Can You Defend the Invisible Man for Breaking Out of Prison?

October 29, 2019

The 1940 Invisible Man Returns features Vincent Price as Sir Geoffrey Radcliffe, an owner of a coalmine who is falsely convicted for the death of his brother and sentenced to death. The legal system having failed him, Radcliffe’s friend Dr. Frank Griffin, brother to the deceased original Invisible Man, used the invisibly formula on Radcliffe so he could escape execution. Imagine the Fugitive, but the hero is invisible and slowly going insane while looking for the real killer.

It should be clear as day that prison breaks are frowned upon. The punishment for a prison break for a felony is a fine or five years in prison. 18 U.S.C.S. § 751(a). Moreover, those who aide in a prison break can also be subject to imprisonment for up to five years. 18 U.S.C.S. § 752.

Here is the thing for Sir Geoffrey Radcliffe: he was to be executed the day of the escape. Legally speaking, Radcliffe had nothing to lose. Dr. Griffin on the other hand had a lot to lose with imprisonment for aiding in the escape of a felon. Lucky for both, there is a defense for them: Necessity Defense based on Radcliffe’s actual innocence. The necessity defense has a three-part test:

(1) There is no legal alternative to violating the law;

(2) The harm to be prevented is imminent; and

(3) A direct, causal relationship is reasonably anticipated to exist between defendant’s action and the avoidance of harm.

United States v. Benally, 233 F. App’x 864, 868 (10th Cir. 2007).

Sir Radcliffe had no legal alternative to violating the law, as he was going to be executed for a crime he did not commit; his execution was imminent; and Radcliffe escaped prison to avoid being executed for his brother’s death. As society does not want death row prisoners escaping, we have to address the fact that Radcliffe was innocent and that the legal system failed him. Even after escaping, Radcliffe would still need to prove his actual innocence, which would require:

(1) The new evidence will probably change the result if a new trial is granted;

(2) It must have been discovered since the trial;

(3) It must be such as could not have been discovered before trial by the exercise of due diligence;

(4) It must be material to the issue;

(5) It must not be cumulative; and

(6) It must not be merely impeaching or contradictory to the former evidence.

See People v Marino, 99 AD3d 726, 730; People v Tankleff, 49 AD3d at 179.

Radcliffe was successful in learning about the conspiracy to kill his brother and the identity of the killer. The ultimate confessions by two individuals would be “new evidence” that would have changed the result of the trial, that was material, and there was no way to know it. Because if due diligence could have discovered the evidence, both the prosecutor and defense attorney would wish they were invisible before the ethics board.

Obstruction of Justice in Son of Frankenstein

Josh Gilliland

October 25, 2019

Baron Wolf von Frankenstein failed to disclose to Inspector Krogh that he had treated the injured Frankenstein’s Creature. Does that failure (or cover-up) amount to obstruction of justice?

The Federal definition of obstruction of justice is:

Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined under this title, or imprisoned not more than five years, or both.

18 USCS. app. § 1510.

The elements to prove obstruction are the 1) willful endeavor by means of certain actions to prevent communication of information relative to violation of any criminal statute of United States and 2) criminal investigator must be individual authorized by department or agency of United States to conduct or engage in investigations of all prosecutions for violation of criminal law of United States. United States v. Williams, 470 F.2d 1339 (8th Cir.), cert. denied, 411 U.S. 936, 93 S. Ct. 1912, 36 L. Ed. 2d 396 (1973).

Inspector Krogh confronted Dr. Frankenstein after the murder of Ewald Neumüller, who was the 7^th victim to have a burst heart. Neumüller was one of the last two surviving jurors who had convicted Igor to hang. The other jurors were the other victims of burst hearts. Krogh did not outright ask Frankenstein if he had created a new Monster or knew the identity of the killer. However, Krogh did ask Frankenstein if there was any reason the Frankenstein family would not be safe on their estate.

Dr. Frankenstein did not openly incriminate himself with the Inspector’s questions. However, when asked about the whereabouts of the butler Thomas Benson, Frankenstein stated that Benson had been prone to go out drinking because of his war service. This apparently was a lie, which was contradicted by Elsa von Frankenstein’s discussion of Benson’s character.

Inspector Krogh’s second attempt at questioning Dr. Frankenstein was over the death of Emil Lang, who also had a burst heart. The inspector directly stated he believed the doctor who the identity of the killer. While not technically lying, an agitated Frankenstein said the monster was the killer. Upon further questioning, the doctor named Igor. The inspector countered that Igor was publically seen playing music at the time of the murders. Dr. Frankenstein failed to disclose that he had confront the Creature and Igor after the first round of questioning where Igor admitted to the murders.

