October 2012 Archives

October 31, 2012

The Worst That Can Happen If You're Late To Court Just Got A Little Less Bad; the Fourth Circuit on Criminal Contempt For the Tardy

Robert Peoples is no stranger to car trouble.

After his release from prison, he brought three lawsuits against South Carolina prison officials for violating his civil rights.

On the day of jury selection for his civil rights suit, Mr. Peoples was late. The federal judge hearing the case told Mr. Peoples that he had to be in court the next morning by 9:30.

816170_tire_puncture.jpgThe next day, Mr. Peoples was late. The District Judge, Judge Currie, told him that if he was late again the case would be dismissed.

Mr. Peoples was on time the next day.

Though the day after that he called the courthouse fifteen minutes before he was supposed to be there. Mr. Peoples reported that he had a flat tire and that roadside assistance was on its way.

The district court, in an effort of largess that it would later regret, confirmed that Mr. Peoples had car trouble and dispatched the Marshals to give him a ride to court.

Judge Currie found that Mr. Peoples had left his house in time to get to court, but was delayed by an unanticipated event. The case was not dismissed for his failure to appear and prosecute the case.

The trial went on.

On April 12, sadly, Mr. Peoples was late again. The judge heard argument from the parties about whether to dismiss the case, then decided that Mr. Peoples was willfully late. Judge Currie dismissed the case with prejudice.

What Not To Do After Losing In Court

A person has a number of options when a judge rules against her. She can file an appeal. She can ask for reconsideration. She can decide it's tough marbles and go home.

Mr. Peoples did not pursue these options. Instead, according to the Fourth Circuit, he went into the

courtroom, and approached Deputy Clerk Sara Samsa, who was gathering jury certificates to bring to Judge Currie. Peoples interrupted Samsa and repeated several times, "Tell Judge Currie get the f--- off all my cases. I started to tell her something there. I started to tell her ass something today."


Although the audio of the recording is somewhat garbled, it also contains an additional statement from Peoples in which he tells Judge Currie to "straighten the f--- up" or "straight the f--- up."

(As an aside, I think this is a very dignified way of handling the profanity inherent in this opinion. One would expect such classiness from Judge Diana Motz.).

This caused quite a bit of trouble. Court security was called. Details of finishing the case's dismissal were delayed. The FBI was called to take a statement from the courtroom clerk.

Judge Currie issued a show cause order as to why Mr. Peoples shouldn't be held in contempt. Then Judge Currie recused herself from that proceeding, since the profanity had Judge Currie as its object.

The Varieties of Federal Criminal Contempt

There are two kinds of criminal contempt available to a federal judge - both are under Federal Rule of Criminal Procedure 42.

A 42(a) contempt proceeding is like a criminal trial - the person has a lawyer, has notice and opportunity to be heard, and a prosecutor is appointed.

A 42(b) proceeding is different. Rule 42(b) says that a court "may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies. . . ."

Mr. Peoples proceeding on his regrettable statements about Judge Currie was a 42(a) proceeding. He had a lawyer, notice of the charges, and a prosecutor was appointed.

Old Habits Die Hard

Sadly, Mr. Peoples had car trouble on his way to the contempt proceeding and was late. The judge said that there would be a second contempt proceeding on his tardiness after the first contempt proceeding.

He was found in criminal contempt on the first count having to do with his suggestions about how Judge Currie comport herself. (it's a fascinating read - please check out the opinion for how the court got there if you're interested)

With no break in the proceedings, but with a bit of time for Mr. Peoples to talk to his lawyer while court was still in session, the second contempt proceeding started.

Mr. Peoples was found in contempt of court in that proceeding.

A Summary Hearing

On appeal, in United States v. Peoples, the Fourth Circuit reversed that second contempt finding.

Because the procedural requirements of 42(a) weren't followed, the contempt finding was only allowable if it was a summary disposition for contempt.

And a summary contempt disposition is only allowable if it's for someone who does something contemptuous in the presence of the judge who issues the contempt order.

As the Fourth Circuit has said,

We, and the majority of our sister circuits, do not consider tardiness or absence from court to provide an adequate basis for summary disposition under Rule 42(b). See In re Gates, 600 F.3d at 339 (holding that mere tardiness, like failure to appear, does not occur "in the actual presence of the court" and therefore is not subject to summary punishment (internal quotation marks omitted)); see also In re Contempt Order, 441 F.3d 1266, 1268 (10th Cir. 2006) (explaining that attorney's failure to appear "by no stretch . . . occur[red] within the presence of the court"); In re Chandler, 906 F.2d 248, 249-50 (6th Cir. 1990) ("'A lawyer's failure to attend court is not a contempt in the presence of the court.'" (quoting United States v. Onu, 730 F.2d 253, 255-56 (5th Cir. 1984))); United States v. Nunez, 801 F.2d 1260, 1264 (11th Cir. 1986) (per curiam) ("[T]he majority of circuits which have considered the issue have concluded that counsel's tardiness or absence cannot be characterized as contempt in the presence of the court.").

So, Mr. Peoples second contempt finding could not stand and was reversed, even while his first contempt determination is still good.

If you're thinking about being late to court, think about Mr. Peoples. You may have your case dismissed against your wishes, but at least you can't be held in contempt on a summary disposition.

