument, this really did look like a civil rights violation.

Other takeaways: Professionals who practice the healing arts took two black eyes in the episode. First, Dr. Ivchenko gave psychologists a bad name in that he exploited those who need mental health treatment. Second, people are already afraid of the dentist, so making one a sexual predator conducting illegal job interviews will not encourage people to get a teeth cleaning.

Professional reputations for psychologists and dentists aside, the episode closely followed the Constitution.  Agent Carter is building to a great conclusion. Keep up the good work.

What Are the Charges Against Howard Stark on Agent Carter?

By
Josh Gilliland
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0

Agent Carter started with a bang as a fun Marvel spy-thriller. There were many great geek references from Roxxon to Leviathan. Keep up the good work.

EspionageAct_NationalDefense_2010The story centers of Howard Stark having his “Bad Babies,” advanced weapons so dangers that they are kept locked in a vault under his house, stolen. This results in Howard Stark being grilled by a Senate Committee on his technology, invoking some comparisons to Senator Owen Brewster antagonizing Howard Hughes in real-life 1946 as a wartime profiteer.

The only legal term verbally charged against Howard Stark for Stark technology getting in the hands of US enemies is treason. This certainly is the most serious charge against Stark, but there could have been others.

Treason is “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

Treason is the most obvious charge against Stark and providing advanced weapons to a hostile foreign power would certainly qualify. However, there are two other laws Stark could have violated that do not require the foreign power to be an enemy; providing the information to ANY foreign power would violate the law.

Howard Stark could have been charged with violating the Espionage Act of 1917, which prohibited the providing any information relating to national defense with the intent to injury the United States to a foreign nation. The peacetime punishment for such a crime was 20 years and in times of war, 30 years. Espionage Act, June 15, 1917, 40 Stat. 217, § 2(a). Alternatively, as seen in the Rosenberg case, death.

EspionageAct_0731Stark could argue his “Bad Babies” were not created for the US government to be used for national defense, but given the destructive power of the implosive weapon, probably would not be effective if a foreign power got its hands on the technology. Moreover, given Stark’s close ties to the SSR and US Government, it is arguable that anything Howard Stark creates is for national defense.

Stark could also be charged under the Atomic Energy Act of 1946, which provides against providing foreign nations any “Restricted Data” with the intent to harm the United States in prison for life and a $100,000 fine in present day. 42 U.S.C.S. § 2275. “Restricted Data” means all data relating to the “(1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 142 [42 USCS § 2162].42 USCS § 2014(y).

It is not clear what exactly are all of Stark’s “Bad Babies,” other than one of the weaponized implosive devices the size of a baseball could cause all matter to collapse into a large sphere. While it would require a physics expert, there has to be some nuclear fusion to create that sort of gravity weapon. This sort of weapon arguably would fall under the Atomic Energy Act, which would be further charges against Stark.

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