December 1, 2011

The 2011 ABA Journal Blawg 100



11Blawg100_VoteBlogSmallRed.jpgWow, this blog is one of the ABA Journal's 100 law blogs (or "blawgs") on the 2011 ABA Journal Blawg 100!

Thanks very much to the ABA Journal for the nod!

Here's a quote from the editor of the ABA Journal about the Blawg 100:

"Blogging has become an important, even vital, source of information, education, entertainment and inspiration in the legal community. Whether written by practicing lawyers, law students, judges or law professors, blawgs are becoming more bold, more sophisticated and more integrated into the everyday experience of the profession," said Allen Pusey, editor and publisher of the ABA Journal. "And choosing just 100 of the best from our directory of 3,500 legal blogs is becoming an increasingly daunting task."

As in years past, they're taking votes for best blog in a number of categories. If you'd like, you can vote for this blog here, or by clicking the big shiny picture to the left.

Unsurprisingly, you will find this blog nominated in the "Criminal Justice" category.

December 1, 2011

The Sixth Circuit Gives The Sixth Amendment's Speedy Trial Right Teeth


It has been a good year for defendants and the Interstate Agreement on Detainers.

A few months ago, the First Circuit held that the government cannot request a writ from a district court to bring a person in state custody to federal custody if they have already requested the person's transfer under the Interstate Agreement on Detainers - after the governor of the state told them that he was denying the federal request.

1328506_hourglass_.jpgNow, the Sixth Circuit* orders that an indictment be dismissed with prejudice under the Sixth Amendment's Speedy Trial guarantee because the government botched a request under the Interstate Agreement on Detainers. The case is United States v. Ferreira.

Mr. Ferreira was detained in a state institution in Bartow County, Georgia on September 13, 2005. That very same day he was indicted in federal court in Tennessee for conspiracy to distribute methamphetamine.

The federal prosecutor asked the district court for a writ directing Mr. Ferreira to be brought to federal court on October 19.

On October 12, the government brought a superseding indictment against Mr. Ferreira and, again, requested a writ for his appearance on October 21. On October 21, the district court granted the requested writ. (it isn't clear what happened with the October 12 writ request).

Though, earlier, the U.S. Marshals service told the U.S. Attorney's Office that Mr. Ferreira had been moved to facilities in Cobb County, Georgia ("Low on taxes, Big on business"). The U.S. Attorney's Office "misplaced" this notification. The writ was directed to Bartow County.

Though the opinion doesn't say it, one can presume that Bartow County did just about exactly nothing when given a writ for a person who was not in their custody.

The U.S. Marshals service lodged detainers on Mr. Ferreira.

Time passed.

Two years later, on September 6, 2007, Mr. Ferreira filed a motion for appointment of counsel and asked for a Speedy Trial.

More time passed.

In July 2008, Mr. Ferreira filed, on his own, a motion to dismiss the indictment for speedy trial violations.**

Later that month, the U.S. Attorney's Office filed another request for a writ to have him brought to federal court. This one was successful - he was brought, received a lawyer, and his lawyer moved to dismiss the indictment. The government conceded that it did not comply with the Interstate Agreement on Detainers.

Happily, the district court granted the motion to dismiss. Unhappily for Mr. Ferreira, it did so without prejudice - meaning he could be reindicted.

He was, and pled guilty with the ability to raise the Speedy Trial issues.

The Sixth Circuit found that Mr. Ferreira's constitutional Speedy Trial rights were violated. Some of the reasons caused no trouble for the court - the court of appeals found that he clearly wanted a speedy trial, the government's conduct in delaying when he came into federal court was the result of gross negligence, and the delay was meaningful.

The only real question was whether Mr. Ferreira was prejudiced. Here, the court of appeals found that his ability to develop a defense was compromised without him having to articulate a specific way in which that ability suffered.

The court held that:

He argues on appeal, as he did in the district court, that the passage of time generally impaired his defense by causing the evidence to go stale. The Sixth Circuit has recognized that "extreme" delays may, on their own, "give rise to a strong presumption of evidentiary . . . "When a defendant is unable to articulate the harm caused by delay, the reason for the delay . . . will be used to determine whether the defendant was presumptively prejudiced." United States v. Mundt, 29 F.3d 233, 236 (6th Cir. 1994). Where the delay has been caused by negligence, "our toleration of such negligence varies inversely with its protractedness." Doggett, 505 U.S. at 657.

Thus, even though Mr. Ferreira was unable to point to a particular thing that would have been better for his defense if he'd been brought into federal court sooner, because the delay was caused by the government and was lengthy, he didn't have to.

* The only Circuit without an RSS feed for its opinions.

** A detainer can seriously mess someone in custody up. They lose the right to many privileges and programs in custody, including an ability to get work release or even early release. Folks in prison have a many legitimate reasons to want to get out from under a detainer.

November 29, 2011

Two Ways To Think About Punishment


The Wrong Way To Think About Punishment

When I meet people at a cocktail party, or talk to kids of elementary-school age, and they learn I'm a federal criminal defense lawyer, I'm often asked something like, "How much time do you get for bank robbery?" or, "What's the punishment for mortgage fraud?"

The assumption is that there is a menu of punishments for crimes - if you do X, you get Y.

127450_the_stocks.jpgThere is a version of this that is a bit more fine grained. It isn't a question of whether you commit mortgage fraud, but of how much money you take from the fraud. If you do X, with Y harm, you get Z.

Some bank robberies are worse than others. "What's the punishment for committing one of the bad ones?" the guy at the cocktail party may ask.

Looking at the federal sentencing guidelines, you can see the fullest expression of this more refined view. The guidelines are a loving catalog of how bad each crime is, considering each feature and sub-feature of the criminal conduct. And there's a chart at the end of the book that will tell you how much time you get for each.

This is, I think, the wrong way to think about punishment.

The Right Way To Think About Punishment

Happily, the Third Circuit recently explained the right way to think about punishment (the quotations are from the Supreme Court's recent opinion in Pepper) in United States v. Salinas-Cortez:

Appropriate sentences can only be imposed when sentencing courts "consider the widest possible breadth of information about a defendant." Id. at 1240. It is only then that we can "ensure[] that the punishment will suit not merely the offense but the individual defendant." Id. As we have previously explained, the now advisory Guideline range is but one of many factors that must be considered if a court is to properly impose a sentence that is tailored to the offender rather than one that focuses only on the offense.

It is remarkably difficult to get a federal prosecutor to ask for a sentence below the federal sentencing guidelines. Some offices have a blanket policy against such requests. Others simply don't do them. The effect is that when a person is punished, his crime overshadows who he is as a person.

(For a nice discussion of the role prosecutors play in this, see this piece at Main Justice from Mary Price at Families Against Mandatory Minimums.)

