The Federal Criminal Appeals Blog

One of the most disturbing trends in federal law enforcement, is the way the criminal law is being used to regulate business practices.

If someone commits a substantial fraud - that's an appropriate basis for a prosecution. But we shouldn't put people in prison just because something bad happens in business.[FN1]

The Sixth Circuit's opinion in United States v. Parkes is a good example of why prosecution shouldn't be the best option for a bad business decision (as opposed to, say, regulatory enforcement action, or a civil suit).

Remington Industries

Timothy Parkes and Mark Mourier had a vision. They wanted to start a company that would manufacture and distribute floor mats for automobiles.

They started the company in Canada, but soon moved it to Benton, Tennessee. It grew to become one of the largest employers in Benton.

Of course, any business needs a relationship with a bank. Mr. Parkes and Mr. Mourier developed a relationship with the President of Benton Bank - Jim Goddard.

At one point, Parkes and Mourier had an idea - a fantastically bad idea. They would change their manufacturing process, and make floor mats using untested chemicals. It required them to redesign and upgrade their manufacturing process - a massively expensive proposition.

The end result of the upgrade was that Remington made floor mats that would melt in the summer heat.

This change cost the company more than $1.5 million from 2000 through 2002. They retooled their company, and shut down the new manufacturing line. They started buying floor mats made in China - converting from being a manufacturer to a distributor. This transition was going well, but they needed money to keep going.

As a result, the company had to go to Mr. Goddard to borrow more money from Benton Bank.

Benton Bank

Benton Bank was a small bank, with less than $10,000,000 in capital. The FDIC wouldn't let Benton Bank lend more than 25% of its capital to any one customer.

Remington's loans exceeded these limits. As a result, Mr. Goddard asked Remington to borrow money from someone else.

Remington did. They borrowed from a private equity firm, and repaid Benton Bank. As a part of the deal, Benton Bank had to agree to issue an irrevocable line of credit to Remington.[FN2]

Remington then defaulted on the private equity firm's loan, and the private equity firm forced Benton Bank to honor its line of credit.

Things were a little hairy at that point. Benton Bank honored its line of credit, but was then in violation of the FDIC's requirements. Then, Mr. Goddard had a very clever idea.

Mr. Goddard

Mr. Goddard was, as it happens, already embezzling sums of money from Benton Bank. He was a man who knew his way around the fraudulent booking of a loan.

Faced with a need to make the FDIC think that his bank's position was not in violation of their regulations, he simply booked ten small loans to non-existent entities, then took the total of those loans and gave the money to Remington.

Problem solved. Sort of.

Mr. Goddard Gets In Trouble

As the court of appeals noted, "[e]ventually Goddard's years of wrongdoing unraveled and he left the Bank."

After he left, and as things were starting to move to federal law enforcement's attention, someone found a fax in Mr. Goddard's office, which was a printed email to the lawyer for Remington. The email that was faxed was from Mr. Parkes, and copied Mr. Mourier, and listed ten new companies that Mr. Parkes sought to have the lawyer create.

The ten company names were the same companies that Mr. Goddard used to create the fake accounts on Benton Bank's books.

Mr. Parkes and Mr. Mourier Get Into Trouble

This was enough for the FBI. Mr. Parkes and Mr. Mourier were indicted for bank fraud.

Though Mr. Goddard was a government cooperator, he was not called by the government as a witness. Instead, the government relied heavily on the fax as evidence that Mr. Parkes and Mr. Mourier knew what Mr. Goddard was doing.

This was enough for the jury. Or, at least it was as to Mr. Parkes. After trial, Mr. Parkes was convicted of ten counts of bank fraud. Mr. Mourier was acquitted.

The Sixth Circuit

This evidence, however, was not enough for the Sixth Circuit. Its not often to see a court of appeals reverse a conviction for sufficiency of the evidence, but they did. In a lovely turn of phrase, the court concluded that,

Even viewing the record in the light most favorable to the government, there was insufficient evidence to connect Parkes to Goddard's fraud, much less to prove beyond a reasonable doubt that Parkes intended that fraud. Surprisingly, the government offered no testimony from Goddard to establish that Parkes cooperated in, or even knew of, the scheme, even though Goddard had already pleaded guilty with an agreement requiring him to testify "completely and truthfully . . . if called upon by the United States to do so." While that failure does not directly impact the sufficiency of the evidence, it does leave the evidentiary cupboard nearly bare.

Not content to stop there, the court of appeals then went on to criticize the district court for not allowing the defense to introduce evidence of Mr. Goddard's prior embezzlement, and to criticize the prosecutor for an inappropriate argument in closing.

The inappropriate argument was particularly bad. The prosecutor told the jury that an acquittal would let Parkes and Mourier keep $4 million dollars. But the prosecutor already knew that the money had been paid back to the bank. Indeed, the prosecutor had argued - successfully - not to let that evidence get to the jury.

This is a fantastic case - it's a lovely rebuke to the government for assuming that everyone who deals with a bad apple is, herself, bad.

[FN1] - Relatedly, the idea that any time there's a recession someone on Wall Street should go to prison radically misunderstands the proper function of a system of criminal justice. Sure, if you want to form an angry mob and attack the people who caused something bad, sending executives to prison for bad decisions makes sense. But a more enlightened view is that the government ought to first prove that a person did something that she knew was a crime before she is sent to prison, not just that she worked on Wall Street shortly before the economy took a nosedive.

The Supreme Court's opinion in United States v. Skilling marked a sea change in how the government prosecutes public corruption cases. It used to be that all the government had to prove is that a public figure had a conflict of interest and didn't disclose it. After Skilling, that is no longer a crime.

As the Third Circuit recently discussed, federal circuit courts are unwinding prior prosecutions of public officials for failing to disclose conflicts of interest since that is no longer a crime.

Last week, it was the Fourth Circuit's turn in United States v. Hornsby. The Fourth Circuit reversed Mr. Hornsby's conviction for honest services fraud, but did not undo his conviction for obstructing justice to hide his honest services fraud.

In essence, Mr. Hornsby will spend time in prison for covering up a crime that didn't exist.

The Thing Which Is No Longer A Crime

Andre Hornsby was the chief executive officer of the school system in Prince George's County, Maryland.

His girlfriend was a sales representative for LeapFrog - a company that sells educational products to school systems.

Though it's a little convoluted, Mr. Hornsby was able to have Prince George's County purchase Leapfrog products. His girlfriend received a $20,000 commission for the deal. She generously shared it with Mr. Hornsby - and gave him half.

The Cover Up Of The Not-A-Crime

The Baltimore Sun wrote a story about Mr. Hornsby, his girlfriend, and the LeapFrog deal. The next day the Maryland United States Attorney's Office launched an investigation into the LeapFrog deal.

Mr. Hornsby, upon reading the Baltimore Sun article, ordered that all of his emails be deleted. Sadly, it's hard to find good help these days - one of the computer specialists not only didn't destroy Mr. Hornsby's emails, but turned them over to federal law enforcement.

Mr. Hornsby also had a private consulting firm, and a woman named Cynthia Joffrion worked for him in that business. The FBI told her to tell Mr. Hornsby that they had issued a subpoena for her computer, which had files on it relating to the LeapFrog deal. She did. Mr. Hornsby told her to hide the computer.

