October 18, 2012

What's It Worth To You? The Seventh Circuit Looks At The Value Of Things Bought Through Bribery

How do you determine the value of a thing?

Normally, in our free-market (or heavily regulated free-market) economy, we think that the value of a thing is set by what people are willing to pay for it.

If I'll see you my collection of neckties for $10,000, and you'll pay $10,000 to buy my collection of neckties, then we know my collection of neckties is worth $10,000.

But does that way of determining value work when talking about government action bought by a bribe?


The Seventh Circuit's case in United States v. Owens illustrates why this is a hard problem.

1388504_chicago_city_skyline_2.jpgHow To Do Business In Chicago

Dominick Owens worked for the City of Chicago as a zoning inspector. Christoir McPhillip was an "expediter" - a guy who worked with folks who needed things from zoning inspectors to make sure they got the things they needed.

Not surprisingly, for someone working in the shadow of the law, he came into some trouble and wound up cooperating with the federal government. (I'm assuming he came into trouble. The opinion only says that he was a cooperator. My bet is that he wasn't doing it out of a sense of patriotism.)

Mr. McPhillip recorded Mr. Owens taking $600 for issuing certificates of occupancy for single family homes. He recorded him twice taking one bribe each time. Mr. Owens was indicted for two counts of violating 18 U.S.C. § 666(a)(1)(B) - once for each bribe.

The $5,000 Question

Mr. Owens was convicted at trial and appealed. His only issue on appeal was whether the government proved that he violated the bribery statute.

The only element he said the government didn't prove was the value threshold.

According to 18 U.S.C. § 666(a)(1)(B), the thing that was provided in exchange for a bribe - here the certificates of occupancy - has to be worth more than $5,000.

The Value Of A Thing Bribed For

How do you determine the value of the government action that was purchased by a bribe? There are two ways.

First, you can look at the value of the bribe. This is a basic market analysis. If you'd pay $14,000 for the government to indict your ex-wife, then the value of an indictment against your ex-wife is at least $14,000.

As the Seventh Circuit describes it:

at how much someone in the market was willing to pay for the benefit and an official was willing to take to provide the benefit--the value of the bribe. This means that the bribe amount may suffice as a proxy for value; at least it provides a floor for the valuation question.

Of course, that answer cuts against the government in Mr. Owens' case - the bribes were only $600.

The second way is to look at the value of the thing purchased or the value of the benefit to the person paying the bribe received from what he got from the bribe.

In United States v. Curescu, 674 F.3d 735 (7th Cir. 2012), for example, a developer had used an unlicensed plumber to add plumbing to four newly constructed residential units. A plumbing inspector discovered the violation and told the developer that he had to redo the plumbing using a licensed plumber. Id. at 738. Rather than removing the old plumbing and replacing it using a licensed plumber, a different plumbing inspector was bribed to certify falsely that a licensed plumber had completed the plumbing in the four units, which allowed the illegal plumbing to remain. Id. Thus, the value of the false certification was the money the developer did not have to spend redoing the plumbing, an amount that exceeded $5,000.

The government in Mr. Owens case argued that the mortgages at issue in Mr. Owens bribes ranged from $200,000 to $600,000. So, since certificates of occupancy were necessary for the mortgages to be funded, the government said, the certificates of occupancy were worth well more than $5,000.

Not so fast, said the Seventh Circuit.

It cannot be that simple, though, as anyone who complies with the Board of Zoning procedures and has a home that passes inspection can receive a certificate of occupancy for free. Obtaining the issuance of the certificates through greasing a palm rather than through legitimate means must therefore create value in some other way.

What's the other way that a certificate of occupancy issued through a bribe can be valuable?

Perhaps, as the Government suggests, it is obtaining a certificate without an inspection. This could be valuable in at least two ways. First and most obviously, if the home's construction was defective and the home would not pass inspection, paying a bribe and avoiding an inspection would save the cost of performing repairs. Alternatively, a home could be free of zoning violations, but a developer or homeowner places a premium on expediting the issuance of a certificate due to a pressing need to sell or occupy the home or obtain a mortgage with favorable and time sensitive terms.

So, if it's the first way, the value of the benefit from the bribe would be the value of the repairs avoided. If it's the second way, the value would be the value of not losing the time it would take to wait for a legitimate certificate.

The problem for the Government, though, is that it failed to present any evidence of either of these situations in this case, or of any situation in which the issuance of the certificates as a result of the bribes benefitted the developers or homeowners in some way that the issuance of the certificates through legitimate means would not have.

And, without that proof, Mr. Owens conviction was reversed by the Seventh Circuit.

October 15, 2012

Short Wins - Federal Sex Crimes Are Still Good Candidates for Reversal, And Bribery Gets Reversed Too

Last week saw a continuation of the short win trends we've seen in the past -- federal sex crimes are frequently represented. Though this week is heavier on reversals involving enticing a minor.

1155650_berlin_siegessule.jpgThe Ninth Circuit lets a man expand the record to investigate an ineffective assistance claim, the Third Circuit finds that an argument that trying to get someone to engage in statutory rape shouldn't be worse than actually committing statutory rape makes some sense, and a bribery conviction is reversed in the Seventh Circuit because the evidence was insufficient. It's not a bad week in federal criminal appeals.

1. Buenrostro v. United States, Ninth Circuit: Appellant filed several postconviction claims after he was convicted of conspiracy to manufacture methamphetamine and sentenced to a mandatory minimum term of life imprisonment without parole based on his two prior felony drug convictions. Of those claims, the Ninth Circuit granted appellant's motion to expand the record, which sought to reassert a previously raised ineffective assistance of trial counsel claim based on counsel's alleged failure to communicate a plea offer.

2. United States v. Begin, Third Circuit: Appellant appealed his sentence on charges related to his attempt to persuade a minor to have sex with him. At sentencing, he requested a downward variance based on an asserted disparity between his sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under federal law. The district court erred in failing to consider this request at sentencing because (1) the argument had colorable legal merit and (2) the court failed to make a sufficient record to demonstrate that it considered the argument. Because the sentence was procedurally unreasonable, appellant's sentence was vacated and the case remanded for the district court to consider appellant's request for a downward variance.

3. United States v. Owens, Seventh Circuit: Appellant, a zoning inspector, was convicted of two counts of federal program bribery for accepting two $600 bribes in exchange for issuing certificates of occupancy for newly constructed homes. Because there was insufficient evidence to show that the certificates had a value of $5,000 or more as required by the applicable statute, appellant's conviction and sentence were reversed.

4. United States v. Zobel, Sixth Circuit: After pleading guilty to knowingly coercing and enticing a minor to engage in sexual activity, appellant was sentenced to a term of imprisonment and special conditions of supervised release were imposed, including a condition banning him from possessing or viewing "sexually suggestive" materials. Because the condition affects substantial First Amendment rights and calls into question the fairness of the proceedings given the severity of the restriction, the condition was vacated.

5. United States v. Mendiola, Tenth Circuit: Appellant's supervised release, which was imposed pursuant to his conviction for being a felon in possession of ammunition, was revoked. The district court imposed a term of imprisonment, and recommended that appellant participate in a drug treatment program while incarcerated. Because the court committed plain error in basing the length of the sentence on appellant's need to participate in a drug program, the sentence was reversed and the case remanded to the district court for resentencing.

