October 2011 Archives

October 25, 2011

The Sixth Circuit Reverses On A Terry Stop: or, Even Appellate Judges Feel Bad For People Who Are So Scared They're Shaking

We may be seeing a revolution in the way Terry stops are reviewed by the courts of appeals.

The Fourth Circuit, long a bastion of conservative unpublished opinions, has recently published a series of opinions affirming a robust right under the Fourth Amendment to be free from suspicionless Terry stops. (see coverage here, for example).

independence_hall_philadelphia_pa_.jpgNow the Sixth Circuit has joined the action in United States v. Beauchamp.

Mr. Beauchamp

Mr. Beauchamp was walking down the street, minding his own business, at 2:30 a.m. in a neighborhood where the police had received a "ton" of complaints about drug dealing.

A police officer saw him and approached. Mr. Beauchamp walked away without making eye contact. The officer radioed to another officer about Mr. Beauchamp, saying that Mr. Beauchamp looked suspicious. At a hearing later, the officer didn't explain why Mr. Beauchamp looked suspicious.

The second officer saw Mr. Beauchamp. He drove up next to him and parked his car very close to where Mr. Beauchamp was walking. Mr. Beauchamp walked around a wrought iron fence away from the officer.

The officer got out of his car wearing his uniform. He told Mr. Beauchamp to stop. Mr. Beauchamp stopped. He told Mr. Beauchamp to walk back to him. Mr. Beauchamp did.

Mr. Beauchamp was shaking. The officer said that he looked "wide-eyed" and "scared." After some inconclusive questioning, the officer searched him for weapons. He didn't find any. He asked Mr. Beauchamp if he could search him. Mr. Beauchamp, still visibly terrified, said yes.

Eighteen rocks of crack cocaine were found in a plastic bag in between Mr. Beauchamp's "butt cheeks."

Mr. Beauchamp Goes To Court

Mr. Beauchamp was charged with possession with intent to distribute. He filed a motion to suppress the search. The motion was denied. He entered a conditional guilty plea - it allowed him to appeal his suppression issue and otherwise plead guilty - and the Sixth Circuit reversed.

When Is Mr. Beauchamp Seized?

The appeals court held that Mr. Beauchamp was seized the minute the officer told him to stop. It held,

A reasonable person in Beauchamp's position would not have felt free to leave when, after walking away from the police two times, an officer targeted Beauchamp by driving up to him, instructed him to stop, and then instructed him to turn around and walk toward the officer.

The court noted that,

Just as officers are afforded the benefit of information or directions received from other officers when we consider whether the detaining officer had reasonable suspicion, an individual's prior encounters with other officers should be taken into consideration when determining whether an encounter was coercive or consensual.

Was The Seizure Justified?

The court of appeals then determined that the police did not have a reasonable articulable suspicion for stopping Mr. Beauchamp. It held that,

Nothing about the conduct at issue in this case suffices to transform a permissible walk away from a police officer into a suspicious act. Beauchamp also did not make eye contact with the officer. But what if he had and then looked away? His behavior may then have been described as "furtive" or "evasive." The ambiguity of Beauchamp's conduct may be susceptible to many different interpretations, but that does not render it suspicious.

I'm not sure when a few appellate opinions turns into a trend, but it feels like this is coming close.

Judges Talk About Central Park

As a closing note, there's a lovely fight between the dissent and the majority opinion about the facts in the case. The dissent accuses the majority opinion of "appellate factfinding" and includes this burn:

Appellate factfinding is a rare and exotic animal, and often seems out of place too. Its appearance warrants explanation in the manner that, say, a rhinoceros in Central Park does. But there is no explanation for the majority's factfinding here.

Not to be outdone, the majority drops a footnote, and some knowledge of Central Park, back on the dissent:

The dissent mischaracterizes our analysis of whether Beauchamp's compliance with the officer's "asking" actually constituted a consensual exchange, noting: "Appellate factfinding is a rare and exotic animal, and often seems out of place too. Its appearance warrants explanation in the manner that, say, a rhinoceros in Central Park does." Dissent at 20. But there was no appellate factfinding here, only fidelity to the de novo standard of review. And it is noteworthy that our de novo analysis need no more explanation than the appearance of the dissent's rhinoceros in Central Park, since there is a zoo in Central Park and if one went to the Central Park Zoo one could expect to see a rhino. So too, when the court conducts a de novo review, it literally looks at the totality of the circumstances "anew."


Though I always wondered why they don't take this kind of exchange out of the majority and dissenting opinions.

October 24, 2011

It Is Not Good To Commit New Crimes While On Pretrial Release

Congress is odd. In 1984 it made a law so urgent that some of its language was only just now interpreted.

As a starting point, Congress thinks (or, more accurately, thought) that it's really bad to commit a crime while on pretrial release for another crime. So it passed 18 U.S.C. § 3147.

Here's what section 3147 says:

A person convicted of an offense committed while released under this chapter shall be sentenced, in addition to the sentence prescribed for the offense, to--

(1) a term of imprisonment of not more than ten years if the offense is a felony; or

(2) a term of imprisonment of not more than one year if the offense is a misdemeanor.

