April 2013 Archives

April 29, 2013

Short Wins - Resentencing Mania Sweeps The Federal Appeals Courts

There are a handful of resentencing remands in the federal courts last week.

Perhaps most interesting is United States v. Francois, remanding because the sentence imposed exceeded the statutory maximum. One doesn't see that too often (though it's preserved in even the most aggressive appeal waivers - I think of it as a theoretical thing rather than a real meaningful risk, but, hey, last week was the week.).

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Allen, Fourth Circuit: Appellant was convicted of conspiring to possess with intent to distribute 50 grams or more of crack cocaine and sentenced to 10 years in prison, the mandatory minimum at the time he committed the offense. Before he was sentenced, the Fair Sentencing Act ("FSA") was passed, which raised the drug quantities that triggered mandatory minimum sentences for certain crack offenses. Because the FSA was passed before appellant was sentenced and appellant didn't possess the amount of crack necessary to trigger the mandatory minimum under the FSA, his sentence was vacated and the case remanded for resentencing.

2. United States v. Dotson, Sixth Circuit.pdf: Appellant was convicted of sexual exploitation of a minor and possession of child pornography. He was sentenced to 22 years in prison to be followed by a 20-year term of supervised release, which carried with it many conditions. Because the district court did not articulate a rationale for imposing some of the conditions of supervised release, the judgment was vacated as to those conditions and the case remanded for further proceedings.

3. United States v. Francois, First Circuit: Appellant was convicted of four counts of possession of a firearm by a convicted felon, one count of possession a firearm with an obliterated serial number, and 12 counts stemming from his use of a stolen identity to purchase those firearms. For these offenses, he was sentenced to 164 months in prison. Because appellant's sentences for some of the offenses related to his use of a stolen identity exceeded the statutory maximum, the case was remanded for resentencing.

4. United States v. Hamilton, Eleventh Circuit: Appellant pled guilty to possession with intent to distribute 5 grams or more of crack cocaine and other drug offenses and was sentenced to 262 months. Appellant made two motions under 18 U.S.C.§ 3582(c)(2) to reduce his sentence based on Amendment 750 to the sentencing guidelines, which lowered the base offense levels applicable to crack offenses. It was error to deny the second motion because (1) the government's and probation's memos contained inaccurate or incomplete information about the drug quantity findings at sentencing and (2) the district court did not determine accurately the drug quantity.

5. United States v. Savani, et al., Eighth Circuit: Three appellants were separately convicted of crack cocaine-related offenses. In each case, appellants were sentenced below the statutory mandatory minimum. Shortly after appellants were sentenced, the FSA became law, and Amendment 750 was approved. In light of this amendment, appellants moved to further reduce their sentences. Because they were not barred for policy reasons from seeking a further sentencing reduction under § 3582(c)(2), the courts' orders denying appellants' motions were vacated and the cases remanded for further proceedings.

6. United States v. Washington, Eleventh Circuit: Appellant pled guilty to four fraud offenses and was sentenced to 105 months in prison. The sentence was based in part on the court's ruling that 250 or more people or entities were victimized by the fraud scheme. Because the government failed to present any evidence that there were 250 or more victims, appellant's sentence was vacated and the case remanded for the court to resentence appellant using a two-level, rather than six-level, enhancement for the number of victims under U.S.S.G. § 2B1.1(b)(2)(A).

April 26, 2013

The Fourth Circuit Holds That A Plea Based on Law Enforcement Fraud Is Invalid, Even If The Person Is Guilty

October 29, 2007 started bad for Cortez Fisher.

He walked out of his house and the Baltimore police approached him (he lived in Baltimore). They asked to talk to him. He said no. He tried to drive away, but backed into a cop car.

He was arrested and searched - they found empty glass vials in his pants pocket.

The officers got a search warrant for Mr. Fisher's house and car, based on an affidavit by Baltimore DEA Task Force Officer Mark Lunsford.

548792_downtown_baltimore.jpgIn the affidavit, DEA Task Force Officer Lunsford said that he had talked to a confidential informant who was reliable and had helped him with a number of prior cases. The confidential informant said that Mr. Fisher sold drugs out of his house. DEA Task Force Officer Lunsford said that after hearing from the confidential informant, he personally had watched Mr. Fisher sell drugs from his car.

