October 6, 2015

A Request for Help - Federal Criminal Defense Lawyers, Come Write With Me

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.

April 29, 2015

Short Wins - the Barry Bonds Opinion Edition

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.

3. United States v. Thomas, Eighth Circuit: While on supervised release, Appellant was arrested on suspicion that he had been involved in a shooting. The government petitioned for revocation of supervised release, presenting the arresting officer as its sole witness. Based on the officer's testimony, the district court concluded that the evidence was sufficient to support a "Grade A violation," and sentenced Appellant to 33 months. The Eighth Circuit reversed and remanded for resentencing, holding that the evidence was only sufficient to support a Grade B violation, because the district court did not find that Appellant had committed a crime of violence, a controlled substance offense, or an offense involving a specific type of firearm, or that he had committed an offense punishable by a term of more than 20 years in prison.

4. United States v. Bonds, Ninth Circuit: Appellant was convicted of obstruction of justice for making a single "rambling, non-responsive answer to a simple question" during a grand jury proceeding. The Ninth Circuit reversed, holding that the rambling statement could not constitute obstruction of justice because it was not "material" to the grand jury's decision. While Appellant's response did not answer the question, it did not "enlighten, obfuscate, confirm, or deny anything within the scope of the question posed." The court noted that Appellant could not be tried again on the charge, because double jeopardy applies to a reversal for insufficient evidence.

Defense Attorneys: Dennis P. Riordan, Donald M. Horgan, Ted Sampsell Jones

5. United States v. Mazzarella, Ninth Circuit: After being convicted of twelve felony counts related to a mortgage fraud scheme, Appellant moved for a new trial, arguing that the government had withheld exculpatory evidence in violation of Brady v. Maryland. Appellant pointed to the government's failure to inform her about (1) an informal immunity agreement with one government witness, (2) another witness's belief that she had entered into an agreement with the government, which the government denied, and (3) a comment made by yet another witness suggesting that the government might help her secure a job with the FBI after cooperating. Appellant also argued that her Fourth Amendment rights had been violated when a government witness copied documents from Appellant's office at the government's request. The district court refused Appellant's request for discovery and an evidentiary hearing on both issues, and denied the motion for a new trial. The Ninth Circuit reversed, holding that discovery was necessary to determine what immunity agreements existed, and whether any of the documents copied by the government witness had, in fact, been turned over to the government. The Ninth Circuit remanded with instructions to reconsider the Brady and Fourth Amendment claims after permitting discovery and an evidentiary hearing.

Defense Attorneys: John D. Cline, Mark H. Allenbaugh

6. United States v. Washington, Tenth Circuit: Appellant was arrested after the rental car that he was driving, while accompanied by a friend, was found to contain marijuana and methamphetamine. Appellant was convicted of possession of controlled substances with intent to distribute and aiding and abetting that offense. The Tenth Circuit reversed Appellant's conviction, and remanded with instructions to dismiss the indictment. The court held that there was insufficient evidence to infer that Appellant had knowledge of the presence of a large amount of drugs, since the drugs were not on his person or personal property within the car. The court rejected the government's argument that the smell of marijuana was sufficient to infer this knowledge, noting that the smell would only suggest the use of marijuana, not the presence of a sufficient amount to sustain a conviction for distribution.

Defense Attorney: Neil Darin Van Dalsem

7. Dimanche v. Brown, Eleventh Circuit: Appellant, an inmate, brought a civil rights suit under 42 U.S.C. § 1983 against prison officials for spraying him with teargas in retaliation for filing grievances about prison conditions. The district court dismissed the suit for failure to exhaust administrative remedies, as well as for failure to state a claim. The Eleventh Circuit reversed on both issues, and remanded for further proceedings. The court held that Appellant's grievance was properly directed to the head of the State Department of Corrections, as it was a retaliation claim, and that the district court had not explained how Appellant had failed to state his claims.

8. United States v. Peters, Eleventh Circuit: Appellant was convicted of several offenses related to a tax-fraud conspiracy. He was sentenced to 144 months' imprisonment, and was ordered to pay over $5 million in restitution. While Appellant was incarcerated in California, the government sought to collect the restitution by filing an application for a writ of execution to seize Appellant's California home. The district court with which the application was filed, the Southern District of Florida, refused Appellant's request to transfer the application to California, and granted the application. The Eleventh Circuit concluded that the language of the Federal Debt Collection Procedures Act required the transfer of the application to the district where the defendant resides. The Eleventh Circuit vacated the order and remanded with instructions to transfer the application to California.

9. United States v. Mathis-Gardner, D.C. Circuit: Appellant filed a motion for early termination of supervised release. The district court summarily denied the motion. The D.C. Circuit reversed, holding that while the district court need not spell out its reasons for denying a motion to terminate supervised release in an order, its reasons must be apparent from something in the record, such as from a hearing on the motion, or from an order denying a previous motion. The D.C. Circuit held that the record in the case did not indicate the district court's reasoning, vacated the order denying the motion to terminate supervised release, and remanded for reconsideration.

Defense Attorneys: A.J. Kramer, Michelle M. Peterson

April 24, 2015

Short Wins - the More on Restitution Edition

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

3. United States v. Del Valle-Cruz.pdf, First Circuit: Appellant was convicted of failing to register as a sex offender. The sentencing court imposed special conditions of supervised release that were not imposed at the time of the underlying sex offense conviction, including a condition that prevented Appellant from having contact with, or residing with, minors. The First Circuit vacated this condition to avoid interfering with Appellant's relationship with his son, and also remanded for reconsideration of other conditions imposed by the sentencing court, noting that the sentencing court failed to explain or justify the conditions.

Defense Attorney: Jedrick H. Burgos-Amador

4. United States v. Foley, First Circuit: Appellant was convicted of 33 counts of wire fraud for submitting false documents to lenders on behalf of buyers of condominiums. The court ordered restitution to the lenders, including a lender that had loaned Appellant funds to purchase a condominium for himself. The First Circuit held that the restitution order should not have included this loan, because it was outside of the fraudulent scheme that was the basis for the conviction. The court specifically noted that this loan was obtained for the Appellant, rather than for other buyers, and that the conduct occurred over a year before the scheme for which Appellant was convicted. The court vacated the restitution order and remanded for recalculation without the loan.

Defense Attorney: Rebecca A. Jacobstein

5. United States v. Melendez-Rivera, First Circuit: After pleading guilty to conspiracy to import and distribute cocaine, Appellant argued at sentencing that he should receive a downward adjustment for timely notifying the government of his intent to plead guilty. The sentencing court concluded that it did not have the discretion to grant this adjustment because the government did not move for it. The First Circuit reversed, holding that the sentencing court should have considered whether the government's failure to make the motion was motivated by an improper purpose, and remanded for resentencing on this issue.

Defense Attorneys: Joshua L. Solomon, Matthew B. Arnould

6. United States v. Wright-Darrisaw, Second Circuit: Appellant was convicted of violating 18 U.S.C. §871(a) for threatening to kill the President of the United States and her sentence was based, in part, on a finding that the threat was found to involve deliberation. The court remanded because the district court can only make a finding of deliberation if the deliberation related to the communication of the threat itself.

Defense Attorneys: Jeffrey L. Ciccone and Jay S. Ovsiovitch

7. Lee v. Clarke, Fourth Circuit: Appellant's petition for habeas corpus was dismissed by the district court. That dismissal was based on an unreasonable application of Strickland v. Washington because the court did not appreciate the prejudice inherent to Appellant from the absence of a jury instruction defining heat of passion given that the instruction was crucial to Appellant's defense.

Defense Attorney: David Bernard Hargett

8. United States v. Lymas, Fourth Circuit: Appellants' sentences were procedurally unreasonable because the sentencing court varied from the guidelines believing they did not reflect the §3553(a) objectives. Further, the sentencing court decided both Appellants were deserving of the same sentence, which plainly failed to consider the Guidelines principle that require proportionality in sentencing. Without a detailed explanation for the departure, Appellant's sentences were vacated and remanded.

Defense Attorneys: Terry F. Rose, Thomas P. McNamara, and Brett Wentz

9. United States v. Sealed Juvenile, Fifth Circuit: Appellant, aged 15, was convicted of abusive sexual contact with a minor. The district court imposed a term of juvenile delinquent supervision that included several special conditions, including restriction of Appellant's access to computers and the Internet. The Fifth Circuit ordered the district court to narrowly interpret certain restrictions that it had imposed on the Appellant's use of the Internet, holding, for example, that requiring Appellant to secure written permission each time he used the Internet would be unreasonably restrictive.

10. Speer v. Stephens & Mendoza v. Stephens, Fifth Circuit: The Fifth Circuit was faced, in two separate cases, with an inmate seeking federal habeas review of his conviction. In both cases, the inmate sought to have new counsel appointed to review his case for claims that should have been raised in an earlier state habeas proceeding. Such claims can only be made if there is an excuse for not raising them in the state proceeding, such as ineffective assistance of counsel. The inmates, Appellants here, argued that new counsel should be appointed, because raising the issue of ineffective assistance of counsel at the state proceeding would be a conflict of interest for the attorney that represented Appellants in those proceedings. The Fifth Circuit held that, while there is no right to counsel in collateral review proceedings, federal district courts have the power to appoint additional counsel for the limited purpose of determining whether there are additional claims that ought to have been brought at an earlier state proceeding. The Fifth Circuit vacated the district courts' denial of the petitions and remanded for the appointment of additional counsel.

