September 2012 Archives

September 27, 2012

Short Wins - First Monday Edition

Autumn is here. With it comes a crisp feeling in the air, leaves turning, the start of the Supreme Court term on the First Monday in October (for a preview of sorts, please see my guide to bluffing your way through knowledge of the upcoming term), and a slowdown in the pace of published opinions coming from our nation's federal appellate courts.

Why the slowdown? My suspicion is that as old law clerks leave the service of their appellate judges at the end of August to be replaced by new clerks -- much as old leaves fall from trees to make way, eventually, for new buds -- the work of the old clerks issues in late August and the work of the new clerks has yet to be rendered in a state fit for publication.

Though perhaps I'm mistaken.

All I know is that I saw the same slowdown last year, and we're seeing it again.

1155650_berlin_siegessule.jpgBut with this relaxed pace comes exciting news. Here at The Federal Criminal Appeals Blog, we are happy to announce that each and every published opinion where a criminal defendant wins in a federal circuit court will be published, here, in the weekly "Short Wins" column the week after it comes out.

Our great hope is that this will be a bounty of 28(j) letters for the federal criminal appellate bar.

So, if you are a federal criminal appeals lawyer -- representing people who are appealing a federal conviction or sentence -- you can come here, each Monday, to see where and how your brothers and sisters in the bar are winning across the country. And, if another win is like a case you have, you can write a letter to your court explaining this supplemental authority.

Then you, too, can have your client's case written up here!

(though, if we miss a case, please email me to let me know)

1. United States v. Spears, Seventh Circuit: Appellant was convicted of five crimes arising out of his operation of an illicit business that produced and sold counterfeit documents. Because the evidence was insufficient to sustain appellant's conviction for unlawful possession of five or more false identification documents, this conviction was reversed, the sentence vacated, and the case remanded for resentencing.

2. United States v. White, Second Circuit: In possession of a weapon by a convicted felon case, the district court erred in excluding two crucial pieces of evidence: (1) the Government's decision to initially charge four women traveling with appellant with possession of the gun allegedly found on appellant's person; and (2) evidence of a prior judicial finding that discredited the testimony of a Government witness. It was error to exclude the first evidence without inquiring into its relevance and probative value. It was error to exclude the second because evidence that might lead a jury to conclude that the witness was willing to lie in a similar case to secure a criminal conviction is both relevant and probative - particularly where, as here, appellant's defense centered on proving that the same witness and other officers lied about finding a weapon on appellant's person. Because these errors were not harmless, the judgment of conviction was vacated and the case remanded for a new trial.

September 25, 2012

A Fuzzy Stipulation Vacates A Conviction In A Bankruptcy Fraud Trial in the First Circuit Court of Appeals

Perhaps Ramie Marston was confused?

She filed for bankruptcy on her own - without a lawyer.

When you file for bankruptcy, you have to fill out a lot of paperwork. Here, Ms. Marston was asked what other names she'd used in the past.

She did not disclose the names "Susan Blake" or "Kristy Kromer" as names that she'd used in the past. These were the names of some of her friends.

875413_balance.jpgYet Ms. Marston had, in fact, used those names herself; she used them when she applied for credit cards in her friends' names.

She was also asked to identify all of her creditors. She did identify Susan Blake as someone she owed money to. She didn't disclose that she might owe credit card companies money based on the charges she made in her friends' names.

The bankruptcy trustee challenged Ms. Marston's petition, so she withdrew it.

Then she was indicted for bankruptcy fraud for not disclosing that she used her friends' names and for not revealing the debt to the credit card companies from using her friends' names.

A funny thing happened at trial. Instead of introducing evidence about what happened with Susan Blake, the prosecutor agreed to a stipulation drafted by defense counsel.

As the First Circuit describes it in United States v. Marston:

the government, instead of presenting a full scale case, accepted a stipulation in which Marston admitted inter alia that she had possessed credit cards bearing the names of both Marston and Blake, that she made purchases with those cards never authorized by Blake, and that the "fraudulent liabilities incurred in Blake's name by Marston totaled approximately $61,545."

The district court judge told the prosecutor not to agree to such a stipulation. Yet the prosecutor agreed.

In any event, Ms. Marston was convicted of all four counts of the indictment and sentenced to 37 months in prison.

Count Four of the Indictment is the one that dealt with the credit card debt relating to Susan Blake.

On appeal, Ms. Marston's lawyer argued that the evidence wasn't sufficient to convict her of that count.

In the First Circuit, and others,

A false oath conviction under 18 U.S.C. § 152(2) requires the government to prove (1) the existence of a bankruptcy proceeding; (2) that the defendant made a false statement in that proceeding under penalty of perjury; (3) that the false statement concerned a material fact; and (4) that the defendant made the false statement knowingly and fraudulently.

The statement in Count 4 that was allegedly false was that she didn't owe the specific credit card companies that issued the fraudulently procured credit cards that Ms. Marston ordered using Susan Blake's name. (or, rather, she didn't list them on a part of the form that she said she had filled out completely - which amounts to the same thing).

The court of appeals found that the government had failed to prove that Ms. Marston's statement was false.

The only evidence of Ms. Marston's credit card fraud involving Susan Blake came from the stipulation. Yet the stipulation just said that the charges happened, were fraudulent, and involved Susan Blake.

The stipulation didn't say that the debts were still outstanding at the time the bankruptcy petition was filed.

As the First Circuit said,

the missing element is proof that at the time that the bankruptcy petition was filed, there were still extant claims against Marston. The stipulation quoted above was enough to prove beyond a reasonable doubt that claims against Marston had arisen when the unauthorized purchases were made; but the prosecutor accepted a stipulation that nowhere said that these claims remained unpaid at the time Marston filled out the bankruptcy forms.

Because there was no proof on this essential part of the element of falsity, the case was remanded for resentencing.

September 24, 2012

Short Wins - Fraud and Child Pornography Edition

Today's short wins are dominated by federal sex offenses and fraud. It must be something in the water.

As the last few have been, this post contains a number of cases that were decided over the end of the summer.