A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.

As I read that, it isn't clear - to me at least - whether section 3147 is a new crime that someone commits when they commit some other crime while on pretrial release* or whether it just enhances the penalty for the crime that was committed.

Capital Building.jpgThough, admittedly, the title of section is "Penalty for an offense committed while on release" which is kind of a big hint.

How to read section 3147 was at issue in the Third Circuit's recent opinion in United States v. Melvin Lewis.

Mr. Lewis was on pretrial release, when he came to be charged with carjacking, possession of a firearm by a convicted felon, and a violation of section 3147. The indictment listed three counts, and a violation of section 3147 was one of the counts.

Mr. Lewis went to trial. He was acquitted of the carjacking offense, but convicted of the felon-in-possession charge. He was also found guilty by the jury of the charge under section 3147.

His guidelines range put him above the statutory maximum for the felon in possession charge. So, the question was, does Mr. Lewis's statutory maximum increase under section 3147(1), or does Mr. Lewis's felon in possession conviction top out at the statutory maximum of 10 years, then he gets whatever he gets for the violation of 3147.

The Third Circuit held that section 3147 is a sentencing enhancement, not a separate crime. It increases the statutory maximum by the amount set out in the section. So, for Mr. Lewis, it increases his statutory maximum to 20 years, instead of the 10 he should have faced on the felon-in-possession offense.

But, because Mr. Lewis was "convicted" of violation 3147, his case was remanded, so that the district court could remove the $100 special assessment - a way of collecting court costs that is levied on every conviction - for Mr. Lewis's conviction for a section 3147 violation.

* Crimes that depend on other crimes being committed may sound odd, but they exist in federal law. There's 18 U.S.C. § 924(c) that makes it a felony with a five-year mandatory minimum for possessing a gun in connection with drug dealing or a violent crime. There's also 18 U.S.C. § 1028A that creates a charge with a two-year mandatory minimum for having anyone's identity information - like a social security number - in connection with any other federal felony. For both a 924(c) and a 1028A, the mandatory minimum sentence is consecutive to the sentence on the underlying crime. These things are vicious.

October 21, 2011

What's Fair For the Goose Is Maybe Not The Same For the Gander; Immunity Orders And The Ninth Circuit

It's good to be king.

The government, in a criminal investigation, can issue a grand jury subpoena to collect evidence and put witnesses under oath. It can execute search warrants to go into a home or business and take documents. It can cut deals with people it thinks are involved in a criminal enterprise, so that they'll spend less time - or no time - in prison if they turn in someone else.

Someone fending off a government investigated can't do any of this.

King.jpgNormally, if a person has information that would make someone who hears it think the person is guilty of a crime, that person has a right to refuse to talk about it. It's a part of the Fifth Amendment. The government has a fix for that problem too - if a witness won't talk, and won't play ball by cooperating, the government can ask a court to grant the person immunity. The statute that lets a court grant immunity is at 18 U.S.C. § 6003.

If a court grants a person immunity, that person cannot be prosecuted based on the information he provides. That's in 18 U.S.C. § 6002. There's an exception if the person lies or does something similar when immunized, but, beyond that, a person with immunity cannot be prosecuted for what they talk about.

Getting immunity can be a very good deal.

What about defense witnesses though? Surely, there are times when a person who is accused of a crime identifies a witness who he needs for his defense, yet the witness may get himself charged with a crime if he provides information.

For example, imagine that a witness knows a person accused of a crime didn't commit it, because the witness and the accused were across town counterfeiting money together at the time of the alleged crime. The witness refuses to testify and invokes his Fifth Amendment right not to - he doesn't want the government to put him in prison for the counterfeiting.

Can the defense ask the court to give immunity to the witness?* If so, when?

That was exactly the situation that the district court dealt with in United States v. Wilkes. The Ninth Circuit issued an opinion on this very question.

Mr. Wilkes was accused of bribing Congressman Duke Cunningham.** The government alleged that Mr. Wilkes made inappropriate gifts to the Congressman - including a trip to Hawaii where they enjoyed the beach, scuba diving, and prostitutes.

In exchange, Mr. Wilkes' company was alleged to have sold inferior products to the United States government.

A number of people testified against Mr. Wilkes. They worked for his company and the government had asked the district court to grant them immunity. The district court did. They testified against Wilkes.

One of Mr. Wilkes other employees would have told a different story. The district court listened to what Mr. Wilkes lawyer said the witness would say. The court concluded,

I have to tell you the proffer I have as to what this fellow can offer strikes me as material and relevant evidence that the defense would want to present to counter some of what's been presented by the United States through immunized witnesses.

So, naturally, the trial court ruled that

The court, having fully heard all counsel, denies the motion to convey use immunity.

