April 5, 2012

Phone Calls From Africa To Kentucky Cannot Be Prosecuted In Virginia, Even If Virginia Is Where You Thought About The Fraud You'd Do On The Phone Call


Former Congressman William Jefferson, a son of New Orleans, will perhaps be best known for having been found with cash - cold, hard, cash - in his freezer.

He was convicted in the United States District Court for the Eastern District of Virginia of eleven charges in connection with a bribery scheme involving his role as a member of Congress and officials in Africa. In a major coup for his lawyer, he was not convicted of the offense involving the cash found in his freezer.

IMG_3793.jpgHe was convicted, alas. And, the Fourth Circuit affirmed 10 of his 11 counts of conviction in United States v. Jefferson.

The one count they reversed on, though, is exceptionally interesting (to me).

Count 10 - Wire Fraud

Count ten of the indictment against Mr. Jefferson alleged that he violated the federal wire fraud statute, 18 U.S.C. § 1343.

This count was based on a telephone call from Africa to Kentucky on July 6, 2005. The government alleged that the call was in furtherance of a scheme that was hatched, in part, in the Eastern District of Virginia.

His lawyers challenged whether there was venue for such a call in the Eastern District of Virginia. After all, the call was started in Africa and accepted in Kentucky. That doesn't look like it affects the folks who live near the federal courthouse in Alexandria.

The district court rejected the venue challenge.

A Bit Of Background on Venue in a Criminal Case

In a criminal case, a person's right to proper venue is Constitutional - it's in article III, section 2, clause 3; "The Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed." It's also contained in Federal Rule of Criminal Procedure 18.

For many federal criminal statutes, Congress has expressly said where venue lies. Money laundering, under 18 U.S.C. § 1956 is a good example. Congress has said that a money laundering prosecution can go forward in any jurisdiction where the money laundering transaction happened, or where the illegal act that requires money to be laundered was done (assuming the person accused did the laundering).

But, for many federal statutes, there's no explicit venue provision. Wire fraud, as it happens, is one of those statutes.

In that case, the Supreme Court has said that a person can be prosecuted in the jurisdiction where the conduct that is prohibited by the statute took place.

Venue in a Wire Fraud Case

Simple enough. What's the conduct in wire fraud?

Mr. Jefferson's lawyers argued that the conduct for wire fraud is the making or receiving of the wire. That's what "wire fraud" is about - using a wire.

The government, on the other hand, said that the elements of wire fraud are (1) the use of a wire that is (2) in furtherance of a scheme to defraud. Either one of those elements is an act necessary to complete the offense, argued the government. As a result, the government said that if either happened in the Eastern District of Virginia, the prosecution was proper there.

In fairness to the government, the Seventh Circuit has said basically the same thing in United States v. Pearson, 340 F.3d 459 (7th Cir. 2003).

Thinking Up A Fraud Scheme Is Not Conduct

The Fourth Circuit sided with Mr. Jefferson. It held that,

The scheme to defraud is clearly an essential element, but not an essential conduct element, of wire (or mail) fraud.

Picking up the phone and making a call is an act. Similarly, for mail fraud, putting a letter in a mailbox is an act. But planning a fraud scheme, not so much. Quoting a Second Circuit case, United States v. Ramirez, 420 F.3d 134, 144-45 (2005), the court of appeals held that,

devising a scheme to defraud is not itself conduct at all (although it may be made manifest by conduct), but is simply a plan, intention or state of mind, insufficient in itself to give rise to any kind of criminal sanctions.

Because Mr. Jefferson only had a state of mind in the Eastern District of Virginia, and didn't use the phone there - Count 10 was dismissed for improper venue.

The moral of the story is that you can think about fraud where ever you'd like. Just only answer the phone where you want to face a jury.

April 3, 2012

Do People Convicted of White-Collar Crimes Have The Most To Gain From The Supreme Court's Recent Decisions On Ineffective Assistance Of Counsel?

The Supreme Court recently decided two cases about what a lawyer has to do when representing a client deciding whether to take a guilty plea or go to trial - Lafler v. Cooper and Missouri v. Frye.

These cases hold, basically, that if a defense lawyer messes up when representing a person in connection with a decision to plead guilty, that violates the person's constitutional right to effective assistance of counsel. As a result, the harm that was done by the lawyer's mistake can, and must, be undone. So, a person who was hurt by a lawyer's mistake can challenge what happened to him and possibly have a conviction or sentence undone.

The New York Times took the notable step of issuing an editorial praising the decisions. Lots of folks have commented on the effects of the rulings (like this guest post at Sentencing Law and Policy).

Lafler, I think, will prove the more interesting case. It definitely has the more interesting facts.

594710_shirt_close-up.jpgMr. Cooper's Lawyer's Folly

In Lafler, Mr. Cooper, was charged with assault with intent to murder. The person Mr. Cooper stood accused of assaulting was shot in the lower half of his body.

The government offered Mr. Cooper a plea to lesser charges that would have resulted in a sentence of 51 to 85 months in prison. Mr. Cooper rebuffed these offers based on his lawyer's advice that a person cannot be found guilty of assault with intent to murder if the person is aiming at the lower half of the victim's body.

This singularly bizarre bit of legal "advice" was not accurate - just like it isn't accurate that the police can't arrest a husband and a wife for the same crime.

Yet, Mr. Cooper relied on his lawyer's erroneous "no murder if you're shooting below the waist" maxim and went to trial. He was convicted, and sentenced to a mandatory minimum sentence of 185 to 360 months.

The Supreme Court held that, on these facts, Mr. Cooper was not competently represented by counsel. As a result, in the future, people who went to trial based on a bad assessment of what will happen at trial have a tenable claim of ineffective assistance.

Will The Floodgates Open?

The dissent said that this is going to open a floodgate of litigation, as people who are in prison try to use Lafler (and Frye) to overturn their sentences.

So, I'm trying to think about who will most benefit from this opinion.

I think, most clearly, it would be people who went to trial, when there was a viable plea offer for less time than the person received, and where the person received a significant sentence after trial.

The Court quoted a lovely law review article about the perils of going to trial in this age of plea-bargaining:

The expected post-trial sentence is imposed in only a few percent of cases. It is like the sticker price for cars: only an ignorant, ill-advised consumer would view full price as the norm and anything less a bargain

So, as I read Lafler, a lawyer has an obligation to meaningfully and competently discuss whether to take it. As the Court says,

If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.

I think this means that a lawyer advising a person looking at trial or a plea has to tell him, competently, what the strengths and weaknesses of his case, and the government's case, are.

Obviously, there can be some room to wiggle there - if a lawyer says that there's a 35% chance of conviction, when, in fact, there's a 38% chance (assuming anything in a trial could ever be known with such precision), it would be hard to see how that kind of error would require a reversal.