October 12, 2012

You Can Only Be Convicted Of Defrauding A Financial Institution If The Thing You Defraud Is A Financial Institution

Hurricane Georges was bad for Puerto Rico. It destroyed the way of life for a number of Puerto Rican farms. The federal government offered low-interest loans to farmers who were hurt by the hurricane.

The federal government loaned this money through the Farm Services Agency. The Farm Services Agency - as the name suggests - is an agency that provides services to farms. And farmers.

1070316_orange_twister.jpgThe Farm Services Agency hired folks on the ground in Puerto Rico to process loan applications. One such person was Juan Colon-Rodriguez - his friends, including the First Circuit, just call him Mr. Colon.

Mr. Colon was trained as an agronomist. He earned about $45,000 in commissions helping farmers put together loan applications to the Farm Services Agency.

Beware the loan officer who works on commission.

During an audit, the Farm Services Agency found problems with some of Mr. Colon's loan applications. An investigation followed. Mr. Colon was indicted in the United States District Court for the District of Puerto Rico with defrauding a financial institution in violation of 18 U.S.C. § 1344, and making a number of false statements in violation of 18 U.S.C. § 1014.

He was convicted at trial.

On appeal, Mr. Colon challenged his conviction for defrauding a financial institution and the First Circuit, in United States v. Colon, agreed that he shouldn't have been convicted of that charge.

According to the First Circuit, the elements of defrauding a financial institution are:

(1) the defendant must engage in a scheme or artifice to defraud, or must make false statements or misrepresentations to obtain money from (2) a financial institution and (3) must do so knowingly.

The trouble is, not everything that involves financing is a financial institution. Indeed, here,

the government . . . conceded [that] it offered no evidence that the FSA qualified as a "financial institution" at the time of the offense conduct in this case

Mr. Colon's conviction for defrauding a financial institution, therefore, was vacated.

Interestingly, after Hurricane Georges (and not relevant to it),

Congress amended the definition of "financial institution" in 18 U.S.C. § 20 to include a "mortgage lending business." See Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 2(a)(3); see also United States v. Bennett, 621 F.3d 1131, 1138 (9th Cir. 2010). A mortgage lending business is "an organization which finances or refinances any debt secured by an interest in real estate, including private mortgage companies and any subsidiaries of such organizations, and whose activities affect interstate or foreign commerce." 18 U.S.C. § 27. This case does not require us to decide whether the FSA is included within the expanded definition of "financial institution."

Mr. Colon won on one count of conviction. Sadly, however, it appears there was substantial evidence that supported Mr. Colon's other convictions.

As to the other counts,

To establish a violation of § 1014, the government must prove that (1) the defendant made a false statement; (2) the defendant acted knowingly; and (3) the false statement was made for the purpose of influencing action on the loan.

The government, according to the court of appeals, met these elements in the section 1014 counts.

For example, Mr. Colon helped a poultry farmer who claimed damage to his four poultry barns. Sadly, at the time of Hurricane Georges, the farmer only owned two barns.

He did later purchase two more, though that was with the money obtained from the loan by the Farm Services Agency.

Mr. Colon's case was not remanded, because the one conviction that was vacated didn't affect his sentence.

On reflection, of course, this is surely wrong. At least the case should have been remanded to refund Mr. Colon his $100 special assessment.

October 9, 2012

People Accused of Child Pornography Offenses Get To Examine The Software Used To Prosecute Them And Don't Have To Just Take The Government's Word On It (in the Ninth Circuit)

Max Budziak had some child pornography on his computer.

An FBI agent, using a program developed by the FBI called EP2P, logged onto his computer through the internet and downloaded child pornography from him on two separate days in July, 2007.

1165303_green_power.jpgLimeWire and EP2P

The FBI said that EP2P is a souped-up version of LimeWire - a file sharing program that is publicly available and lets people share files with each other's computers.

LimeWire normally pieces together bits of disparate fragments from different LimeWire users. So, for example, if you wanted to download "The Usual Suspects" from LimeWire, you would get fragments from different users.

For whatever reason, some folks think that poses an intellectual property problem. LimeWire has currently been shut down - check out their website.

According to the FBI, if a computer is hooked up to LimeWire, EP2P lets the FBI see all of the files that the LimeWire user is making available on the internet and, more importantly, download all of them from a single user.

The Search of Mr. Budziak's Home

Based on the information from EP2P, the FBI got a warrant and searched Mr. Budziak's home. They found a desktop computer with a copy of LimeWire installed on it.

There were five child pornography videos on the computer in a LimeWire shared folder.

Mr. Budziak was charged with two counts of distributing child pornography - to FBI agents - and one count of possessing it when the search was executed.

What's Up With EP2P?

Mr. Budziak's defense, in essence, was that he didn't understand that LimeWire has a default setting that shares your files with people.

This matters, because if he didn't intend to share the files, he isn't guilty of intentionally distributing child pornography.

He also wanted to get information about how EP2P works so that he could challenge the search of his house and the affidavit that authorized it.

The FBI, ever helpful, provided a number of affidavits of how EP2P works. Mr. Budziak's counsel said that they'd like to examine the software for themselves (or, rather, have their expert examine it).

His lawyer filed three separate motions to compel the government to provide access so that he could examine the software that allowed the government to prosecute him. Each motion was denied by the district court.

Mr. Budziak went to trial and was convicted of all counts. He was sentenced to five years in prison.

The Ninth Circuit Says You Don't Have To Trust The Government

On appeal, in United States v. Budziak, the Ninth Circuit vacated based on the district court's failure to order the government to provide access to the EP2P software.

The Ninth Circuit explained that once a person accused of a crime makes a threshold showing that evidence is material, the government is obligated to turn it over. As the court of appeals said:

Budziak argues that he made a sufficient showing that discovery of the EP2P software was material to preparing his defense. We agree. All three of Budziak's motions to compel provided more than a general description of the information sought; they specifically requested disclosure of the EP2P program and its technical specifications. Budziak also identified specific defenses to the distribution charge that discovery on the EP2P program could potentially help him develop. In support of his first two motions to compel, Budziak presented evidence suggesting that the FBI may have only downloaded fragments of child pornography files from his "incomplete" folder, making it "more likely" that he did not knowingly distribute any complete child pornography files to Agents Lane or Whisman. Stever, 603 F.3d at 753. In support of his third motion to compel, Budziak submitted evidence suggesting that the FBI agents could have used the EP2P software to override his sharing settings.

Perhaps more succinctly, the court of appeals noted that "[g]iven that the distribution
charge against Budziak was premised on the FBI's use of the EP2P program to download files from him, it is logical to conclude that the functions of the program were relevant to his defense."

The government argued that handing the EP2P program over wouldn't matter, since they turned over the logs and the software itself won't be any more useful. The court of appeals shot that down:

In cases where the defendant has demonstrated materiality, the district court should not merely defer to government assertions that discovery would be fruitless. While we have no reason to doubt the government's good faith in such matters, criminal defendants should not have to rely solely on the government's word that further discovery is unnecessary. This is especially so where, as here, a charge against the defendant is predicated largely on computer software functioning in the manner described by the government, and the government is the only party with access to that software.

Of course, Mr. Budziak isn't out of the woods yet. For him to reverse his conviction for good, he'll have to show that if he had access to the EP2P software it could have mattered. And on that question the Ninth Circuit remanded to the district court.

Here's to hoping the district court makes up its mind before Mr. Budziak has finished his sentence.