Law enforcement searched Mr. Fisher's house and car. They found drugs and a gun.

Mr. Fisher plead guilty to being a felon in possession of a firearm.

He was sentenced to ten years in prison.

One year later, DEA Task Force Officer Lunsford pled guilty to fraud for lying on affidavits in search warrants.

Now former-DEA Task Force Officer Lunsford said that Mr. Fisher's affidavit was one of the ones he lied in.

The District Court Holds That When Police Lie On A Search Warrant Affidavit It Isn't Necessarily A Miscarriage of Justice

Of course, as soon as the U.S. Attorney's Office learned that a man was in prison based on a lie, they immediately moved to vacate his conviction. A prosecutor's ethical mandate, of course, is to do substantial justice and protect the integrity of our system of justice.

No, wait, sorry, my bad. I must have misunderstood what a prosecutor is supposed to do. The U.S. Attorney's Office did exactly nothing.

Mr. Fisher, however, was understandably concerned that he had been convicted based on the word of someone who was now an admitted fraud.

He sent a letter to the district court saying that maybe he should have his plea taken back, since a law enforcement lie is a "but for" cause of his incarceration.

The district court held that this was not a good reason to withdraw a plea:

Unquestionably, if [Defendant] had known of Lunsford's criminal misconduct, he would have filed a motion to suppress, and the motion may well have been successful. Nevertheless, [Defendant] does not deny that he was unlawfully in possession of a firearm (as he admitted under oath during his Rule 11 colloquy). Under these circumstances[,] I cannot find that a failure to allow [Defendant] to withdraw his guilty plea would result in a "miscarriage of justice." Certainly, [Defendant] was denied of an opportunity to pursue a motion to suppress that might have been meritorious, but neither the Government nor his own counsel was aware of Lunsford's criminal misconduct at the time that [Defendant] entered his guilty plea and was sentenced. Therefore, it cannot be said that [Defendant's] counsel was ineffective or that the Government breached any obligation that it owed to him.

I don't understand how the district court could determine that "it cannot be said that . . . the [g]overment breached any obligation that it owed to" Mr. Fisher when it prosecuted him based on evidence obtained from a fraudulent affidavit. Wasn't ex-DEA Task Force Officer Lunsford a part of the government when he made the fraudulent affidavit?

The Fourth Circuit Holds That You Can Withdraw A Plea When It Is Procured By Fraud

The Fourth Circuit, in United States v. Fisher, took a different view:

This . . . is not a case where Defendant sought to withdraw his plea "merely because he discover[ed] long after the plea ha[d] been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action." Rather, Defendant's misapprehension stems from an affirmative government misrepresentation that "strikes at the integrity of the prosecution as a whole."

The Fourth Circuit was also good to note that just because Mr. Fisher was factually guilty doesn't matter - even a guilty person can suffer a miscarriage of justice.

Ultimately, the court of appeals found Mr. Fisher's plea was simply too compromised to stand:

Given the totality of the circumstances of this case--a law enforcement officer intentionally lying in a affidavit that formed the sole basis for searching the defendant's home, where evidence forming the basis of the charge to which he pled guilty was found--Defendant's plea was involuntary and violated his due process rights. Under these egregious circum- stances, Defendant was deceived into making the plea, and the deception prevents his act from being a true act of volition.

Though, as the court of appeal helpfully pointed out, the government can try Mr. Fisher again if want to put ex-DEA Task Force Officer Lunsford on as a witness at trial.

April 25, 2013

The Jury Gets To Decide Whether All The Elements Of A Crime Have Been Proven, Even If One Of Them Is Really Complicated

Many white-collar cases start the same way - a person is an entrepreneur. He has a vision for a business he'd like to build. He wants to do great things and reform an industry.

Things are going well, but he wants to move to that next level. Getting to the next level - whatever it is - takes a little faith, a little elbow grease, and, sometimes, a few cut corners.

The trouble with cutting corners is that once you start to cut them, then get hard to uncut. The corner cutting gets baked into your business model. At some point, the cost of fixing the corner cutting exceeds what you think you can spend on it.

Some corners are worse to cut than others. If a business has gotten in the habit of having less money in cash reserves than it should, they may get away with that. If, on the other hand, like the folks in the First Circuit's opinion in United States v. Wu, they skip getting licenses which are necessary for their import/export business to not be a crime, it can be a little worse.