October 27, 2012

Short Wins - Pro Se Criminal Contempt Reversed And Other Cases

It's a dog's breakfast of victories in the nation's federal criminal appellate courts.

Personally, I love a good case on the district court's contempt power -- look to see the Fourth Circuit's contempt reversal in United States v. Peoples profiled in more depth a little later in the week. The case has everything -- a pro se litigant, a finding of contempt, and profanity (which is tastefully referred to in the opinion). It reminds me of another great pro se contempt case from last year. It reminds me, too, of the Sixth Circuit's relatively recent case on the limits of a district court's power to sanction a lawyer. Always good stuff.

Which is not to give short shrift to the two other wins from last week -- resentencing in an illegal reentry case and unsupported supervised release conditions in a federal sex case.

And, of course, this week the Supreme Court is hearing more arguments and it's a relatively criminal heavy week. Tuesday has a Padilla case, as well as a nice Fourth Amendment question -- can the cops detain someone incident to a search warrant if the person is not actually present when the search warrant is executed. Wednesday is dog sniff day.

Of course, that assumes that Frankestorm doesn't blow the Eastern Seaboard away. Wish us luck with that.

1155650_berlin_siegessule.jpgOn to the victories:

1. United States v. Peoples, Fourth Circuit: On appeal of appellant's two criminal contempt convictions, the Fourth Circuit held that, as to the second conviction, the district court committed plain error when it summarily imposed a contempt sanction for appellant's tardiness because the court failed to provide appellant with notice and an opportunity to be heard, and because this failure affected appellant's substantial rights.

2. United States v. Rodriguez-Escareno, Fifth Circuit: In illegal reentry case, the district court applied a 16-level enhancement to appellant's sentence because it considered his earlier crime, conspiracy to distribute methamphetamine, to be a "drug trafficking offense" under Guideline § 2L1.2(b)(1)(A)(i). The court erred in applying the enhancement because the elements of the conspiracy conviction under 21 U.S.C. § 846 are not consistent with the meaning of "conspiring" under the relevant Guideline: the Guideline requires an overt act, while § 846 does not. This was plain error because it was obvious and affected appellant's substantial rights: had his sentence been properly calculated, his Guidelines range would have been 15-21 months, as opposed to the 41-51 months determined by the court. Appellant's 48-month sentence was vacated and the case remanded for resentencing.

3. United States v. Child, Ninth Circuit: Appellant was convicted of attempted sexual abuse. A condition of supervised release prohibited him from residing with or being around children under age 18, including his daughters, and from socializing with or dating anybody with children under age 18, including his fiancée, without prior approval from his probation officer. The court failed to make specific findings on the record addressing the necessity of restricting appellant's ability to have contact with his children and fiancée. Because of the significant liberty interest implicated, these errors - as well as the absence in the record of any evidence supporting the condition - rendered the condition substantively unreasonable. The condition was also overbroad. For these reasons, the condition was vacated and the case remanded.

October 25, 2012

D.C. Circuit Tells A District Judge, "You've Got The Power [To Impose A Sentence Lower Than The Guidelines Range]"

Pretty much every federal district judge in the country knows by now that the sentencing guidelines are not mandatory, the guidelines can't be presumed to be accurate, and that federal district court judges have authority to impose a sentence above, below, or within the sentencing guidelines, applying the factors set out in 18 U.S.C. § 3553(a).

1268685_washington_monument.jpgAnd so just about every federal district judge knows that if he or she says she's going to give a guidelines sentence, he or she has to also say it's the sentence that they'd give under § 3553(a).

It's odd, but in federal court it's very important that a judge knows what power he has, which is exemplified in the D.C. Circuit's opinion in United States v. Terrell. If a district judge is going to give a guidelines sentence, he or she has to be clear about whether a lower sentence is even possible.

Mr. Terrell had a crack (conviction) problem. He pled guilty to dealing a bit of crack and went to sentencing.

At sentencing, he asked the judge to give him less time than the sentencing guidelines called for. The guidelines in his case called for a sentence of 210 months on the low side (ok, perhaps it was more than "a bit" of crack).

The judge, though, told Mr. Terrell that he didn't think he could help him out. As the D.C. Circuit summarized it,

the court stated that it would sentence Terrell below the applicable Guidelines range only if it found "compelling reasons" to do so. See, e.g., Tr. 6/27/06, at 4:6-14 ("There would have to be compelling reasons for the Court not [to] impose an advisory guideline sentence."); id. at 7:8, 7:18-20 ("Now, I'm not so sure compelling reasons exist here. . . . [I]f you think there's a basis for the Court to impose something other than an advisory guideline sentence it's going to have to be for compelling reasons."); see also Tr. 8/4/05, at 4:16-18 ("In all likelihood, I'm going to follow the guidelines even though they're advisory. In all likelihood I'm going to do that."). The court explained that it had found "compelling reasons" to deviate from the Guidelines in only two prior sentencings. Tr. 6/27/06, at 4:6-14.

If there's one thing a federal appellate court doesn't like, it's being ignored. Just three months before Mr. Terrell's hearing, the D.C. Circuit had decided, in United States v. Pickett, 475 F.3d 1347, 1353 (D.C. Cir. 2007), that a district court can't decide that the sentencing guidelines are presumptively reasonable - put another way, it can't say that it'll only go below the sentencing guidelines if it has compelling reasons.