But there's a lot of room to move in a challenge to a person's conviction.

What if, for example, a person's lawyer simply didn't anticipate that a bit of evidence would be significant? The government had, say, an email that was particularly damning. When discussing a plea, the person's lawyer simply didn't mention the effect that this email could have on a jury. It seems that could be close enough to the "no murder if you're shooting below the waist" rule to be worth a challenge.

Who Gets More Serious Sentences After Trial Than On A Plea?

Lafler will confer the most benefit to people who faced the most significant trial penalty.

Thinking just of federal cases, I'm sure there are a lot of candidates for this kind of relief - people who are now facing mandatory minimum sentences that could have been pled around, or enhanced sentences based on prior convictions that wouldn't have been triggered on a plea - but I think one interesting area will be white-collar offenses.

Since Enron, there have been a lot of white-collar prosecutions. And, since the guidelines get crazy when the loss amounts get high, I would think virtually any white-collar case where a person was sentenced near the sentencing guidelines after trial, and where there was a plea offered before trial, would be worth thinking about as a candidate for relief under Lafler.

One additional interesting thing about white-collar cases is that they tend to be the kinds of cases where honest conversations about plea options happen less frequently.

In the average drug case in federal court, there is a frank conversation about whether to plead. Either the client (or his family) is bearing the costs of the representation, or the lawyer is court-appointed. In either case, the economic incentives line up to encourage that conversation.

In white-collar cases where the person accused of the crime is indemnified, the incentives are different. The client isn't paying for his legal fees, and the law firm has an interest in seeing the case go to trial. A frank conversation about whether trial can be won or lost, or whether an acceptable plea can be secured, can be challenging.

Of course, maybe I'm wrong about that. As these convictions get challenged under Lafler, the plea advice that lawyers have been giving, and their advice about what's going to happen at trial, will be getting new scrutiny.

I'm looking forward to seeing how this plays out.

April 2, 2012

You Can Subscribe To The Federal Criminal Appeals Blog By Email

I wanted to briefly let you know that you can subscribe to this blog by email. Then, whenever there's a post, you'll get an email. It's massively efficient.

Just enter your email address, then hit "subscribe":

Delivered by FeedBurner

If you're one of the folks who gets this blog by email already, and, indeed, are reading this very post by email, you can just forward the email to your friends if you think they'd like to subscribe to the blog.

And, soon, we'll have more exciting news of a defendant winning in federal court.


March 29, 2012

Statutory Rape Is Not A Crime Of Violence

As frequent readers of this blog know, the Armed Career Criminal Act gets a lot of appellate attention.

Simply put, if you've been previously convicted of a felony, and you're found with a gun, that's a federal crime. Normally, the most you can get for that crime is 10 years.

But, under the Armed Career Criminal Act, if you have three prior convictions for either a crime of violence or a drug distribution offense, then you face a mandatory minimum sentence of 15 years, and a maximum sentence of life.

That's a big change.

673264_hammer_to_fall.jpgAs I've written about before (here from the Ninth Circuit, here from the Fourth Circuit, here from the Eighth Circuit, and in two places from the Sixth Circuit, here and here, to suggest a few places to look), what counts as a "crime of violence" is really miles away from clear.

In short, the Armed Career Criminal Act is a mess. What counts as a qualifying predicate offense is light years from clear. And it's a mess that is causing thousands of additional years of prison time for people.

But don't take my word on it; the New York Times recently had an editorial about how wrong the ACCA is.

The New York Times writes that,

Justice Antonin Scalia has called this federal statute unconstitutional because some of its language is so vague that it "permits, indeed invites, arbitrary enforcement." In dissenting in a case last year, he wrote, "Many years of prison hinge on whether a crime falls within" the act.

The Eleventh Circuit addressed whether statutory rape counts as a "crime of violence" under the ACCA in United States v. Owens.

Statutory rape, basically, is the crime of having sex with someone who is too young to consent by law. In Alabama, the state law that matters in Owens, the age of consent is generally 16.

Mr. Owens was previously convicted, many times, for having sex with someone between the ages of 12 and 16 (we know the person was older than 12, because he was convicted of an offense with that age range - presumably having sex with someone younger than 12 has its own separate statutory section, and is punished more severely.

After picking up his statutory rape convictions, Mr. Owens was convicted of being a felon in possession of a firearm.

So, the question is - is statutory rape a crime of violence?

Initially, the Eleventh Circuit said yes. The court of appeals held that statutory rape involves the use of force on the person of another. Here's how the court summarized its conclusion from the prior opinion:

We explained that "the plain meaning of 'physical force' is power, violence, or pressure directed against a person consisting in a physical act." In interpreting the term "physical force" . . . , we noted that "a person cannot engage in nonconsensual sexual penetration with another without exerting some level of physical force." Because under Alabama law second-degree rape is sexual intercourse with a person incapable of consenting to the act, we concluded "that a second degree rape conviction under Alabama law must involve the use of physical force against the person of another."

There's a tidy bit of equivocation on the word "consent" between the second sentence and the third - a fifteen-year old can "consent" in the sense of the second sentence in a way that he can't in the third - but you get the court's idea.

Then the Supreme Court decided Johnson v. United States. As the Eleventh Circuit described the Court's reasoning in Johnson:

The Court reasoned that because "context determines meaning," the phrase "physical force" as used in the statutory definition of violent felony "means violent force - that is, force capable of causing physical pain or injury to another person." The word "violent" connotes "a substantial degree of force," and the implication of "strong physical force" is made even more pellucid by its attachment to the word "felony." "[T]he term 'physical force' itself normally connotes force strong enough to constitute 'power'-and all the more so when it is contained in a definition of 'violent felony.'" Thus, the Court concluded that battery under Florida law did not satisfy the definition of "violent felony"
So, for something to be a crime of violence, it necessarily, after Johnson, has to include violence.

In light of Johnson, the Eleventh Circuit's prior holding in Owens was remanded and the Eleventh Circuit considered it again.

On remand, the Eleventh Circuit changed course.

For this court to uphold Owens's sentence, we would have to conclude [statutory rape] "inherently poses a serious potential risk of physical injury to another" and consequently "qualifies as a crime of violence["] comports with the Johnson Court's definition of "violent felony" under the ACCA. We would be intellectually dishonest if we decided that in the affirmative.

The court of appeals noted that to secure a conviction for statutory rape

the government need only show that the offender is 16 years old or older and engaged in sexual intercourse with a person of the opposite sex who is between the ages of 12 and 16, without legal capacity to consent. See Ala. Code § 13A-6-62. The government is not required to show forcible compulsion

Since violence isn't required for statutory rape to be committed, statutory rape is not a crime of violence.

Mr. Owens is going back for resentencing.