1155650_berlin_siegessule.jpgVery soon -- perhaps even next week -- the Short Wins will start to become a recap of all the published federal criminal defense wins from each of the circuits on a weekly basis. So, if you're an criminal appellate practitioner (on the defense side), our hope is that this will soon be one stop shopping for 28(j) letters.

One other note - I had a preview of sorts for the upcoming Supreme Court term at Above the Law called Kaiser's Guide To Bluffing Your Way Through Knowledge About The Supreme Court's New Term to Non-Lawyers. It's not long on criminal defense stuff, but I do make fun of lawyers.

To (the) victories:

1. United States v. Marston, First Circuit: In bankruptcy fraud case, appellant appealed her conviction for knowingly and fraudulently failing to disclose certain debts to creditors on her bankruptcy petition that were incurred under appellant's friend's name, which appellant used without her friend's permission. Because the government failed to prove that, at the time appellant filed the petition, there were still outstanding claims by these creditors, her conviction was improper, warranting reversal.

2. United States v. Cunningham, Third Circuit: In child pornography case, the district court abused its discretion by failing to review child pornography video clips found on appellant's computer before admitting them into evidence and by allowing the videos to be shown to the jury. Because the highly inflammatory nature of the videos clearly and substantially outweighed their probative value, and because these errors were not harmless, appellant's conviction was vacated and the case remanded for a new trial.

3. United States v. Leal-Del Carmen, Ninth Circuit: On appeal of appellant's conviction for bringing in illegal aliens, appellant was denied his Sixth Amendment right to a meaningful opportunity to present a complete defense when the government deported an illegal alien who would have provided exculpatory evidence for appellant before counsel for appellant was even appointed. This prevented the jury from hearing anything at all about the testimony of appellant's sole favorable witness. Reversed and remanded.

4. United States v. Robers, Seventh Circuit: In conspiracy to commit wire fraud case, district court erred in including attorneys' fees for collecting a debt and unspecified fees in its restitution order because these fees are not recoverable under the Mandatory Victims Restitution Act of 1996. Vacated improper aspects of restitution award and remanded for entry of new restitution order.

5. United States v. Butler, Tenth Circuit: Brothers James and Marlin Butler, who sold guided deer hunts, pled guilty to conspiring to sell and transport poached deer. In sentencing the brothers, the district court erred in conflating the value of the deer with the full price of a guided hunt. The court also improperly imposed James' special conditions of supervision without considering whether the conditions would interfere with his lawful employment. Vacated appellants' sentences and remanded for resentencing.

6. United States v. Nielsen, Ninth Circuit: In sentencing appellant pursuant to his guilty plea to coercion and enticement of a minor, the district court erred in applying the "repeat and dangerous sex offender" enhancement under U.S.S.G. § 4B1.5(a) based on appellant's adjudication as a delinquent youth. Because the delinquency adjudication did not constitute a "sex offense conviction," the Ninth Circuit vacated the sentence and remanded for resentencing.

7. United States v. Navedo, Third Circuit: In illegal weapons possession case, the district court erred in denying appellant's motion to suppress weapons that police discovered in appellant's home after his warrantless arrest because appellant was detained without reasonable suspicion or probable cause to arrest. Remanded with instructions to vacate the order denying appellant's motion to suppress.

8. United States v. Johnson, Eleventh Circuit: In sentencing appellant after his guilty plea to interfering with commerce by threats or violence, brandishing a firearm during a crime of violence, and being a felon in possession of a firearm, the district court erred in applying a two-level sentencing enhancement under U.S.S.G. § 3C1.2 for reckless endangerment during flight. The court's reliance on three pieces of evidence to support the enhancement was misguided: the first two evidentiary showings were insufficient to prove that appellant actively encouraged or brought about the dangerous conduct, and the court did not make the requisite finding for enhancement for the third. Vacated and remanded for resentencing.

9. United States v. Williams, Ninth Circuit: The district court erred in grouping together appellant's convictions for wire fraud, extortion, and destruction of a letter box for purposes of sentencing under U.S.S.G. § 3D1.2 because the victims of appellant's mailbox-related offenses and his wire fraud and extortion offenses were distinct. The court further erred in applying three sentencing enhancements: (1) a five-level sentencing enhancement under U.S.S.G. § 2B3.2(b)(3)(iii) for brandishing a firearm; (2) a leadership enhancement under U.S.S.G. § 3B1.1(c); and (3) a two-point adjustment under U.S.S.G. § 3C1.1 for obstructing justice. Vacated appellant's sentence and remanded for resentencing.

10. United States v. Alvarado, Fifth Circuit: In child pornography case, the district court erred in automatically imposing a lifetime sentence of supervised release without engaging in any analysis of the circumstances surrounding appellant's crime. Vacated court's order regarding lifetime supervision and remanded for further proceedings.

11. United States v. Murray, Third Circuit: After his release from incarceration on his convictions for traveling interstate to engage in illicit sexual conduct with a minor and possession of child pornography in the District of New Jersey, appellant moved to the Western District of Pennsylvania. When the Pennsylvania probation office sought to modify appellant's supervised release conditions to include new, more restrictive conditions, the district court erred in granting the request without articulating a viable basis for those new conditions. Vacated order; remanded for the district court to more clearly explain why the conditions are no greater than necessary to satisfy the 18 U.S.C. § 3553(a) sentencing factors.

September 19, 2012

You're Only Guilty Of Messing With A Helicopter Over Boston Harbor With A Laser Pointer If You Intend To Mess With The Helicopter

Gerard Sasso made some bad decisions.

As humans have for thousands of years, he enjoyed stargazing. He also had an odd habit of collecting laser pointers - perhaps inspired by that scene in the 1985 Val Kilmer film "Real Genius" where a laser leads to an improbably awesome party.

Mr. Sasso's use of a laser, though, didn't lead to a super cool party thrown by engineering students - even though it was not far from M.I.T. Instead, it led him to federal prison.

1350922_hd_laser_image.jpgRather, Mr. Sasso pointed one of his lasers at a police helicopter escorting a natural gas tanker through Boston Harbor.

