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
conspiracy.

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

November 14, 2014

The D.C. Circuit Makes It Harder to Prosecute Someone For Enticing A Minor

Editor's Note - We've never had a guest post before, and normally I give a blanket no to a request for one. But, Assistant Federal Public Defender extraordinaire Jon Jeffress wrote a great piece about the D.C. Circuit's recent decision in United States v. Hite that I'm very pleased to publish here.

If you're looking at this as a precedent for other guest posts, please know that if you are an AFPD or credible attorney working in the federal system on criminal cases, I'd be happy to look at anything. Otherwise, no.

Finally, I should say that the opinions here are solely Jon's, not those of his office or anyone else. Except where he's quoting the D.C. Circuit - those are the opinions of the Circuit.

D.C. CIRCUIT ISSUES IMPORTANT DECISION REGARDING SCOPE OF ONLINE ENTICEMENT STATUTE, 18 U.S.C. § 2422(b)

The federal statute criminalizing the online enticement of minors, 18 U.S.C. § 2422(b), contains a severe penalty. Individuals who violate § 2422(b) -- even first time offenders -- are subject to a ten-year mandatory minimum and a life maximum. Congress legislated this severe penalty to deal with a particular kind of offender: the online predator who uses the Internet to reach into a home and befriend a child for sexual purposes.

And yet, the above scenario represents only a small fraction of prosecutions the government brings under § 2422(b). What one sees equally often is undercover law enforcement agents aggressively pursuing defendants who are using the Internet to find other consenting adults for sexual encounters. The agents will contact these individuals over the Internet and begin flirting, failing to even reveal the purported age of the minor they are portraying until late in the communications. In addition, there are numerous cases involving defendants who are talking about sex with minors with someone they believe to be another consenting adult, with no clear intention of ever doing anything in the real world. Neither of the foregoing scenarios is what Congress envisioned when it enacted § 2422(b) and included its severe penalty.

For anyone defending enticement cases in federal court, the D.C. Circuit's opinion in United States v. Hite, DC, --- F.3d ---, 2014 WL 5343626 (D.C. Cir. Oct. 21, 2014) , should be a welcome development. In Hite, the court brought badly needed clarity to the proper use of 18 U.S.C. § 2422(b). And more importantly, the court took an important step towards eliminating the large number of dubious yet life-ruining prosecutions the government brings under this statute.

In Hite, Dr. Hite, an anaesthesiologist, was convicted of enticing a minor based on communications he had with an undercover police officer who was pretending to be another adult with sexual access to two minors. As one sees frequently in such cases, the undercover office aggressively pursued Dr. Hite, encouraging him to travel from Richmond, Virginia (where Dr. Hite lived) to Washington, D.C., where the undercover purported to live, for a sexual encounter with the undercover and the fictitious minors. Although the two adults engaged in numerous appalling communications, Dr. Hite at no time accepted the undercover officer's invitation to travel to D.C. to meet with him. And yet, based exclusively on Dr. Hite's communications with a person he believed to be another adult, Dr. Hite was convicted under § 2422(b) and sentenced to 22 years in prison. Again, the court imposed that lengthy sentence notwithstanding the fact that Dr. Hite: (1) never communicated with someone he believed to be a minor; and (2) never went anywhere with the intention of engaging in an illegal sexual encounter.

In reversing Dr. Hite's conviction, the D.C. Circuit clarified the scope of § 2422(b) in several important ways. As an initial matter, the court rejected Dr. Hite's argument that a defendant must communicate directly with a minor (or a person he believes to be a minor) in order to violate the statute. Dr. Hite (here) and FPD (as amicus, here) had argued that the statute only applied to those who communicate directly with minors. While the D.C. Circuit held against Dr. Hite on this point, this argument is strongly supported by the plain text of the statute. It therefore remains an argument that practitioners should preserve in the district court and on appeal, as the Supreme Court may ultimately adopt this position when it finally addresses the scope of § 2422(b).

The good stuff starts with the paragraph beginning "By the same token, we reject the Government's argument that § 2422(b) does not require the defendant to attempt to transform or overcome the minor's will." Id. at *6. Here, the court definitively rejected the government's theory that a defendant violates the statute merely by "arranging" with another adult to have underage sex (which the jury instructions in Hite also described as "persuad[ing] another adult to cause a minor to engage in sexual activity"). In the critical paragraph rejecting the district court's jury instruction, the court stated:

In the case at bar, the jury instructions defining the requisite intent did not fully comport with the interpretation of the statute we announce today. Over defense objection, the District Court instructed the jury that "[d]irect communications with a child" are not necessary for a jury to find a violation of § 2422(b), and that the "government must only prove that the defendant believes that he was communicating with someone who could arrange for the child to engage in unlawful sexual activity." The instructions further provided that "the government must prove only that the defendant intended to persuade, or induce, or entice, or coerce a minor to engage in illegal sexual activity, or intended to persuade an adult to cause a minor to engage in unlawful sexual activity." As discussed supra, the preeminent characteristic of the conduct prohibited under § 2422(b) is transforming or overcoming the minor's will, whether through "inducement," "persuasion," "enticement," or "coercion." Although the word "cause" is contained within some definitions of "induce," cause encompasses more conduct; simply "to cause" sexual activity with a minor does not necessarily require any effort to transform or overcome the will of the minor. Similarly, rather than focusing on transforming or overcoming the will of another person, "arrange" means to "put (things) in a neat, attractive or required order" or to "organize or make plans for (a future event)." Thus although much of the instruction was correct, the additional language that the "government must only prove that the defendant believe that he was communicating with someone who could arrange for the child to engage in unlawful sexual activity" was erroneous.
Id. at *9 (citations omitted) (emphasis in original).