March 27, 2012

What You Tell Your Mother Can Be Used At Your Trial (though, in this case, that's a good thing)

Air travel is always hard, but Samir Ibisevic's trip was much worse than most.

His father had died, and he was flying to Sarajevo for the funeral. He'd been up all night traveling from Syracuse to Dulles with his mother, Rahima. He had a headache and he was upset by his father's death.

169329_dulles_under_the_eave.jpgHe also had $5,000 in cash in his pocket, and his mom had another $35,000 in her bags.

A customs officer, doing a random check of passengers, approached Mr. Ibisevic. The officer explained that it isn't illegal to take cash out of the country, but if you want to take more than $10,000, you have to fill out a reporting form.

The officer asked Mr. Ibisevic if he was traveling with any cash. Mr. Ibisevic said he had $5,000.

The officer took Mr. Ibisevic and his mother to a more private area. He asked again, how much currency they were taking out of the country "as a whole." Again Mr. Ibisevic said $5,000.

Mr. Ibisevic, as much of the defense evidence at his later trial showed, speaks very little English and reads even less.

The officer showed him a reporting form. Mr. Ibisevic looked at the form for a minute or two. The officer then told him to write the amount of cash he was taking out of the country on the form. Mr. Ibisevic wrote "$5,000."

The officers then searched Mr. Ibisevic's bags, as well as those of his mother. They found the $40,000 in cash.

The Criminal Charges

Mr. Ibisevic was charged with failing to report the international transportation of currency, cash smuggling, and making a false statement.

Each offense requires that it be committed "willfully." The sole issue at trial is whether Mr. Ibisevic intended to make a false statement or fail to report, or, instead, if he simply didn't realize he was obligated to.

The Mother and Child Reunion

Mr. Ibisevic's mother testified against him, under an immunity agreement. She said that the money was his, and that she speaks no English (she testified through an interpreter).

On cross, Mr. Ibisevic's lawyer asked Mr. Ibisevic's mother what Mr. Ibisevic said before the customs agent showed him the reporting form and asked him to sign it.

As the mother started to answer, the district court, without an objection from the government, interrupted the testimony. The court expressed concern that the testimony would be hearsay.

Mr. Ibisevic's lawyer explained what the answer would be - Mr. Ibisevic's mother would say that her son told her that the agents wanted to know the value of the bags if they were lost.

The district court thought this evidence was hearsay and refused to let it in.

Mr. Ibisevic's defense case focused on how limited Mr. Ibisevic's English was. Mr. Ibisevic himself testified that he didn't know he had to report the cash, but that he thought the customs officers were asking about the value of his luggage in case it was lost.

He was convicted, and sentenced to two years probation. He also had to forfeit the cash.

The Appeal

Mr. Ibisevic appealed based on the district court's hearsay ruling.

In United States v. Ibisevic, the Fourth Circuit held that, first, Mr. Ibisevic's statement to his mother about what he thought they were asking wasn't hearsay.

Hearsay is when a person is testifying about something someone said outside of the courtroom and they're trying to prove that what the person said is true.

So, if a witness says, "John said the money was counterfeit" and the person offering that testimony is trying to prove that the money was counterfeit, then that would be hearsay.

But, if, instead, the person offering the witness is trying to prove that John thought the money was counterfeit, then it isn't hearsay - it just goes to what John thought.

Here, Mr. Ibisevic wasn't trying to prove that the agents were asking him about the value of his luggage - they clearly weren't. Rather, he was trying to prove what he thought they were asking.

So, the testimony wouldn't have been hearsay. Though, even if it were hearsay, it still would have been admissible under the "present sense impression" exception to the hearsay rule.

The court of appeals also concluded that the error wasn't harmless. The issue of Mr. Ibisevic's intent was the only issue at trial. This evidence bore directly on that.

So, Mr. Ibisevic is going back for another trial.

March 23, 2012

Using An AUSA's Name In A Published Opinion And The Streisand Effect

It's rare that a particular prosecutor is named in an opinion by a federal appeals court. Apparently the Department of Justice wishes it were more rare.

The Ninth Circuit issued a curious opinion last month, in United States v. Lopez-Avila.

Previously, the court of appeals had issued an opinion that was critical of a particular Assistant United States Attorney. The Department of Justice filed a motion asking that the Ninth Circuit remove the name of that prosecutor from the public opinion.

1378633_man_with_a_megaphone_1.jpgHere's the appellate court's response:

The Department of Justice has an obligation to its lawyers and to the public to prevent prosecutorial misconduct. Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first. United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993). Their job is not just to win, but to win fairly, staying within the rules. Berger, 295 U.S. at 88. That did not happen here[.]

It goes on, after noting that the appeal involved misconduct by the prosecutor in the trial court that was relatively obvious.

When a prosecutor steps over the boundaries of proper conduct and into unethical territory, the government has a duty to own up to it and to give assurances that it will not happen again. Yet, we cannot find a single hint of appreciation of the seriousness of the misconduct within the pages of the government's brief on appeal.

The Ninth Circuit then concludes,

upon initial release of this opinion, the government filed a motion requesting that we remove Albert's name and replace it with references to "the prosecutor." The motion contended that naming Albert publicly is inappropriate given that we do not yet know the outcome of any potential investigations or disciplinary proceedings. We declined to adopt the government's suggestion and denied its motion. We have noticed that the U.S. Attorney's Office in Arizona regularly makes public the names of prosecutors who do good work and win important victories. E.g., Press Release, U.S. Attorney's Office for the District of Arizona, "Northern Arizona Man Sentenced to Federal Prison for Arson," (January 31, 2012) ("The prosecution was handled by Christina J. Reid-Moore, Assistant U.S. Attorney, District of Arizona, Phoenix"), available at http://www.justice.gov/usao/az/press_releases/2012/ PR_01312012_Nez.html. If federal prosecutors receive public credit for their good works--as they should--they should not be able to hide behind the shield of anonymity when they make serious mistakes.

This is the Striesand effect - where an effort to make something not be public gets it even more attention - in action.

Perhaps the best recent example of the Streisand effect was when Dan Snyder, the owner of the Washington Redskins, sued over media coverage he disliked.

My reaction to seeing Snyder's suit was that he seems really entitled.

It's hard not to think the same thing of the Department of Justice here.

March 21, 2012

The Police Cannot Search Your Car To Kill Time While They Wait For Your Aunt To Give You A Ride

I've long thought the punishment for failing to turn off your high beams when you drive past another car at night should be much more draconian. Part of me is encouraged to see that the police of Massillon, Ohio apparently agree.

Excessive Use of High Beams

Two men were driving in Massillon, Ohio after midnight on the Fourth of July. The driver declined to dim his high beams as he drove past a car coming toward him. As it happened, the other car was a police car.