Did these actions by Dr. Frankenstein amount to a willful endeavor by means of certain actions to prevent communication of information relative to violation of any criminal statute? The answer is clearly yes.

Dr. Frankenstein had direct knowledge that the Creature was alive. He did not have direct evidence of the Creature’s involvement in the killings during the first round of questioning, but the doctor did have suspicions. Moreover, Dr. Frankenstein was not truthful about his butler Benson. While the doctor did not know Benson had been killed, the doctor did know Benson was missing. Furthermore, Dr. Frankenstein had confronted Igor and had an admission of guilt, which the doctor failed to disclose to Inspector Krogh.

The lesson here is clear: Don’t play mad scientist and don’t lie to law enforcement investigating murders from the Creature you reanimated.

Death Tax of the Undead – The Estate Tax and the Universal Monsters

Jed Bodger

October 23, 2019

It’s that time of year when ghosts and ghouls are on the mind. Three of my favorite Universal Monsters are the Mummy, Dracula, and Frankenstein. All three of these monsters are considered “undead” by most accounts. Two of these three are likely considered “resurrected” meaning that that had previously died. Specifically, the Mummy and Frankenstein can be generally considered to have died prior to becoming monsters.[1] There is an interesting question with regard to Dracula, as he has likely never died, but rather has been transformed from living, to undead.

These three monsters raise an interesting philosophical question as to how to tax the dead. Specifically, the federal estate tax levies a transfer tax on the transfer of wealth from a decedent to their heirs or beneficiaries. The question to ponder here is whether a person who dies, but is reanimated should be subject to the estate tax. Similarly, for Dracula, where a person does not technically “die” but becomes “undead” should the estate tax be applicable?

Introduction to the Estate Tax

Estate Tax: A Federal Transfer Tax Generally

The commonly misnamed “death” tax is actually the federal estate tax administered by the Internal Revenue Service (IRS) pursuant to Internal Revenue Code (IRC) §2001 and the subsequent statutes and attendant regulations. Generally speaking, federal transfer taxes are imposed on an economic shift of wealth. Most often this occurs by application of the federal estate tax, which is imposed on transfers occurring at the death of a wealthy individual (decedent).[2]

One of the distinguishing characteristics of transfer taxes, such as the estate tax, is that it is applicable to the transfer itself, as distinguished from income tax, which is applicable to an accretion to wealth received by a taxpayer. Because of this, transfer taxes are a type of excise tax imposed at the federal level on the transmission of wealth.

As noted, the federal estate tax is a tax on property (cash, real estate, stock, or other assets) transferred from deceased persons (decedent) to their heirs (beneficiaries). The tax is structured as a general tax on the transfer with a specific stated exclusion, effectively providing Americans with the ability to transfer a certain amount of property at death without application of the tax. Generally speaking, only the wealthiest estates pay estate tax because it is levied only on the portion of an estate’s value that exceeds a specified exemption level — $11,180,000 in 2018, and $11,400,000 in 2019.[3] However, this calculation is not quite so straightforward, as it requires a five-step process for determining the tax liability of the estate.

In computing the amount of Federal estate tax to be paid at death, the estate tax provisions of the IRC apply a unified rate schedule to the taxpayer’s cumulative taxable estate at death to arrive at a net tentative tax. The net tentative tax then is reduced by a credit based on the applicable exclusion amount (AEA), which is the sum of the basic exclusion amount (BEA) within the meaning of §2010(c)(3).[4] For estates of decedents dying after January 1, 2018, section 2010(c)(3) provided a BEA of $10 million, indexed for inflation, with a 2019 exemption value of $11.4 million dollars. The credit is applied first against the gift tax, on a cumulative basis, as taxable gifts are made. To the extent that any credit remains at death, it is applied against the estate tax. Here, we will assume that there were no taxable gifts during these monster’s lifetimes.