For the district court to keep on applying a "compelling reasons" standard was, perhaps, a bit of a snub to the august appellate court.

As the court of appeals put it,

Even after we issued our decision in Pickett, the court indicated that it was continuing to apply its "compelling reasons" approach. See Tr. 3/27/07, at 10:2-3 ("The question becomes why shouldn't the Court impose a [within-Guidelines] sentence of 210 months? . . . I just can't think of any compelling reasons why I should not impose a sentence of 210 months.").

Because the district court was wrong about when it could go below the sentencing guidelines - employing a "compelling reasons" approach after the D.C. Circuit had already said that wasn't the law - the D.C. Circuit remanded because, "the [district] court took too narrow a view of its authority to deviate from the Guidelines"

Mr. Terrell will be resentenced.

October 22, 2012

Short Wins - The DC Circuit Has Two Criminal Reversals In One Week

The D.C. Circuit, normally an infrequent presence on this blog, has two cases in one week!

One involves Osama bin Laden's driver and his happy adventures with retroactivity. The was a remand for a judge who thought that a below guidelines sentence is only appropriate when there are "compelling reasons" to go below the guidelines range.

There's also go action in a Sixth Circuit meth case involving the Fourth Amendment, and a crime of violence case out of the Tenth Circuit.

Fire up those 28(j) templates - here are this week's Short Wins:

1155650_berlin_siegessule.jpg1. Consolidated Sixth Circuit Cases: United States v. Beals; United States v. Miller; United States v. Ambrose: In case arising out of an alleged methamphetamine manufacturing and distribution conspiracy, Pamela Miller, Leslie Beals, and Bobby Ambrose challenged their convictions for drug-related offenses. The Court dismissed Miller's appeal and affirmed Beals' convictions. The Court affirmed Mr. Ambrose's convictions but remanded for the district court to make findings on "unresolved matters" related to the execution of the search warrant, the fruits of which were presented at trial. The Court further ruled that, if the district court determines on remand that the officers exceeded the warrant's scope, it should determine whether blanket suppression of all of the evidence presented against Mr. Ambrose is warranted and, if so, how this affects his convictions and sentences.

2. United States v. Hamdan, DC Circuit: Salim Hamdan, an al Queda member who worked for Osama bin Laden, was convicted by a military commission for "material support for terrorism," a war crime specified by the Military Commissions Act of 2006, based on actions he took from 1996 to 2001 - before the enactment of the Military Commissions Act. Because the D.C. Circuit read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under the relevant statute that was on the books at the time of his conduct (10 U.S.C. § 821), the Court reversed the military commissions court's judgment and directed that Hamdan's conviction be vacated.

3. United States v. Joe, Tenth Circuit: In aggravated sexual abuse case, the district court erred when it enhanced the appellants' offense levels for physical restraint of the victim and use of force against the victim because it is impossible to commit aggravated sexual abuse without also applying force that constitutes physical restraint of the victim. Because this error was not harmless, the Tenth Circuit remanded the case to the district court for resentencing.

4. United States v. Terrell, D.C. Circuit: In possession with intent to distribute crack case, the district court committed plain error in sentencing appellant because it took too narrow a view of its authority to deviate from the Sentencing Guidelines. In particular, the Court stated that it would sentence appellant below the Guidelines only if it found "compelling reasons" to do so. This approach was forbidden before appellant's sentencing. Because this error affected appellant's substantial rights and seriously affected the fairness, integrity, or public reputation of the judicial proceedings, resentencing was warranted.

5. United States v. Duran, Tenth Circuit: The district court erred in applying a crime of violence sentencing enhancement when it sentenced appellant pursuant to his guilty plea to possession of a firearm by a convicted felon. Because appellant's prior conviction for aggravated assault can be committed with a mens rea no higher than recklessness under Texas law, the crime is not a crime of violence under U.S.S.G. § 4B1.2(a). As a result, the enhancement did not apply, and remand for resentencing was warranted.

6. United States v. Quinn, Seventh Circuit: In child pornography case, the district court erred in failing to explain its decision to sentence appellant to a lifetime of supervised release. The term of supervised release was vacated, and the case remanded for resentencing with instructions for the court to consider (1) how appellant's arguments that he has a lower-than-normal risk of recidivism affect the appropriate length of supervised release, (2) the interaction between the length and terms of supervised release, and (3) the possibility of setting sunset dates for some of the more onerous terms of supervised release.

October 19, 2012

If You Make A Colorable Argument For A Lower Sentence, A District Court Has To Show That It Considered The Argument, Even If The Crime Is Using MySpace To Try To Have Sex With Underage Girls

Michael Begin was a MySpace user. He used MySpace not so much to keep up with fan information about Twilight, but to make the acquaintance of a fourteen-year-old girl.

Though described as a twenty-year old Marine sniper on his MySpace profile, Mr. Begin was actually a 33 year old man with a history of convictions involving underage girls.

1382778_old_brick_cell_phone.jpgMr. Begin and the fourteen year old talked on MySpace often. Their conversations were sexual in nature. He also used his cell phone to send her two pictures which were perhaps inspired by Congressman Weiner. The girls' mother became concerned. Her daughter told Mr. Begin that she was underage. Mr. Begin was undeterred.

The mother contacted the FBI. An FBI agent took over the girls' MySpace page. In addition to posting praise of Robert Mueller, the FBI Agent, posing as the 14-year-old girl, told Mr. Begin that she is underage.