Of course, one doesn't become the CEO of a large school district without prior experience. Mr. Hornsby had previously been the superintendent of Yonkers Public Schools in Westchester County, New York.

When Mr. Hornsby was in Yonkers, Ms. Joffrion worked for him. At one point, he was under investigation there. When he learned he was under investigation, he told Ms. Joffrion to get any computers with evidence on them to her relatives. Then, on a recorded call, he told her to burn any paper associated with the ethics allegations. [FN1]

Mr. Hornsby In The District Court

Mr. Hornsby was charged with honest services fraud and obstruction of justice. He was tried in the federal courthouse in Greenbelt, Maryland. His jury hung and the district court declared a mistrial.

A grand jury returned a superseding indictment against him, charging him with more honest services fraud, obstruction of justice, and tampering. He was convicted of some counts of honest services fraud, obstruction of justice, and tampering.

He was sentenced to seventy-two months in prison on all the counts of conviction, to be served concurrently.

Skilling Changes The Rules

After the trial, the Supreme Court decided United States v. Skilling - making it no longer a crime for a public official to decline to disclose a conflict of interest.

The Fourth Circuit found that Mr. Hornsby's convictions for honest services fraud could not survive after Skilling. The court of appeals vacated the conviction for those counts.

On the obstruction and tampering counts, Mr. Hornsby argued that they needed to be vacated as well. He made a number of arguments - the most interesting being that the jury's deliberations on the obstruction counts were contaminated by the idea that he had committed a crime based on honest services fraud. [FN2]

Here, Mr. Hornsby fared less well. The court of appeals noted that even if the government had just gone to trial on the obstruction counts, it would have been able to bring all of the other evidence about LeapFrog in at trial under Rule 404(b). (for a discussion of Rule 404(b), see this post).

So, in the end, Mr. Hornsby will go for resentencing. But will still be convicted of obstruction.

[FN1] - Really? She was recording his calls in New York? Years before this case?

[FN2] - Mr. Hornsby did not argue that obstruction is impossible if there's no underlying crime - regardless of whether you violated the law, you don't get to destroy evidence that you think is responsive to a grand jury subpoena.

Like many Americans, Benjamin Carter liked to smoke marijuana. He also lived in a bad neighborhood, and worried about being the victim of crime.

Even though 18 U.S.C. § 922(g)(3) says that it is a crime for any person "who is an unlawful user of or addicted to any controlled substance" to possess a firearm, Mr. Carter did just that.

When the government found out about his guns and his marijuana habit, they charged him violating section 922(g)(3).

He challenged whether section 922(g)(3) can lawfully apply to someone like himself. The district court did not accept his challenge to the statute.

He pled guilty and went to the Fourth Circuit. Today, in United States v. Carter, the Fourth Circuit remanded the case, saying that the government has to do more work to show that it can constitutionally prevent potheads from possessing a gun.

Of course, after the Supreme Court's decision in District of Columbia v. Heller, our right to have a weapon enjoys more protection than it did just a few years ago.

Justice Scalia in Heller did observe that,

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Nonetheless, the Supreme Court did interpret the Second Amendment as protecting a person's right to possess a gun.

Mr. Carter argued to the Fourth Circuit that,

Acknowledging that he is a user of marijuana, he contends that he was nonetheless entitled, under the Second Amendment, to purchase the guns for the lawful purpose of protecting himself and his nephew in his home against those who might intrude. And because the right of self-defense in the home is the "central component" of the Second Amendment protection, Heller, 554 U.S. at 599, and is "fundamental" and "necessary to our system of ordered liberty.

For that reason, because his right to have a gun is most protected when he's having the gun to protect his house, Mr. Carter argued he should be able to have the gun, despite his marijuana use. Mr. Carter, though, "challenges the link between marijuana usage and gun violence."

The Fourth Circuit was inclined to go halfway with Mr. Carter. Bemoaning that

[i]n developing its record in this case, the government has chosen not to rely on academic research or other empirical data to demonstrate the connection between drug use and gun violence, even though such evidence is abundantly available

the court of appeals noted that

the government still bears the burden of showing that § 922(g)(3)'s limited imposition on Second Amendment rights proportionately advances the goal of preventing gun violence. And we conclude that in this case, the record it made is insufficient. Without pointing to any study, empirical data, or legislative findings, it merely argued to the district court that the fit was a matter of common sense.

This appeal to common sense, the Fourth Circuit determined, was not sufficient.

The court remanded so that the government could develop a record in the district court to justify section 922(g)(3).

At bottom, we conclude that Congress had an important objective for enacting § 922(g)(3) to reduce gun violence and that disarming drug users and addicts might reasonably serve that objective. But the burden of demonstrating the fit rests on the government. Because the government did not present sufficient evidence to substantiate the fit, we vacate the judgment and remand the case to allow it to do so and to allow Carter to respond.

One suspects that things won't be much different on remand, but, at least, the Fourth Circuit is taking the Second Amendment seriously.

Related Posts:

• Paying For Drugs Is Not Money Laundering


• Safety Valve, Government Power, and Marijuana in the Woods of Arkansas

Kathyrn White had a difficult relationship with cars.

One morning, as she arrived at work at the IRS in Chattanooga, an African-American man in a red and white patterned shirt approached her with a gun. He ordered her to start her car. She did. He drove away in it.

The police later arrested Gary Clay, an African-American man, for the carjacking.

Ms. White never identified Mr. Clay for the police. And, before trial, she died in an automobile accident.

About an hour after the carjacking, an unshaven African-American man used some Ms. White's bank cards to withdraw money. The ATM had a camera that captured a picture of the man. An FBI agent thought that the man in the picture was Mr. Clay.

The police looked for Ms. White's car for days. Finally, they found it in an apartment complex. The parking space it was in was assigned. When they went to the unit assigned to the space, they found two women, Ms. Abernathy and Ms. Hancock. They also found Mr. Clay.

Ms. Hancock leased the unit, and let the police search the apartment. The police found the keys to Ms. White's car. Inside the car, they found a CD that had a number of pictures on it - including photos of Mr. Clay wearing a red and white shirt similar to the one worn by the carjacker.

Mr. Clay was charged with carjacking.

Mr. Clay's trial

The government wanted to use evidence about Mr. Clay's past against him, based on Federal Rule of Evidence 404(b).

Rule 404(b) lets the government in a criminal case introduce evidence about a person's prior bad acts in order to show something relevant to the case about them - but not to just make the person look bad. As the rule says, the evidence must be relevant to something like "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."

The rationale behind this makes sense. Imagine a person who isn't allowed to have a gun is found with a gun in his coat. If he knew it was a gun, that would be illegal. If his defense was that he didn't know what the heavy lump of metal in his coat was and it was just an innocent mistake ("My crazy friends do the darnest things!"), you could see why it would be fair to introduce evidence that he'd had a gun in that coat before, which would make the jury think this is less likely to be a mistake.

Similarly, if a person was convicted of breaking into houses and leaving a DVD of Exit Through the Gift Shop behind, then, later, is on trial for breaking into a house where a copy of Exit Through the Gift Shop was left, you could see how the prior burglaries would be relevant at a trial for the later one.

On the other hand, the rule is ripe for abuse. I had a case where a gun was found in a coat and we were arguing it wasn't our client's coat. He had a prior conviction that involved the use of a pellet gun in an assault. The government argued that the prior pellet gun assault should be admitted under Rule 404(b). Though I still, to this day, do not understand how that's allowable under the rules, the court let the evidence about the prior pellet gun assault into evidence.