October 8, 2012

Short Wins - Fraud and Child Pornography Continue to Dominate the Federal Appellate Defense Victories

As in past weeks, it's an exciting week of mainly fraud and child pornography in the federal circuits, with a heavy helping of restitution issues.

1155650_berlin_siegessule.jpgIf this week generalizes (and it doesn't) the rule is clear: if you want to increase your chances to win a federal criminal appeal, try to represent someone accused of fraud or a child pornography charge.

And be very lucky.

As a guy who recently lost a case in the D.C. Circuit, I'd like to this explains the result. My client was only accused of bank robbery -- perhaps if it had been bank fraud things would have gone better.

In any event -- some highlights from this week before you dive in - the Fifth Circuit waded into the fight over when restitution is appropriate for those depicted in child pornography. The Eighth Circuit reversed a restitution award in a fraud case. And the First Circuit held that no rational jury could determine that the Farm Service Agency is a financial institution.

Keep those 28(j) letters rolling - and look for longer case updates about these victories in the week to come.

And, of course, next Monday, we'll have a fresh round of defense victories for your reading pleasure.

1. United States v. Chaika, Eighth Circuit: In wire and mail fraud case, the district court erred in entering a final order of restitution in four respects: (1) the order was entered without affording appellant an opportunity to object to the restitution claims; (2) the amount of restitution requested by the government did not provide a sufficient basis to establish the actual loss suffered by the fraud victims; (3) regarding eight of the victims, there was no basis to award restitution because of insufficient record evidence and because appellant was not given notice or a reasonable opportunity to object to the award; and (4) some of the claims granted by the district court were submitted by buyers appellant recruited for the fraudulent loan transactions. For these reasons, the judgment was reversed only with respect to the restitution order, and the case remanded for further restitution proceedings.

2. Consolidated Fifth Circuit Cases: In re Amy Unknown; United States v. Paroline; United States v. Wright: In three consolidated child pornography restitution cases, the Fifth Circuit considered the Government's burden in requesting restitution for victims of sexual abuse under 18 U.S.C. § 2259. The court held that because a "proximate result requirement" is only imposed in subsection (b)(3)(F) of the statute, the Government is not required to show proximate cause to trigger a defendant's restitution obligations for the losses identified in subsections (b)(3)(A)-(E). Instead, the district court must award restitution for the full amount of the losses. For these reasons, the court vacated the district courts' judgments and remanded for proceedings.

3. United States v. Colon-Rodriguez, First Circuit: In case arising out of appellant's submission of Farm Service Agency loan applications, the district court erred in denying appellant's motion for judgment of acquittal on the charge of defrauding a financial institution because no rational jury could have concluded that the Government proved the second element of the offense--that the Farm Service Agency qualified as a "financial institution." Appellant's conviction on this count was reversed and his sentence vacated.

4. United States v. Jackson, Eighth Circuit: Appellant, a Native American, was charged with assault in a town within the original boundaries of an Indian Reservation. The district court erred in denying appellant's motion to dismiss the indictment on the grounds that the alleged assault occurred within the boundaries of the reservation and, therefore, in "Indian country," because the ruling was based on an inadequate record. The case was remanded with directions to permit appellant to withdraw his conditional guilty plea to assault with a dangerous weapon and discharging a firearm during a violent crime.

5. United States v. Jones, Ninth Circuit: Appellant pled guilty to possessing counterfeit obligations with intent to defraud and was sentenced to a term of imprisonment followed by supervised release. The district court revoked appellant's supervised release. Because the court erred in including a written special condition of supervised release that was not included in its oral pronouncement of sentence, the judgment was vacated and the case remanded for the court to strike the special condition from the written judgment to make it consistent with the oral pronouncement.

6. United States v. Budziak, Ninth Circuit: In distribution and possession of child pornography case, the district court abused its discretion when it denied appellant's request for discovery on software that the FBI used in its investigation into appellant's online file-sharing activities. Because the discovery material appellant requested was not part of the appellate record, it was impossible to determine whether the result of the trial would have been different had the material been disclosed. Consequently, the case was remanded to the district court to determine whether the discovery materials contained or would have led to information that might have altered the verdict and, if so, to order a new trial.

October 4, 2012

The Seventh Circuit Holds That Really Bad Fake Documents Are Not Fake Documents At All

Christopher Spears was no stranger to a fake document. Though at some point, it's about standards.

Mr. Spears had a thriving business outside of Chicago, in Lake County Indiana, making all kinds of fake identification documents - he made drivers' licenses, handgun permits, high school diplomas, etc.

He was a bigger diploma mill than Phoenix University.

348059_climbing_permit_required.jpgUnfortunately for Mr. Spears, he sold a fake handgun permit to a woman named Tirsah Payne. Ms. Payne was on pretrial release for a drug charge and wasn't allowed to have a gun (which, presumably, was why she needed Mr. Spears).

Ms. Payne tried to buy a gun at a sporting goods store. The clerk was not satisfied with her permit and turned her away.

He photocopied the fake permit first, and sent the photocopy to the ATF.

As you can imagine, one thing led to another, and Mr. Spears came to the attention of the ATF.

The ATF obtained an arrest warrant and a search warrant. Here's what they found on his person when they arrested him:

a zippered binder containing five documents that either depicted or resembled Indiana driver's licenses. Two of these documents . . . were color photocopies on 8.5-by- 11-inch paper of what look like Indiana driver's licenses. The other three documents . . . were laminated cards approximating the size and bearing the markings and information typically seen on an Indiana driver's license.

And here's what they found in his house:

a makeshift basement office with a desk, computer, printer, some check paper, and a briefcase sitting next to the desk. The briefcase contained another laminated document resembling an Indiana driver's license . . . . Forensic examination of the computer revealed templates for making fraudulent Indiana handgun-carry permits.

Mr. Spears was then charged with five federal crimes: (1) aiding and abetting an attempt to acquire a firearm by fraud in violation of 18 U.S.C. §§ 2 and 922(a)(6) arising from Payne's attempt to purchase a firearm using the fake handgun permit; (2) aggravated identity theft in violation of § 1028A(a)(1) stemming from Spears's sale of the fake handgun permit to Payne ; (3) producing false identification documents in violation of § 1028(a)(1); (4) unlawfully possessing five or more false identification documents in violation of § 1028(a)(3); and (5) possessing an implement designed to make a forged security in violation of 18 U.S.C. § 513(b).

Though things broke bad for Mr. Spears for most of these charges - he was convicted by a jury for all the charges and sentenced to 34 months (10 months on everything but the aggravated identity theft, and 24 months for that) - in United States v. Spears, the Seventh Circuit reversed on the charge for having five or more false identification documents!

For the government to win on a violation for having five or more false identification documents, they have to show that he had five or more documents that meet this definition:

a "false identification document" is defined as "a document of a type intended or commonly accepted for the purposes of identification of individuals" that "is not issued by or under the authority of a governmental entity" but "appears to be issued by or under the authority of . . . a State."

So, basically, the document has to look like it's within the ballpark of being a legitimate fake ID.