The district court believed that it could only grant immunity if the prosecutors had intentionally engaged in misconduct. As the court saw things,

unless it's somehow tethered to the suggestion of prosecutorial misconduct, I don't think it's appropriate for the court to make determinations of who gets immunity and who doesn't. In the first instance, under our system of Government, that's a prosecutorial decision. And unless I can find that the way in which discretion was exercised was unfair so as to deny the defendant a due process right, then it's not appropriate for me to substitute my judgment for that of the prosecutor. I do have a concern about the effect of not granting immunity in this case, but I would have the same concern if it was a different privilege implicated over which I'd have no authority to pierce the privilege and order a witness to testify, any number of other privileges. So it's an effect that the criminal justice system lives with and accommodates.

One can imagine that the court's regret about this "effect" was not very comforting to Mr. Wilkes.

Happily, after Mr. Wilkes trial, the Ninth Circuit decided United States v. Straub. (click for Ninth Circuit blog commentary)

Straub held that a district court should order immunity when the testimony would be relevant and the prosecutor gave immunity to one witness, but not to another who would have contradicted the one the prosecutor choose, and that choice by the prosecutor

the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial

(Keep in mind, friends who aren't from the left coast, the rule in your part of the country may be different.)

Based on this standard, the court of appeals remanded for a hearing on whether the district court should have immunized the witness under Straub. The appellate court did note, though, that "[t]he district court also repeatedly expressed its concern that not granting Williams immunity would have the effect of distorting the fact-finding process." So perhaps the court of appeals thought it knew how this would turn out.

The rest of the opinion in Wilkes is a bit bleak. I wouldn't read it unless you're a prosecutor or looking to be saddened.

* This is assuming the defense is willing to swallow a conviction on the counterfeiting. There's probably a better hypothetical out there.
** The opinion says that the total list of charges were "one count of conspiracy
(18 U.S.C. § 371), ten counts of honest services wire fraud (18 U.S.C. §§ 1343 and 1346), one count of bribery of a public official (18 U.S.C. § 201), and one count of money laundering (18 U.S.C. § 1956(a)(1)(B)(i))."

October 20, 2011

The Seventh Circuit, Plain Error, And Fines That Shouldn't Be Imposed

Preserving an issue for appeal in the middle of trial can be tricky.

The lawyer who represents a person in the trial court normally has to preserve an issue for it to be heard by the court of appeals. If the lawyer doesn't object when something improper happens, the appellate court is not going to be as eager to do something about it.

Federal Courtroom.jpgYet the trial court lawyer is worrying about so many things that preservation of an appellate issue isn't always the right thing to worry about. It's much better, for example, to have a strong shot at a not guilty verdict than to have an issue that you may be able to win on appeal. And, in trial, there are so many balls to watch, that it may be rational for a lawyer to take his eye off of one of them for a moment. Which can make for a harder appeal.

To make things worse, a trial lawyer doesn't have the same access to the law that a appellate lawyer, or court of appeals judge, has. It's one thing to know the law after hours of research. It's another to have to know it when an issue that you weren't anticipating comes up.

So one can empathize with the lawyer who represented Calvin Brown. His case was recently decided by the Seventh Circuit in United States v. Brown.

Mr. Brown had pled guilty. He and his lawyer were sitting at counsel table* after having made their arguments about what the sentence should be. The district judge was announcing his sentence. He told Mr. Brown how much time he was going to spend in prison.

Then the judge told Mr. Brown that there was a mandatory minimum fine of $300 in his case for each count. Because he pled guilty to four counts, the sentencing court imposed a fine of $1200.

The problem, though, is that there is no mandatory minimum fine that applied to Mr. Brown's case. The sentencing judge was just flat-out wrong.

Mr. Brown's lawyer didn't object. Because he didn't object, the Seventh Circuit said that it reviewed his appeal on a plain error standard.

As an aside, plain error is a harder standard to meet. If a person in an appeal is complaining about what happened in the trial court, they would like the court of appeals to review the decision de novo. De novo review means the court of appeals thinks about the issue on it's own, without reference to how the district court approached it.

Plain error, on the other hand, means that the person who is appealing has to convince the court of appeals that the district court was clearly wrong - it wasn't a close call. If there's a tie in the law, the tie goes against a person who is bringing the appeal.

As the Seventh Circuit explained it, a district court has plainly erred if,

Under plain error review, we must determine "(1) that error occurred; (2) that the error was plain; and (3) that the error affected the defendant's substantial rights."

Mr. Brown argued that the sentencing court was imposing its ruling - he didn't have an opportunity to object.**

The Seventh Circuit would hear none of it. The court of appeals reviewed under plain error.

Happily, though, the appellate court found that making up a mandatory minimum fine that doesn't exist is plain error.

As a result, Mr. Brown's case will be remanded for reconsideration of the fine that the court imposed in this case. Now all he has to worry about is the 292 month sentence he has to serve.

* Presumably. This detail isn't in the opinion, which is to say that I'm making it up.
** It isn't clear from the opinion whether the fine issue came up in the hearing or only in the judgment that issued later. I think it would be odd to have it only in the judgment, and, likely, that would present other problems (that the judgment that the court signs and the announcement of the sentence shouldn't vary too much), but, in any event, Mr. Brown did not object to either.

