July 2013 Archives

July 30, 2013

Short Wins - The BOP Makes Prison Harder For Women, and Blog Lobbying

It's a bit of a sleepy week in the circuits, but not too sleepy in the news.

BOP Coverts Danbury to a Men's Prison

In Slate, Yale law professor Judith Resnik wrote about the problems facing female inmates in the Bureau of Prisons (hat tip to Todd Bussert's BOP Blog).

The BOP is converting Danbury to an all-male facility (Danbury is, of course, where Piper Kerman of "Orange is the New Black" fame did her time). This despite years of lobbying to open up more prisons for women closer to where their families are in the Northeast. It'll be harder for lawyers to see their clients, clients to get seen by their lawyers, and women to have visits from their children.

This is not good.

Also, if you're worried about the plight of women in BOP custody, here's a great nonprofit to get involved with.

ABA Blog Voting Time

Unrelatedly, it's now time for folks who are fans of this blog to let the ABA Journal know. I'd be grateful for any props. Here's the link.

Short Wins

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Flores-Cordero, Ninth Circuit: Appellant pled guilty to illegal reentry and, at sentencing, a 16-level increase was added to his base offense level based on his prior state conviction for resisting arrest. Because appellant's prior conviction did not constitute a "crime of violence" under U.S.S.G. § 2L1.2, the sentence was vacated and the case remanded for resentencing.

2. United States v. Hogg, Sixth Circuit: Appellant pled guilty to possession with intent to distribute crack and was sentenced to 188 months in prison after two motions to withdraw his plea were denied. Before he was sentenced, the Fair Sentencing Act was passed, enacting more lenient penalties for crack offenses. At his sentencing, the law provided that courts should look to the penalty provisions in effect when the person committed the offense - not to the lesser penalties in the Act. The Supreme Court changed that after appellant was sentenced, ruling that people sentenced after the Act's enactment are entitled to the more lenient penalties. Because the district court and counsel did not correctly anticipate the potential impact of the Act on appellant's sentence (because they were not clairvoyant), appellant was given incorrect advice at his plea hearing. As a result, he should have been permitted to with draw his plea. The case was reversed and remanded.

3. United States v. Juncal, Second Circuit: Appellants were convicted of conspiracy to commit mail and wire fraud arising out of a scheme to obtain a $3 billion loan to finance the construction of a pipeline across Siberia. Appellants were sentenced to twenty years in prison. Because of procedural errors in appellants' sentencing, including the court's failure to weigh the 18 U.S.C. § 3553(a) factors, the cases were remanded for resentencing.

July 22, 2013

Short Wins

It's been a busy week in the federal circuits - lots of good wins to check out.

Also, while I'm shamelessly pimping, please check out an article I wrote for the National Law Journal here about DOJ prosecutions, pleas, and why the law ought to be clearer.

To the victories!

1155650_berlin_siegessule.jpg1.United States v. Adams, et. al, Sixth Circuit: Appellants were convicted office RICO and related offenses arising out of their alleged participation in a vote-buying scheme in Kentucky. Because of cumulative error from the district court's evidentiary rulings, including the admission of an Inside Edition video, evidence of witness intimidation, the use of an inaccurate transcript, and state election records, among other evidence, appellants' convictions on all counts were vacated and the case remanded for a new trial.

2. United States v. Botello-Rosales, Ninth Circuit: Appellant pled guilty to drug and firearm charges after his motion to suppress statements he made to police after his arrest was denied. Because the Spanish-language warning administered to appellant failed to reasonably convey to appellant his Miranda rights, the district court erred in denying the motion to suppress. As a result, the district court's order denying the motion was reversed, appellant's conviction vacated, and the case remanded for further proceedings.

3. United States v. Daniels, et. al, Fifth Circuit: Appellants were convicted of conspiring to distribute more than five kilograms of cocaine. Because there was insufficient evidence to support the finding as to the quantity of drugs, the court reversed as to that finding only, vacating appellants' sentences and remanding for the district court to resentence appellants for the drug conspiracy pursuant to a statutory provision associated with a lesser quantity of drugs.

