Could the Red Skull be Prosecuted for Identity Theft for Stealing Steve Rogers’s Body?

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April 21, 2016

Imagine you’ve been given the ultimate power to shape the universe as you see fit, what would you do? World peace, make yourself a billionaire, gain super powers? The possibilities are endless. In Captain America #115 (from way back in 1969) Cap’s greatest enemy the, Red Skull, had managed to acquire a Cosmic Cube and with it all the power of the universe. So what does he do? Well obviously swaps his mind for Captain America’s. While Skull wanders around in Cap’s red, white, and blues, Cap is sent running for his life from all the people hunting the Red Skull. While Skull/Cap and Falcon manage to defeat the Red Skull and win the day in the end, the question remains if the Red Skull broke any laws. Aside from Cap’s famous star-spangled sock to the jaw, can the legal system do anything to him for essentially stealing Cap’s body?

The obvious place to start looking would be the theft statutes, but those deal with taking property. Considering our history with slavery, courts have been touchy about declaring someone’s body property (although you can apparently paten someone’s genetics, but that’s another post). We do have a class of laws that seem tailor made to this situation, the identity theft statutes. But do they really? Let’s start by taking a look at the Federal Law on ID Theft, 18 USC §1028 Fraud and related activity in connection with identification documents, authentication features, and information.[1]

(a) Whoever, in a circumstance described in subsection (c) of this section—

(1) knowingly and without lawful authority produces an identification document, authentication feature, or a false identification document;

(2) knowingly transfers an identification document, authentication feature, or a false identification document knowing that such document or feature was stolen or produced without lawful authority;

(3) knowingly possesses with intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor), authentication features, or false identification documents;

(4) knowingly possesses an identification document (other than one issued lawfully for the use of the possessor), authentication feature, or a false identification document, with the intent such document or feature be used to defraud the United States;

(5) knowingly produces, transfers, or possesses a document-making implement or authentication feature with the intent such document-making implement or authentication feature will be used in the production of a false identification document or another document-making implement or authentication feature which will be so used;

(6) knowingly possesses an identification document or authentication feature that is or appears to be an identification document or authentication feature of the United States or a sponsoring entity of an event designated as a special event of national significance which is stolen or produced without lawful authority knowing that such document or feature was stolen or produced without such authority;

(7) knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law; or

(8) knowingly traffics in false or actual authentication features for use in false identification documents, document-making implements, or means of identification;

shall be punished as provided in subsection (b) of this section. [2]

As with all criminal law we first look at the mental state referenced, knowingly. Loosely put, the term knowingly means that one is aware of their actions and the consequences of them. We don’t really need to delve too deeply into the mental states here because it is fairly obvious that the Red Skull intends to switch bodies with Cap, and if the Government can prove intent then they can prove the action was done knowingly. Since Skull has the power of the Cosmic Cube, we can pretty much assume he intends his actions.

Next we see if the Skull’s actions fit any of the 8 prongs of the law, starting with the first one. Knowingly (covered that) and without lawful authority (which we have no reason to assume Skull has) produces an identification document, authentication feature, or false identification document. To figure that one out we need to look deeper in the statute to section (d) for definitions and we find that produces has its usual meaning plus alter, authenticate, or assemble (if you didn’t yell Avengers Assemble, at least in your head you might want to rethink reading this). Each of the other terms deal with documents (see section (d)(1) for the meaning of authentication feature) and since we never see Skull handing over any identification documents or signing Cap’s checkbook we can assume this prong isn’t going to work for prosecuting the Skull. We have the same problems with prong 2. Prong 3 looks promising, we can easily assume that Skull has Cap’s wallet and access to all of his personal documents but we never see him show any intent to use them or transfer them so that doesn’t work.

Therein lies the problem with using this statute to prosecute the Skull for stealing Cap’s body. His intent in doing it is to screw with Cap’s head and not necessarily to use anything we typically associate with identity theft (documents, distinguishing features, etc.) to further his plans. He does impersonate Cap and lie to Rick Jones and Cap’s fans but he could have done the same thing by dressing convincingly as Cap. If he had shown Cap’s ID or used his fingerprints then you may have a shot at a conviction. However, none of that is prominent in the story line and so the Skull can’t be convicted under this statute…..