Who knew a shopping trip to Staples could lead a person so awry?

The police take laser pointers very seriously in Boston. One of the officers in the chopper saw the laser light. He told the pilot to avoid looking directly at it. The pilot swerved to avoid the laser pointer, but was unsuccessful and, to quote the First Circuit, "the laser beam hit the aircraft, filling the cockpit with bright green light."

Things got more intense from there.

The troopers elected to abandon their escort mission of making sure natural gas doesn't explode in Boston Harbor, in order to track down the laser pointer menace.

As they flew toward their quarry in a zigzag pattern, the beam struck the helicopter several times. The final strike occurred when the helicopter was approximately half a mile away from the source.

The "final strike" indeed.

Finally, the helicopter called for ground support. Officers went to Mr. Sasso's apartment (which was where the helicopter told them to look).

Mr. Sasso was evasive with the officers. Eventually,

[One of the officers] noticed an item on the defendant's nightstand that appeared to be a laser pointer. When asked about the artifact, the defendant began to backtrack. According to [the officer], the defendant said, "I did it. It was me," and added that he was sorry and did not mean to cause all the commotion. The defendant explained that he had a penchant for stargazing, and that when he saw the helicopter he decided to "light it up." When he heard the helicopter directly overhead, he "got scared" and hid the laser that he had pointed at the helicopter in a baseboard heater.

Mr. Sasso then showed them where he kept nine other laser pointers.

He was charged with a violation of 18 U.S.C. § 32(a)(5) - performing an act that interferes with an aircraft with reckless disregard for human life.

Mr. Sasso went to trial and was convicted. He was sentenced to three years in prison.

His defense was that he admitted he used the laser pointer, but that it was just a laser pointer and he didn't mean to harm anyone or foresee that harm could result.

The jury was instructed that:

the government must prove that the defendant willfully interfered with a person engaged in the authorized operation of an aircraft. To act "willfully" in this context means to act deliberately and intentionally, on purpose, as opposed to accidentally, carelessly or unintentionally. If a person's actions interfere with an aircraft operator, you may infer that the person acted willfully if his actions were deliberate and intentional and had the natural and probable effect of interfering with the aircraft operator.

The defense objected - Mr. Sasso acted willfully to the extent that he intended to aim the laser, but he did not intend to interfere with the aircraft's operation.

The trial court disagreed and gave the instruction above.

The First Circuit, in United States v. Sasso, agreed with Mr. Sasso's lawyers. As the court of appeals said,

Reasonable jurors could understand from the quoted instruction that it would be enough to convict the defendant if they found that he deliberately pointed a laser in the helicopter's direction and interference occurred as a natural and probable consequence of that action, regardless of whether the defendant knew that interference was a natural and probable effect of the action. So viewed, the instruction did not adequately distinguish between negligently (but innocently) pointing a laser at objects in the sky without any intent to interfere with the operation of an aircraft and "willfully . . . interfer[ing]," which is the level of scienter demanded by the plain text of the statute.

And, with that, Mr. Sasso's conviction was vacated and the case sent back for a new trial.

September 18, 2012

The Fourth Circuit Grants A Coram Nobis To Correct A Grave Immigration Injustice In A Bank Fraud Case

Sometimes I don't even recognize the Fourth Circuit anymore. They granted a coram nobis writ in a case based on bad immigration advice in United States v. Akinsade.

The Embezzlement at the Bank

Mr. Akinsade worked at a Chevy Chase bank in 1999. He was nineteen years old and was a lawful permanent resident in the United States - he had come here legally from Nigeria.

Mr. Akinsade cashed checks for friends in his neighborhood. He pocketed some of the money.

He then felt guilty and told his boss, who called the FBI. He cooperated with the FBI against his friends.

He was charged with embezzlement by a bank employee.

599375_wigs.jpgThe Lawyer and the Plea

Mr. Akinsade really did not want to be deported. His lawyer worked out a plea for him, and told him that if he plead guilty, he couldn't be deported.

His lawyer said that since he was only pleading guilty to one offense, he would be unable to be deported. Just like the rule that a husband and a wife can't be arrested for the same crime, that's not the law.

He went to court to plead guilty. The district court judge had the following exchange with him:

The Court: [P]eople who are found guilty of felonies, often lose their right to vote, certain professional licenses may be denied them, may not be able to serve on a jury. And I know felons can't possess firearms. Certain jobs may be denied you. If you are on parole or probation with another system, that can be affected. Or if you are not a citizen, you could be deported. All of these things could be triggered by being found guilty of a felony. Do you understand that?

Akinsade: Yes, Your Honor.

He was sentenced to one month of community confinement, three years of supervision, a Special Assessment of $100 and restitution of $8,000.

Mr. Akinsade Makes Good

As the Fourth Circuit said,

After serving his sentence, Akinsade attended the University of Maryland where he received a bachelor's degree in computer science. He later earned a master's degree from the university, graduating with a 3.9 GPA, and received a fellowship from the National Science Foundation. Akinsade then entered into a leadership program at General Electric Company and moved to upstate New York.

The United States Government Doesn't Care If Mr. Akinsade Made Good

Nine years after his conviction, Mr. Akinsade was arrested and placed in immigration detention. He was detained for nine months, then charged as a removable alien.

He filed a coram nobis petition based on his lawyer's Very Bad Advice.

A coram nobis petition is authorized under 28 U.S.C. § 1651. Basically, it lets a court set aside a conviction if the person seeking to set it aside is no longer locked up and is suffering an ill effect of the conviction.

Though, of course, the person still has to have a really good reason to set it aside. The Fourth Circuit explained that,

As a remedy of last resort, the writ of error coram nobis is granted only where an error is "of the most fundamental character" and there exists no other available remedy. United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988). The writ is narrowly limited to "'extraordinary' cases presenting circumstances compelling its use 'to achieve justice.'" United States v. Denedo, 129 S. Ct. 2213, 2220 (2009) (quoting United States v. Morgan, 346 U.S. 502, 511 (1954)). Thus, the writ provides relief in cases where the error "rendered the proceeding itself irregular and invalid." United States v. Addonizio, 442 U.S. 178, 186 (1979) (internal quotation marks and citation omitted) (superseded by statute on other grounds). A petitioner seeking this relief must show that "(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character." Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987).