4. United States v. Garcia, Ninth Circuit: Appellant was convicted of involuntary manslaughter. The involuntary manslaughter jury instruction was defective because it failed to tell the jury that "gross negligence" was required for a conviction. Because the jury wasn't properly instructed, appellant's conviction was reversed.

5. United States v. Lanning, Fourth Circuit: Appellant was convicted of disorderly conduct arising out of his brief touching of an officer's fully-clothed crotch, which was done in response to a police officer in a sting operation's deliberate attempt to convince appellant he would have sex with him. Because no rational trier of fact could have found beyond a reasonable doubt that appellant's actions were "physically threatening or menacing" or "likely to inflict injury or incite an immediate breach of the peace," and because the term "obscene" was unconstitutionally vague as applied to appellant, appellant's conviction was reversed and the case remanded for a judgment of acquittal.

6. United States v. Perez-Valencia, Ninth Circuit: Appellant pled guilty to conspiring to distribute methamphetamine after the court denied his motion to suppress evidence obtained by a wiretap. The wiretap application was filed by an assistant district attorney. Because the record was insufficient to determine the precise nature of the attorney's authority when he applied for the wiretap, the case was remanded to develop the factual record. Further, on remand, if the court determines that the attorney lacked the authority to apply for the wiretap, it was instructed to consider whether the evidence subject to the motion to suppress is so attenuated from the statutory violation that it need not be excluded.

July 19, 2013

It Is Not A Federal Crime To Touch Someone Who Says They Want To Have Sex With You, Even If You're Gay

John Doe (not his real name - but the guy shouldn't be singled out any more than he already has been. If you really want to see his name, it's on the opinion from the Fourth Circuit) wanted to have gay sex with a stranger.

Instead of going online like a normal person, he went to a national park in North Carolina. Mr. Doe was in his sixties - apparently baby boomers don't use Grindr.

Mr. Doe was not the only person in the park looking for men who were looking to have sex with strangers. In response to a complete absence of real crime anywhere in North Carolina, law enforcement was there too.

The law enforcement officer Joseph Darling was on patrol. Darling saw Mr. Doe on a trail hiking toward him. As they passed each other, Darling said hello. Doe grabbed his groin.

1426349_balanced_rock.jpgA few minutes later, Darling saw Doe again on an unofficial trial. They talked about the weather for a few minutes. Then Darling told Doe that Asheville - which they were near - was an open community that is accepting of gay folks.

Mr. Doe said that he "wanted to be F'ed."

Darling indicated that he would be into that. (the record says that Darling said that he replied "okay or yes, or something to that affirmative")

As Darling described it later, he "gave [Doe] every reason to believe that [Darling] was good to go."

Mr. Doe then turned around - they were three feet or so away from each other - and backed into Darling.

With his left hand, Darling reached back and "very briefly" touched Darling's fully-clothed crotch.

Darling responded, "Police officer, you're under arrest."

Mr. Doe was charged with disorderly conduct. He was convicted by a magistrate judge and sentenced to 15 days in jail, along with a fine and a bar on going in a national park for two years.

Disorderly conduct for these purposes is defined by 36 C.F.R. § 2.34(a)(2) (some CFR provisions establish federal crimes in national parks - see 16 USC § 3) and has three elements:

(1) using language, an utterance, or a gesture, or engaging in a display or act; (2) that is obscene, physically threatening or menacing, or done in a manner likely to inflict injury or incite an immediate breach of the peace; and (3) having the intent to cause or knowingly or recklessly creating a risk of public alarm, nuisance, jeopardy, or violence.

The Fourth Circuit vacated this conviction, holding that there's no notice to Mr. Doe, or anyone else, that brief clothed touching of someone's body who says that they want to have sex with you is obscene.

Which is fair enough. The Fourth Circuit made two other great points though.