Notably, the above holding creates a clear circuit split between the D.C. Circuit and the Eleventh (e.g., United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004)), and probably more (see, e.g., United States v. Douglas, 626 F.3d 161, 165 (2d Cir. 2010) (noting that the required "assent might be obtained, for example, by persuading a minor's adult guardian to lead a child to participate in sexual activity")). In addition, the Hite court's plain meaning interpretation of the statute's verbs "persuade," "induce," "entice," and "coerce" will help defendants not only in cases involving an "adult intermediary," such as Hite itself, but also in those cases where the defendant is communicating directly with someone he believes to be a minor. In either situation, the jury must find that the defendant is "seek[ing] to transform or overcome the will of a minor," and not merely agreeing or even arranging to have sex.

The Hite court's rejection of the government's "arranging" theory of § 2422(b) - particularly if accepted in other Circuits, or even better by the Supreme Court - will be very helpful to those litigating enticement cases with relatively mild facts. The reality of these cases is that while "arranging" for underage sex sounds bad enough in the abstract, the ways in which U.S. Attorney's Offices around the country are utilizing this statute demonstrate the injustice of applying § 2422(b) and its 10-year mandatory minimum to "arrange" situations. This statute should not apply where undercover law enforcement agents have aggressively pursued a defendant who, left to his own devices, would not have sought out a minor for sex. When measured against the human cost to the defendant and his loved ones, it is exceedingly difficult to see how anyone is benefitting from such prosecutions, except perhaps for the Internet Crimes Against Children (ICAC) task forces, whose budgets are dependent on the number of cases the task forces generate. The Hite opinion should help bid good riddance to these dubious cases, which are not what Congress had in mind when it enacted § 2422(b) and included its 10-year mandatory minimum.

The Appellant's brief is here and the Federal Public Defender's amicus brief in support of the appellant is here.

October 4, 2014

The Government Gets Slapped Back to District Court in a Fake Stash House Robbery Case

Fake stash house robbery cases are an embarrassment to a civilized society.

Here's what happens. An undercover ATF agent finds a guy and does some deals with him. He then tells the guy he knows of a stash house where there are a lot of drugs and guns. Probably money too. Maybe a unicorn. Whatever it takes to get the guy interested.

The guy gets some other guys involved. They get weapons and gear up for this robbery of someone they believe is a drug dealer.

Then, with the undercover, they suit up, grab their guns, and plan to rob the stash house. All of this is on video. Then they're arrested (the agents make sure there are no bullets in the guns).

There is so little real crime in the world, the ATF has to make fake crime to investigate.

Law enforcement is often criticized for going after only the low hanging fruit. The clever folks at the ATF are taking it a step further and making up their own fruit to go after - they're going after synthetic fruit.

Ok, so these cases are a moral abomination and they're completely stupid. That said, prosecutors have a lot of discretion to prosecuted stupid cases. And judges generally can't dismiss a case because of stupidity.

An Awesome Discovery Request

One of these cases, though, wound up with the extremely clever people at the University of Chicago's federal criminal clinic.

There, the government indicted seven folks for conspiracy to possess the cocaine that didn't exist in the stash house that the government knew they were never going to rob.

The folks at Chicago's federal criminal clinic decided that, while they couldn't explore the stupidity of the program directly, they could make a preliminary showing that these are discriminatory - that black folks are prosecuted more than others - and get some really good discovery from the government. So they requested the following documents:

  • a complete listing of stash-house cases initiated by the United States Attorney with the involvement of the ATF or the FBI in the Northern District of Illinois from 2006 forward, along with disclosure of the race of each defendant charged in these cases;
  • the factual basis for the decision to initiate or pursue an investigation against the defendants named in the cases identified by the defense;
  • disclosure of any prior criminal contact between the defendants in each case and the agency responsible for investigating the case;
  • internal ATF and FBI manuals, correspondence, and other documents addressing fictitious stashhouse scenarios, including the protocols and directions to agents and informants with respect to such scenarios; and
  • any documents addressing how supervisory personnel are to ensure that individuals in such scenarios are not targeted on the basis of race, color, ancestry, or national origin.

And the district court said yes - the defense gets these documents.

The Government Wants Appellate Review

The government said that it really didn't want to turn over these documents. Instead, it wanted the Seventh Circuit to review the district court's decision.

So they asked the district court to dismiss the case without prejudice so they could appeal.

But a funny thing happened on the way to appellate review in United States v. Davis. The Seventh Circuit held that this trick - getting review by getting a district court to dismiss without prejudice - doesn't make the decision appealable. Because the dismissal is only without prejudice, the government can just re-indict. And because they can just re-indict, the decision isn't a final one. And because it isn't a final one, it can't be reviewed.

Grand Jury Indictments Are A Bother

Perhaps my favorite part of this case is where the government argues that the burden of securing a whole new indictment is so high that a dismissal without prejudice is really quite final for purposes of appeal.

This is really very precious. The government has to go into a grand jury that's probably on a whole different floor from their office and put an agent on for maybe an hour. That walk and hour of testimony is wearying, to say nothing of the .00001% chance that the grand jury will decline to indict.