The Third Circuit explained,

It is only by ensuring that the individual circumstances of the defendant are not obliterated by the offense that an individual's potential to successfully rejoin society is maximized and the interest of public safety advanced. Thus, "[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue." Koon v. United States, 518 U.S. 81, 113 (1996). This bedrock principle predates enactment of the Guidelines.

It's a beautiful sentiment in Koon, that every criminal case is a reflection of our shared humanity and the ways in which humans can falter morally.

It's also a view rejected by the sentencing guidelines. Chapter 5H. Chapter 5H starts with a discussion of how much of what matters to a person is either a prohibited characteristic or not ordinarily relevant to sentencing.

Admittedly, Congress has required that the sentencing guidelines take this view (see 28 U.S.C. 994(d) and (d)). Still, it's wholly inconsistent with the view the Supreme Court expressed in Koon and reaffirmed in Pepper, that sentencing should rely, fundamentally, on a consideration of who the person is who committed the offense.

Mr. Salinas-Cortez

Mr. Salinas-Cortez was sentenced to 156 months in a federal prison after he was convicted of playing a role in a cocaine distribution conspiracy. He appealed, arguing that the district court did not adequately consider his argument that he was a minor player in the conspiracy.

The Third Circuit remanded the case for the district court to more fully consider Mr. Salinas-Cortez's argument that he was a minor player, and should receive a lower sentencing guidelines range under U.S.S.G. § 3B1.2.

The district court, on remand, considered Mr. Salinas-Cortez's argument, then rejected it. Mr. Salinas-Cortez argued that he had made strides toward rehabilitating himself. The district court did not believe that it had the authority to consider Mr. Salinas-Cortez's work to make himself a better person. The court imposed, again, a sentence of 156 months.

A week later, the Supreme Court decided Pepper, which holds that a district court can and should consider rehabilitation when imposing a sentence after remand.

The Third Circuit, therefore, remanded for the district court to resentence Mr. Salinas-Cortez in light of his rehabilitation after his offense.

November 22, 2011

Change The Seventh Circuit, If Not The Department of Justice, Can Believe In


What's the point of prosecuting crime? What's the point of putting people in prison?

Surely, in any well-functioning society - let alone any well-functioning democracy - there are a number of good reasons for prosecuting crime. There are also some that are not as obviously good.

Prosecuting crime prevents the people who commit crimes from being in a position to commit further crimes. Specific deterrence - deterring the specific person - makes sense as a function of sentencing.

Prosecuting people lets other people who are considering committing a crime know that if they are caught they will go to prison. If people fear prison, they may act in a way to avoid it, which means there may be less crime.

Prosecuting crime provides a sense to victims of a crime that what happened to them is recognized as wrong. There's likely some value to society to having moral evaluations have force.

1365220_abacus.jpgAt the same time, each prosecution and conviction also creates a stat for the law enforcement agents, law enforcement agencies, and prosecutors involved. They can collect these stats and show them to their bosses, or to Congress. The IRS's criminal agents had X number of convictions per agent against the FBI's Y per agent - perhaps the IRS is a more effective law enforcement agency.

Stat based evaluations do, however, make it awfully hard to walk away from a case once labor has been invested in it.

Convictions also let prosecutors put out press releases, telling our good citizens that work is being done (and who is doing the work). Especially if the press release doesn't reveal any reasons not to bring a case - like that it fails to serve many of the other ends of prosecution - the community will celebrate the prosecutor('s efforts).

I invite you to think about these reasons for prosecuting crime when you think about the Seventh Circuit's recent case of United States v. Robertson.

Meet The Robertsons

Henry and Elizabeth Robertson were like many other couples. She worked as a pediatric nurse. He worked as a cable installer.

Many couples have hobbies that they enjoy for a time, then stop. I recall my wife and I went through a period where we played Mancala relentlessly. It lasted perhaps two years. Then we set the game aside.

The Robertsons didn't have Mancala - instead, for a period of time in the 1990's, they had a real estate company in Chicago. Using that company, the Robertsons defrauded a number of lenders out of $700,000. Eventually, the company collapsed, the Robertsons went bankrupt, and life moved on.

The weren't charged with a crime at that point. Elizabeth continued working as a pediatric nurse. Henry kept installing cable television. The coached their kids soccer teams. Henry was elected block president to help keep their neighborhood crime free. Two of their kids went to college. One went into the military.

The Skies Darken

One day before the ten-year statute of limitations on bank fraud ran, the Robertsons were charged with bank and wire fraud for the real estate fraud.

They pled guilty.

The Sentencing Hearing

The Robertsons argued that the district court should consider and give more weight to the Robertsons conduct after the mortgage scam ended. They had disavowed their prior way of life. They gave back to others and to their community. They were, in many meaningful ways, very different people than when they had originally been sentenced.

The government even generously acknowledged that,

"over a 'relatively significant amount of time,' the Robertsons had 'demonstrate[d] to the Court, to society, that they can stay out of trouble.'

The sentencing judge didn't find this conversation interesting, apparently. He talked about the Robertsons' lack of criminal history, then he sentenced Henry Robertson to 63 months in prison - just over 5 years. He sentenced Elizabeth Robertson to 41 months - or three and a half years.

The Seventh Circuit Reverses

The Seventh Circuit did not approve of how the district court approached the Robertsons' rehabilitation.

First, the court of appeals noted that how a person lives his life after a crime is committed is incredibly important to what kind of sentence he should receive, particularly under Gall and Pepper, recent Supreme Court decisions:

The power of evidence of self-rehabilitation was evident in Gall, where the Supreme Court noted that it was reasonable for the district court to attach "great weight" to a defendant's decision to change his life and withdraw from a drug distribution conspiracy: "Compared to a case where the offender's rehabilitation occurred after he was charged with a crime, the District Court here had greater justification for believing [the defendant's] turnaround was genuine, as distinct from a transparent attempt to build a mitigation case." 552 U.S. at 57. Such self-motivated rehabilitation "lends strong support to the conclusion that imprisonment [is] not necessary to deter [a defendant] from engaging in future criminal conduct or to protect the public from his future criminal acts." Id. at 59.

The court of appeals faulted the district court for not meaningfully discussing these rehabilitative efforts. As the court held,

Substantial and reliable evidence of genuine rehabilitation presents a non-frivolous argument for imposing a sentence below the Guideline range. See Pepper, 131 S. Ct. at 1235; Gall, 552 U.S. at 57. Such arguments must be properly addressed and weighed by the sentencing court. A sentencing court's consideration of a defendant's non-frivolous arguments in favor of mitigation certainly may be brief, but it must also be meaningful. As we explained in Cunningham: "Whenever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise." 429 F.3d at 679. Here, we cannot determine whether the sentencing judge abused his discretion by, for example, overemphasizing the seriousness of the Robertsons' offense or Henry's criminal history or underemphasizing their rehabilitation in balancing the § 3553(a) factors, because it is not apparent from the sentencing transcript that such a balancing took place. Accordingly, we vacate and remand for resentencing.