11. King v. McCarty, Seventh Circuit: The district court erred in dismissing Appellant's Eighth Amendment claim arising from the requirement that he wear a see-through jump suit when being transported from a county jail to state prison. Appellant alleged a plausible Eighth Amendment claim for cruel and unusual punishment by arguing that the jumpsuit had no legitimate correctional purpose but was instead used to humiliate and inflict psychological pain.

12. Owens v. Duncan, Seventh Circuit: Appellant was convicted of murder after a bench trial. The judge's verdict was based on the fact that Appellant knew the victim and knew that the victim was a drug dealer and claimed that Appellant wanted to kill the victim for that reason. However, there was exactly no evidence that Appellant knew the victim or knew that the victim was a drug dealer, and because that was the only reasoning offered by the trial court for the finding of guilt, the conviction was reversed.

13. United States v. Lockett, Seventh Circuit: Appellant was convicted of being a felon in possession of a firearm and was sentenced under the mandatory minimum sentencing provisions of the Armed Career Criminal Act (ACCA). The sentencing court determined that Appellant's previous drug convictions were predicates that subjected him to ACCA, because he was eligible to be sentenced for those convictions under a state recidivist statute. But the Seventh Circuit reversed and remanded for resentencing, holding that, to constitute a predicate conviction under ACCA, the government must show, not only that the recidivist enhancement hypothetically could have been applied, but that Appellant actually faced the possibility of the recidivist enhancement when he was sentenced. To make such a showing, the government would have to point to actual court records, such as the plea colloquy.

14. United States v. Kappes, Seventh Circuit: In three separate cases, the Seventh Circuit addressed special conditions of supervised release imposed on defendants. The Seventh Circuit remanded each of the cases for reconsideration of the imposed conditions, in light of four principles outlined by the court: (1) a defendant should receive advance notice of any conditions being considered; (2) the court should provide a statement of its reasoning when imposing conditions, tying them to statutory sentencing factors; (3) the conditions should be tailored to the defendant's offense and personal history, and should be no greater than reasonably necessary; and (4) the conditions should be given to the defendant by the court orally, in unambiguous terms.

15. United States v. Grandison, Eighth Circuit: Convicted of conspiracy to distribute cocaine, Appellant was sentenced to 360 months in prison. The trial court applied a sentencing enhancement based on Appellant's having held drugs in her home. But the Eighth Circuit held that the enhancement could not be applied, because it did not become effective until two years after Appellant had ceased her drug activities. The Eighth Circuit concluded that resentencing was appropriate, because the erroneous enhancement increased Appellant's guidelines range, and the district court explicitly adopted the government's recommendation to sentence Appellant at the bottom of the range.

16. United States v. Petruk, Eighth Circuit: Appellant was found guilty of various charges related to his theft of a pickup truck. Two of those charges--carjacking and obstruction--were reversed. The Eighth Circuit held that there was insufficient evidence for the carjacking charge because one element the government must prove is that the vehicle was taken from the person or presence of another or accomplished by force and violence or by intimidation. The evidence here showed that the taking occurred at a time separate from any assault against the owner and that the truck was unoccupied when it was taken, failing to prove this element of carjacking. There was also insufficient evidence to prove the obstruction charge because that charge requires proof beyond a reasonable doubt that Appellant contemplated a particular, foreseeable proceeding and that such a proceeding must be an "official proceeding," but that the definition of official proceeding does not include state proceedings. Here, the conduct that allegedly amounted to obstruction was an attempt by Appellant to secure statements from false alibi witnesses while incarcerated on state charges. Appellant's convictions for carjacking and obstruction were vacated.

17. United States v. Woodall, Eighth Circuit: Appellant was convicted and sentenced for failing to register as a sex offender. As a condition of supervised release, the sentencing court prohibited Appellant from consuming alcohol or entering bars or similar establishments. The Eighth Circuit struck this condition, noting that Appellant only lightly consumed alcohol and occasionally used marijuana. Absent evidence that Appellant was "drug dependent," or that alcohol spurred his criminal behavior, the court held that the condition could not be justified.

18. United States v. Haischer, Ninth Circuit: Appellant was tried and convicted for wire fraud for submitting false loan documents. During her trial, Appellant raised two defenses: duress and lack of knowledge that the documents were false. After Appellant's trial counsel abandoned the duress defense, the trial court excluded evidence that Appellant had been abused. The Ninth Circuit reversed, holding that the evidence of abuse was sufficiently probative to whether Appellant knew (or was deliberately ignorant) of the documents' falsity.

Defense Attorney: Franny Forsman

19. United States v. Hymas, Ninth Circuit: After being convicted of wire fraud for submitting a false loan document, Appellant was sentenced to 24 months' imprisonment. The Ninth Circuit held that the trial court improperly applied a "preponderance of the evidence" standard to the amount of loss determination required under the sentencing guidelines. A "clear and convincing evidence" standard was required, the Ninth Circuit held, because the amount of loss determination more than doubled Appellant's sentencing range under the guidelines.

Defense Attorney: Marcus R. Mumford

20. United States v. Marcia-Acosta, Ninth Circuit: Appellant was convicted of unlawful reentry to the United States, and was sentenced to 77 months in prison. The trial court applied a sentencing enhancement based on a previous conviction for aggravated assault, determining that it was a "crime of violence." The Ninth Circuit remanded for resentencing, holding that the trial court improperly relied on statements made by Appellant's trial counsel at the plea hearing in making this determination. Relying on such statements, rather than only the conviction documents, is improper under the "modified categorical approach," set forth by the Supreme Court for determining whether a crime constitutes a "crime of violence."

Defense Attorney: Diego Rodriguez

21. United States v. Zaragoza-Moreira, Ninth Circuit: An indictment charged Appellant with importation of methamphetamine. Appellant moved to dismiss the indictment, arguing that the government had destroyed evidence that may have supported her defense of duress. The Ninth Circuit agreed, holding that Appellant had been denied due process, where a government agent knew of the potential usefulness of evidence and acted in bad faith by failing to preserve it. The Ninth Circuit directed the trial court to dismiss the indictment.

Defense Attorney: Harini P. Raghupathi

22. United States v. Simmons, Ninth Circuit: After being convicted of drug and firearm offenses, Appellant was sentenced as a "career offender" under the sentencing guidelines. The sentencing court concluded that this classification applied, in part, because of Appellant's previous conviction for "second degree escape," a state offense that the sentencing court concluded was a "crime of violence." Applying the modified categorical approach, the Ninth Circuit vacated the sentence and remanded for resentencing. The Ninth Circuit determined that neither the generic crime "second degree escape," nor the specific crime of conviction, "escape from custody," were crimes of violence because they did not have, as an element, the use of force, and did not otherwise involve a risk similar to those offenses classified as crimes of violence in the sentencing guidelines.

Defense Attorney: Peter C. Wolff, Jr.

23. Doe v. Ayers, Ninth Circuit: Appellant filed a federal habeas petition, challenging his death sentence on the basis that his counsel was ineffective at the penalty phase of the trial. The district court held that, by failing to put on significant mitigating evidence, the trial attorney's performance had been deficient. But the district court denied the petition, holding that Appellant had not shown a reasonable probability that, but for the deficiency, the sentence would have been different, as required by Strickland v. Washington. The Ninth Circuit disagreed, holding that there was a substantial probability that the mitigating evidence would have affected the sentence. The Ninth Circuit ordered that the case be returned to state court with instructions to either reduce the sentence to life without parole or hold a new sentencing proceeding.

Defense Attorneys: John R. Grele, David W. Fermino

24. Barnett v. Norman, Ninth Circuit: Appellant, an inmate, brought a civil rights suit against prison guards for excessive force. At trial, Appellant called three other inmates to testify, all of whom refused to give testimony. The presiding judge made no attempt to compel the witnesses to testify by, for example, informing the witnesses of the possibility of contempt. The jury found in favor of the prison guards. The Ninth Circuit reversed and remanded for a new trial, holding that the presiding judge had abused her discretion by failing to attempt to compel the witnesses to testify.

Inmate's Attorney: Ian Samuel

25. United States v. Sahagun-Gallegos, Ninth Circuit: Appellant pled guilty to illegal reentry to the United States. The sentencing court applied a sentencing enhancement based on Appellant's previous state conviction for aggravated assault, determining that the conviction constituted a "crime of violence." The Ninth Circuit reversed and remanded for resentencing, holding that the sentencing court erred in making this determination by considering the defense attorney's statements at the aggravated assault plea hearing. This, the Ninth Circuit held, was impermissible under the "modified categorical approach" set out by the Supreme Court for determining whether an offense constitutes a crime of violence.

26. United States v. Urrutia-Contreras, Ninth Circuit: While on supervised release, Appellant was convicted of illegal reentry to the United States. At a hearing to impose sentence for violating the terms of Appellant's supervised release, the sentencing court did not ask for the government's sentencing recommendation before imposing sentence. The Ninth Circuit reversed and remanded for resentencing, holding that the requirement that the government be permitted to make a statement on sentencing applies at proceedings to revoke supervised release.