The Seventh Circuit took no time slapping this down:

it seems safe to say that the likelihood of a grand jury reindicting the defendants is high and the difficulty of presenting the case a second time to the grand jury is minimal, given that the government's own undercover agent was a witness to most of the key events in the charged conspiracy.

The decision is a must read for anyone who is deep in the woods of finality and appealability. The rest of us will, I suspect, just have to wait to learn what was in that discovery that the government wanted to hide.

Or, better, maybe the government will get out of the business of prosecuting fake crime.

September 22, 2014

Short Wins - The "Silence is Golden" Edition

The most interesting case in the last two weeks, I think, is United States v. Shannon. There, the person accused of a crime simply didn't feel like talking to law enforcement - because, really, who would. The government crossed him on his decision not to talk and asked why he didn't come forward with his exculpatory testimony sooner.

The Third Circuit reversed because this violated his Fifth Amendment rights - there's really no point in having a right not to talk if you hold it against a person when she doesn't talk.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Santaigo, First Circuit: Appellant was convicted of failing to register as a sex offender and the terms of his supervised release included a number of special sex offender conditions. One condition, which was not articulated by the judge at the sentencing hearing but only added in the written judgment, must be vacated because it was imposed in Appellant's absence.

Defense Attorneys: Liza L. Rosado-Rodríguez, Héctor E. Guzmán-Silva, and Héctor L. Ramos Vega

2. United States v. Cuti, Second Circuit: After being convicted of making false statements and securities fraud, Appellant was ordered to pay restitution. The court vacated the restitution order and remanded for the trial court to determine what expenses incurred are "necessary" under the Victim and Witness Protection Act. The court held that legal expenses incurred in connection with civil arbitration were not undertaken or pursued in the aid of prosecution and therefore were improperly included in the restitution order.

Defense Attorneys: Brian C. Brook and Matthew J. Peed

3. United States v. Shannon, Third Circuit: Appellant's conviction was vacated because the government cross-examined Appellant during trial about his post-arrest silence. The government violated Appellant's Fifth Amendment rights when it questioned him about failing to come forward earlier with his exculpatory version of the facts.

Defense Attorney: Paul D. Boas

4. United States v. Farah, Sixth Circuit: Appellant's conviction for refusing to testify in the criminal prosecution of thirty gang members was in violation of the double jeopardy clause. The underlying criminal investigation was, in part, for the sex trafficking of minors and Appellant was convicted of both willfully disobeying an order requiring his testimony and of obstructing or attempting to obstruct the child sex trafficking laws. Those convictions require proof of the same elements, requiring the willfully disobeying conviction to be vacated.

Defense Attorney: James Mackler

5. United States v. Brewer, Eighth Circuit: Appellant was convicted of failing to register as a sex offender under the Sex Offender and Registration Notification Act (SORNA). Appellant, who was convicted prior to the enactment of SORNA, challenged the Attorney General's interim rule that made registration requirements to all pre-Act offenders. Because that rule was set without the required period for notice and comment, and without good cause, and that rule prejudiced Appellant, SORNA did not apply to Appellant and his conviction must be vacated.

6. United States v. Thornton, Eighth Circuit: Appellant was sentenced to the 15-year mandatory minimum for being an armed career criminal. That sentence was vacated because two of his prior convictions did not qualify as the three predicate offenses necessary to be considered an armed career criminal. First, the government admitted that a Missouri burglary conviction for which Appellant received a suspended sentence could not be a predicate offense. Second, Appellant's Kansas burglary conviction was under a statute which criminalized both violent and non-violent conduct. It could not be considered a predicate offense because the government did not prove that Appellant was convicted under the subsection criminalizing violent conduct.

7. Castellanos v. Small, Ninth Circuit: Petitioner's application for habeas relief should have been granted where the government exercised four peremptory strikes against Hispanic venirepersons. The Ninth Circuit found that the government's reason for striking one person because she did not have children was pretextual.

Defense Attorneys: Gia Kim and Sean K. Kennedy

8. Gibbs v. LeGrand, Ninth Circuit: The district court improperly dismissed Appellant's petition for habeas corpus. Because Appellant had repeatedly requested updates from his attorney about his state post-conviction proceedings, and counsel had pledged to update Appellant. Counsel, however, did not tell Appellant his stat post-conviction proceedings had ended, causing Appellant to miss the deadline for his federal habeas petition. That misconduct was an extraordinary circumstance requiring an extension of time for filing the habeas petition.

Defense Attorneys: Megan C. Hoffman, Debra A. Bookout, and Ryan Norwood

9. United States v. Dreyer, Ninth Circuit: Appellant's convictions for child pornography were reversed because the trial court should have excluded where a military agent turned over the fruits of his investigation to local law enforcement. The court held that it is improper for a military special agent to investigate conduct by anyone in the state of Washington, not just those connected with the military. Such investigation violates the regulations and policies proscribing direct military enforcement of civilian laws.

Defense Attorney: Erik V. Levin

10. United States v. Meyer, Ninth Circuit: In California, the one-year statute of limitations in which to file a §2254 habeas petition begins to run once 1) the California Supreme Court denies the state habeas petition; and 2) the United States Supreme Court denies certiorari or the 90-day period for filing a petition for certiorari expires. Petitioner here filed his habeas petition within one year of the denial of his state habeas, and it was only at that point that he had exhausted state remedies and the statute of limitations began to run.