October 19, 2011

The Ninth Circuit On When The Guidelines Fail Us

Much in the same way that phrenology was an effort to catalog every mental deficit that humans can possess, the federal sentencing guidelines are an effort to catalog precisely how bad every kind of federal crime that can be committed is.

The comprehensiveness of the sentencing guidelines can be stunning. Section 2N3.1 sets out how bad odometer law violations are (not all that bad). Section 2T3.1 deals with customs taxes (as opposed to tobacco taxes in 2T2.1). Offenses involving fish, wildlife and plants are discussed, in detail, in section 2Q2.1. Willful violations of the Migrant and Seasonal Agricultural Worker Protection Act have their own section, 2H4.2.

You get the idea.

This makes the Ninth Circuit's opinion in United States v. McEnry kind of an anomaly.

Mr. McEnry flew a plane without a license. This is a federal crime, prohibited by 49 U.S.C. § 46306(b)(7).

There is no guidelines section that deals directly with how bad it is to fly a plane without a license. (As a reflection on society, this is probably a good thing.)

Here are the basic facts, from the opinion:

On January 5, 2009, McEnry landed a Cessna 210F aircraft at the Eastern Sierra Regional Airport in Bishop, California. The circumstances of his landing were unusual: he did not communicate with the airport by radio during his approach and landing, and he touched down significantly farther along the runway than would be the case on a normal landing. When the plane did land, it overran the runway. McEnry's behavior on getting out of the plane was also unusual. He tied the plane down at its two wings, but neglected to tie down the tail, as one would normally do. He did not walk purposefully toward the terminal, but wandered about before approaching it. On arriving at the terminal, he asked where he was and claimed that he had flown through military airspace, during which time military aircraft flew alongside him and fired flares. Someone at the airport called the police, reporting that McEnry might have been under the influence while flying.

The things that were not relevant to this opinion, but were noted any way, are many. For example,

The cause of McEnry's erratic behavior is disputed. The district court ultimately ruled that, regardless of the cause, McEnry was in a condition in which he should not have been flying, and neither party contends that the issue has any bearing on the selection of the guideline under which McEnry should have been sentenced.


There is some evidence that, subsequent to his arrest in this case, McEnry made false statements in his application for a pilot's license. As with the cause of McEnry's behavior, this evidence has no bearing on the question before the panel.


At sentencing, the government presented a variety of evidence suggesting that McEnry was involved in drug trafficking. Neither party argues that this evidence was relevant to the determination of the correct guideline. The district court determined that the drug trafficking-related evidence is "not any evidence" which "simply doesn't approach preponderance, doesn't even approach the sufficiency to draw an inference," and concluded that it "d[id]n't find any basis in fact or law to enhance the sentence based on the evidence that's been received." The government does not contest this finding. Accordingly, this evidence is not relevant to McEnry's appeal.

In any event, the district court sentenced Mr. McEnry as though he had interfered with a flight crew in a commercial flight, thinking that this was the closest thing to the harms that Mr. McEnry caused in this case. The district court applied § 2A5.2(a)(2)(A).

Mr. McEnry, on the other hand, argued that this was closer to a fraud offense (something like by flying he was representing that he was licensed to fly when he was not - a performative utterance, or something along those lines), and that § 2B1.1 should be the relevant guideline.

The district court sentenced Mr. McEnry to 21 months in prison based on the interfering with a flight crew guideline.*

The Ninth Circuit reversed. The court of appeals held that in those rare cases where there's no applicable sentencing guideline, a district court should apply the guideline closest to the elements of the offense. That's not what the appellate court concluded the district court did,

In concluding that § 2A5.2 was the appropriate guideline to apply to McEnry's offense, the district court remarked that § 2A5.2 "isn't directly applicable for the offense, which is operating without the airman's certificate." Explaining its choice, it noted that § 2A5.2 "does, if you will, raise or track some of the kinds of risks that are raised." Thus, the district court based its choice not on the elements of the offense or the facts alleged in the indictment, but on the defendant's particular relevant conduct and the risk it created.

The Ninth Circuit determined that Mr. McEnry's offense is really closest to a fraud crime, and his case was sent back for resentencing.

* This makes me think that it isn't entirely credible that the sentencing court ignored all the facts that it was supposed to.

October 18, 2011

The First Circuit, Federalism, and the Department of Justice's Distaste For Rejection

The rumble in Rhode Island is over - Rhode Island won.

As frequent readers of this blog - and fans of the Interstate Agreement on Detainers - will recall, a fight broke out between Rhode Island and the United States Department of Justice over a man named Jason Wayne Pleau.

Rhode Island.jpgMr. Pleau appears to have killed a man in the course of a bank robbery. The bank was federally insured (like just about every other bank in the country). The United States Attorney's Office in Rhode Island decided to bring a case against Mr. Pleau based on the charges.

In the state system, Mr. Pleau reached an agreement to plead guilty in exchange for a life sentence without the possibility of parole. That's good enough for Rhode Island, which has a long history of opposition to the death penalty.

If Mr. Pleau is prosecuted in federal court, he can face the death penalty.