1402681_great_wall_china.jpgAlex Wu and Annie Wei ran a business that sold things to folks in China. Specifically, they sold sophisticated electronic components.

As it happens, there are rules about when you can send sophisticated electronic components out of the United States. Our federal government would prefer to have items that could have a military application, even if they can also have a nonmilitary application, from going to a foreign country that might use those things to do us harm.

Mr. Wu and Ms. Wei's company started small - as many do. By 2007, the company had five offices - three in China, one in the U.S., and one in Hong Kong - and 200 employees.

At some point in 1996, someone at the company printed a few regulations from the Commerce Department on Export Controls and placed them in a file at the company.

In 1997, Ms. Wei told Mr. Wu that she had mentioned to a potential vendor that she was selling things to China. The potential vendor refused to sell to her. She told Mr. Wu that the "'big lesson' from this 'mistake' was to avoid providing 'extra' information to vendors."

Over time this lesson proved harder to follow as more and more vendors asked follow up questions about where the parts were going.

Ultimately, after shipping millions of dollars of equipment overseas, the two were indicted.

They were charged with - and later convicted of - a number of offenses, including:

The Munitions List Counts: Both Wu and Wei were convicted on two counts for, on two occasions in June 2006, exporting to China without a license "phase shifters" that are designated as defense articles on the U.S. Munitions List, 22 C.F.R. pt. 121.

There were also a number of other counts, not relevant to the issue they won on (but interesting if you're into this kind of case).

The two Munitions List counts involved exports of "phase shifters". According to the First Circuit,

Two waves are said to be "out of phase" when they have the same frequency but reach their peaks at different points. A phase shifter can change the phase of one of the two waves so that the waves exactly line up with one another (or, vice versa, so that waves that were previously "in phase" no longer line up with one another).

The Munitions List is a list of things that are munitions, and, hence, can't be exported to certain countries without a license. The list is not a list of names of items, rather it's a list of descriptions of kinds of things. So, to paraphrase an Easterbrook opinion, the list would prohibit bicycles, rather than a specific make of Huffy.

If you're not sure if something is on the list, there's a process where you can ask the State Department.

The government said the phase shifters were on the list. Mr. Wu and Mrs. Wei said they weren't.

The government went and asked the State Department if phase shifters were on the list when they were exported by Mr. Wu and Mrs. Wei's company. The State Department said they were.

The district court instructed the jury that it had to credit the State Department's determination - after all, it's the State Department.

This, the First Circuit held, was error. Whether something is on the Munitions List is an element of the crime. If the jury doesn't get to decide it, that's a serious problem. Even if it's really complicated:

the government may not decide for itself that some prior act by a criminal defendant violated the law, and thereby remove that determination from the province of the jury.

The government tried to argue that the two really thought they were doing something wrong - they tried to shield the final destination of the phase shifters from others - but, as the court of appeals pointed out:

even if the jury found that Wu and Wei believed that phase shifters fell within the Munitions List restrictions, it would still have to conclude that the phase shifters actually did fall within the Munitions List restrictions (regardless of Wu and Wei's beliefs).

The case was remanded for resentencing - because the convictions on a number of other charges still stand.

April 22, 2013

Short Wins - A Miranda Violation and Two Fraud Convictions Vacated

Last week was a great week for folks appealing a federal conviction.

In United States v. Garrido and again in United States v. Cone fraud convictions were reversed by the Ninth Circuit and the Fourth Circuit. Separately, in the Ninth Circuit, a conviction was reversed and remanded for a Miranda violation in United States v. Barnes.

There was also a bit of news in the continuing budget problems plaguing federal defender's offices - two federal judges wrote a nice op-ed in the Washington Post about the problem.

I was lucky to see Stephen Bright speak at the annual D.C. Judicial Conference on Friday - he was, as one would expect, inspiring. He blamed the current FPD budget woes on the decision to let federal defenders be under the judiciary, instead of be their own independent body.

He also had a nice story about the Attorney General, to mark the 50th anniversary of Gideon, calling a number of folks in the indigent defense community in for a meeting. After acknowledging that there's a crisis in indigent defense in this country, Mr. Holder announced a number of grants that DOJ was going to award to help defense lawyers. Stephen Bright, totaling the amount that was being promised, realized that, at $10 million, it was approximately 10% of what DOJ spends on conferences for prosecutors in a year.

