August 2012 Archives

August 31, 2012

The 2012 ABA 100

Last year, the friendly folks at the ABA Law Journal decided that this was one of the best 100 law-related blogs out there in 2011. I'm grateful and mildly worried about their judgment.

You, on the other hand, are here reading this blog. Which makes me think that you might like it.

If that's true, then first, thanks very much.

Second, I'd be grateful if you wouldn't mind mentioning it to the ABA Law Journal as they try to figure out which blogs are rocking it in 2012. You can do so here.

And, yes, it's presumptuous to do this so soon after summer vacation. Apologies.

August 29, 2012

The Government Convicts A Man In A Drug Conspiracy Case Without Evidence He Was Involved In A Drug Conspiracy And The DC Circuit Reverses


It's very fashionable these days for United States Attorney's Offices to bring large indictments charging many people with involvement in a drug conspiracy.

They almost always get convictions.

381260_conspiracy.jpgYet in the case of United States v. Gaskins, the D.C. Circuit - in an opinion written by a former federal prosecutor - ruled that the United States Attorney's Office indicted, and a jury convicted, a man for being a part of a drug conspiracy when no reasonable juror could have found that he was involved.

The government's case was pretty standard for a large drug conspiracy. They indicted 21 people, including Mr. Gaskins. The government had wiretaps. The government executed search warrants.

After the indictment, lots of people flipped and testified for the government. Many of them were working down from a mandatory life charge.

Again, in a drug case, this is pretty much par for the course.

Yet none of this evidence tied poor Mr. Gaskins to the conspiracy he was indicted for belonging to.

Here's how the D.C. Circuit described the government's best evidence based on a cooperator:

Briggs . . . testified that he was motivated to get his pending criminal cases resolved and to get out of jail. In January 2004, he entered into a plea agreement pursuant to which he was released to help the government obtain information regarding several suspects, including Gaskins. As a condition of release, he had to report to the FBI on a daily basis. Briggs testified that he had multiple contacts and conversations with Gaskins after he was released. Although he said that Gaskins helped him fill out job and housing applications, Briggs said that none of their interactions involved the subject of narcotics.

That Gaskins - helping a man get housing and a job. Still, not exactly Stringer Bell.

The government executed a search warrant at Mr. Gaskins' mother's house. As the D.C. Circuit said:

In addition, the government searched the apartment in southeast Washington where Gaskins lived with his mother. That search yielded neither drugs, nor records, nor any other evidence linking Gaskins to the conspiracy. Nor did it (or any other search) yield evidence that Gaskins had expensive jewelry, clothes, cars, or homes -- as searches did uncover with respect to other conspirators. The government's only evidence was that Gaskins lived in his mother's modest apartment.

And of the wiretaps:

FBI Special Agent John Bevington testified that the government conducted four months of wiretaps, from February 17 to June 26, 2004, during which it intercepted more than 14,000 calls. Recordings of many calls were played to the jury. Bevington and Detective Hall testified that two signature traits of a narcotics conspiracy are using coded language and asking conspirators to go to a land line, both of which could be discerned in several of the recorded calls. None of the calls by other alleged conspirators mentioned drugs or drug transactions in connection with Gaskins, whether in clear or in coded language. No call in which Gaskins participated mentioned drugs or drug transactions at all, in code or otherwise, and he was never asked to go to a land line.

See - that land line thing from Pulp Fiction is real.

The jury, nonetheless found him guilty.

Actually, to be more specific, the jury eventually found Mr. Gaskins guilty. The narcotics conspiracy he was alleged to be involved in had four separate objectives. The jury first found that he was guilty of the conspiracy, but that the government hadn't proven that he was seeking any of the objectives of the conspiracy. The district court, rightly puzzled by this, sent the jury back to resolve the conflict (over Mr. Gaskins' objection). The jury, then, returned a guilty verdict, determining that Mr. Gaskins was involved in the drug conspiracy.