It's good that this case is going back for resentencing. I wonder, though, why the case was brought in the first place.

November 15, 2011

Defendants Win A Fourth Fourth Circuit Fourth Amendment Case In Four Months


The Fourth Circuit continues in its celebration of the Fourth Amendment. In the past few months, the Fourth Circuit has been kind to criminal defendants who have been searched by law enforcement without a warrant.

As the Fourth Circuit itself noted in yesterday's case of United States v Powell,

Earlier this year, in United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011), we noted "our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity." Twice in the past few months, we reiterated this concern. See United States v. Massenburg, 654 F.3d 480, 482 (4th Cir. 2011); United States v. Digiovanni, 650 F.3d 498, 512 (4th Cir. 2011). In all three cases, we held that the Government failed to meet its minimal burden of articulating facts sufficient to support a finding of reasonable suspicion.

If three new cases isn't enough to call it a revolution, maybe the fourth case is. (For prior discussion of these cases on this blog see here and here).

A Buick Is Pulled Over

Obie Powell was riding in a Buick - and eating a fish sandwich - in Seat Pleasant, Maryland. The Buick was pulled over. The driver of the Buick did not have a valid driver's license. While the drivers' license of the driver was being checked by one officer, another officer made conversation with Mr. Powell in the Buick. As the court of appeals noted,

The topics of this conversation included their mutual appreciation of fish sandwiches (which Powell was eating) and music (which was audible in the Buick).

fish sandwich.jpgWhen the driver's drivers' license came back as suspended, an officer asked if anyone in the car had a valid drivers' license.* Mr. Powell volunteered his.

Mr. Powell's Drivers' License

When Mr. Powell's license was being run, it was determined that both his license was suspended and that he had some prior criminal history. The police database flagged him as having "caution data" as a result.

As the officer explained in the district court,

"It's just a prior. It doesn't mean that they [sic] up to the same activity, but at which time you still have to take that into consideration, that they may still be armed or may still be conducting the same business." [Moreover] he "had no way of knowing whether that was yesterday's news or 15 years ago news," and "[n]o way of knowing whether that was a conviction or an exoneration."

Mr. Powell Is Frisked

Based on Mr. Powell's "false statement" (the offering of the driver's license that was suspended in response to a request for a valid driver's license) and the caution data, Mr. Powell was taken from the car and frisked.

During the patdown, he became nervous and tried to run. The police then searched his backpack, which was still in the car. In the backpack, they found a gun and some crack.

The District Court Is Unkind To Mr. Powell

Mr. Powell filed a motion to suppress, then, after losing it, went to trial. At trial, as they say, he came in second.

The Fourth Circuit's Decision

The Fourth Circuit found that there was not a sufficient basis for the police to think that Mr. Powell was dangerous to justify their patdown of him. The only two factors they had were his false statement and the deeply ambiguous caution data.

As the court of appeals explained,

Combining these factors and viewing them objectively in light of the other circumstances of this case does not aid the Government's position. We have already detailed the overall context of the traffic stop, which strongly militates against a finding of reasonable suspicion that Powell was armed and dangerous. Given the glaring weakness of the factors articulated by the Government, we are convinced that a reasonably prudent officer in these circumstances would not be warranted in the suspicion that Powell was armed and dangerous on the night of the traffic stop. Accordingly, the patdown was not permissible under the Fourth Amendment, and the district court should have suppressed the evidence that was seized during the traffic stop.

The case, accordingly, was vacated and remanded.

Concluding Thoughts

Three things about this strike out to me.

First, Obie Powell was released from the Bureau of Prisons custody last summer after having completed his sentence. I suppose he's happy to avoid part of his term of supervised release, but it's a pretty visceral case of justice delayed being justice denied.

Perhaps he'll be happy, at least, to be able to tell potential employers that he shouldn't have been in prison during that time?

Second, the Fourth Circuit is really unkind to the government in this case. Check out footnotes 3, 4, and 9 in the opinion. That's the kind of heat you expect this court to send to a defense lawyer.

Finally, the case was argued and briefed by the Federal Defender for Wisconsin. What magnanimity that Wisconsin is willing to export federal criminal defense lawyers to the Fourth Circuit to handle cases!


* Or so found the district court. Mr. Powell argued that this finding was not supported by the evidence - instead the officer asked only for a drivers' license. It matters for the argument - if handing over the drivers license was a false statement (because it was tantamount to saying "this drivers' license is valid") then that can add to the totality of the circumstances as to whether Mr. Powell was dangerous. Because, of course, people with suspended licenses, who willingly offer them up to the police, are known to have weapons on their person.

November 8, 2011

The Ninth Circuit Sends A Memo To Prosecutors About Closing Arguments


It's bad-government-conduct-in-a-drug-border-crossing-case-from-the-Ninth-Circuit week here at the Federal Criminal Appeals blog. Yesterday, we blogged about the government's argument that psychiatrists are qualified to read law enforcement records.

Today, we deal with the Ninth Circuit's opinion in United States v. Sanchez.

cohdra100_0634.JPGMr. Sanchez crossed the border from Mexico with 64 pounds of cocaine in his car, a 2002 Passat. A customs officer, suspicious of the car's German practicality, waived Mr. Sanchez to secondary inspection. A drug dog alerted to the car. The cocaine was found.

Mr. Sanchez was questioned by Customs agents. Mr. Sanchez said that he was afraid of the people who gave him the drugs to carry across the border. Mr. Sanchez asked the agent to help him because his family was in Mexico. The agent asked Mr. Sanchez for help finding the people who gave him the drugs. Mr. Sanchez asked if he could call his family. The agent allowed him to try to call, but the call did not go through.

Mr. Sanchez was indicted for importing and possessing cocaine.

At trial, Mr. Sanchez argued that he was worried his family would be hurt if he didn't transport the drugs. He testified in his defense, and explained that he is a U.S. citizen who lived with his wife and children in Mexico. He was looking for work as a carpenter, when drug traffickers approached him. He refused.

The drug traffickers came back to him. They explained that they thought he would be a particularly effective courier since he was a U.S. citizen. They became more threatening. Mr. Sanchez explained that he was afraid that they would hurt his family. Finally, reluctantly, he agreed.

The government made its closing argument. Mr. Sanchez's lawyer then made their closing argument. Sanchez's lawyer argued that Mr. Sanchez was forced to import the drugs - that he was under duress when he agreed to take the drugs into the United States. For that reason, his lawyer argued, Mr. Sanchez should not be convicted of importing the cocaine.

The prosecutor gave his rebuttal argument.* Mocking Mr. Sanchez, he argued,

[W]hy don't we send a memo to all drug traffickers, to all persons south of the border and in Imperial County and in California--why not our nation while we're at it. Send a memo to them and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it. Because even if they don't say it at primary and secondary, they'll get away with it if they just say their family was threatened. Because they don't trust Mexican police, and they don't think that the U.S. authorities can help them. Why don't we do that?

