August 2013 Archives

August 26, 2013

Eric Holder Editorial in the Baltimore Sun

Due to various case and vacation related reasons, there will be no short wins today.

But, fear not - if you really want to read stuff written by me about federal criminal law, you can read my editorial in Sunday's Baltimore Sun here about Eric Holder's proposals to reduce the prison population.

Here's the punchline:

No one at the Department of Justice wins an award or gets a promotion for deciding to walk away from a case, or advocating for a lower fair sentence instead of a higher one they can brag about in the office. And Mr. Holder's "reforms" do nothing to change that. If federal prosecutors aren't throwing people in prison from state court, they'll find other people to put in prison.

We either need to drastically reform the culture of law enforcement -- and reward decisions to walk away as much as decisions to go forward -- or we need to drastically reduce the number of people who make a living from other people going to prison.

August 19, 2013

Short Wins - 9th and 11th Circuit edition

There are some great cases from the Ninth and Eleventh Circuits this week - especially United States v. Ermoian on obstruction of justice. Good times.

And, of course, the big news of last week was Eric Holder's recognition that there are a lot of people in federal prison. I'm skeptical that a policy that lets folks with one or two criminal history points avoid a mandatory minimum is going to do much to reduce our prison population, as I told some folks last week, but if the Attorney General is going to pay lip service to an idea, I suppose I'm glad it's an idea that I agree with.

To the victories!

1155650_berlin_siegessule.jpg1. Spencer v. United States, Eleventh Circuit: Appellant was convicted of distributing crack and sentenced to 151 months based in part on his designation as a career offender. Appellant argued at sentencing and on appeal that one of his predicate felony convictions upon which the career offender status was based no longer qualified as a predicate crime of violence. The court ruled that appellant could use a timely filed motion under 28 U.S.C. § 2255 to pursue that argument when an intervening case from the Supreme Court validated the argument and applies retroactively. Because appellant correctly argued that one of his predicate convictions no longer qualified as a predicate crime of violence, the district court's denial of the § 2255 motion was vacated and the case remanded for resentencing.

2. United States v. Acosta-Chavez, Ninth Circuit: Appellant pled guilty in 2005 to Illinois aggravated criminal sexual abuse and was removed from the country. After he reentered illegally, he was indicated on that basis, pled guilty, and was sentenced to 30 months in prison. His sentence was based in part on the court's designation of the 2005 crime as a "crime of violence." This was error. Because the error was not harmless, the sentence was vacated and the case remanded for resentencing.

Attorney: David W. Basham, for Appellant.

3. United States v. Edwards, Ninth Circuit: Appellant pled guilty to being a felon in possession of a firearm and was sentenced to 46 months in prison. At sentencing the district court found that appellant's prior conviction for attempted burglary under Nevada law was a "crime of violence" using the modified categorical approach. In this case, applying that approach was error. Appellant's sentence was vacated and the case remanded for resentencing without the "crime of violence" enhancement.

Attorney: Chad A. Bowers, for Appellant.

4. United States v. Ermoian, et al., Ninth Circuit.pdf: Appellants were convicted of obstructing justice arising out of their alleged conduct during an FBI investigation. Because an FBI investigation is not an "official proceeding" under the federal obstruction of justice statute, the jury instruction identifying it as such was erroneous. The government conceded that, if an FBI investigation wasn't an official proceeding, the obstruction of justice charges could not have been sustained on evidence presented at trial. For these reasons, appellants' convictions were reversed and retrial was barred.

Attorneys: for Mr. Ermoian, John Balazs; for Mr. Johnson, Jerald Brainin.

5. United States v. Madden, Eleventh Circuit: Appellant was indicted for, among other things, knowingly using and carrying a firearm in relation to a crime of violence and knowingly possession a firearm in furtherance of a drug trafficking crime. At trial, the court's instructions to the jury constructively amended this charge by using different and confusing language. He was convicted on this charge. Because the amendment was plain error, appellant's conviction was reversed and the case remanded.