Moose.jpgThe police officer did a U turn to follow the high-beam enthusiast. He didn't pull the car over right away. Instead he just followed them.

As the officer followed the car, he thought he saw the driver and the passenger reach under their seats. The officer said that made him think they were hiding something.

In his experience, looking under the seat of a car when a person has reached under it leads to the discovery of something illegal "95 to 100" percent of the time.

Never the less, the Massillon police officer did not pull the car over. Instead, after a few blocks, the car pulled over and gestured to the officer.

The Scene In the Parking Lot of the Massillon Moose Lodge

In response, the police officer pulled into the parking lot for the Massillon Moose Lodge. The high-beam user followed into the parking lot. The driver jumped out and asked the police officer for directions to Interstate 77.

The officer asked for, and received, the driver's Ohio state ID (he didn't have a license) and told the driver to get back into the car.

As it happened, the driver didn't have a valid license. Neither did the passenger who owned the car. The passenger, Mr. McCraney, was allowed to call his aunt, who said she'd come to pick them up.

When she arrived 25 minutes later, the parking lot was empty.

Massillon's Finest

The officer had, of course, called for backup. Wikipedia says that Massillon is a town of 32,149. When Mr. McCraney called his aunt, four police cars and five officers were gathered in the parking lot of the Massillon Moose Lodge.

It probably would have been a good time to commit a crime anywhere else in Massillon.

Idle hands are the devil's playthings. Rather than stand around waiting for the aunt, the Massillon, Ohio police force decided to pull the two men out of the car.

The men stood at the back of the car, surrounded by three officers. For no clear reason, two other officers decided to search the car.

They found a gun under the passenger seat. Mr. McCraney was prosecuted in federal court in the Northern District of Ohio for being a felon in possession of a firearm.

The Search For No Real Reason

Mr. McCraney filed a motion to suppress, saying that the search violated his rights to be free of searches done for no reason other than that the cops had 25 minutes to kill until a guy's aunt shows up.

The district court agreed, and suppressed the evidence. The government, however, appealed.

In United States v. McCraney, the Sixth Circuit affirmed.

Search Incident to Arrest

The government argued that, really, these guys were under arrest, even though they hadn't been placed under arrest and the officer let Mr. McCraney call his aunt to pick him up.

The court of appeals held that, even if they were under arrest, searching the inside of a car after the people had been taken out of it is not a search incident to arrest.

A "search incident to arrest" is a search, basically for officer safety, of the body and immediately surrounding area, to make sure a person doesn't grab a weapon and hurt someone.

It used to be that if a person was taken out of a car, the police could search inside the car "incident to arrest" on the theory that anyone could be that guy from the X-men with Gumby arms who could reach back into the car.

In Arizona v. Gant, the Supreme Court severely narrowed this rule - now the search has to be of an area where a person can actually reasonably reach, without consideration of the possibility that the person being arrested has appeared in a Marvel Comic Book.

Reasonable Suspicion Because of the Reaching

The government also argued that there was reasonable suspicion to search the underside of the passenger seat of the car, because the officer saw reaching under there.

The court of appeals looked at all the circumstances - that the folks were trying to get directions, that they were cooperative and otherwise unsuspicious, and concluded that there was not reasonable articulable suspicion to search in the car.

March 19, 2012

Just Because It's A Supervised Release Hearing Doesn't Mean There Are No Rules

Anthony Doswell was having a bad run of luck.

He was on supervised release from the end of a federal sentence. Supervised release works a bit like probation for those who have been in prison - folks coming out of a federal prison have a period of years where they have to check in with a probation officer, be drug tested, and, if they mess up, sent back to prison.

1268685_washington_monument.jpgOne big way to mess up is to commit a new crime. The rub is that a person can be violated - and sent back to prison - for committing a new crime, not just for being convicted of committing a new crime.

So, it's possible for a person on supervised release to be charged with a new crime, beat the charge, then be sent to prison anyway.

It's a hard world.

Anthony Doswell was in a spot like that. He was on supervised release and had been charged with having some marijuana on his person. He also tested positive for heroin and didn't show up to mental health treatment, or to meet with his supervising probation officer. [FN1]

He and his lawyer went to court to answer the allegations. His plan was to admit that he had been using marijuana and throw himself on the mercy of the court.

At the hearing, his lawyer learned that Mr. Doswell had previously been charged with heroin distribution.

Mr. Doswell had also been to court on the charge - twice! Each time the chemist who said the heroin in question was heroin had neglected to show up. The heroin case was eventually dismissed.

Mr. Doswell and his attorney may not have had the most transparent relationship.

In any event, Mr. Doswell objected to a violation of his supervised release based on the heroin. The government went forward with the allegation, providing the district court with the charging documents for the state court heroin distribution charge, as well as the chemist's report.

The government did not call any witnesses.

The district court found that Mr. Doswell had violated his supervised release by selling heroin. As the Fourth Circuit summarized it,

Without explanation, the district court concluded that, "notwithstanding the objection," the drug analysis report was "sufficient to support the [heroin] violation alleged." Accordingly, the court found Doswell guilty of the heroin violation set forth in Supplemental Notice, a violation that the court concluded, "in itself, [wa]s sufficient for . . . a mandatory revocation [of Doswell's supervised release]." The court then sentenced Doswell to the statutory maximum, twenty-four months of imprisonment.

On appeal, the only issue the Fourth Circuit dealt with, in United States v. Doswell, was whether, under Federal Rule of Criminal Procedure 32.1(b)(2), Mr. Doswell had a right to have the witnesses against him testify.

The government argued that under a prior Fourth Circuit case, and the general principle that revocation hearings are less formal, it didn't have to have a witness there.

Mr. Doswell, instead, suggested the court of appeals look at the language of Rule 32.1(b)(2), which says that at a revocation hearing, a person has

an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear

Since the district court spent exactly no time balancing whether the interests of justice didn't require the chemist to testify against Mr. Doswell, the Fourth Circuit reversed the finding of violation and remanded.

Big congratulations to the defense lawyer on appeal, Joanna Silver! Way to ask the court to please read the law.

[FN1] - I know, they call the people who supervise folks on supervised release "Probation Officers" even though it's supervised release. I suppose "Supervised Release Officer" is too specialized a title or something.

March 18, 2012

Assistant Federal Defender Job Opening In Milwaukee

Dear Reader:

If you read this blog, you're likely interested in federal criminal defense work. If you're interested in federal criminal defense work and, like many Americans, you're looking for a job, I thought it would be helpful to pass along a job announcement.

668360_milwakee_skyline.jpgThe Executive Director of Federal Defender Services of Wisconsin, Dan Stiller, is looking for an Assistant Federal Defender. Here's a link to the announcement.