The implication, in case it isn't clear, is that we should not really send a memo to drug traffickers, and that to acquit Mr. Sanchez was tantamount to drafting such a memorandum.

Mr. Sanchez's lawyer did not object to the prosecutor's "send a memo" argument. Until the appeal.

The law is clear that a prosecutor cannot argue that a person should be convicted to prevent larger societal ills, or to deter future lawlessness, or to take a stand for community values. A federal criminal trial is supposed to be about whether the person on trial committed the crime charged - not whether society is on a downward spiral.

The government argued to the Ninth Circuit that "send a memo" is just a fancy way to argue that Mr. Sanchez's position was unreasonable (to parrot Fancy Nancy).

The Ninth Circuit thought that there are less fancy and problematic ways of making that point, and that a government lawyer has an obligation to avoid making illegal arguments in closing.

Even though Mr. Sanchez's lawyer failed to object, the Ninth Circuit found the "send a memo" argument so out of bounds that it vacated the conviction and remanded. That's a fancy way of saying Mr. Sanchez gets a new trial.

* Yes, in a federal criminal case, the prosecutor gets the first and the last word.

November 7, 2011

The Government Can't Use An Expert To Introduce Prior Law Enforcement Contacts At Trial, According to the Ninth Circuit


Sometimes, a case comes along, and you wonder if the government is even trying to be fair.

Brad Santini drove from Mexico into California. He had 28 kilograms of marijuana hidden in his car. It was found. He was charged and went to trial.

At trial, Mr. Santini's lawyers argued that he may have been tricked into driving the car across the border after someone else hid the marijuana in it without his knowledge.

258000_ski_sign.jpgTo buttress this argument, Mr. Santini's counsel presented evidence that Mr. Santini had suffered a traumatic brain injury three years before his ill-fated border crossing. The defense called a clinical psychologist to testify as an expert that Mr. Santini had "permanent social defects" and that his kind of brain injury can leave people with difficulty with "social perception of other people."

Because Mr. Santini had these permanent social defects, he was easier to trick, the defense argued.

The government also called a mental health professional - a psychiatrist named Dr. Kalish. Dr. Kalish's testing consisted, apparently, of a criminal background check. You know, the kind they routinely teach psychiatrists to do during a residency.

Dr. Kalish reviewed Mr. Santini's rap sheet. He noticed that Mr. Santini had "extensive law enforcement contacts" before his injury in 2005. Because of that, the government psychiatrist concluded, Mr. Santini didn't change after 2005 because after 2005 he had the regrettable border crossing. So, because there were law enforcement contacts before the injury and after the injury, the injury didn't affect his social perceptions.

As a matter of clear thinking this is suspect - surely not everything changes in a person after a brain injury. Mr. Santini may have been a Baltimore Ravens fan before his injury and after his injury as well, but it doesn't mean that the injury didn't have an effect on him. One would think, instead, that a psychiatrist would do some kind of mental health or function evaluation and base his conclusion on that.

In any event, the government was allowed to use its expert to introduce this testimony about Mr. Santini's "extensive prior law enforcement contacts." Mr. Santini was convicted at trial.

In United States v. Santini, the Ninth Circuit reversed, based solely on the decision to let the jury hear about Dr. Kalish's testimony about Mr. Santini's prior law enforcement contacts.

The court of appeals noted that this evidence was highly prejudicial and way outside of a psychiatrist's area of expertise. The testimony was based, not on convictions, but on "contacts." As the court of appeals noted,

For the reasons outlined above, the rap sheet was not sufficient to form the basis of Dr. Kalish's opinion that Santini had engaged in "similar" criminal behavior prior to his brain injury. An expert in one field (Dr. Kalish was a psychiatrist) cannot express an opinion relying on data that requires expertise in another field (here, a rap sheet that would require interpretation by an expert in law enforcement record-keeping).

The evidence was not admissible under Rule 404(b). It was prejudicial, so barred by Rule 403. And it was outside of Dr. Kalish's expertise, so not allowed under Rule 702.

Because the government cannot use an expert to introduce any evidence that smears a defendant whenever it can find an expert to articulate a questionable theory of quasi-scientific relevance, the Ninth Circuit vacated Mr. Santini's conviction and remanded the case for a new trial.

November 6, 2011

Cuba, Baseball, Immigration Policy, and Crime


Cuba is known for exporting many things, among them cigars, rum, and rumors of Fidel Castro's death.

The Eleventh Circuit's opinion in United States v. Dominguez deals with two of Cuba's most beloved exports: baseball players and asylum seekers.

Wet Foot/Dry Foot

First, a bit of background. As an expression of a reasoned and principled immigration policy, the official position of the United States has been that if someone is trying to leave Cuba and come to the United States, whether or not they are welcome depends on whether they are able to physically make it to U.S. soil.

If a person fleeing Cuba walks up out of the surf onto a United States beach, they are eligible to stay in the country. If the person leaving Cuba is intercepted by the Coast Guard, or Immigration and Customs Enforcement, in the water, they are not allowed to stay. This is called the "Wet Foot/Dry Foot" policy.

This policy has always struck me as the application of the Calvinist idea that the best measure of divine approval of a person is his or her wordly success to immigration policy - we can tell whether you're worth keeping in the United States by looking at whether you were able to make it here. Sensible or not, this is our country's policy. Perhaps we just prefer people who don't require towels.

Gustav Dominguez

Gustavo Dominguez knew this policy. Mr. Dominguez was a professional sports agent who worked with professional baseball players.

baseball in grass.jpgCompetition for baseball talent is tough. Mr. Dominguez was looking for a new way to serve potential clients.

As a result, he worked with another man - Mr. Medina, who had a career in smuggling - to bring five baseball players to the United States from Cuba by boat. One the first try, the Coast Guard shot out the engine of their boat. The players went back to Cuba.

On the second try, the baseball players made it to the Florida Keys. They arrived on dry land in the United States and were dry foot people for purposes of our government's Wet Foot/Dry Foot policy. The players then traveled to California, where they met an immigration lawyer and played baseball for talent scouts.

Sadly, though three of the players signed minor league contracts, none wound up in the Major Leagues.

Mr. Medina

As the court of appeals opinion describes it,

Medina has lived a life of crime; he has numerous prior convictions for drug trafficking, smuggling, insurance fraud, and money laundering.
As is so often the case, Mr. Medina found himself on the wrong side of a federal investigation. To reduce his time in prison, he shared with federal prosecutors the work he had done with Mr. Dominguez to bring these players to the United States.

The Charges

Mr. Dominguez was charged with smuggling the baseball players into the country, transporting them to avoid immigration officials, and harboring them to avoid detection by the officials.

