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This blog used to be great. It was a useful tool for those of us in the trenches of defending people accused of crimes in federal court.

Alas – my workload has been such that the blog has slipped as a priority. (Also I’ve been writing over at Above the Law).

For that reason, and at the suggestion of a former reader, I’m asking for help.

typewriter-1-1530257.jpgIf you’re a criminal defense lawyer practicing in one of the circuits and would like to take responsibility for updating this page with the federal defense wins from one of the circuits, please send me an email.

I would imagine there are circuits where this wouldn’t be too onerous. The Fifth Circuit, for example, would not probably not be heavy lifting.

Folks who join the team will get credit and attribution on the blog and thanks. All of the glory that comes with writing a blog on federal criminal appellate law can be yours. And if you decide to write here, and happen to find yourself in Washington, D.C., I’d be willing to buy you almost an entire beer.

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The big news in this batch of opinions is not the conspiracy to import lobsters case, but, rather the Barry Bonds appeal.

Mr. Bonds was prosecuted for evading a prosecutor’s questions while testifying in a grand jury. And, now, thanks to an en banc panel of the Ninth Circuit, his conviction was reversed because giving a nonresponsive answer is not a crime. Though just about any teenager could tell you that.

To the victories:

you win.jpg1. United States v. Bengis, Second Circuit: Appellants were convicted of conspiracy to import lobsters from South African waters in violation of both South African and U.S. law. The district court imposed a restitution order, holding each of the Appellants jointly and severally liable for the market value of all of the lobsters harvested. The Second Circuit reversed the order as to one of the Appellants, who had joined the conspiracy later than the others. The court held that the Appellant was only liable for the value of lobsters taken before he joined the conspiracy if he knew, or reasonably should have known, about the conspiracy’s past imports. The court remanded for the district court to make this determination.

2. United States v. Sandidge, Seventh Circuit: After Appellant pled guilty to being a felon in possession of a firearm, the sentencing court imposed several standard and special conditions of supervised release. The Seventh Circuit vacated all of these conditions because the sentencing court offered no explanation as to their propriety, and conducted no review of the statutory sentencing factors. The court noted that several of the conditions were too vague, including requirements that Appellant meet “family responsibilities” and “not associate with any persons engaged in criminal activity.” The court also noted that several conditions were broader than necessary, such as a requirement not to “consume . . . any mood-altering substances.” The court remanded for resentencing on the issue of conditions of supervised release.

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It’s a catch-up blast of short wins today following my Spring Break.

My favorite of the bunch, continuing on our recent restitution cases, is United States v. Foley. There, the district court ordered restitution that was outside the offense of conviction. The First Circuit reversed. Go First Circuit!

To the victories!

you win.jpg1. United States v. Molina-Gomez, First Circuit: The district court erred by denying Appellant’s motion to suppress statements he made to United States Customs and Border Protection officers. The questioning occurred in a small, windowless room and Appellant was not given Miranda warnings prior to being questioned, which amounted to a violation of his Fifth Amendment rights. The case was remanded so Appellant could withdraw his plea and determine how he would like to proceed.

Defense Attorneys: Leonardo M. Aldridge-Kontos, Hector E. Guzman-Silva, Jr., Hector L. Ramos-Vega, and Lisa L. Rosado-Rodriguez
2. Perry v. Roy, First Circuit: Appellant, an inmate, brought a civil rights suit challenging the medical treatment he received after a violent scuffle with prison guards, which left him with a broken jaw. The trial court dismissed the case, holding that Appellant had not presented evidence that prison medical personnel deliberately denied him care. But the First Circuit concluded that the trial court had improperly weighed the evidence, which, when viewed in a light favorable to Appellant, could support a finding that the prison medical personnel were deliberately indifferent to Appellant’s condition.

Inmate’s Attorneys: Benjamin M. McGovern, Amanda O. Amendola

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The Seventh Circuit’s opinion in United States v. Hawkins – written by Easterbrook – presents a fascinating legal defense. When is getting money from someone for side benefits from the government bribery and when is it fraud?

Mr. Hawkins and his co-defendant Mr. Racasi worked in Chicago for the Board of Review – the entity that hears tax assessment appeals. They took money from a cop – Haleem – who they thought was dirty and, in fact, was – he was so dirty he was acting as an undercover officer to work his time down on some other criminal conduct of his.

It is an interesting question whether a dirty cop who has turned cooperator because his dirtiness has led to its own charges is truly “undercover” but let’s elide over that for a minute.

Messrs. Hawkins and Racasi took Mr. Haleem’s money so that they could work some influence at the Board that lowers tax assessments on some property Haleem owned. One of the properties didn’t have its assessment reduced, but the rest did.