Mr. Pleau is in state custody. The U.S. Attorney's Office asked for him to be produced under the Interstate Agreement on Detainers. The Interstate Agreement on Detainers is an agreement between almost every state and the federal government over transfer of people for prosecution.* It's in the U.S. Code.

The Interstate Agreement on Detainers, though, lets a state say no. Rhode Island's Governor, Linc Chafee, did just that. Because Governor Chafee is strongly opposed to the death penalty, he refused to turn Mr. Pleau over to the federal government.

The U.S. Attorney's Office then sought a writ for Mr. Pleau to be turned over to be prosecuted. A writ of habeas corpus ad prosequendum is, in effect, an order issued by a United States District Court telling whoever is holding a person to send the person to that court so the person can be prosecuted. It's authorized by 28 U.S.C. § 2241(c)(5).

The United States District Court for the District of Rhode Island issued the writ.

The Governor, standing on the principle that he opposes the death penalty, refused to turn Mr. Pleau over.

The United States Department of Justice, standing on the principle that it really does not like to be told no, insisted that Mr. Pleau be turned over.

The dispute went to the United States Court of Appeals for the First Circuit.

The court of appeals, in a joint opinion in United States v. Pleau and In re Pleau, held that the United States has a choice - it can use the IAD or it can use a writ to get a prisoner.

But, once the government chooses which way to go, it is stuck with that choice.

Since the federal government asked under the IAD first, it was bound by Governor Chafee's refusal, and cannot later ask for a writ to trump the Governor's right to refuse under the IAD.

What's interesting about the case, though, is less the technical merits of the statutory question about whether the IAD or the statute authorizing writs wins. What's interesting is how the court of appeals looks at this issue. The appellate court could have decided this on narrow statutory grounds. Instead, it ran to the policy concerns.

This was the first time a governor of a state had denied a federal request for a person to be prosecuted - ever. The First Circuit spent a good deal of time on the legitimacy of Rhode Island's interest.

Noting that this is a symbolically important issue, the court of appeals quoted the Governor saying that

he could not "in good conscience" allow the federal government to ride roughshod over Rhode Island's "conscious[] reject[ion]" of execution as an acceptable form of state punishment.

It went on to observe that
the only additional punishment that a federal conviction might bring would appear to be authorization to kill Pleau. The present case thus presents a stark conflict between federal and state policy prerogatives on a matter of literally life-and-death significance.

And then, as if that wasn't already a big nod to the Governor's policy preferences, the court of appeals noted, in a footnote, that maybe the federal government should just step off when it comes to prosecuting these kinds of crimes saying,
We pause to note that the crimes Pleau is alleged to have committed -- armed robbery and murder -- are quintessential state crimes, and betray on their face no hint of any uniquely federal interest. See United States v. Jiménez-Torres, 435 F.3d 3, 14-15 (1st Cir. 2006) (Torruella, J., concurring) (objecting to unwarranted extension of federal criminal jurisdiction over traditionally state crimes). Moreover, given that Pleau has already agreed to plead guilty to state charges and accept a life sentence without the possibility of parole, it is frankly unclear what is to be gained from pursuing federal charges in this case, particularly in light of the truly extraordinary costs of capital litigation.

This is a great question - what exactly is the federal interest here? I suspect, as I said before, that it's just a matter of the United States Department of Justice being willing to spend whatever it takes to keep from being told no.

Beyond that, the First Circuit's discussion reminds me of the discussion in the Supreme Court's opinion in United States v. Cabrales of why we have a constitutional venue provision, because

[p]roper venue in criminal proceedings was a matter of concern to the Nation's founders. Their complaints against the King of Great Britain, listed in the Declaration of Independence, included his transportation of colonists "beyond Seas to be tried.

As the federal government comes down on California's medical marijuana providers, maybe it starts to look a bit like the prior sovereign we had in these lands.

* Only forty-eight states have signed onto the IAD. Also, the description here is very general - the IAD is very involved. The Department of Justice's U.S. Attorney's Manual has more information on the IAD.

October 17, 2011

The Supreme Court Is Thinking About Stolen Valor

The Supreme Court has agreed to review the constitutionality of the Stolen Valor Act. The Stolen Valor Act makes lying about having military honors a federal crime. It's at 18 U.S.C. § 704.

There's a good discussion of the Act over at SCOTUSBlog.

The Wall Street Journal Law Blog nicely frames the issue - "What's More Common Than Valor?"

And, of course, there's prior coverage of the Act on this blog, including Chief Judge Kozinski's most awesome paragraph in any reported opinion.

October 16, 2011

Things Look Different Around Here

Thanks for stopping by. As you may have noticed, things here look different.

Clouds on a field.jpgAside from the obvious changes in how the site looks, please note, that you can now subscribe to this blog by email. Check out the box on the sidebar if you'd like blog posts spoon fed to your email, rather than having to go to the trouble of surfing over to this page. Or you can click this link.

The search functionality is also greatly improved, which I'm excited about.

If you've been reading this blog by RSS feed, you may want to update your feed.

I hope you enjoy the new format. New substantive posts are coming soon. If you have any comments, feel free to email me.