He went to trial and was convicted of the smuggling, transporting, and harboring crimes under 8 U.S.C. § 1324.

Smuggling

Mr. Dominguez argued that because the U.S. Wet Foot/Dry Foot policy meant that the players would be allowed to stay, he could not be found guilty of smuggling them into the country contrary to immigration law.

The court of appeals disagreed. The court noted that after an amendment, the portion of 8 U.S.C. § 1324 that prohibits smuggling a person into the country,

Section 1324(a)(2) now punishes any person who knowingly brings to the United States an alien while knowing or recklessly disregarding the fact that the alien has not received "prior official authorization to come to, enter, or reside in the United States." The statute explicitly states the offense occurs "regardless of any official action which may later be taken with respect to such alien." 8 U.S.C. § 1324(a)(2).
Thus, as the court of appeals held, the immigration status that matters is not the person's immigration status eventually - even if that status is inevitable - but rather the person's immigration status at the time he or she is brought into the country.

For that reason, the Wet Foot/Dry Foot policy does not allow a person in the United States to, as it were, help dry the feet of someone coming from Cuba. If you're going to make it here, you've got to make it here without help.

Harboring and Transporting

Mr. Dominguez, though, fared much better on his harboring and transporting charges.

Because he brought the players to an immigration lawyer quickly and had them openly auditioning with baseball talent scouts, the court of appeals thought that he simply could not be thought to be secretly transporting or harboring these men from immigration officials.

As the appellate court noted,


the players lived freely and openly. They played baseball, went out with friends, ate at restaurants, and watched professional baseball games. On November 12, 2004, the players were "showcased" in front of scouts from almost every Major League team.
Based on this evidence, a reasonable jury could not find beyond a reasonable
doubt that Dominguez transported the Cuban players from Miami to Los Angeles in order to further their illegal status.

Mr. Dominguez's convictions for transporting and harboring the baseball players were reversed and the case was sent back for resentencing.

November 2, 2011

The Fourth Circuit Makes Testifying At Trial In One's Own Defense Ever So Slightly Less Of A Roll of The Dice


One of the trickiest problems in a criminal trial, in federal court or any other court, is determining if the person accused of a crime should testify.

On one hand, the jurors instinctively want to hear what the person has to say. They're instructed not to hold it against him if he doesn't testify, but, as a matter of human psychology, people want the guy who just sat and listened to others say bad things about him to say something back.

Dice.jpgAnd, of course, the person on trial may have something useful to say in his own defense.

On the other hand, if the person has a criminal record, by testifying the government can often introduce that criminal history to the jury - if it wasn't already presented.

Worse, in federal court, a person who testifies and is convicted runs the risk of being assessed a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1.

Doesn't that violate a person's right to testify in their own defense? you may wonder. As it happens, the Supreme Court heard an argument to that effect - and rejected it - in United States v. Dunnigan.

The Court acknowledged that in prior precedents

we indicated that the ordinary task of trial courts is to sift true from false testimony, so the problem caused by simple perjury was not so much an obstruction of justice as an expected part of its administration

Nonetheless, because section 3C1.1 does not apply to every defendant who testifies and is convicted, the Supreme Court held that section 3C1.1 passes constitutional muster and does not unduly infringe on a person's right to testify in his defense.

The obstruction enhancement was at issue in the Fourth Circuit's opinion in United States v. Perez.

In Perez, the person on trial testified in his own defense. He was convicted. At sentencing, the district court determined that the two-level bump under 3C1.1 applied because:

[T]he fact remains that the jury decided this matter unfavorably toward Mr. Perez. . . . the Court agrees that the government witnesses were more credible, from the Court's perspective, than was Mr. Perez . . . The Court believes that the jury reasonably accepted testimony of the government witnesses, rejected that of Mr. Perez and the Court believes that Mr. Perez's testimony at trial was not credible and constituted obstruction of justice.

The Fourth Circuit used Perez as an opportunity to discuss what a sentencing court has to find in order to impose an adjustment under 3C1.1. Mindful that the Supreme Court requires that the enhancement not apply in every case where a person testified and was convicted, the Fourth Circuit clarified that 3C1.1 only applies when the person on trial:

"(1) gave false testimony; (2) concerning a material matter; (3) with willful intent to deceive"

The Fourth Circuit, though, seemed troubled by how easy it can be for a sentencing court to impose this enhancement. For that reason, the Fourth Circuit now requires that a district court

must provide a finding that clearly establishes each of the three elements. With respect to willfulness, for example, it would, in the usual case, be enough for the court to say, "The defendant knew that his testimony was false when he gave it," but it could not simply assert, "The third element is satisfied." While some may suggest this is little more than an empty formality, we believe it serves a vital purpose.

Because the district court in Perez did not do this factfinding, the court of appeals reversed and remanded for a new sentencing hearing.

November 1, 2011

The Fourth Circuit Sends A Case Back; or Why You Can't Trust A Probable Cause Affidavit


Paresh Patel is probably the smartest lawyer I know when it comes to criminal history calculations in the Fourth Circuit. So I was particularly tickled to see his win in United States v. Donnell.

How a person's criminal history is calculated when a federal judge decides what sentence the person should get is, of course, incredibly important to what the sentence will be. (See this post, or this one, or this one.)

If a person's prior convictions are for crimes of violence, that's particularly true. In many cases with crimes of violence, the guidelines look twice to a person's criminal history - once when the criminal history score is calculated and once when the offense level is determined.

For career offenders under U.S.S.G. § 4A2.1, having two prior convictions for a crime of violence can dramatically increase the sentencing guidelines. The illegal reentry guidelines also go up if a person has a prior conviction for a violent crime, under § 2L1.2.

gun.jpgAnd, for people who are caught with a gun after a felony conviction, criminal history can have a dramatic effect on their sentence. If a person is convicted of being a felon in possession of a firearm, normally the statutory maximum is ten years - that's the most the court can give. If the person has three convictions for a crime of violence, the statutory mandatory minimum is 15 years, and the statutory maximum is life.

Even if a person convicted of being a felon in possession of a firearm doesn't have three convictions for a crime of violence, his guidelines are still affected by whether the prior offenses are violent crimes under U.S.S.G. § 2K2.1.

Section 2K2.1 was at issue in Donnell. Mr. Donnell pled guilty to being a felon in possession of a firearm. He had a prior conviction for second degree assault in Maryland. He also had another conviction for a crime of violence.

Under 2K2.1, if he has two convictions for a crime of violence, his offense level starts at a 24. If it's only one, then it starts at a 20.

The question was whether a Maryland second degree assault charge counts as a crime of violence. The Fourth Circuit has already said that it doesn't always - as the court of appeals said in Donnell:

second degree assault under Maryland law "encompasses several distinct crimes, some of which qualify as violent felonies and others of which do not"

When a prior conviction might be violent or might not be, the sentencing court has to look at the records of the case to see what happened.