Defense Attorney: Charles Marchand Bonneau II

11. United States v. Heineman, Tenth Circuit: Appellant was convicted after a bench trial of one count of sending an interstate threat. That conviction was reversed because the court did not make a finding that Appellant intended the recipient to feel threatened. The Ninth Circuit held that the First Amendment requires the government to prove in any true-threat prosecution that the accused intended the recipient to feel threatened.

Defense Attorneys: Benjamin McMurray and Kathryn Nester

September 15, 2014

Short Wins - the Distribution of Child Pornography Gets (slightly) Limited Edition

Child porn cases are turning out to be a surprisingly large portion of what's in federal court.

Child pornography is gross and wrong, to be clear. But these cases are, I think, a symptom of a larger problem.

All of us have times in our lives when we're in the wilderness, when we feel adrift and alienated and unsure of where we're going or where we are. Some folks in this time of life turn to alcohol, Some turn to drugs, video games, or other ways to keep themselves from facing the great chasm of dissatisfaction that their lives have become. "The mass of men lead lives of quiet desparation" and all that.

Maybe this desperation is more acute in these times, maybe it's an inevitable part of what it is to be human.

In any event, as anyone who has defended someone who has been accused of possession of child pornography knows, unfortunately, some folks come to this dark place in their lives and instead of drinking their time away, they turn to pornography. Often they start on more mainstream stuff, come to be desensitized and look for things that are more and more disturbing. That can lead them to child pornography. Or these folks are just searching for pornography in volume and come to the massive troves of child pornography floating around the internet.

The government is not shy about bringing these cases. Much as folks with drug addictions get punished by our government when they come to harder stuff - even though what they really ought to get is treatment - people who merely possess child pornography are too aggressively pursued for what is often a mental health problem that requires treatment.

Happily, in United States v. Husmann, the Third Circuit took a stand against a particularly gross practice in the prosecution of child pornography laws.

Much child pornography is shared through online file sharing systems. So, you can have child pornography in a folder that you mark to be shared with others on the internet.

The government sometimes takes the position that making stuff available through putting it in a folder that allows sharing is distribution of child pornography. Distribution is a massively more severe crime than possession with a much more severe mandatory minimum. And by threatening a distribution charge where a person only allowed file sharing, the government can coerce plenty of people into taking a plea, or taking a plea under worse terms.

Thankfully, the Third Circuit came out against that practice, holding that just showing the images were available for sharing isn't the same as saying they were distributed.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Groysman, Second Circuit: Appellant was convicted of health care fraud and money laundering. The main government witness gave testimony that included inadmissible hearsay and opinions, and was allowed, without personal knowledge, to provide the foundation for seven government exhibits that were inaccurate and misleading. The admission of misleading exhibits for which the witness had no personal knowledge of the matters conveyed, as well as inappropriate opinion testimony relating to Appellant's role in the scheme, was prejudicial and required the convictions to be vacated and the case remanded for a new trial.

Defense Attorney: Maurice H. Sercarz

2. United States v. Brown, Third Circuit: Appellant's conviction for being a felon in possession of a firearm was vacated and the remanded for a new trial. The district court erred in admitting evidence of Appellant's past firearm purchases. Although the government had a legitimate non-propensity purpose for admitting the evidence--it showed Appellant's knowledge of the firearm in his car--it still violated 404(b) because the government did not proffer a sufficient explanation of why the evidence was relevant. Evidence that Appellant had previous purchased firearms does nothing to establish that he knowingly possessed a gun six years later.

Defense Attorney: Kimberly R. Brunson

3. United States v. Brown, Third Circuit: The district court inappropriately applied a sentencing enhancement after finding that Appellant was a career offender, requiring Appellant's sentence to be vacated. There is a narrow range of cases where a court can look beyond the legal requirements, and instead examine the factual bases for a conviction to determine if it was a crime of violence. But here, exploring the underlying facts was in error because the prior conviction did not require the factfinder to make a determination that there was a crime of violence so the modified categorical approach cannot be used.

Defense Attorney: Thomas W. Patton

4. United States v. Husmann, Third Circuit: Appellant was convicted by a jury of three counts of distributing child pornography after Appellant placed images in a shared computer folder connected to a file sharing network. At trial, the government did not present evidence that any person had downloaded or obtained those images. The mere placement of images into a folder, making those images available to users of the file sharing network, does not constitute distribution. Appellant's conviction was therefore vacated.

Defense Attorneys: Theodore C. Forrence, Jr., Kenneth C. Edelin, Jr.

5. United States v. Foster, Sixth Circuit: Appellant was sentenced to 622 months' imprisonment for two counts of drug possession, two counts of firearm possession, one count of drug distribution, and one count of conspiracy. One of the drug possession charges as well as one firearm possession counts were vacated because they were in violation of the Double Jeopardy Clause. Those two counts duplicate other counts for which Appellant was convicted and sentenced.

Defense Attorney: Frederick Liu

6. United States v. Miller, Sixth Circuit: A jury found Appellants guilty of hate crimes after a string of assaults in Amish communities where the Appellants would cut the hair of members of their Amish community. During trial, the court gave a jury instruction requiring the jury to find that the faith of the victims must be a "significant factor" in motivating the assaults. The convictions must be vacated and Appellants retried because the instruction should have required the jury to find that the faith of the victims was a "but for" cause of the assaults.