The District Court Also Doesn't Care That Mr. Akinsade Made Good

The government fought the petition every step, and the district court rejected the petition.

Mr. Akinsade argued that if his lawyer had advised him on what the law is, rather than on what he imagined the law to be, but was too lazy to look up or find out, he wouldn't be getting deported.

The district court said that its questions during the plea colloquy were enough to mean that Mr. Arkinsale knew he could have been deported, regardless of the lawyer's advice.

The Fourth Circuit disagreed,

in light of the equivocal nature of the admonishment, counsel's affirmative misadvice that is clearly contrary to law, and the severity of the consequence itself.

Because the district court only told Mr. Arkinsale that he could be deported, but not that he would be, the Fourth Circuit held that the plea colloquy was not sufficiently definite as to override his prior lawyers faulty advice.

The Lawyer Also Didn't Really Investigate the Facts

Finally, to win, Mr. Arkinsale had to prove that if it weren't for his lawyer's advice he would be in a different position.

Mr. Arkinsale's deportation proceedings were under a provision that applies to folks who were involved in a fraud of more than $10,000. In his criminal case, his lawyer said that if he'd gone to trial, he could have argued that he was only involved in two checks that totaled $8,000, and would have disputed a third check that put him over the $10,000 threshold.

Indeed, his restitution amount was a mere $8,000.

The Fourth Circuit found that was good enough to show that if the lawyer's advice hadn't been wrong, things would have been different. The court of appeals granted the coram nobis.

While his lawyer's bad advice did mean that Mr. Arkinsale spent months in prison when he shouldn't have, at least he isn't going to be deported.

September 14, 2012

Ineffective Assistance Of Counsel Claims Matter Even In Cases From Afghanistan, Says the DC Circuit

The war on terror[ism] is a massive new problem for society. And, of course, when there's a massive new problem for society, that ends up being a massive new problem for lawyers.

Despite the debate about whether or not to close the detention facility in Guantanamo Bay - both between Obama when he was a candidate and as President, and in society at large - and the discussion about whether to have civilian or military trials for alleged terrorism suspects, a very real part of the war on terror[ism] has been playing out in our federal courts.

The D.C. Circuit's opinion from last week in United States v. Mohammed is a nice example.

1124515_deserted_houses.jpgDon't Trust Just Anyone To Help With Your Missile-Buying

Mr. Mohammed lived in the village of Geratak in Afghanistan. If a man named Jaweed is to be believed, one day, Jaweed walked into Geratak and asked to speak with Mr. Mohammed.

Upon meeting Jaweed, Mr. Mohammed then invited Jaweed into his planning to attack a NATO airbase in Afghanistan. Specifically, Jaweed says that Mr. Mohammed asked him to get some missiles to use to attack the airbase.

As any federal criminal defense lawyer - or frequent viewer of The Wire - would suspect, Jaweed then went to law enforcement. Just like on The Wire, he went to the DEA, who were working in Afghanistan.

The DEA agents did what DEA agents do - they wired up Jaweed. Jaweed then recorded calls with Mr. Mohammed where he made some boasts about attacking the airfield.

Initially, the DEA decided they would give the missiles to Jaweed, and then arrest Mr. Mohammed as soon as Jaweed handed over the missiles. At some point, someone in the federal law enforcement community determined that handing missiles to a person in Afghanistan who has bragged about wanting to harm a NATO airbase - using missiles - is not a good idea.

A New Plan Is Hatched

If you only have a hammer, you only see nails. The DEA decided to arrest Mr. Mohammed for narcotics trafficking, instead of planning to attack the airbase.

Jaweed was instructed to talk to Mr. Mohammed about a friend of his looking for opium. Mr. Mohammed said he knew a guy who could get opium, and they talked about what Mr. Mohammed's commission for getting the two friends together would be. At one point, Mr. Mohammed said he'd use his commission to buy a car to transport the missiles to attack the airbase.

If there's anything the DEA knows how to do, it's a controlled buy. The opium deal went through and the agents got some good video of Mr. Mohammed handling opium.

The DEA did another deal - this time for heroin. During this deal, Jaweed told Mr. Mohammed that his friend was planning to send the heroin and opium to the U.S. Mr. Mohammed expressed pleasure at this idea - saying that their common goal was to "eliminate the infidels either by opium or by shooting".

Mr. Mohammed Is Arrested

The DEA arrested him in Afghanistan and drove him to a DEA base. He was given Miranda warnings and made a statement.

The D.C. Circuit noted that "[a]t no time [during the interview] did Mohammed ask for an attorney"

He was transferred to the United States and put on trial in the United States District Court for the District of Columbia.

The Trial

Mr. Mohammed moved to suppress his statement, but the district court said that he was Mirandized and had the consequences of giving a statement explained to him, so no dice.

The trial lasted four days. Jaweed testified for two of those days. Mr. Mohammed's lawyer called no witnesses and offered no evidence. He was convicted of narcoterrorism and given two life sentences.

Ineffective Assistance of Counsel

The D.C. Circuit is a good court to practice in for a number of reasons - one of which is that you can raise an ineffective assistance of counsel claim in your direct appeal.

In many other circuits around the country, if your lawyer messed up, and that affected what happened to you, you can't complain about that in the appeal - you have to wait until after the appeal and file a petition under 28 U.S.C. § 2255.

But not so in the District of Columbia. Here, if you can show that your lawyer was constitutionally ineffective from the record before the court on appeal, the D.C. Circuit will consider your claim.

It almost makes up for not being able to vote for a Senator.

Here, Mr. Mohammed said that he had a number of witnesses in Afghanistan that he wanted his lawyer to interview.

These witnesses, he said, could have shown that Jaweed was a liar who hated Mr. Mohammed and was out to get him. Since Jaweed was the star witness, if Mr. Mohammed could have found and brought over witnesses to say Jaweed was biased or a liar, it could have gone a long way in his trial.