A court can look at a charging document to see if the prior charge was a crime of violence (the court can also look at other documents too - like a transcript of a plea proceeding). In Donnell, the charging document itself didn't say much, just that Mr. Donnell was charged with second degree assault and a judge's checkmark saying that there was probable cause to think he committed the assault.

There was, however, a separate document - a statement of probable cause - that described facts that would have made Mr. Donnell's conviction a crime of violence. That statement of probable cause, though, was not a part of the document that stated the charges.

The district court thought it was good enough. The court of appeals disagreed.

As the Fourth Circuit said,

The certainty that the defendant necessarily admitted the facts contained in the external document, as distinguished from the charging document itself, the transcript of the plea colloquy, or the written plea agreement, is absent.

And, as a result, the case was reversed and remanded for a new sentencing.

Perhaps my favorite note to end on, is the opinion's last footnote:


Although we express no view as to what sentence the district court might properly impose upon remand, we find wholly unpersuasive, particularly in light of the district court's careful analysis of the § 3553(a) factors, the Government's fall-back argument that we should affirm the judgment on the theory that the district court would have imposed the same sentence without the enhancement that we find was improperly applied.

Seriously, a four-level difference in the guidelines wouldn't have mattered to the district court? That's a muscular view of Booker for a federal prosecutor to take.

October 25, 2011

The Sixth Circuit Reverses On A Terry Stop: or, Even Appellate Judges Feel Bad For People Who Are So Scared They're Shaking


We may be seeing a revolution in the way Terry stops are reviewed by the courts of appeals.

The Fourth Circuit, long a bastion of conservative unpublished opinions, has recently published a series of opinions affirming a robust right under the Fourth Amendment to be free from suspicionless Terry stops. (see coverage here, for example).

independence_hall_philadelphia_pa_.jpgNow the Sixth Circuit has joined the action in United States v. Beauchamp.

Mr. Beauchamp

Mr. Beauchamp was walking down the street, minding his own business, at 2:30 a.m. in a neighborhood where the police had received a "ton" of complaints about drug dealing.

A police officer saw him and approached. Mr. Beauchamp walked away without making eye contact. The officer radioed to another officer about Mr. Beauchamp, saying that Mr. Beauchamp looked suspicious. At a hearing later, the officer didn't explain why Mr. Beauchamp looked suspicious.

The second officer saw Mr. Beauchamp. He drove up next to him and parked his car very close to where Mr. Beauchamp was walking. Mr. Beauchamp walked around a wrought iron fence away from the officer.

The officer got out of his car wearing his uniform. He told Mr. Beauchamp to stop. Mr. Beauchamp stopped. He told Mr. Beauchamp to walk back to him. Mr. Beauchamp did.

Mr. Beauchamp was shaking. The officer said that he looked "wide-eyed" and "scared." After some inconclusive questioning, the officer searched him for weapons. He didn't find any. He asked Mr. Beauchamp if he could search him. Mr. Beauchamp, still visibly terrified, said yes.

Eighteen rocks of crack cocaine were found in a plastic bag in between Mr. Beauchamp's "butt cheeks."

Mr. Beauchamp Goes To Court

Mr. Beauchamp was charged with possession with intent to distribute. He filed a motion to suppress the search. The motion was denied. He entered a conditional guilty plea - it allowed him to appeal his suppression issue and otherwise plead guilty - and the Sixth Circuit reversed.

When Is Mr. Beauchamp Seized?

The appeals court held that Mr. Beauchamp was seized the minute the officer told him to stop. It held,

A reasonable person in Beauchamp's position would not have felt free to leave when, after walking away from the police two times, an officer targeted Beauchamp by driving up to him, instructed him to stop, and then instructed him to turn around and walk toward the officer.

The court noted that,

Just as officers are afforded the benefit of information or directions received from other officers when we consider whether the detaining officer had reasonable suspicion, an individual's prior encounters with other officers should be taken into consideration when determining whether an encounter was coercive or consensual.

Was The Seizure Justified?

The court of appeals then determined that the police did not have a reasonable articulable suspicion for stopping Mr. Beauchamp. It held that,

Nothing about the conduct at issue in this case suffices to transform a permissible walk away from a police officer into a suspicious act. Beauchamp also did not make eye contact with the officer. But what if he had and then looked away? His behavior may then have been described as "furtive" or "evasive." The ambiguity of Beauchamp's conduct may be susceptible to many different interpretations, but that does not render it suspicious.

I'm not sure when a few appellate opinions turns into a trend, but it feels like this is coming close.

Judges Talk About Central Park

As a closing note, there's a lovely fight between the dissent and the majority opinion about the facts in the case. The dissent accuses the majority opinion of "appellate factfinding" and includes this burn:

Appellate factfinding is a rare and exotic animal, and often seems out of place too. Its appearance warrants explanation in the manner that, say, a rhinoceros in Central Park does. But there is no explanation for the majority's factfinding here.

Not to be outdone, the majority drops a footnote, and some knowledge of Central Park, back on the dissent:

The dissent mischaracterizes our analysis of whether Beauchamp's compliance with the officer's "asking" actually constituted a consensual exchange, noting: "Appellate factfinding is a rare and exotic animal, and often seems out of place too. Its appearance warrants explanation in the manner that, say, a rhinoceros in Central Park does." Dissent at 20. But there was no appellate factfinding here, only fidelity to the de novo standard of review. And it is noteworthy that our de novo analysis need no more explanation than the appearance of the dissent's rhinoceros in Central Park, since there is a zoo in Central Park and if one went to the Central Park Zoo one could expect to see a rhino. So too, when the court conducts a de novo review, it literally looks at the totality of the circumstances "anew."

Zing!

Though I always wondered why they don't take this kind of exchange out of the majority and dissenting opinions.

October 24, 2011

It Is Not Good To Commit New Crimes While On Pretrial Release


Congress is odd. In 1984 it made a law so urgent that some of its language was only just now interpreted.

As a starting point, Congress thinks (or, more accurately, thought) that it's really bad to commit a crime while on pretrial release for another crime. So it passed 18 U.S.C. § 3147.

Here's what section 3147 says:

A person convicted of an offense committed while released under this chapter shall be sentenced, in addition to the sentence prescribed for the offense, to--

(1) a term of imprisonment of not more than ten years if the offense is a felony; or

(2) a term of imprisonment of not more than one year if the offense is a misdemeanor.

A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.

As I read that, it isn't clear - to me at least - whether section 3147 is a new crime that someone commits when they commit some other crime while on pretrial release* or whether it just enhances the penalty for the crime that was committed.

Capital Building.jpgThough, admittedly, the title of section is "Penalty for an offense committed while on release" which is kind of a big hint.

How to read section 3147 was at issue in the Third Circuit's recent opinion in United States v. Melvin Lewis.