Defense Attorneys: Michael E. Rosman, Matthew D. Ridings, Wendi L. Overmyer, Rhonda L. Kotnik, John R. Mithcell, Kip T. Bollin, Holly H. Little, Mark R. Butscha, Jr., David C. Jack, George C. Pappas, Brian M. Pierce, Joseph A. Dubyak, Samuel G. Amendolara, Steven R. Jaeger, Robert E. Duffrin, Rhys . Cartwright-Jones, Damian A. Billak, J. Dean Carro, Wesley A. Dumas, Sr., James S. Gentile, Nathan A. Ray, and Gary H. Levine

7. United States v. Prater, Sixth Circuit: A conviction for third-degree burglary under New York law is not a "violent felony" for purposes of the Armed Career Criminal Act. The district court's determination that these were violent felonies without applying the modified categorical approach was in error. The sentence was vacated and the case remanded.

Defense Attorney: Laura E. Davis

8. United States v. Chapman, Seventh Circuit: Appellant was convicted of drug trafficking by a jury. The district court erroneously admitted details of Appellant's prior drug-trafficking conviction under Rule 404(b). The judge allowed the government to use that evidence to prove knowledge and intent, but the relevance of the evidence depended entirely on a forbidden propensity inference. Appellant's conviction was vacated and remanded for a new trial.

9. United States v. Gonzalez, Seventh Circuit: Appellants were members of the Almighty Latin Kings Nation gang and most pled guilty to various charges, although one went to trial. Appellant Anaya, who was found guilty at trial, must be resentenced because the district court increased a statutory maximum based on facts that were not proven beyond a reasonable doubt. Thus, the sentencing guidelines should have reflected a maximum of 20 years as opposed to 30.

10. United States v. Johnson, Seventh Circuit: At sentencing, the district court did not announce a term of supervised release, but one was incorporated in the court's written amended judgment. The conditions of supervised release which were not orally announced at sentencing were vacated and the case remanded for the district court to clarify conditions of the supervised release.

11. United States v. Fowlkes, Ninth Circuit: The forcible removal of drugs from Appellant's rectum during a body cavity search, without medical training or a warrant, violated Appellant's Fourth Amendment rights. The evidence obtained from that brutal and physically invasive search should have been suppressed. The conviction predicated on the drugs was vacated and the case remanded for resentencing.

Defense Attorney: Thomas P. Sleisenger

12. United States v. Luis, Ninth Circuit: The district court erred in calculating the loss amount after Appellant pled guilty to conspiracy and loan fraud. The district court erred by calculating the restitution amount based on the unpaid principal loan balance rather than the value of the loans when they were purchased.

Defense Attorney: Todd W. Burns

13. United States v. Nora, Ninth Circuit: The district court's denial of a motion to suppress was reversed. Although Appellant's arrest was supported by probable cause, it violated the Fourth Amendment because officers physically took Appellant into custody in his front yard by surrounding his house and ordering him out at gunpoint. All evidence seized in the search incident to arrest should have been suppressed, as should the statements made by Appellant's statements.

Defense Attorney: Michael J. Treman

14. Wharton v. Chappell, Ninth Circuit: The district court's denial of habeas was vacated and remanded for further factual proceedings to determine ineffective assistance of counsel. Appellant's claim that his lawyer was ineffective for failing to investigate and present testimony by Appellant's half-brother that there was sexual abuse ubiquitous in Appellant's family could have merit as the jury may not have rendered a verdict of death. The case was remanded for further proceedings.

Defense Attorneys: Marcia A. Morrissey and Lynne S. Coffin

August 27, 2014

Short Wins - The Late August Edition

It's been an interesting few weeks in the circuits (and, apologies for the gap in posting - pesky family vacations).

Probably my favorite is United States v. Mergen, about whether an FBI agent's statements that what the guy charged with a crime was doing were ok and legal were admissible. I tend to think FBI stings that take advantage of how weak the entrapment defense is are one of the more loathsome things our federal government does - any time you can poke holes in that I think it's a good thing.

Also of note is United States v. Bagdy - there, a guy who spent an inheritance on stuff that wasn't restitution, instead of restitution, didn't violate his supervised release conditions. Supervised release can be insane - especially when restitution is in play. Nice work for the Third Circuit in dialing it back.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Martinez, First Circuit: Appellant pled guilty to one count of being a felon in possession of a firearm and was sentenced to 70 months' imprisonment. That sentence was vacated because the district court erred in applying a six-level sentencing enhancement for having previously committed a crime of violence. The First Circuit held that a conviction for assault and battery in Massachusetts is categorically not necessarily a crime of violence because it does not require proof of intent.

Defense Attorney: William W. Fick

2. United States v. Ramos, First Circuit: Appellant was convicted of various child pornography charges, and as part of his supervised release, was forbidden from using a computer or the internet without permission and also was forbidden from having pornographic material. Those conditions were vacated because they are not reasonably related to Appellant's characteristics and history and thus deprive him of more liberty than is reasonably necessary to achieve the goals of sentencing.

Defense Attorney: Steven A. Feldman

3. United States v. Mergen, Second Circuit: Appellant's conviction under the Travel Act was vacated because the district court erred by excluding as hearsay a recording in which the FBI agent assured Appellant that he had done nothing wrong. The statements should not be excluded as hearsay where prior inconsistent statements are offered for impeachment, and the fact that some portions of the recording were inaudible was not a proper basis for exclusion under the authentication rule.

Defense Attorneys: Andrew J. Frisch and Jeremy B. Sporn

4. United States v. Bagdy, Third Circuit: The district court cannot revoke supervised release based on Appellant's purposeful dissipation of an inheritance he received instead of using the money to pay restitution he owed. While that conduct is reprehensible, it did not violate a specific condition of Appellant's supervised release. The judgment was vacated and the case remanded.