As the D.C. Circuit said, Mr. Mohammed's lawyer "owed him a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." If he didn't try to contact witnesses - even ones in a remote village in Afghanistan - he may not have given Mr. Mohammed the legal representation the Constitution guarantees him.

Sadly, the rest of the details of the ineffective assistance are under seal.

And so, the case was remanded to the district court on the ineffective assistance claim.

September 12, 2012

Using Someone Else's Credit Card Is Not Always "Access Device" Fraud, or, Why You Shouldn't Leave Your Job If You're Running a Fraud Scheme

Ronda Nixon's career was on the upswing. She had logged her time as a Mary Kay Cosmetics representative. She had spent time in a job working at a small law firm - first as an assistant and then she worked her way up to bookkeeper and paralegal.

Finally, she was ready to make her move. She left her old jobs behind to go to law school. She was moving on up.

1031341_makeup_kit.jpgUnfortunately, her former boss - Garis Pruit - took ill. While he was recovering from surgery, he received a call from the bank.

His bank wanted to know why he was delinquent on his line of credit.

Mr. Pruitt thought Ms. Nixon had paid it off already.

An audit was performed. The audit found evidence that Ms. Nixon wasn't so much paying the law firm's bills, as she was paying her own bills with the law firm's money.

Specifically, she had access to the firm's American Express card.

She also had access to a Mary Kay Cosmetics credit card processing mechanism - so she could charge the firm's Amex to her Mary Kay account and take home the money.

She also wrote herself some checks from the firm's account. And she created a line of credit for the firm - that went to her - at the American Express Bank.

Here's how the Sixth Circuit, in United States v. Nixon, summarized the charges:

Nixon was indicted on eleven counts of wire fraud, in violation of 18 U.S.C. § 1343 (one count for each credit card charge that ended up in her [Mary Kay] account), two counts of bank fraud, in violation of 18 U.S.C. § 1344 (one count for each of . . . two checks written from the American Express Bank line of credit), three counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A (one count for using Pruitt's social security number and signature to set up and use the account at American Express Bank and two counts for each of the checks that she forged in Pruitt's name), and one count of using an unauthorized access device, in violation of 18 U.S.C. § 1029(a)(2) (for charging more than $1,000 on the firm's credit card without authorization).

The jury convicted her on every count.

On appeal, Ms. Nixon was represented by a former Bristow Fellow - Annie Owens at Wilmer Hale.

Ms. Owens argued for Ms. Nixon that the access device fraud conviction was not supported by sufficient evidence to allow a jury to convict.

Access device fraud under section 1029(a)(2) requires fraud involving as access device (it's really well named). "Access device" for these purposes, under 1029(e), means:

any access device that is lost, stolen, expired, revoked, cancelled, or obtained with intent to defraud

Thus, as the Sixth Circuit noted,

Key to the charged offense is that the intent to defraud be present both when the "access device" is obtained and when it is later used.

The Sixth Circuit concluded that the law firm Amex was not an "access device" as the term is used in the statute.

As the court of appeals said,

Here, the uncontradicted proof established that Pruitt had authorized Nixon to obtain the American Express credit card for his firm's use. Because there was no proof at trial that Nixon had the intent to defraud Pruitt or the firm at the time she obtained the credit card (as opposed to her later unauthorized use of the card), the government did not prove an essential element of the crime.

Congratulations to Ms. Nixon who is going back for resentencing on the other 16 counts of conviction.

Congratulations too to Ms. Owens for her work on this side of the criminal defense world.

September 12, 2012

Short Wins - Sixth Circuit edition

It used to be that I resented the Sixth Circuit for not having an RSS feed. If you want to see the latest from the Sixth Circuit, you have to subscribe by email. You can't just go to their webpage.

But now, frankly, I love getting a friendly email blast every day to that circuit of the Kentucky Derby, 3-way chilli, and no-fourth-amendment-protection-for-GPS-cell-phone-data.

1073989_buckeye.jpgAnd so, in celebration to the Sixth Circuit, here is a Sixth Circuit focused edition of Short Wins.

Next week, I promise, we'll start with more breaking news from around the country.

In the meantime, here's news of Batson, oxycodone, and fraud. Oh my!

1. Campbell v. United States, Sixth Circuit: In conspiracy to commit wire and mail fraud case, defense counsel provided ineffective assistance by failing to file an appeal despite appellant's request to do so - even though appellant's guilty plea included a partial waiver of his right to appeal.

2. United States v. Bazazpour, Sixth Circuit: In money laundering and arson case, district court erred in applying a two-level obstruction of justice sentence enhancement under U.S.S.G. § 3C1.1 because the court did not make an explicit finding that the appellant gave false testimony. As a result, the Sixth Circuit remanded for resentencing to determine whether a 3C1.1 enhancement is proper.

3. United States v. LaPointe, Sixth Circuit: In drug case, the appellant was entitled to a new trial on his conviction for conspiring to distribute or possess with intent to distribute oxycodone because he was improperly denied a jury instruction on a lesser-included offense.

4. United States v. D. McAllister, Sixth Circuit: In wire and bankruptcy fraud case, the appellant challenged the government's peremptory strike of the only two African-Americans in the jury pool under Batson v. Kentucky. Because it was unclear whether the district court satisfied the third step of the Batson challenge, remand was required for the court to make explicit findings as to whether the appellant established the existence of purposeful race discrimination in the selection of his jury and, as a result, whether his Batson challenge requires reversal of his conviction.

5. United States v. T. McAllister, Patterson, Hughes, Ratcliff, Weeks-Savage, Sixth Circuit: In drug conspiracy case, Mr. Hughes' sentence was procedurally unreasonable because the district court did not explain why it rejected his non-frivolous argument regarding the disparity between his sentence and that of his co-conspirators. Mr. Hughes' sentence was vacated and the case remanded for resentencing.

6. United States v. Morgan, Sixth Circuit: In drug and firearm discharge case, remand for resentencing was warranted because the district court erred in (1) double-counting the appellant's conduct in discharging the firearm and (2) applying the attempted-murder Guideline to the appellant's sentence where the facts did support a finding that the appellant had a specific intent to kill.