27. United States v. Figueroa-Labrada, Tenth Circuit: Appellant was convicted of conspiracy to possess with intent to distribute methamphetamine, and was sentenced to 120 months' imprisonment. The Tenth Circuit vacated this sentence. On remand to the trial court for resentencing, Appellant sought--for the first time--to qualify for a "safety valve" provision allowing a defendant to avoid a mandatory minimum sentence by providing the government with information and evidence. But the trial court held that the Appellant could not do so because he had not provided the information before the first sentencing hearing. On appeal, the Tenth Circuit again reversed, holding that a defendant may satisfy this provision at any time before the new sentencing hearing.

Defense Attorneys: Virginia L. Grady, O. Dean Sanderford

28. United States v. White, Tenth Circuit: After Appellant pled guilty to failing to register as a sex offender, the sentencing court classified him as a "tier III" sex offender under the Sex Offender Registration and Notification Act (SORNA). SORNA categorizes state sex offenses by comparing them to federal sex offenses, as well as by reference to the age of the victim. In determining that Appellant's state sex offense conviction was "tier III," the sentencing court followed a "circumstance-specific approach," looking not merely to the elements of the state offense, but also to police reports describing the offense. The Tenth Circuit reversed and remanded for resentencing, holding that the circumstance-specific approach is proper in SORNA classification only to determine the age of the victim, not to compare the offense to federal sex offenses.

Defense Attorneys: Carl Folsom, III; Julia L. O'Connell

29. United States v. Edmond, Eleventh Circuit: Indicted for conspiracy to commit access device fraud and aggravated identity theft, Appellant entered a plea agreement with the government. But that agreement inadvertently referred to an offense for which he had not been indicted, possession of access control devices. The error went unnoticed not only by the government's and Appellant's attorneys, but also by the trial court, which accepted the plea and sentenced the Appellant. The error was first noted by the Eleventh Circuit, after hearing oral argument on Appellant's unrelated arguments. The Eleventh Circuit found it was plain error to accept a plea agreement as to a charge not alleged in the indictment and therefore reversed the lower court's acceptance of the plea agreement.

30. United States v. Symington, Eleventh Circuit: Appellant entered a plea agreement with the government which, in part, determined that the Armed Career Criminal Act (ACCA) would not apply. The PSI determined, however, that the ACCA did apply. At sentencing, the court refused to allow Appellant to withdraw his guilty plea despite the mutual misunderstanding between the government and Appellant. This was an abuse of discretion because Appellant presented a fair and just reason for withdrawing the plea--that is, the plea court had explained that a 10-year maximum sentence would apply, but the sentencing court imposed a sentence above that when it was determined that Appellant should be sentenced in line with the ACCA. The conviction and sentence were vacated and remanded.

March 25, 2015

Maybe Not the Best Defense, or, Why a Gratuity is Not a Bribe, or Honest Services Fraud

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.

The Awesomest Defense Ever

Their defense, though, was that they weren't committing bribery, they were committing fraud. They had no intention of working illicit magic on behalf of Haleem to reduce his property tax assessments - he would have won the appeals he won regardless of the money he gave them. Much as Haleem was trying to fake them out into receiving a bribe as a cooperator, they were trying to fake him out by not doing anything in exchange for the money he gave them.

This is the white-collar version of "I couldn't have killed him, I was robbing a train on the other side of the state" or, from the Long Black Veil, "I couldn't have killed him, I was sleeping with my best friend's wife."

It's just so beautifully human.

How many times have I heard a version of this defense? How many times have I wanted to float it? I've just never had the courage to argue that "my client wasn't trying to defraud the guy in the indictment, he was trying to defraud someone else." I suppose I don't run this defense because whenever I've seen it as a truly viable option, the guidelines are higher on the actual fraud.

The tricky bit is that they were charged with both bribery and fraud. And the bribery statute is a little tricky.

brown-envelope-money-bribe-1-1384589-m.jpgThe Bribery Charge

In any event, here, the men were charged with a violation of 18 U.S.C. § 666, which

provides that any agent of a covered organization who "corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization" commits a felony.

Note one problem with this statute - it prohibits both bribes and gratuities. A bribe, of course, is giving money to someone in the government in order to get them to do something for you. A gratuity is giving money to someone in the government because they did something for you.

So, today's life lesson, tip your waitperson, but not the lady at the DMV.

The Seventh Circuit found that the record was sufficient to support a gratuity charge. So the verdict on the § 666 count stands. (I wonder whether there was a variance argument between the evidence and the indictment - though, based on the jury instruction argument that appears to have been preserved, I think not.)

The Fraud Charge

The fraud charge, though, fared differently.

As the Seventh Circuit explains:

The convictions under §1341 pose a different problem. The mail-­‐‑fraud statute is not as detailed as §666. It prohibits schemes to defraud that use the mails but does not elaborate. Hawkins and Racasi may have defrauded Haleem out of his money (this was their defense!), but that was not the prosecutor's theory. The United States relied on 18 U.S.C. §1346, which defines scheme to defraud as including "a scheme or artifice to deprive another of the ntangible right of honest services." The idea is that the employer has a right to loyalty from agents and employees, and the prosecutor contended that Hawkins and Racasi deprived Cook County of their loyal services by taking Haleem's money secretly. But "honest services" is open-­‐‑ended, and in Skilling v. United States, 561 U.S. 358 (2010), the Justices deflected a contention that it is so open-­‐‑ended as to be unconstitutionally vague. They did this by holding that §1346 covers only bribery and kickbacks. This means that an agent's secret receipt of a gratuity (a "reward" in the language of §666) does not violate §1341, for a payment that does not entail a plan to change how the employee or agent does his job is neither a bribe nor a kickback. Because the instructions did not take into consideration this subtlety - and allowed the "we were defrauding not bribing" defense - the fraud convictions here were reversed.

Honest services fraud is getting charged more and more in cases that are barely within the scope of Skilling, see, e.g., this case.

Here's hoping this is a start of a trend blowing that back.

Though it doesn't make me think I'll try that "no, I committed a different crime" defense any time soon.

March 17, 2015

Short Wins - The Flight Attendant Edition

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

3. United States v. Moran-Caleron, First Circuit: Appellant was convicted for his role in a hotel and casino robbery. The trial court ordered restitution, but failed to set a payment schedule, instead ordering the probation office to do so. Such delegation of the court's discretion is improper and required the judgment to be vacated and remanded.

Defense Attorney: Jorge L. Gerena-Mendez:

4. United States v. Foreste, Second Circuit: Appellant's conviction for possession of oxycodone with intent to distribute was vacated and remanded because the district court erred in denying Appellant's discovery request for the field performance records of the narcotics canine whose alert provided probable cause for his arrest. While such records are not required, the Second Circuit noted that they are not irrelevant and therefore found it to be an abuse of discretion to deny Appellant's request.

Defense Attorney: Bradley Stetler

5. United States v. Flores-Alvarado, Fourth Circuit: Appellant's sentence was vacated and remanded because the trial court failed to make the required factual findings regarding the drug quantity attributed to Flores-Alvarado. It was error for the district court to fail to resolve Appellant's objections to the calculation.

Defense Attorney: Wayne Buchanan Eads

6. United States v. Carter, Sixth Circuit: The trial court improperly admitted evidence that Appellant had intent to distribute suboxone strips during his trial for manufacturing of methamphetamine. The Sixth Circuit determined that the probativeness of such an unrelated venture to show specific intent was outweighed by the prejudicial value of that evidence.

Defense Attorney: David L. Leonard

7. Campbell v. Reardon, Seventh Circuit: The state court unreasonably applied Strickland when they rejected Appellant's ineffective assistance of counsel claim based on counsel's failure to conduct an adequate pretrial investigation by not interviewing three witnesses who would have said Appellant played no role in the murder for which he was convicted. The case was remanded for a hearing to resolve factual issues of Appellant's claims.

8. United States v. Sewell, Seventh Circuit: The conditions of Appellant's supervised release were vacated because both standard and special conditions were overbroad. The Court held that it is improper to order Appellant to obtain his GED not only because it is impossible to order someone to comply with such a condition without allowing cheating, but also because the applicability of this condition was not apparent.

9. Rudin v. Myles, Ninth Circuit: The Ninth Circuit held that extraordinary circumstances prevented Petitioner from timely filing her application for federal habeas relief and that she was entitled to equitable tolling. Her appointed attorney had abandoned her during the period in which she was diligent in pursuing her appeal. The case was remanded for further proceedings.

Defense Attorney: Christopher Oram

10. United States v. Hicks, Tenth Circuit: Appellant's rights under the Speedy Trial Act were violated. Although the government filed a motion to set trial, that motion did not require a hearing, and therefore only thirty days are excludable (from the 70-day Speedy Trial Act requirement) after it was under advisement. Further, the motion was under advisement at the time it was filed because it did not require a response from Appellant. That motion therefore could only toll the speedy trial clock for 30 days, and since more time had passed the Speedy Trial Act was, in fact, violated.

Defense Attorney: Mark G. Walta

March 16, 2015

Restitution and Very Large Legal Fees

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.

The Restitution Framework

Let's step back from the story of what happened with Mr. Cuti to look at the legal framework for these cases.

When a person - or corporation - suffers a loss because someone did something that was illegal, they generally get to recover their expenses in ferreting out that loss or illegal conduct. That said, they can only do that for expenses that are necessary to figure out what the loss is.