Because the D.C. Circuit resolved Mr. Gaskins case based on the sufficiency of the evidence, and not based on the trial court's handling of the odd verdict form, the court of appeals did not resolve the question of what the court should have done with the odd jury determination.

Mr. Gaskins was ultimately sentenced to 22 years. The D.C. Circuit ordered him released and the judgment of conviction vacated after oral argument.

Think about that. Your government sought 22 years for a guy who wasn't on a wire, who no snitch said was involved, and who - when they searched his house - had no evidence of drugs there.

August 28, 2012

A Speakeasy Robbery Leads To An Important Witness Tampering Opinion

Glorious Shaver, Andrew White, and Jermel Lewis knew of a speakeasy in North Philadelphia.

A woman named Jeanette Ketchmore would buy bottles of booze and sell drinks from then for four or five dollars in her home. Some of those bottles of booze crossed state lines before making it to Ms. Ketchmore's house.

1254218_glass_of_whiskey.jpgShe was not licensed by the state or local government to provide these drinks.

Messrs. Shaver, White, and Lewis were not content to drink at Ms. Ketchmore's home. Instead, they decided to rob it at 5:30 in the morning on November 8, 2005.

They were caught and prosecuted in state court. After a year in state court, the federal government decided to prosecute - to protect the interests of those bottles of alcohol that crossed state lines.

The three men were indicted in federal court in Philadelphia for Hobbs Act Robbery.

They were convicted, and, in United States v. Shavers, the Third Circuit affirmed their Hobbs Act robbery convictions (if you're interested in the commerce clause and the Hobbs Act, there is a lengthy discussion that may be interesting. Though, SPOILER ALERT, the defendants lose).

But that's not all - there were also witness-tampering charges against Messrs. Shaver and White that resulted in an interesting and important opinion from the Third Circuit.

Messrs. Shaver and White made a number of calls from a jail while they had been charged in state court trying to encourage witnesses to the speakeasy robbery to have a different memory.

They were charged with violating 18 U.S.C. § 1512(b)(2)(1), which says that it's a crime to:

use[] intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to-- (1) influence, delay, or prevent the testimony of any person in an official proceeding . . .

The trouble is, official proceeding is later defined by section 1515(a)(1)(A) as a federal proceeding.

Does a state court proceeding count as an official proceeding for the purposes of the witness tampering statute?

The Third Circuit says no, relying on Arthur Anderson LLP v. United States:

In Arthur Anderson LLP v. United States, the United States Supreme Court reviewed convictions under § 1512(b)(2)(A) and (B). 544 U.S. 696, 698 (2005). The Court held that to satisfy the "official proceeding" requirement under those subsections, the Government must show a "nexus" between the defendant's conduct and a particular proceeding. Id. at 707- 08. To meet that nexus requirement, the Government must prove that the defendant "ha[d] in contemplation [a] particular official proceeding" when he or she attempted to interfere with evidence or a witness. Id. at 708. The proceeding need not have been pending or about to be instituted, but it must have been foreseeable. Id. at 707-08.

The government argued that the Supreme Court sotto vocce narrowed Arthur Anderson in Fowler v. United States. There, a bank robber shot a police officer after a bank robbery.

Mr. Fowler was charged under section 1512(a)(1)(C), which applies to people who kill someone - or try to - to avoid prosecution.

The Supreme Court held that for a prosecution under 1512(a)(1)(C) the government only had to show a reasonable likelihood that the person killed would have communicated with law enforcement that could have made it to federal law enforcement.

This is, of course, a different standard than the defendant-specific foreseeability requirement in Arthur Anderson.

Yet, the Supreme Court in Fowler never cites Arthur Anderson.

In light of that silence in Fowler, and the different ends of a prosecution under 1512(a) and one under 1512(b) - namely that the first involves someone dying and not the second - the Third Circuit held that Arthur Anderson and Fowler are simply different doctrinal boxes.