Mr. Begin was undaunted.

The agent, as the girl, made plans to meet Mr. Begin at a restaurant in Bradford, Pennsylvania.

Mr. Begin showed up carrying a knife, a pair of handcuffs, and a condom. After being Mirandized, he admitted he was meeting the girl to have sex with her.

He pled guilty to a two-count indictment:

Count One charged that Begin violated 18 U.S.C. § 2422(b) by using the internet and a cellular phone to attempt to persuade a minor "to engage in any sexual activity for which any person can be charged with a criminal offense, to wit, statutory sexual assault, in violation of [18 Pa. Cons. Stat. § 3122.1], aggravated indecent assault, in violation of [18 Pa. Cons. Stat. § 3125(a)(8)], and indecent assault[,] in violation of [18 Pa. Cons. Stat. § 3126(a)(8)]." App. 17. Count Two charged that Begin violated 18 U.S.C. § 1470 by using a cellular phone to transfer an obscene image to a minor.

At sentencing, Mr. Begin argued for a variance. As the Third Circuit in United States v. Begin summarized it,

Begin argued that the sentence for his attempt to induce statutory rape under 18 U.S.C. § 2422(b) should not exceed the fifteen-year statutory maximum penalty for actually committing statutory rape within the special maritime and territorial jurisdiction of the United States under 18 U.S.C. § 2243.

The Third Circuit thought this argument was colorable - it was a plausible argument and the district court was, therefore, obligated to talk about it when imposing sentence.

The district court disagreed, and completely ignored the argument when sentencing Mr. Begin to twenty years, double the sentence that he was asking for.

The Third Circuit found that this was not a procedurally kosher way to sentence someone.

Having concluded that Begin's . . . disparity argument has colorable legal merit under § 3553(a)(6), we agree with him that the District Court failed to make a sufficient record to demonstrate its consideration of that argument. Though the Court summarized Begin‟s state-federal disparity argument at the beginning of the sentencing hearing, it did not acknowledge that he had also made a federal-federal disparity argument. The Court asked no questions during defense counsel‟s oral argument in favor of downward variance on this ground and made no comments about the issue following that presentation. Strikingly, the Court did not even specifically rule on Begin‟s request for a variance.

Though, what the Third Circuit gives, it also takes away:

We emphasize that colorable legal merit is distinct from actual merit. There is reason to believe that the predatory nature of Begin‟s conduct and the knife and handcuffs found in his possession distinguish his offense from a run-of-the-mill statutory rape. Indeed, the stiff penalties under § 2422(b) are intended to punish and deter predators who use the reach and anonymity of the internet to perpetrate sex crimes against children. . . . Thus, when we say that Begin‟s claim has colorable legal merit, we mean only that, upon appropriate findings of fact, the District Court would be within its discretion to accept the argument and to factor it into the ultimate sentence.

But Mr. Begin will be going back to the district court for it to make a proper record when imposing sentence. We'll see whether it accepts the Third Circuit's suggestions for how to do that.

October 18, 2012

What's It Worth To You? The Seventh Circuit Looks At The Value Of Things Bought Through Bribery

How do you determine the value of a thing?

Normally, in our free-market (or heavily regulated free-market) economy, we think that the value of a thing is set by what people are willing to pay for it.

If I'll see you my collection of neckties for $10,000, and you'll pay $10,000 to buy my collection of neckties, then we know my collection of neckties is worth $10,000.

But does that way of determining value work when talking about government action bought by a bribe?


The Seventh Circuit's case in United States v. Owens illustrates why this is a hard problem.

1388504_chicago_city_skyline_2.jpgHow To Do Business In Chicago

Dominick Owens worked for the City of Chicago as a zoning inspector. Christoir McPhillip was an "expediter" - a guy who worked with folks who needed things from zoning inspectors to make sure they got the things they needed.

Not surprisingly, for someone working in the shadow of the law, he came into some trouble and wound up cooperating with the federal government. (I'm assuming he came into trouble. The opinion only says that he was a cooperator. My bet is that he wasn't doing it out of a sense of patriotism.)

Mr. McPhillip recorded Mr. Owens taking $600 for issuing certificates of occupancy for single family homes. He recorded him twice taking one bribe each time. Mr. Owens was indicted for two counts of violating 18 U.S.C. § 666(a)(1)(B) - once for each bribe.

The $5,000 Question

Mr. Owens was convicted at trial and appealed. His only issue on appeal was whether the government proved that he violated the bribery statute.

The only element he said the government didn't prove was the value threshold.

According to 18 U.S.C. § 666(a)(1)(B), the thing that was provided in exchange for a bribe - here the certificates of occupancy - has to be worth more than $5,000.

The Value Of A Thing Bribed For

How do you determine the value of the government action that was purchased by a bribe? There are two ways.

First, you can look at the value of the bribe. This is a basic market analysis. If you'd pay $14,000 for the government to indict your ex-wife, then the value of an indictment against your ex-wife is at least $14,000.

As the Seventh Circuit describes it:

at how much someone in the market was willing to pay for the benefit and an official was willing to take to provide the benefit--the value of the bribe. This means that the bribe amount may suffice as a proxy for value; at least it provides a floor for the valuation question.

Of course, that answer cuts against the government in Mr. Owens' case - the bribes were only $600.