As the Second Circuit explained it:

necessary . . . expenses related to participation in the investigation as described in the [Victim and Witnesses Protection Act], 18 U.S.C. § 3663(b)(4), are "expenses the victim was required to incur to advance the investigation or prosecution of the offense," This may include internal investigations undertaken in the face of evidence--or grounded suspicion--of internal misconduct which ultimately unmask fraud.

What's a Necessary Expense?

So, the expenses that Duane Reade had to shell out for that were related to unmasking what happened were necessary. What does that mean here?

Here there were two law firms looking into these transactions -- Paul Weiss was doing it in connection with an arbitration proceeding and Cooly was doing it in connection with an internal investigation. Does Cuti have to pay for both firms' expenses?

As it happens, probably not:

while Paul, Weiss may have uncovered evidence of the real estate concession scheme in February 2007 and subsequently "educate[d]" Cooley about it, App'x at 351, it was Cooley that undertook and prepared the May 2007 report on it for the Duane Reade board. Paul, Weiss meanwhile continued to work on the arbitration and amended its counterclaims and affirmative defenses accordingly in April 2007. A corporate client such as Duane Reade is entitled to expend as much as it deems prudent on preparations for its defense in a civil case or arbitration. However, under Maynard, not all such expenses are "necessary" for restitution purposes.

The Circuit remanded the case for the district court to wade through Paul Weiss's bills to figure out which were related to the arbitration and which went to investigate the fraud.

March 2, 2015

Short Wins - the Third Level Edition

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.

Defense Attorneys: Michael R. Hasse and Victoria M. Bonilla-Argudo

3. United States v. Castillo, Fifth Circuit: Appellant's case was remanded for reconsideration of the sentence after the government initially refused to move for an additional one-level reduction at sentencing based on acceptance of responsibility. The court held that the government may withhold such a motion based on an interested identified in Section 3E1.1 of the sentencing guidelines, but the trial court failed to make the proper findings of fact which would allow the government to withhold the motion.

4. United States v. Fidse, Fifth Circuit: Appellant pled guilty to two obstruction offenses and his sentence was based, in part, on a substantial sentencing enhancement that applies when "the offense is a felony that involved, or was intended to promote, a federal crime of terrorism. Because Appellant's underlying conviction was not for a federal crime of terrorism, the district court was required to identify the crime of terrorism committed by Appellant based on the evidence presented at sentencing. The district court failed to do so, and made inconsistent findings about the evidence presented. Therefore Appellant's sentence was vacated and remanded.

5. United States v. Garcia-Perez, Fifth Circuit: Appellant's prior conviction for manslaughter as defined by the Florida statute was not a crime of violence for purposes of a sentencing enhancement. A conviction under the Florida manslaughter statute does not qualify as a crime of violence for the sentencing enhancement because the government is not required to prove force as an element of the offense. Appellant's sentence was vacated and remanded for resentencing.

6. Pola v. United States, Sixth Circuit: The Sixth Circuit vacated the district court's denial of an evidentiary hearing to Appellant for potential ineffective assistance of counsel claims. First, the court held that it had jurisdiction to hear this issue despite Appellant being released from prison because he will continue to suffer the burden of a criminal conviction, including being deported. Second, the trial court erred in denying Appellant an evidentiary hearing because the record did not conclusively show that he was entitled to no relief and because the trial court only had parts of the record before it when making its determination.

Defense Attorney: Kent Wicker

7. United States v. Moslavac, Seventh Circuit: During a parole revocation hearing, the government did not call either witness to an alleged battery, but called only the father of a witness who was a minor, who testified about what his daughter told him. In addition, the court allowed the government to introduce a voicemail from the minor witness to her father under the excited utterance exception. Because the court did not explicitly balance the interests of the parties as required by the Federal Criminal Procedure Rule 32.1, the parole revocation was reversed.

8. United States v. Dunn, Tenth Circuit: The Tenth Circuit held that it is multiplicitous to sentence a person for both possession and receipt of child pornography in violation under the Double Jeopardy Clause. The court also vacated a number of special conditions of supervised release because the district court failed to find that they were minimally restrictive, and remanded for reconsideration with proper findings. Finally, ordering Appellant to pay $583,955 to one victim depicted in the child pornography was inconsistent with Paroline. The restitution order was vacated and remanded.

Defense Attorneys: Scott Wilson and Kathryn N. Nester

9. United States v. Ferdman, Tenth Circuit: The district court erred in calculating restitution under the Mandatory Victims Restitution Act. The restitution order must be based on the full amount of victim's losses without consideration of the economic circumstances of Appellant and the restitution order cannot exceed the actual loss caused by Appellant's conduct. Here, the court's award exceed the actual losses by assessing the value of lost merchandise based on the retail unsubsidized price, meaning the restitution included the profit the company would have made from the sale without any evidence that there was such an actual loss.

Defense Attorney: John V. Butcher

February 12, 2015

The Seventh Circuit Continues to Make Entrapment Meaningful

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.

Mr. Barta and the Limits of His Business

Castro met with Mr. Barta again, along with an FBI informant. They told Barta that they could set up a system where Sav-Rx would be able to do work with LA County through the guy they knew on the inside.

Mr. Barta described how he had helped Cook County's government set up a system, but it was only because there were inefficiencies there that he knew how to correct. He said that if LA County was already efficiently handling things, he couldn't add much value. But, he said that if LA County was doing things inefficiently then he would be happy to help.

The FBI took this to mean that he would be interested in a bribery scheme. Because, of course, most people who bribe their way into business only do that if there's a value add for the service they provide.

The FBI Sends A Lot of Unanswered Email

After that meeting, the FBI hounded Barta, and he didn't get back to them. Castro told Barta that their inside man was eager to close things. That went on for more than a month. Barta just ignored the emails.

Then the FBI started sweetening the deal - increasing the size of the fake contract that Barta would participate in. The FBI also pressured other folks to pressure Barta to get involved.

They had put a lot of work in. The FBI really wanted that stat.

When Barta responded to none of this, Castro started calling him. Barta let the calls go to voicemail.

The Ultimatum

Finally, Castro sent Barta an email saying if he didn't hear by the end of the day he was moving on.

Barta didn't get back to him. Castro didn't move on.

The Harried Phone Call and Nebraska Meeting

Finally, Castro called Barta and Barta's assistant put him through. Barta said he was in the middle of something else and wasn't able to talk. Castro asked if they could move forward. Barta said "I think we're probably ready to move . . . Yep."

Castro reached out to Barta over the next few weeks. He enlisted a guy who later became a co-defendant to reach out to Barta. Ultimately, Castro flew to Nebraska where Barta lived. Barta said he wanted to help his friend, but didn't really care about any deal in LA. He gave Castro a check from Sav-Rx for $6500.

He was arrested six days later and convicted after a jury trial.

The Seventh Circuit

The Seventh Circuit found this was entrapment as a matter of law and vacated his conviction. Here's the best part of the opinion:

The FBI frequently emailed and called Barta, with no response from Barta. These were "repeated attempts at persuasion." Id. at 435. The FBI invented false deadlines for Barta to commit to the deal and invented false problems for the Los Angeles County hospital system. These were "fraudulent representations." Id. The FBI significantly sweetened what would have already been an attractive deal to Barta and his codefendants. Here we have "promises of reward beyond that inherent in the customary execution of the crime." Id. And the FBI pressed Barta - both directly and through Buenrostro -- to make a deal that it had reason to believe Barta would be making mainly to benefit his less fortunate friend, Buenrostro. Here we have "pleas based on need, sympathy, or friendship." Id. The presence of all these plus factors shows that the government induced Barta to commit a crime, one that the government concedes he had no predisposition to commit. That is enough to establish entrapment as a matter of law.

The moral of the story? If someone is really pushing you to do something illegal, make sure that there's only venue in Illinois, Indiana, or Wisconsin.

February 11, 2015

Short Wins - the Restitution Edition

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

3. United States v. Adejumo, Eighth Circuit: After Appellant was sentenced, the government filed a motion to amend the judgment and impose restitution. Appellant's trial counsel knew of the motion, but did not inform Appellant or respond to it. Appellant's motion for reconsideration of that order should have been granted because the restitution order constituted a judicial deprivation of property and required due process. The specific facts of this case indicated that Appellant did not receive adequate notice.

4. United States v. Estrada, Eleventh Circuit: Appellant received a sentencing enhancement for being convicted of a crime of violence. Since his sentencing, the Eleventh Circuit issued an opinion that determined Appellant's prior conviction could not be a crime of violence, so the case was remanded for resentencing.

February 5, 2015

Ponzi Schemes, Loss, and Credit Against Loss

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.

What makes this tricky is with a Ponzi scheme. There, early investors are paid money to convince them that the enterprise is earning its rate of return. The money often comes from a later investor's contribution, sure, but it's still real money that goes into the pockets of the early investor.

Does that money - the money paid to early investors - get deducted from the loss amount?

That's the question which was answered in the Sixth Circuit's United States v. Snelling.

There, Snelling pled guilty to being involved in a Ponzi scheme. He and another guy ran two companies that promised a 10 to 15 percent return to investors annually. Folks signed up. The investors, though, were paid from money raised by new investors, not from actual return generated from these investments.