October 12, 2011

An En Banc Fourth Circuit Remands On An Armed Career Criminal Act Case

The Fourth Circuit doesn't issue many published opinions. When it does publish, though, it publishes a lot.

The Fourth Circuit yesterday issued an en banc opinion in United States v. Vann. Here's the description of who wrote what:

A per curiam opinion, in which Chief Judge Traxler and Judges Motz, King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz joined, was issued on behalf of the en banc majority. Judge King wrote a concurring opinion, in which Judges Motz, Gregory, and Davis joined. Judge Agee wrote an opinion concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge Keenan. Judge Davis wrote a concurring opinion. Judge Keenan wrote a concurring opinion, in which Chief Judge Traxler and Judges Agee, Wynn, and Diaz joined. Judge Wilkinson wrote an opinion concurring in the judgment. Judge Niemeyer wrote an opinion concurring in part and dissenting in part, in which Judge Shedd joined.

That's seven separate opinions, for a court that only has fourteen active members (and Judge Allyson Duncan didn't participate in the appeal). The opinions total 100 pages in length.

The question in Mr. Vann's case is a commonly occurring one. If a person is convicted of having a firearm after being convicted of a felony, the person faces a statutory maximum penalty of 10 years. See 18 U.S.C. § 922(g). If however, the person has three separate prior convictions for drug distribution offenses or crimes of violence, then the statutory maximum becomes life in prison, and there is a mandatory minimum of 15 years that applies.

The enhancement is called the Armed Career Criminal Act, and I've written about it here and here and here.

Mr. Vann's case presents a frustrating and common problem with the Armed Career Criminal Act. State laws aren't defined as crimes of violence for federal purposes. The states kind of make their own criminal laws, and tend not to modify them to make later federal sentencings easier. Moreover, when folks are resolving a state case, they tend to resolve it for that case only, so everyone can go on about their business and on to the next case. So, sometimes, the records aren't sparkling clear as to how things were resolved.

Mr. Vann was convicted of being a felon in possession of a firearm. He had three prior convictions under North Carolina's Indecent Liberties Statute. The statute has two prohibitions:

(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:

(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire ["subsection (a)(1)"]; or

(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years ["subsection (a)(2)"].

If Mr. Vann violated section (a)(1), it isn't a crime of violence (necessarily); if he violated (a)(2), it is.

The trouble is that Mr. Vann entered a guilty plea in the state case to an indictment that accused him of both (a)(1) and (a)(2). So, is that a plea to the lesser of the two, or the more serious of the two? Or both?

Judge Niemeyer, in dissent, said that when a person pleads to an indictment that alleges Y and Z, the person pleads to both charges. This is familiar enough to anyone who has taken an intro to logic class in college.

But, natural language is funny, and not always a friend to the logician. To walk down a path not directly related to Mr. Vann, as the University of California, Irvine's logic wiki points out,

It's also worth noting that some English sentences carry some meaning that is not captured in Propositional Logic. For example, the sentence 'Jane Austen died and was buried in Winchester Cathedral in 1817' can be translated as P [and] Q (where P stands for 'Jane Austen died' and Q stands for 'Jane Austen was buried in Winchester Cathedral in 1817'). Now, since P [and] Q and Q [and] P are logically equivalent, they mean the same thing. However, the English sentence 'Jane Austen was buried in Winchester Cathedral in 1817 and died' implies that she was buried alive!

Whew! That's a good one.

Back to Mr. Vann. The question before the court of appeals was this - When a person pleads guilty to an indictment, are they pleading guilty to all parts of it, or can they be pleading guilty to the bare minimum that satisfies an offense charged in the indictment?

The en banc opinion of the court of appeals determined that they are pleading guilty to the bare minimum.

As the appeals court held,

That Vann's predicate charging documents properly use the conjunctive term 'and,' rather than the disjunctive 'or,' does not mean that Vann 'necessarily' pleaded guilty to subsection (a)(2). Similarly, in trials by jury, it has been established that a defendant convicted under a conjunctively charged indictment cannot be sentenced -- in the absence of a special verdict identifying the factual bases for conviction -- to a term of imprisonment exceeding the statutory maximum for the 'least-punished' of the disjunctive statutory conduct.

Because a finding of guilt that is ambiguous between two is read to mean that the person is guilty of the least significant offense for jury purposes, it is read the same way for a plea.

October 6, 2011

The Eighth Circuit Holds That Health Care Kickbacks Are Different Than Fraud

Medical supplies are big business. Sadly, where there's big business, there's big money, and, often, there's big law enforcement attention.

Geff Yielding worked as an assistant for a surgeon, Dr. Jordan, in Little Rock Arkansas. His wife, Kelley, started a company called ANI, that was in the medical services business. She became a sales agent for two bone-related medical supply companies. As such, she was paid on commission based on the number of sales she generated to surgeons.

Dr. Jordan used a nurse named Jordan Wall to order his supplies. Mr. Wall was an employee of the hospital where Dr. Jordan practiced.

