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252.5 Claim Of Right

    252.5.1 Recapture Of Personal Property: Basic Principles
    252.5.2 Claim Of Right: Error To Refuse Theory Of Defense Instruction
    252.5.3 Claim Of Right: Applicability To Unlawful Taking Offenses
    252.5.4 Claim Of Right: Honest Belief That Property Was Abandoned Or Lost
    252.5.5 Claim Of Right On Behalf Of Another
    252.5.6 Claim Of Right: Limitations
    252.5.7 Claim Of Right: Self Help For Unliquidated Claims
    252.5.8 Claim Of Right: Use of Force or Violence
    252.5.9 Claim Of Right: Collection of Proceeds of Illegal Transactions
    252.5.10 Claim Of Right: For The Purpose Of Revenge
    252.5.11 Claim Of Right Inapplicable To Extortion
    252.5.12 Claim Of Right: Applicability To Embezzlement
    252.5.13 Claim of Right: Good Faith As Complete Defense To Charge Involving Intent To Defraud Or Willfulness
    252.5.14 Good Faith Claim Of Title As Defense Theory

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PRACTICE NOTE: The general common law rule is that reasonable nondeadly force may be used to recapture personal property when in "fresh pursuit." (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.9(d), pp. 672-3; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.5(a), pp. 358-59; People v. Tufunga (CA 1999) 21 C4th 935, 945-47 [90 CR2d 143].)

    Two elements of most property crimes may be affected by the claim of a right. First, theft, robbery and burglary all apply to taking "the property of another." If a person recaptures his or her own property, this element is not established. (See People v. Tufunga, 21 C4th at 945-47.)  A simple statement to this effect would be the most that is needed by way of additional jury instruction if this aspect of the right to recapture is involved in a case.  (See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 710 [Law Note: Right to Recapture] ¶¶ 2 & 3 (University of Wisconsin Law School, 1999).)

    The second element which may be negated by a claim of right is the "intent to steal" element. A person who intends to take back what is his or who takes property with the intent to return it to the rightful owner does not intend to deprive the owner of his or her property, thus lacking the intent to steal. (See See People v. Tufunga, 21 C4th at 945-47.)  

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

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    252.5.2    Claim Of Right: Error To Refuse Theory Of Defense Instruction

PRACTICE NOTE: See U.S. v. Rubio (5th Cir. 1987) 834 F2d 442, 446-47 [refusal to give a requested instruction is reversible error only if: (1) the instruction is substantially correct; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs the defendant's ability to present a given defense effectively [Citation].].)

    See also FORECITE National™ 78.4 [Burglary: Consent, Claim Of Right, Etc.].

    See also FORECITE National™ 100.1.10 [Robbery: Good Faith, Claim Of Right, Consent].

    See also FORECITE National™ 103.1.3.1 [Claim Of Right As Defense Theory To Theft/Larceny].

    See also FORECITE National™ 103.5.3.5 [Embezzlement: Claim Of Right As Defense].

    See also FORECITE National™ 104.3.2 [Trespass: Claim Of Right As Defense Theory].

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

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RATIONALE: The criminal intent necessary for larceny or unlawful taking is not present when the defendant acts under an honest belief that he or she has a right to take the property.

POINTS AND AUTHORITIES: It has been widely recognized that "a bona-fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent" and precludes a finding of robbery or theft. (See e.g., People v. Tufunga (CA 1999) 21 C4th 935, 943 [90 CR2d 143]; People v. Hendricks (CA 1988) 44 C3d 635, 642 [244 CR 181]; People v. Gates (CA 1987) 43 C3d 1168, 1182 [240 CR 666]; People v. Navarro (CA 1979) 99 CA3d Supp 1, 3 [160 CR 692].) The "inference of a felonious intent that would arise from the forcible and unlawful taking" is rebutted. (People v. Gallegos (CO 1954) 274 P2d 608, 609-610; see also Richardson v. United States (DC Cir. 1968) 403 F2d 574, 575-76; State v. Hardin (AZ 1965) 406 P2d 406, 408; Moyers v. State (GA 1938) 197 SE 846, 847-48; Commonwealth v. White (MA 1977) 363 NE2d 1365, 1368; People v. Hobbs (MI 1976) 242 NW2d 535, 536; People v. Holcomb (MI 1975) 235 NW2d 343, 346; State v. Spratt (NC 1965) 144 SE2d 569, 571.) So long as the claim is made in good faith, it need not be objectively reasonable and it may be based upon either a mistake of fact or a mistake of law. (See People v. Romo (CA 1990) 220 CA3d 514, 518 [269 CR 440].)