The second way is to look at the value of the thing purchased or the value of the benefit to the person paying the bribe received from what he got from the bribe.

In United States v. Curescu, 674 F.3d 735 (7th Cir. 2012), for example, a developer had used an unlicensed plumber to add plumbing to four newly constructed residential units. A plumbing inspector discovered the violation and told the developer that he had to redo the plumbing using a licensed plumber. Id. at 738. Rather than removing the old plumbing and replacing it using a licensed plumber, a different plumbing inspector was bribed to certify falsely that a licensed plumber had completed the plumbing in the four units, which allowed the illegal plumbing to remain. Id. Thus, the value of the false certification was the money the developer did not have to spend redoing the plumbing, an amount that exceeded $5,000.

The government in Mr. Owens case argued that the mortgages at issue in Mr. Owens bribes ranged from $200,000 to $600,000. So, since certificates of occupancy were necessary for the mortgages to be funded, the government said, the certificates of occupancy were worth well more than $5,000.

Not so fast, said the Seventh Circuit.

It cannot be that simple, though, as anyone who complies with the Board of Zoning procedures and has a home that passes inspection can receive a certificate of occupancy for free. Obtaining the issuance of the certificates through greasing a palm rather than through legitimate means must therefore create value in some other way.

What's the other way that a certificate of occupancy issued through a bribe can be valuable?

Perhaps, as the Government suggests, it is obtaining a certificate without an inspection. This could be valuable in at least two ways. First and most obviously, if the home's construction was defective and the home would not pass inspection, paying a bribe and avoiding an inspection would save the cost of performing repairs. Alternatively, a home could be free of zoning violations, but a developer or homeowner places a premium on expediting the issuance of a certificate due to a pressing need to sell or occupy the home or obtain a mortgage with favorable and time sensitive terms.

So, if it's the first way, the value of the benefit from the bribe would be the value of the repairs avoided. If it's the second way, the value would be the value of not losing the time it would take to wait for a legitimate certificate.

The problem for the Government, though, is that it failed to present any evidence of either of these situations in this case, or of any situation in which the issuance of the certificates as a result of the bribes benefitted the developers or homeowners in some way that the issuance of the certificates through legitimate means would not have.

And, without that proof, Mr. Owens conviction was reversed by the Seventh Circuit.

October 15, 2012

Short Wins - Federal Sex Crimes Are Still Good Candidates for Reversal, And Bribery Gets Reversed Too

Last week saw a continuation of the short win trends we've seen in the past -- federal sex crimes are frequently represented. Though this week is heavier on reversals involving enticing a minor.

1155650_berlin_siegessule.jpgThe Ninth Circuit lets a man expand the record to investigate an ineffective assistance claim, the Third Circuit finds that an argument that trying to get someone to engage in statutory rape shouldn't be worse than actually committing statutory rape makes some sense, and a bribery conviction is reversed in the Seventh Circuit because the evidence was insufficient. It's not a bad week in federal criminal appeals.

1. Buenrostro v. United States, Ninth Circuit: Appellant filed several postconviction claims after he was convicted of conspiracy to manufacture methamphetamine and sentenced to a mandatory minimum term of life imprisonment without parole based on his two prior felony drug convictions. Of those claims, the Ninth Circuit granted appellant's motion to expand the record, which sought to reassert a previously raised ineffective assistance of trial counsel claim based on counsel's alleged failure to communicate a plea offer.

2. United States v. Begin, Third Circuit: Appellant appealed his sentence on charges related to his attempt to persuade a minor to have sex with him. At sentencing, he requested a downward variance based on an asserted disparity between his sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under federal law. The district court erred in failing to consider this request at sentencing because (1) the argument had colorable legal merit and (2) the court failed to make a sufficient record to demonstrate that it considered the argument. Because the sentence was procedurally unreasonable, appellant's sentence was vacated and the case remanded for the district court to consider appellant's request for a downward variance.

3. United States v. Owens, Seventh Circuit: Appellant, a zoning inspector, was convicted of two counts of federal program bribery for accepting two $600 bribes in exchange for issuing certificates of occupancy for newly constructed homes. Because there was insufficient evidence to show that the certificates had a value of $5,000 or more as required by the applicable statute, appellant's conviction and sentence were reversed.

4. United States v. Zobel, Sixth Circuit: After pleading guilty to knowingly coercing and enticing a minor to engage in sexual activity, appellant was sentenced to a term of imprisonment and special conditions of supervised release were imposed, including a condition banning him from possessing or viewing "sexually suggestive" materials. Because the condition affects substantial First Amendment rights and calls into question the fairness of the proceedings given the severity of the restriction, the condition was vacated.

5. United States v. Mendiola, Tenth Circuit: Appellant's supervised release, which was imposed pursuant to his conviction for being a felon in possession of ammunition, was revoked. The district court imposed a term of imprisonment, and recommended that appellant participate in a drug treatment program while incarcerated. Because the court committed plain error in basing the length of the sentence on appellant's need to participate in a drug program, the sentence was reversed and the case remanded to the district court for resentencing.

October 12, 2012

You Can Only Be Convicted Of Defrauding A Financial Institution If The Thing You Defraud Is A Financial Institution

Hurricane Georges was bad for Puerto Rico. It destroyed the way of life for a number of Puerto Rican farms. The federal government offered low-interest loans to farmers who were hurt by the hurricane.