The Seventh Circuit quoted the Fourth Circuit on how to think of this:

A "false identification document" within the meaning of § 1028(d)(4) is "an identification document that, although not issued by or under the authority of the [government], nonetheless appear[s] to a reasonable person of ordinary intelligence to be issued by or under the authority of the [government]." United States v. Jaensch, 665 F.3d 83, 91 (4th Cir. 2011). The document need not be an exact replica of a government-issued identity card, see id. at 94-95; United States v. Fuller, 531 F.3d 1020, 1025-26 (9th Cir. 2008), but it must at least appear to be government-issued and of a type commonly accepted for identification.

So, if the ID is too far from a real ID, it can't be a fake identification document.

Or, said another way, if you're really bad at making fake ID's, it's not against (this) law to make them.

Here, the government introduced color photocopies of fake driver's licenses. The Seventh Circuit said these clearly don't count:

color photocopies on 8.5-by-11-inch paper of what appear to be Indiana driver's licenses. These two exhibits are not false identification documents under the statutory definition. No reasonable person would say that a photocopy of a driver's license "appears to be" issued by or under the authority of a State, and photo- copies of driver's licenses are not commonly accepted for identification.

Perhaps more as an insult to Mr. Spears craft, the Seventh Circuit also rejected other purported identification documents:

their production value is what one might expect if an elementary-school student created an identification card as a toy. They have the thickness of laminated pieces of paper, not state-issued driver's licenses, and their picture quality is laughably bad. No reasonable person making even a cursory examination of these "driver's licenses" would think they are state- issued.

With that denigration of Mr. Spears craft, the Seventh Circuit remanded the case for resentencing.

What are the implications of this case for McLovin'?

Warning - NSFW if where you work isn't F-word friendly:

September 27, 2012

Short Wins - First Monday Edition

Autumn is here. With it comes a crisp feeling in the air, leaves turning, the start of the Supreme Court term on the First Monday in October (for a preview of sorts, please see my guide to bluffing your way through knowledge of the upcoming term), and a slowdown in the pace of published opinions coming from our nation's federal appellate courts.

Why the slowdown? My suspicion is that as old law clerks leave the service of their appellate judges at the end of August to be replaced by new clerks -- much as old leaves fall from trees to make way, eventually, for new buds -- the work of the old clerks issues in late August and the work of the new clerks has yet to be rendered in a state fit for publication.

Though perhaps I'm mistaken.

All I know is that I saw the same slowdown last year, and we're seeing it again.

1155650_berlin_siegessule.jpgBut with this relaxed pace comes exciting news. Here at The Federal Criminal Appeals Blog, we are happy to announce that each and every published opinion where a criminal defendant wins in a federal circuit court will be published, here, in the weekly "Short Wins" column the week after it comes out.

Our great hope is that this will be a bounty of 28(j) letters for the federal criminal appellate bar.

So, if you are a federal criminal appeals lawyer -- representing people who are appealing a federal conviction or sentence -- you can come here, each Monday, to see where and how your brothers and sisters in the bar are winning across the country. And, if another win is like a case you have, you can write a letter to your court explaining this supplemental authority.

Then you, too, can have your client's case written up here!

(though, if we miss a case, please email me to let me know)

1. United States v. Spears, Seventh Circuit: Appellant was convicted of five crimes arising out of his operation of an illicit business that produced and sold counterfeit documents. Because the evidence was insufficient to sustain appellant's conviction for unlawful possession of five or more false identification documents, this conviction was reversed, the sentence vacated, and the case remanded for resentencing.

2. United States v. White, Second Circuit: In possession of a weapon by a convicted felon case, the district court erred in excluding two crucial pieces of evidence: (1) the Government's decision to initially charge four women traveling with appellant with possession of the gun allegedly found on appellant's person; and (2) evidence of a prior judicial finding that discredited the testimony of a Government witness. It was error to exclude the first evidence without inquiring into its relevance and probative value. It was error to exclude the second because evidence that might lead a jury to conclude that the witness was willing to lie in a similar case to secure a criminal conviction is both relevant and probative - particularly where, as here, appellant's defense centered on proving that the same witness and other officers lied about finding a weapon on appellant's person. Because these errors were not harmless, the judgment of conviction was vacated and the case remanded for a new trial.

September 25, 2012

A Fuzzy Stipulation Vacates A Conviction In A Bankruptcy Fraud Trial in the First Circuit Court of Appeals

Perhaps Ramie Marston was confused?

She filed for bankruptcy on her own - without a lawyer.

When you file for bankruptcy, you have to fill out a lot of paperwork. Here, Ms. Marston was asked what other names she'd used in the past.

She did not disclose the names "Susan Blake" or "Kristy Kromer" as names that she'd used in the past. These were the names of some of her friends.

875413_balance.jpgYet Ms. Marston had, in fact, used those names herself; she used them when she applied for credit cards in her friends' names.

She was also asked to identify all of her creditors. She did identify Susan Blake as someone she owed money to. She didn't disclose that she might owe credit card companies money based on the charges she made in her friends' names.

The bankruptcy trustee challenged Ms. Marston's petition, so she withdrew it.

Then she was indicted for bankruptcy fraud for not disclosing that she used her friends' names and for not revealing the debt to the credit card companies from using her friends' names.

A funny thing happened at trial. Instead of introducing evidence about what happened with Susan Blake, the prosecutor agreed to a stipulation drafted by defense counsel.

As the First Circuit describes it in United States v. Marston:

the government, instead of presenting a full scale case, accepted a stipulation in which Marston admitted inter alia that she had possessed credit cards bearing the names of both Marston and Blake, that she made purchases with those cards never authorized by Blake, and that the "fraudulent liabilities incurred in Blake's name by Marston totaled approximately $61,545."

The district court judge told the prosecutor not to agree to such a stipulation. Yet the prosecutor agreed.

In any event, Ms. Marston was convicted of all four counts of the indictment and sentenced to 37 months in prison.

Count Four of the Indictment is the one that dealt with the credit card debt relating to Susan Blake.

On appeal, Ms. Marston's lawyer argued that the evidence wasn't sufficient to convict her of that count.

In the First Circuit, and others,

A false oath conviction under 18 U.S.C. § 152(2) requires the government to prove (1) the existence of a bankruptcy proceeding; (2) that the defendant made a false statement in that proceeding under penalty of perjury; (3) that the false statement concerned a material fact; and (4) that the defendant made the false statement knowingly and fraudulently.

The statement in Count 4 that was allegedly false was that she didn't owe the specific credit card companies that issued the fraudulently procured credit cards that Ms. Marston ordered using Susan Blake's name. (or, rather, she didn't list them on a part of the form that she said she had filled out completely - which amounts to the same thing).

The court of appeals found that the government had failed to prove that Ms. Marston's statement was false.

The only evidence of Ms. Marston's credit card fraud involving Susan Blake came from the stipulation. Yet the stipulation just said that the charges happened, were fraudulent, and involved Susan Blake.

The stipulation didn't say that the debts were still outstanding at the time the bankruptcy petition was filed.

As the First Circuit said,

the missing element is proof that at the time that the bankruptcy petition was filed, there were still extant claims against Marston. The stipulation quoted above was enough to prove beyond a reasonable doubt that claims against Marston had arisen when the unauthorized purchases were made; but the prosecutor accepted a stipulation that nowhere said that these claims remained unpaid at the time Marston filled out the bankruptcy forms.

Because there was no proof on this essential part of the element of falsity, the case was remanded for resentencing.

September 24, 2012

Short Wins - Fraud and Child Pornography Edition

Today's short wins are dominated by federal sex offenses and fraud. It must be something in the water.