As an aside, I would think it must be tremendously stressful to run a Ponzi scheme. The continual hunt for new investors - which must accelerate over time - just can't be a good way to live. But I digress.

Under Mr. Snelling's investment, many of the early investors were paid their advertised return. If you add up the amount that everyone put it, it would equal around $9 million. A $9 million loss, for Mr. Snelling, put him at a sentencing guidelines range of 121-151 months.

If, though, you subtract what folks were paid back, it would only be a $5 million loss (or so), with a range of 92-121.

So, do you subtract what the early investors were paid during the course of the Ponzi scheme.

The Sixth Circuit's answer? Yes. But only to the amount originally invested.

So, if Investor A puts in $100,000 and is paid $150,000 - you'd only deduct $100,000.

It's good to know the Sixth Circuit will be creating work for forensic accountants.

It's a technical opinion, but great reading for anyone facing a credit against loss issue.

February 4, 2015

Short Wins - the Entrapment and Appeal Waiver Edition

There are two cases in this batch of short wins that I think deserve a special shout out.

First, there's United States v. Torres-Perez. Appeal waivers are the bane of federal criminal practice (or one of them). Their only advantage is that they make prosecutors' lives easier. The downside, which is significant, is that they discourage the development of the law. I'd rather have the government work more and know what the law is. Though I may be crazy. In Perez, the Fifth Circuit slapped down an appeal waiver requirement in order to get credit for a acceptance.

Second, there's United States v. Barta - another great entrapment case from the Seventh Circuit. That circuit is bustin out entrapment cases like Taylor Swift and Katy Perry bust out insults of each other. Or something.

To the victories!

you win.jpg1. United States v. Matta, Second Circuit: As part of the conditions for his supervised release, Appellant was required to participate in a drug treatment or detoxification program, but the Probation Department was allowed to decide if that program should be inpatient or outpatient. The delegation of that decision to the Probation Department was improper because the power to impose special conditions of supervised release is vested exclusively in the district court. That condition was vacated and the case remanded for resentencing.

Defense Attorney: Yuanchung Lee

2. United States v. Fernandez, Fifth Circuit: Appellant was convicted of failing to register as a sex offender and as part of his supervised release, was required to install computer filtering software that would block or monitor Appellants access to sexually oriented websites for any computer he possesses or uses. Because neither the failure to register as a sex offender or his underlying offense involved the use of a computer, the special condition was not sufficiently tied to the facts of the case and was vacated.

3. United States v. Torres-Perez, Fifth Circuit: Appellants pled guilty to illegal reentry. Despite timely entry of the plea deals, the government did not move for any reduction for acceptance of responsibility, claiming that it would not do so because Appellants had not waived their rights to appeal. Withholding the sentencing reduction for that reason is impermissible, so the case was remanded for resentencing

4. Unitd States v. Bailey, Seventh Circuit: Appellant pled guilty to distributing crack cocaine and reserved his right to appeal if the Fair Sentencing Act ever was determined to apply to his case. The Supreme Court subsequently decided that the FSA should apply to cases like Appellant's retroactively. The Seventh Circuit determined that the proper procedural vehicle for Appellant was a petition for relief under Section 2255, and that the proper remedy was a new sentencing hearing.

5. United States v. Barta, Seventh Circuit: Appellant's conviction for conspiracy to commit bribery was reversed because Appellant was entrapped as a matter of law. In an undercover government sting operation, Appellant and his co-defendants agreed to bribe a fictional county official in California to obtain a government contract. The government admitted that Appellant was not predisposed to committing the crime and the court found that the government had induced the crime through repeated attempts at persuasion, employing both fraudulent misrepresentations and promises of additional reward.

6. United States v. Hawkins, Seventh Circuit: The district court erred in its definition of bribery under the mail fraud statute by including the intent to be rewarded, without anything in return. The statute requires more than just accepting a reward for a person to be guilty of bribery; it requires that the person does something in exchange for the reward. The convictions for mail fraud were vacated.

7. United States v. McMillian, Seventh Circuit: Appellant's sentence of thirty years was based in part on the application of two sentencing guideline which were created after the dates of Appellant's offenses. That application violates the ex post facto clause and the court held that Appellant was entitled to resentencing because the new guidelines range would have been 30 years to life. The previous sentence of 30 years was below the guidelines, rather than within it, so it is possible the judge would have decreased Appellant's sentence if the proper guidelines range was considered.

8. United States v. Thompson, Seventh Circuit: The Seventh Circuit again took issue with a number of conditions of supervised release imposed by the district courts. Although the court notes that it is difficult to determine conditions of release that may not be implemented for years or decades, the Seventh Circuit vacated a number of conditions because the district court did not provide any reasoning or justification, the condition was not orally articulated at sentencing, or because the condition was unrelated to the crime.

9. United States v. McElmurry, Ninth Circuit: Appellants convictions for possession and distribution of child pornography were vacated. The district court's failure to reading or listen to evidence--including interview statements made in connection with a prior state law child pornography conviction and a letter written to an inmate months before the crime was charged--was improper under Federal Rules of Evidence 403.

Defense Attorney: John Balazs

10. United States v. Rice, Ninth Circuit: The calculation of restitution and forfeiture was flawed where the loss amount included money laundered before Appellant had joined the conspiracy. Thus, the case was remanded for resentencing and recalculation of those amounts.

Defense Attorney: William H. Gamage

11. United States v. Wray, Tenth Circuit: Appellant's sentencing guidelines were miscalculated because his prior crime of "Sexual Assault - 10 Years Age Difference" under Colorado statute section 18-3-402(1)(e) does not constitute a crime of violence. The definition for "crime of violence" includes forcible sex offenses, but, applying the categorical approach, the statute in question here does not fall under that definition.

Defense Attorneys: Matthew Belcher and Virginia L. Grady

January 23, 2015

When Accepting a Guilty Plea, a Court Should Make Sure the Person Pleading Guilty Is Actually Pleading Guilty

United States v. Fard is a nice study in the wrong way for a lawyer to handle a plea hearing.

Let me say, at the start, that I get that a plea hearing can be hard. Sometimes a lawyer sees what's in his client's best interests more clearly than the client. There can be a temptation to push a client really hard to take a plea when the client doesn't want to. And getting a client who has reluctantly inked a plea through a plea hearing can also be hard.

There are few things you can do to handle that. Maybe you spend more time with the client explaining why a plea makes sense. Maybe you talk - with permission - to the client's loved ones about whether a plea makes sense. Maybe, if the client doesn't want to plead, you reflect that it's the client's Sixth Amendment right to go to trial, and not the lawyer's and you take the case to trial.

But what do you not do?

You don't just enter the plea for your client and speak over the person at the hearing.

Which appears to be what happened in Mr. Fard's case.

watermark.php.jpgMr. Fard's Charges and Trial Date

Mr. Fard was indicted for, basically, mortgage fraud. The day before trial, Mr. Fard's lawyer asked the judge to push the trial date back six weeks because he thought he was close to a plea deal.

Mr. Fard's lawyer explained that he thought his client could provide significant cooperation and that he was close to a deal with the government.

The judge didn't give him six weeks, but did push it back a month. He then took a recess and Mr. Fard's lawyer talked to the government with his client.

Mr. Fard's Plea Hearing

After that break, Mr. Fard's lawyer told the court that his client was ready to plead. He said,

We are going to change our plea to Count 3 with no agreement with the government at this time. We are entering, I guess we would call it a blind plea to Count 3 of the indictment, Judge.

The judge started reading the indictment. He stopped and this exchange happened:

Court: Do you follow me so far? Fard: Yes, I do. Court: And so far do you agree that you did all this? Defense Counsel: Judge, he agrees that he participated in the scheme and he had knowledge of the scheme.

The judge asked Mr. Fard about his knowledge of the scheme. His lawyer answered:

[Fard] had knowledge of Nationwide submitting these, permitting and submitting these phony applications, and he knew it was going on, but he did nothing about it, he just participated in the scheme as it went along.

Later in the hearing, Fard told the court

I mean, I did not plan any scheme. We just tried to build typical American dream to build and fix and sell and, you know, bring the dream true, and just got involved with the wrong people.

Fard and the court, shortly after, had this conversation

Court: Now, did you participate in that scheme to defraud the lenders by submitting to them and causing them to rely upon these false loan applications which were false in the respects which are recited in the draft that I read? Fard: Your Honor, the lender was Nationwide Mortgage Financial, which they put the whole thing together. But I had acknowledgment, but I did not say anything against the lender. Lender is the one introduce these people to me to bring them as a partner. Lender was Nationwide Financial Mortgage, which they brought these people.

The judge announced that there would be a break. He encouraged defense counsel that if Mr. Fard wanted to plead guilty, he would have to actually, you know, plead guilty.

After the break, the court and Mr. Fard kept talking. It included this bit:

Court: Mr. Fard, what do you plead guilty to? Fard: I participate and I had the acknowledgment of the partners probably their stuff was not kosher, the document was not kosher. Court: What do you mean probably? Fard: Like [defense counsel] said, the partner did not reside in the property. Court: You say "partner." Do you mean these nominees? Fard: Yes, Your Honor. Court: You knew that they were not qualified for these loans, if they told the truth about themselves? Fard: Yes. Court: Not what they intended to do. Did you know that? Fard: Yes, Your Honor. Court: All right. Now, did you know that the mortgage proceeds were going to be used by you and perhaps others to acquire and make improvements on properties other than this Oakley Avenue property? Fard: The mortgage, we did lots of improvement on that subject property, and we might use some of the money for another property, but we spent a lot of money on that particular property.