    A claim of right instruction may be based on the following: that the defendant was unaware that the property taken was that of another; that the defendant acted under an honest and reasonable claim of right to the property involved; that the defendant had a right to acquire or dispose of the property as was done. (See LaFave & Scott, Substantive Criminal Law (West, 1986) §8.5; see also Richardson v. U.S. (DC Cir. 1968) 403 F2d 574, 575-76 [denial of request for claim of right instruction held to be reversible error]; Rodriguez v. State (FL 1981) 396 So2d 798, 799; Binnie v. State (MD 1991) 583 A2d 1037, 1041-42 ["honest belief" instruction required where defendant took merchandise after clerk said "it’s yours"]; Pierce v. Commonwealth (VA 1964) 138 SE2d 28, 31-32; Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 7-5 [Aggravated Rape (Rape During The Commission Or Attempted Commission Of Offenses)] p. 7-21-23 (Lexis, 2nd ed. 1999) [recognizing honest and reasonable belief as defense to crimes requiring proof of larcenous intent including armed robbery]; Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(D) inst. 1 [Definition of Robbery] p. 154 (South Carolina CLE, 1994); SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 2-2-1 [Offenses Requiring Proof Of Larcenous Intent; Defense of Honest And Reasonable Belief] (State Bar of South Dakota, 1997 rev.) p. 7-21-23; VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 52.200 [Claim of Right] (Lexis, 2000).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

NOTE: Limitations To Claim Of Right Defense.  See FORECITE National™ 252.5.6 [Claim Of Right: Limitations].

Annotation, Robbery, Attempted Robbery, Or Assault To Commit Robbery, As Affected By Intent To Collect Or Secure Debt Or Claim, 88 ALR3d 1309.

LaFave & Scott, Substantive Criminal Law (West, 1996) §8.5, pp. 357-58 (2d ed. 1986).

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

    The defendant's honest belief, even if unreasonably or mistakenly held, that [he] [she] had a right or claim to the property taken negates the felonious intent necessary to convict [him] [her] of [robbery] [or] [theft].

    The prosecution must prove beyond a reasonable doubt that the defendant did not take the property under an honest belief that [he] [she] had a lawful claim of right to the property.

    If you have a reasonable doubt as to whether the prosecution satisfied this burden, you must find that the defendant did not form the necessary felonious intent and return a verdict of not guilty.

[Source: FORECITE National™.]

    To be guilty of [larceny / robbery / (state other crime)], a person must intend to steal.  The defendant claims that [he] [she] had a claim of right to the property that was [allegedly] taken.  The defendant does not have to prove [he / she] actually had a claim of right to the property. Instead, the prosecutor must prove beyond a reasonable doubt that the defendant took the property without a good-faith claim of right to do so.

    If, after considering all the evidence, you have a reasonable doubt as to whether defendant intended to steal the property from the owner you must resolve that doubt in favor of the defendant and vote to find [him] [her] not guilty of larceny.

[Cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS CJI2d 7.5 [Claim of Right] p. 7-11 (ICLE, 2nd ed. 2000/01).]

    When someone takes property under an honest belief that he or she has the right to [take] [use] it, this is not [theft] [robbery], even if the person who took it was mistaken.

[See generally People v. McCann (MI 1972) 201 NW2d 345, 346; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS CJI2d 22.3 [Honest Taking--Larceny] p. 22-7 (ICLE, 2nd ed. 2000/01).]

    Claim of right is not limited to situations in which a defendant believed he or she owned the property. It also includes situations in which the defendant honestly, although not necessarily correctly, believed that [he] [she] had either the right or the authorization to receive, take, acquire, or dispose of the property.

