May 2013 Archives

May 28, 2013

Short Wins - Special Assessment Lawyering and a Remand For The Oral Pronouncement of a Special Condition of Supervised Release

There are some dramatic wins in the federal appeals courts. Sometimes an entire conviction is overturned, and it is clear that the person will walk free. Other times, a large and unjust sentence is reversed.

And then there are this week's "wins". In one, a former judge, convicted of fraud, will have the total punishment imposed on him reduced by $100 - the cost of the Special Assessment that was imposed on a count that exceeded the statute of limitations.

In another, the district court imposed a condition of supervised release ordering treatment for a gambling addiction in the Judgment following the sentencing hearing, but not at the hearing itself. So the case will go back for a sentencing hearing where the judge can say that the person is going to be going to treatment for gambling addiction to the person's face.

To the victories?

1155650_berlin_siegessule.jpg1. United States v. Ciavarella, Third Circuit: Appellant, a former judge, was convicted of honest services mail fraud, among other offenses, and sentenced 336 months in prison and ordered to pay a special assessment and restitution. Because the mail fraud count was barred by the statute of limitations, and because appellant did not waive his challenge to this count on that ground, his conviction on this count was vacated. Remand was required to amend the judgment to reduce the special assessment.

2. United States v. Martin, Sixth Circuit: Appellant was sentenced to 120 months for being a felon in possession of a firearm. In the written judgment, the court imposed a special condition of supervised release that appellant undergo treatment for a gambling addiction. The government conceded that the court's failure to orally impose the condition was an abuse of discretion and requested remand for the court to conform its written judgment to the oral pronouncement. The appeals court granted that relief.

May 20, 2013

Short Wins - The Fair Sentencing Act and the New York Times on Brady and Criminal Discovery

There was only one win in the federal circuits last week, but United States v. Blewett was a whopper - the Sixth Circuit held that the Fair Sentencing Act applies retroactively to people sentenced before it took effect. Here's the best language:

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination).

In unrelated news, the New York Times had an excellent editorial (available here subject to the Times kind of annoying content restriction thing - private browsing anyone?) on Brady and criminal discovery.

Here's my favorite part:

It might seem obvious that prosecutors with any sense of fairness would inform a defendant's lawyer of evidence that could be favorable to the defendant's case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.

This is exactly right. The problem is that prosecutors aren't required to follow Brady and turn over evidence that matters if someone is going to plead.

And, prosecutors are allowed to give sweet plea deals that expire before they're required to hand over all the evidence. So, unless defense counsel is aggressive about asking for all the evidence - and the prosecutor is inclined to turn it over - folks have to choose whether to risk going to trial or locking in a plea without being able to meaningfully assess their chances of acquittal.

As the Times points out, an early open file discovery rule would fix that.

So, doubtless, DOJ will get right on that.

To the Victory!

1155650_berlin_siegessule.jpg1. United States v. Blewett, Sixth Circuit: Appellants were convicted in crack cocaine cases and sentenced to ten years under the then-applicable mandatory minimum, which was based on the quantity of crack possessed. In 2010, the Fair Sentencing Act substantially reduced crack sentences, including the mandatory minimum imposed in appellants' cases. Because the federal perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old law violates the Equal Protection Clause, the Act should apply to all defendants, including those sentenced prior to its passage. For these reasons, appellants' case was remanded for resentencing.

May 17, 2013

Does A Person Submitting False Medicare Bills Abuse The Trust Of The Doctor Making Money Off Of The False Bills?

Hiring is always hard, especially in a small office.

You have work that needs to be done. You can't do it all. Maybe you're a professional, like a doctor, and some of the work isn't the best use of your time.

So you hire someone to help. Really, how much do you know about a person as the result of a hiring process? Yet, despite that, you give them responsibility over a portion of your business.

And you trust them.

As the First Circuit's case in United States v. Zehrung shows, sometimes that trust is not repaid in the way you expect.

69133_medical_exam_equipment.jpgDawn Zehrung worked in a doctor's office. While the doctor was seeing patients - he had 14,000 patients - she was responsible for sending the office's bills to Medicare, the state of Maine's Medicaid program, and other insurance companies.

She also had unsupervised control of the firm's checkbook, accounts payable, and copays from patients.

In what I suspect the doctor now sees as folly, Ms. Zehrung was paid a bonus if the firm did well.

Shortly after she took over the billing, the firm's monthly revenues went up 33%. The good doctor asked her why they were making so much more money all of a sudden. Ms. Zehrung said she was simply working back accounts receivable.