The Third Circuit concludes:

This . . . leads us to the logical conclusion that there are at least two lines of jurisprudence developing separately under the VWPA: one for the investigation-related provisions, such as § 1512(b)(3) and (a)(1)(C), and one for the "official proceeding" provisions, such as § 1512(b)(1) and (b)(2). See Ronda, 455 F.3d at 1288 (observing that the link to a federal proceeding in the investigation-related provisions is less stringent than the "official proceeding" requirement in § 1512(b)(1) and (2)). Hence, we hold that a successful prosecution under § 1512(b)(1) requires proof, beyond a reasonable doubt, that the defendant contemplated a particular, foreseeable proceeding, and that the contemplated proceeding constituted an "official proceeding," as defined by § 1515(a)(1)(A).

Messrs. Shavers and White were charged under § 1512(b)(1) - which requires proof of a particular foreseeable federal proceeding. Because their efforts to tamper with witnesses were efforts to tamper with a state court proceeding, the Third Circuit concluded that the conviction for trying to tamper with the federal case must fail.

As the court of appeals noted:

It is clear from the transcript of the telephone calls that Shavers's and White's efforts were directed at preventing potential witnesses of the speakeasy robbery from testifying at their upcoming hearing in Pennsylvania state court. There is no evidence that they contemplated any other proceeding.

The convictions for witness tampering were vacated.

August 22, 2012

The Fourth Circuit Reverses A Life Sentence Based On A Death From A Bank Robbery Gone Bad

It's exceptionally rare for the Fourth Circuit to reverse a life sentence for someone who caused another person to die in the course of a botched bank robbery. And when the panel that heard the appeal has both Judges Wilkinson, and Niemeyer - whoa nelly - that's one whopper of a government error.

1097248_guard_with_machine_gun.jpgA Bank Robbery Gone Bad

September 28, 2008 did not turn out the way Larry Whitfield had planned.

His hope was to start the day with a bank robbery. He went to a credit union in North Carolina with a friend, a .357 magnum, and an assault rifle.

As he walked into the credit union's vestibule, a metal detector in the vestibule locked the inner doors of the credit union. Thwarted, Mr. Whitfield shook the doors of the financial institution.

They did not yield.

Mr. Whitfield and his companion sped away.

A Chase Gone Bad

Mr. Whitfield and his companion separated. Eventually, as the police pursued, he broke into the home of an elderly couple - Herman and Mary Parnell.

Ms. Parnell was home. Mr. Parnell was not.

Mr. Whitfield called a friend to come get him. Ms. Parnell was very upset - panicked and breathing oddly - to have Mr. Whitfield in his house.

Mr. Whitfield's friend later testified that Mr. Whitfield told Ms. Parnell at one point - "[M]a'am, just calm down. I'm probably more scared than you are, and I'm actually just trying to leave."

Ms. Parnell said she was short of breath and Mr. Whitfield tried to give her a glass of water and aspirin. His friend suggested that he call and ambulance. He didn't.

Ms. Parnell died of a heart attack.

Mr. Whitfield fled out the back door, and was caught by the police and arrested.

Mr. Whitfield Is Indicted

Mr. Whitfield was charged in federal court with attempted bank robbery, an number of weapons counts, and violating 18 U.S.C. § 2113(e).

Section 2113(e) is a strange one. Here's what it says:

Whoever, in committing [bank robbery or attempted bank robbery], or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.

As the Fourth Circuit explained in Mr. Whitfield's case, United States v. Whitfield,

[Section] 2113(e) encompasses three alternative offenses pertinent to this case -- penalizing a defendant who, in evading apprehension for an attempted bank robbery: (1) "kills any person" (the "killing offense"); or (2) "forces any person to accompany him without the consent of such person" (the "forced accompaniment offense"); or (3) "forces any person to accompany him without the consent of such person" and "death results" (the "death results offense").

Oddly, Mr. Whitfield's indictment did not charge him with each of these offenses - or even the third one. Instead, his indictment said,

LARRY WHITFIELD did knowingly enter and attempt to enter Fort Financial Credit Union . . . with intent to commit therein a felony affecting that credit union, in violation of 18 U.S.C. § 2113(a), . . . as set forth in COUNT ONE of this Indictment; and in avoiding or attempting to avoid apprehension for said offense, forced M.P. to accompany him without her consent, and killed M.P.