Dan has a clear and strong vision for a first-class office. As the description says, the office is "chasing greatness." Some day the Federal Defenders in Wisconsin may be one of the premier federal defender offices in the country, up there with Jon Sands' office in Arizona, the office in Miami, A.J. Kramer's office in D.C., or Jim Wyda's office in Maryland. (And, yes, I've left many excellent offices off that list). This could be a good chance to get in on the excellence early.

The position closes March 31, 2012 - so if you're interested, hurry.

If you're interested and you apply after seeing this, mention it in your cover letter -- it can't hurt your application that much.

Added Bonus - The office in Wisconsin is a community defender office. Instead of being a government agency (or a part of one) it's a nonprofit corporation that receives federal money. That means that you wouldn't be an Assistant Federal Public Defender, but, rather, an Assistant Federal Defender - arguably that's a cooler title. And, if you're a libertarian, I suppose it would be more ideologically comfortable to not be a government employee.

March 14, 2012

Why You Should Screen The People You Smoke Marijuana On A Porch With

Two guys are sitting on a porch in Memphis on a July night. They share some conversation and a little bit of marijuana.

Three and a half years later, the Sixth Circuit wrote about that night in United States v. Shields.

Kevin Shields stopped by to visit Eugene Moore on his mother's porch. Earlier that night, Mr. Shields had been seen with a handgun in his waistband by a Memphis police officer.

1110747_front_porch.jpgWhen the police saw him on the porch, they made eye contact. Mr. Shields then threw the gun into the bushes off the porch.

This is a nice move by Mr. Shields - not only does it confirm that he has the gun, it makes any Fourth Amendment argument harder later, since he likely abandoned it.

But I digress.

As Mr. Shields was being taken to the police car, he said to the officers that he forgot his wallet on the porch. The officers, obligingly, walked him back to the porch where they found the wallet. It was next to a bag that contained marijuana and cocaine residue.

Mr. Shields pled guilty to being a felon in possession of a firearm.

The sentencing guidelines for being a felon in possession of a firearm are in section 2K2.1.

Section 2K2.1(b)(6) says that a person's offense level should increase by four levels if they had the gun in order to further some other felony activity. Four levels, of course, is a pretty big bump on the sentencing table.

The government argued that Mr. Shields' offense level should be increased by four levels under 2K2.1(b)(6) because of the marijuana.

Under Tennessee law, apparently, for someone with Mr. Shields's criminal history, simple possession of marijuana is a felony.

Mr. Shields didn't agree with this. The issue went to a contested sentencing hearing.

At the hearing, the former porch buddies gave different versions of what happened that night.

Mr. Moore was a government witness. He said that he was sitting on the porch when Mr. Shields walked up with liquor, a large bottle of beer, and marijuana. Mr. Shields offered some marijuana to Mr. Moore, who testified that he preferred to abstain.

Mr. Shields, on the other hand, said that he walked up to the porch where Mr. Moore offered him some marijuana. Mr. Moore, however, was out of rolling papers, and Mr. Shields offered to share his.

Mr. Shields, unfortunately, also admitted that he had smoked marijuana in the past and that he had a problem with it.

The district court, applying a preponderance of the evidence standard, found that the marijuana was Mr. Shields'. The sentencing court said,

This is not one of those cases where [the Government] presented overwhelming evidence on it, they just presented a lot of evidence, and it seems to accumulate in such a way as to lead to the conclusion that because of the proximity, because of the timing, because of the other evidence which indicates that you did have a marijuana problem that you would have carried some marijuana with you.

It's always something to see a preponderance of the evidence standard in action.

The sentencing court assessed Mr. Shields the four-level enhancement and sentenced him to two months below the bottom of the sentencing guidelines range.

On appeal, the Sixth Circuit noticed that 2K2.1(b)(6) - the "have a gun in furtherance of another felony" provision is different than a "have a gun while committing another felony" enhancement.

The court of appeals held that there wasn't any evidence that Mr. Shields possessed the gun to help him with the marijuana smoking - he didn't use the gun to roll a joint, for example.

Because there was no connection, other than bad timing, between Mr. Shields' gun possession and the marijuana possession that the district court found, the Sixth Circuit determined that the enhancement did not apply. It sent the case back for a new sentencing hearing.

March 13, 2012

A Fifth Circuit Opinion Shows Why People Would Want to Take Every Case To Trial, Even Though It's a Really Bad Idea

The federal criminal justice system runs on pleas. If every person charged with a crime demanded that the courts give them the attention that the Constitution guarantees them, United States Attorney's Offices wouldn't be able to prosecute as many people as they do, and federal district courts would grind to a halt.

In the New York Times this week, Michelle Alexander, a law professor at Ohio State University - who wrote The New Jim Crow, arguing that our criminal justice policy is, in essence, a continuation of America's legacy of not being so awesome about issues of race - wrote a piece arguing that criminal defense lawyers should band together and insist that all our clients go to trial to crash the system.

1226064_prison_cells_2.jpgThe Michelle Alexander piece has generated all kinds of attention, from geeky to professional.

I'm not unsympathetic to this view. Mandatory minimums drive too many clients to give up their rights too easily. Federal criminal practice should be about more than pleas, cooperation, and sentencing. And I think that just about any person who has handled more than two criminal cases had fantasized about the system-wide chaos that would ensue if we organized people accused of crimes.

But, like Brian Tannenbaum says, it's never going to happen. A criminal defense lawyer has to look out for each client, in each case. We're not doing systematic reform - we're doing individual representation.

If you want to reform the system, work for the ACLU or be a law professor. If you're practicing law, you should help individual people with individual legal problems. The faults of the system are a secondary concern (which doesn't mean that you won't think about them while failing to sleep at 3 in the morning - just that your job isn't to change them, except as you need to in the course of representing your client).

The problems with our system of federal factory justice, highlighted in Professor Alexander's work, are serious ones though. And the Fifth Circuit's recent opinion in United States v. Carreon-Ibarra highlights.

Mr. Carreon-Ibarra pled guilty to a count in an indictment that charged him with using a firearm in connection with a drug trafficking offense. It was charged under 18 U.S.C. 924(c).

At the plea hearing, he was told that the charge carried a mandatory minimum of 5 years.

As it happened, the gun in question was a machinegun. So his mandatory minimum was, in fact, 30 years.

The presentence report, prepared by the Probation Office, reported that Mr. Carreon-Ibarra's mandatory minimum was 30 years.

Mr. Carreon-Ibarra's counsel objected. The lawyer objected to the presentence report, and objected to the district court at the sentencing hearing.

The judge, appreciative of the fact that Mr. Carreon-Ibarra had been told he faced only a five-year mandatory minimum at the plea hearing, told Mr. Carreon-Ibarra that he considered him subject to only a five-year mandatory minimum. The court said it had the power to give him as little as five years on this count.