Between February 2003 and October 2004, Kelley Yielding earned $384,000 in commissions. Her company, over the same period, wrote twenty-two checks to Jordan Wall.

One suspects that those checks may have been, uh, fishy.

A side note about health care kickbacks - in the world of medicine, paying someone for using your medical service or supplies is illegal. It's a violation of the Stark Act. In many businesses, paying for referrals is legal, indeed, de rigueur. In medicine when you're dealing with Medicare or Medicaid, a kickback is a crime. It's codified at 42 U.S.C. § 1320a-7b.

In 2004, Jordan Wall was fired by the hospital because there appeared to be improprieties in the way he ordered the products sold by Kelley Yielding - the hospital thought they didn't need one of the products, yet Mr. Wall ordered it anyway.

Also, creepily enough, more than one hundred pieces of bone were missing from the hospital's bone inventory. It isn't clear how this is related, but the Eighth Circuit's opinion notes it.*

Three days after Mr. Wall was fired, Dr. Jordan forwarded an email he received from the hospital about how the hospital was still investigating suspicious and unnecessary purchases of the products that Kelley Yielding sold.

The hospital was also still investigating the missing bone.

Three days later, Jordan Wall paid ANI, Kelley Yielding's company, $34,000, the exact amount he was paid in 2004. The repayment was labeled "repayment on loan."

The FBI investigated, searched the Yielding's house, and found a document purporting to be a note. The note said it was for a no interest loan to Jordan Wall from ANI, Kelley Yielding's company.

While the investigation was happening, Kelley Yielding died.**

Jordan Wall pled and flipped. He said that Geff Yielding arranged kickbacks for the products his wife sold and created a fake note to cover their tracks after the investigation started.

Mr. Geff Yielding was indicted and convicted for the kickback scheme and creating a false document to obstruct justice. He was sentenced to 78 months in prison, or six and a half years.

It isn't clear if anyone was ever prosecuted for the missing bone.

The Eighth Circuit, in United States v. Yielding, reversed for resentencing because the sentencing court miscalculated the United States Sentencing Guidelines.

Mr. Yielding was convicted of participation in a kickback scheme. So the court should have used sentencing guideline § 2B4.1. Like many white-collar crime guidelines, § 2B4.1 looks to the amount of money at stake to determine how serious the crime is.

Unlike many white-collar crime guidelines, § 2B4.1 does not look at the loss caused by the crime, rather, it looks to the size of the bribe (or kickback) or the profit made from the bribe (or kickback).

The sentencing court looked at the loss to the purchasers who bought the unneeded bone products, rather than the value of the commissions that the Yieldings received, or the amount of the kickback that they offered.

So, the guidelines were miscalculated - bribery has very different rules than fraud.

As a result, Mr. Yielding's case was remanded for resentencing, presumably with a much lower guidelines range at the end.

For additional news coverage, check out the Times Record from Arkansas.

* Did you know hospitals keep bone stockpiled? Me neither.

** It's not explained how she died in the opinion, though I'd like to know if it was related to it. Or caused by stress from it?

October 4, 2011

The Miranda Analysis Is Different For the Military, Says the First Circuit

Brian Rogers learned the hard way that, sometimes, selling a computer has a downside. As many computer experts recommend, if you're selling a computer you need to wipe the hard drive so that your financial information can't be found by someone else.

Mr. Rogers, however, should not have been worried about the buyer of his computer finding his financial information. Rather, he should have worried about the purchaser finding his child pornography.

Mr. Rogers was a non-commissioned Naval Officer at the Brunswick Naval Air Station in Maine. The police worked with the Naval Criminal Investigative Service (NCIS, for those who don't watch TV). Law enforcement obtained a search warrant.

NCIS and the police worked out that they would search Mr. Rogers condo when he wasn't there. They went in and searched the house while his pregnant wife and small child were home, but Mr. Rogers wasn't.

Instead, as the search was going on, NCIS asked Mr. Rogers' commanding officer to order him to go to the parking lot outside his home. They told him nothing else, except that his wife was ok.

Mr. Rogers went home. Armed police officers were in his house. NCIS wasn't there, but other police were. An officer asked him if he wanted to talk, after explaining the nature of their search. The office explained that Mr. Rogers wasn't under arrest, but that if Mr. Rogers was going to talk, "today's the day."

While they were talking, an NCIS officer arrived.

During that conversation, Mr. Rogers said that he downloaded the illegal images.

The Miranda Challenge

Mr. Rogers challenged that statement, saying that he was not free to resist the questioning, and the statement was un-Mirandized, so that it ought to be suppressed.

The district court denied the motion. Mr. Rogers entered a conditional plea, allowing him to appeal the district court's Miranda decision. The district court sentenced him to five years in the meantime.

The First Circuit's Decision

The First Circuit, in United States v. Rogers - an opinion written by retired Associate Supreme Court Justice Souter - held that Mr. Rogers' statement should have been suppressed.

First, Justice Souter explained that the issue of whether a person is in custody is not really a question of whether the person is free to leave, but more whether he or she is free to stop talking - "the crux of the first element [of a Miranda violation] must be liberty to terminate the verbal engagement with the police, not the liberty to leave."