They were charged with bribery and fraud in connection with the bribery. They were also charged with conspiracy, but that’s just because these days AUSAs get made fun of at the NAC if they don’t add a conspiracy charge to every case.

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This week’s favorite Short Win is United States v. Gray. I say this less because of the legal issue involved – a jury instruction for “malice” – than for how much fun the opinion is to read. Here’s the opening:

Words are slippery things. Take “malice,” its legal definitions alone can encompass: the intent to commit a wrongful act, reckless disregard for the law, ill will, wickedness of heart, and the intent to kill. See Black’s Law Dictionary 968-69 (7th ed. 1999). But can malice’s fifty shades of meaning include “improper motive?” Former flight attendant Nancy Gray, convicted of providing false information regarding a bomb threat on an airplane, seeks to convince us that she was denied a fundamentally fair trial when her jury was instructed that malice meant “evil purpose or improper motive.” Because we find that the district court’s definition just won’t fly, we vacate Gray’s conviction and remand this case for a new trial.

It goes on from there. And, really it’s a sad story about a flight attendant snapping. But it’s good prose.

To the victories!

Thumbnail image for Thumbnail image for you win.jpg1. United States v. Gray, First Circuit: Appellant’s conviction for giving false information regarding a bomb threat on an airplane was vacated and remanded because the trial court improperly instructed the jury on the definition of malice. By instructing he jury that malice could be “an improper purpose,” the trial court reduced the government’s burden of proof.

Defense Attorney: Inga L. Parsons
2. United States v. Medina, First Circuit: After pleading guilty to failure to register as a sex offender, Appellant was sentenced to 30 months’ imprisonment and 20 years of supervised release. This sentence was vacated and remanded for resentencing because the 20-year period of supervised release was based on the erroneous classification of Appeallant’s SORNA violation as a sex offense. In addition, two conditions of supervised release–one restricting Appellant from accessing or possessing a wide range of sexually stimulating material, and the second requiring Appellant to submit to intrusive penile plethysmograph testing–were not justified by the record.

Defense Attorney: Edward J. O’Brien

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Restitution may be the most important issue that most criminal defense lawyers are uninterested in litigating. Folks who practice in the criminal space – even the white-collar space – tend to see themselves as a champion of liberty. They care about freedom and justice. They are significantly less interested in fighting over money.

usa-dollar-bills-1431130-m.jpgNonetheless, money is an important thing in many people’s lives. And, if a person is convicted of a crime, the government will try to take their money too – either through a fine, a forfeiture judgment, or restitution.

The Second Circuit, in United States v. Cuti, recently narrowed the scope of what expenses can be part of a restitution judgment.

Anthony Cuti was the CEO of Duane Reade until 2005. He was convicted of securities fraud after trial in connection with two accounting fraud schemes to inflate the company’s earnings. His conviction was upheld in a separate appeal – that’s not the issue in this case.

This case is all about the Benjamins.

Mr. Cuti is Fired

In 2004, Duane Reade was purchased by Oak Hill — a private equity firm. Mr. Cuti was terminated shortly after in 2005.

As sometimes happens, Oak Hill and Mr. Cuti did not agree on all of the details of how his termination should be sorted out. The case went to arbitration. Paul Weiss represented Duane Reade in the arbitration.

Shortly before the arbitration was started though, Duane Reade’s general counsel learned that there were some suspected shenanigans that involved Mr. Cuti.

The company hired Cooley to investigate.

It will surprise exactly no one that having Paul Weiss and Cooley do a bunch of legal work was really expensive.

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The third level for acceptance of responsibility is interesting – it’s one area where some courts have held the government has pretty much unfettered discretion to decide whether or not it should apply. Basically, a person is supposed to get the third level only if she’s pled guilty early enough to keep the government from working. Though some U.S. Attorney’s offices are more or less stingy about how early is early enough.

Regardless, it can be hard to overcome an unreasonable government position on the applicability of the third-level for acceptance.

Which is why I was glad to see United States v. Castillo – which challenges the sovereignty of the government’s decisionmaking about the third level and its applicability. Good stuff there.

To the victories!

Thumbnail image for you win.jpg1. United States v. Alejandra-Montanez, First Circuit: Appellants were convicted of criminal conspiracy charges for importing cocaine. Because of recent amendments to the sentencing guidelines that retroactively reduced most drug quantity base offense levels, the case was remanded for reconsideration of Appellants’ sentences.