The district court them imposed a forty year sentence.

The problem arose, though, when the district court issued its judgment. In the written judgment that followed the hearing, the court said that Mr. Carreon-Ibarra pled guilty to the machinegun offense, which carries a mandatory minimum sentence of thirty years.

Clearly, the district court didn't read it's own judgment in light of its statements at sentencing.

The Fifth Circuit reversed, holding that Mr. Carreon-Ibarra's plea was deficient because he wasn't accurately told what the mandatory minimum would be.

How does this happen? How does a smart judge, appointed by the President and confirmed by the Senate pay this little attention to documents that send a man to prison for forty years?

It happens because there are too many federal criminal cases that have become too routine for courts to give the attention that these cases need.

And that's why people who are going through the criminal justice system are angry.

They can feel that their cases don't get deep attention from the courts or the prosecutors. People know when they've been turned into file numbers or claims. Claims that send them to prison for massive amounts of time. People resent how little the most important case in their lives matters to the people who make decisions about them.

It makes people want to do crazy things to tear the system down.

Even though that would be a bad idea.

March 11, 2012

Why You Will Not Go To Jail For Using Comic Sans In A Pleading In Federal Court (Though Maybe You Should)

James Kimsey was not a lawyer.

But when Frederick Rizzolo was deep in a hard bit of contentious litigation, James Kimsey wanted to help out. Mr. Rizzolo's lawyers withdrew from the case. Mr. Rizzolo tried to go on without a lawyer, but his efforts were poor. One can imagine that Mr. Rizzolo felt the situation was bleak.

68920_law_education_series_5.jpgJames Kimsey came to the rescue. While not a lawyer, Mr. Kimsey had some prior legal experience - he was previously sanctioned for the unauthorized practice of law. He was also, apparently, willing to work for free.

Mr. Kimsey ghostwrote some of Mr. Rizzolo's pleadings in his civil case. He seemed to be acting a lot like a lawyer. He wrote a summary judgment motion. He cited to Erie Railroad Co. v. Thompkins. I suspect he even wore a blue suit with a red tie.

Unfortunately, Mr. Rizzolo's opposing counsel got wind of the help Mr. Kimsey was providing. He filed a "Motion to Reveal Pro Se Litigant Rick Rizzolo's Ghost Writer."

The Motion to Reveal went to a hearing. A United States Magistrate Judge determined that Mr. Kimsey was ghostwriting pleadings for Mr. Rizzolo. The Magistrate Judge referred a prosecution for criminal contempt to the United States Attorney's Office.

18 U.S.C. § 402

Mr. Kimsey was prosecuted under section 402 - the criminal contempt of court statute. Eighteen U.S.C. section 402 reads:

Any person, corporation or association willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title and shall be punished by a fine under this title or imprisonment, or both.

The government argued that Mr. Kimsey violated this, by breaking one of the standing local rules of the Court that says that only lawyers can practice law in federal court.

Mr. Kimsey asked for, and was denied, a jury trial. He was convicted. And, in United States v. Kimsey, the Ninth Circuit reversed, and dismissed the criminal contempt charges against Mr. Kimsey.

Mr. Kimsey's case was reversed for two reasons. First, he had a right to a jury trial that was not honored. Second, the Ninth Circuit held that violating a local rule does not subject a person to criminal contempt.

A Statutory Jury Right

Normally, if the most you can receive in prison is six months or less, you do not have a right to a jury trial. The constitutional right to a jury trial only kicks in after you are eligible for a sentence or more than six months.

However, Section 402 refers to 18 U.S.C. § 3691. Section 3691 grants a right to a jury trial. Thus, even though there was no constitutional jury trial right, there was a statutory jury trial right. And, Mr. Kimsey didn't get one.

So the case was remanded for that reason.

There Are Rules and Then There Are Rules

More significantly, though, the court of appeals held that a local rule is not the kind of rule that a person can be punished with criminal contempt for violating.

This was a straightforward question of statutory interpretation - does violating a "rule" mean (a) violating a local rule or a court rule (e.g., the Federal Rules of Civil Procedure) or (b) violating a rule directed at a specific person (or narrowly defined class of persons).

The district court assumed that it meant (a), as had the Ninth Circuit and Seventh Circuits earlier. Though, assuming isn't the same as deciding, so the Ninth Circuit reconsidered the question here. Moreover, the D.C. Circuit had actually decided that "rule" for these purposes means something directed at a specific person.

The court of appeals looked at what the dictionary says -- though sadly the dictionary from the time that section 402 was made law has both definitions. So, the Ninth Circuit had to turn elsewhere.

A Word Is Known By The Company It Keeps

The appellate court, implicitly following up on Judge Posner's observations about statutory interpretation and reading words in context, noted that,

although standing court rules already existed in the early twentieth century,9 and so, based on etymology alone, it would not be inconceivable that § 402's use of the term "rule" referred to them, this possibility is severely under- mined by the application of a basic canon of statutory interpretation: "The canon, noscitur a sociis, reminds us that a word is known by the company it keeps, and is invoked when a string of statutory terms raises the implication that the words grouped in a list should be given related meaning."

Noting that the string of words in section 402 is actually "any lawful writ, process, order, rule, decree, or command of any district court of the United States" and that each of these is an action directed at a person specifically - except perhaps "rule" - the court of appeals read "rule" to mean something directed at a person specifically too.

You Will Not Probably Go To Jail For Using Comic Sans

The court of appeals also reasoned that allowing a criminal contempt prosecution for violating a local rule would lead to a deliciously absurd result:

If "rule[s]" encompass local court rules, then . . . a court would be able to fine or imprison attorneys for, let's say, failing to conform to local rules specifying the width of margins, appropriate typeface, or kind of paper used for pleadings. See, e.g., D. Haw. L.R. 10.2 ("All documents presented for filing shall be on white opaque paper of good quality . . . with one inch margins . . . ."); C.D. Cal. L.R. 11-3.1.1 ("A monospaced [type]face may not contain more than 10-1/2 characters per inch."); C.D. Cal. L.R. 11.3.2. ("All documents shall be submitted on opaque, unglazed, white paper (including recycled paper) not less than 13-pound weight."). It is at least exceedingly unlikely that Congress intended to authorize convictions of criminal contempt for disobeying ministerial, generally applicable requirements forbidding low-quality paper or excessively small type.

Though I suspect some workers in some court's Clerk's offices would not see criminal sanctions for using the wrong font or paper as a bad result.

March 7, 2012

Collateral Estopel In A Criminal Case; If You Might Be A Citizen Once, You Might Be A Citizen Forever

One of the most jarring things about federal criminal practice, especially for lawyers who are well trained in civil litigation - is how many procedural rights and doctrines don't apply.