The federal government loaned this money through the Farm Services Agency. The Farm Services Agency - as the name suggests - is an agency that provides services to farms. And farmers.

1070316_orange_twister.jpgThe Farm Services Agency hired folks on the ground in Puerto Rico to process loan applications. One such person was Juan Colon-Rodriguez - his friends, including the First Circuit, just call him Mr. Colon.

Mr. Colon was trained as an agronomist. He earned about $45,000 in commissions helping farmers put together loan applications to the Farm Services Agency.

Beware the loan officer who works on commission.

During an audit, the Farm Services Agency found problems with some of Mr. Colon's loan applications. An investigation followed. Mr. Colon was indicted in the United States District Court for the District of Puerto Rico with defrauding a financial institution in violation of 18 U.S.C. § 1344, and making a number of false statements in violation of 18 U.S.C. § 1014.

He was convicted at trial.

On appeal, Mr. Colon challenged his conviction for defrauding a financial institution and the First Circuit, in United States v. Colon, agreed that he shouldn't have been convicted of that charge.

According to the First Circuit, the elements of defrauding a financial institution are:

(1) the defendant must engage in a scheme or artifice to defraud, or must make false statements or misrepresentations to obtain money from (2) a financial institution and (3) must do so knowingly.

The trouble is, not everything that involves financing is a financial institution. Indeed, here,

the government . . . conceded [that] it offered no evidence that the FSA qualified as a "financial institution" at the time of the offense conduct in this case

Mr. Colon's conviction for defrauding a financial institution, therefore, was vacated.

Interestingly, after Hurricane Georges (and not relevant to it),

Congress amended the definition of "financial institution" in 18 U.S.C. § 20 to include a "mortgage lending business." See Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 2(a)(3); see also United States v. Bennett, 621 F.3d 1131, 1138 (9th Cir. 2010). A mortgage lending business is "an organization which finances or refinances any debt secured by an interest in real estate, including private mortgage companies and any subsidiaries of such organizations, and whose activities affect interstate or foreign commerce." 18 U.S.C. § 27. This case does not require us to decide whether the FSA is included within the expanded definition of "financial institution."

Mr. Colon won on one count of conviction. Sadly, however, it appears there was substantial evidence that supported Mr. Colon's other convictions.

As to the other counts,

To establish a violation of § 1014, the government must prove that (1) the defendant made a false statement; (2) the defendant acted knowingly; and (3) the false statement was made for the purpose of influencing action on the loan.

The government, according to the court of appeals, met these elements in the section 1014 counts.

For example, Mr. Colon helped a poultry farmer who claimed damage to his four poultry barns. Sadly, at the time of Hurricane Georges, the farmer only owned two barns.

He did later purchase two more, though that was with the money obtained from the loan by the Farm Services Agency.

Mr. Colon's case was not remanded, because the one conviction that was vacated didn't affect his sentence.

On reflection, of course, this is surely wrong. At least the case should have been remanded to refund Mr. Colon his $100 special assessment.

October 9, 2012

People Accused of Child Pornography Offenses Get To Examine The Software Used To Prosecute Them And Don't Have To Just Take The Government's Word On It (in the Ninth Circuit)

Max Budziak had some child pornography on his computer.

An FBI agent, using a program developed by the FBI called EP2P, logged onto his computer through the internet and downloaded child pornography from him on two separate days in July, 2007.

1165303_green_power.jpgLimeWire and EP2P

The FBI said that EP2P is a souped-up version of LimeWire - a file sharing program that is publicly available and lets people share files with each other's computers.

LimeWire normally pieces together bits of disparate fragments from different LimeWire users. So, for example, if you wanted to download "The Usual Suspects" from LimeWire, you would get fragments from different users.

For whatever reason, some folks think that poses an intellectual property problem. LimeWire has currently been shut down - check out their website.

According to the FBI, if a computer is hooked up to LimeWire, EP2P lets the FBI see all of the files that the LimeWire user is making available on the internet and, more importantly, download all of them from a single user.

The Search of Mr. Budziak's Home

Based on the information from EP2P, the FBI got a warrant and searched Mr. Budziak's home. They found a desktop computer with a copy of LimeWire installed on it.

There were five child pornography videos on the computer in a LimeWire shared folder.

Mr. Budziak was charged with two counts of distributing child pornography - to FBI agents - and one count of possessing it when the search was executed.

What's Up With EP2P?

Mr. Budziak's defense, in essence, was that he didn't understand that LimeWire has a default setting that shares your files with people.

This matters, because if he didn't intend to share the files, he isn't guilty of intentionally distributing child pornography.

He also wanted to get information about how EP2P works so that he could challenge the search of his house and the affidavit that authorized it.

The FBI, ever helpful, provided a number of affidavits of how EP2P works. Mr. Budziak's counsel said that they'd like to examine the software for themselves (or, rather, have their expert examine it).

His lawyer filed three separate motions to compel the government to provide access so that he could examine the software that allowed the government to prosecute him. Each motion was denied by the district court.

Mr. Budziak went to trial and was convicted of all counts. He was sentenced to five years in prison.

The Ninth Circuit Says You Don't Have To Trust The Government

On appeal, in United States v. Budziak, the Ninth Circuit vacated based on the district court's failure to order the government to provide access to the EP2P software.