That's change you can believe in.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Barnes, Ninth Circuit: Appellant was convicted of distributing controlled substances. The district court erred in denying his motion to suppress his confession, which was made during a meeting with FBI agents and a parole officer. Because the agents deliberately delayed giving Miranda warnings to induce appellant's cooperation, the warnings that were given were too little, too late. Because the court's failure to suppress the statements, which were central to appellant's conviction, was not harmless, the conviction was reversed.

2. United States v. Cervantes, et al, Fifth Circuit: Appellants Cristobal Cervantes and Luis Alvarez were convicted of, among other things, conspiracy to possess a controlled substance with intent to distribute and possessing a firearm in furtherance of a drug trafficking crime. The district court applied a two-level sentencing enhancement for firearm possession to appellants' conspiracy convictions. This was inappropriate double punishment because they were also separately sentenced for possession of a firearm in charge of a drug trafficking crime. As a result, the sentences were vacated and the case remanded for resentencing.

3. United States v. Cone, Fourth Circuit: Donald Cone and Chun-Yu Zhao were convicted of charges arising out of their scheme to import and sell counterfeit pieces of computer equipment. Because the government's "material alteration" theory of criminal liability did not make what appellants did a crime under the federal statute, Ms. Zhao's substantive counterfeiting charge and money laundering charges, as well as both of appellant's conspiracy charges, were vacated. Because the evidence was insufficient to support Ms. Zhao's conviction for criminal counterfeiting, that conviction was also vacated. For these reasons, appellant's sentences were vacated and the case remanded for resentencing.

4. United States v. Garrido, Ninth Circuit: Albert Robels and George Garrido were convicted of charges arising out of schemes to award city contracts to specific companies. Because their honest services fraud convictions were based on an unconstitutional theory of a failure to disclose a conflict of interest, they were reversed. Because two of Mr. Garrido's convictions were not based on sufficient evidence, those were reversed as well. Mr. Robles' money laundering convictions were reversed because they were based on the flawed honest services fraud convictions.

5. United States v. Hargrove, Sixth Circuit: Appellant pled guilty to possession of child pornography and was ordered by pay restitution. Because the district court erred in ordering restitution under 18 U.S.C.§ 2259 without requiring the government to demonstrate that any of the losses sustained by the victims were proximately caused by appellant's offense, the order was vacated and the case remanded for further proceedings.

6. United States v. Trujillo, Ninth Circuit: Appellant was convicted of conspiracy to possess and possessing with intent to distribute cocaine. The district court erred in denying appellant's second motion under 18 U.S.C. § 3852(c)(2) to reduce his sentence, as there is no jurisdictional bar to entertaining a second motion. Further, the court erred in failing to explain at all its rejection of appellant's arguments based on all of the factors in 18 U.S.C. § 3553(a). For these reasons, the district court's order was vacated and the case remanded.

7. United States v. Zehrung, First Circuit: Appellant pled guilty to violating the federal healthcare fraud statute. Her sentence was enhanced under U.S.S.G. § 3B1.3 for abusing a position of trust. Because the record does not reveal the basis for this enhancement, remand was required for further findings about whether the enhancement applies.

April 16, 2013

The Sixth Circuit On Why A False Statement Charge In A Real Estate Scheme Requires More Than Just A Misleading Check

Bernard Kurlemann may have done many things - he borrowed millions to build a pair of houses in Mason, Ohio, for example - but he did not make a false statement to a bank.

And the Sixth Circuit, in United States v. Kurlemann, held that the district court was wrong to instruct the jury that it could convict him for anything less.

1418355_flag_blowing_in_the_breeze.jpgThe Costs of Owning Expensive Real Estate

If you believe the government's evidence against Mr. Kurlemann at trial, he worked with a realtor - Eric Duke - to arrange for two straw purchasers to buy his two million dollar homes.

It's expensive to carry such homes, you see. He really wanted out from under the mortgage payments.

The trouble is that the banks who were lending the money to the purchasers were uncomfortable with a down payment that came from the seller, Mr. Kurelmann.

And the straw purchasers were uncomfortable using their own money, because, well, they were straw purchasers.

So, Mr. Kurlemann created documents which were true enough, but that created an impression of something that was not true.