The doctor accepted this explanation. I'd like to think he drove off in a new sports car after hearing it.

Later, the doctor thought the continued increase was as a result of laser hair removal procedures that they had started doing.

As it happens, Ms. Zehrung was not just working the receivables. And, doubtless there's money to be made in laser hair removal, but that's not how the money in this office was being made.

It was, instead, being made through simple upcoding.

Ms. Zehrung would take the doctor's notes about what had been done, then she would submit bills for procedures that paid more.

Also, she would destroy some of the records that showed what was actually done.

Finally, the doctor was alerted by a nurse who spotted the problem. I'd like to think he was reached by the nurse on his cell phone, while he was sitting beachside drinking something with an umbrella in it.

He asked Ms. Zehrung to explain herself. Eventually, he made a serious of calls that wound up with Ms. Zehrung being arrested, charged, and pleading guilty to healthcare fraud.

At sentencing, there was, apparently, only one disputed issue - whether Ms. Zehrung should be subject to an abuse of position of trust enhancement.

The government said she should - she abused the good doctor's trust. He trusted her and she betrayed that trust.

She said she shouldn't - the enhancement is normally appropriate for folks who have some special skill with discretion, like a lawyer, who abuses the trust that comes with that skill.

It's clear that, say, a bank teller who embezzles is not eligible for an abuse of position of trust enhancement.

So, was Ms. Zehrung's trust anything more than one finds in a run of the mill employee - someone who is trusted to do an important job in a small business?

The district court applied the enhancement. As the court of appeals explained, the court reasoned:

She did the billing with "no supervision," the judge added - "[t]here was no direct oversight, no review," he repeated again - and "she assumed complete financial control within the office." And, the judge suggested, her position made it significantly easier for her to commit the crime charged.

The First Circuit reversed and remanded for more factfinding. These remarks, it concluded, were not enough to explain whether the enhancement was justified.

This case is a nice slalom through the different ways the abuse of position of trust enhancement can apply. And it's a lovely read.

May 16, 2013

The Second Circuit On Appointed Counsel And The Perils of Hiring A Lawyer For A Federal Criminal Case

Most people who are accused of a crime in federal court are unable to pay for a lawyer and have one appointed for them.

Which makes sense - a decent lawyer for a federal criminal case is expensive, the need to find a lawyer is urgent, and most people don't have substantial liquid assets to hire one quickly.

Most people, then, are represented by either a federal public defender or an appointed attorney.

The advantage is that they don't have to pay. The disadvantage is that they don't get to choose the lawyer they hire. Maybe the lawyer they get is someone they don't get along with. Maybe the client thinks an appointed lawyer won't work as hard. Maybe, for some lawyers, there's just a different dynamic when the client is paying for the lawyer's services.

In any event, sometimes, when a client has an appointed lawyer, things go poorly with the relationship with that lawyer.

68920_law_education_series_5.jpgThe Second Circuit's opinion in United States v. Barton is an interesting example of what can happen when that relationship breaks bad.

John Barton was accused of doing some illegal things involving meth and a gun. He had an initial appearance - a first hearing in a case shortly after a person is arrested.

At the initial appearance, the judge asked Mr. Barton if he'd like an appointed lawyer or to hire his own lawyer. An assistant federal public defender, Elizabeth Switzer, was with him at the hearing. Normally, if a person wants an appointed lawyer, the person has to complete a financial affidavit so the judge can see if the person really can't afford a lawyer.

Mr. Barton did not fill out a financial affidavit. He told the judge that he wanted to hire a lawyer. The judge gave Mr. Barton several days to find a lawyer.

Hiring a lawyer proved challenging for Mr. Barton. He came back to court three more times, each time with Ms. Switzer, and each time he was unable to hire a lawyer. The court continued to give him time to hire someone.

Finally, Mr. Barton decided to take matters into his own hands. He filed a motion without a lawyer seeking to dismiss the charges against him. As the Second Circuit described the motion:

He argued, among other things, that he was not properly named in the complaint, which was made out against "JOHN BARTON" and not "John Anthony Barton"; that he was legally allowed to possess both marijuana and methamphetamine to treat narcolepsy caused by a head injury he suffered in connection with a car accident; and that New York State is a sovereign territory into which the laws of the United States do not extend.

These are innovative legal theories, to be sure.

Two more hearings were held on whether Mr. Barton would hire a lawyer. Each time, Ms. Switzer appeared with him.

Finally, the judge, concerned about Mr. Barton's head injury and how sometimes he didn't make complete sense when talking during the hearings, decided that Mr. Barton should be evaluated to see if he is competent to stand trial.