The Ninth Circuit explained that once a person accused of a crime makes a threshold showing that evidence is material, the government is obligated to turn it over. As the court of appeals said:

Budziak argues that he made a sufficient showing that discovery of the EP2P software was material to preparing his defense. We agree. All three of Budziak's motions to compel provided more than a general description of the information sought; they specifically requested disclosure of the EP2P program and its technical specifications. Budziak also identified specific defenses to the distribution charge that discovery on the EP2P program could potentially help him develop. In support of his first two motions to compel, Budziak presented evidence suggesting that the FBI may have only downloaded fragments of child pornography files from his "incomplete" folder, making it "more likely" that he did not knowingly distribute any complete child pornography files to Agents Lane or Whisman. Stever, 603 F.3d at 753. In support of his third motion to compel, Budziak submitted evidence suggesting that the FBI agents could have used the EP2P software to override his sharing settings.

Perhaps more succinctly, the court of appeals noted that "[g]iven that the distribution
charge against Budziak was premised on the FBI's use of the EP2P program to download files from him, it is logical to conclude that the functions of the program were relevant to his defense."

The government argued that handing the EP2P program over wouldn't matter, since they turned over the logs and the software itself won't be any more useful. The court of appeals shot that down:

In cases where the defendant has demonstrated materiality, the district court should not merely defer to government assertions that discovery would be fruitless. While we have no reason to doubt the government's good faith in such matters, criminal defendants should not have to rely solely on the government's word that further discovery is unnecessary. This is especially so where, as here, a charge against the defendant is predicated largely on computer software functioning in the manner described by the government, and the government is the only party with access to that software.

Of course, Mr. Budziak isn't out of the woods yet. For him to reverse his conviction for good, he'll have to show that if he had access to the EP2P software it could have mattered. And on that question the Ninth Circuit remanded to the district court.

Here's to hoping the district court makes up its mind before Mr. Budziak has finished his sentence.

October 8, 2012

Short Wins - Fraud and Child Pornography Continue to Dominate the Federal Appellate Defense Victories

As in past weeks, it's an exciting week of mainly fraud and child pornography in the federal circuits, with a heavy helping of restitution issues.

1155650_berlin_siegessule.jpgIf this week generalizes (and it doesn't) the rule is clear: if you want to increase your chances to win a federal criminal appeal, try to represent someone accused of fraud or a child pornography charge.

And be very lucky.

As a guy who recently lost a case in the D.C. Circuit, I'd like to this explains the result. My client was only accused of bank robbery -- perhaps if it had been bank fraud things would have gone better.

In any event -- some highlights from this week before you dive in - the Fifth Circuit waded into the fight over when restitution is appropriate for those depicted in child pornography. The Eighth Circuit reversed a restitution award in a fraud case. And the First Circuit held that no rational jury could determine that the Farm Service Agency is a financial institution.

Keep those 28(j) letters rolling - and look for longer case updates about these victories in the week to come.

And, of course, next Monday, we'll have a fresh round of defense victories for your reading pleasure.

1. United States v. Chaika, Eighth Circuit: In wire and mail fraud case, the district court erred in entering a final order of restitution in four respects: (1) the order was entered without affording appellant an opportunity to object to the restitution claims; (2) the amount of restitution requested by the government did not provide a sufficient basis to establish the actual loss suffered by the fraud victims; (3) regarding eight of the victims, there was no basis to award restitution because of insufficient record evidence and because appellant was not given notice or a reasonable opportunity to object to the award; and (4) some of the claims granted by the district court were submitted by buyers appellant recruited for the fraudulent loan transactions. For these reasons, the judgment was reversed only with respect to the restitution order, and the case remanded for further restitution proceedings.

2. Consolidated Fifth Circuit Cases: In re Amy Unknown; United States v. Paroline; United States v. Wright: In three consolidated child pornography restitution cases, the Fifth Circuit considered the Government's burden in requesting restitution for victims of sexual abuse under 18 U.S.C. § 2259. The court held that because a "proximate result requirement" is only imposed in subsection (b)(3)(F) of the statute, the Government is not required to show proximate cause to trigger a defendant's restitution obligations for the losses identified in subsections (b)(3)(A)-(E). Instead, the district court must award restitution for the full amount of the losses. For these reasons, the court vacated the district courts' judgments and remanded for proceedings.

3. United States v. Colon-Rodriguez, First Circuit: In case arising out of appellant's submission of Farm Service Agency loan applications, the district court erred in denying appellant's motion for judgment of acquittal on the charge of defrauding a financial institution because no rational jury could have concluded that the Government proved the second element of the offense--that the Farm Service Agency qualified as a "financial institution." Appellant's conviction on this count was reversed and his sentence vacated.

4. United States v. Jackson, Eighth Circuit: Appellant, a Native American, was charged with assault in a town within the original boundaries of an Indian Reservation. The district court erred in denying appellant's motion to dismiss the indictment on the grounds that the alleged assault occurred within the boundaries of the reservation and, therefore, in "Indian country," because the ruling was based on an inadequate record. The case was remanded with directions to permit appellant to withdraw his conditional guilty plea to assault with a dangerous weapon and discharging a firearm during a violent crime.

5. United States v. Jones, Ninth Circuit: Appellant pled guilty to possessing counterfeit obligations with intent to defraud and was sentenced to a term of imprisonment followed by supervised release. The district court revoked appellant's supervised release. Because the court erred in including a written special condition of supervised release that was not included in its oral pronouncement of sentence, the judgment was vacated and the case remanded for the court to strike the special condition from the written judgment to make it consistent with the oral pronouncement.