7. United States v. Welch, Sixth Circuit: In counterfeiting case, remand for resentencing was appropriate because the district court violated the Ex Post Facto Clause by relying on a Sentencing Guidelines amendment not in effect at the time of the appellant's illegal conduct which, in turn, subjected appellant to a harsher sentence.

And, finally, let me thank the newest lawyer in Kaiser, LeGrand & Dillon PLLC, Rachel Browder, for her continuing help with the "Short Wins" feature.

September 10, 2012

Short Wins

I was lucky last week to be able to get together with a fan of this blog (yes, there are fans of this blog who are not my mother. I'm kind of surprised too.).

The reader I was lucky to meet with had a wonderful suggestion. He saw the point behind not doing a full treatment of each case, as I described earlier.

Yet, he said, I could still do a very quick treatment of each case, even if not every case gets the loving and lengthy discussion that may be the reason folks read this and is the fun behind writing it.

1146459_victory.jpgSo, we're going to experiment with that. Here is the inaugural post of "Short Wins" - short descriptions of wins in the federal circuits.

This installment isn't going to be comprehensive -- there's too big a gap since I started being selective about what gets posted. But hopefully soon, we'll start doing this weekly and updating on the criminal defense wins from the past week.

And, as always, please let us know what we can do better in the comments.

1. United States v. White, Second Circuit: On appeal of appellant's conviction for possession of a weapon by a person previously convicted of a felony, the district court erred in (1) excluding evidence that the government initially charged other occupants of car in which he was traveling with possession of the firearm the government claimed was found on his person and (2) improperly limited cross-examination of a government witness by barring the appellant's use of a prior adverse credibility finding in a similar but unrelated case. Vacated conviction and remanded for a new trial.

2. United States v. Reyes, Second Circuit: On appeal of appellant's 188-month sentence for bank robbery, holding that a district court erred in relying on the Presentence Report's description of the appellant's pre-arrest conduct that culminated in a prior conviction to determine whether that prior conviction constituted a "crime of violence" under U.S.S.G. § 4B1.2(a)(1) where the appellant did not object to the report's description.

3. United States v. Beardsley, Second Circuit: In child pornography case, district court erred in sentencing appellant to the mandatory minimum sentence established by 18 U.S.C. § 2252A(b)(1) because the "categorical approach," rather than the "modified categorical approach," was the appropriate standard to use to analyze the facts of appellant's prior state conviction for endangering the welfare of a child. Vacated sentence and remanded for resentencing.

4. United States v. Davis, Second Circuit: Because there was no evidence that the appellant engaged in any conduct that demonstrated a desire to injure a DEA agent or would cause an agent to apprehend immediate injury, appellant's conviction for resisting arrest was overturned.

5. United States v. Graham, Second Circuit: Reversing appellant's conviction for using an explosive to commit a felony because the gun cartridge used did not constitute an "explosive" for purposes of 18 U.S.C. § 844(h)(1).

6. United States v. Wernick, Second Circuit: In child pornography case, remanding for resentencing because the district court erred in considering certain sexual conduct directed at young children not charged in the indictment or proven at trial as "relevant conduct" that increased the appellant's Guidelines offense level on his conviction for persuading, inducing, and enticing minors to engage in sexual activity.

7. United States v. Highsmith, Second Circuit: Remanding for resentencing on appellant's conviction for conspiracy to distribute at least 50 grams of crack cocaine to apply the reduced mandatory minimum sentences prescribed by the Fair Sentencing Act, which was passed after the appellant committed this offense but before he was sentenced.

8. United States v. Worley, Fourth Circuit: In drug case, reversing three conditions of supervised release that affected the appellant's relationship with his girlfriend and children because the restrictive conditions, which were based on the appellant's more than decade-old state sex offense conviction, were not supported by evidence that the appellant was a danger to his family. The remaining conditions, which went "well beyond" state sex offender registration requirements, were vacated and remanded for further proceedings because the appellant's state sex offense conviction, standing alone, was insufficient to support the conclusion that his current behavior required the restrictions.

9. United States v. Akinsade, Fourth Circuit: Vacating appellant's conviction for embezzlement and granting petition for writ of error coram nobis because defense counsel's affirmative misrepresentations that the crime was non-deportable prejudiced the appellant and resulted in a fundamental error requiring coram nobis relief.

10. United States v. Gomez, Fourth Circuit: Where appellant pled guilty to unlawful reentry of a deported alien after an aggravated felony conviction, the district court erred in applying the "modified categorical approach" to determine that appellant's prior child abuse conviction constituted a crime of violence under Guideline §2L1.2(b)(1)(A)(ii) because there was no divisible use-of-force element under the child abuse statute. Because the error was not harmless, the sentence was vacated and the case remanded for resentencing.

11. United States v. Horton, Fourth Circuit: In possession of a firearm by a convicted felon case, the district court erred in applying the cross-reference provision in Guideline § 2K2.1(c)(1) and in treating as relevant conduct a murder that occurred during the course of an unrelated and uncharged offense, which substantially increased appellant's advisory guidelines range. Vacated sentence and remanded for resentencing.

September 6, 2012

The Prosecutor And District Court Should Try Really Hard To Make It Seem Like They Don't Hate Cubans When Sending A Cuban To Prison

Giraldo Trujillo-Castillon came to this country from Cuba when he was seventeen.

Like they say, you can take the man out of Cuba, but you can't take the Cuba out of the man. Or so seemed to believe a federal prosecutor and district court judge.

Mr. Trujillo-Castillon was accused of fraud in federal court.

He pled guilty. He went to sentencing.