August 16, 2013

It Doesn't Violate (One) Federal Law To Tip Your State Legislator In Puerto Rico

When you go to a restaurant, you have to pay for the meal - there's a quid pro quo. But you don't have to leave a tip (we're leaving aside situations where you have a large party and they automatically add 18%). A tip you leave because you want to note and appreciate the service you received. Maybe a tip is expected, but a waiter can't sue you for not leaving one.

So too with bribes, gratutities, and law makers. If a member of Congress makes a deal with you where you'll give him $10,000 in exchange for voting for your favorite bill, that's a bribe. But if he votes for your favorite bill and then you send him $10,000 because you're excited about his vote, that's a gratuity.

As the Supreme Court has said,

for bribery there must be a quid pro quo -- a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.

A high-profile case in Puerto Rico highlights the difference - and establishes that, in the First Circuit at least - a gratuity is not a violation of 18 U.S.C. § 666.

Section 666 is the federal statute that prohibits corrupt acts with state and local government actors. It says that any one who is an agent of a state or local government and "corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with" that person's work as an agent of the government, has violated section 666(a)(1).

Similarly, anyone who "corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward" any one who is an agent of a state or local government violates section 666(a)(2).

The First Circuit held that this language doesn't prohibit mere gratuities.

What Happens In Vegas

Juan Bravo Fernandez - or Mr. Bravo - was the President of Ranger American, a private security firm.

Hector Martinez Maldondad - Mr. Martinez - was a member of the Senate of the Commonwealth of Puerto Rico.

Mr. Martinez was the chair of the Public Safety Committee. In 2005, it was considering some legislation that would have been very favorable to Mr. Fernandez - Senate Projects 410 and 471.

As the First Circuit tells it in United States v. Martinez:


On May 14, 2005, prominent Puerto Rican boxer Felix "Tito" Trinidad was scheduled to fight Ronald Lamont "Winky" Wright at the MGM Grand Hotel & Casino in Las Vegas, Nevada. On March 2, Bravo purchased four tickets to the fight at a cost of $1,000 per ticket. The same day, Martinez submitted Senate Project 410 for consideration by the Puerto Rico Senate. On April 20, Martinez presided over a Public Safety Committee hearing on Senate Project 471 at which Bravo testified. The next day, Bravo booked one room at the Mandalay Bay Hotel in Las Vegas. On May 11, Martinez issued a Committee report in support of Senate Project 471.

I suppose it goes without saying that the trips were really nice.

Both men were charged with a number of things - including charges involving the giving or receiving of a bribe in violation of 18 U.S.C. § 666.

The Jury Instructions

Here's part of how the jury was instructed:

I instruct you that a defendant is not required to have given, offered, or agreed to give a thing of value before the business, transaction, or series of transactions. Rather, the Government may prove that defendant Bravo gave, offered, or agreed to give the thing of value before, after, or at the same time as the business, transaction, or series of transactions. Therefore, the government does not need to prove that defendant Bravo gave, offered, or agreed to offer the trip to Las Vegas before defendant Martínez performed any official action or series of acts.

Of course, if you give someone cash after they perform a service, instead of before, that's a tip, rather than a bribe.

Another part of the instruction makes it a little clearer:

the Government does not need to prove that defendant Martinez solicited, demanded, accepted or agreed to accept the trip to Las Vegas before defendant Martinez performed any official act or series of acts.

Again, this looks a whole lot like the government can get a conviction if there's just some relationship between the money and the official act, rather than that the money caused the official act - which you'd need for bribery.

The government's closing argument didn't walk back from this. The government said:

These instructions clarify that -- that it doesn't matter if the trip was offered before official acts were taken, at the same time official acts were taken, or after official acts were taken, because the crime is offering or accepting the trip with intent to influence or reward.

These instructions, on these facts, allowed the First Circuit to conclude that the jury was instructed that Mr. Martinez or Mr. Bravo could be convicted if they merely received a gratuity, rather than a bribe.