The judge asked Ms. Switzer - who had not been appointed - to "remain in the case not as appointed counsel, but to assist Mr. Barton" until the possibly not competent man hired a lawyer. Because federal public defenders, apparently, are really best viewed as social workers.

Ms. Switzer left the federal public defender's office for greener pastures. At Mr. Barton's next hearing, Robert Smith, in the federal defender's office, showed up instead.

Mr. Barton refused to answer any questions from the court about whether he would hire a lawyer. He did mention the issues raised in his motion to dismiss the charges. When the judge said she would give him two more weeks to find a lawyer then appoint Mr. Smith, Mr. Barton's response was "I object."

A few weeks later, at another hearing, Mr. Barton again mainly objected and talked about his motion to dismiss. The court appointed Mr. Smith, since Mr. Barton hadn't found any other lawyer. The next day, the court issued an order finding Mr. Barton competent.

At an arraignment a few weeks later, Mr. Smith entered a plea of not guilty for Mr. Barton. Mr. Barton objected.

Not surprisingly, Mr. Smith soon after that moved to withdraw as counsel for Mr. Barton. Apparently Mr. Barton refused to see Mr. Smith - Mr. Smith thought this was, perhaps, not the best attorney client relationship.

More hearings were held. Mr. Barton did not hire an attorney. He did not complete a financial affidavit. He did, however, press forward about the issues in his motion to dismiss.

Finally, the motion to withdraw was denied. The district court reasoned that Mr. Barton never said he wanted to represent himself, and that "representation by counsel . . . should be the standard, not the exception."

Mr. Smith took an interlocutory appeal, saying that to be forced to represent a client who wouldn't talk to him is inconsistent with his obligations as a lawyer.

The Second Circuit let Mr. Smith out of the case. Since there was no financial affidavit - and Mr. Barton said he was able to hire a lawyer - the district court didn't have the authority to appoint him in the first place. An appointment without a statutory basis is not really much of an appointment at all.

As the Second Circuit summed it up,

We can think of no justification for requiring these unwilling individuals to continue their unauthorized relationship. Accordingly, the district court abused its discretion when it denied Smith's motion to withdraw.

Going forward, here's where the Second Circuit sees things:

Of course, Barton is free to change his mind. Should he succeed in hiring an attorney following remand, that attorney may file an appearance. Alternatively, if Barton asks for appointed counsel, and if he qualifies financially, the district court must appoint counsel. What the district court may not do, however, is foist an unwilling attorney upon an unwilling defendant, who has actively refused the appointment of counsel and declined to demonstrate his financial eligibility under the CJA.

The court, unfortunately, did not rule on whether being forced to represent a client who refuses to talk to you violates your responsibilities as a lawyer.

May 13, 2013

Short Wins - Missing Evidence, Medicare Fraud, and How Normal People React To Federal Prosecutions

There was only one published criminal case in the federal circuits last week where the defendant won. It's a good case on jury instructions for missing evidence, and the short write up is below.

In other news - I stumbled across this lovely write up of a Medicare Fraud prosecution by a doctor.

I often am talking to people who are amazed at how the federal criminal justice system works when they encounter it for the first time. The article is titled "Is a charting error a federal crime?" (spoiler alert: the author thinks that it is, but shouldn't be)

Many folks in the medical profession who take federal health care benefits observe, as this article does, that

the laws are increasingly designed to deter expensive care of the elderly, and that the judicial system focuses more on procedural rules than on substantive justice.

In the case, a doctor who was under investigation for years was charged with health care fraud. He lost at trial. The article is written by a doctor who went to watch the appellate arguments.

It sounds like things at the argument went well for the doctor - one judge apparently said that the government's position meant that "[a]ny error in any medical record related to a health program could be a federal crime." I'm betting the judge didn't mean that this was a good legal rule.

Though, in the end, the author concludes that

Doctors need to know that anything in the medical record can be used against them -- as can errors by their own million-dollar attorney.

The first part probably isn't literally true, but one can forgive some folks in a highly regulated industry who are, mainly, just trying to help people, for thinking that it is.

To the Victory!

1155650_berlin_siegessule.jpg1. United States v. Sivilla, Ninth Circuit: Appellant was convicted of offenses arising out of the discovery of cocaine hidden in the engine manifold of his car. Instead of preserving the car as evidence, it was sold for parts by the government notwithstanding appellant's attorney's requests to preserve it, the prosecutor's pledge to do so, and a court order compelling such action. At trial, the court denied appellant's request that the jury be instructed that the defense was not given a chance to inspect the car because it was not preserved as evidence, despite the court's order to do so. Because the government's poor conduct in failing to preserve the car significantly prejudiced appellant, the court abused its discretion in denying the request for a jury instruction. The case was remanded for a new trial with instructions to grant appellant a remedial jury instruction.