The judge did two things. First, he said that, with respect to this plea, "[i]t's like pulling teeth. I feel I ought to have a dental license this afternoon." Then the court accepted the guilty plea.

The court probably had a busy calendar.

Fard's Proffer Went Poorly

Fard met with the government to talk about cooperation right after his plea hearing. Fard told the government - much as he had just told the court - that he didn't do anything wrong.

That was not what the prosecutors and agents wanted to hear. The proffer ended and Mr. Fard did not cooperate with the government.

The Motion to Withdraw the Plea

Mr. Fard told his lawyer he wanted to withdraw the plea. The court appointed a new lawyer for him on the motion to withdraw the plea. The new lawyer argued that Fard did not understand what he was pleading to, and that his prior lawyer had told him the case would be dismissed if he cooperated.

The court had a hearing on the motion to withdraw the plea where Fard testified, as did his prior lawyer. Fard said that he was told if he cooperated the government would drop the case.

The court decided Fard was lying and did not let him out of the plea.

The Sentencing

The district court, clearly frustrated with Fard, gave him a two-level bump up for obstruction of justice under the guidelines and denied him acceptance of responsibility credit. He was sentenced to 84 months in prison.

The Appeal

On appeal, the Seventh Circuit held that

Reviewing the record here in light of the relevant factors, we cannot conclude that Fard was fully aware of the nature of the crime to which he pled guilty. The guilty plea was "enveloped in confusion and misunderstanding," . . . such that we cannot say with confidence that Fard truly understood that a wire fraud conviction required intent to defraud.

They remanded the case to let Fard out of his guilty plea.

Because, duh.

January 12, 2015

Short Wins - the Withdrawal of a Plea and Schaedenfraude Edition

It's been an interesting week in the federal circuits. Aside from the normal and expected sentencing appeals, there are two cases that caught my eye.

The first is United States v. Fard on withdrawing a plea. I often hear from people who have entered a plea and want to talk about hiring me to withdraw it. It can be maddening to see how other lawyers have poorly advised their clients, or have simply had them enter pleas that their client does not understand (sometimes, especially when the lawyer has no prior criminal defense experience, I fear the lawyer doesn't understand the plea either). Fard helps, a bit, in attacking pleas that aren't knowing and voluntary.

The second case I find interesting solely for the schaedenfraude it gives me. The case is United States v. Smith. There, an AUSA was appointed and confirmed to be a judge. As a judge, he worked on a case he also worked on as an AUSA. Hijinks ensue.

To the victories!

(Please note, I have a new "victory" photo. I'd love your feedback. On one hand, I think it's cheeky. On the other, so many of these victories aren't really "you win" moments. Please email me if you have thoughts.)

you win.jpg1. United States v. Ramos-Gonzalez, First Circuit: Appellant was sentenced to 327 months in prison for drug trafficking. That sentence was based, in part, on a finding that Appellant qualified as a career offender. The predicate offense that the district court relied on--a controlled substance offense under Article 256 of the Puerto Rico Penal Code--does not qualify for that purpose so the case was remanded for resentencing. That article criminalizes not only a crime of violence but also actions which do not require physical force.

Defense Attorney: Linda Backiel

2. United States v. Coppenger, Sixth Circuit: Appellant pled guilty to conspiracy to commit mortgage fraud and, as part of the plea agreement, the government promised not to recommend a sentence in excess of the applicable Guidelines range. The district court varied upward after considering information in the presentence report to increase the number of co-conspirators. The case was remanded for resentencing because Appellant wasn't given a meaningful opportunity to respond to the information relied upon by the court to vary upward.

Defense Attorney: Evan B. Smith

3. Sultan v. Fenoglio, Seventh Circuit: The district court, on its own initiative, dismissed Appellant's case for Appellant's failure to pay the initial partial filing fee. This was an abuse of discretion because he had gone through the appropriate procedures with the prison to have the filing fee paid from his prison funds account, and Appellant should not be penalized because the prison administrator failed to forward the money as directed by the court.

4. United States v. Cary, Seventh Circuit: Appellant pled guilty to one count of failing to register as a sex offender and was given a number of special conditions to his supervised release. A hearing is necessary to determine the nature and scope of the computer and internet software as well as prohibited webpages.

5. United States v. Fard, Seventh Circuit: Appellant's guilty plea was vacated because it was not knowing and voluntary. There were many factors which indicated to the Seventh Circuit that Appellant's plea was not knowing and voluntary, including Appellant's trial counsel's testimony that Appellant was confused by the nature of the charges combined with the fact that the court did not explain what intent to defraud means or what a fraudulent scheme is.

6. United States v. Morris, Seventh Circuit: After pleading guilty to one count of distribution of crack cocaine, Appellant was sentenced to 48 months. Although that sentence was below the guidelines, the record is unclear about whether the court considered Appellant's arguments in mitigation when fashioning the sentence, so the case is remanded for resentencing.

7. United States v. Smith, Seventh Circuit: The judge who sentenced Appellant had previously worked on his case as an Assistant United States Attorney before becoming a judge. The record did not adequately allow the Seventh Circuit to determine whether the judge, in doing so, violated the Judicial Code and should have recused herself. The judgment was therefore vacated and remanded for resentencing with a different judge.

8. Williams v. Paramo, Ninth Circuit: The district court's grant of summary judgment in favor of the defendants was vacated because, under the Prison Litigation Reform Act, Appellant should have been allowed to proceed in forma pauperis. The Ninth Circuit held that a prison who has three strikes under 28 U.S.C. § 1915(g) and who wishes to qualify under the imminent danger exception can do so by alleging that prison officials continue with a practice that has injured Appellant or others, or that there is a continuing effect resulting from such a practice.

Defense Attorneys: Jennifer Chou, Strefan Fauble, and Carlos M. Lazatin

January 12, 2015

The Only Entrapment Opinion You Ever Need To Read (unless you practice outside of the Seventh Circuit and want to accurately understand the law)

the-money-trap-621161-m.jpgAs I've been writing about a lot over on Above the Law, one thing that is really not good about the federal criminal system is that it is extremely hard to attack government conduct.

This isn't to say that all prosecutors or cops are bad. But they have massive amounts of unchecked power. And, my view at least, is that human nature is such that any given with power has at least a decent chance of abusing it. Prosecutors and cops aren't saints - some of them are going to do what they ought not. And, when that happens, absent an egregious Brady violation and a really good judge, nothing much is likely to happen to the prosecutor.

Perhaps the hardest part of this is in entrapment law. The government should be in the business of catching crime, not creating crime to catch.

The En Banc Seventh Circuit and Fake Stash House Robberies

The Seventh Circuit late last year addressed - en banc - the standard for entrapment. This opinion may be the one good thing coming from fake stash house robbery prosecutions.

The facts of US v. Mayfield are familiar to anyone who knows about fake stash house robbery cases. Here's how the Seventh Circuit summarizes it (it's a long summary, but a really good one):

Mayfield was convicted of residential burglary in 1987 at age 18 and served time in jail for this crime. In 1994 he was convicted of several violent crimes stemming from an armed carjacking; he received a lengthy prison sentence. While in prison he earned a GED, an associate degree in general studies, and vocational certificates in commercial custodial services and cosmetology. He was released in 2005 and returned home to Waukegan, Illinois, where he participated in the Second Chance Program . . .

Although jobs for convicted felons were hard to come by, Mayfield managed to find sporadic work. After moving to Naperville, he found a temporary job in nearby Bolingbrook that allowed him to work a 40-hour workweek. He started this new job in late April or early May of 2009 and soon thereafter met Jeffrey Potts, a coworker with whom he had much in common. Potts was also a felon with convictions for drug trafficking, robbery, and gun possession. The two men commiserated about their financial straits, their difficulty finding permanent jobs, and their struggle to support their families. What Mayfield did not know was that his new friend was supplementing his income as a confidential informant for the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF").

. . .

In his first overture to Mayfield, Potts explained that he had returned to selling cocaine and invited Mayfield to join him in the drug trade. Mayfield rebuffed this offer. A few days later Potts learned that Mayfield had a pending gun-possession charge, so he tried another tack. He told Mayfield of a one-time opportunity "that was worth a lot of money." His drug supplier was planning to "stickup" his wholesaler, a robbery that would net tens of thousands of dollars in cocaine. Potts invited Mayfield to participate in the robbery in return for a share of the profits. Mayfield rejected the invitation.

Potts persisted. Each day at work he tried to persuade Mayfield to join the conspiracy by appealing to his concerns about money. He urged Mayfield to think about the financial needs of his family, saying "I know you [are] tired of working for this chump change" and "I know you need this money," among other similar lines of persuasion. Potts also flaunted his expensive Dodge Ram pickup truck, telling Mayfield that he bought it with $40,000 he had "earned" in another drug robbery. Mayfield continued to decline the offers.

On June 25, 2009, Mayfield's car was damaged in an accident. He borrowed money from a family member to have the car towed but did not have enough to pay for the needed repairs. He missed three days of work before he found another way to get to his job . . . . When Potts asked him why he had missed work, Mayfield told him about the accident and explained his financial predicament. Potts unexpectedly gave him $180 in cash to pay for the car repairs.