[See generally State v. Ippolito (NJ 1996) 671 A2d 165, 168; cf. NEW JERSEY MODEL JURY CHARGES - CRIMINAL Chap. 20 [Claim of Right Defense to Theft Offenses] ¶ 3 (New Jersey ICLE 4th ed. 1997).]

    A person is not guilty of [theft by taking] [receiving stolen property] if he or she:

    Was unaware that the property belonged to another; or

    Acted under an honest claim of right to the property involved or under a right to acquire or dispose of it.

    The prosecution must prove beyond a reasonable doubt that the defendant:

    1.    Knew the property belonged to another person; and 

    2.    Did not act under an honest claim of right to [acquire] [dispose of] the property.

[Cf. GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES [Claim of Right; Defense to Theft] p. 19, (F) ¶ 1 (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 1991).]

    A person who takes property with the honest, but mistaken belief that he or she had a right to do so, does not have the larcenous intent required for [theft] [robbery] [_______]. Similarly, if the person took the property in the honest, but mistaken, belief that it was abandoned, the necessary intent is missing. Also, if someone took property intending to return it to the true owner or if the person mistakenly believed he or she had permission to take the property, there is no larcenous intent.

    The prosecution must prove beyond a reasonable doubt that the defendant had larcenous intent at the time [he] [she] [allegedly] [took the property] [or] [committed the acts that are the basis for the larceny charge].

[Cf. A Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 9.1 [Crimes Against Property-General Larceny] p. 9-3, ¶ 1 & 2 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).]

    The defendant is not obligated to prove that [he] [she] took the property under the mistaken belief that ________________ (insert claim of right).  Rather, the prosecution must prove beyond a reasonable doubt that the defendant took the property with an intent to steal.

    If, after considering all the evidence, you have a reasonable doubt as to whether defendant intended to steal the property from the owner you must given the defendant the benefit of that doubt and vote to find [him] [her] not guilty of larceny.

[See generally LaFave & Scott, Substantive Criminal Law (West, 1986), § 8.5(a) p. 358-59; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS III(A) inst 4 [Claim of Right--Intent/Mistake] p. 171, ¶ 4 (South Carolina CLE, 1994).]

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RATIONALE: The necessary criminal intent for an unlawful taking is absent if the defendant honestly believed that the property taken was already abandoned.

POINTS AND AUTHORITIES: In a larceny case the defendant may be permitted to rely on a theory that at the time of the taking he or she possessed an honest belief that the property had been abandoned and, thus, had no intent to steal the property. (See Barnes v. Commonwealth (VA 1950) 58 SE2d 12, 16.)

    This principle, which negates the existence of an intent to steal, is uniformly recognized in other jurisdictions. (See Butts v. Commonwealth (VA 1926) 133 SE 764, 768; Morissette v. U.S. (1952) 342 US 246 [72 SCt 240; 96 LEd 288] [defendant honestly believed government property to have been abandoned]; Nicholson v. State (AL 1979) 369 So2d 304, 307 [intent to commit larceny is lacking and the defendant is not guilty of larceny if he has taken the property with the reasonable and actual belief that it was abandoned]; Goddard v. U.S. (DC 1989) 557 A2d 1315, 1317 [defendant entitled to instruction on his claim that he actually and reasonably believed motorcycle was abandoned]; Szewczyk v. State (MD 1969) 256 A2d 713, 715 [intent to commit larceny is lacking and the defendant is not guilty of larceny if he has taken the property with the reasonable and actual belief that it was abandoned]; State v. Gage (MN 1965) 136 NW2d 662, 665 [same]; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 5.03 comment [Claim Of Right] (Bar Association of the District of Columbia, 4th ed. 1993) ¶ 2, sent. 1, p. 549 ["Indicia of abandonment can be the basis of instruction"].)

    Acquittal is not optional upon a finding of good faith, it is mandatory because a finding of good faith precludes a finding of fraudulent intent. (United States v. Cavin (5th Cir.1994) 39 F3d 1299, 1310; see also Philippoussi v. State (FL 1997) 691 So2d 511, 512.)