For example, one of the homes was described as having a $280,000 down payment, paid to Mr. Kurelmann. It was true that the buyer had made a $280,000 payment to Mr. Kurelmann - the buyer took a $280,000 cashier's check given to him from an entity controlled by Mr. Kurelmann and swapped it for another $280,000 cashier's check payable to another entity controlled by Mr. Kurlemann. Mr. Kurlemann accepted the second cashier's check as a down payment, and a copy of the check was sent along as proof of payment of the down payment.

So, no false statements were made, but what was provided was intentionally misleading.

As the Sixth Circuit (in an opinion written by Judge Jeffery Sutton, who is a fun writer, whatever else is true of him) summarized what happened next:

The predictable, perhaps inevitable, happened. Both buyers defaulted on their loans. The bank investigated, and federal prosecutors filed a raft of charges against Duke and Kurlemann. Duke pled guilty to seven counts, including loan fraud and making false statements to a lending institution, and agreed to testify at Kurlemann's trial. A jury convicted Kurlemann of six counts, including making false statements to a lending institution, see 18 U.S.C. § 1014; and committing bankruptcy fraud, 18 U.S.C. § 157. The district court sentenced Kurlemann to concurrent 24-month sentences, one for the false-statement convictions and one for the bankruptcy-fraud convictions, and ordered him to pay $1.1 million in restitution.

The False Statement Jury Instruction That Was So Much More

Mr. Kurlemann's jury was instructed that, for purposes of a false statement charge,

[a] "statement may be false," according to one of the jury instructions in Kurlemann's case, "when it contains a half-truth or when it conceals a material fact."

That is not the law.

The opinion quotes the lengthy text of 18 U.S.C. § 1014 - which, seriously, is long - and summarizes it with:

That is a long way of saying that making a "false statement or report" to a bank in order to get a loan is prohibited. And that is a long way of not saying that the statute prohibits "half-truths," "material omissions" or "concealments," which takes us to the nub of the matter. Whether made orally or offered through a written report, a "false statement" must be that--a statement, a "factual assertion" capable of confirmation or contradiction.

Here, because, for example, the check was merely misleading, not actually false, it wasn't a false statement.

An omission, concealment or the silent part of a half-truth, is not an assertion. Quite the opposite. Omissions are failures to speak. Half-truths, in which the speaker makes truthful assertions but conceals unfavorable facts, amount to one type of omission. Concealment, in which the speaker says nothing at all but has a duty to speak, amount to another. No doubt, both types of omissions hold the potential to mislead and deceive. But § 1014 covers "false statements." It does not generally cover misleading statements, false pretenses, omissions, schemes, trickery, fraud or other types of deception.

Because of the error in the jury instruction, Mr. Kurlemann's false statement conviction was vacated and the case was remanded.

And, seriously, this post doesn't do justice to how much fun this opinion is to read. It's nice to see judicial snark doled out for a win for a guy who is accused of a crime.

April 15, 2013

Short Wins - Is It Unseemly That DOJ Asks For New Prosecutors While Federal Defenders Are Being Laid Off?

Three opinions are in this week's "short wins" - on restitution calculation, competency in a bank robbery case, and the Fair Sentencing Act.

And, in federal public defender budget news, the New York Times had an editorial last week calling for more sensible funding of the government services required by the Constitution. Here's the best bit:

The right to counsel is already badly battered in state courts, largely because most states grossly underfinance the representation of impoverished defendants. Indigent defense in federal criminal cases has served as an admirable contrast because of the high quality and availability of federal defenders. Now this system is in peril. Federal defenders will not be able to take the time to visit clients in prison or search for facts that could raise doubts about clients' guilt.

Budget cuts hit every part of the federal government, as we know. Which is why the Department of Justice last week asked to hire an additional 100 lawyers next year over what they had this year.

As the Legal Times reports it,

The U.S. Department of Justice's budget request for 2014 seeks to add dozens of attorney positions, boosting efforts to combat cybersecurity, prosecute financial and mortgage fraud and combat international piracy of intellectual property.

For those of you keeping score at home, the federal public defender is laying off people - including at least one Federal Public Defender himself - furloughing others, and otherwise scrambling to deal with the 5% budget cut that went into effect in February. Meanwhile, DOJ is staffing up.

Apparently a change in tide does not affect all boats equally.