You want to move for summary judgment? No such motion exists (as a general matter, but see this post).

You want to take a deposition? You're likely out of luck. (Yes, that's right, you get more information about the other side's case in a civil case - which is only about money - than you do in a criminal case where someone might go to prison).

Yet, every now and again, a decision comes down that reminds you that in some cases - perhaps rare cases - the old familiar doctrines from law school can provide a benefit in a federal criminal case.

778488_stone_judge.jpgUnited States v. Valdiviez-Garza is one such case.

There, the Eleventh Circuit ordered the district court to dismiss an indictment because of the doctrine of collateral estoppel.

That's right - collateral estoppel. In a criminal case.

Collateral estoppel, for the one non-lawyer reader of this blog (hi Mom!), is the rule that once an issue is fully and finally resolved between any two parties, it is settled, and can't be argued again.

How does this arise in a criminal case? Here's what happened.

Mr. Valdiviez-Garcia was charged with illegal reentry. The elements of illegal reentry are that the person charged:

(1) was an alien at the time of the offense; (2) who had previously been removed or deported; (3) and had reentered the United States after removal; (4) without having received the express consent of the Attorney General.

The thing is, Mr. Valdiviez-Garza had already been tried for illegal reentry years before. In that case, he was acquitted.

Mr. Valdiviez-Garza's dad, it seems, was a United States citizen. And, under certain circumstances, if one of a person's parents is a citizen, the person is a citizen.

In the first trial, the only issue was whether Mr. Valdiviez-Garza was a citizen. His lawyer focused on only one issue in the trial - the lawyer cross-examined only one witness, and that cross dealt only with Mr. Valdiviez-Garza's citizenship.

The jury acquitted Mr. Valdiviez-Garza in that case. Because there was only one issue in the first trial, the Eleventh Circuit determined that Mr. Valdiviez-Garza was acquitted on the basis of reasonable doubt about his citizenship.

Therefore, the Eleventh Circuit held, it is finally settled that there is a reasonable doubt as to whether Mr. Valdiviez-Garza is a United States citizen. Under collateral estoppel, the United States government cannot take a position contrary to there being reasonable doubt about whether he is a citizen.

So, when, years later, Mr. Valdiviez-Garza was indicted, again, for illegal reentry, the Eleventh Circuit ordered the district court to dismiss the case, because there is reasonable doubt as to an element of the offense.

Interestingly, the Eleventh Circuit ordered the district court to dismiss the appeal on an interlocutory appeal - without a trial. As the court of appeals explained,

Because the collateral estoppel doctrine implicates the constitutional protection against double jeopardy, we have jurisdiction to review the interlocutory decision under the collateral order doctrine.

Let's hope Mr. Valdiviez-Garcia was not held in custody too long on this charge before the Eleventh Circuit ordered the indictment dismissed.

March 5, 2012

Pro Competitive Bid Rigging Is Not A Crime, Or, This Chicago Garbage Bid Doesn't Stink


A Joke:

What's the difference between a white-collar investigation and a blue-collar investigation?

In a blue-collar case, the government knows what the person has done, they just don't know who done it.

In a white-collar case, the government knows who done it, they just don't know what they've done.

[insert the sound of a rim shot]

This joke shows two things. First, the bar for lawyer humor is incredibly low. Second, in a white-collar case, once the government has indentified you as a target, they are likely to keep investigating until they find something to charge you with.

United States v. Fenzl makes the same point (the second one, about the tenacity of the Department of Justice - not the one about how bad legal jokes are).

1160677_chicago_skyline.jpgSteven Fenzl's Case

The government targeted Steven Fenzl, and his colleague Douglass Ritter. The two men ran Urban Services of America, Inc. The company bid on a contract to refurbish the garbage cans of the City of Chicago, Illinois. The company's bid was the lowest bid.

Unfortunately, the contract that the company bid on was never awarded. The folks at Urban thought that perhaps it was because there were too few bids submitted in response to the proposal. Though they weren't sure.

A bit after the company failed to win the bid, the Chicago Tribune announced that Urban was under investigation for improprieties in checks that had been issued to other contractors. Though the investigation never yielded a finding of wrongful conduct, no one told the folks at Urban that the investigation was over until months had passed.

Eventually, the City of Chicago again sought bids on a contract to refurbish their garbage cans. Urban had yet to learn that it was no longer under investigation. It was also worried that not enough other bids would come in.

Urban Services of America Organizes Other Bids

The company then started organizing other companies to also provide bids. The arrangements were, in essence, that the other companies would subcontract the work to Urban if it won, then tack on a profit margin for itself.

Not surprisingly, this did not result in these companies underbidding Urban. Since the other companies didn't really do the kind of work they were bidding on anyway - and would have had to subcontract to Urban - this was not a surprising result.

In the end, Urban bid on the contract, as did three companies that Urban encouraged to bid. Three other companies, that had nothing to do with Urban, also submitted proposals.

Urban was the lowest bid of all seven and won the contract.

The Antitrust Division Gets Interested

The United States Department of Justice's Antitrust Division has a criminal section. The prosecutors in that office launched an investigation of Urban.

Bid rigging, generally, is illegal. As the Seventh Circuit said, "bid rigging [is] a form of price fixing in which bidders agree, usually by rotating bids, to eliminate competition among the bidders."

Yet, here, this bid rigging wasn't done to eliminate competition, rather, it was to encourage the city to take the bids seriously, again, the Seventh Circuit:

at some point [the Department of Justice] realized it didn't have an antitrust case. Urban had been the low bidder and its aim in "colluding" with other potential bidders had not been to prevent them from underbidding it but merely to buy insurance against its bid's being rejected because of false accusations against Ritter and Urban; if Urban lost the bid, at least it would be able to obtain some refurbishing work as a subcontractor of the winning bidder. The bidders invited by Urban were almost certain to submit higher bids because Urban would be doing the actual work and charging for it and the bidders would be repricing Urban's work in their bids.

This is, sort of, pro-competitive bid rigging.

The Department of Justice is Not Deterred

The Department of Justice had their man (or company), so the lack of a crime wasn't going to be an obstacle to prosecution.

So the prosecutors decided to charge fraud rather than an antitrust violation. [T]he theory behind the charge of fraud for misleading the City by inflating the number of bids was never made clear at trial. No evidence was presented that the more bidders there were, the more likely Urban's bid was to be accepted and that this would result in a higher price to the City for getting its garbage carts spruced up. Had there been four bidders rather than seven, Urban would still have been the low bidder, and there is no indication that the City would have cancelled the auction on the ground that there were too few bidders.