Unified Credit: Reduction to Estate Tax Calculation

The basis exclusion amount or “applicable credit amount,” sometimes referred to as a decedent’s “unitary exclusion” is available to offset some minimum amount of estate tax to the extent that a portion is not used during lifetime to offset gifts.[5] For decedents dying (and gifts made) after 2017 and before 2026, the applicable exclusion amount used in determining the credit is $10 million (as adjusted for inflation – e.g. $11.4 million in 2019).[6]

To calculate the unified credit, the taxpayer starts with another number called the lifetime exclusion amount. That number rises every year for inflation, but it got a huge boost in 2018 due to the Tax Cuts and Jobs Act (TCJA) tax reform, reaching never before seen exclusion levels, starting at $10 million for years after 2017 but before 2026 and coming in at an annually inflation-adjusted number of $11.4 million for 2019.

The end result is that estates with a gross estate value of up to $11.4 million are effectively exempt from the estate tax, and any amounts within the estate in excess of that exemption value are taxed at 40%. So, in order to be subject to taxation, any of these monsters must die with at least $11.4 million dollars to their name. A high hurdle, but one that could possibly be met here.

The Mummy

The world was introduced to The Mummy by Universal Studios in 1932.

A team of British archaeologists discover the mummified remains of Prince Imhotep, an ancient Egyptian prince mummified at his death. The archaeologists recite the scroll of Thoth, which brings the Prince back to life. From this, we can conclude that the Prince died during ancient Egyptian times, and was resurrected. This means that the Mummy: 1) died, and 2) was brought back to life. This becomes important because for the estate tax to apply, the individual whose estate is subject to the tax must actually die. We can conclude that, had the modern U.S. Estate tax been in place during ancient Egyptian times, the Mummy would have been subject to the estate tax at the time of death.

Now, we must determine the Mummy’s net tentative tax. Section 2001(b)(1) requires the determination of a tentative tax (that is, a tax unreduced by a credit amount) on the sum of the taxable estate and the adjusted taxable gifts, defined as all taxable gifts made after 1976 other than those included in the gross estate. Here, we have assumed no taxable gifts by the Mummy, so we simply need to calculate his estate value.

For this, let’s use King Tutankhamun (King Tut) as a proxy. King Tut’s tomb was discovered in the Valley of the Kings in Egypt in 1922 by Howard Cart and Lord Carnarvon, English explorers (tomb raiders for some). While King Tut is well known, his tomb was the smallest within the Valley of the Kings, meaning that the quantity of riches that he could have been buried with are necessarily less than what would be available to others, so King Tut can form a baseline of wealth for our Prince Imhotep.[7] The ancient artifacts and treasures that King Tut was buried with, while priceless today, demonstrate his wealth and seem to clearly indicate the applicability of the estate tax to the Mummy’s wealth at the time of death. While almost impossible to determine the value of King Tut’s wealth at the time of his death, if we take the gold in King Tut’s coffin alone, the 110.4 kilograms of gold, trading at a current value of $47,980 per kg, yields a hefty $5,337,764 in estate value.[8] The coffin alone gets us more than half way to estate tax taxability. It is not a far leap to conclude that King Tut would have been subject to the estate tax, and therefore by proxy, that the Mummy would similarly be subject to the estate tax at death. For sake of example, let us make a simplifying assumption that the Mummy’s estate would be worth $50 million dollars in 2019 dollars.

Second, §§2001(b)(2) and (g) require determination of a hypothetical gift tax – but since we have simplified the analysis to remove gift tax, we can skip this step. We then determine a credit, pursuant to §2010(a) and (c), equal to the tentative tax on the AEA as in effect on the date of decedent’s death. This cannot reduce the tentative tax below zero, so there are no refunds for unused unitary exclusion. Thus, we take the Mummy’s total estate value, as adjusted above, and apply the credit of $11.4 million dollars, to determine what his current 2019 estate tax liability would be, were he to die in 2019. Assuming an estate value of $50 million dollars, and an exclusion value of $11.4 million dollars, the Mummy would be left with approximately $38.6 million dollars in taxable estate, taxed at 40% giving rise to a tax bill at death of $15.44 million dollars (give or take). This is a pretty expensive bill for Prince Imhotep.

There is a question as to whether the Mummy actually owes this tax, as he comes back to life, and his death is not permanent. I believe that this is actually readily solved, not by the facts of his death, but by the tax code. The tax is levied on the transfer of wealth, not the act of dying. As such, the estate tax is a transfer tax, and to the extent that death is simply the catalyst for the transfer of wealth from the Mummy to his heirs, being reanimated would not absolve the Mummy from the tax. Therefore, he can’t unwrap a tax shelter to get out of the estate tax in this instance.