Should DOJ worry that they won't find enough harried, underpaid public defenders to be on the other side of the the cases that their fancy new prosecutors will be bringing?

And, with that, to the victories!

1155650_berlin_siegessule.jpg1.United States v. Fareri, D.C. Circuit: Appellant pled guilty to mail fraud, was sentenced to 105 months in prison, and ordered to pay restitution. Remand was required for the district court to correct the specific amounts owed to appellant's victims, as the list of payments due to each victim exceeded the amount identified in the court's oral pronouncement and written judgment. Though the district court's total restitution amount was binding, remand was required to reapportion the payments between victims. [Note - Matt Kaiser was trial counsel in this case.]

2. United States v. Grigsby, Sixth Circuit: The district court issued an order allowing the government to medicate appellant, a pretrial detainee diagnosed with paranoid schizophrenia, in an effort to restore appellant's mental competency so that he could be prosecuted on bank robbery charges. Because appellant's liberty interest in avoiding involuntary medication outweighed the government's interest in prosecution, the order was reversed and the case remanded for further proceedings.

3. United States v. Hinds, Eleventh Circuit: Appellant was convicted of conspiring to possess with intent to distribute crack cocaine and sentenced to a lengthy prison term. He was later resentenced to a reduced term of 120 months. The acts giving rise to the conviction occurred before the passage of the Fair Sentencing Act ("FSA"), though appellant was re-sentenced after the Act. The FSA raised the drug quantities required to trigger mandatory minimum sentences for certain crack offenses. Because appellant was re-sentenced after the FSA was enacted, his sentence was vacated and the case remanded for resentencing.

April 14, 2013

Not All Violations Of Laws Are Crimes; The Eleventh Circuit Vacates A Conviction For An Illegal Food and Drug Practice That You Can't Be Convicted For

United States v. Izurieta is an odd opinion. Turns out the Eleventh Circuit was a very good defense attorney in this case.

Two brothers - Yuri and Anneri Izurieta - ran an import/export business. They brought food into the United States from Central America.

999830__3.jpgThey were charged with not following FDA procedures when they brought food into the country that - according to a trial stipulation - contained e coli and salmonella.

They were convicted at trial.

They appealed and raised some interesting issues - a Confrontation Clause challenge, a challenge to some of the prosecutor's statements during the trial, and an issue about how the sentence was calculated.

Everyone showed up for oral argument ready, presumably, to talk about these issues. The briefs had been filed. The issues were clear. I'd like to think the defense lawyer was wearing a new suit.

Then, at oral argument, the Eleventh Circuit panel asked whether the indictment in the case actually set out something that is a violation of the criminal law of the United States.

As it happens, it didn't.

So, there's a practice pointer for defense lawyers - check to make sure that an indictment accuses the person charged with something that is actually a crime.

Here are the details.

The brothers were charged with seven counts:

Count 1 charged a conspiracy to unlawfully import in violation of 18 U.S.C. § 371. Counts 2 - 7 charged the Izurietas with the failure "to redeliver, export, and destroy with FDA supervision" five shipments.

More specifically, Counts 2 through 7 charged a violation of 18 U.S.C. § 545, which says,

Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law . . . Shall be fined under this title or imprisoned not more than 20 years, or both.

So the "contrary to law" part is really important.

Here, the brothers violated an FDA regulation which provided for civil, but not criminal penalties. Does section 545 convert the violation of that regulation into a crime?

The Ninth Circuit had previously weighed in on this in 2008 in United States v. Alghazouli, 517 F.3d 1179, 1187 (9th Cir. 2008) and found that section 545 doesn't do the alchemy of converting not criminal regulations into criminal ones.

There, relying in part on an 1892 Supreme Court case that held that "[i]t is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offence" in the course of striking down a conviction for violating a bookkeeping regulation under the Oleomargarine Act (which, seriously, sounds insane. You should read more about it here and here).

The Fourth Circuit, on the other hand, held in United States v. Mitchell, 39 F.3d 465 (4th Cir. 1994), that section 545 criminalizes the violation of otherwise noncriminal regulations when the underlying regs are "legislative" in nature because, really, we're not going to lead the world in prison population without everyone doing their part.

The Eleventh Circuit ragged a bit on the Ninth Circuit's opinion, then noted that

lenity remains an important concern in criminal cases, especially where a regulation giving rise to what would appear to be civil remedies is said to be converted into a criminal law.