1212572_cuban_convertible_pesos.jpgAn Anti-Cuba Sentencing Hearing

The government asked for the high-end of the sentencing guidelines range. The request was not made because of Mr. Trujillo-Castillon's conduct, but, rather, because this Assistant United States Attorney doesn't appear to think well of Cubans. As the Seventh Circuit explained,

Pointing to the defendant's admission that he viewed fraud differently than violent crimes, the government argued that "it may be possible to explain his stated attitude because of his Cuban heritage. . . . Maybe there is a different attitude toward private property in Cuba." The government noted Trujillo-Castillon's statement that his only friend in the United States was his wife, and said that "if you play by the rules, if you join us, if you become American, [you] will have many [] friends in the United States." The government then turned to "why people should come to the United States," professing that "if he came here because he thought it would be easy, then I would simply suggest that he and others like him either wise up, or don't come."

Not to be outdone, Mr. Trujillo-Castillon's own lawyer explained that perhaps being Cuban has some downsides - in the sense that you're more likely to commit property crimes. Again, here's how the Seventh Circuit explained what happened:

Defense counsel did not object to this line of argument; instead, he responded in kind. He explained that there is an "attitude" in Cuba that when you steal "you're pulling a Robin Hood type of act." He suggested that many Cuban immigrants have a hard time adjusting to "the American way of life."

It must have been very lonely to be Mr. Trujillo-Castillon.

I feel for the district judge at this point in the hearing.

On one hand, the parties seem to be arguing about whether it's so bad to be Cuban that Mr. Trujillo-Castillon should get a lighter sentence, or whether it's so bad to be Cuban that Mr. Trujillo-Castillon should get a higher sentence.

The judge would naturally feel that it's ok to stay on the "Cubans are bad" train. Except for the fact that it's really creepy to sentence someone based on their nationality. Also it violates their Due Process rights.

Here's how the district court walked the tightrope of animosity toward Cubans:

The court first explained that Trujillo-Castillon's "lifestyle" cannot "be blamed on Cuba." It said that his record was reminiscent of "when the Mariel people came over here and created crime waves all over the place"; "When [Fidel] Castro emptied his prisons, and his psychiatric wards, and Jimmy Carter took them all in." The court continued that, unlike in Cuba, "in America, private property is sacrosanct. It's not the Government's property. . . . And that's the way we live in America. And that's why it's a serious offense when you do this."

The district court then sentenced Mr. Trujillo-Castillo to a sentence seven months above the top of the sentencing guidelines.

The Appeal

Mr. Trujillo-Castillo appealed and the Seventh Circuit remanded the case in United States v. Trujillo-Castillo. The court of appeals started the discussion of the Cuba issue by noting that,

The guidelines make clear that race, sex, national origin, creed, religion, and socio-economic status "are not relevant in the determination of a sentence." U.S.S.G. § 5H1.10; see also 28 U.S.C. § 994(d) ("The Commission shall assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders."). A sentencing court's discretion to consider such factors is also constrained by the Constitution. See, e.g., Pepper v. United States, ___ U.S. ___, 131 S. Ct. 1229, 1240 n.8 (2011) ("Of course, sentencing courts' discretion under § 3661 is subject to constitutional constraints").

The standard that the court of appeals articulated is that remand is required when a reasonable observer might think that reliance on a prohibited factor influenced the sentence.

In this case, the Seventh Circuit held,

we think that both the government and the sentencing court crossed the very fine line of demarcation separating presentencing statements regarding a defendant's relationship with a country or its residents who have engaged in similar criminal activity there and statements concerning the race or national origin of the defendant which would violate his due process guarantees.

The court of appeals criticized both the prosecutor and the district court.

The government should have forgone discussing Trujillo-Castillon's national origin in the first place. And although the court did not expressly adopt the government's position, it did nothing to reasonably assure the defendant that his Cuban heritage would not factor into its calculus. See id. Instead, the court exacerbated the problem by comparing the defendant's conduct to the Mariel people who emigrated from Cuba more than thirty years ago. By lumping the defendant in with the Mariel people and expressly contrasting the values held by Americans with people, like the defendant, "who come[] from Cuba," the court arguably made Trujillo-Castillon's national origin a factor at sentencing. A reasonable observer hearing or reading the remarks might certainly think so.

The court of appeals explained that it wasn't sure if the above-the-guidelines sentence was based on Mr. Trujillo-Castillon's Cuban nationality or some other characteristic. The appellate court directed the district court to either resentence him based on some other factor or explain that the court wasn't motivated by an improper dislike for the Cuban people.

Is there any chance the district court is going to say, in effect, "yes, I was impermissibly biased against Cubans, you should get a new lower sentence" on remand?

I'm betting no.

September 5, 2012

The Eleventh Circuit Vacates Based On A Speedy Trial Act Violation

James Mathurin had a hard adolescence.

As a seventeen-year old, he went on a five-month crime spree in Miami involving armed robberies and carjackings.

Finally, he was arrested when the police suspected that he had carjacked an Acura. He told the police about how he'd spent the past few months. The state law enforcement authorities investigated and corroborated a lot of what he said.

1373852_clock_02.jpgIt seemed that Mr. Mathurin was in a hurry to grow up. Happily for Mr. Mathurin, the federal government was not in enough of a hurry to charge him with a crime - the Eleventh Circuit reversed his conviction for a violation of the Speedy Trial Act in United States v. Mathurin.

The Federal Case

Never one to pass up an easy prosecution, the federal government got involved in Mr. Mathurin's activities. Mr. Mathurin was charged in a juvenile information in federal court in Miami. They asked to prosecute him as an adult.

On August 27, 2009, the federal district court entered an order letting the government proceed against him as an adult.

The government and Mr. Mathurin's lawyer started plea negotiations. At a status conference on December 22, 2009, it became clear that Mr. Mathurin was not interested in a guilty plea.

He was indicted by a federal grand jury on December 29, 2009.

Ultimately, he was tried and convicted of many of the charges. He was sentenced to 492 months. For those of you not used to dividing by twelve numbers in excess of 360, that's 41 years in prison.

The Speedy Trial Act

The federal Speedy Trial Act - at 18 U.S.C. § 3161 - has a number of requirements. One of them is that if a person is arrested or charged by any charging document other than an indictment in federal court, then the person has to be indicted by a grand jury within 30 days - or have the charges dismissed - or the indictment violates the Speedy Trial Act.