He was charged with violating the first and second offenses set out in section 2113(e), but not the third (the one that kind of obviously looks like it applies).

The Case Goes To The Jury

Mr. Whitfield's case went to trial.

Mr. Whitfield's counsel noted the error in how the indictment was written and how it did not include the third element. The district court was unmoved.

At the end of trial, the jury was instructed that there are two ways of violating section 2113(e) and,

[w]ith respect to the second way of violating this statute, if you find that the defendant forced Mary Parnell to accompany him, you must also decide whether that forced accompaniment resulted in Mary Parnell's death.

The jury found Mr. Whitfield guilty of forcing Mary Parnell to accompany him, and also found that Mr. Whitfield's forced accompaniment caused Mary Parnell's death.

At sentencing, the district court determined that Mr. Whitfield was subject to a mandatory life term for his conviction on the forcible accompaniment charge.

Mr. Whitfield was sentenced to life on the forcible accompaniment when death results charge - indeed, the judgment described the offense as "[f]orced accompaniment while attempting to avoid apprehension for an attempted bank robbery resulting in death."

He was sentenced to an additional 300 months on a number of other charges arising out of his attempted bank robbery and flight.

The Fourth Circuit Vacates Mr. Whitfield's Conviction

He appealed.

The Fourth Circuit held that the three offenses in set out in section 2113(e) are indeed three separate offenses:

[W]e are content to adhere to the Supreme Court's nomenclature and describe § 2113(e) as creating "separate offenses by the specification of distinct elements." See Jones, 526 U.S. at 252.15 More specifically, the killing offense requires proof that a defendant "kill[ed] any person." The forced accompaniment offense necessitates proof that a defendant "force[d a] person to accompany him without the consent of such person." And the death results offense -- although entailing the lesser-included forced accompaniment offense -- requires further proof that "death result[ed]."

Because Mr. Whitfield wasn't indicted for violating the separate "death results" charge, even though he was later convicted for it - and sentenced to life for it - his conviction and sentence violated his right to be indicted by a grand jury.

As the Fourth Circuit put it,

[B]y instructing on the uncharged death results offense, the district court constructively amended Count Four to broaden the possible bases for conviction beyond those presented to the grand jury. When such a constructive amendment is found, the error is fatal and reversible per se.

Though, Mr. Whitfield was convicted for a violation of section 2113(e) other than on the "death results" language.

And he'll be resentenced for that on remand.

The range is between 10 years and life.

August 21, 2012

A Sad Bank Robber Attracts A Lower Sentence With Honey Than He Would Have With Vinegar

James Wooten was on hard times.

As he later told the police, he was just sick of living in his car and running out of money.

He went into a bank. As the Sixth Circuit in United States v. Wooten, tells it:

[B]ank teller Buddy Mason recalled the circumstances of the September 23 robbery. According to Mason, the robbery began after Wooten walked "casually" into the bank and approached the teller row. Wooten, who was fifty-six years old at the time, wore ordinary clothing and appeared to Mason to be a routine customer. After entering, Wooten strolled over and placed one hand on the counter. According to Mason, Wooten was "not looking around or fidgeting or looking at anything" and his demeanor was "nonchalant." After motioning for Mason to lean in closer, Wooten "kind of whispered and said, I am going to rob you." Mason at first thought Wooten was "joking around." Indeed, Mason recalled that he was "not taking [the robbery] very seriously because [Wooten] was just so nonthreatening." With prompting from Mason, Wooten repeated the statement "I am going to rob you," and Mason again questioned the sincerity of Wooten's request. At that point, Wooten "kind of got a serious look in his face" and said, "I have a gun, I want your money."

1342748_bank.jpgBank Robberies are common enough that banks give their tellers training on how to respond if they get robbed. After Mr. Mason heard from Mr. Wooten that he had a gun, Mr. Mason turned and picked up a stack of bills.