6. United States v. Budziak, Ninth Circuit: In distribution and possession of child pornography case, the district court abused its discretion when it denied appellant's request for discovery on software that the FBI used in its investigation into appellant's online file-sharing activities. Because the discovery material appellant requested was not part of the appellate record, it was impossible to determine whether the result of the trial would have been different had the material been disclosed. Consequently, the case was remanded to the district court to determine whether the discovery materials contained or would have led to information that might have altered the verdict and, if so, to order a new trial.

October 4, 2012

The Seventh Circuit Holds That Really Bad Fake Documents Are Not Fake Documents At All

Christopher Spears was no stranger to a fake document. Though at some point, it's about standards.

Mr. Spears had a thriving business outside of Chicago, in Lake County Indiana, making all kinds of fake identification documents - he made drivers' licenses, handgun permits, high school diplomas, etc.

He was a bigger diploma mill than Phoenix University.

348059_climbing_permit_required.jpgUnfortunately for Mr. Spears, he sold a fake handgun permit to a woman named Tirsah Payne. Ms. Payne was on pretrial release for a drug charge and wasn't allowed to have a gun (which, presumably, was why she needed Mr. Spears).

Ms. Payne tried to buy a gun at a sporting goods store. The clerk was not satisfied with her permit and turned her away.

He photocopied the fake permit first, and sent the photocopy to the ATF.

As you can imagine, one thing led to another, and Mr. Spears came to the attention of the ATF.

The ATF obtained an arrest warrant and a search warrant. Here's what they found on his person when they arrested him:

a zippered binder containing five documents that either depicted or resembled Indiana driver's licenses. Two of these documents . . . were color photocopies on 8.5-by- 11-inch paper of what look like Indiana driver's licenses. The other three documents . . . were laminated cards approximating the size and bearing the markings and information typically seen on an Indiana driver's license.

And here's what they found in his house:

a makeshift basement office with a desk, computer, printer, some check paper, and a briefcase sitting next to the desk. The briefcase contained another laminated document resembling an Indiana driver's license . . . . Forensic examination of the computer revealed templates for making fraudulent Indiana handgun-carry permits.

Mr. Spears was then charged with five federal crimes: (1) aiding and abetting an attempt to acquire a firearm by fraud in violation of 18 U.S.C. §§ 2 and 922(a)(6) arising from Payne's attempt to purchase a firearm using the fake handgun permit; (2) aggravated identity theft in violation of § 1028A(a)(1) stemming from Spears's sale of the fake handgun permit to Payne ; (3) producing false identification documents in violation of § 1028(a)(1); (4) unlawfully possessing five or more false identification documents in violation of § 1028(a)(3); and (5) possessing an implement designed to make a forged security in violation of 18 U.S.C. § 513(b).

Though things broke bad for Mr. Spears for most of these charges - he was convicted by a jury for all the charges and sentenced to 34 months (10 months on everything but the aggravated identity theft, and 24 months for that) - in United States v. Spears, the Seventh Circuit reversed on the charge for having five or more false identification documents!

For the government to win on a violation for having five or more false identification documents, they have to show that he had five or more documents that meet this definition:

a "false identification document" is defined as "a document of a type intended or commonly accepted for the purposes of identification of individuals" that "is not issued by or under the authority of a governmental entity" but "appears to be issued by or under the authority of . . . a State."

So, basically, the document has to look like it's within the ballpark of being a legitimate fake ID.

The Seventh Circuit quoted the Fourth Circuit on how to think of this:

A "false identification document" within the meaning of § 1028(d)(4) is "an identification document that, although not issued by or under the authority of the [government], nonetheless appear[s] to a reasonable person of ordinary intelligence to be issued by or under the authority of the [government]." United States v. Jaensch, 665 F.3d 83, 91 (4th Cir. 2011). The document need not be an exact replica of a government-issued identity card, see id. at 94-95; United States v. Fuller, 531 F.3d 1020, 1025-26 (9th Cir. 2008), but it must at least appear to be government-issued and of a type commonly accepted for identification.

So, if the ID is too far from a real ID, it can't be a fake identification document.

Or, said another way, if you're really bad at making fake ID's, it's not against (this) law to make them.

Here, the government introduced color photocopies of fake driver's licenses. The Seventh Circuit said these clearly don't count:

color photocopies on 8.5-by-11-inch paper of what appear to be Indiana driver's licenses. These two exhibits are not false identification documents under the statutory definition. No reasonable person would say that a photocopy of a driver's license "appears to be" issued by or under the authority of a State, and photo- copies of driver's licenses are not commonly accepted for identification.

Perhaps more as an insult to Mr. Spears craft, the Seventh Circuit also rejected other purported identification documents:

their production value is what one might expect if an elementary-school student created an identification card as a toy. They have the thickness of laminated pieces of paper, not state-issued driver's licenses, and their picture quality is laughably bad. No reasonable person making even a cursory examination of these "driver's licenses" would think they are state- issued.

With that denigration of Mr. Spears craft, the Seventh Circuit remanded the case for resentencing.

What are the implications of this case for McLovin'?

Warning - NSFW if where you work isn't F-word friendly: