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The Sources and Limitations of the Criminal Law

2. Benton, a convicted felon, is arrested after he is caught buying a gun that has been transported across state lines. The prosecutor initially charges him with violating Title IV of the Omnibus Crime Control Act, which prohibits a convicted felon from buying a gun that has been transported in interstate commerce and provides a maximum penalty of two years in prison.

Unfortunately for Benton, the prosecutor does some additional research and discovers that the Safe Streets Act of 1968, using the same language as Title IV, proscribes the very same conduct but provides a maximum sentence of seven years. The prosecutor amends the charge, dropping the Title IV charge and adding the Safe Streets charge, hoping to obtain a longer prison term.

The defense counsel moves to dismiss the prosecution, claiming the statutes are void for vagueness because the law does not clearly set forth the penalty for this offense. What result?

3. Gabriela is an attorney for Scussy Scum, who has been charged in Las Vegas with solicitation to commit murder in a high-profile case. After the grand jury indicts Scussy, Gabriela holds a press conference where she states that the police fabricated stories and tampered with evidence in this case, and that these practices have become “all too common in Nevada.”

Two weeks later Gabriela is charged with violating a criminal statute that forbids a lawyer to speak about a pending case in ways that “a reasonable lawyer should know would have a substantial likelihood of materially prejudicing an adjudicative proceeding.” Section (b) of the law provides that a lawyer “may state without elaboration … the general nature of the … defense.” Statements by an attorney are permitted under this section even though they may “materially prejudice” the case.

Gabriela claims she reasonably believed she could speak generally about her client’s defense because of the language in section (b). She claims that the statute is constitutionally void for vagueness because attorneys, the group targeted by the law, must guess at it meaning.

What result?

4. Russ, a convicted sex offender, was driving to his job at 7:00 a.m. The most direct route took him past the entrance to a five-acre city park. He ran out of gas just outside the park entrance. A police officer, who stopped to assist Russ, ran a license check and found that Russ was a convicted sex offender. The officer had just passed a mother with a baby in a stroller on the other side of the park. Russ was charged and convicted for violating a city ordinance that prohibited “a convicted sex offender from being within 2,000 feet of a park, playground, school, day care center, bus stop, or pool when children are present.”

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