Frankenstein

Dr. Frankenstein’s monster was conceived by Mary Shelley in a novel of the same name in 1818, but was brought to live by Universal Pictures in 1931. The story (which I’m sure you all know) is that of a mad scientist who uses the body parts of corpses to construct a human analogue that is brought to life with a jolt of electricity from a lightning storm. All would have gone as planned had the good doctor’s trusted assistant not provided an abnormal murderer’s brain which has animated and powered the grotesque monster.

Frankenstein poses a problem, as he is not one person who has been reanimated, but rather is several people who are dead, and obviously still dead (as the removal of specific body parts from various corpses would not give rise to a resurrection of a specific person).

As such, given the framework established above, all of the contributors to the Frankenstein monster would have died and therefore been subject to the estate tax. There is no way to know whether the individuals who have graciously given up body parts for Dr. Frankenstein’s experiment would have been wealthy enough to have the estate tax be levied. What we can say, is that the Frankenstein monster itself would never have been subject to the estate tax, as it was not a living being who “died” in the traditional sense, but rather several people, all of whom died. This is an instance where the parts would be greater than the whole from a taxation perspective, as only the parts could have been subject to the estate tax.

Dracula

Dracula has had various incarnations over time; however, the classic story of Dracula involves a Transylvanian Count seeking to travel to England in search of fresh blood. [See Stoker, Bram. Dracula (1^st ed. 1897).] Universal Studios created the Dracula movie based on this story in 1931 staring Bela Lugosi as Count Dracula. While it is unclear how Dracula became a vampire, it is clear that using his fangs Dracula feeds on the blood of his victims and at times, a bite on the neck to “feed” on his victims seems to be a catalyst for the creation of new vampires.

It is interesting to note that act of “sucking one’s blood” does not appear to kill all victims, but rather transforms some from ordinary joe, to vampire. As such, if we make the simplifying assumption (without reviewing state law to determine the statutory definitions of “death”) that vampires are not “killed” but rather transformed, then there is a clear argument to make that Dracula was not, and should not, have been subject to the estate tax, as there was no death upon which to trigger the transfer of property, and therefore no excise tax.[9]

In fact, the transformation to vampire essentially makes Dracula “undead” meaning that his wealth will accumulate and appreciate in value during the entirety of his “undead” existence. This could be a valuable planning tool for vampires if they plan to hold assets for their entire existence. However, Dracula misses out on one of the significant benefits of the estate tax and transfer tax process by not dying, and therefore being unable to trigger a step-up in basis for his heirs.

Stepped-Up Tax Basis on Death

A beneficiary of a will or one who inherits property at the decedent’s death achieves a “stepped-up” basis in the property acquired.[10] This step-up in basis steps the basis of the property in the hands of the recipient up to the fair market value of the property at the time of transfer, effectively eliminating any taxable gain. Consequently, where the fair market value of the property appreciated after the date that the decedent acquired it, the gain which accrued prior to death will disappear from the income tax base at the time of the decedent’s death and, therefore, never be subject to federal income tax.[11]

For example, if Dracula purchased 100 Gold Coffins on January 1, 1931, for $100, and those same coffins were today worth $100,000, Dracula’s estate would include the full $100,000 value for estate tax calculation purposes; however, his beneficiary would receive the property with a tax basis of $100,000. Upon the sale of these coffins by the beneficiary, the first $100,000 will be excluded from taxation due to the increased, or “stepped up” tax basis. [Alternatively, if this rule did not exist, when the beneficiary sold the property with a carry-over basis of $100, assuming sale for $100,000 the beneficiary would be subject to tax on $99,900 of gains.] This creates a tax benefit because upon a sale of these coffins for more than $100,000 after Dracula’s death, whether made by the executor or a beneficiary, the $99,900 or more of gain accrued before death will not be recognized for federal income tax purposes because the tax basis will have been stepped up to $100,000.

As he cannot die (unless he takes a stake through the heart) Dracula has no ability to transfer assets to his heirs and avoid taxes on the appreciative gain that has accrued during Dracula’s possession of such assets. This is a limiting factor in Dracula’s ownership of assets, and for someone who can live for centuries, it could result in heavy capital gains taxes at the time of asset disposition. Dracula’s status as “undead” actually hurts his ability to transfer wealth and avoid taxes upon receipt by the beneficiary.

Conclusion

All in all, the Universal Monsters have some very serious considerations to undertake when making end of life financial decisions with regard to taxes. Their situations are unique and require some careful consideration and planning in order to ensure that the taxman doesn’t get his fangs into them.