First, in response to an argument from the government that really this was a prosecution for Mr. Doe wanting to have sex right there on the unofficial trail, the court of appeals noted:

Defendant's conviction was for disorderly conduct--not disorderly thoughts or desires. And it is undisputed that Defendant's actual conduct never went further than his backing up to Darling and very briefly grabbing Darling's clothed crotch. Moreover, even Darling agreed that, "for all [he] knew, [Defendant] could have very well intended for [the intercourse] to happen at [Defendant's] house." J.A. 88. And such private sexual conduct would, of course, have been perfectly legal. As the Supreme Court pronounced a decade ago, "[l]iberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct" and "allows homosexual persons the right to" engage in consensual intimate conduct in the privacy of their homes. Lawrence v. Texas, 539 U.S. 558, 567 (2003).

Finally, the Fourth Circuit said the whole point of the notice requirement was so that the government can't just make up crimes to punish people for. (for an excellent National Law Journal article on this, go here)

Yet this looks like exactly what you'd expect can happen from government enforcement of loosely defined laws - the government uses them to bully unpopular groups.

the facts of this case illustrate the real risk that the provision may be "arbitrar[ily] and discriminator[ily] enforce[d]." Hill, 530 U.S. at 732. The sting operation that resulted in Defendant's arrest was aimed not generally at sexual activity in the Blue Ridge Parkway; rather, it specifically targeted gay men. Perhaps not surprisingly, then, the all-male undercover rangers arrested only men on the basis of disorderly homosexual conduct.

The Fourth Circuit also shot down a government argument that this was motivated not by hatred of gay people, but by citizen complaints:

If the public is . . . not similarly troubled by a woman propositioning her boyfriend for sex and then briefly touching his clothed crotch, there would exist no citizen complaint and no related sting, even for otherwise identical heterosexual conduct. Simply enforcing the disorderly conduct regulation on the basis of citizen complaints therefore presents a real threat of anti-gay discrimination.

Also the Fourth Circuit determined that touching someone who says they want to have sex with you is not physically menacing - the other prong of the disorderly conduct regulation.

July 16, 2013

Not So Short Wins - The Catch Up Edition

Dear Readers,

Apologies for posting so sparsely lately. Between covering the end of the Supreme Court term for Above the Law (see posts here or here if you'd like) and this day job as a lawyer, I've been remiss in keeping you up to date on what's what in the circuits.

Today, please find the Short Wins for the last two weeks. My personal favorite is United States v. Huizar-Velazquez because there simply isn't enough law on criminal importation of wire hangars.

To the victories!

1155650_berlin_siegessule.jpg1. In re Sealed Case, D.C. Circuit: Appellant pled guilty to possession with intent to distribute crack cocaine. At the time, he was subject to a 20-year mandatory minimum sentence. He provided substantial assistance to law enforcement, and the government asked the court to sentence appellant below the mandatory minimum. The court did so. Notwithstanding the fact that appellant was sentenced below the mandatory minimum, he was eligible for a sentence reduction under the recent amendments to the Sentencing Guidelines. Therefore, the case was remanded for the district court to consider whether a sentence reduction is warranted.

2. United States v. Cotton, Fifth Circuit: Drugs were seized during a search of appellant's car during a traffic stop. Because appellant limited his consent to a search of his luggage only - where the drugs were not located - the officer's prolonged and more extensive search of the entire car violated appellant's Fourth Amendment right. The drugs should have been suppressed as fruits of the unlawful search. Appellant's conviction was vacated and the case remanded.

3. United States v. Huizar-Velazquez, Ninth Circuit: Appellant pled guilty to importing wire hangers without paying the proper duties. At sentencing, the court applied the wrong sentencing guideline - it should have applied the guideline addressing evasion of import duties by smugglers trying to fool, rather than corrupt, government officials. Similarly, the court calculated the loss amount under the wrong guideline. For these reasons, appellant's sentence was vacated and the case remanded for resentencing.

4. United States v. White Eagle, Ninth Circuit: Appellant was convicted of the following offenses, among others: conspiracy to convert tribal credit program proceeds (count I); theft and conversion from an Indian Tribal Organization (count II); concealment of public corruption (count IV); and public acts affecting a personal financial interest (count V). Counts I and II were reversed because the alleged object of the conspiracy - modifying a loan - was not criminal. Therefore, there was no conspiracy. Count IV was reversed because the government did not show that appellant violated a specific duty to report credit program fraud. Count V was reversed because the connection between appellant's alleged financial interest and a Bureau of Indian Affairs administrative officer's fraudulent loans was remote and speculative. Further, the court erred at sentencing in calculating the loss amount, requiring remand.