Defense Attorney: Candace Cain

5. United States v. Mark, Third Circuit: After being convicted of conspiracy to possess with intent to distribute a controlled substance, Appellant was sentenced to 210 months' imprisonment. The court remanded for resentencing because the Court did not provide a basis for its findings on the amount of drugs attributable to Appellant and Appellant had disputed the amount as indicated in the PSR. The court's conclusory statements were insufficient since the amount to attribute was in dispute.

Defense Attorney: Pamela L. Colon

6. United States v. McLaurin, Fourth Circuit: Appellant's sentence was vacated because his criminal history calculation included two common law robbery convictions when Appellant was 16. Because this miscalculation was plain error, the case was remanded for resentencing with a lower sentencing range.

Defense Attorneys: Joshua B. Carpenter, Lawrence W. Hewitt, and Henderson Hill

7. United States v. Juarez-Velasquez, Fifth Circuit: Appellant's probation revocation was reversed and vacated because his supervised release expired prior to the date the Probation Office petitioned the court for revocation, depriving the court of jurisdiction. Tolling a term of supervised release is appropriate only when Appellant was imprisoned in connection to a criminal conviction, and Appellant's imprisonment was only while he was awaiting trial for charges for which he was acquitted.

8. United States v. Hackett, Sixth Circuit: Appellant was convicted by a jury of various gang-related, weapons, and drug offenses as well as a RICO conspiracy charge and was sentenced to 440 months' imprisonment. The mandatory-minimum sentence on a firearms count was imposed in violation of Alleyne--because the indictment did not allege that Appellant discharged the weapon--and therefore Appellant's sentence was vacated and remanded for resentencing.

Defense Attorney: David L. Doughten

9. United States v. Noble, Sixth Circuit: During their trial for various drug trafficking charges, Appellants moved to suppress evidence obtained from a frisk during a traffic stop. The decision to perform the frisk was based solely on: 1) a passenger acting extremely nervous; 2) the DEA task force told the officer that the vehicle was suspected to be involved in drug trafficking; and 3) the idea that subjects involved in drug trafficking often carry a weapon to protect themselves. That was not enough to amount to a reasonable suspicion so the convictions were vacated and the case remanded.

Defense Attorneys: Frederick J. Anderson, Charles P. Gore, and Katherine A. Crytzer

10. United States v. Tomlinson, Sixth Circuit: Appellant was convicted by a jury for being a felon in possession of a firearm. Appellant timely raised his Batson challenge before the jury was sworn and the trial commenced, so the case was remanded for a Batson hearing. The Sixth Circuit held that a Batson challenge does not have to happen contemporaneously for each stricken juror.

Defense Attorney: Valentine C. Darker

11. United States v. Toviave, Sixth Circuit: Appellant was convicted of forced labor for requiring his young relatives to cook, clean, and do household chores. The Court found that Appellant's behavior was reprehensible, but did not amount to forced labor. Requiring a child to do chores cannot possibly amount to forced labor, and physically punishing children for failing to perform those chores does not change the nature of the work from chores into forced labor. His conviction was therefore vacated.

Defense Attorney: Christopher Keleher

12. Socha v. Boughton, Seventh Circuit: The district court abused its discretion when it rejected Petitioner's equitable tolling argument when requesting habeas relief. Although he failed to file his petition within the given time limits, equity required that the deadline be forgiven. Petitioner faced many difficulties in filing his petition, none of which were his fault, including his inability to obtain his case file for almost a year from the public defender despite numerous requests.

13. United States v. Adame-Hernandez, Seventh Circuit: The district court withdrew Appellant's guilty plea over his objection. This violated the procedures of Rule 11 which allows a district court to reject a plea agreement and then allow Appellant to either stand by the plea or withdraw it. It was an abuse of discretion for the court to make that choice for Appellant. The court also erred in believing Appellant had breached the plea agreement.

14.United States v. Domnenko, Seventh Circuit: A 14-point sentencing enhancement was not sufficiently explained or supported and therefore required remand. Appellants were convicted of fraud, but a conviction for their involvement does not necessarily mean that all economic damages were reasonably foreseeable.

15. United States v. Jones, Seventh Circuit: The sentences for three Appellants were vacated and remanded for resentencing. Jones' request to be sentenced under the Fair Sentencing Act was erroneously denied. Mockabee was sentenced under a more recent version of the sentencing guidelines which resulted in a higher guidelines range than the previous version. Drake's sentence was also vacated and remanded for resentencing because the jury failed to make specific findings regarding drug quantities which increased the mandatory minimum. All three must be resentenced.

16. United States v. Moore, Seventh Circuit: A jury convicted Appellant of using or carrying a firearm during and in relation to a crime of violence but was unable to reach a verdict on the predicate violent crime itself. The conviction was vacated because the trial court solicited a partial verdict form the jury before the jurors indicated that no further deliberations would be useful. Because this could have resulted in a premature verdict, the conviction must be vacated.

17. United States v. Walton, Seventh Circuit: The trial court's denial of Appellant's motion to suppress was in error. Appellant had Fourth Amendment standing despite the fact that he was a parolee because parolees do not receive fewer constitutional protections based on their status. Further, the person who is listed on a rental agreement for a rental car does possess an expectation of privacy that enables him to challenge a search under the Fourth Amendment. Thus, the denial of the suppression motion was reversed and remanded for further proceedings.