Because of ambiguity about whether the regulations that these brothers violated could be prosecuted criminally, the Eleventh Circuit held that, under the rule of lenity, they couldn't be.

The indictment, then, didn't allege a violation of the criminal law. And the brothers' convictions were vacated.

Gentle reader, you may be wondering whether, procedurally, this is kosher. Can it be that an appellate court can first raise whether the indictment charges a violation of the law at oral argument?

It can, because the issue is jurisdictional. If there's no adequate allegation of a crime, then the court of appeals doesn't have jurisdiction to hear the case. So, if there's a jurisdictional error, that can be raised at any point.

As the Eleventh Circuit noted,

In Seher, we held that this court is required to raise sua sponte the jurisdictional issue of whether the indictment sufficiently alleges an offense in violation of the laws of the United States provided the mandate has not issued on direct appeal. Seher, 562 F.3d at 1359.

Also, the opinion was written by Judge Jane Restani, a judge on the United States Court of International Trade, sitting by designation on the Eleventh Circuit. You don't see that very often.

April 11, 2013

Short Wins - Public Defender Withdrawals of Two Kinds

Last week was an active week in the federal appeals courts.

Perhaps most interesting - especially to those who are concerned about the state of our federal public defenders - is the Second Circuit's opinion in United States v. Barton. There, a federal defender tried to get out of a case but the judge wouldn't let him out.

On those facts, it turns out that was reversible error.

As the federal defender budget crisis gets worse, this kind of opinion may be comforting?

As you may have heard, there's been a lot of coverage of the federal defender budget situation in the press in the last week. The federal defender for the Southern District of Ohio laid himself off rather than do the same to his people. NPR had a big story on the federal defender system which is worth a listen.

What's frustrating about a lot of this coverage is that it blames the whole problem on the sequester. While the sequester is, of course, not helping, the Administrative Office of the U.S. Courts announced the budget restructuring on February 14th, before the sequester hit (and, even, before it was clear the sequester was going to hit).

The sequester is bad. And I'm all for getting the word out on that. But it seems that the FPD problem is also the result of something going on that isn't terribly indigent-defense friendly in the AO.

And, with that, to the victories,

1155650_berlin_siegessule.jpg1. United States v. Baird, First Circuit: Appellant was convicted of possession of a stolen firearm. At trial, the court refused to give a jury instruction that would have allowed him to assert the defense of "innocent possession" of the stolen weapon. Because appellant was entitled to that instruction, his conviction was vacated and the case remanded for a new trial.

2. United States v. Barton, Second Circuit: An assistant federal public defender made a motion to withdraw from representing a defendant in a criminal case. The court abused its discretion by forcing the attorney to continue the representation because the defendant, after being informed of his right to counsel, refused to recognize the public defender as his attorney, said he didn't want an appointed attorney, and didn't attempt to establish his financial eligibility for appointed counsel.

3. United States v. Benoit, Tenth Circuit: Appellant was convicted of receipt and possession of child pornography. Because these convictions arose out of the same depictions, the convictions violated the double jeopardy clause, requiring remand to vacate one of the convictions and sentences. Additionally, because the court did not explain whether the specific losses suffered by the victim were proximately caused by appellant's action, remand for redetermination of the portion of damages attributable to appellant was required.

4. United States v. Doyle, Sixth Circuit: Appellant pled guilty to failing to register as a sex offender and was sentenced to three years and one month in prison, followed by ten years' supervised release, which was subject to four special conditions. Because the court procedurally erred in failing to explain the reasons for imposing the special conditions, and because the record doesn't otherwise explain the basis for them, the special conditions were vacated and the case remanded for resentencing.

5. United States v. Fisher, Fourth Circuit.pdf: Appellant pled guilty to possession of a firearm by a felon. The officer responsible for the investigation that led to the appellant's arrest and guilty plea later pled guilty to defrauding the justice system. In particular, the officer admitted lying in the affidavit underpinning the warrant for appellant's home and car, where evidence forming the basis of the charge to which appellant pled guilty was found. The officer's affirmative misrepresentation, which informed appellants' decision to plead guilty, rendered appellant's plea involuntary and violated his due process rights. As a result, the district court erred in denying appellant's motion to vacate his plea.