As the last few have been, this post contains a number of cases that were decided over the end of the summer.

1155650_berlin_siegessule.jpgVery soon -- perhaps even next week -- the Short Wins will start to become a recap of all the published federal criminal defense wins from each of the circuits on a weekly basis. So, if you're an criminal appellate practitioner (on the defense side), our hope is that this will soon be one stop shopping for 28(j) letters.

One other note - I had a preview of sorts for the upcoming Supreme Court term at Above the Law called Kaiser's Guide To Bluffing Your Way Through Knowledge About The Supreme Court's New Term to Non-Lawyers. It's not long on criminal defense stuff, but I do make fun of lawyers.

To (the) victories:

1. United States v. Marston, First Circuit: In bankruptcy fraud case, appellant appealed her conviction for knowingly and fraudulently failing to disclose certain debts to creditors on her bankruptcy petition that were incurred under appellant's friend's name, which appellant used without her friend's permission. Because the government failed to prove that, at the time appellant filed the petition, there were still outstanding claims by these creditors, her conviction was improper, warranting reversal.

2. United States v. Cunningham, Third Circuit: In child pornography case, the district court abused its discretion by failing to review child pornography video clips found on appellant's computer before admitting them into evidence and by allowing the videos to be shown to the jury. Because the highly inflammatory nature of the videos clearly and substantially outweighed their probative value, and because these errors were not harmless, appellant's conviction was vacated and the case remanded for a new trial.

3. United States v. Leal-Del Carmen, Ninth Circuit: On appeal of appellant's conviction for bringing in illegal aliens, appellant was denied his Sixth Amendment right to a meaningful opportunity to present a complete defense when the government deported an illegal alien who would have provided exculpatory evidence for appellant before counsel for appellant was even appointed. This prevented the jury from hearing anything at all about the testimony of appellant's sole favorable witness. Reversed and remanded.

4. United States v. Robers, Seventh Circuit: In conspiracy to commit wire fraud case, district court erred in including attorneys' fees for collecting a debt and unspecified fees in its restitution order because these fees are not recoverable under the Mandatory Victims Restitution Act of 1996. Vacated improper aspects of restitution award and remanded for entry of new restitution order.

5. United States v. Butler, Tenth Circuit: Brothers James and Marlin Butler, who sold guided deer hunts, pled guilty to conspiring to sell and transport poached deer. In sentencing the brothers, the district court erred in conflating the value of the deer with the full price of a guided hunt. The court also improperly imposed James' special conditions of supervision without considering whether the conditions would interfere with his lawful employment. Vacated appellants' sentences and remanded for resentencing.

6. United States v. Nielsen, Ninth Circuit: In sentencing appellant pursuant to his guilty plea to coercion and enticement of a minor, the district court erred in applying the "repeat and dangerous sex offender" enhancement under U.S.S.G. § 4B1.5(a) based on appellant's adjudication as a delinquent youth. Because the delinquency adjudication did not constitute a "sex offense conviction," the Ninth Circuit vacated the sentence and remanded for resentencing.

7. United States v. Navedo, Third Circuit: In illegal weapons possession case, the district court erred in denying appellant's motion to suppress weapons that police discovered in appellant's home after his warrantless arrest because appellant was detained without reasonable suspicion or probable cause to arrest. Remanded with instructions to vacate the order denying appellant's motion to suppress.

8. United States v. Johnson, Eleventh Circuit: In sentencing appellant after his guilty plea to interfering with commerce by threats or violence, brandishing a firearm during a crime of violence, and being a felon in possession of a firearm, the district court erred in applying a two-level sentencing enhancement under U.S.S.G. § 3C1.2 for reckless endangerment during flight. The court's reliance on three pieces of evidence to support the enhancement was misguided: the first two evidentiary showings were insufficient to prove that appellant actively encouraged or brought about the dangerous conduct, and the court did not make the requisite finding for enhancement for the third. Vacated and remanded for resentencing.

9. United States v. Williams, Ninth Circuit: The district court erred in grouping together appellant's convictions for wire fraud, extortion, and destruction of a letter box for purposes of sentencing under U.S.S.G. § 3D1.2 because the victims of appellant's mailbox-related offenses and his wire fraud and extortion offenses were distinct. The court further erred in applying three sentencing enhancements: (1) a five-level sentencing enhancement under U.S.S.G. § 2B3.2(b)(3)(iii) for brandishing a firearm; (2) a leadership enhancement under U.S.S.G. § 3B1.1(c); and (3) a two-point adjustment under U.S.S.G. § 3C1.1 for obstructing justice. Vacated appellant's sentence and remanded for resentencing.

10. United States v. Alvarado, Fifth Circuit: In child pornography case, the district court erred in automatically imposing a lifetime sentence of supervised release without engaging in any analysis of the circumstances surrounding appellant's crime. Vacated court's order regarding lifetime supervision and remanded for further proceedings.

11. United States v. Murray, Third Circuit: After his release from incarceration on his convictions for traveling interstate to engage in illicit sexual conduct with a minor and possession of child pornography in the District of New Jersey, appellant moved to the Western District of Pennsylvania. When the Pennsylvania probation office sought to modify appellant's supervised release conditions to include new, more restrictive conditions, the district court erred in granting the request without articulating a viable basis for those new conditions. Vacated order; remanded for the district court to more clearly explain why the conditions are no greater than necessary to satisfy the 18 U.S.C. § 3553(a) sentencing factors.

September 19, 2012

You're Only Guilty Of Messing With A Helicopter Over Boston Harbor With A Laser Pointer If You Intend To Mess With The Helicopter

Gerard Sasso made some bad decisions.

As humans have for thousands of years, he enjoyed stargazing. He also had an odd habit of collecting laser pointers - perhaps inspired by that scene in the 1985 Val Kilmer film "Real Genius" where a laser leads to an improbably awesome party.

Mr. Sasso's use of a laser, though, didn't lead to a super cool party thrown by engineering students - even though it was not far from M.I.T. Instead, it led him to federal prison.

1350922_hd_laser_image.jpgRather, Mr. Sasso pointed one of his lasers at a police helicopter escorting a natural gas tanker through Boston Harbor.

Who knew a shopping trip to Staples could lead a person so awry?

The police take laser pointers very seriously in Boston. One of the officers in the chopper saw the laser light. He told the pilot to avoid looking directly at it. The pilot swerved to avoid the laser pointer, but was unsuccessful and, to quote the First Circuit, "the laser beam hit the aircraft, filling the cockpit with bright green light."

Things got more intense from there.

The troopers elected to abandon their escort mission of making sure natural gas doesn't explode in Boston Harbor, in order to track down the laser pointer menace.

As they flew toward their quarry in a zigzag pattern, the beam struck the helicopter several times. The final strike occurred when the helicopter was approximately half a mile away from the source.

The "final strike" indeed.

Finally, the helicopter called for ground support. Officers went to Mr. Sasso's apartment (which was where the helicopter told them to look).

Mr. Sasso was evasive with the officers. Eventually,

[One of the officers] noticed an item on the defendant's nightstand that appeared to be a laser pointer. When asked about the artifact, the defendant began to backtrack. According to [the officer], the defendant said, "I did it. It was me," and added that he was sorry and did not mean to cause all the commotion. The defendant explained that he had a penchant for stargazing, and that when he saw the helicopter he decided to "light it up." When he heard the helicopter directly overhead, he "got scared" and hid the laser that he had pointed at the helicopter in a baseboard heater.