[1] For an excellent discussion on the complexities of state law on the determination of death, see Adam Chodrow, “Death and Taxes and Zombies” 98 Iowa Law Review 1207 (2013).

[2] IRC §2001(a). There are two other types of wealth transfer tax: (i) gift tax; and (ii) generation skipping transfer tax. A gift tax may also be imposed at the time of a voluntary transfer of wealth to a donee by a donor during the donor’s lifetime. The third method of transfer taxation is the generation-skipping transfer tax system. These taxes are not relevant to this article.

[3] IRC §§2010(c) & 2505.

[4] There is potentially an expansion for this BEA pursuant to the deceased spousal unused exclusion (DSUE) amount within the meaning of §2010(c)(4); however, we will assume that all of these monsters were unmarried, so this will not be addressed.

[5] IRC §§2010 & 2505.

[6] IRC §§2010(c) & 2505.

[7] See “8 things you (probably) didn’t know about Tutankhamun,” HistoryExtra: The official website for BBC History Magazine, BBC History Revealed and BBC World Histories Magazine (available at https://www.historyextra.com/period/ancient-egypt/8-things-you-probably-didnt-know-about-tutankhamun/) (July 24, 2018).

[8] Current price of gold as of 10.7.2019 (available at https://www.bullionbypost.co.uk/gold-price/today/kilograms/usd/).

[9] For an excellent discussion on the complexities of state law on the determination of death, see Adam Chodrow, “Death and Taxes and Zombies” 98 Iowa Law Review 1207 (2013).

[10] IRC §1014(a).

[11] Id.

Was There a Duty to Treat Frankenstein’s Creature in Son of Frankenstein?

Josh Gilliland

October 20, 2019

In the film Son of Frankenstein, Igor took Dr. Wolf von Frankenstein to find a comatose Creature in the crypt where Frankenstein’s ancestors had been buried. Did Dr. Frankenstein have a duty to treat the comatose Creature?

There is a duty for hospitals to provide emergency care to those present at the hospital. 42 U.S.C.S. § 1395dd(a). If an emergency medical condition exists, the hospital must either treat the medical condition to stabilize the emergency or transfer the patient to another medical facility. 42 U.S.C.S. § 1395dd(b)(1)(A) and (B). However, in the Creature’s case, he had been in a coma for an extended period of time after being struck by lightning. The test to determine whether there is a medical emergency under “Good Samaritan” laws is “whether the undisputed facts establish the existence of an exigency of so pressing a character that some kind of action must be taken.” Bryant v. Bakshandeh 226 Cal. App. 3d 1241 (Cal. App. 2d Dist. Jan. 15, 1991). Under the facts of a Creature given life by reanimated body parts being in a coma, there arguably is not a situation requiring immediate action to be taken. Moreover, a crypt under a laboratory is not an emergency room, so it is doubtful such a legal duty would apply.

Dr. Frankenstein did not have a duty to treat the Creature, but did he create a duty? The test is whether a physician had rendered professional services that had been accepted by another for medical or surgical treatment. See, Hanrahan v. Good Samaritan Hosp. Med. Ctr., 2013 NY Slip Op 33418(U), ¶ 3 (Sup. Ct.). This is a factual issue for a jury. Quirk v. Zuckerman, 765 N.Y.S.2d 440, 442-43 (Sup. Ct. 2003) citing Wienk-Evans v North Shore Univ. Hosp. at Glen Cove, 702 N.Y.S.2d 917 [2000].

The Creature was in a coma and could not personally consent. There was no apparent power of attorney giving Igor the right to seek medical care on the Creature’s behalf. Such acceptance would have to be implied, because few individuals would want to refuse medical care in order to stay in a coma. Given the actions taken by Dr. Frankenstein, he did create a doctor-patient relationship with the Creature. This raises the issue that once the Doctor learned the Creature was a danger to others, did Dr. Frankenstein have a duty to tell Inspector Krogh of the danger? While there is an exception for psychotherapists to warn of a patient’s specific threats to law enforcement, Dr. Frankenstein is not a psychotherapist. Cal Civ Code § 43.92. Dr. Frankenstein would have a duty of confidentiality to the Creature for his medical treatment, but not to Igor. If Dr. Frankenstein suspected Igor was nefariously using the Creature to cause harm, reporting Igor’s conduct does not violate the doctor-patient privilege. Moreover, suspecting Igor was using the Creature should be reported to law enforcement.