18. United States v. Zheng, Seventh Circuit: After pleading guilty to aggravated identity theft and conspiracy to misuse Social Security numbers and commit passport fraud, Appellant was sentenced to 61 months in prison. A two-level sentencing enhancement for fraudulent use of a foreign passport was applied. The case was remanded for resentencing because the application of the enhancement would double-count conduct that was already considered in the aggravated identity theft conviction and therefore was improper.

19. Franco v. United States, Eighth Circuit: After pleading guilty to conspiracy to distribute methamphetamine, Appellant was sentenced to 120 months' imprisonment. Appellant filed a habeas petition arguing that his sentence should be vacated because his attorney failed to file a requested notice of appeal. The district court erred by denying the habeas petition without an evidentiary hearing to determine whether Appellant had asked his attorney to file an appeal. The denial of the petition was reversed and remanded.

20. Colwell v. Bannister, Ninth Circuit: The district court's grant of summary judgment was reversed in a §1983 claim. The Nevada Department of Corrections' categorical denial of Petitioner's request to have cataract surgery amounted to deliberate indifference when it was based on an administrative policy that one eye was good enough for prison inmates. The case was remanded for trial.

Defense Attorneys: Mason Boling, Lauren Murphy, Dustin E. Buehler, Michelle King, Joy Nissen, and Gregory C. Sisk

21. Hernandez v. Spearman, Ninth Circuit: The district court erred in failing to apply the prison mailbox rule when dismissing Petitioner's habeas corpus petition as untimely. The mailbox rule applies when a pro se habeas petitioner gives his petition to a third party to mail from within the prison.

Defense Attorney: Tony Faryar Farmani

22. Nordstrom v. Ryan, Ninth Circuit: Petitioner's allegations that prison officials violated his constitutional rights when they read a confidential letter to his lawyer should not have been dismissed for failure to state a claim. Petitioner stated a Sixth Amendment claim by alleging that officials read his legal mail, claimed entitlement to do so, and his right to private consultation with counsel had been chilled. Those allegations also supported Petitioner's claim for injunctive relief. The district court's dismissal was reversed.

Defense Attorneys: Michelle King, Joy Nissen, Gregory C. Sisk, Mason Boling, Lauren E. Murphy, and Dustin E. Buehler.

23. United States v. JDT, Juvenile Male, Ninth Circuit: The adjudications of delinquency for six counts of aggravated sexual abuse were vacated and remanded for reconsideration. The district court abused its discretion in denying Appellant's requests to suspend his status as a juvenile delinquent because the court did not weigh the factors bearing on suspension.

Defense Attorney: Keith J. Hilzendeger

24. United States v. Mageno, Ninth Circuit: Appellant's conviction for conspiracy to distribute methamphetamine was reversed because the prosecutors made several factual misstatements in closing arguments which encouraged the jury to convict Appellant based on evidence not presented at trial. The Ninth Circuit determined that there was a reasonable probability that the misstatements affected the outcome of Appellant's trial.

Defense Attorney: Mace J. Yampolsky

25. United States v. Hale, Tenth Circuit: Appellant was convicted of making a materially false statement under oath in a bankruptcy case. That conviction cannot stand where the questions giving rise to the allegation were ambiguous and the answers provided by Appellant may have been valid under one interpretation of the questions asked. That conviction was reversed.

Defense Attorney: Joseph Alexander Little, IV

26. United States v. Roy, Eleventh Circuit: Appellant's conviction for possession of child pornography was vacated and the case remanded for a new trial because the trial court allowed the government to elicit testimony and evidence even though defense counsel was not in the courtroom. This was a violation to Appellant's 6th Amendment right to counsel because the government was allowed to examine its computer forensics expert witness and admit inculpatory evidence (pictures) even though defense counsel was not in the courtroom.

August 1, 2014

Short Wins - the Entrapment Edition

It is rare and wonderful to see an entrapment opinion. And United States v. Kopstein fits the bill.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Kopstein, Second Circuit: Appellant was convicted by a jury of transporting and shipping child pornography. During trial, Appellant's sole defense was entrapment. The conviction was vacated and the case remanded because the jury instruction on entrapment failed to consistently and adequately guide the jury. Here, a jury instruction on the lesser-included offense of possession would allow the jury to return a verdict of guilty on the transporting and shipping charge, even if the jury found Appellant not guilty of possession. This was confusing because it would allow the jury to render a verdict of guilty on the greater offense even if the prosecution had failed to prove a necessary part of its case (the lesser offense).

Defense Attorney: Norman Trabulus

2. United States v. Caldwell, Third Circuit: Appellant's conviction of being a felon in possession of a firearm was vacated because the district court improperly admitted evidence of Appellant's prior convictions for unlawful firearm possession. Because the government's theory of the case was only for actual possession, and therefore knowledge was not at issue, knowledge was not a proper reason to admit the prior prejudicial convictions under Rule 404(b).

3. United States v. Mohamed, Seventh Circuit: A jury convicted Appellant of one count of knowingly transporting and possessing contraband cigarettes. The Seventh Circuit interpreted Indian's cigarette tax law as not applying to cigarettes merely possessed in Indiana. Since cigarettes simply passing through the state in interstate commerce do not have to bear Indiana tax stamps, the government failed to bear its burden to prove sale, use, consumption, handling, or distribution within Indiana and Appellant's motion for judgment of acquittal should have been granted.