May 6, 2013

Short Wins - And More on Jury Nullification

Six new cases from the federal circuits this week. My favorite - a subjective measure, I know - is United States v. Ramirez. Any time a court, even the Ninth Circuit, vacates a drug conspiracy conviction for insufficient evidence it's worth a read.

Last week I posted about a First Circuit case that raised, I thought, a specter of support for jury nullification. Lots of folks responded to that - it turns out that nullification is a popular topic.

On Twitter, I was directed to this recent opinion out of New Mexico on nullification. If you have time, I highly recommend it. It canvasses the history of nullification as an important part of what our criminal justice system is built on then says, basically, no.

I also exchanged a few emails about nullification with a prosecutor friend of mine (yes, I have prosecutor friends, don't tell). He pointed out, rightly, that nullification is not your friend if you're thinking of, say, the Criminal Section of the Civil Rights Division of DOJ going into, say, Alabama, to prosecute hate crimes. Or almost any public corruption trial of a very popular politician. It's a fair point. The interplay between popular sentiment and the rule of law is complicated. And, as soon as cases that raise those kinds of concerns are the majority of the criminal trials in the country, perhaps prohibiting nullification would clearly be good.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Davis, Fourth Circuit: Appellant pled guilty to possession of a stolen firearm and was ordered to pay restitution to reimburse the homeowner from whose home he broke into for the value of the unrecovered firearm and damage caused by the break-in. Because the homeowner is not a victim under the Victim and Witness Protection Act, and because appellant's plea agreement did not include an explicit agreement to pay restitution to a person other than a victim of the offense of conviction, there was no basis to order restitution. This plain error required reversal of the restitution order.

2. United States v. Luna-Acosta, Tenth Circuit: Appellant pled guilty to illegal re-entry into the United States. At sentencing, the district court orally announced a sentence of one year in prison. Five months later, a written judgment was filed imposing a 33-month sentence. Because the court lacked jurisdiction to alter the sentence, the sentence was vacated and the case remanded for the court to enter a new judgment with a one-year sentence.

3. United States v. Mackay, Tenth Circuit: Appellant was convicted of unlawfully prescribing controlled substances and sentenced to 20 years in prison. Although the total sentence was below the advisory guidelines range, it exceeded the statutory maximum sentence on nine counts. Because the judgment was unclear whether the court intended to impose a 20-year sentence on each count, which would have been illegal, the case was remanded to allow the court to clarify the sentence for the record.

4. United States v. Mancuso, Ninth Circuit: Appellant was convicted of possession and distribution of cocaine, as well as two counts of maintaining a drug-involved premises. The distribution conviction was vacated because it joined two or more distinct and separate offenses into a single count. The convictions for maintaining a drug involved premises were vacated because the district court committed plain error by utilizing a "significant purposes" instruction rather than a "primary or principal use" instruction.

5.United States v. Patrick, Sixth Circuit: Appellant pled guilty to drug and firearm charges. At the plea hearing, the judge did not state the mandatory minimum penalty for the firearm charge. Because the court's failure to ensure that appellant understood that he faced a mandatory minimum sentence of five years for the firearm charge affected his substantial rights, the plea was vacated to allow appellant to withdraw his plea.

6. United States v. Ramirez, Ninth Circuit: Appellant was convicted of distribution, possession with intent to distribute, and conspiracy to distribute meth. When viewing the evidence on the conspiracy charge in the light most favorable to the government, the government failed to present sufficient evidence showing that appellant had an agreement with another to distribute meth. As a result, the conspiracy conviction was vacated and the case remanded for the district court to grant a judgment of acquittal on that count and to conform the sentence accordingly.

May 1, 2013

Did The First Circuit Encourage Jury Nullification?

We have too many federal criminal laws - more than 4,000. And, as frequent readers of this blog will note, there are times when the federal government prosecutes a person that is a close call - it may or may not be a crime.

673264_hammer_to_fall.jpgFor example, in United States v. Costello, the government prosecuted a woman for giving her boyfriend a ride from the bus station on the theory that this was "harboring" an illegal alien. (read my prior write-up on the case here).