    See FORECITE National™ 103.1.3.7 [Theft/Larceny: Lost Property].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

Wharton’s Criminal Law (West, 15th ed. 1993) § 377.

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

    The defendant's honest belief, even if unreasonably or mistakenly held, that the property taken was abandoned negates the felonious intent necessary to convict [him] [her] of [robbery] [or] [theft].

    The prosecution must prove beyond a reasonable doubt that the defendant did not take the property under an honest belief that the property was abandoned.

    If you have a reasonable doubt as to whether the prosecution satisfied this burden, you must find that the defendant did not form the necessary criminal intent and return a verdict of not guilty.

[Source: FORECITE National™.]

    To be guilty of [larceny] [robbery] [______________] (state other crime), the defendant must have intended to steal.  It is the defendant's theory of the case that [he] [she] took the property because [he] [she] believed it to be abandoned.  If so, the defendant did not intend to steal.

    If the defendant took the property honestly believing [that it was abandoned] [or] [that [he] [she] had a legal right to have it] there was no intent to steal.  Two things are important: the defendant's belief must be honest, and [he] [she] must claim a legal right to the property based on its abandonment.

    The test is whether the defendant honestly believed the property was abandoned.  It does not matter if the defendant was mistaken or should have known otherwise. 

    The defendant does not have to prove [he] [she] believed the property was abandoned. Instead, the prosecutor must prove beyond a reasonable doubt that the defendant took the property without an honest belief that it was abandoned.

    If, after considering all the evidence in the case, you have a reasonable doubt as to whether the defendant intended to steal, you must give the defendant the benefit of that doubt and vote to return a verdict of not guilty.

[See generally Morissette v. U.S. (1952) 342 US 246 [72 SCt 240; 96 LEd 288]; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS CJI2d 7.5 [Claim of Right] p. 7-11 (ICLE, 2nd ed. 2000/01).]

    When someone takes property because he or she honestly believes it was abandoned, this is not [theft] [robbery] [_____], even if the person who took it was mistaken.

[See generally People v. McCann (MI 1972) 201 NW2d 345, 346; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS CJI2d 22.3 [Honest Taking--Larceny] p.22-7 (ICLE, 2nd ed. 2000/01).]

    Claim of right is not limited to situations in which a defendant believed [he] [she] owned the property. it also includes situations in which the defendant honestly believed that the property was abandoned.

[See generally State v. Ippolito (NJ 1996) 671 A2d 165, 168; cf. NEW JERSEY MODEL JURY CHARGES - CRIMINAL Chap. 20 [Offenses Against Property] [Claim Of Right Defense To Theft Offenses] ¶ 3 (New Jersey ICLE 4th ed. 1997) Claim of Right Defense (11/4/96).]

    If a person takes property that he or she honestly believed was abandoned, for example, from a dumpster, the necessary [unlawful] l[larcenous] intent is missing. 

    The prosecution must prove beyond a reasonable doubt that the defendant had an [unlawful intent] [larcenous intent] at the time he or she [took the property]  [or] [committed the acts that are the basis for the larceny charge].

    If, after considering all the evidence in the case, you have a reasonable doubt as to whether the defendant intended to steal, you must give the defendant the benefit of that doubt and vote to return a verdict of not guilty.

[See generally Morissette v. U.S. (1952) 342 US 246 [72 SCt 240; 96 LEd 288]; cf. A Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 9.1 [Crimes Against Property- General Larceny] p. 9-3, ¶ 1 & 2 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996); GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES Part 3 § F [Special Charges Claim of Right; Defense to Theft] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 1996 rev.) [no larceny if defendant was "unaware that the property was that of another"].]

    If you have a reasonable doubt as to whether defendant intended to steal the property from the owner or whether defendant took the property with the mistaken belief that [the property did not belong to anyone] [was abandoned] you must resolve that doubt in favor of the defendant and vote to find [him] [her] not guilty of larceny.