Godzilla and The Refugees Created by Kaiju Destruction

Nikhil Shah

October 14, 2019

Have you ever watched the old Godzilla movies where he utterly destroys Japan and wonder what would happen to the people fleeing from his terror? If those individuals in Japan applied for refugee status in the United States, would they receive status here?

Under U.S. law, a “refugee” is a person who is unable or unwilling to return to his or her home country because of a “well-founded fear of persecution” due to race, membership in a particular social group, political opinion, religion, or national origin. This definition is based on the United Nations 1951 Convention and 1967 Protocols relating to the Status of Refugees, which the United States became a party to in 1968. Congress also passed the Refugee Act of 1980 which incorporated the Convention’s definition into U.S. law and provides the legal basis for today’s U.S. Refugee Admissions Program (USRAP). Persons who are outside the United States must apply for refugee status pursuant to Immigration and Nationality Act § 207. Applicants for refugee status abroad must meet the same legal test as applicants for asylum in the U.S.

Persecution is defined as a threat to life or freedom and encompasses a variety of forms of adverse treatment, including non-life-threatening violence and physical abuse or non-physical forms of harm.[1] Other serious violations of human rights can also constitute persecution, such as genocide, slavery, torture and other cruel, inhumane, or degrading treatment, prolonged detention, rape and other severe forms of sexual violence.[2] The courts have stated that an official reviewing a refugee claim must look at the cumulative effects of the harm in determining if the person was subject to persecution.[3] The conduct of Godzilla in breathing atomic fire on people and deliberating destroying their residences or offices would definitely fall under the definition of persecution.

For refugee status, the law requires that persecution be inflicted by either the government or by a private party that the government is unable or unwilling to control (a non-state actor.). Most cases at the Ninth Circuit and the Board of Immigration Appeals have dealt with non-state actors in the context of private individuals including law enforcement in the country who subject religious minorities, women or the LGBT community to persecution.[4] In the case of Godzilla, in most movies the government is unable to neutralize the threat of Godzilla. In the original Godzilla and GMK (Godzilla, Mothra, King Ghidorrah: Giant Monsters All Out Attack) resulted in the government of Japan successfully neutralizing him. However, in most other movies, Godzilla may temporarily retreat after defeat from Mecha Godzilla or another Kaiju like Mothra only to resurface in Japan a while later and wreak destruction again. In those cases, it is apparent that the government of Japan will be unable to stop him.

So now we must address the second prong of the refugee test and ask why is it that Godzilla is attacking the people of Japan? Is it because of their race or nationality? In the movie GMK, the plot revolves around Godzilla attacking the people of Japan specifically for the crimes the Japanese government committed during World War II. In other movies it is alluded that he may target them as they block his path to an energy source or their government does something to disturb him and he takes revenge on them as a result. However, a claim based on racial persecution or nationality must be specific.

Would his victims in Japan be able to argue that they belong to a social group instead? Social group is defined as a group that share a “common, immutable characteristic.” Immutable characteristic is defined as “one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.”[5] The Ninth Circuit adopted the “social visibility” requirement but has since refined the standard. In the case of Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Circ. 2013), the court clarified that “social visibility” does not require “on-sight visibility” but rather relies on the perception of others, primarily the persecutor’s perception, stating that the key is “whether the social groups are understood by others to constitute social groups. Some examples of social group in the Ninth Circuit include 1. People who testified against criminal gangs 2. LGBT community 3. Gender 4. families who have violated a state’s coercive population control policy 5. Former member of the police or military 6. People who oppose Female Genital Mutilation. However, the courts have been consistent in declining social group classifications to broad categories like children or individuals who belong to a certain age. The general claim that Godzilla’s victims fear him would not suffice as a social group as it would be considered too broad.

Asylum and refugee law do allow for the persecutor to target the person for mixed motives rather than just one motive. A persecutor may have a legitimate motive, such as enforcement of a legitimate state policy, or personal motives like revenge or extortion. For example, a person seeking refugee status could be persecuted on account of her race and because of a personal land dispute between her family and the persecutor (a reason not protected in the statute). In those cases, the applicant “must establish” that one of the five enumerated grounds “was or will be at least one central reason for persecuting the applicant. The Ninth Circuit Court in Parussimova v. Mukasey has held that the applicant does not need to show that the protected ground was the only central reason for persecution but was one central reason. 533 F.3d 1128, 1134 (9th Cir. 2008). Perhaps the people of Japan would be more successful in arguing this.