Two days later Potts returned to the subject of the stashhouse robbery, again pressuring Mayfield to join the conspiracy. Mayfield equivocated but did not agree to anything. The following week Potts tried again. When Mayfield continued to resist, Potts gestured to a Gangster Disciples tattoo on Mayfield's arm. The tattoo dated from Mayfield's membership in the street gang before his carjacking conviction; he knew that failure to repay a debt risked harsh punishment from the gang. When Potts said he was still associated with the Gangster Disciples, Mayfield took it as a warning that he would be in danger if he did not quickly pay up. By the end of the day, Mayfield agreed to participate in the stash-house robbery

He was arrested pretty much as soon as anything got going with the robbery.

Most nonlawyers looking at this would, I think, say it's entrapment. For that matter, I think most lawyers who don't practice criminal law would think this is entrapment. One friend of mine, when I told him about these facts, asked why this wasn't thrown out before trial because of how bad the government's actions were.

If only more of my friends made the law.

There was a pretrial motion in Mr. Mayfield's case, but it was not a motion to dismiss. Nor was it a defense motion for an entrapment jury instruction. No, the entrapment motion was filed by the government as a motion in limine to prevent the defense from talking about entrapment.

If you're going to entrap someone, the last thing you want is them talking to the jury about how you entrapped someone.

The judge granted the government's motion. Gotta love an independent judiciary.

The Seventh Circuit used this as an opportunity to discuss exactly what entrapment means.

Entrapment has two parts - lack of predisposition and government inducement. If someone can show both, then they get to present an entrapment defense to the jury and have the jury instructed on, basically, these two elements.

On Inducement

The Court held that:

We hold that inducement means more than mere government solicitation of the crime; the fact that government agents initiated contact with the defendant, suggested the crime, or furnished the ordinary opportunity to commit it is insufficient to show inducement. Instead, inducement means government solicitation of the crime plus some other government conduct that creates a risk that a person who would not commit the crime if left to his own devices will do so in response to the government's efforts. The "other conduct" may be repeated attempts at persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward beyond that inherent in the customary execution of the crime, pleas based on need, sympathy, or friendship, or any other conduct by government agents that creates a risk that a person who otherwise would not commit the crime if left alone will do so in response to the government's efforts.

On Predisposition

Predisposition has been the hard bit. Some Circuits have held some thing like that if you ever have a prior conviction for anything, you are always predisposed to commit any other crime. That's right - Mark Wahlberg is predisposed to commit treason. (this is an overstatement, but a slight one)

Here's what the Seventh Circuit said on predisposition:

a defendant is predisposed to commit the charged crime if he was ready and willing to do so and likely would have committed it without the government's intervention, or actively wanted to but hadn't yet found the means. The defendant's predisposition is measured at the time the government first proposed the crime, but the nature and degree of the government's inducement and the defendant's responses to it are relevant to the determination of predisposition. A prior conviction for a similar offense is relevant but not conclusive evidence of predisposition; a defendant with a criminal record can be entrapped.

Concluding Procedural Remarks

One lovely final thing the Mayfield Court held - the government has the burden to defeat an entrapment defense beyond a reasonable doubt. It can do it by defeating either element, but it's on the government.

But when does the government get this burden? When is an entrapment defense to be submitted to the jury?

We have held that to obtain a jury instruction and shift the burden of disproving entrapment to the government, the defendant must proffer evidence on both elements of the defense. See Plowman, 700 F.3d at 1057; Pillado, 656 F.3d at 763; Santiago-Godinez, 12 F.3d at 728. But this initial burden of production is not great. An entrapment instruction is warranted if the defendant proffers "some evidence" that the government induced him to commit the crime and he was not predisposed to commit it.

Mayfield is a great case. Here's hoping it catches on in the other circuits.

It's a far cry from keeping the defense from talking about entrapment at all.

November 18, 2014

Short Wins - the Dramatic Catch-Up Edition

And, after a really long break, we're back. Apologies. This day job has been very busy lately.

And, of course, if you ever find yourself jonesing for my writing, you can always check out my stuff on Above the Law.

You saw our guest post on Hite last week - it's a great case that bears a close read.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Barnes, First Circuit: Appellant pled guilty to distribution and conspiracy to distribute 50kg of marijuana. At sentencing, the district court attributed 3,000kg of marijuana to Appellant after a judicial finding of that quantity by a preponderance of the evidence. After Alleyne, drug quantities must be proven beyond a reasonable doubt. The First Circuit held that this error was harmful because the government did not provide an explanation that proved, beyond a reasonable doubt, that the error in attributing a larger quantity of drugs did not "contribute" to the complained-about sentence, and therefore vacated the sentence.

Defense Attorney: Judith H. Mizner

2. United States v. Prange, First Circuit: The trial court erred in calculating the loss amount attributable to Appellants when it relied on the PSR, which recommended loss amounts unsupported by law. Appellants were entitled to have the loss amount lowered when the stocks they sold had some value when it was sold. The cases were remanded so the district court could make factual findings as to the value of the shares acquired by the government during the sting.

Defense Attorneys: Steven N. Fuller, Allen Fuller, and Inga L. Parsons

3. United States v. Sevilla-Oyola, First Circuit: After an initial plea hearing and sentencing, Appellant filed a motion challenging his sentence. A number of hearings were held after, during which the trial court lowered the sentence each time. The trial court, however, did not have authority for his actions during a majority of the proceedings. The variety of motions filed by Appellant could not be considered a Section 2255 motion because Appellants only gets one complete round of collateral review and none of the parties had considered Appellant's motions to be a habeas petition. All of the convictions were vacated and remanded for one final resentencing.

Defense Attorney: Rafael F. Castro Lang

4. United States v. Starks, First Circuit: Appellant was convicted of being a felon in possession of a firearm after a police officer stopped him in a car his son had rented. The district court held that Appellant did not have standing to challenge the stop because Appellant was not the authorized driver of the rental car. But because a mere passenger in a car has standing to challenge the constitutionality of the stop, the First Circuit held that Appellant's status as an unlicensed, unauthorized driver was no less than that of a passenger and therefore he had standing. This required the conviction to be vacated and remanded for an evidentiary hearing.

Defense Attorney: James L. Sultan

5. United States v. Zhyltsou, Second Circuit: A jury found Appellant guilty of the unlawful transfer of a false identification document. During trial, the court admitted as evidence a printed copy of a social media webpage which the government claimed was created by Appellant. The government did not satisfy the authentication requirement because it did not prove that it was Appellant's profile page rather than a page on the internet that was about Appellant but which Appellant did not create or control. The conviction was vacated and the case remanded.

Defense Attorney: Yuanchung Lee

6. United States v. Bui, Third Circuit: Appellant's petition for habeas corpus should have been granted because he received ineffective assistance of counsel. Appellant pled guilty only after his trial counsel provided him with incorrect advice regarding the availability of a sentencing reduction pursuant to the "safety valve." Although trial counsel filed a motion for such a reduction, he withdrew it after realizing Appellant was ineligible. This amounted to ineffective assistance of counsel.

Defense Attorneys: Maria K. Pulzetti and Brett G. Sweitzer

7. United States v. Paladino, Third Circuit: Appellant challenged the district court's judgment revoking Appellant's supervised release and imposing a prison sentence. The judgment was vacated and the case remanded for resentencing because Appellant was denied the right to allocute at sentencing when the court did not address Appellant personally or permit him to speak or present information in mitigation of the sentence.

Defense Attorney: Sarah S. Gannett

8. United States v. Catone, Fourth Circuit: A jury convicted Appellant of one count of making a false statement in connection with his receipt of federal workers' compensation benefits and was sentenced to 16 months' imprisonment and to pay $106,411.83 in restitution. The sentence must be vacated because the jury did not make a finding that the offense led to more than $1,000 in falsely obtained benefits, so Appellant could only be given a maximum 12-month, misdemeanor sentence. The loss calculation was wrong because it should have reflected the difference between the amount of benefits that he actually received and the amount that he would have received but for the false statement. Instead, restitution was vacated because the loss amount was calculated as the full amount Appellant had received in workers' compensation during that time period.

Defense Attorneys: Joshua B. Carpenter and Ross Hall Richardson

9. United States v. Randall, Fifth Circuit: Although Appellant pled guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine, the factual basis on which his plea was based and the PSR found that Appellant was only responsible for less than 200 grams of cocaine. Appellant's sentence, which was based on his liability for five kilograms of cocaine, was vacated and remanded because Appellant should be sentenced based only on the facts adopted by the court--that is, the amount attributable only to him and not to the conspiracy as a whole--and that amount did not require a mandatory minimum sentence.

10. United States v. Snelling, Sixth Circuit: Appellant was convicted of conspiracy to commit mail and wire fraud, obstruction of justice, and tax evasion and sentenced to 131 months in prison. In determining the sentencing guidelines range, the court failed to take into account sums paid back to the Ponzi scheme's investors in the course of the fraud. This resulted in a higher loss value, and therefore a larger sentencing enhancement. The sentence was therefore vacated and remanded for recalculation.