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS III(A) inst 4. [Claim Of right-Intent/Mistake] ¶ 4 p. 171 (South Carolina CLE, 1994); see also LaFave & Scott, Substantive Criminal Law (West, 1986) §8.5.]

    Abandoned property is property which has been thrown away or the possession of which has been voluntarily forsaken by the owner. Abandoned property becomes the property of the first person to claim it. Unless the prosecution proves beyond a reasonable doubt that the defendant did not honestly believe the property was abandoned you must vote to find the defendant not guilty.

[Source: Adapted from State v. Hayes (WV 1951) 67 SE2d 9, 16.]

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RATIONALE: The claim of right defense should apply when the defendant is acting as an agent for another party who the defendant believes has a valid claim to the property.

POINTS AND AUTHORITIES: "The principle that larceny is not predicable on a good-faith taking under claim of right also applies in the case of one acting under the belief ... that one whom he assists in the taking has a right thereto ...." (50 Am.Jur.2d "Larceny" Section 41; see also Dean v. State (FL 1899) 26 So 638, 639 ["[The intent to steal] cannot be where the taker honestly believes the property is ... that of another, and that he has a right to take possession of it ... for another, for the protection of [the other]"]; Ambrose v. Commonwealth (VA 1921) 106 SE 348, 349 ["(A)lthough Mrs. Schmoele was not the owner, yet if the defendant honestly thought she was, and acted on that belief [when he acquired her estranged husband's car], they should acquit him"]; see also FORECITE National™ 252.5.2 [Claim Of Right: Error To Refuse Theory Of Defense Instruction].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

    The defendant's honest belief, even if unreasonably or mistakenly held, that [he] [she] is acting on behalf of a person who had a right or claim to the property taken negates the felonious intent necessary to convict [him] [her] of [robbery] [or] [theft].

    The prosecution must prove beyond a reasonable doubt that the defendant did not take the property under an honest belief that [he] [she] was acting on behalf of a person who had a lawful claim of right to the property.

    If you have a reasonable doubt as to whether the prosecution satisfied this burden, you must find that the defendant did not form the necessary felonious intent and return a verdict of not guilty.

[Source: FORECITE National™.]

    When someone takes property because he or she honestly believes that he or she has the right to [take[ [use] it, this is not [theft] [robbery] [_______], even if the person who took it was mistaken.

[See generally People v. McCann (MI 1972) 201 NW2d 345, 346; cf.  MICHIGAN CRIMINAL JURY INSTRUCTIONS CJI2d 22.3 [Honest Taking--Larceny] p. 22-7 (ICLE, 2nd ed. 2000/01).]

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    See FORECITE National™ 252.5.7 [Claim Of Right: Self Help For Unliquidated Claims].

    See FORECITE National™ 252.5.8 [Claim Of Right: Use Of Force Or Violence].

    See FORECITE National™ 252.5.9 [Claim Of Right: Collection Of Proceeds Of Illegal Transactions].

    See FORECITE National™ 252.5.10 [Claim Of Right: For The Purpose Of Revenge].

    See FORECITE National™ 252.5.11 [Claim Of Right Inapplicable To Extortion].

    See FORECITE National™ 252.5.12 [Claim Of Right: Applicability To Embezzlement].

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    252.5.7    Claim Of Right: Self Help For Unliquidated Claims

PRACTICE NOTE: Many courts have concluded that the claim of right defense is not available where the claimed debt is uncertain and subject to dispute (People v. Barnett (CA 1998) 17 C4th 1044, 1146 [74 CR2d 121]) or is used as self help to collect a debt. (See People v. Tufunga (CA 1999) 21 C4th 935, 950 [90 CR2d 143]; see also Townsend v. U.S. (DC 1988) 549 A2d 724, 727; State v. Mejia (NJ 1995) 662 A2d 308, 319 [claim of right defense to robbery "is utterly incompatible with and has no place in any orderly society such as ours, which eschews self help through violence"]; People v. Reid (NY 1987) 508 NE2d 661, 664 [same; "emerging trend" in this direction based on "policy decision to discourage self help"].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

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    252.5.8    Claim Of Right: Use Of Force Or Violence

PRACTICE NOTE: The California Supreme Court has held that the claim of right defense may apply even in situations where the defendant used force to recover the property. (See People v. Tufunga (CA 1999) 21 C4th 935 [90 CR2d 143].)