Mr. Sasso then showed them where he kept nine other laser pointers.

He was charged with a violation of 18 U.S.C. § 32(a)(5) - performing an act that interferes with an aircraft with reckless disregard for human life.

Mr. Sasso went to trial and was convicted. He was sentenced to three years in prison.

His defense was that he admitted he used the laser pointer, but that it was just a laser pointer and he didn't mean to harm anyone or foresee that harm could result.

The jury was instructed that:

the government must prove that the defendant willfully interfered with a person engaged in the authorized operation of an aircraft. To act "willfully" in this context means to act deliberately and intentionally, on purpose, as opposed to accidentally, carelessly or unintentionally. If a person's actions interfere with an aircraft operator, you may infer that the person acted willfully if his actions were deliberate and intentional and had the natural and probable effect of interfering with the aircraft operator.

The defense objected - Mr. Sasso acted willfully to the extent that he intended to aim the laser, but he did not intend to interfere with the aircraft's operation.

The trial court disagreed and gave the instruction above.

The First Circuit, in United States v. Sasso, agreed with Mr. Sasso's lawyers. As the court of appeals said,

Reasonable jurors could understand from the quoted instruction that it would be enough to convict the defendant if they found that he deliberately pointed a laser in the helicopter's direction and interference occurred as a natural and probable consequence of that action, regardless of whether the defendant knew that interference was a natural and probable effect of the action. So viewed, the instruction did not adequately distinguish between negligently (but innocently) pointing a laser at objects in the sky without any intent to interfere with the operation of an aircraft and "willfully . . . interfer[ing]," which is the level of scienter demanded by the plain text of the statute.

And, with that, Mr. Sasso's conviction was vacated and the case sent back for a new trial.

September 18, 2012

The Fourth Circuit Grants A Coram Nobis To Correct A Grave Immigration Injustice In A Bank Fraud Case

Sometimes I don't even recognize the Fourth Circuit anymore. They granted a coram nobis writ in a case based on bad immigration advice in United States v. Akinsade.

The Embezzlement at the Bank

Mr. Akinsade worked at a Chevy Chase bank in 1999. He was nineteen years old and was a lawful permanent resident in the United States - he had come here legally from Nigeria.

Mr. Akinsade cashed checks for friends in his neighborhood. He pocketed some of the money.

He then felt guilty and told his boss, who called the FBI. He cooperated with the FBI against his friends.

He was charged with embezzlement by a bank employee.

599375_wigs.jpgThe Lawyer and the Plea

Mr. Akinsade really did not want to be deported. His lawyer worked out a plea for him, and told him that if he plead guilty, he couldn't be deported.

His lawyer said that since he was only pleading guilty to one offense, he would be unable to be deported. Just like the rule that a husband and a wife can't be arrested for the same crime, that's not the law.

He went to court to plead guilty. The district court judge had the following exchange with him:

The Court: [P]eople who are found guilty of felonies, often lose their right to vote, certain professional licenses may be denied them, may not be able to serve on a jury. And I know felons can't possess firearms. Certain jobs may be denied you. If you are on parole or probation with another system, that can be affected. Or if you are not a citizen, you could be deported. All of these things could be triggered by being found guilty of a felony. Do you understand that?

Akinsade: Yes, Your Honor.

He was sentenced to one month of community confinement, three years of supervision, a Special Assessment of $100 and restitution of $8,000.

Mr. Akinsade Makes Good

As the Fourth Circuit said,

After serving his sentence, Akinsade attended the University of Maryland where he received a bachelor's degree in computer science. He later earned a master's degree from the university, graduating with a 3.9 GPA, and received a fellowship from the National Science Foundation. Akinsade then entered into a leadership program at General Electric Company and moved to upstate New York.

The United States Government Doesn't Care If Mr. Akinsade Made Good

Nine years after his conviction, Mr. Akinsade was arrested and placed in immigration detention. He was detained for nine months, then charged as a removable alien.

He filed a coram nobis petition based on his lawyer's Very Bad Advice.

A coram nobis petition is authorized under 28 U.S.C. § 1651. Basically, it lets a court set aside a conviction if the person seeking to set it aside is no longer locked up and is suffering an ill effect of the conviction.

Though, of course, the person still has to have a really good reason to set it aside. The Fourth Circuit explained that,

As a remedy of last resort, the writ of error coram nobis is granted only where an error is "of the most fundamental character" and there exists no other available remedy. United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988). The writ is narrowly limited to "'extraordinary' cases presenting circumstances compelling its use 'to achieve justice.'" United States v. Denedo, 129 S. Ct. 2213, 2220 (2009) (quoting United States v. Morgan, 346 U.S. 502, 511 (1954)). Thus, the writ provides relief in cases where the error "rendered the proceeding itself irregular and invalid." United States v. Addonizio, 442 U.S. 178, 186 (1979) (internal quotation marks and citation omitted) (superseded by statute on other grounds). A petitioner seeking this relief must show that "(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character." Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987).

The District Court Also Doesn't Care That Mr. Akinsade Made Good

The government fought the petition every step, and the district court rejected the petition.

Mr. Akinsade argued that if his lawyer had advised him on what the law is, rather than on what he imagined the law to be, but was too lazy to look up or find out, he wouldn't be getting deported.

The district court said that its questions during the plea colloquy were enough to mean that Mr. Arkinsale knew he could have been deported, regardless of the lawyer's advice.

The Fourth Circuit disagreed,

in light of the equivocal nature of the admonishment, counsel's affirmative misadvice that is clearly contrary to law, and the severity of the consequence itself.

Because the district court only told Mr. Arkinsale that he could be deported, but not that he would be, the Fourth Circuit held that the plea colloquy was not sufficiently definite as to override his prior lawyers faulty advice.

The Lawyer Also Didn't Really Investigate the Facts

Finally, to win, Mr. Arkinsale had to prove that if it weren't for his lawyer's advice he would be in a different position.

Mr. Arkinsale's deportation proceedings were under a provision that applies to folks who were involved in a fraud of more than $10,000. In his criminal case, his lawyer said that if he'd gone to trial, he could have argued that he was only involved in two checks that totaled $8,000, and would have disputed a third check that put him over the $10,000 threshold.

Indeed, his restitution amount was a mere $8,000.

The Fourth Circuit found that was good enough to show that if the lawyer's advice hadn't been wrong, things would have been different. The court of appeals granted the coram nobis.

While his lawyer's bad advice did mean that Mr. Arkinsale spent months in prison when he shouldn't have, at least he isn't going to be deported.

September 14, 2012

Ineffective Assistance Of Counsel Claims Matter Even In Cases From Afghanistan, Says the DC Circuit

The war on terror[ism] is a massive new problem for society. And, of course, when there's a massive new problem for society, that ends up being a massive new problem for lawyers.

Despite the debate about whether or not to close the detention facility in Guantanamo Bay - both between Obama when he was a candidate and as President, and in society at large - and the discussion about whether to have civilian or military trials for alleged terrorism suspects, a very real part of the war on terror[ism] has been playing out in our federal courts.

The D.C. Circuit's opinion from last week in United States v. Mohammed is a nice example.