And, the government can't introduce evidence under 404(b) if the prejudice that comes from telling the jury about a person's prior bad behavior outweighs the advantages to telling the jury in its quest for the truth. This is contained in Rule 403.

Sometimes, telling people the bad things a person has done, will just make the person look really bad.

In Mr. Clay's case, the government introduced evidence that Mr. Clay previously drove up to a woman, who was 15 years old at the time, and told her to get in his car. When she didn't, he got out of the car and hit her in the face with a gun.

The woman herself testified, and told the jury that she thought she was going to die that day. It isn't hard to imagine that this was powerful evidence.

The government introduced this evidence, presumably, so the jury would know that Mr. Clay knows what it means to hurt someone near a car.

Mr. Clay was convicted, and sentenced to thirty years in prison.

He appealed the 404(b) ruling.

The Sixth Circuit court of appeals, in United States v. Clay, reversed. The appellate court found that the evidence of Mr. Clay's assault on the 15 year old didn't have enough to with his carjacking charge to be admissible. The court held,

the government argues that the assault is admissible to prove specific intent because it shows that Clay could develop the intent to cause serious bodily harm to innocent strangers who resist his demands. Considering both the case law and the purposes of Rule 404(b), this sweeps too broadly and risks eroding the Rule's very purpose. It perches perilously close to proving specific intent by showing propensity, as it suggests that a person who engages in bad behavior toward another is likely to do so again. The two offenses at issue--assault and carjacking--are too unrelated and too far apart in time to be probative of whether Clay had the specific intent to do harm to White; they merely show the criminal character of Clay.

At the same time, the Sixth Circuit noted that this evidence was much more prejudicial than probative. The testimony about an assault on a 15 year old is virtually guaranteed to move a jury to think of Mr. Clay as a Very Bad Man. And it has almost nothing to do with whether he's the man in the white and red checked shirt who committed the carjacking.

On that basis, the Sixth Circuit reversed the conviction and remanded for a new trial.

This is a good case. It's hard to express how maddening it is to see the gulf between what Rule 404(b) says and the way it's applied. It's a lovely thing to see a court actually applying the plain language of 404(b).

Related Posts:

• The Government Can't Use An Expert To Launder A Smear Campaign At Trial According to the Ninth Circuit


• The Past Can Catch Up With You, Rule 404(b) and a New Trial In North Dakota

Medicare is a huge federal program. It's also a huge source of criminal liability for doctors and other health care providers, as they try to comply with the byzantine regulations for billing issued by the Centers for Medicare and Medicaid Services.

Take United States v. Jones as an example.

Statewide Physical Medical Group

Telandra Jones and Theddis Pearson started a health care company with a few other people. It was called Statewide Physical Medical Group. The state that it was wide was Mississippi.

Mr. Pearson was the CEO. Ms. Jones handled the billing remotely, from Dallas, Texas.

Statewide's patients were first evaluated by a doctor to see if they needed therapeutic exercise. If they did, and the doctor ordered it, Statewide would send a person to the patient's home.

The people who were sent were kinesiotherapists. These therapists provided care at the patient's home without a doctor present.

Medicare's Rules for Physician Supervision

The rub is that Medicare's billing regulations require that a doctor supervise a kinesiotherapists' work. And, for Medicare billing, while, "supervise" doesn't mean that the doctor is in the same room, it generally means that the doctor is in the same building and can come in and help if need be.

If that's the definition, then Statewide's kinesiotherapists were not supervised by physicians.

So, it looks like the therapeutic work that Statewide submitted bills for did not comply with the Medicare billing regulations. Which is a pleasant way of saying that Statewide's bills may have been fraudulent.

There was one saving possibility for Statewide's billing practices - there is an exception to the direct supervision rule for people in certain kinds of underserved areas and for home treatments with other kinds of home health benefits under Medicare had been exhausted. If this exception applied, then there was an exception to the physician supervision requirement. If there was an exception to the physician supervision requirement, then there was no Medicare fraud!

Ms. Jones and Mr. Pearson relied on this provision.

At trial, the government presented evidence that the Statewide's interpretation was untenable, in the form of an expert about Medicare billing.

It looked like maybe Statewide has an argument there. The trouble, however, was that Statewide billed more for the task than for the amount of time it spent.

The government's Medicare billing expert explained to the jury that Statewide's billing practices caused treatments that took an hour to be billed as taking ten hours.

That's never going to look good to a jury.

Who Knew What When

The question then, turned on whether Ms. Jones and Mr. Pearson knew that they were submitting fraudulent bills. The process for sending bills in was a little complicated. First a secretary in an office - there were seven - would collect the therapists' treatment records and enter that data into a billing sheet.

The therapists did not keep records of how much time they spent, just what treatments they performed.

These billing sheets were then sent to Ms. Jones in Dallas, who turned them into bills to Medicare, based on the part of the body that was treated, instead of the amount of time that the treatment took.

Mr. Pearson was the CEO and generally managed the day-to-day affairs of the company, including its billing systems.

The Medicare Fraud Indictment

Mr. Pearson and Ms. Jones were charged with conspiracy to commit Medicare Fraud, Medicare Fraud, theft of government funds, health care false statements, and money laundering.

The jury convicted Ms. Jones because she was the one who submitted these bills to Medicare. There was evidence that Mr. Pearson was in the weeds with the business - he was convicted for also having the requisite knowledge.

Mr. Pearson was convicted of making false statements relating to health care. Both Mr. Pearson and Ms. Jones were convicted of theft of government property and health care fraud.

The Jury Verdict Form

To make a false statement in violation of 18 U.S.C. § 1035, a person has to make the false statement knowingly and willfully." It isn't enough if the person makes a mistake and submits false information - the statement has to be a lie.

So, we don't send people who make math errors to prison. It's only if the math errors are made on purpose - so they aren't really math errors, as such - that the person makes the willfully false statement.

In Mr. Pearson's case, the jury verdict form did not use the legal standard for what the person charged with the crime had to know from section 1035. Rather, the jury was told that they could convict if they found that Mr. Pearson

"knew, or should have known, that the services billed by [Statewide], were not provided by a physician or under the direct supervision of a physician, as required by Medicare."

This jury instruction is much weaker than what the statute requires. If a person "should have known" that 2+2=4, but puts 5 when adding 2 twice, she meets this standard. And that's not what section 1035 allows.

As a result, Mr. Pearson's conviction was reversed and sent back for a new trial.

Related Posts:

• The Eighth Circuit Holds that Health Care Kickbacks Are Different Than Fraud


• How Not To Respond To A Grand Jury Subpoena

Joseph P. Collins was charged with securities fraud, mail fraud, wire fraud, making false statements to the Securities and Exchange Commission, and conspiracy. He went to trial and, we can imagine, spent weeks - possibly months - working with his lawyers to diligently defend himself and his rights. His trial took twenty-two days of testimony - more than four weeks in a federal courtroom.

Finally, it was messed up by two maladjusted jurors and a judge who wanted to handle things alone.

We are all bit players in each other's lives. Everyone understands that. In Mr. Collins' case, however, it's not unlike a world where Rosencrantz and Gildenstern decide that they'd rather kill Hamlet than travel with him.