Mr. Wooten took the money and walked out of the bank.

He was caught by the police a few blocks later - that's when he said he robbed a bank because he didn't want to live in his car. He didn't have a gun with him.

At Mr. Wooten's sentencing hearing, the teller - Mr. Mason - said that:

Wooten "was not acting like he was going to hurt me or anybody in the bank." In fact, even though Wooten had told Mason that he had a gun, Mason said he "never felt threatened at all."

Mr. Wooten pled guilty. At sentencing, the fight was whether Mr. Wooten should be subject to a "threat of death" enhancement.

If a person commits a robbery and threatens to kill someone, that's seen as worse under the sentencing guidelines and the person gets an increase under section 2B3.1(b)(2)(F).

The district court applied the enhancement, finding that a reasonable person meeting the meek 50 year old Mr. Wooten, who was reluctantly robbing a bank to escape living in his car, would have to fear for his life.

The Sixth Circuit disagreed.

while the statement "I have a gun" certainly can be enough to support the threat-of-death enhancement--and in the majority of cases it is--the statement is not necessarily enough, especially when contextual circumstances undermine the otherwise threatening nature of the declaration.

This is hopeful for Mr. Wooten - saying that you have a gun does not always mean that you are saying you're going to use it. Sometimes you have to say you have a gun just to get someone to treat your situation like a robbery and give you the money that they're trained to hand over.

Although unusual, one can envision circumstances in which the nature of a robbery makes it objectively unreasonable for a victim of ordinary intelligence to believe that the robber, even if claiming to have a gun, has any intent or ability to carry out a violent act. An offender who walks into a bank waving a banana or what is plainly a toy gun, for instance, would not instill a fear of death in a reasonable person, even if the offender emphatically announced his possession of a gun. Cf. Jennings, 439 F.3d at 611 (surmising "that there could be circumstances that would sufficiently dilute the phrase 'I have a gun' so that it would not qualify as a death threat," such as where "a bank robber claimed to have a gun but brandished what was quite obviously a toy"); Gibson, 155 F.3d at 847 (stating that "I have a gun," constitutes a threat of death unless "unusual mitigating circumstances accompanying this statement could deprive the words of their ordinary and expected meaning" (internal quotation marks omitted)). Because such circumstances would fall short of instilling a fear of death in a reasonable victim of the offense, the threat-of-death enhancement would not be warranted.

The Sixth Circuit reversed and remanded - Mr. Wooten didn't threaten to kill anyone.

August 20, 2012

The Fourth Circuit Agrees That Restitution Is Hard For Child Pornography Victims, Even If The Person Accused Of the Child Pornography Offense Is Chatty

Albert Burgess made some bad decisions.

First, he downloaded a mass of child pornography. The folks at Immigrations and Customs Enforcement (or "ICE") were able to find him through the payment information he supplied to the child porn purveyor.

ICE asked for and received a warrant to search his house. While his house was being searched he agreed to be questioned.

1378633_man_with_a_megaphone_1.jpgHe told law enforcement that he was the only person who used his home computer. That was probably also a mistake.

They found child pornography on his computer - and on CDs in his house.

He was arrested. While he was waiting to be checked into jail, a female law enforcement agent asked if she could keep talking to him. He said yes.

This was also a mistake. I don't know why it seems there are a lot of female agents working child porn cases, but folks accused of these crimes seem to be really willing to talk to them. There's something going on there - law enforcement is being smart in a way not dissimilar to Hooters.

Here's how the Fourth Circuit describes Mr. Burgess's statements:

Burgess, looking down at a copy of the arrest warrant, stated, "You've got me." He admitted to viewing child pornography between two and three times per week, and also informed Redden that he knew of significant child pornography trafficking operations in Russia and the Philippine Islands (the Philippines).

Ok, so far this is relatively typical for a child pornography case. Then things go a little off the rails. Mr. Burgess is released before trial.