1124515_deserted_houses.jpgDon't Trust Just Anyone To Help With Your Missile-Buying

Mr. Mohammed lived in the village of Geratak in Afghanistan. If a man named Jaweed is to be believed, one day, Jaweed walked into Geratak and asked to speak with Mr. Mohammed.

Upon meeting Jaweed, Mr. Mohammed then invited Jaweed into his planning to attack a NATO airbase in Afghanistan. Specifically, Jaweed says that Mr. Mohammed asked him to get some missiles to use to attack the airbase.

As any federal criminal defense lawyer - or frequent viewer of The Wire - would suspect, Jaweed then went to law enforcement. Just like on The Wire, he went to the DEA, who were working in Afghanistan.

The DEA agents did what DEA agents do - they wired up Jaweed. Jaweed then recorded calls with Mr. Mohammed where he made some boasts about attacking the airfield.

Initially, the DEA decided they would give the missiles to Jaweed, and then arrest Mr. Mohammed as soon as Jaweed handed over the missiles. At some point, someone in the federal law enforcement community determined that handing missiles to a person in Afghanistan who has bragged about wanting to harm a NATO airbase - using missiles - is not a good idea.

A New Plan Is Hatched

If you only have a hammer, you only see nails. The DEA decided to arrest Mr. Mohammed for narcotics trafficking, instead of planning to attack the airbase.

Jaweed was instructed to talk to Mr. Mohammed about a friend of his looking for opium. Mr. Mohammed said he knew a guy who could get opium, and they talked about what Mr. Mohammed's commission for getting the two friends together would be. At one point, Mr. Mohammed said he'd use his commission to buy a car to transport the missiles to attack the airbase.

If there's anything the DEA knows how to do, it's a controlled buy. The opium deal went through and the agents got some good video of Mr. Mohammed handling opium.

The DEA did another deal - this time for heroin. During this deal, Jaweed told Mr. Mohammed that his friend was planning to send the heroin and opium to the U.S. Mr. Mohammed expressed pleasure at this idea - saying that their common goal was to "eliminate the infidels either by opium or by shooting".

Mr. Mohammed Is Arrested

The DEA arrested him in Afghanistan and drove him to a DEA base. He was given Miranda warnings and made a statement.

The D.C. Circuit noted that "[a]t no time [during the interview] did Mohammed ask for an attorney"

He was transferred to the United States and put on trial in the United States District Court for the District of Columbia.

The Trial

Mr. Mohammed moved to suppress his statement, but the district court said that he was Mirandized and had the consequences of giving a statement explained to him, so no dice.

The trial lasted four days. Jaweed testified for two of those days. Mr. Mohammed's lawyer called no witnesses and offered no evidence. He was convicted of narcoterrorism and given two life sentences.

Ineffective Assistance of Counsel

The D.C. Circuit is a good court to practice in for a number of reasons - one of which is that you can raise an ineffective assistance of counsel claim in your direct appeal.

In many other circuits around the country, if your lawyer messed up, and that affected what happened to you, you can't complain about that in the appeal - you have to wait until after the appeal and file a petition under 28 U.S.C. § 2255.

But not so in the District of Columbia. Here, if you can show that your lawyer was constitutionally ineffective from the record before the court on appeal, the D.C. Circuit will consider your claim.

It almost makes up for not being able to vote for a Senator.

Here, Mr. Mohammed said that he had a number of witnesses in Afghanistan that he wanted his lawyer to interview.

These witnesses, he said, could have shown that Jaweed was a liar who hated Mr. Mohammed and was out to get him. Since Jaweed was the star witness, if Mr. Mohammed could have found and brought over witnesses to say Jaweed was biased or a liar, it could have gone a long way in his trial.

As the D.C. Circuit said, Mr. Mohammed's lawyer "owed him a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." If he didn't try to contact witnesses - even ones in a remote village in Afghanistan - he may not have given Mr. Mohammed the legal representation the Constitution guarantees him.

Sadly, the rest of the details of the ineffective assistance are under seal.

And so, the case was remanded to the district court on the ineffective assistance claim.

September 12, 2012

Using Someone Else's Credit Card Is Not Always "Access Device" Fraud, or, Why You Shouldn't Leave Your Job If You're Running a Fraud Scheme

Ronda Nixon's career was on the upswing. She had logged her time as a Mary Kay Cosmetics representative. She had spent time in a job working at a small law firm - first as an assistant and then she worked her way up to bookkeeper and paralegal.

Finally, she was ready to make her move. She left her old jobs behind to go to law school. She was moving on up.

1031341_makeup_kit.jpgUnfortunately, her former boss - Garis Pruit - took ill. While he was recovering from surgery, he received a call from the bank.

His bank wanted to know why he was delinquent on his line of credit.

Mr. Pruitt thought Ms. Nixon had paid it off already.

An audit was performed. The audit found evidence that Ms. Nixon wasn't so much paying the law firm's bills, as she was paying her own bills with the law firm's money.

Specifically, she had access to the firm's American Express card.

She also had access to a Mary Kay Cosmetics credit card processing mechanism - so she could charge the firm's Amex to her Mary Kay account and take home the money.

She also wrote herself some checks from the firm's account. And she created a line of credit for the firm - that went to her - at the American Express Bank.

Here's how the Sixth Circuit, in United States v. Nixon, summarized the charges:

Nixon was indicted on eleven counts of wire fraud, in violation of 18 U.S.C. § 1343 (one count for each credit card charge that ended up in her [Mary Kay] account), two counts of bank fraud, in violation of 18 U.S.C. § 1344 (one count for each of . . . two checks written from the American Express Bank line of credit), three counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A (one count for using Pruitt's social security number and signature to set up and use the account at American Express Bank and two counts for each of the checks that she forged in Pruitt's name), and one count of using an unauthorized access device, in violation of 18 U.S.C. § 1029(a)(2) (for charging more than $1,000 on the firm's credit card without authorization).

The jury convicted her on every count.

On appeal, Ms. Nixon was represented by a former Bristow Fellow - Annie Owens at Wilmer Hale.

Ms. Owens argued for Ms. Nixon that the access device fraud conviction was not supported by sufficient evidence to allow a jury to convict.

Access device fraud under section 1029(a)(2) requires fraud involving as access device (it's really well named). "Access device" for these purposes, under 1029(e), means:

any access device that is lost, stolen, expired, revoked, cancelled, or obtained with intent to defraud

Thus, as the Sixth Circuit noted,

Key to the charged offense is that the intent to defraud be present both when the "access device" is obtained and when it is later used.

The Sixth Circuit concluded that the law firm Amex was not an "access device" as the term is used in the statute.

As the court of appeals said,

Here, the uncontradicted proof established that Pruitt had authorized Nixon to obtain the American Express credit card for his firm's use. Because there was no proof at trial that Nixon had the intent to defraud Pruitt or the firm at the time she obtained the credit card (as opposed to her later unauthorized use of the card), the government did not prove an essential element of the crime.

Congratulations to Ms. Nixon who is going back for resentencing on the other 16 counts of conviction.

Congratulations too to Ms. Owens for her work on this side of the criminal defense world.

September 12, 2012

Short Wins - Sixth Circuit edition

It used to be that I resented the Sixth Circuit for not having an RSS feed. If you want to see the latest from the Sixth Circuit, you have to subscribe by email. You can't just go to their webpage.

But now, frankly, I love getting a friendly email blast every day to that circuit of the Kentucky Derby, 3-way chilli, and no-fourth-amendment-protection-for-GPS-cell-phone-data.