The jurors started deliberating on Mr. Collins' fate on July 1, 2009. That same day, completely unrelated to this case, the Coast Guard published new regulations for fireworks safety in Massachusetts, and a new income-based payment option for student loans became available.

On the fifth day of deliberations, the jurors were having trouble. They sent a note to the court describing that they were having a hard time reaching a verdict. The court, after consulting with the attorneys for the government and Mr. Collins, sent a note back, saying that they should keep at it.

Later that day, a Court Security Officer reported hearing a kerfuffle from inside the jury room. The CSO entered the jury deliberation room. There, one juror accused another juror of physically threatening him.

The trial judge was alerted. He brought the jury back into the courtroom and told them "to show respect for one another." He then sent them home for the day.

The next morning, shortly before 10 a.m., two notes came out from the jurors. The first was from juror number 4. It read,

I am writing to express my concern regarding the conduct of juror number 9 . . . . Although I appreciate your efforts to control the frequent insults I've endured, the threat of bodily harm brings this abuse to a whole new level. Specifically, in a loud and belligerent man[ne]r juror [9] threatened to "cut off your (my) finger." She made that statement twice. In the same tirade she stated, "I will have my husband take care of you." These threats were made yesterday afternoon July 8, 2009. Rest assured I will not allow such threats and intimidation [to] alter my vote when it comes to determ[in]ing a verdict in this case. I am concerned, how[ev]er, [that] hearing these threats may affect other jurors. Regardless, I believe this is not the proper way to deliberate and the Court should be made aware of this conduct.

The second note was from the foreperson.

In regards to the earlier note . . . from Juror 4 . . . , it is my personal opinion that the altercation yesterday could be traced to both parties involved. There ha[ve] also been conversations on numerous occassions [sic] regarding respectfulness on the part of Juror 4.

Imagine sitting in a courtroom, nervously waiting to hear if you'll be convicted of several serious fraud offenses, when you learn that two of the people deciding your fate are spending their time blaming each other for not being more respectful. Awesome.

Later that afternoon, the foreperson sent another note saying,

There's been some concern amongst some of the juror's [sic] regarding odd behavior on the part of Juror #4 . . . . During deliberations on 7/2, [Juror 4] changed his vote on a charge, bringing a unanimous decision. However, [Juror 4] then attempted to make his vote contingent upon the room agreeing blindly on a charge to be voted on later. He wanted to barter. In my opinion, this is at the heart of yesterday's altercation between juror's [sic] 4 and [9]. To compound this issue, juror 4 has made it clear he would prefer to be a hung jury than do further evidence research.

The court decided that it needed to have a private conversation with Juror 4. It told the parties so. The defense lawyer said that he was not agreeing that the court should speak privately with Juror 4.

Juror 4 and the court had a conversation which is remarkable only that it shows the extent to which a federal district court judge is willing to delve into a terribly dull he said/she said conversation to avoid retrying a multi-week fraud trial. The court encouraged Juror 4 to keep an open mind, and reminded him that it was really important to try to reach a verdict.

The next day the jury sent out a note that they had a partial verdict. Mr. Collins was convicted of two counts of securities fraud, two counts of wire fraud, and conspiracy.

In United States v. Collins, the Second Circuit sent the case back for a new trial.

The court of appeals held that a person has a right to be present at each part of their trial. That includes when you talk to jurors.

The appellate court found that the district court's remarks to Juror 4 were a supplemental instruction. And,

When a supplemental instruction is given ex parte, without first consulting counsel, it violates a defendant's right to be present.

Moreover, the Second Circuit noted that,

Where, as here, the ex parte communication involves a supplemental instruction to a single juror in a minority position, the potential for prejudice is particularly acute.

And so, Mr. Collins goes back for a new trial. Surely, after his first, he'll have lots of trust in the process of trial by jury.

Related Post: Going to Prison For What A Jury Doesn't Think You Did

Christopher Wright and Andrew Teitelman were friends. As sometimes happens to the best of us, Mr. Wright fell on hard times. He was in the middle of a divorce, and he was out of cash. His mother had just died from cancer. He had a drinking problem that was getting worse.

Mr. Teitelman helped his friend out - he got him into rehab and, as a lawyer, Mr. Teitelman represented Mr. Wright in his divorce proceeding when he could no longer afford his first divorce lawyer. He also represented Mr. Wright in a foreclosure proceeding and, later, in an eviction proceeding. For all this legal work, Mr. Wright paid $350.

Mr. Teitelman also helped Mr. Wright get housing when Mr. Wright had to move. Mr. Teitelman's sole client (aside from Mr. Wright) was Ravi Chawla. Mr. Chawla was a developer, who had an empty apartment building. Mr. Teitelman persuaded Mr. Chawla to let Mr. Wright stay in one of the units of that apartment building, for free. Mr. Chawla also tried to send a multi-million dollar real estate deal to Mr. Wright to try to get some money in Mr. Wright's pocket during this time - Mr. Wright was a realtor - though nothing came of the deal.

If Mr. Wright hadn't also been the Chief of Staff of a member of the City Council of Philadelphia during this time, the nice things Mr. Teitelman and Mr. Chawla did for Mr. Wright would have been much less likely to get the three of them indicted in federal court.

Though, perhaps, the problem was that Mr. Wright did nice things to Mr. Chawla too.

Mr. Chawla really wanted a law passed that would have made zoning easier for new development. Mr. Wright worked with his boss to get the law passed.

Mr. Chawla needed information from various city departments. Mr. Wright, asking from a City Council office, was able to get it more quickly than Mr. Chawla would be able to get it on his own. Mr. Wright was happy to help that way.

The three men were charged with honest services fraud and wire fraud. The Third Circuit decided an appeal of their trial conviction in United States v. Wright.

Honest Services Fraud

A few years ago, honest services fraud under 18 U.S.C. § 1346 could be charged in two ways relevant to this case. The jury was instructed that they could find the three men guilty of an honest services fraud scheme if the government proved either that (a) there was a conflict of interest for Mr. Wright that he didn't disclose, or (b) that Mr. Wright was taking money in exchange for providing a service in his official duties.

That changed in United States v. Skilling - decided after the trial in this case. In Skilling, the Supreme Court, ruling on an appeal from ex-Enron executive Jeffrey Skilling's conviction, held that the conflict of interest theory was not a constitutional reading of honest services fraud.

The jury convicted the three men of honest services fraud. It's pretty straightforward to see that this violates the conflict of interest theory of honest services fraud - Mr. Wright had a conflict of interest based on the largess he accepted from his friends. He didn't disclose it.

When Skilling was decided, the government did not oppose the release of the three men from prison pending the resolution of the appeal.

The Third Circuit After Skilling

The question in this appeal was whether the government had proven that the men committed quid pro quo honest services fraud beyond a reasonable doubt. The Third Circuit found that the government hadn't met that burden.

In essence, the government would have had to show that Mr. Wright helped out Mr. Teitelman and Chawla in his performance of his duties because they had helped him with his personal situation. And, conversely, that Mr. Teitelman and Mr. Chawla helped Mr. Wright because he would then perform official acts.

The government's proof fell short on both sides of the quid pro quo.