Does section 666 criminalize gratuities?

The First Circuit said yes.

The statute criminalizes anyone who gives something to a state legislator (and others) with an intent to "influence or reward" that person. A number of circuits have held that the "or reward" bit of this includes gratuities. United States v. Anderson, 517 F.3d 953 (7th Cir. 2008); United States v. Ganim, 510 F.3d 134, 150 (2d Cir. 2007); United States v. Zimmerman, 509 F.3d 920, 927 (8th Cir. 2007).

The other way to read this is that the "or reward" applies to situations where the agreement was made before the official action, but the payment came later. If that's the case - and the deal was hatched, and "reward" just means paying off the previously agreed on sum in exchange for the official act - then this applies to bribes. It doesn't additionally criminalize bribery.

So, if you go into a restaurant and tell the waiter "I'll give you a $20 tip if you never let my iced tea glass get empty" then, because there's a qui pro quo, you've converted the tip from a gratuity to a bribe (except that it's completely legal to refill an iced tea glass frequently).

The First Circuit thought this was a plausible reading - and also noted that if you don't read it this way, it gets odd.

There are different punishments for bribes and gratuities if you're bribing a federal official. If it's a bribe of a federal official, the statutory maximum is 15 years. If it's just a gratuity, then the max is two years.

But for section 666 applying to state officials, any violation has a statutory maximum of 10 years.

The First Circuit thought it would be pretty odd to have such a high statutory maximum if Congress intended section 666 to apply to gratuities, that are normally capped at 2 years for federal officials.

For these reasons, and others, the convictions were vacated.

August 12, 2013

Short Wins - Attorney General Holder Wants Fewer People In Prison And We Add Attorney Names

It's been a busy week in the circuits. But first, two news items.

Eric Holder Walks Back The War On Drugs

Today, as has been widely reported, Eric Holder will announce that "widespread incarceration at the federal, state and local levels is both ineffective and unsustainable." Here's coverage at the Wall Street Journal.

This is good news, though, of course, it could have been better news. We have the highest incarceration rate in the world. We're spending way too much money to destroy families and communities for no good law enforcement reason. I can't help but wonder how many pointless years of prison time were imposed while Holder lead the Department of Justice before he made these changes.

It looks like Holder's proposals are (1) aimed at trimming a little bit of the horribleness of the war on drugs and (2) making it easier for folks to get released from prison early in some limited circumstances.

The devil, as always, will be in the details. We'll see. And, of course, this does nothing for the other areas of the law -- like fraud and child pornography possession -- where the sentences are also unconscionably high.

Attorney Names

In other news, we're adding a new part of Short Wins today. In the past, we've just published a short description of the case, and longer write-ups have come out during the week.

Today, in response to emails from some readers, we'll start to add the name of the lawyer who argued the case.

This has two goals. First, it will congratulate our fellow members of the bar who should be congratulated. Second, my friends in federal public defender offices have asked what percentage of wins are from the FPD community. I don't keep track, but this will make that a little easier to see.

Sadly, some circuits don't list the attorney who argued a case in the opinion. For the lawyers who won cases in those circuits, I'm sorry to say we won't be digging through Pacer to find your names.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Fries, Eleventh Circuit: Appellant was convicted of transferring a firearm to an out-of-state residence when neither he nor the buyer was a licensed firearms dealer. Because the evidence at trial did not prove that appellant sold a weapon to a person who wasn't a licensed firearms dealer - an essential element of the offense - appellant's conviction was reversed with instructions for the trial court to enter a judgment of acquittal.

2. United States v. Hughes, Fifth Circuit: Appellant was charged with one count of conspiring to distribute crack and four counts of using a phone to facilitate the commission of a drug crime. At his plea hearing, the government informed the court that, in exchange for appellant's guilty plea to the drug conspiracy count, the government would move to dismiss the remaining charges at sentencing. Appellant pled guilty to all five counts. Although the government reminded the district court of the agreement to drop four of the five counts, the court sentenced appellant on all five counts. The court abused its discretion in sentencing appellant on all five counts because it provided no reasoning justifying its refusal to dismiss the four counts, and because the government did not argue that dismissing the counts would have been "clearly contrary to manifest public interest."