Defense Attorneys: David A.F. Lewis, Leslie W. O’Brien, and Joshua L. Gordon
2. United States v. Martinez-Rodriguez, First Circuit: Appellants were convicted of drug and firearms offenses. Appellant Rodriguez’s conviction for the drug offense was reversed because the evidence was insufficient to connect him to Appellant Santini’s possession of narcotics. And the evidence connecting Appellant Santini to Appellant Rodriguez’s possession of a firearm was also insufficient, so that conviction was reversed as well. The only evidence of a connection between Appellants, who are brothers-in-law, was that they had been in a car together when the car was stopped. But the lack of evidence about the full nature of their relationship, of any plan they had to carry out a drug-trafficking offense, and of their prior dealings with each other was insufficient to show that the two had the requisite knowledge of the other’s offense.

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Entrapment is making a comeback.

As a defense I mean. It started making a comeback as a government tactic shortly after September 11 before it migrated to the non-national security law enforcement world.

And the Seventh Circuit appears to be the new home of the entrapment defense as it rises, phoenix-like, on the shores of Lake Michigan. In United States v. Barta, the Seventh Circuit again affirmed the new strength of an entrapment defense in that part of the country.

If you remember one quote from this opinion, remember this one: “The point is that the government is supposed to catch criminals, not create them.”

the-venus-flytrap-4-1234316-m.jpgMr. Barta’s Business

James Barta founded a company called Sav-Rx. Sav-Rx was a “prescription benefit management business.” I believe that means that they help businesses that offer a prescription benefit to their employees with that.

Mr. Barta Meets with the FBI (Unwittingly)

In any event, Mr. Barta came to meet with a man named Castro. Or, referred to as Castro, since he was actually an undercover FBI agent. Castro was known as a guy who could deliver contracts with people at Los Angeles County. He delivered those contracts by bribing them.

When Mr. Barta first met with Castro he told him, right off the jump, “I’m not trying to sell you anything.” He said he was merely there to tell Castro what Sav-Rx does.

Castro told Mr. Barta that he could connect Sav-Rx with the Los Angeles County government because he knew a guy and he’d need to be paid. Barta left twelve minutes after the meeting started.

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In this set of short wins, the one that I’d like to call attention to is United States v. Cuti.

Restitution is not a sexy issue. It isn’t as fun to read about as, say, a Brady fight, or a glaring evidentiary problem at a trial. But it’s important.

Restitution judgments can be massive and, frankly, too many lawyers, judges, and prosecutors phone it in around restitution. United States v. Cuti clarifies that what counts as restitution is not just any money that any person may have spent as a result of the criminal conduct at the heart of the case. If you’ve got a restitution issue coming up, give it a read. Nice stuff.

To the victories!

you win.jpg1. United States v. Cuti.pdf, Second Circuit: Appellant was convicted of conspiracy to make false statements and securities fraud. His sentence included an award of restitution under the Victims and Witnesses Protection Act. The Second Circuit held that legal expenses incurred in connection with a civil arbitration connected to the offense are not deemed “necessary” under the VWPA because they were not undertaken or pursued in aid of the prosecution. In addition, the court held that non-victims are eligible for restitution only to the extent such payments were made on behalf of the victim, and remanded for reconsideration of the restitution order.

Defense Attorneys: Brian C. Brook and Matthew J. Peed
2. United States v. Price, Fourth Circuit: Appellant pled guilty to failing to register as a sex offender and the district court adopted Guidelines based on the fact that such an offense qualified as a ‘sex offense’. That interpretation was wrong; failing to register as a sex offender does not qualify as a sex offense. The court therefore remanded for resentencing under different sentencing guidelines.

Defense Attorneys: Kimberly Harvey Albro and John H. Hare

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In white-collar cases, loss drives the sentencing guidelines. If a person is convicted of a federal fraud charge, probably the single biggest legal issue that will matter to that person’s sentence is what the loss amount is.

By contrast, the biggest thing about the case that will matter is what judge the person draws. It’s better to have a great sentencing judge and a high loss amount than a low loss amount with a judge who sentences more aggressively.

But I digress.

money-choise-concept-1439274-m.jpgThe government’s view of most fraud cases, in my experience, benefits from the clarity of hindsight. After everything has fallen apart, it’s easy to see that, say, a person selling an investment vehicle was using a new investor’s funds to pay someone who is clamoring for his or her money back.

In hindsight, it’s easier to see a Ponzi scheme than it may be in the crush of the moment. Some people plan to run Ponzi schemes, others fall into them through circumstance. Such is the way of the world.

In any event, loss for a Ponzi scheme can be tricky. Generally, the loss amount under the sentencing guidelines is the amount of money that was reasonably foreseeable to be lost by the victims. And it’s what’s reasonably foreseeable for the person committing the crime.

Ok, fair enough. The trouble is with the “credit against loss” rule. The sentencing guidelines explain that when the person being sentenced has paid some money back before the authorities or the victims cottoned onto the scheme, that money should be deducted from the loss amount.

This makes sense. If my son steals $20 from my wallet, but feels bad and puts it back before I notice, he should get some credit for that.

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