First, Mr. Wright worked for a councilman who was, everyone agreed, pro-developer. The councilman directed his staff to help folks out in the developer community. There was trial testimony that his staff did a lot of favors and secured a lot of information for many members of the business community. So it looks like Mr. Wright was not uniquely favoring Mr. Chawla.

Second, Mr. Teitelman, in particular, was friends with Mr. Wright. This, in itself, provided a motivation beyond a corrupt scheme. As the Third Circuit said,

The evidence establishes, and the Government does not dispute, that Wright and Teitelman were close friends. It is equally clear that Wright was in dire personal straits at the time. His mother had just died of cancer, he was embroiled in a marital fight and divorce, he was essentially broke, and he was drinking heavily. Teitelman was among Wright's few friends who intervened and helped him enter rehabilitation. . . . While friendship is no bar to an honest services fraud conviction (as the parties involved are often friends), these facts show a close friendship. Here, the jury could have found that friendship, not fraud, motivated Teitelman to find the apartment in Center City and to act as Wright's lawyer.

Because the government had not proven honest services fraud on the remaining viable count beyond a reasonable doubt, the conviction for honest services fraud was vacated.

In an en banc opinion, last week the Ninth Circuit agreed with Occupy Wall Streeters that corporations are not people. Sadly for those in Zuccoti Park, the court of appeals opinion is limited to whether corporations come within the scope of a federal statute that criminalizes sending threats through the mail. Unlike the Supreme Court of Montana, the Ninth Circuit is not going to ignore Citizens United. But, for the American incarnation of Time's Person of the Year, it's a start.

Kurt Havelock

It isn't clear to me whether Kurt Havelock would approve of the larger political point about corporate personhood that his case represents. Clearly, Mr. Havelock has political views.

Five days before Super Bowl XLII, Mr. Havelock bought an assault rife and ammunition. He studied the area around the game. He prepared a media package.

On game day, he finalized and mailed a package to a number of media outlets, including the New York Times, the Los Angeles Times, the Phoenix New Times, and the Associated Press. He also included two music web sites on his mailing list - apparently because he had some trouble running a music venue earlier in his career.

The mailings included a number of statements that he had decided to choose "suicide by cop" and that he shouldn't be resuscitated if that was an option. They also included a "Manifesto." As the Ninth Circuit describes it,

Havelock's Manifesto was, in equal parts, a fractured meditation on the purported evils of American society and a past tense account of the experiences, beliefs, and convictions that set off his anticipated "econopolitical confrontation." Punctuating the Manifesto were references to the Founding Fathers (Benjamin Franklin, Thomas Jefferson), cultural icons (John Rambo, Mad Max, Bugs Bunny), musical groups (Pink Floyd, AC/DC, Bad Religion), video games (Donkey Kong, Grand Theft Auto, State of Emergency), literature (Alice in Wonderland, The Catcher in the Rye), and motion pictures (Road Warrior, Hostel, The Astronaut Farmer). Quotations abounded as well, drawn from such diverse sources as the Hebrew Bible, H.P. Lovecraft, and Pastor Martin Niemöller.

More relevant to what he was seeming to plan, the Manifesto said,

[Y]ou have attacked my family. You have destroyed the futures of my children. So now, I will reciprocate in kind. Only mine will not be the slow crush of a life of a wage slave, or of malnutritioned [sic] sicknesses, or of insurmountable debt. It will be swift, and bloody. I will sacrifice your children upon the altar of your excess . . . . . . . So I will make the ultimate sacrifice; I will give my life. And I will take as many of the baneful and ruinous ones with me. . . . I will slay your children. I will shed the blood of the innocent. . . . Perhaps tshirthell.com or rottencotton.com will print up some cool tshirts [sic] like 'I SURVIVED SUPERBOWL XLII.'

Thankfully, sitting in the parking lot outside of the game, Mr. Havelock had a change of heart.

He called his fiancé, and told her he was having bad thoughts. He went to the local police, and surrendered his assault rifle. The police called in the FBI, who took a recorded statement.

The United States District Court and Mr. Havelock

Mr. Havelock was then charged with six counts of mailing threatening communications under 18 U.S.C. § 876(c). He was lucky to have a very good lawyer. His lawyer filed a motion to dismiss the indictment that made two arguments.

He argued that Mr. Havelock wasn't making threats - rather, he was putting events that would have already happened into context. As Mr. Havelock imagined it, he would be dead by the time his packages arrived. He, therefore, wouldn't be in a position to carry out any harm to those who received his letters.

He also argued that his letters were sent to corporations, and that corporations are unable to be the subject of a threat under section 876.

The district judge denied the motion. Mr. Havelock was convicted at trial. He was sentenced to 366 days in prison - a year and a day.

He appealed, raising the same issues that were in his motion to dismiss.

The Ninth Circuit

In both a panel opinion and in the en banc opinion, the court of appeals resolved the appeal, and dismissed Mr. Havelock's conviction, on the basis that he threatened corporations, and corporations are not people for purposes of the federal threats statute. Neither the panel nor the en banc court addressed Mr. Havelock's other issue.

Section 876 makes it a crime to mail a communication "addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another."

The en banc court noted that "person" has been restricted to just natural persons in other contexts. For example, when talking about who gets to file in court for free because they are too poor, the Supreme Court has said that only natural people get that benefit, despite the statute's use of the term "person" to say who can file for free.

So, the court reasoned, it's possible for "person" to mean just humans and not corporations in a federal statute. The court of appeals then turned to section 876 and how it uses the term "person." The court noted that,

The term "person" is used no less than twelve times in § 876. See 18 U.S.C. § 876. The term is used in various associations, including: "release of any kidnapped person," "any threat to kidnap any person or any threat to injure the person of the addressee or of another," "the reputation of a deceased person, or any threat to accuse the addressee or any other person of a crime." See id. These associations clearly require that "person" mean a natural person. It simply makes no sense to threaten to kidnap a corporation, or injure "the person" of a corporation, or talk about a deceased corporation.

Based on that, the Ninth Circuit concluded that the same term - "person" - should mean the thing each time it is used in the statute. Because it clearly means "natural person" then a threat to a corporation doesn't count.

Mr. Havelock's conviction was, thus, vacated.

What Do We Do With This?

Perhaps Mr. Havelock was simply lucky that he didn't plan to shoot up the Super Bowl with any other person. Federal conspiracy law would have allowed him to be charged for conspiracy for what he did in planning this and putting the letters in the mail - as long as he worked with someone else to do it.

But without a conspiracy, mailing threatening letters seems an odd thing to charge.

Looking at the facts of Mr. Havelock's conduct, at least as presented in the Ninth Circuit's opinion, it doesn't look like he committed this crime. His letters were meant to go out after he already thought he'd be dead - how can that be a threat?

Indeed, what crime did Mr. Havelock commit? I get that no one likes his behavior - surely the jury verdict was prosecution-friendly jury nullification - but if we're not going to criminalize thoughts (as we shouldn't) and we're going to have the gun laws we have, then mentally unstable loners may just get to sit with a gun outside the Super Bowl thinking murderous thoughts.

Perhaps one of the most celebrated charging strategies by the federal government was to investigate and charge Al Capone with tax evasion. The feds weren't really after him for tax crimes - they wanted Al Capone because he was a mobster. Yet by charging the tax offense, the federal government was able to get a conviction that stuck.

Yet the government runs a risk when it charges an auxiliary crime - one that isn't the main offense that they're targeting but, rather, something that derives from it.