Mr. Lewis was on pretrial release, when he came to be charged with carjacking, possession of a firearm by a convicted felon, and a violation of section 3147. The indictment listed three counts, and a violation of section 3147 was one of the counts.

Mr. Lewis went to trial. He was acquitted of the carjacking offense, but convicted of the felon-in-possession charge. He was also found guilty by the jury of the charge under section 3147.

His guidelines range put him above the statutory maximum for the felon in possession charge. So, the question was, does Mr. Lewis's statutory maximum increase under section 3147(1), or does Mr. Lewis's felon in possession conviction top out at the statutory maximum of 10 years, then he gets whatever he gets for the violation of 3147.

The Third Circuit held that section 3147 is a sentencing enhancement, not a separate crime. It increases the statutory maximum by the amount set out in the section. So, for Mr. Lewis, it increases his statutory maximum to 20 years, instead of the 10 he should have faced on the felon-in-possession offense.

But, because Mr. Lewis was "convicted" of violation 3147, his case was remanded, so that the district court could remove the $100 special assessment - a way of collecting court costs that is levied on every conviction - for Mr. Lewis's conviction for a section 3147 violation.


* Crimes that depend on other crimes being committed may sound odd, but they exist in federal law. There's 18 U.S.C. § 924(c) that makes it a felony with a five-year mandatory minimum for possessing a gun in connection with drug dealing or a violent crime. There's also 18 U.S.C. § 1028A that creates a charge with a two-year mandatory minimum for having anyone's identity information - like a social security number - in connection with any other federal felony. For both a 924(c) and a 1028A, the mandatory minimum sentence is consecutive to the sentence on the underlying crime. These things are vicious.

October 21, 2011

What's Fair For the Goose Is Maybe Not The Same For the Gander; Immunity Orders And The Ninth Circuit


It's good to be king.

The government, in a criminal investigation, can issue a grand jury subpoena to collect evidence and put witnesses under oath. It can execute search warrants to go into a home or business and take documents. It can cut deals with people it thinks are involved in a criminal enterprise, so that they'll spend less time - or no time - in prison if they turn in someone else.

Someone fending off a government investigated can't do any of this.

King.jpgNormally, if a person has information that would make someone who hears it think the person is guilty of a crime, that person has a right to refuse to talk about it. It's a part of the Fifth Amendment. The government has a fix for that problem too - if a witness won't talk, and won't play ball by cooperating, the government can ask a court to grant the person immunity. The statute that lets a court grant immunity is at 18 U.S.C. § 6003.

If a court grants a person immunity, that person cannot be prosecuted based on the information he provides. That's in 18 U.S.C. § 6002. There's an exception if the person lies or does something similar when immunized, but, beyond that, a person with immunity cannot be prosecuted for what they talk about.

Getting immunity can be a very good deal.

What about defense witnesses though? Surely, there are times when a person who is accused of a crime identifies a witness who he needs for his defense, yet the witness may get himself charged with a crime if he provides information.

For example, imagine that a witness knows a person accused of a crime didn't commit it, because the witness and the accused were across town counterfeiting money together at the time of the alleged crime. The witness refuses to testify and invokes his Fifth Amendment right not to - he doesn't want the government to put him in prison for the counterfeiting.

Can the defense ask the court to give immunity to the witness?* If so, when?

That was exactly the situation that the district court dealt with in United States v. Wilkes. The Ninth Circuit issued an opinion on this very question.

Mr. Wilkes was accused of bribing Congressman Duke Cunningham.** The government alleged that Mr. Wilkes made inappropriate gifts to the Congressman - including a trip to Hawaii where they enjoyed the beach, scuba diving, and prostitutes.

In exchange, Mr. Wilkes' company was alleged to have sold inferior products to the United States government.

A number of people testified against Mr. Wilkes. They worked for his company and the government had asked the district court to grant them immunity. The district court did. They testified against Wilkes.

One of Mr. Wilkes other employees would have told a different story. The district court listened to what Mr. Wilkes lawyer said the witness would say. The court concluded,

I have to tell you the proffer I have as to what this fellow can offer strikes me as material and relevant evidence that the defense would want to present to counter some of what's been presented by the United States through immunized witnesses.

So, naturally, the trial court ruled that

The court, having fully heard all counsel, denies the motion to convey use immunity.

The district court believed that it could only grant immunity if the prosecutors had intentionally engaged in misconduct. As the court saw things,

unless it's somehow tethered to the suggestion of prosecutorial misconduct, I don't think it's appropriate for the court to make determinations of who gets immunity and who doesn't. In the first instance, under our system of Government, that's a prosecutorial decision. And unless I can find that the way in which discretion was exercised was unfair so as to deny the defendant a due process right, then it's not appropriate for me to substitute my judgment for that of the prosecutor. I do have a concern about the effect of not granting immunity in this case, but I would have the same concern if it was a different privilege implicated over which I'd have no authority to pierce the privilege and order a witness to testify, any number of other privileges. So it's an effect that the criminal justice system lives with and accommodates.

One can imagine that the court's regret about this "effect" was not very comforting to Mr. Wilkes.

Happily, after Mr. Wilkes trial, the Ninth Circuit decided United States v. Straub. (click for Ninth Circuit blog commentary)

Straub held that a district court should order immunity when the testimony would be relevant and the prosecutor gave immunity to one witness, but not to another who would have contradicted the one the prosecutor choose, and that choice by the prosecutor

the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial

(Keep in mind, friends who aren't from the left coast, the rule in your part of the country may be different.)

Based on this standard, the court of appeals remanded for a hearing on whether the district court should have immunized the witness under Straub. The appellate court did note, though, that "[t]he district court also repeatedly expressed its concern that not granting Williams immunity would have the effect of distorting the fact-finding process." So perhaps the court of appeals thought it knew how this would turn out.

The rest of the opinion in Wilkes is a bit bleak. I wouldn't read it unless you're a prosecutor or looking to be saddened.

* This is assuming the defense is willing to swallow a conviction on the counterfeiting. There's probably a better hypothetical out there.
** The opinion says that the total list of charges were "one count of conspiracy
(18 U.S.C. § 371), ten counts of honest services wire fraud (18 U.S.C. §§ 1343 and 1346), one count of bribery of a public official (18 U.S.C. § 201), and one count of money laundering (18 U.S.C. § 1956(a)(1)(B)(i))."

October 20, 2011

The Seventh Circuit, Plain Error, And Fines That Shouldn't Be Imposed


Preserving an issue for appeal in the middle of trial can be tricky.

The lawyer who represents a person in the trial court normally has to preserve an issue for it to be heard by the court of appeals. If the lawyer doesn't object when something improper happens, the appellate court is not going to be as eager to do something about it.

Federal Courtroom.jpgYet the trial court lawyer is worrying about so many things that preservation of an appellate issue isn't always the right thing to worry about. It's much better, for example, to have a strong shot at a not guilty verdict than to have an issue that you may be able to win on appeal. And, in trial, there are so many balls to watch, that it may be rational for a lawyer to take his eye off of one of them for a moment. Which can make for a harder appeal.