5. Gonzalez v. United States, Second Circuit: Appellant pled guilty to narcotics and bribery crimes and was sentenced to 210 months in prison. The district court denied appellant's 28 U.S.C. § 2255 motion to vacate his conviction and sentence. In the motion, appellant argued that his attorney provided ineffective assistance in connection with the guilty plea and sentencing. Because appellant demonstrated that the attorney's ineffective assistance was prejudicial, the district court's order dismissing appellant's motion was vacated and the case remanded for resentencing with the assistance of competent counsel.

6. United States v. Nicholson, Tenth Circuit: Appellant pled guilty to three drug and weapons-related charges after the district court denied his motion to suppress evidence found in his car after a traffic stop. Because the officer pulled appellant over for making a turn that was not illegal, the officer violated the Fourth Amendment. No other legal basis existed for stopping appellant and the good faith exception did not apply. For these reasons, the denial of appellant's motion to suppress was reversed and the case remanded with directions to vacate his convictions.

7. United States v. Thompson, D.C. Circuit: Appellant was found guilty of drug charges. Because the record was insufficient to resolve appellant's claim that his attorney was ineffective in failing to inform him of plea offers from the prosecution before the offers expired, the case was remanded to the district court for whatever proceedings are necessary to determine whether appellant was denied his right to effective assistance of counsel.

July 5, 2013

Short Wins - Fourth of July Week Edition

Today's featured case is United States v. Hampton for a few reasons.

First, it's from the DC Circuit, and my office is in DC - our Circuit's pro-defendant decisions are particularly exciting (to me).

Second, it involves law enforcement agents offering expert testimony. Law enforcement testimony is massively frustrating - it feels, at times, that there no bounds to what an FBI Agent will testify about.

Third, it comes out of a retrial. Who doesn't love a retrial?

Though, I should say, there are plenty of other great cases in this week's Short Wins.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Buffer, Sixth Circuit: The district court erred in denying appellant's motion to suppress evidence gathered from a search warrant and arrest because it incorrectly determined that (1) the warrant was supported by probable cause and (2) even if the warrant wasn't supported by probable cause, the good faith exception to the warrant requirement applied. Because of these errors, the appellate court reversed the order denying appellant's motion, vacated appellant's conviction, and remanded for further proceedings.

2. United States v. Davis, Fourth Circuit: Appellant received a consolidated sentence for several state law violations. The court counted the sentence as at least "two prior felony convictions" under the Sentencing Guidelines career offender enhancement provision. Because appellant's consolidated sentence was a single sentence for purposes of the career offender enhancement, the court vacated appellant's sentence and remanded for resentencing.

3. United States v. Galpin, Second Circuit: Appellant moved to suppress evidence of child pornography. The court agreed with appellant that the search warrant that led to the discovery of this evidence was overbroad and that the officers lacked probable cause to conduct it. Nevertheless, the court ruled that the warrant was severable and that the images found would have been in plain view during a properly limited search. This ruling was error: because the record as to whether the warrant was severable and whether the images were in plain view was deficient, the trial court's order denying the motion to suppress was vacated and the case remanded for further proceedings.

4. United States v. Hampton, D.C. Circuit: Appellant was convicted of drug conspiracy charges after a mistrial and re-trial. At the re-trial, the district court allowed an FBI agent to give lay-opinion testimony about his understanding of recorded conversations played for the jury. Because the court failed to enforce the boundaries for this type of evidence in Federal Rule of Evidence 701, the court denied the jury the information it needed to assess the agent's interpretations. Appellant's conviction was vacated.

5. United States v. Tien, Second Circuit: Appellant pled guilty to bribery of a public official and forgery of a passport at separate conferences held 16 months apart. In both pleas, the court plainly erred when it violated Federal Rule of Criminal Procedure 11, which sets forth the requirements the court must follow in determining whether a plea is voluntary. Because the pleas weren't knowingly and voluntarily entered, both were vacated and the case remanded.