The Perils Of Do-It-Yourself 5K1.1

While he's on pretrial release,

On March 7, 2008, Burgess placed a telephone call to [law enforcement] stating, "Well, I've got to help myself. I've got to talk to somebody." Burgess met with the federal agents at his home three days later, signed a statement waiving his Miranda rights, and provided details regarding his pornography sources in Russia and the Philippines. It was Burgess' understanding that the federal authorities would use the information and email addresses he had provided to assist in the investigation of these internet pornography sources. Burgess was under the impression that he was bargaining with the federal agents, and later testified to this effect, stating: "You know, you've got to give [the government] something before they can give you something. You can't sit there, you know, and extract something from them." Burgess also confessed to the federal agents that he viewed child pornography for five hours per day while masturbating, and that he did so to prevent himself from actually committing offenses on a child.

I agree that Mr. Burgess needed to talk to someone. I just think that he probably needed to talk to a lawyer, and not a federal law enforcement agent.

In exchange for his efforts to "help" Mr. Burgess was sentenced to 292 months in prison and a lifetime of supervised release.

The Fourth Circuit Rejects Easy Restitution For Child Porn Victims

The district court in North Carolina also sentenced him to pay restitution to a known victim of child pornography - Vicky.

In United States v. Burgess, the Fourth Circuit joined a number of other circuits to reject this request for restitution for victims of child pornography.

It did so in a way similar to how other courts have approached it - the district court has to make findings of how the defendant in this case caused the harm complained about by the child pornography victim. It's not per se impossible, it's just going to be massively difficult to accomplish.

So, on remand,

The primary difficulty that will face the district court on remand will be the determination, if the court finds that proximate causation has been established, of the quantum of loss attributable to Burgess for his participation in Vicky's exploitation. Vicky is entitled to the "full amount" of restitution for such loss, and we leave the calculation of such an amount to the district court in the first instance. While the district court is not required to justify any award with absolute precision, the amount of the award must have a sufficient factual predicate. Vicky's loss is an aggregation of the acts of the person who committed and filmed her assault, those who distributed and redistributed her images, and those who possessed those images. The culpability of any one defendant regarding Vicky's loss is dependent at least in part on the role that defendant played with respect to her exploitation.

Fair enough - in this line of cases that's kind of the baseline in light of what the First, Second, Third, Fifth, Ninth, Eleventh, and D.C. Circuit's have already held. But wait, there's more . . .

Every Downloading Of Child Pornography Is Separate For Federal Criminal Restitution

But then the Fourth Circuit goes further notes that joint and several liability does not apply for child pornography restitution awards - at least in cases involving possession and receipt.

We also observe that the tort concept of joint and several liability is not applicable in this context. In situations such as Vicky's, individuals viewing her video recordings inflict injuries at different times and in different locations. Therefore, those individuals cannot have proximately caused a victim the same injury. As the court observed in Monzel, "so long as the requirement of proximate cause applies, as it does here, a defendant can be jointly and severally liable only for injuries that meet that requirement." Monzel, 641 F.3d at 539 (citing Restatement (Second) of Torts § 879 cmt. b (1979) for the proposition that individual instances of exploitation are separate injurious results).

This is going to create an odd kind of restitution award if a district court is ever able to find that a child pornography possessor has proximately caused harm to someone in Vicky's situation.

How would you approach that at a hearing? The images depicting Vicky were downloaded, let's say, 100,000 times. Is the quantum of harm from each download the same? Do you just divide? Does it matter if one person says he looked at the images every day and others looked weekly? Do you want to count views or downloads?

How desperately are district court judges going to find a way to avoid thinking too much about any of this?

You Can't Assume Yourself Into Immunity

And, to answer the lingering question from Mr. Burgess's statements were entitled to any kind of immunity because he was trying to cooperate with law enforcement to get his sentence reduced, the Fourth Circuit said no.

Mr. Burgess argued that because he was trying to provide substantial assistance to help catch child pornographers in the Philippines and Russia, his statements couldn't be used against him.