A person who is ultimately successful in proving that they qualify for refugee claim may also face other bars to enter the U.S. such as on health-related grounds. Applicants who are diagnosed with communicable diseases of public health significance, also known as Class A conditions, are inadmissible to the U.S. Class A conditions include gonorrhea, leprosy (infectious), syphilis (infectious), and TB (active). Another category for communicable diseases of public health significance are diseases that may subject the applicant to federal isolation and quarantine. These diseases include cholera, diphtheria, infectious TB, plague, smallpox, yellow fever, viral hemorrhagic fevers, severe acute respiratory syndromes, flu that can cause a pandemic, and other diseases that may pose a public health emergency of international concern.

In the case of the people in Japan exposed to severe dosages of radiation because of Godzilla’s atomic fire, they may face quarantine initially. However, if we look at the individuals exposed to high radiation levels after the atomic bombings of Hiroshima and Nagasaki or the aftermath of Chernobyl, we see that after gamma radiation has passed through the body, the person is no longer radioactive and can’t expose other people. However, the exposure to severe radiation may compromise the person’s immune system where they may be susceptible to Class A conditions and be inadmissible to the U.S.

Assuming the person seeking refugee status in the U.S. manages to overcome the health-related ground of inadmissibility, they still will face the cap on the number of refugees that the Trump administration has imposed in the U.S. The Obama administration let in 110,000 refugees to the U.S. per year but the Trump administration gradually decreased the cap from 45,000 to 22,415 to 18,000 for the following year. Perhaps the applicants would be better off seeking refugee in a country like Canada who despite having a total population that is less than California, admitted 28,000 refugees.

Of course, Japanese Citizens who are visiting the U.S. or are here on a non-immigrant visa such as a H1B or F1 Student visa can always apply for asylum but that would bring its own complications which I will discuss in the next article.

[1] Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998); Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996).

[2] UN Handbook at ¶ 51, 13.

[3] Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998).

[4] Castro-Martinez v. Holder, 674 F.3d 1073, 1081 (9th Cir. 2011); Mashiri v. Ashcroft, 383 F.3d 1112, at 1121 (9th Cir. 2004); Vitug v. Holder, 723 F.3d 1056 (9th Cir. 2013).

[5] Matter of M-E-V-G, Respondent, 26 I&N Dec. 227, 237 (BIA 2014).

Can the Invisible Man be Prosecuted for Indecent Exposure?

Josh Gilliland

October 9, 2019

The Invisible Man does not have invisible clothes. This requires that he remove his clothes to be fully invisible, opposed to clothes filled by an empty void (done brilliantly in the 1940 The Invisible Man Returns). If the Invisible Man goes out in public, can he be prosecuted for indecent exposure?

Indecent exposure in California is when a person either willfully or lewdly “exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby.” Cal. Penal Code § 314(1).

The Invisible Man did willfully go in public places where other persons were present while naked. The issue is whether he “exposed” himself. While he technically was naked, and if someone interacting with him knew he was naked, would that meet the statute? Alternatively, does the fact the Invisible Man cannot be seen mean he cannot “expose” himself? Would “expose” be a subjective standard in simply knowing a translucent person is naked in public? Or is it a strict liability for simply being naked in public, regardless of whether the Invisible Man is visible?

Case law does add some illumination to these questions. There must be a specific intent to expose one’s genitals as a necessary element for the offense of indecent exposure. People v. Massicot, 97 Cal. App. 4th 920 (Apr. 17, 2002). Specific intent to commit indecent exposure was found in a case where the defendant broke into a home naked, but the victim was unable to see the defendant’s genitals because he was behind a dresser. People v. Rehmeyer, 19 Cal App 4th 1758 (1993). Moreover, the gravamen of indecent exposure is the exposure and not the number of observers. People v. Smith, 209 Cal. App. 4th 910 (Oct. 1, 2012).

What does this mean for the Invisible Man? He intended to expose himself in order to not be seen. One can argue being invisible was like being behind a dresser, thus blocking the view of his entire naked body. Alternatively, the fact he is invisible and naked shows there is intent to not expose himself. This paradox illustrates the law is not designed for invisible people to be prosecuted under indecent exposure, because it creates legal impossibilities that can simultaneously meet and fail to meet legal standards of a crime.