3. United States v. Lee, Ninth Circuit: Appellant pled guilty to conspiring to distribute methamphetamine and a forfeiture count. For three years after her guilty plea, appellant substantially assisted the government's investigation and prosecution of a drug network in which she had been involved. She was then sentenced to 96 months in prison. Her sentence was vacated and remanded for resentencing because of three errors: the district court (1) failed to use the Guidelines as a starting point; (2) incorrectly calculated the Guidelines range; and (3) failed to determine a revised minimum sentence under 18 U.S.C. § 3553(e), as it was required to in considering appellant's substantial assistance.

Mark Eibert, Half Moon Bay, California, for Defendant-Appellant.

4. United States v. Nelson, Sixth Circuit: Appellant was convicted of being a felon in possession of a firearm and ammunition. At trial, the court admitted testimony from police regarding an anonymous 911 caller's description of appellant, which was hearsay evidence admitted to prove that appellant possessed a gun. The evidence shouldn't have been admitted because it went directly to the key issue for jury resolution, wasn't necessary for the government to provide the jury with a coherent narrative, and was too prejudicial for the harm to be cured without a limiting instruction. The error wasn't harmless because it was more probable than not that it had a material impact on the verdict. For these reasons, the judgment was vacated and the case remanded for a new trial.

Erik R. Herbert, Nashville, Tennessee, for Appellant.

5. United States v. Thomas, Ninth Circuit: Marijuana was found in a toolbox in appellant's car as a result of a search conducted by a drug dog and the dog's handler. Appellant was subsequently indicted for possessing marijuana with intent to distribute and, more than a year later, with conspiring to possess with intent to distribute marijuana. Appellant filed a motion to suppress the marijuana, which was denied. This was error, which was not harmless, as the government failed to disclose adequate evidence of the drug dog's and his handler's proficiency and experience to justify the search that led to the drugs.

Brian I. Rademacher, Assistant Federal Public Defender, District of Arizona, Tucson, Arizona, argued the cause and filed the briefs for the appellant.

August 8, 2013

A Brady Violation in Tennessee

Placido Mendoza drove a truck from North Carolina to Tennessee. His passenger was Abel Tavera.

Tavera was a roofer. He later said (to a jury) that he thought he was going to Tennessee to see a construction project.

23.jpgThe truck had construction equipment in it. And a bucket containing nails.

Under the nails was a large quantity of methamphetamine.

Mr. Tavera went to trial and was convicted. His defense was that he didn't know that the truck had meth in it.

The driver, Mr. Mendoza, pled guilty before Mr. Tavera's trial.

Mr. Tavera was convicted and sentenced to 15 years and six months in prison.

After Mr. Tavera's trial, he learned that Mr. Mendoza told the AUSA - Donald Taylor - that Mr. Tavera had no knowledge of the drug conspiracy he was charged with.

AUSA Taylor never told Mr. Tavera's lawyer that Mr. Mendoza said Mr. Tavera isn't guilty.

And, as a result, the jury never heard that the only other guy in the car told the prosecutor that Mr. Tavera didn't know about the drugs.

As the Sixth Circuit said, "Mendoza's statements to Taylor were plainly exculpatory."

The Supreme Court has said that the government has to hand over all information that is exculpatory and that if it fails to do that, the prosecution is fundamentally unfair.

Yet, despite that the law is crystal clear on this, the Sixth Circuit notes that "nondisclosure of Brady material is still a perennial problem, as multiple scholarly accounts attest."

The procedural history is interesting - Mr. Tavera's motion for a new trial based on the Brady failure was still pending when the Sixth Circuit decided, in United States v. Tavera, that the Brady violation was so clear that the case had to go to a new trial.