Defense Attorney: Kevin M. Schad

11. Swisher v. Porter Co Sheriff's Dept., Seventh Circuit: Appellant brought a §1983 complaint based on a pretrial denial of medical care for a bullet wound to his abdomen. Appellant had not exhausted all administrative remedies, so the district court dismissed his complaint. The denial was reversed because Appellant had not been advised of the grievance procedure and was told by the Warden not to file a grievance.

12. United States v. Bowling, Seventh Circuit: Appellants convictions for making false statements in connection with the purchase of a firearm were reversed and the case remanded for a new trial. The Seventh Circuit held that Appellant had to be given the opportunity to present a mistake of fact defense because, although he was charged with a felony at the time, he was also aware that the plea deal offered was for a misdemeanor. The Court held that Appellant should not have to testify in order to present the defense, but instead can cross-examine other witnesses.

13. United States v. Hinds, Seventh Circuit: Appellant's case was remanded for resentencing because the district court improperly imposed two special conditions of supervised release. The condition requiring Appellant to pay for a portion of his court-ordered substance abuse treatment and drug testing was in error because the district court expressly found that Appellant lacked the ability to pay the interest requirement on the restitution and the court did not order a fine based on the same inability to pay. And the condition requiring Appellant to submit to suspicionless searches and seizures was also in error, and the government conceded at oral argument that this invasive condition has already been banned by the court.

14. United States v. Myers, Seventh Circuit: Appellant was convicted of several identity theft-related crimes and sentenced to 132 months imprisonment. The sentence was vacated because the six-level enhancement for 250 or more victims violated the Ex Post Facto Clause. The guidelines in place at the time of the crime would not have characterized many of the individuals as victims.

15. United States v. Reid, Eighth Circuit: Appellant was convicted of unlawful possession of a firearm by a felon, which carries a ten year maximum sentence. The court found that Appellant's prior conviction qualified him under the Armed Career Criminal Act to a guidelines range of fifteen years to life imprisonment. Because Appellant's prior conviction was not a violent felony, as required by the Armed Career Criminal Act, his sentence was vacated.

16. Deck v. Jenkins, Ninth Circuit: Petitioner's writ of habeas corpus should have been granted where the prosecutor, in closing argument, negated an essential element of the intent to commit a lewd act upon a child. The prosecutor argued that the intent element could be proven if Petitioner intended to commit the act not on the day of his arrest, but at some point in the future. This prosecutorial error was not harmless where the jury was confused, a corrective instruction was not given, and the written jury instructions did not address the subject of the jury's confusion.

Defense Attorney: Charles M. Sevilla

17. Sessoms v. Grounds, Ninth Circuit: Petitioner's writ of habeas corpus should have been granted because a reasonable law enforcement officer should have understood Petitioner's statements as an unambiguous request for counsel. In light of Salinas v. Texas, the requirement of an unambiguous invocation of the right to counsel applied to pre-Miranda statements like Petitioner's.

Defense Attorney: Eric Weaver

18. United States v. Aguilera-Rios, Ninth Circuit: Petitioner's conviction for illegal reentry was reversed because his prior removal order was invalid. The removal order was based on a conviction for unlawful possession of a firearm. The statute criminalizing that conduct did not have an antique firearms exception and therefore was not a categorical match for the Immigration and Nationality Act's firearm offense. Since there was no categorical match, the removal order was invalid.

Defense Attorney: Kara Hartzler

19. United States v. Bell, Ninth Circuit: After being convicted of making false, fictitious, and fraudulent claims to the US treasury, filing false tax returns, contempt, and mail fraud, Appellant was sentenced and, as part of supervised release, required to undergo substance abuse treatment and abstain from consuming alcohol. That condition was vacated and the case remanded because the record contained no evidence showing that Appellant abused any substance.

Defense Attorney: Gregory Charles Link

20. United States v. Brown, Ninth Circuit: A case arising from a Ponzi scheme and bankruptcy fraud was remanded for resentencing. The sentencing court erroneously imposed an enhancement for endangering the solvency or financial security of 100 or more victims where the government did not provide evidence of the impact of the crimes on the requisite number of victims. In addition, Appellant Eddings' sentence also included an erroneous leadership role adjustment because the trial court noted that it wasn't clear whether Eddings controlled a particular participant, and the record does not indicate that he controlled any other criminally responsible participant in the scheme. Further, it was error to apply a sentencing enhancement for having 250 or more victims when the district court relied on 148 victims who were not included in the loss calculation.

Defense Attorneys: Heather Williams, David M. Porter, Rachelle Barbour, and John Balazs

21. United States v. Bryant, Ninth Circuit: Appellant moved to dismiss the indictment charging him with two counts of domestic assault by a habitual offender. Appellant was previously convicted in tribal court of domestic abuse, which the government used to establish the element of a prior offense. The Court held that only tribal court convictions obtained when Appellant had a right to counsel which is, at a minimum, coextensive with the Sixth Amendment right to counsel, can be used in a subsequent prosecution. Because Appellant did not have such a right to counsel during his tribal court convictions, they could not be used against him in this case and the indictment should have been dismissed.

Defense Attorneys: Steve C. Babcock and Anthony R. Gallagher

22. United States v. Castro-Ponce, Ninth Circuit: Appellant's sentence enhancement for obstruction of justice was vacated because the trial court did not explicitly find that Appellant's false testimony was also willful and material.

Defense Attorney: Lynn T. Hamilton

23. United States v. Heredia, Ninth Circuit: The government made repeated and inflammatory references to Appellant's criminal history throughout its sentencing memorandum. Because those references served no practical purpose but to argue implicitly for a higher punishment than it had agreed to recommend, Appellant's sentence was vacated and remanded.

Defense Attorneys: Sean K. Kennedy and Jonathan D. Libby

24. United States v. Hernandez, Ninth Circuit: As part of Appellant's sentence for illegal reentry, the district court added a sentencing enhancement for Appellant's prior conviction of being a felon in possession of a firearm under the California Penal Code. Because that statute does not include an antique-firearm exception, it is not a categorical match for the federal firearms offense. Therefore the enhancement was improper and the case was remanded for resentencing.

Defense Attorneys: Sean K. Kennedy and James H. Locklin

25. United States v. Mavromatis, Ninth Circuit: Appellant's conviction for being in possession of a firearm after being committed to a mental institution. This conviction was barred by double jeopardy because Appellant was previously acquitted on a charge based on the same incident of possession.

Defense Attorneys: Rich Curtner and Noa Oren

26. United States v. Melot, Tenth Circuit: Appellants were held in contempt and sanctions imposed after the district court believed the Appellants fraudulently intervened in the foreclosure of their properties. The sanctions were reversed because Appellants only had notice that the court was considering contempt. The lack of notice of sanctions or the opportunity to be heard was a denial of due process in violation of the Fifth Amendment.

Katherine L. Melot and Billy R. Melot proceeded pro se.

27. United States v. Reyes Vera, Ninth Circuit: Appellants were convicted of a drug conspiracy and the use of a minor to commit a drug trafficking offense. During trial, a police officer was called as an expert to explain the drug jargon used in wiretapped phone calls. The Ninth Circuit held that this testimony was a mix of lay and expert opinion, and the trial court's failure to explain that distinction to the jury was in error. Because this error affected the drug quantities found by the jury in a special verdict (which itself impacted the mandatory minimum sentences), the case was remanded for proper determination of drug quantity.

Defense Attorneys: Gretchen Fusilier and Thomas Paul Slesinger

28. Williams v. Swarthout, Ninth Circuit: Petitioner's writ of habeas corpus should have been granted where the trial court made a misstatement immediately before trial that Petitioner had pled guilty, and that misstatement was not corrected until the jury began to deliberate. This deprived Petitioner of the presumption of innocence and violated his Sixth Amendment right to an impartial jury because the error was not rendered harmless by curative instructions.

Defense Attorneys: William J. Capriola and John P. Ward

29. United States v. Bear, Tenth Circuit: Appellant pled guilty to failing to register or update a registration as a sex offender. The special condition of supervised release restricting Appellant's contact with his children was reversed. Any condition that interferes with the right of familial association can do so only in compelling circumstances, and here the government did not present evidence that Appellant displayed a propensity to commit future sexual offenses or exhibited any proclivity toward sexual violence, nor has he shown any display of danger to his own children.

Defense Attorney: Brooke A. Tebow

30. United States v. Powell, Tenth Circuit: Appellant was convicted of numerous counts related to making, uttering, or possessing a forged security after he altered payee information or forged endorsements and then deposited checks stolen from the United States mail into his bank accounts at various banks. That crime requires the government to prove that the security (including checks) belonged to an organization (such as a bank). His convictions were vacated because proof that the checks were deposited into a federally insured bank was not proof that the checks were "of" the depository banks.

Defense Attorney: Ty Gee

31. United States v. Hite, DC Circuit: Appellant's conviction for attempting to persuade a minor to engage in unlawful sexual activity was vacated. Although it is not necessary for the communication to be directly to a minor, the government must prove that the communications with an intermediary are aimed at persuading, inducing, enticing, or coercing the minor. The jury instructions did not reflect such an understanding and require Appellant's conviction to be vacated. In addition, Appellant should have been permitted to introduce expert evidence about Appellant's lack of sexual interest in children since that question is relevant to proving intent.

Defense Attorneys: Lawrence S. Robbins, Barry J. Pollack, A.J. Kramer, Jonathan Jeffress, and Rosanna M. Taormina