Banking on the Rules of Evidence in The Clone Wars

Gabriella Martin

October 4, 2019

The Clone Wars episodes “An Old Friend,” “The Rise of Clovis,” and “Crisis at the Heart” center the Banking Clan and its role in the Clone Wars. Operating as a galactic IMF and neutral territory, the Banking Clan on the planet Scipio is the economic heart of the galaxy handling funds for both the Republic and the Separatist movement.

The story opens with Senator Amidala traveling to Scipio to obtain aid for those displaced by the ongoing Clone Wars. Enter “traitor to the Republic and known Separatist” Rush Clovis, the representative assigned to discuss the terms of the aid loan with Senator Amidala. If you’re wondering why anyone would put their trust in someone with such a title, I’d remind you that even though the phrase “I have a bad feeling about this” abounds in a galaxy far, far away, no one ever seems to follow that up with a “yeah, you’re right, let’s not do this.” But I digress.

Although Padme initially requests that Clovis be removed from the loan negotiations, she later agrees to work with him to investigate his allegations of fraud and stolen money that has left the bank out of funds. Together they convince the Core Five to allow Padme to enter the vault and accompany the transfer of funds and later devise a plan for Padme to obtain the evidence while the power to the vault is temporarily disabled. While they manage to successfully obtain incriminating evidence, they’re quickly caught with Padme being detained for espionage.

Once rescued by her husband, Anakin, Padme and Clovis return to Coruscant to expose the banking fraud on Scipio.

Oh, Padme (and frankly everyone in the Republic leadership)! If only you had followed the Federal Rules of Evidence. The brief battle at Scipio (deemed a “war”, although I’m not sure this title fits) would have been avoided and the banks may not have ended up in the Chancellor’s control. Although they may have eventually, given how things ended up in Revenge of the Sith, it might have at least been delayed.

The initial drive

The drive that Padme and Clovis bring to the Chancellor in “The Rise of Clovis,” is the first piece of evidence introduced to prove the corruption in the Banking Clan. The Chancellor–as our theoretical judge–asks Clovis to substantiate these claims of corruption. When Clovis presents the drive which shows funds being diverted from the bank into private accounts, Senator Organa rightly demands to know the veracity of the evidence. After all, Clovis’ credibility is questionable. Padme responds by invoking the spirit of the Federal Rules of Evidence of 901. Rule 901 of the Federal Rules of Evidence covers the authentication of evidence. Rule 901(a) states that “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Authentication and identification are the conditions precedent to the admission of documents and physical evidence.

In order to identify the drive that Clovis is presenting, Padme tells Senator Organa that it was she who downloaded the files from the Muun mainframe. Given Padme’s knowledge of the files, the Chancellor asks Padme to work with Clovis to investigate the Banking Clan and determine the extent of the corruption.

With the foundational evidence establishing the corruption in the Banking Clan, we can, as Darth Sidious said: “move to the next stage of the proceedings.”

The “smoking gun”

As the investigation continues, it is discovered that the Separatists have not been paying interest on their loans, and yet the Banking Clan is lending credits to the Republic–credits it does not have. However, Padme notes that there is still a critical piece of information missing.

Meanwhile, Count Dooku is tasked with bringing Rush Clovis back into the fold and making him head of the Banking Clan. Dooku uses a droid to send Clovis a message asserting that the Separatist government will support his appointment to the leader of the Banking Clan and providing him with a disc containing the details of the secret Muun accounts.

Clovis takes the disc to Nix Card and the Chancellor who blindly accept this evidence and arrest the Core Five for corruption and embezzlement based on this “smoking gun” showing the secret accounts.

Unlike the disc that Padme brings from Scipio, no one questions the veracity of the disc with the secret accounts. No one asks Clovis to identify the source or authenticity of the evidence.

This is troubling considering the way Clovis’s character has previously been attacked. More importantly, for our purposes anyway, it is concerning given that there’s a clear hearsay objection to be made. The evidence of the secret accounts on the disc is an out-of-court statement being offered to prove the truth of the matter asserted because they are being used to prove the existence of the accounts. The only way to admit the evidence on the disc would be under a hearsay exception–most likely the business records exception (Rule 803(6)). This would require a Muun custodian of the records to testify that the bank records on the disc were kept as part of the ordinary course of business. Testimony would also be required from someone with knowledge of the veracity of the information on the disc. Neither of which happened in this case.

The moral of the story–the Chancellor/Darth Sidious’s plans could have been easily foiled by a legal Jedi with superior knowledge of the rules of evidence.

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