The government did not think that it had to disclose this information. As the Sixth Circuit frames their argument:

the government argues, and the dissent agrees, that Tavera (although confined to his prison cell) or his lawyer should have exercised "due diligence" and discovered the statements by asking Mendoza if he had talked to the prosecutor.

The court of appeals held that the Supreme Court rejected the "due diligence" exception to Brady in Banks v. Dretke, 540 U.S. 668 (2004) when it noted that "[a] rule thus declaring "prosecutor may hide, defendant must seek," is not tenable in a system constitutionally bound to accord defendants due process."

Moreover, a rule that a Brady violation is excusable if the defendant or defense lawyer just does more work is kind of stupid. As the Sixth Circuit explained:

The Supreme Court's rejection of the idea that the "prisoner still has the burden to discover the evidence" is based in part on the fact that the prosecution has the advantage of a large staff of investigators, prosecutors and grand jurors, as well as new technology such as wiretaps of cell phones. That is one of the reasons that these investigators must assist the defendant who normally lacks this assistance and may wrongfully lose his liberty for years if the information they uncover remains undisclosed. The superior prosecutorial investigatory apparatus must turn over exculpatory information.

My favorite part is the suggestion that Mr. Tavera's lawyer should have interviewed Mr. Mendoza - because there is just about exactly zero chance that any competent lawyer would let his client talk to a co-defendant about the facts of the case while he's trying to work out a deal with the government.

Because "[t]his case shows once again how prosecutors substitute their own judgment of the defendant's guilt for that of the jury" the court of appeals reversed and recommended that "the U.S. Attorney's office for the Eastern District of Tennessee conduct an investigation of why this prosecutorial error occurred and make sure that such Brady violations do not continue."

August 7, 2013

Marriage Fraud Does Not Wait On Lying To Immigration Officials

Does marriage fraud happen in the marriage, or at the wedding? As it happens, marriage fraud, at least according to the Eleventh Circuit, is a bit of a misnomer - it's really better thought of as wedding fraud.

The statute is 8 U.S.C. § 1325(c). It says that it's a marriage fraud whenever "[a]ny individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws." The case is United States v. Rojas.

2.jpgYunier Rojas and Soledad Marino were friends. Good friends, but just friends. Apparently not even friends with benefits. Just friends.

Ms. Marino is an Argentinian who had overstayed her nonimmigrant visa. Mr. Rojas, as a friend, married her so that she could stay in the country.

The happy day was April 23, 2007.

Two years later, Ms. Marino sent in an application to adjust her status, as a result of her marriage. She sent in a marriage license from April 2007, as well as a list of addresses where she had lived with Mr. Rojas as a married couple.

Folks from Immigration and Customs Enforcement - ICE - interviewed the couple, together.

The interview didn't go well. As a result of discrepancies between what they said, the interviewers decided to interview the couple separately. The two gave different answers about their marriage. One suspects that they were more substantive than whether her favorite flavor of ice cream was really pistachio.

Finally, the ICE agents told the couple that they thought the marriage was a fraud. Both Mr. Rojas and Ms. Marino admitted that it was.

Mr. Rojas signed a statement saying that he and Ms. Marino were just friends - and that he married her so she could stay in the country.

As often happens when folks volunteer information about their own criminal conduct, law enforcement responded charitably - the government indicted Mr. Rojas.

The indictment came on April 27, 2012.

This was, of course, five years and four days after April 23, 2007 - the day the couple were married.

Mr. Rojas filed a motion to dismiss the indictment, which was denied.

On appeal, the Eleventh Circuit, per curiam, in an opinion that didn't require argument, held that the crime of marriage fraud is completed on the day that the couple enters into the marriage.

This is because the criminal conduct is "knowingly enter[ing] into a marriage" that's a sham to defeat immigration laws.

The government argued that the crime of immigration fraud was not complete until the couple lied to the government about the purpose of the marriage. That, after all, is when the government first learned that a crime had happened.