6. United States v. LKAV, Juvenile Male, Ninth Circuit: Tribal authorities of the Tohono O'odham nation charged a juvenile with murder in 2009. In 2011, the United States filed its own charge against the juvenile and moved to commit him to an adult medical facility for psychiatric evaluation. Because the district court erred in committing the juvenile under 18 U.S.C. § 4241(d), rather than § 5037(e), reversal was required.

7. United States v. Logan, Eighth Circuit: Appellant pled guilty to conspiracy to distribute 50 grams or more of crack cocaine and was sentenced to 156 months in prison, which was later reduced to 120 months based on substantial assistance she provided after sentencing. Later, appellant filed a motion to reduce her sentence based on an amendment to the advisory guidelines that lowered the base offense levels for certain crack offenses. The district court erred in finding appellant wasn't eligible for a sentence reduction under her plea agreement. She was. Consequently, the case was reversed and remanded for further proceedings.

April 1, 2013

Short Wins - More On The Federal Defender Budget Mess And The Withering Sixth Amendment

Two wins in the Eighth Circuit - nice. Other than that, it's a whole lot of resentencing news.

In news related to last week's short wins post, though, where I lamented that Assistant Federal Public Defenders will be doing the same work with less pay, here's more information about the horrible budget/employment situation in our country's federal defender's offices.

In particular, I received an email calling me out for underdescribing how bad the situation is.

From a source in a leadership position of a federal defender organization, on the way the budget cuts have worked in that office:

[T]he nationwide problem is bigger than some lawyers doing the same work for less pay.

And it should be said that the Congressional sequester is but part of our pain. Last year, we ran our joint for just over $4M (and returned nearly $100K at year's end). We started this year upon preliminary funding of $3.8M, notwithstanding a governance scheme that builds in pay raises for our non-AFDs (who are on the GS scale), despite the increasing costs of our privately obtained (by way of our CDO status) health insurance, etc.

Then, the judiciary elected to cut all FDO budgets by five percent: this cut to our annual budgets was announced on Valentine's Day (meaning that resulting 12-month deficits could only be recovered over the fiscal year's remaining 7+ months). This took us to $3.6M (when, last year, we spent $4M).

Then the sequester hit and cost us another 5.5 percent off our annual budget, leaving us halfway through this year to limp into the future on funding $600K less than we judiciously spent just a year ago.

With a gap like that, furloughs and layoffs are inevitable. These are hard times for the 6th Amendment in federal court. Sure, many folks will be able to afford counsel - but thousands of people a year, under attack by the most powerful government in the history of the planet, will have compromised access to a lawyer.

Sad times.

To the victories . . .

1155650_berlin_siegessule.jpg1. United States v. Benjamin, Third Circuit: Appellant was convicted of, among other things, two counts of possession of a firearm by a convicted felon. One charge was based on appellant's use of a gun at a gun range, and the other was based on possession inside his home. Because there was no evidence showing that appellant relinquished constructive possession of the gun, there could only be one conviction. Because this error was plain, affected appellant's substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings, the case was remanded with instructions to vacate the home possession conviction and to merge both convictions into one.

2. United States v. Culbertson, Fifth Circuit: Appellant pled guilty to possession with intent to distribute methamphetamine and was sentenced to 87 months in prison followed by five years' supervised release. Appellant violated his conditions of supervised release and was sentenced to 30 months in prison, followed by 113 days in a residential reentry program. This sentence was above his advisory guideline range of five to 11 months in prison. Because the court based the sentence on its perception of appellant's rehabilitative needs, the case was remanded for resentencing.

3. United States v. Higgins, Eighth Circuit: Appellant was convicted of distributing crack cocaine, among other drug offenses, and sentenced to 360 months in prison on that count. Because the court erred in applying a career offender enhancement to that sentence under guideline § 4B1.1, the sentence was vacated and the case remanded for resentencing.

4. United States v. Johnson, Eighth Circuit: Appellant's supervised release was revoked and he was sentenced to 21 months in prison. At the hearing, a probation officer read a police report into evidence alleging appellant had been arrested for certain crimes. The government offered no explanation for the arresting officer's unavailability. This lack of an explanation, balanced against the reliability of the report, resulted in a violation of appellant's right to confront adverse witnesses. As a result, appellant's sentence was vacated and the case remanded for resentencing based on the existing record before it, without considering the police report.