1073989_buckeye.jpgAnd so, in celebration to the Sixth Circuit, here is a Sixth Circuit focused edition of Short Wins.

Next week, I promise, we'll start with more breaking news from around the country.

In the meantime, here's news of Batson, oxycodone, and fraud. Oh my!

1. Campbell v. United States, Sixth Circuit: In conspiracy to commit wire and mail fraud case, defense counsel provided ineffective assistance by failing to file an appeal despite appellant's request to do so - even though appellant's guilty plea included a partial waiver of his right to appeal.

2. United States v. Bazazpour, Sixth Circuit: In money laundering and arson case, district court erred in applying a two-level obstruction of justice sentence enhancement under U.S.S.G. § 3C1.1 because the court did not make an explicit finding that the appellant gave false testimony. As a result, the Sixth Circuit remanded for resentencing to determine whether a 3C1.1 enhancement is proper.

3. United States v. LaPointe, Sixth Circuit: In drug case, the appellant was entitled to a new trial on his conviction for conspiring to distribute or possess with intent to distribute oxycodone because he was improperly denied a jury instruction on a lesser-included offense.

4. United States v. D. McAllister, Sixth Circuit: In wire and bankruptcy fraud case, the appellant challenged the government's peremptory strike of the only two African-Americans in the jury pool under Batson v. Kentucky. Because it was unclear whether the district court satisfied the third step of the Batson challenge, remand was required for the court to make explicit findings as to whether the appellant established the existence of purposeful race discrimination in the selection of his jury and, as a result, whether his Batson challenge requires reversal of his conviction.

5. United States v. T. McAllister, Patterson, Hughes, Ratcliff, Weeks-Savage, Sixth Circuit: In drug conspiracy case, Mr. Hughes' sentence was procedurally unreasonable because the district court did not explain why it rejected his non-frivolous argument regarding the disparity between his sentence and that of his co-conspirators. Mr. Hughes' sentence was vacated and the case remanded for resentencing.

6. United States v. Morgan, Sixth Circuit: In drug and firearm discharge case, remand for resentencing was warranted because the district court erred in (1) double-counting the appellant's conduct in discharging the firearm and (2) applying the attempted-murder Guideline to the appellant's sentence where the facts did support a finding that the appellant had a specific intent to kill.

7. United States v. Welch, Sixth Circuit: In counterfeiting case, remand for resentencing was appropriate because the district court violated the Ex Post Facto Clause by relying on a Sentencing Guidelines amendment not in effect at the time of the appellant's illegal conduct which, in turn, subjected appellant to a harsher sentence.

And, finally, let me thank the newest lawyer in Kaiser, LeGrand & Dillon PLLC, Rachel Browder, for her continuing help with the "Short Wins" feature.

September 10, 2012

Short Wins

I was lucky last week to be able to get together with a fan of this blog (yes, there are fans of this blog who are not my mother. I'm kind of surprised too.).

The reader I was lucky to meet with had a wonderful suggestion. He saw the point behind not doing a full treatment of each case, as I described earlier.

Yet, he said, I could still do a very quick treatment of each case, even if not every case gets the loving and lengthy discussion that may be the reason folks read this and is the fun behind writing it.

1146459_victory.jpgSo, we're going to experiment with that. Here is the inaugural post of "Short Wins" - short descriptions of wins in the federal circuits.

This installment isn't going to be comprehensive -- there's too big a gap since I started being selective about what gets posted. But hopefully soon, we'll start doing this weekly and updating on the criminal defense wins from the past week.

And, as always, please let us know what we can do better in the comments.

1. United States v. White, Second Circuit: On appeal of appellant's conviction for possession of a weapon by a person previously convicted of a felony, the district court erred in (1) excluding evidence that the government initially charged other occupants of car in which he was traveling with possession of the firearm the government claimed was found on his person and (2) improperly limited cross-examination of a government witness by barring the appellant's use of a prior adverse credibility finding in a similar but unrelated case. Vacated conviction and remanded for a new trial.

2. United States v. Reyes, Second Circuit: On appeal of appellant's 188-month sentence for bank robbery, holding that a district court erred in relying on the Presentence Report's description of the appellant's pre-arrest conduct that culminated in a prior conviction to determine whether that prior conviction constituted a "crime of violence" under U.S.S.G. § 4B1.2(a)(1) where the appellant did not object to the report's description.

3. United States v. Beardsley, Second Circuit: In child pornography case, district court erred in sentencing appellant to the mandatory minimum sentence established by 18 U.S.C. § 2252A(b)(1) because the "categorical approach," rather than the "modified categorical approach," was the appropriate standard to use to analyze the facts of appellant's prior state conviction for endangering the welfare of a child. Vacated sentence and remanded for resentencing.

4. United States v. Davis, Second Circuit: Because there was no evidence that the appellant engaged in any conduct that demonstrated a desire to injure a DEA agent or would cause an agent to apprehend immediate injury, appellant's conviction for resisting arrest was overturned.

5. United States v. Graham, Second Circuit: Reversing appellant's conviction for using an explosive to commit a felony because the gun cartridge used did not constitute an "explosive" for purposes of 18 U.S.C. § 844(h)(1).

6. United States v. Wernick, Second Circuit: In child pornography case, remanding for resentencing because the district court erred in considering certain sexual conduct directed at young children not charged in the indictment or proven at trial as "relevant conduct" that increased the appellant's Guidelines offense level on his conviction for persuading, inducing, and enticing minors to engage in sexual activity.

7. United States v. Highsmith, Second Circuit: Remanding for resentencing on appellant's conviction for conspiracy to distribute at least 50 grams of crack cocaine to apply the reduced mandatory minimum sentences prescribed by the Fair Sentencing Act, which was passed after the appellant committed this offense but before he was sentenced.

8. United States v. Worley, Fourth Circuit: In drug case, reversing three conditions of supervised release that affected the appellant's relationship with his girlfriend and children because the restrictive conditions, which were based on the appellant's more than decade-old state sex offense conviction, were not supported by evidence that the appellant was a danger to his family. The remaining conditions, which went "well beyond" state sex offender registration requirements, were vacated and remanded for further proceedings because the appellant's state sex offense conviction, standing alone, was insufficient to support the conclusion that his current behavior required the restrictions.

9. United States v. Akinsade, Fourth Circuit: Vacating appellant's conviction for embezzlement and granting petition for writ of error coram nobis because defense counsel's affirmative misrepresentations that the crime was non-deportable prejudiced the appellant and resulted in a fundamental error requiring coram nobis relief.

10. United States v. Gomez, Fourth Circuit: Where appellant pled guilty to unlawful reentry of a deported alien after an aggravated felony conviction, the district court erred in applying the "modified categorical approach" to determine that appellant's prior child abuse conviction constituted a crime of violence under Guideline §2L1.2(b)(1)(A)(ii) because there was no divisible use-of-force element under the child abuse statute. Because the error was not harmless, the sentence was vacated and the case remanded for resentencing.

11. United States v. Horton, Fourth Circuit: In possession of a firearm by a convicted felon case, the district court erred in applying the cross-reference provision in Guideline § 2K2.1(c)(1) and in treating as relevant conduct a murder that occurred during the course of an unrelated and uncharged offense, which substantially increased appellant's advisory guidelines range. Vacated sentence and remanded for resentencing.