Now that doesn’t mean he gets away with it (again aside from getting taken down by Cap and Falcon at the end of the story). Since the body swap happens in New York we can look at the NY Penal Code, specifically 190.78 Identity Theft in the Third Degree, it says:

A person is guilty of identity theft in the third degree when he or

she knowingly and with intent to defraud assumes the identity of another

person by presenting himself or herself as that other person, or by

acting as that other person or by using personal identifying information

of that other person, and thereby:

obtains goods, money, property or services or uses credit in the

name of such other person or causes financial loss to such person or to

another person or persons; or

commits a class A misdemeanor or higher level crime.

Identity theft in the third degree is a class A misdemeanor.

We’ve already looked at what knowingly means in the federal context and it has the same meaning here. What’s different in the NY code is that includes the language presenting himself, which Skull clearly does, and includes obtaining services. During the time when Skull is masquerading as Cap he’s staying in Cap’s hotel room. Thus obtaining services (the hotel room) by fraudulently presenting himself as Cap. So in a New York state court he could be convicted (assuming that you could prove the whole brain swapping thing). I’d like to think that Jack McCoy would be prosecuting him. ID theft in NY is a class A misdemeanor meaning the Skull would be looking at a maximum sentence of 1 year in jail.

But that’s not that satisfying, so let’s think outside the title of this post and look at 18 USC 912: Impersonating an Officer of the United States. “Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.” Captain America is a member of the US military, so when the Skull pretends to be him and acts as such, he could be convicted in Federal Court and imprisoned for up to three years. That’s a bit more satisfying, but since we’re in comic books we’ll settle for his impersonating Cap to result in the birth of the Falcon as a hero and the creation of one of the most classic team ups in Marvel history.

*Please note that I am not a member of the New York Bar, this is not legal advice to the Red Skull or anyone else reading this.

[1] Full text of the law can be found here https://www.law.cornell.edu/uscode/text/18/1028

[2] Let’s not worry about this law being passed sometime in the late ’90s and this story being in the late ’60s.

Comic Talk: Freyja on Trial? SHIELD Experimenting on Prisoners?

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Josh Gilliland

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April 5, 2016

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Jess and I love the Thor and Captain America comics. We review the latest issues, focusing on whether Queen Aelsa had the mental capacity to marry Malekitch, and Odin’s trial of Freyja for defying “the will of its rightful ruler and insurrection.”

I share my thoughts on the 75th Anniversary of Captain America and whether SHIELD violated prisoners’ rights by using a Cosmic Cube to perform reality altering psychosurgery on the inmates.

We also are thrilled for the upcoming Black Panther comic, so tune in for more on our comic talk.

Expert Witness Reports for the Trial of James Buchanan Barnes

By

Josh Gilliland

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January 21, 2016

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The Mock Trial of the Winter Soldier at San Diego Comic Fest is a battle of expert opinions: did James Buchanan Barnes understand the wrongfulness of his actions?

James Buchanan Barnes’ defense team will argue that he is not guilty by reason of insanity. The law requires that the defense prove Bucky was insane by clear and convincing evidence, which is a lower standard then the Prosecution proving guilt beyond a reasonable doubt. The jury must weigh the facts and expert opinions presented by both sides and decide if Sargent Barnes was insane under the following Model Jury Instruction for the Insanity Defense for the 9th Circuit:

The defendant James Buchanan Barnes contends he was insane at the time of the crime. Insanity is a defense to the charge. The sanity of the defendant at the time of the crime charged is therefore a question you must decide.

A defendant is insane only if at the time of the crime charged:

1. The defendant had a severe mental disease or defect; and

2. As a result, the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts.

The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence of insanity means that it is highly probable that the defendant was insane at the time of the crime. Proof by clear and convincing evidence is a lower standard of proof than proof beyond a reasonable doubt.

You may consider evidence of defendant’s mental condition before or after the crime to decide whether defendant was insane at the time of the crime. Insanity may be temporary or extended.

Your finding on the question of whether the defendant was insane at the time of the crime must be unanimous.

The Defense and the Prosecution each have an expert witness who will testify on whether James Buchanan Barnes was legally insane during the events of Captain America The Winter Soldier. You can view their expert reports below and see the issues of the trial on February 13, 2016 at San Diego Comic Fest. Page controls are at the bottom of the PDF viewer.