When it comes to the freedom to stop talking, Justice Souter determined that the military is just different. As the court of appeals explained,

"[T]he most significant element in analyzing the situation is that the military had made certain that Rogers did not walk into it voluntarily, or confront the police with free choice to be where he was."

Because Mr. Rogers was ordered, literally, by his commanding officer, to be present for questioning, Justice Souter concluded for the First Circuit that he would not have felt free to terminate the questioning.

Because Mr. Rogers would not have felt free stop answering questions, his Miranda rights were violated.

The case was then remanded to see if a later curative instruction might have taken care of the Miranda violation.

October 3, 2011

Judge Posner Teaches District Court Judges How To Avoid The Supreme Court's Holding in Tapia

In Tapia v. United States, the Supreme Court held that a federal judge, when imposing sentence, cannot give time in prison in order to rehabilitate the person who is being sentenced.

Tapia turned on this statutory language from 18 U.S.C. § 3582(a):

The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation

(emphasis added).

The Tapia rule seems straightforward enough. But wait, where there's a lawyer, there's a complication.

The Clear Case

For a clear application, consider the Tenth Circuit's opinion in United States v. Cordery. There, the court of appeals reversed and remanded a sentence for bank robbery because the sentencing court imposed the sentence that was the bare minimum to allow the defendant to participate in a 500-hour drug and alcohol program (or "RDAP").

Fair enough, when the judge imposes a sentence just to let someone meet a rehabilitation program's requirements, that looks like a clear Tapia problem.

The Complication

Of course, things are never just simple.

Consider the Seventh Circuit's opinion in United States v. Kubeczko, written by everyone's favorite jurist, Judge Richard Posner.

Mr. Kubeczko had troubles. He had recently lost his mother. Perhaps distraught, he neglected to tell the federal government that she had passed. Instead, he cashed $158,000 in civil service retirement checks sent to her during the 12 years after her death.

He was charged with mail fraud.

While Mr. Kubeczko was awaiting trial, he was put in a halfway house run by the Salvation Army. That went poorly - he got in fights and was disruptive. He was eventually detained pending trial, because of his conduct.

The sentencing judge imposed a sentence of 30 months, because, with 12 months of time-served credit, she thought that Mr. Kubeczko needed at least an additional 18 months to combat the mental illness and alcoholism that contributed to his behavior at the halfway house.

The sentencing judge said that Mr. Kubeczko

has had mental health and perhaps substance abuse issues for which he needs treatment. My concern about the guideline sentence here in this case of 21 to 27 months is that even a high-end guideline sentence may not be long enough for the Bureau of Prisons to designate [the defendant] to a location where he can get mental health treatment . . . . [A] stay in the Bureau of Prisons of a significant length is necessary in order for him to get the Bureau of Prisons' inpatient treatment program. I believe that he has to be in one place longer than 18 months for that purpose . . . . I want to impose a sentence of 30 months in the custody of the Bureau of Prisons, slightly above the guideline range, because I do want to give the Bureau of Prisons every opportunity to place [him] in a facility where he can begin getting the treatment.

As Judge Posner acknowledged, "[g]iven Tapia, this language entitles the defendant to be resentenced."

Judge Posner Shows District Courts How To Ignore Tapia

Then the man who suggested that, perhaps, the Supreme Court isn't that bright,* smudged the lines of Tapia for everyone.

Because Mr. Kubeczko was kicked out because he was disruptive, maybe the sentencing judge wasn't imposing more time so he could get better, but, because he'd get better by having more time in a rehabilitative program, he'd then be less dangerous to the rest of us. So her motivation wasn't to rehabilitate, it was to protect the public (through rehabilitation).

As the learned judge mused,

Compare two hypothetical sentencing statements. In one the judge says, "I'm not worried that you'll commit more crimes if I gave you a shorter sentence; I am giving you a long sentence to enable you to obtain psychiatric assistance that will bring about your complete rehabilitation." In the other sentencing statement the judge says, "I am going to sentence you to a sentence long enough to enable you to obtain psychiatric assistance, because until then you will continue to be a danger to the public because you can't control your violent impulses." The first ground for a longer sentence violates the statute, but the second does not, because incapacitation (physically preventing the defendant from committing crimes on "the outside," by imprisoning him) is an authorized factor for a judge to consider in determining the length of a prison sentence.

This is good, because it highlights the problem that Congress was trying to address when it adopted the language at issue in Tapia that prohibits imposing a prison sentence just to accomplish rehabilitation. Congress, as Judge Posner illuminates, didn't want a sentencing judge to say anything to a person on the occasion of his sentencing that suggests the government might be doing any of this for the person's own good.

"We're sending you to prison, never for you, but always for us." is the message that Congress wanted conveyed.


* See Chris Shea's Ideas Blog at the Wall Street Journal, quoting Judge Posner - "One shouldn't exaggerate the quality of judges and justices. Law isn't the calling of geniuses. The Supreme Court today is composed of competent lawyers, and one should probably leave it at that"