Sometimes, a lawyer can negotiate that deal for a client - which is why Mr. Burgess probably should have used a lawyer to negotiate his immunity deal.

As the Fourth Circuit explained,

A defendant's alleged agreement to cooperate with law enforcement authorities in exchange for transactional immunity is governed by traditional principles of contract law, and therefore an agreement of this nature may be express or implied. United States v. McHan, 101 F.3d 1027, 1034 (4th Cir. 1996). Irrespective whether the alleged agreement is express or implied, the defendant must establish that a meeting of the minds occurred such that the government agreed to refrain from prosecuting the defendant in return for his cooperation. Id. (holding that the same standard applies with respect to equitable immunity).

In this case, Burgess can identify no action or statement on the part of the government sufficient to establish a meeting of the minds regarding immunity for his statements. Burgess was informed of his Miranda rights before every exchange with the authorities, and at no time did a law enforcement agent make any statement or representation concerning immunity. Additionally, the agents' conduct cannot be viewed objectively as impliedly offering immunity to Burgess or as accepting such an offer from him. Additionally, the agents' conduct cannot be viewed objectively as impliedly offering immunity to Burgess or as accepting such an offer from him. Indeed, Burgess' own testimony at trial demonstrated his mistaken belief that, despite repeated Miranda warnings, he expected to receive a benefit from providing information to the authorities. Such a mistaken belief, however, cannot serve as the foundation for an immunity claim.

It's a dark side to the rise of DIY culture. There's nothing wrong with DIY painting or bicycle repair. Perhaps it's less helpful to have do it yourself negotiations with federal criminal authorities.

Related Links:

August 20, 2012

A Note To Our Readers

Gentle readers,

I hope this finds you well. I wanted to raise two things with you.

First, as you'll likely have noticed, I haven't been too active here since June (in the sense that I haven't been active here at all). I gave myself a bit of a summer vacation that lasted longer than I'd originally planned.

1288990_beachin_it_1.jpgI wrote a few things for Above the Law on the Supreme Court (here are links to my coverage of the Fair Sentencing Act, Williams v. Illinois, and the Stolen Valor Act). I also represented some folks as a part of my day job (for some reason, much of my summer was spent representing people in white collar investigations instead of indicted cases - I'm not sure why).

I hope you were able to find another place to find high-quality, yet light and jaunty descriptions of federal criminal appeals these past few weeks.

Alas, from the blog's perspective, I consider my summer vacation to be over.

Second, many an astute reader has reached out to let me know that, ahem, I've missed a few cases. It's true. Since, perhaps, the early spring I've fallen short of writing about every reported decision where a defendant wins (even before my summer break). Too many people have their cases remanded for a completely uninteresting (to anyone else) problem with a supervised release condition, or a guidelines issue that should have been completely obvious, or because Booker requires every defendant in a criminal case to receive probation (that last one is something I heard in a jail the other day - it may not be the law (though soon it won't matter because any minute now Congress will approve the 65% good time credit law)).

So, to be clear, I've been curating which cases I write about for a while. And I'm likely to continue. I suppose you may not care - if you're reading this blog for comprehensiveness you're on a quixotic errand from the jump - but it is a minor adjustment to what I've been saying I'm offering.

Going forward I'm likely to skip some of the cases I used to spend serious time with - like those Special Assessment wins.

And, as always, if you have comments, please leave them or feel free to email me.

Thanks for reading!

Matt

August 19, 2012

For Federal Fraud Sentencing Purposes, If You've Defrauded One Wal-Mart, It's The Same As Having Defrauded Them All

I'd like to think that Cedrick Stubblefield has Occupy Wall Street sympathies.

Regardless, the Sixth Circuit's opinion in United States v. Stubblefield shows why - if you're going to commit fraud and be prosecuted in federal court - it's better to defraud several Wal-Marts than to hit a bunch of mom and pop stores.