Dr. Janina Scarlet’s Expert Report for the Defense

Defense_Scarlet_Expert_Report

Dr. Andrea Letamendi Expert Report for the Prosecution

Prosecution_Expert_Report

SDCF Preview with Mike Towry on The Mock Trial of the Winter Soldier

By

Josh Gilliland

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January 8, 2016

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What are the possible issues you will see at the Mock Trial of the Winter Soldier at San Diego Comic Fest? Check out our podcast with Mike Towry and learn about the awesome guests attending SDCF and some of the issues that will be on trial for James Buchanan Barnes, from the insanity defense to how the trial will work.

Call for Cosplayers: Winter Soldier and Black Widow for Mock Trial

By

Josh Gilliland

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January 4, 2016

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We are adding two witnesses to our San Diego Comic Fest Mock Trial of the Winter Soldier: James Buchanan Barnes, aka Bucky, aka the Winter Soldier, and Natasha Alianovna Romanoff, aka the Black Widow. We also have roles for a bailiff and courtroom clerk.

Update! We have three volunteers for Black Widow, James Buchanan Barnes, and the clerk. We still need a bailiff.

Witnesses need to be familiar with their witness statements and the events of Captain America The First Avenger and Captain America The Winter Soldier. Each witness will have a direct examination, followed by a cross-examination, and possibly re-direct. A law student will work with you on your testimony and how to be a witness.

Cosplayers interested in participating as witnesses must be able to attend San Diego Comic Fest on Saturday February 13, 2016. The fictional trial will be presided over by a Federal Judge and the trial conducted by law students. If interested, please review the witness statements and contact us on the form below.

Black Widow Witness Statement

James Buchanan Barnes witness Statement

Mock Trial Exhibits

Cosplayer sign-Up Form

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Seeking Law Students for the Mock Trial of the Winter Soldier

By

Josh Gilliland

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November 11, 2015

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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:

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

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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.

How Can Captain America Fund His Fight Against the Sons of the Serpent?

By

Josh Gilliland

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October 20, 2015

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The new Sam Wilson Captain America #1 by Nick Spencer has Captain America sever ties with SHIELD and the Government. Cap is now a free agent fighting for those who ask for help (well, reasonable requests, not flying into sporting events or fighting over cable bills).

Body armor for sidekicks and private jets cost money. Cap stated he was setting up crowdfunding in order to fund his hero activities like a political campaign. Would it be legal to crowdfund crime fighting?

The law does not favor vigilantism. Society does not want people taking the law into their own hands. Starting a crowdfunding campaign to do something illegal is problematic at best and a conspiracy at worst.

Captain America #1 puts two different forms of vigilantism into conflict with Sam Wilson fighting a terrorist-vigilante-border-patrol militia group. It should be noted that boarder security and combating illegal immigration are exclusively Federal responsibilities.

The “Sons of the Serpent” are a terrorist organization engaging in illegal vigilante boarder patrol activities. Their goal was to kill those entering the United States illegally. Captain America goes to Arizona to investigate a missing person who was either killed or kidnapped by the Sons of the Serpent, resulting in a confrontation.

Murder in the name of boarder security is just plain illegal. There is absolutely no argument terrorists could make that they are acting on behalf of the United States. Captain America has a strong argument that his actions were in the defense of others to stop terrorists, because a reasonable person would believe physical force was immediately necessary to protect those illegally crossing the border from being murdered by terrorists in costumes with high-powered weapons. A.R.S. § 13-404.

The issue of whether Captain America can run a Super Pack to crowdfund his super-hero activities presents some funky legal issues. Being a super-hero is not like the Red Cross responding to a natural disaster, but actively seeking out criminals to engage in law enforcement activities. No one can crowdfund an illegal activity. There is a strong argument that raising money to engage in super-hero activity would violate RICO. There is also a chance that if Cap is fighting the government, his crowdfunding is actually a form of insurrection. As such, everyone supporting it would be part of a vast conspiracy.

Should Captain America fight terrorists? Yes. Protecting the poor, huddled masses, from terrorists is something Americans proudly do (responding to illegal border crossings is a different issue for the government, but one that does NOT involve murder by private citizens).

Can Captain America raise money like a political action committee for that purpose? No, but he could if it was for his legal defense or to aid those who were the victims of super-villains, then the crowdfunding would be for a legitimate purpose that would not be vigilantism.