To make things worse, a trial lawyer doesn't have the same access to the law that a appellate lawyer, or court of appeals judge, has. It's one thing to know the law after hours of research. It's another to have to know it when an issue that you weren't anticipating comes up.

So one can empathize with the lawyer who represented Calvin Brown. His case was recently decided by the Seventh Circuit in United States v. Brown.

Mr. Brown had pled guilty. He and his lawyer were sitting at counsel table* after having made their arguments about what the sentence should be. The district judge was announcing his sentence. He told Mr. Brown how much time he was going to spend in prison.

Then the judge told Mr. Brown that there was a mandatory minimum fine of $300 in his case for each count. Because he pled guilty to four counts, the sentencing court imposed a fine of $1200.

The problem, though, is that there is no mandatory minimum fine that applied to Mr. Brown's case. The sentencing judge was just flat-out wrong.

Mr. Brown's lawyer didn't object. Because he didn't object, the Seventh Circuit said that it reviewed his appeal on a plain error standard.

As an aside, plain error is a harder standard to meet. If a person in an appeal is complaining about what happened in the trial court, they would like the court of appeals to review the decision de novo. De novo review means the court of appeals thinks about the issue on it's own, without reference to how the district court approached it.

Plain error, on the other hand, means that the person who is appealing has to convince the court of appeals that the district court was clearly wrong - it wasn't a close call. If there's a tie in the law, the tie goes against a person who is bringing the appeal.

As the Seventh Circuit explained it, a district court has plainly erred if,

Under plain error review, we must determine "(1) that error occurred; (2) that the error was plain; and (3) that the error affected the defendant's substantial rights."

Mr. Brown argued that the sentencing court was imposing its ruling - he didn't have an opportunity to object.**

The Seventh Circuit would hear none of it. The court of appeals reviewed under plain error.

Happily, though, the appellate court found that making up a mandatory minimum fine that doesn't exist is plain error.

As a result, Mr. Brown's case will be remanded for reconsideration of the fine that the court imposed in this case. Now all he has to worry about is the 292 month sentence he has to serve.


* Presumably. This detail isn't in the opinion, which is to say that I'm making it up.
** It isn't clear from the opinion whether the fine issue came up in the hearing or only in the judgment that issued later. I think it would be odd to have it only in the judgment, and, likely, that would present other problems (that the judgment that the court signs and the announcement of the sentence shouldn't vary too much), but, in any event, Mr. Brown did not object to either.

October 19, 2011

The Ninth Circuit On When The Guidelines Fail Us


Much in the same way that phrenology was an effort to catalog every mental deficit that humans can possess, the federal sentencing guidelines are an effort to catalog precisely how bad every kind of federal crime that can be committed is.

phrenology.jpg
The comprehensiveness of the sentencing guidelines can be stunning. Section 2N3.1 sets out how bad odometer law violations are (not all that bad). Section 2T3.1 deals with customs taxes (as opposed to tobacco taxes in 2T2.1). Offenses involving fish, wildlife and plants are discussed, in detail, in section 2Q2.1. Willful violations of the Migrant and Seasonal Agricultural Worker Protection Act have their own section, 2H4.2.

You get the idea.

This makes the Ninth Circuit's opinion in United States v. McEnry kind of an anomaly.

Mr. McEnry flew a plane without a license. This is a federal crime, prohibited by 49 U.S.C. § 46306(b)(7).

There is no guidelines section that deals directly with how bad it is to fly a plane without a license. (As a reflection on society, this is probably a good thing.)

Here are the basic facts, from the opinion:

On January 5, 2009, McEnry landed a Cessna 210F aircraft at the Eastern Sierra Regional Airport in Bishop, California. The circumstances of his landing were unusual: he did not communicate with the airport by radio during his approach and landing, and he touched down significantly farther along the runway than would be the case on a normal landing. When the plane did land, it overran the runway. McEnry's behavior on getting out of the plane was also unusual. He tied the plane down at its two wings, but neglected to tie down the tail, as one would normally do. He did not walk purposefully toward the terminal, but wandered about before approaching it. On arriving at the terminal, he asked where he was and claimed that he had flown through military airspace, during which time military aircraft flew alongside him and fired flares. Someone at the airport called the police, reporting that McEnry might have been under the influence while flying.

The things that were not relevant to this opinion, but were noted any way, are many. For example,

The cause of McEnry's erratic behavior is disputed. The district court ultimately ruled that, regardless of the cause, McEnry was in a condition in which he should not have been flying, and neither party contends that the issue has any bearing on the selection of the guideline under which McEnry should have been sentenced.

Or,

There is some evidence that, subsequent to his arrest in this case, McEnry made false statements in his application for a pilot's license. As with the cause of McEnry's behavior, this evidence has no bearing on the question before the panel.

Or,

At sentencing, the government presented a variety of evidence suggesting that McEnry was involved in drug trafficking. Neither party argues that this evidence was relevant to the determination of the correct guideline. The district court determined that the drug trafficking-related evidence is "not any evidence" which "simply doesn't approach preponderance, doesn't even approach the sufficiency to draw an inference," and concluded that it "d[id]n't find any basis in fact or law to enhance the sentence based on the evidence that's been received." The government does not contest this finding. Accordingly, this evidence is not relevant to McEnry's appeal.

In any event, the district court sentenced Mr. McEnry as though he had interfered with a flight crew in a commercial flight, thinking that this was the closest thing to the harms that Mr. McEnry caused in this case. The district court applied § 2A5.2(a)(2)(A).

Mr. McEnry, on the other hand, argued that this was closer to a fraud offense (something like by flying he was representing that he was licensed to fly when he was not - a performative utterance, or something along those lines), and that § 2B1.1 should be the relevant guideline.

The district court sentenced Mr. McEnry to 21 months in prison based on the interfering with a flight crew guideline.*

The Ninth Circuit reversed. The court of appeals held that in those rare cases where there's no applicable sentencing guideline, a district court should apply the guideline closest to the elements of the offense. That's not what the appellate court concluded the district court did,

In concluding that § 2A5.2 was the appropriate guideline to apply to McEnry's offense, the district court remarked that § 2A5.2 "isn't directly applicable for the offense, which is operating without the airman's certificate." Explaining its choice, it noted that § 2A5.2 "does, if you will, raise or track some of the kinds of risks that are raised." Thus, the district court based its choice not on the elements of the offense or the facts alleged in the indictment, but on the defendant's particular relevant conduct and the risk it created.

The Ninth Circuit determined that Mr. McEnry's offense is really closest to a fraud crime, and his case was sent back for resentencing.

* This makes me think that it isn't entirely credible that the sentencing court ignored all the facts that it was supposed to.