1379920_mom-_and-_pop_store.jpgDon't Keep Your Drugs Near Evidence of Your Fraud

Mr. Stubblefield was being driven in a rental car near Cleveland, Ohio. The car was pulled over for speeding.

The officer's backup had a drug detection dog. The dog detected drugs in the rental car.

While searching the car, the police happened upon an envelope containing: 10 false driver's licenses with either Mr. Stubblefield's photo or the photo of another gentleman in the car; 20 Chase bank checks payable to the names on the fake Texas licenses; and maps and driving directions to Wal-Mart stores in the greater Dayton and Columbus Ohio areas.

Later, the police searched a bit more diligently in their station and found another, similar envelope containing more fake licenses, checks, and maps of Wal-Marts in greater Cleveland.

Hello Cleveland, indeed.

How Many Wal-Marts Are There?

Mr. Stubblefield was charged with intent to commit aggravated identity theft and possessing five or more identification documents with an intent to commit identity theft.

The government wanted him to accept a sentencing guidelines enhancement for having between 10 and 50 victims of his crime under U.S.S.G. § 2B1.1(b)(2). The government's theory was that these checks were bound for a number of Wal-Mart stores, and that each store was a separate victim.

Mr. Stubblefield pled guilty, preserving his ability to resist the victim enhancement.

The district court agreed with the government that each Wal-Mart is a separate victim for the fraud guidelines. The Sixth Circuit, however, agreed with Mr. Stubblefield.

The question is whether the Wal-Mart corporation is the victim - in which case there is one victim - or whether each individual store is a separate entity capable of separate victimization.

Section 2B1.1(b)(2)
says that:

(Apply the greatest) If the offense- (A) (i) involved 10 or more victims; or (ii) was committed through mass-marketing, increase by 2 levels; (B) involved 50 or more victims, increase by 4 levels; or (C) involved 250 or more victims, increase by 6 levels.

This, of course, punts on what counts as a "victim". Helpfully, Application Note 1 to the fraud guideline clears that up:

Application Note 1 to § 2B1.1 defines victim thus: "any person who sustained any part of the actual loss determined under subsection (b)(1) . . . . 'Person' includes individuals, corporations, companies, associations, firms, partnerships, societies, and joint stock companies."

So, "victims" for the "number of victim enhancement, includes only the entities who suffered an actual loss - not a guidelines loss.

This is a departure from how a lot of the fraud guidelines works. If you try to defraud someone and are prosecuted in federal court, normally the guidelines looked at what you tried to do, not just what you succeeded in doing. But the § 2B1.1(b)(2) number of victims enhancement is a little more restrictive.

Under this understanding, the Sixth Circuit found that Wal-Mart suffers the whole loss:

The evidence adduced at sentencing in the present case establishes that although the individual Wal-Mart stores take an initial, temporary loss, the Wal-Mart corporation ultimately bears the loss from Stubblefield's crimes. Probation Officer Allen Gold, the only person to testify at sentencing who had spoken to representatives of Wal-Mart, testified that the corporation "do[es] reimburse each store, but each store will first take the loss." The PSR that Gold prepared similarly states that "[u]limately, due to accounting practices of the Wal-Mart Corporation and the corporate guarantee to individual stores that payroll checks will be covered, the Corporation reimburses the individual stores for their losses." Because the evidence does not suggest that the reimbursement hinges on any conditions, the stores' loss is necessarily temporary, which is another way of saying that reimbursement is automatic.3 Moreover, the judgment requires Stubblefield to pay his restitution to the corporation rather than the individual stores. These facts support the conclusion that only the corporation suffers an actual loss--i.e., the "pecuniary harm that resulted from the offense," U.S.S.G. § 2B1.1 cmt. n.3(A)(i) (emphasis added). So the only victim is the corporation, and the district court erred in applying an enhancement based on the number of stores affected.

Happily for Mr. Stubblefield, ripping off a string of Wal-Marts is a lot easier on the guidelines than ripping off a string of non-chain stores.

So - if you want to be community-minded (and commit fraud) - shop local, defraud global.

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