Of course, this is the law - there are exceptions to this requirement that are set out at section 3161(h).

One of these exceptions is for "[a]ny period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the government."

The Government Did Not Stop Time

The Eleventh Circuit determined that the 30-day Speedy Trial clock started when the district court ordered that Mr. Mathurin could be tried as an adult, on August 27, 2009.

It is, of course, more than thirty days from August 27, 2009 to December 22, 2009.

The government argued that much of that time they were in plea negotiations, so that time should be excluded under the Speedy Trial Act. The government's view is that the period during which the parties are participating in plea negotiations count as a "period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the government."

Of course, plea negotiations often don't involve the judge - much less the court's consideration of a proposed plea agreement. And the plea negotiations didn't in Mr. Mathurin's case.

Indeed, as the Eleventh Circuit held that "insofar as the District Court was never asked to review a proposed plea agreement during the relevant period," the Speedy Trial clock was not properly tolled as a result of "other proceedings" involving the defendant.

The Eleventh Circuit went out of its way to say that it had to strictly construe the language of the Speedy Trial Act in the wake of Bloate v. United States - an opinion by Justice Thomas that called for strictly hewing to the language of the Speedy Trial Act.

The Other Way To Stop Time

Of course, there is another way to stop the Speedy Trial clock - if the government had asked the district court to find that the time should be excluded because it meets the ends of justice - and complied with the significant procedural requirements discussed by the Supreme Court in United States v. Zedner - it likely could have excluded this time.

But it didn't. And, as a result, Mr. Mathurin's convictions were vacated and the case was remanded with instructions to dismiss the indictment.

The district court judge gets to decide if the indictment is dismissed with prejudice or without. So don't look for notice of Mr. Mathurin's coming home party too soon.

September 4, 2012

The CFTC and Department of Justice Are The Same Party For A Hearsay Rule, Says the Seventh Circuit

David Sklena and Edward Sarvey worked together in the futures pit of the Chicago Board of Trade.

On April 2, 2004, between 7:31 and 7:38 in the morning, the government contends that the two men engaged in a conspiracy to commit commodities and wire fraud.

7776_share_markets.jpgSeven Minutes in April

April 2, 2004, it turns out, was a bad day. Thirty-five seconds into 7:31 a.m. the market price for Five-Year Note futures dropped in response to new unemployment numbers.

That price drop triggered sell orders - it required Sarvey to sell 2,474 of his customer's futures contracts at the best price he could find.

At 7:37, Sarvey sold 2,274 contracts to Sklena at a lower-than-market price. Sklena sold back 485 of them for a slightly higher, but still below-market price.

Both men then turned around and sold the contracts they had purchased for a market price on the open market. Skelna's sales brought in $1.6 million. Sarvey took in $350,000.

During the time that the two men made their below-market and off-market trades, others on the trading floor noticed the two men were huddled together talking. One has the impression that their conversation appeared almost conspiratorial.

The CFTC Investigates

They were investigated by the Commodity Futures Trading Commission (the CFTC for those in the know). The CFTC filed a civil complaint against them for making non-competitive trades.

As a part of that case, the CFTC took lengthy depositions from both men.

The Criminal Charges

The two men were charged in federal court with making noncompetitive trades, and conspiracy to commit wire and commodities fraud.

Before trial, Mr. Sarvey died. Because he died, the Department of Justice no longer prosecuted him.

As a part of his defense, Mr. Skelna wanted to use Mr. Sarvey's deposition testimony from the CFTC matter.

The district court said no - the deposition testimony was not admitted.

Mr. Skelna was convicted. He appealed, and in United States v. Skelna, the Seventh Circuit reversed and remanded based on the failure to admit Mr. Sarvey's deposition.

Hearsay and the Federal Government

The deposition is, of course, hearsay. Hearsay is generally not admissible. However, there are exceptions.

One exception is Federal Rule of Evidence 804(b)(1):

"[t]estimony that [(A)] was given as a witness at a . . . lawful deposition, whether given during the current proceeding or a different one; and [(B)] is now offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination" may be admitted where the witness has since become unavailable.

So, 804(b)(1) applies if the CFTC is the same party as DOJ for the purpose of the deposition and if the CFTC and DOJ had a similar motive between the deposition and later trial use of the testimony.

The Seventh Circuit was comforted that the CFTC and DOJ were close enough by the statutory framework:

the CFTC is an executive branch agency that, although possessing its own litigating authority, is required by statute to report on its litigation activities directly to the Justice Department (which as we said acts as the attorney for the United States). See 7 U.S.C. § 13a-1(a), (f)-(g). This statutory control mechanism suggests to us that, had the Department wished, it could have ensured that the CFTC lawyers included questions of interest to the United States when they deposed Sarvey.

The statutory structure and the way the attorneys were acting gave the court of appeals comfort that the CFTC and DOJ were the same party for Rule 804(b)(1) purposes:

the CFTC and the Department of Justice play closely coordinated roles on behalf of the United States in the overall enforcement of a single statutory scheme. Their interdependence is memorialized in the statute. Perhaps the point would be even more clear if the Department had litigating authority for the agency, as it often does, but we decline to hold that this is the sine qua non for finding that the United States and one of its agencies are in substance the same party. Functionally, the United States is acting in the present case through both its attorneys in the Department and one of its agencies, and we find this to be enough to satisfy the "same party" requirement of Rule 804(b)(1).

Moreover, the court of appeals concluded that DOJ and the CFTC had a similar motive:

Both were investigating the same underlying conduct with an eye to taking enforcement action, and so they shared the same motive to find out what went on. In fact, aside from the Department's need to prove the jurisdictional fact of the use of the wires, the agency and the Department alleged and needed to prove the same allegations, as a comparison of the CFTC's civil complaint and the indictment demonstrates. Furthermore, although the CFTC proceeding was civil in nature and the present prosecution criminal, the deterrent effect of a large civil penalty (like the one that the court ultimately imposed against Sklena) can be similar to that of a criminal sentence.

The Seventh Circuit then found that the error was not harmless. It vacated Mr. Skelna's conviction and remanded for a new trial.