4. United States v. Daniels, Ninth Circuit: The Ninth Circuit vacated Appellant's sentence and remanded for resentencing after his supervised release was revoked. It was plain error for the district court not to offer Appellant an opportunity to speak before it imposed a post-revocation sentence.

Defense Attorneys: K. Elizabeth Dahlstrom, Sean K. Kennedy, Brianna Fuller Mircheff

July 29, 2014

Lying Isn't Always Fraud - the Sixth Circuit Sends A Case Back Because Buying Drugs From a Drug Distributor Is What The Drug Distributor Wants

Lester and Nancy Sadler, a husband and wife, ran a series of pain management clinics in Ohio.

As the Sixth Circuit explained, "these were not conventional plain clinics." For example, at one clinic

patients would arrive well before it opened, filling the clinic's parking lot and the lots of nearby businesses. While waiting for the clinic to open, the patients used drugs and traded prescription forms for cash in the parking lots. The patients often traveled long distances (and in large groups) to come to the Sadlers' shops, sometimes as much as 316 miles in a roundtrip, even though most of the patients lived much closer to other clinics.

pills-out-of-bottle-1394618-m.jpgIt's impressive to have a client base that loyal. Many businesses would do a lot to be known as the company that folks would travel many miles to visit.

How did the pain management clinics distinguish themselves? Perhaps it was their service. Here's how the Sixth Circuit described what happened when patients got inside the clinic:

After paying their $150 appointment fee (cash only), they met an "assessor" who would review the patients' healthfacts "day sheet" and hand the patients an already completed prescription form. Clinic staff sometimes filled out these day sheets and prescription forms weeks in advance, pulling the content from the patients' last day sheet and prescription and altering them slightly to make sure they didn't look the same. Patients then stepped into an office, where they met the doctor for a minute or two. After that, they left the clinic (some "almost skipping," reported one witness) with a signed prescription for a fresh supply of hydrocodone, oxycodone or other pain medications in hand. As many as 100 people per day completed this "five minute[]" process of assessment and prescription

With customers leaving your office "almost skipping" you can see why people would drive from miles around. What business wouldn't want such a reaction?

Though, as it happens, the Sadler's clinics may have gone too far in their quest for client service. You know you've crossed a line when you start making up clients to help. That's not good customer service; that's hubris.

The clinics also treated phantom patients. Each month, Nancy would announce to the clinic staff that "it was time to do the charts," meaning it was time to update the medical treatment files for a long list of people who had never set foot in the clinics. R. 326 at 35. The Sadlers used the names of family members for these charts. Lester's dad had a chart, as did two of the Sadlers' children, Kyle and Levi, though none of them ever needed the clinics' services. Staff members would then write prescriptions for these non-existent patients, the doctor would sign the prescriptions, and clinic staff would fill the prescriptions at a local pharmacy. The pain pills found their way to David Michael Journey, a relative of the Sadlers and an occasional clinic employee, who sold the pills on the street at a significant profit.

Doubtless Mr. Journey's clients were also happy with his service, but at that point the business does seem to be shifting from its retail base into wholesaling. It's a too common journey - a company gets good at one thing, then wants to expand into something it has no business doing - like when J. Peterman opened stores. (Because, of course, the whole point of J. Peterman was the catalog? If you see they're stuff in a store you know its just overpriced cloth)

At some point, unfortunately, the DEA began to think that the Sadler's pain clinics were not completely in compliance with all applicable regulations. And, to make things worse, some of those regulations were found in Title 18 of the United States Code.

The Sadlers were charged with a number of controlled substances offenses. And Nancy Sadler was charged with wire fraud and money laundering.

After a trial, the jury found them both guilty of most of the controlled substances charges and found Nancy Sadler guilty of wire fraud and money laundering.

Lester was sentenced to 151 months, and Nancy was sentenced to 210 months.

Though, on appeal, the Sixth Circuit, in United States v. Sadler, reversed Nancy's conviction on the wire fraud count. It's a cool issue - here's what happened.

First, to prove wire fraud, the government has to prove that Nancy "knowingly used an interstate wire communication to further a scheme to defraud [someone] of their money or property."

The government argued that the "someone" here are the drug companies that distrubute the drugs that Nancy, in turn, distributed. There's no question that Nancy lied to the drug companies - the only interesting issue is whether she deprived them of property.

The government says she did - after all, the don't have the pills anymore. The Sixth Circuit smacks it down. Here's how:

The government's opening bid offers this answer: Nancy deprived the distributors of their pills. Well, yes, in one sense: The pills were gone after the transaction. But paying the going rate for a product does not square with the conventional understanding of "deprive." Cleveland, 531 U.S. at 19; Webster's Third New International Dictionary 606 (2002). Stealing the pills would be one thing; paying full price for them is another. Case law reinforces that the conventional meaning of "deprive" applies in the fraud context. To be guilty of fraud, an offender's "purpose must be to injure," Horman v. United States, 116 F. 350, 352 (6th Cir. 1902), a common-law root of the federal fraud statutes, see Neder v. United States, 527 U.S. 1, 21-25 (1999); Restatement (Second) of Torts § 531 ("One who makes a fraudulent misrepresentation is subject to liability . . . for pecuniary losses suffered."). Nancy may have had many unflattering motives in mind in buying the pills, but unfairly depriving the distributors of their property was not one of them. As to the wire-fraud count, she ordered pills and paid the distributors' asking price, nothing more.

Lying isn't always fraud.