Since the purpose of entering in a sham marriage - according to the government - is to lie to immigration, the couple has to actually finish lying to immigration for the crime to be done.

The Eleventh Circuit rejected this argument.

To prove marriage fraud, the government must show that (1) the defendant knowingly entered into a marriage (2) for the purpose of evading any provision of the immigration laws.2 See 8 U.S.C. § 1325(c). It is undisputed that Rojas and Marino married on April 23, 2007. It is likewise undisputed that Rojas, at the time he entered into the marriage, did so for the purpose of violating the immigration laws--namely, using the marriage to adjust Marino's immigration status. Filing for immigration benefits may serve as circumstantial evidence of the defendant's unlawful purpose and may lead, as it did in this case, to charges and prosecution for making a false, fictitious, or fraudulent statement to DHS, in violation of 18 U.S.C. § 1001(a)(2). The plain language of the marriage fraud statute, however, cannot plausibly be read to require that a defendant take the additional step of filing for immigration benefits in order for the crime to be complete.

The district court abused its discretion by holding otherwise.

So, Mr. Rojas is free to go. Though I suspect that the statute of limitations on lying to the ICE investigators may not have run yet.

August 2, 2013

Short Wins - The Last Week of Blog Nominating and a Bright Spot on Danbury

Two bits of news before we get to the short wins:

ABA Blog Nominations

First, this is the last week you can tell the ABA Law Journal what you think about this blog - or any other law-related blog - as they prepare their list of the top 100 law-related blogs in the country (or world, or multiverse).

The link is here and you've got to get your stuff in my the end of this week - August 9.

If you like this blog, I'd be grateful if you'd share it with them. If you dislike this blog, please feel free to email me and let me know what you'd like to see done differently.


Second, as you may recall from last week, the Bureau of Prisons is thinking about closing the only federal women's facility in the Northeast.

This is a huge problem because the farther women are incarcerated from their children, the lower the likelihood that they will actually get to see their children while they are incarcerated. And, hopefully, as a society, we can agree that it's generally a good thing for kids to see their moms.

There's a bit of a bright spot - a number of senators have written the Bureau of Prisons to ask them to try to stop the move. As reported in the Hartford Courant and described in Todd Busert's blog, these 11 senators are trying to make the case that the Northeast needs a federal prison for women.

Here's to hoping that works.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Esquivel-Rios, Tenth Circuit: Appellant's car, which bore an out-of-state 30 day registration tag, was stopped after a police officer could not verify the tag with a law enforcement database. During the call to verify the tag, the dispatcher told the officer that these types of tags often don't show up in the database. At trial, the officer confirmed that he too had never seen this type of tag come up. Drugs were found in appellant's car. His motions to suppress the drugs were denied. Because the court did not consider the totality of the circumstances in determining whether the stop violated the Fourth Amendment - including the dispatcher's comment and the officer's own experience with these tags - the case was remanded for the district court to consider this evidence and to determine whether the officer had reasonable suspicion to stop appellant.

2. United States v. Flores, Ninth Circuit: Appellant was convicted of multiple drug conspiracy offenses and a firearm charge and sentenced to 240 months in prison. The district court applied a two-level enhancement under sentencing guideline § 3B1.4 for the use of a person less than 18 in the conspiracy. Because this enhancement was imposed without a factual basis, appellant's sentence was vacated and the case remanded for resentencing.

3. United States v. Lira, Ninth Circuit: Appellant was convicted of drug trafficking and using a firearm in furtherance of a drug trafficking offense. He was sentenced to 120 months on the firearm charge. At the time, the law provided that the mandatory minimum for the firearm charge increased from five to ten years if the firearm was discharged, which the district court found was the case by a preponderance of the evidence. After sentencing, the law changed: the Supreme Court ruled that facts that increase mandatory minimum sentences must be submitted to the jury and established beyond a reasonable doubt. Because appellant's 120-month sentence was based on a fact found by the court by a preponderance of the evidence, resentencing was required.