The Fifth Circuit's recent opinion in United States v. Harris illustrates this point.

Two men, named Harris and Miller, were involved in some drug transactions between Texas and California. No, not cocaine or marijuana, these guys were trafficking in codeine cough syrup. [FN1]

Instead of being charged with drug trafficking, they were charged with money laundering for paying for the drugs, under 18 U.S.C. § 1956.

Money laundering, as relevant to this case, is basically when a person participates in a financial transaction to conceal that the money in the transaction came from some illegal activity.

The government's theory, from its opening statement, was that,

In any drug transaction there are drugs going one way and money coming back the other way. That's the nature of a drug transaction. Now, because drug transactions are illegal, they have to be concealed by those people who are participating in them. The people who are transporting and distributing the drugs have to conceal their actions. Likewise, the people that are paying the money, transporting the money and distributing the money have to conceal their actions. That's the nature of drug transactions, that they have to be concealed from law enforcement, both the drugs and the money.

The government's theory was that because the money was sent to pay for the drugs, the folks who sent the money engaged in money laundering.

Miller and Harris were both convicted at trial. Miller was sentenced to 252 months in prison, or 21 years. Harris was sentenced to 293 months, or more than 24 years.

The Fifth Circuit reversed, and rejected the government's theory for what makes money laundering.

In essence, the court of appeals held that when the transfers of money are a part of the illegal transaction, those transactions can't be money laundering. Money laundering only arises once the illegal transaction is done.

As the court of appeals described it, the evidence that money was sent to purchase drugs does not show that

the funds transferred from Miller to Harris were proceeds of drug trafficking or anything other than payment of the purchase price for drugs. Money does not become proceeds of illegal activity until the unlawful activity is complete. The crime of money laundering is targeted at the activities that generally follow the unlawful activity in time.

And, as a result Mr. Miller and Mr. Harris are now saved decades in prison. And a very aggressive attempt to construe money laundering by the government has been brushed back.

(Hat tip to the White Collar Crime Prof Blog for the heads up on this opinion.)

[FN1] - This may be too much information, gentle reader, but I was recently prescribed codeine cough syrup for a bronchial infection. I'm not sure I see why folks would buy and sell it illegally, but there is likely something I'm missing. Perhaps it's more interesting when you mix it with Four Loco?

Imagine the following facts - a man is accused of a crime. The government introduces testimony from a scientist about testing of an item recovered by the police.

The scientist isn't the one who tested the evidence - he works in the same lab as the woman who did the tests. The scientist has read the lab reports from the woman who did the tests. He testifies that the item is what the government says it is. Moreover, because he knows how chain-of-custody is handled in his office, he testifies that the item that was tested is the same one that was taken off the person accused of a crime.

The defendant never has a chance to cross-examine the person who actually tested the item - the results of the test come into evidence through the testimony of the person who just read the reports of the testing.

Is that ok?

The Confrontation Clause

The Sixth Amendment says that "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."

Recent Supreme Court cases - notably Crawford v. Washington, Melendez-Diaz v. Massachusetts, and Bullcoming v. New Mexico - have construed the Sixth Amendment to mean that if a person is offering "testimonial" evidence against another person in a criminal trial, that person has to appear at trial and be cross-examined.

Exactly what "testimonial" means is being worked out, but it's something like "evidence that was prepared with litigation in mind."

So, for our hypothetical above, the scientist's testimony is testimonial.[FN1]

So, under recent Confrontation Clause jurisprudence, is the scientist's testimony consistent with the Confrontation Clause?

The answer - it depends on whether the trial took place in the First Circuit or the Fourth Circuit.

The First Circuit

The First Circuit recently decided United States v. Ramos-Gonzalez. In that opinion, the court held that such testimony would not be permissible - the court of appeals held that,

Where an expert witness employs her training and experience to forge an independent conclusion, albeit on the basis of inadmissible evidence, the likelihood of a Sixth Amendment infraction is minimal. Where an expert acts merely as a well-credentialed conduit for testimonial hearsay, however, the cases hold that her testimony violates a criminal defendant's right to confrontation. In this case, we need not wade too deeply into the thicket, because the testimony at issue here does not reside in the middle ground. [internal citations omitted]

The scientist's report in the First Circuit is merely reciting what the other person in the lab did. It is, therefore, merely a blanket repeating of the other person's work.

The First Circuit then reversed and remanded Mr. Ramos-Gonzales' conviction.

The Fourth Circuit

In United States v. Summers, though, the Fourth Circuit took a different approach.

There, because the expert talked about how to interpret the data compiled by the unavailable person who did the testing, the Fourth Circuit found that the evidence passed constitutional muster.

The Lesson

The lesson in all of this? If you are a prosecutor, you have a better chance of maintaining a conviction on appeal if you have your expert talk about something in addition to the report, after mentioning the results of another scientist's testing.

[FN1] - depending on the kind of equipment that's used in the testing, you could see an argument that it isn't. Right now, let's leave that aside - assume that the evidence is testimonial.

Perhaps January 24, 2009 was a normal day for Joseph Edwards. He woke, tied some crack cocaine around his penis, threatened his ex-girlfriend with a gun, and went out into the Baltimore night.

His ex-girlfriend, however, had complained to the police about his threat. The police began to prepare an arrest warrant and went into the streets to look for Mr. Edwards. Around 11 p.m., the officers found him.

The police officers asked Mr. Edwards to approach them. He did, calmly. He "looked like he was just walking down the street" according to the officers. He didn't act like a man with a gun - he wasn't fussing with his waistline. He also didn't look like he was involved in drug dealing; the officers didn't see him doing any hand-to-hand transactions before they called out to him.

The officers were worried that Mr. Edwards might be armed though, because of his ex-girlfriend's statement. They put handcuffs on him and patted him down. They seated him on a curb.

The police soon heard that the arrest warrant had been issued. Mr. Edwards was put under arrest, and a police van came to where Mr. Edwards was. Right before being placed in the police van, Mr. Edwards was searched again.

Mr. Edwards, at that point, was on a city sidewalk, illuminated by a streetlight. The police officers loosened Mr. Edwards belt, and pulled his pants and underwear away from his body. The officers shined a flashlight down the back and front of his pants. When they shined the light down the front of his pants - with his underwear pulled back as well - the officers saw the crack cocaine tied to Mr. Edwards penis.

The officer who saw the drugs put on a glove. While another officer held Mr. Edwards' pants and underwear open, and while Mr. Edwards was cuffed from behind, the first officer reached into Mr. Edwards pants with a knife, and cut the drugs off of his penis.

The Fourth Circuit's opinion notes that "[n]othing in the record suggests that Edwards suffered any physical injury as a result of this action."

Mr. Edwards is Charged and Convicted

Mr. Edwards was charged with possession of crack cocaine with intent to distribute. He challenged this search and seizure as not consistent with the Fourth Amendment. The district court denied his motion. Mr. Edwards entered a conditional guilty plea - preserving his right to appeal the motion to suppress the evidence cut off of his penis.

The Fourth Circuit reversed the district court in United States v. Edwards - the Fifth Fourth Amendment opinion in favor of a person charged with a crime in the year 2011 (see here and here).

Is Looking Down Someone's Pants A Strip Search?