    A number of other jurisdictions have rejected the claim-of-right defense for public policy reasons in cases where force, violence, or weapons are used for self help debt collection. (E.g., People v. Uselding (IL 1969) 247 NE2d 35, 37; State v. Russell (KS 1975) 536 P2d 1392; Cates v. State (MD 1974) 320 A2d 75, 81-82 [citing favorably to Justice Mosk's dissent in People v. Butler (CA 1967) 65 C2d 569 [55 CR 511]]; State v. Mejia (NJ 1995) 662 A2d 308, 320; People v. Hodges (NY 1985) 496 NYS2d 771, 773-74 [rejecting majority's opinion in Butler]; State v. Martin (OR 1973) 516 P2d 753, 754-56; Commonwealth v. Dombrauskas (PA 1980) 418 A2d 493, 497 [citing favorably to Justice Mosk's dissent in Butler]; State v. Self (WA 1986) 713 P2d 142, 144-45 [rejecting majority's opinion in Butler]; Crawford v. State (TX 1974) 509 SW2d 582, 584; State v. Winston (WV 1982) 295 SE2d 46, 51 [defense unavailable where accused takes money or other property, to which he did not have a specific ownership claim, in satisfaction of a debt]; Edwards v. State (WI 1970) 181 NW2d 383, 387-88 [defense unavailable if accused cannot trace ownership to specific personal property or money (i.e., bills or coins) taken from the claimed debtor]; cf. State v. Lewis (AZ 1978) 589 P2d 29, 33 [defense unavailable where claimed debt was unliquidated].)

    In People v. Barnett (CA 1998) 17 C4th 1044, 1146 [74 CR2d 121] the court recognized the "obvious public policy reasons for strictly circumscribing the circumstances" under which persons should be permitted to enforce their debt demands at gunpoint. (See also People v. Tufunga (CA 1999) 21 C4th 935, 950-56 [90 CR2d 143] [forcible retaking of property does not support claim of right defense; issue of whether retaking by fear supports claim of right not addressed].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

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    252.5.9    Claim Of Right: Collection Of Proceeds Of Illegal Transactions

PRACTICE NOTE: Claim of right is not permitted where the claimed right to the property is rooted in a "notoriously illegal" transaction. (See e.g., People v. Barnett (CA 1998) 17 C4th 1044, 1146 [74 CR2d 121]; People v. Hendricks (CA 1988) 44 C3d 635, 642 [244 CR 181] [fee collection for prostitution services]; People v. Gates (CA 1987) 43 C3d 1168, 1182 [240 CR 666] [distribution of proceeds from a forgery ring]; State v. Morant (CT 1997) 701 A2d 1, 5 [claim of right not applicable to robbery to collect illegal debts]; Jupiter v. State (MD 1992) 616 A2d 412, 418; Cates v. State (MD 1974) 320 A2d 75, 80-82; but see People v. Rosen (CA1938) 11 C2d 147, 150 [78 P2d 727].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

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PRACTICE NOTE: Claim of right is not available if the property was taken for the purpose of revenge. (See People v. Romo (CA 1990) 220 CA3d 514, 518 [269 CR 440]; People v. Alvarado (CA 1982) 133 CA3d 1003, 1017 [184 CR 483].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

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    252.5.11    Claim Of Right Inapplicable To Extortion

PRACTICE NOTE: In People v. Serrano (CA 1992) 11 CA4th 1672, 1677-78 [15 CR2d 305], the court held that the claim of right defense which applies to a charge of theft does not apply to the crimes of extortion or kidnap for ransom. (See also U.S. v. Teplin (4th Cir. 1985) 775 F2d 1261, 1263-64; U.S. v. Walters (N.D.Ill. 1989) 711 FSupp 1435, 1449.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

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 VOLUME 11 - CHAPTER 252

RATIONALE: The criminal intent necessary for embezzlement is not present if the defendant acted under an honest claim of right to the property.