The Seventh Circuit's later skepticism notwithstanding, the government charged the Urban principals with fraud. Mr. Ritter pled guilty. Mr. Fenzl went to trial and was convicted. He was sentenced to 16 months in prison, a fine of $40,000, and restitution of $35,302.18.

The Seventh Circuit

Judge Posner, who knows a thing or two about antitrust law, wrote for the Seventh Circuit. He was not a fan of this prosecution (Judge Posner is not getting invited to any Department of Justice parties after this opinion, or this one).

As the learned jurist wrote,

It's difficult to see what's wrongful about such a "scheme." Suppose in despair of ever doing work for the City again Urban had sold its assets to another company and told it, "You go bid on the refurbishing contract." Would anyone think such conduct improper? How different is that from what Urban planned to do in case it was denied the contract even if it was the low bidder? Misconduct in bidding involves trying to reduce rather than increase the competition among bidders.

In addition to criticizing the theory undergirding the prosecution, Judge Posner noted that the government proved it's case using the wrong witness.

A government investigator testified - not as an expert witness - that the City would have disqualified Urban's bid if it knew that it had put the other bidders up to their bids. The basis for this knowledge was opaque to Judge Posner.

Without the testimony of City employees,

it is a matter of conjecture whether the relevant employees in the Department would have awarded the contract--at a loss to the City--to a higher bidder, in order to punish Urban (for what exactly?). But instead of asking them what they would have done had they known what Urban was up to, the prosecutors asked an investigator what he thought they would have done. What the government dignifies by the term "personal knowledge"--for a lay witness is permitted to base his testimony on his personal knowledge (and on nothing else)--is the investigator's conjectures based on seven years of "training and experience," an impermissible basis for lay opinion testimony.

Mr. Fenzl was charged under two separate fraud theories in separate fraud charges. On one he was acquitted. On the other, the court of appeals remanded for a new trial.

One wonders what Mr. Ritter - who pled guilty early - thinks of this opinion.

February 28, 2012

Judge Posner On Harboring, the Dictionary, and Trusting the Government


Deanna Costello's love knew no boundaries. Literally. For years she had a romantic relationship with a man who was not in the United States lawfully. It led to a strong judicial slapdown of the Department of Justice by one of our nation's leading jurists, in United States v. Costello.

Ms. Costello's Boyfriend

Ms. Costello lived in Cahokia, Illinois, perhaps five miles from St. Louis. She lived with a man from Mexico for a year ending in July 2003. That time ended when he was arrested on a federal drug charge. He plead guilty and was sent back to Mexico after his prison sentence.

1378507_heart_shaped_flower_petal.jpgIn March of 2006, Ms. Costello picked her boyfriend up at the bus station in St. Louis. She drove him to her house, where they lived until October 2006. Sadly, he was then arrested on new drug charges, and the couple were again separated. As the court of appeals noted, he "was given a stiff prison sentence."

Ms. Costello was charged with harboring an alien. She went to a stipulated facts trial - basically a trial where she and the government agree what happened, they simply disagree about whether what happened was a crime.

She was convicted. The district court sentenced her to two years probation and a $200 fine.

The Appeal

She appealed. Judge Posner, writing for the Seventh Circuit, reversed, in an opinion as critical of the government as any I've read in a very long time.

Judge Posner concluded, basically, that harboring an alien does not include having a person in the country unlawfully as a live-in boyfriend.

Judge Posner started by noting that "[t]here is no evidence that the defendant concealed
her boyfriend or shielded him from detection" and that, indeed, since he was arrested at her house several times, it's more likely that law enforcement would find him if he was there than, say, at a relative's house.

Or, alternatively,

The defendant in the present case was not trying to encourage or protect or secrete illegal aliens. There is no suggestion that she prefers illegal aliens as boyfriends to legal aliens or citizens. She had a boyfriend who happened to be (as she knew) an illegal alien, and he lived with her for a time.

A Car Ride Is Not Harboring

The district court made much of Ms. Costello having driven the man from the bus station to her house. Judge Posner wasn't impressed with this fact, noting that

the distance was so short--about six miles--that in a pinch he could have walked. And had he wanted to take public transportation he could have used the St. Louis metro transit system; the price of his ticket would have been $2.75. (That is the price today; it probably was lower in 2006.) There is nothing to suggest that the two of them had prearranged the pickup, or that, had she not picked him up, he would have returned to Mexico. (We don't know how long he had been in the United States.)

A car ride is not harboring an alien.

Judge Posner spent considerable time considering the meaning of "harboring" in the statute criminalizing harboring an alien. Judge Posner considered the way "harboring" is used, and the breadth of the anti-harboring statute if "harboring" covers Ms. Costello's conduct.

The Government's View of Harboring Is Absurd

Judge Posner was concerned that the government's view of what counts as harboring sweeps lots and lots of conduct into the criminal law. In perhaps the most awkward - yet at the same time still awesome - sentence he's ever written, Judge Posner asks:

is it likely that Congress intended that parents whose child invites an immigrant classmate who, as they know, is illegally in the country to a sleepover might be branded as criminals even if he didn't accept the invitation, since the statute criminalizes attempts?

The court of appeals also points out the absurd consequences of the government's statutory interpretation,

an illegal alien becomes a criminal by having a wife, also an illegal alien, living with him in the United States; if they have children, born abroad and hence illegal aliens also, living with them, then each parent has several counts of criminal harboring, on the government's interpretation of the statute.

Judge Posner Doesn't Trust The Government

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

Down with the Dictionary

In perhaps my favorite section of the opinion (though there are many) Judge Posner criticizes the government's use of the dictionary -

"Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings A sign in a park that says "Keep off the grass" is not properly interpreted to forbid the grounds crew to cut the grass.

To try to learn how "harboring" is normally used, Judge Posner turned to Google:

a search based on the supposition that the number of hits per term is a rough index of the frequency of its use--reveals the following:

"harboring fugitives": 50,800 hits
"harboring enemies": 4,730 hits
"harboring refugees": 4,820 hits
"harboring victims": 114 hits
"harboring flood victims": 0 hits
"harboring victims of disasters": 0 hits
"harboring victims of persecution": 0 hits
"harboring guests": 184 hits
"harboring friends": 256 hits (but some involve
harboring Quakers--"Friends," viewed in
colonial New England as dangerous heretics)
"harboring Quakers": 3,870 hits
"harboring Jews": 19,100 hits

It is apparent from these results that "harboring," as the word is actually used, has a connotation--which "sheltering," and a fortiori "giving a person a place to stay"--does not, of deliberately safeguarding members of a specified group from the authorities, whether
through concealment, movement to a safe location, or physical protection.


Because Ms. Costello was not keeping her boyfriend from the authorities - rather she was just keeping him to herself - she was not harboring. She was merely entertaining.

And entertaining an alien is not against the law.