The key legal question in Mr. Edwards's case is whether the search of Mr. Edwards was a strip search, or, as strip searches have been otherwise characterized, as a "sexually invasive search."

The government argued that because the only part visible to the public was Mr. Edwards "dip" or waistband area, this wasn't a strip search. The district court appears to have accepted this argument.

The Fourth Circuit disagreed. It held that a strip search is a search where clothing is moved to permit visible inspection of the naked body - the person doesn't have to be completely naked.

It was also persuaded by the facts of the most recent Supreme Court strip search case, Safford United School District v. Redding. The court of appeals noted that there,

The Court held that a school official's order that a student "remove her clothes down to her underwear, and then 'pull out' her bra and the elastic band on her underpants. . . . in the presence of the two officials who were able to see her necessarily exposed breasts and pelvic area to some degree," constituted a search that could be fairly called a "strip search." Id. at 2641

Can The Police Cut Things Off A Person's Penis On A City Street?

Because the search of Mr. Edwards was a sexually invasive search, its reasonableness under the Fourth Amendment gets a particular kind of scrutiny.

The Fourth Circuit held that this search simply does not survive the heightened scrutiny. The Fourth Circuit notes that the officer,

cut the sandwich baggie off Edwards' penis with a knife while Edwards was restrained in handcuffs, an act that could only cause fear and humiliation.

Moreover, the court of appeals was disturbed by how dangerous taking a knife to the penis of a handcuffed man on a city street is.

When [the officer] discovered the sandwich baggie containing suspected contraband tied to Edwards' penis, [the officer] dropped his flashlight, obtained a knife, and put on gloves, while another officer continued to hold open Edwards' pants and underwear. Without the aid of the flashlight, [the officer] took the knife and cut the sandwich baggie off Edwards' penis. We conclude that [the officer]'s use of a knife in cutting the sandwich baggie off Edwards' penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness

The conviction was reversed and the evidence was suppressed.

What Does This Mean For Gender-Based Judging?

I can't help but think of what this case says about gender and identity in judicial nominations. Of course, the Fourth Circuit has to look to Safford Unified School District v. Redding - it's a very recent strip search case. That case involved the strip search of a 13-year old girl.

But something else about Safford and Mr. Edwards's case deserves attention.

Justice Ginsberg, talking about Safford, criticized her colleagues for never having been that age and that sex. She is quoted as having said that "I didn't think that my colleagues, some of them, quite understood."

This came up in the midst of Justice Sotomayor's nominations fight, her "wise Latina" remarks, and a national conversation about gender and judging.

Mr. Edwards case is, perhaps, a counterpoint to the concern that if you haven't had the life experience unique to a person affected by a ruling you can't impartially judge the issue. Here, both Judges in the majority in the Fourth Circuit's ruling were female - as was the district judge for that matter. The only male judge to consider the case wrote a dissent.

Or maybe it doesn't require a penis to know that it's not a good idea to put a knife to one on a city street when its owner is handcuffed behind his back.

The Armed Career Criminal Act creates more absurd law than any part of the American legal system outside of the tax code.

The Sixth Circuit's recent, and short, opinion in United States v. Oaks illustrates the point. It asks the question we've never needed answering before - is running out of a courtroom a violent act?

It turns out that it isn't.

Background on the Armed Career Criminal Act

If you are caught with a gun and you have a prior felony conviction, the most amount of time you can be sentenced to spend in prison is 10 years and, odds are, your sentencing guidelines range would be much lower.

If, however, you have been previously convicted of a felony crime of violence or a drug distribution offense three times in your past, then your mandatory minimum sentence is 15 years. And your statutory maximum sentence is life.

Mr. Oaks

Mr. Oaks pled guilty to possessing a firearm after a felony conviction. [FN1] He had two prior convictions for either drug distribution offenses or crimes of violence. He also had a prior conviction for felony escape.

Mr. Oaks felony escape conviction arose out of his escape from a courtroom where he was awaiting a hearing on robbery and burglary charges.

The district court determined that this escape conviction was a crime of violence.

Mr. Oaks appealed.

The Sixth Circuit affirmed.

Mr. Oaks filed a petition for certiorari to the Supreme Court.

The Supreme Court and Mr. Oaks

The Supreme Court GVR'd - it granted cert, vacated the Sixth Circuit's judgment, and remanded to the Sixth Circuit in light of Chambers v. United States. (see SCOTUSBlog coverage here)

Chambers dealt with whether escape which arises out of a failure to report is a violent felony.

It's a little astounding that this is even a question - the actual thing that a defendant does can be as passive as sitting on his couch watching TV and eating potato chips while he's supposed to be elsewhere. Aside from the violence to his own cholesterol level, this does not seem to be a violent act.

Happily, a unanimous Supreme Court held that failure to report is not a crime of violence for Armed Career Criminal Act purposes. In reaching that conclusion, the Court looked at a United States Sentencing Commission report on failure to report crimes, and noted that in 160 cases, not once did a failure to report lead to a fight with law enforcement.

And they say watching TV is bad for you.

After The Supreme Court's Remand

In light of the Supreme Court's remand in Mr. Oaks's case, the Sixth Circuit remanded to the district court for more fact-finding about what the details of the felony escape were to determine if it was really a crime of violence.

The district court found that,

first, it appears from the uncontroverted facts that at the time of the felony escape, Oaks was being held in law enforcement custody in the county jail on felony charges of evading arrest, felony reckless endangerment, attempted aggravated robbery, theft over $500.00 and aggravated burglary, but had been taken to a courtroom for a court appearance at the time he ran from the courtroom; secondly, while the county jail was a secure facility, the courtroom from which Oaks ran was not.

Based on this, the Sixth Circuit determined that escape from a courthouse is not a crime of violence.

Looking at the same Sentencing Commission report, the Sixth Circuit noted that in 171 cases of escape from "nonsecure custody" only 1.7% resulted in some kind of injury. That percentage, the Sixth Circuit found, is simply too low to call this a violent offense.

Interestingly, there's a dissent, which questions whether a courtroom is really an escape from nonsecure custody, or, rather, is an escape from the custody of law enforcement personnel. If so, the percentages are a little violenter.[FN2] I would suspect that the United States Marshals Service would also question the majority's determination that escape from a courtroom is not escape from law enforcement custody.

That said, it's a happy result for Mr. Oaks.

[FN1] - Actually, what the opinion says, quoting a prior Sixth Circuit opinion in this case, is that he "pleaded" guilty. Gentle readers, I find that word awkward. In my legal writing, I am too often called upon to use the past tense of plead in connection with a determination of a person's guilt. I prefer to use "pled" rather than "pleaded." The Sixth Circuit disagrees. Am I wrong? Has Bryan Garner opined on this?

[FN2] Please don't tell Bryan Garner I made up the word "violenter."

Hi. I know you normally come here looking for the very latest in mildly snarky commentary on what's gone well for the defense in the federal circuit courts. Trust me, we'll be back to that very soon.

I wanted to interrupt our regularly scheduled programming with a request for money this holiday season.

If you read this blog, you're likely interested in how people are treated in our criminal justice system. One organization is doing a lot to improve things for people who have been convicted of a crime.

Our Place DC is a really cool and tremendously effective organization. [FN1] They help women who are getting out of prison reestablish their lives and reconnect with their communities and their families. You can donate to Our Place at this link.