POINTS AND AUTHORITIES: A defense to the crime of embezzlement is recognized in some cases by specific statute, where "the property was appropriated openly and avowedly," and under a claim of title proffered in good faith, even though the claim is untenable. (See State v. Ager (WA 1995) 904 P2d 715, 719-21; see also State v. Caldwell (ID 1987) 735 P2d 1059, 1064; Seay v. State (TX 1961) 356 SW2d 681, 684 [charge in embezzlement prosecution fully submitted defensive theory by instructing that jury acquit if they found defendant acted under claim of right and good faith and believed the money belonged to him]; Lee v. Commonwealth (VA 1958) 105 SE2d 152, 154; Whitlow v. Commonwealth (VA 1946) 37 SE2d 18, 21; VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 23.100, comment [Embezzlement] p. I-609 (Lexis, 2000).) In effect, the claim of right defense provides that, if a defendant takes property in the good faith belief that it belongs to him/her, the defendant lacks the intent necessary to commit embezzlement. (See People v. Wooten (CA 1996) 44 CA4th 1834, 1848-49 [52 CR2d 765]; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.6(f)(1), p. 379.)

    However, if the defendant attempts to conceal the taking, either when it occurs or after it is discovered, the defense is unavailable. (People v. Stewart (CA 1976) 16 C3d 133, 141 [127 CR 117].) The defense also does not apply where, "although defendant may have 'believed' he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith." (People v. Stewart, 16 C3d at 140.)

    See also FORECITE National™ 100.1.10 [Robbery: Good Faith, Claim Of Right, Consent] regarding claim of right in robbery cases.

    See also FORECITE National™ 103.1.3.1 [Claim Of Right As Defense Theory To Theft/Larceny].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

NOTE: The claim of right defense to an embezzlement charge is not applicable to "self help." Hence, an employee may not use the defense where funds have been embezzled to satisfy an alleged debt owed by the employer. (See People v. Farsight (CA 1998) 64 CA4th 1402, 1407-08 [75 CR2d 858]; see also People v. Creath (CA 1995) 31 CA4th 312, 318-19 [37 CR2d 336].) Similarly, a partner may not take partnership funds as an offset for a debt owed by the partnership to the partner. (Farsight, 64 CA4th at 1407; see also FORECITE National™ 252.5.7 [Claim Of Right: Self Help For Unliquidated Claims].)

LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.6(f), pp. 379-82.

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

See also generally, FORECITE National™ 305.5.1 [Embezzlement].

    The defendant's honest belief, even if unreasonably or mistakenly held, that [he] [she] had a right or claim to the property taken negates the felonious intent necessary to convict [him] [her] of embezzlement.

    The prosecution must prove beyond a reasonable doubt that the defendant did not take the property under an honest belief that [he] [she] had a lawful claim of right to the property.

    If you have a reasonable doubt as to whether the prosecution satisfied this burden, you must find that the defendant did not form the necessary criminal intent and return a verdict of not guilty.

[Source: FORECITE National™.]

   When someone takes property in the honest belief that he or she has the right to [take] [use] it, this is not [theft] [robbery] [______], even if the person who took it was mistaken about their right to [take] [use] it.

[See generally People v. McCann (MI 1972) 201 NW2d 345, 346; see also MICHIGAN CRIMINAL JURY INSTRUCTIONS CJI2d 22.3 [Honest Taking--Larceny] p. 22-7 (ICLE, 2nd ed. 2000/01).]

    You may not convict the defendant of embezzlement if [she] [she] acted under an honest claim of right to the property or under an honest claim of right to acquire or dispose of the property.  If, after considering all the evidence in the case, you have a reasonable doubt whether the defendant embezzled the property, you must give the defendant the benefit of that doubt and vote to return a verdict of not guilty.

[See generally People v. McCann (MI 1972) 201 NW2d 345, 346.]