In marginal cases like these, the defense normally argues that this is government overreaching. The government normally brushes aside this argument saying, in essence, "trust us." "We," the government continues, "have scarce resources and good judgment. We won't prosecute anyone except for really bad people."

In Costello, Judge Posner responded forcefully to this, saying:

The government tells us not to worry: we judges can rely on prosecutors to avoid bringing cases at the outer margin of the government's sweeping definition of "harboring." But this case is at the outer margin. No doubt it was brought because the Justice Department suspects that the defendant was involved in her boyfriend's drug dealings, but cannot prove it, so the Department reaches into its deep arsenal (the 4000-plus federal crimes) and finds a crime that she doubtless never heard of that it can pin on her. She was sentenced only to probation and to pay a fine but now has a felony record that will dog her for the rest of her life if she loses this appeal.

Or, take a case in the news lately, United States. Nosal. There, the government prosecuted a man (and, after they lost the appeal, tried him on different grounds and got a conviction last week) for violating the CFAA - the Computer Fraud and Abuse Act - because he encouraged others to access a computer contrary to the authorization given to them to access the computer. (my prior write up on the earlier opinion is here)

The defense argued that this was the government prosecuting a marginal case. The government said, in essence, "trust us."

Judge Kozinksi was unkind to this prosecution.

The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations. But we shouldn't have to live at the mercy of our local prosecutor. Cf. United States v. Stevens, 130 S. Ct. 1577, 1591 (2010) ("We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."). And it's not clear we can trust the government when a tempting target comes along. Take the case of the mom who posed as a 17- year-old boy and cyber-bullied her daughter's classmate. The Justice Department prosecuted her under 18 U.S.C. §1030(a)(2)(C) for violating MySpace's terms of service, which prohibited lying about identifying information, including age. See United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009). Lying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight. The difference between puffery and prosecution may depend on whether you happen to be someone an AUSA has reason to go after.

Normally, the response to an overaggressive government prosecution of these kinds of marginal cases is to define the scope of the statute narrowly so that the prosecuted conduct doesn't fit within the terms of the statue.

But what about a case where the case is marginal but within the language of the statute?

Normally, in that situation, if the language is clear that what the person did is a federal crime, but it clearly isn't what Congress intended, or what any thinking person would think should be a crime (and, sadly, those are different tests), the response is that we have to trust the government to not bring those cases.

Or, if there isn't a mandatory minimum, we have to hope sentencing judges will truly see the case as marginal.

What many folks would say you can't do, though, is go to a jury and argue that this prosecution shouldn't have been brought. Many would say that you aren't allowed to argue, in essence, "yes, my client is guilty, but, still, you shouldn't convict."

Those folks may not have read the First Circuit's opinion in United States v. Baird.

There, Mr. Baird bought a gun from a shady guy. Turns out the gun was stolen.

The government decided to prosecute the guy who bought the gun (using the evidence of the guy who stole the gun) for possession of a stolen firearm.

Mr. Baird wanted an "innocent possession" instruction. He wanted to argue that he didn't know the gun was stolen when he possessed it and that it got rid of it quickly after having learned it was.

The district court refused to give that instruction, relying on cases that said there's no "innocent possession" defense in a possession of a stolen gun case, relying on United States v. Teemer, a prior First Circuit case on whether there's an innocent possession defense to a felon in possession charge.

The First Circuit, reversing on the failure to give the instruction, acknowledge that Teemer held there was no such defense, but then said,

But that is not all Teemer said. While Teemer declined to create a "mandatory safe harbor" for innocent possession, it also acknowledged that "there are circumstances that arguably come within the letter of the law but in which conviction would be unjust," such as if a felon snatched away a loaded gun from his school-aged son and then called the police to retrieve it. Therefore, although Teemer relied primarily on prosecutorial discretion and the common sense of the jury to weed out the cases warranting leniency in § 922(g) cases, we have simultaneously recognized that "extraordinary cases might arise where . . . . if the government were foolish enough to prosecute, some caveat might indeed be needed (e.g., an instruction on a necessity or justification defense.)"

I'm not sure how to read that, except as licensing a very limited kind of jury nullification.

Justifying the applicability of an innocent purchaser defense - which isn't in the statute - the court of appeals imagines what Congressional intent should have been. Since this prosecution didn't do much to get guns off the streets, the First Circuit concludes that it wasn't what Congress meant.

Clearly this isn't going to allow a jury nullification argument most of the time, or even much of the time. But, for those of us who have grown up with a Scalia-generated view of legislative intent, it's a stunning turnaround in how to interpret a statute. And, perhaps, a first step toward allowing some kind of jury nullification.