Here's a short movie about Our Place and its work:

Our Place does a lot that's great. One tremendously important program - that I am a huge fan of - are prison trips for families that Our Place makes possible.

Women in DC who are convicted of a crime and sentenced in prison - whether in federal court or the D.C. Superior Court - serve their sentences at the FCI in Danbury Connecticut, the FCI in Hazelton, West Virginia, and in other federal prisons around the country.

Their families are most often unable to visit them, because the prisons are so remote. Our Place organizes trips for family members of incarcerated women to visit these prisons. Without Our Place, a prison sentence for these women could mean that they wouldn't see their kids for years.

I know it's a bad economy and there are a lot of worthy causes asking for your donations. Please consider Our Place. They do great work for a great number of women.

You can donate at this link.

[FN1] - in the interests of full disclosure, I'm on the Our Place board.

Justice Scalia recently made headlines by taking a cheap shot at the ranks of federal district court judges.

As the Associated Press reported (hat tip to Sentencing Law and Policy):

Supreme Court Justice Antonin Scalia says the quality of federal judges has suffered because there are too many of them. Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.

"Federal judges ain't what they used to be," he said during a rare appearance before the Senate Judiciary Committee. The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. "It's not as elite as it used to be," he said.

He was responding to a question about what he sees as the greatest threat to the independence of judges.

For what it's worth, I go half way with Justice Scalia on this. There are too many federal drug prosecutions, but, from my perspective, the quality of the federal district court bench is still excellent - especially the judges I appear in front of (and who may be (but probably aren't) reading this).

One danger of having too many cases is that it gets hard to look at each case with fresh eyes.

Sentence too many folks on drug crimes, and every person convicted of drug dealing starts to look the same. It's a rare, and good, judge who can treat the 500th drug defendant as an individual in the same way that she did with the first.

Once a judge does, say, 100 sentencing hearings, she can be forgiven, perhaps, for not focusing on the details of each one.

This kind of volume leads to the regrettable sloppiness in the Seventh Circuit's opinion in United States v. Hassebrock.

Mr. Hassebrock earned substantial income from an oil business in 2004. Among other income, he received a taxable settlement of $2.5 million. He neglected, however, to file income tax returns. He was indicted, and, at trial, convicted, of tax evasion and willfully failing to file a tax return.

Tax evasion and failure to file a tax return are odd offenses. While most federal crimes appear in Title 18 of the United States Code, tax offenses are codified in Title 26. Tax evasion is a violation of 26 U.S.C. § 7201 and willful failure to file a tax return is a violation of section 7203.

The difference in which title is the source of the crime changes things in small and subtle ways at sentencing.

In Mr. Hassebrock's case, it changed whether the sentencing court had the power to order Mr. Hassebrock to pay restitution.

To back up, a court can order, as a part of a sentence, a person to pay funds to make his victims whole as restitution. If a person defrauded money, he can be ordered to pay the amount defrauded. If he shot someone, he can be ordered to pay the costs of medical bills, lost wages, and therapy to recover from the injury.

The general restitution statutes, 18 U.S.C. §§ 3663 and 3663A, apply to violations of crimes that appear in Title 18 and drug crimes in Title 21. They do not apply to offenses in Title 26 - that is, they don't apply to tax evasion.

Judges imposing sentence really want to impose restitution. As a practical matter, it makes collecting the taxes that were evaded monumentally easier for the government.

Yet restitution in tax cases is only available in two ways. First, if the person charged with a tax offense pleads guilty, as a condition of a plea agreement he can agree (or be forced to agree) to pay restitution as a part of his sentence. This is authorized by 18 U.S.C. § 3663(a)(3).

Second, if the district court orders that the person be on supervised release, the court can make restitution a condition of that supervised release.

Importantly, a district court cannot make restitution a part of a sentence in federal court.

Given that this blog only addresses cases and issues where the defendant wins, you will not be shocked to learn that the district court in Mr. Hassebrock imposed a restitution order as a part of his sentence.

The government tried to let the sentencing court know it couldn't do it, but the judge, ignoring the government's statement that the court could only impose restitution as a condition of Mr. Hassebrock's post-prison supervised release, imposed restitution as a part of the sentence.

The court directed Mr. Hassebrock to start paying the restitution immediately - while he was serving his 36 month sentence. However, the court doesn't have the power to order him to pay restitution until his prison sentence is over and he is being supervised by the United States Probation Office.

Mr. Hassebrock, to his credit, has apparently starting paying his restitution from prison.

His case was remanded for a new restitution order that starts once he is out of prison.

Longtime readers will recall the Twitter-stalking case. I've written about it here. The conspirators Volokh have written about it here. There's also been coverage in PC World, and the New York Times.

In essence, the government indicted William Cassidy for sending a lot of tweets on Twitter. This was charged as a violation of a federal anti-stalking law. His defense lawyers argued that this was protected by the First Amendment.

Yesterday, Judge Roger Titus of the United States District Court for the District of Maryland, issued an opinion dismissing the indictment.

Most interestingly, Judge Titus explains both blogs and Twitter from the point of view of a colonist at the time of the drafting of the Bill of Rights. He explains that,

Because this case involves First Amendment issues, terms that were in use by citizens when the Bill of Rights was drafted may help in understanding the legal context of Blogs and Twitter. Suppose that a Colonist erects a bulletin board in the front yard of his home to post announcements that might be of interest to others and other Colonists do the same. A Blog is like a bulletin board, except that it is erected in cyberspace rather than in one's front yard. If one Colonist wants to see what is on another's bulletin board, he would need to walk over to his neighbor's yard and look at what is posted, or hire someone else to do so. Now, one can inspect a neighbor's Blog by simply turning on a computer.

Moving on to explain Twitter, Judge Titus says that,

Twitter allows the bulletin board system to function so that what is posted on Colonist No. 1's bulletin board is automatically posted on Colonist No. 2's bulletin board for Colonist No. 2 to see. The automatic postings from one Colonist to another can be turned on or off by the owners of the bulletin boards, but there is no mandatory aspect of postings on one Colonist's bulletin board showing up on the other's. It is entirely up to the two Colonists whether their bulletin boards will be interconnected in such a manner.

Finishing his description of the facts (and foreshadowing the legal analysis that will follow) Judge Titus writes that,

Blogs are of unlimited size in terms of content, but must be accessed one at a time. Twitter is limited to 140 characters, but allows unlimited voluntary connectivity with other users. That connectivity, however, is subject to change at the whim of a user who has the ability to "turn off" ("block" or "unfollow") communications from another user. Whether couched in terms of the Internet or Colonial bulletin boards, there is one consistent aspect of both eras. One does not have to walk over and look at another person's bulletin board; nor does one Blog or Twitter user have to see what is posted on another person's Blog or Twitter account. This is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed at another person, and that difference, as will be seen, is fundamental to the First Amendment analysis in this case.

Judge Titus has provided a useful framework for thinking about blogging and twitter in the context of the First Amendment. He only lacks an explanation of why anyone would spend time on Twitter in the first place - though perhaps Judge Titus can be forgiven for not taking that challenge (and my own lackluster use of Twitter may suggest that I think that question is unanswerable).

This is a strong win for the Federal Public Defender's office in Maryland - congratulations to those very talented lawyers.

Also, the New York Times wrote about the Titus opinion. That article is here. Volokh also has a post on the opinion here.