    If, after careful consideration of all the evidence, you have a reasonable doubt as to whether defendant intended to steal the property from the owner or whether defendant took the property with the mistaken belief that [the property belonged to the defendant] [that the owner had given the defendant permission to take the property], you must resolve that doubt in favor of the defendant and find him not guilty of embezzlement.

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS III(A) inst. 4 [Claim of Right--Intent/Mistake] p. 171 (South Carolina CLE, 1994).]

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 VOLUME 11 - CHAPTER 252

RATIONALE: Where the offense requires intent to defraud or willfulness, the defendant's good faith is inconsistent with the required intent.

POINTS AND AUTHORITIES: See United States v. Goss (5th Cir. 1981) 650 F2d 1336, 1345; U.S. v. Rubio (5th Cir. 1987) 834 F2d 442, 446-47.

    See also FORECITE National™ 103.1.3.1 [Theft/Larceny: Claim Of Right Defense To Theft].

    See also FORECITE National™ 103.1.3.4 [Theft/Larceny: Good Faith Belief In Consent].

    See also FORECITE National™ 252.10.2.1 [Good Faith Defense: General Willfulness And "Intent To Defraud" Instructions Inadequate For Good Faith Defense].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

    Good faith is a complete defense to the charges in the indictment since good faith on the part of the defendant is inconsistent with intent to defraud or willfulness which is an essential part of the charges. The burden of proof is not on the defendant to prove good faith, of course, since the defendant has no burden to prove anything. The Government must establish beyond a reasonable doubt that the defendant acted with specific intent to defraud as charged in the indictment

    One who expresses an honestly held opinion, or an honestly formed belief, is not chargeable with fraudulent intent even though the opinion is erroneous or the belief is mistaken; and, similarly, evidence which establishes only that a person made a mistake in judgment or an error in management, or was careless, does not establish fraudulent intent.

    On the other hand, an honest belief on the part of the defendant that a particular business venture was sound and would ultimately succeed would not, in and of itself, constitute "good faith" as that term is used in these instructions if, in carrying out that venture, the defendant knowingly made false or fraudulent representations to others with the specific intent to deceive them.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Instruction 16 [Good Faith Defense to Charge of Intent to Defraud] (1997); see also United States v. Goss (5th Cir. 1981) 650 F2d 1336, 1344-45.]

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 VOLUME 11 - CHAPTER 252

RATIONALE: A good faith belief in a claim of title to the property negates criminal intent.

POINTS AND AUTHORITIES: When evidence supports the giving of an instruction on the defense of good faith claim of title, failure to give such an instruction is reversible error. (See State v. Hicks (WA 1984) 683 P2d 186, 189.) However, when the theft is brought about by patently deceptive means, the defense is unavailable. (See State v. Pestrin (WA 1986) 719 P2d 137, 140.)

    See also FORECITE National™ 252.5 [Claim Of Right].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

[See generally State v. Hicks (WA 1984) 683 P2d 186, 189; cf. WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 19.08 [Theft-Defense] p. 252 (West, 2nd ed. 1994).]

    To be guilty of [larceny] [robbery] [______________] (state other crime), the defendant must have intended to steal.  It is the defendant's theory of the case that [he] [she] took the property because [he] [she] had a legal right to do so. 

    If a person takes property honestly believing that [he]  [she] had a legal right to have it there is no intent to steal. Two things are important: the person's belief must be honest, and the person must claim a legal right to the property.

    The test is whether the person honestly believed [he/she] had such a right. It does not matter if the belief was mistaken or if the person should have known otherwise. [It also does not matter if the person [used force] [trespassed] to get the property or knew that someone else claimed the property.

    The defendant does not have to prove [his] [her] claim of right theory. Instead, the prosecutor must prove beyond a reasonable doubt that the defendant took the property without an honest claim of right to do so.

     If, after considering all the evidence in the case, you have a reasonable doubt as to whether the defendant intended to steal, you must give the defendant the benefit of that doubt and vote to return a verdict of not guilty.

[See generally State v. Hicks (WA 1984) 683 P2d 186, 189; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS CJI2d 7.5 [Claim of Right] p. 7-11 (ICLE, 2nd ed. 2000/01).]