January 10, 2012

Friendship Means A Lot In Philadelphia, And Why Honest Services Fraud Just Isn't The Same After Skilling

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

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

1317372_philadelphia_.jpgMr. Teitelman also helped Mr. Wright get housing when Mr. Wright had to move. Mr. Teitelman's sole client (aside from Mr. Wright) was Ravi Chawla. Mr. Chawla was a developer, who had an empty apartment building. Mr. Teitelman persuaded Mr. Chawla to let Mr. Wright stay in one of the units of that apartment building, for free. Mr. Chawla also tried to send a multi-million dollar real estate deal to Mr. Wright to try to get some money in Mr. Wright's pocket during this time - Mr. Wright was a realtor - though nothing came of the deal.

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

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

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

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

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

Honest Services Fraud

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

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

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

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

The Third Circuit After Skilling

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

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

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

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

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

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

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

January 9, 2012

Threatening A Corporation Is Not A Crime, Even On Super Bowl Sunday

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

1316747_letter_box.jpgKurt Havelock

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

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

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

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

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

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

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

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

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

The United States District Court and Mr. Havelock

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

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

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

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

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

The Ninth Circuit

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

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

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

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

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

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

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

What Do We Do With This?

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

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

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

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

January 6, 2012

Paying For Drugs Is Not Money Laundering

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

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

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

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

1361620_grungy_money_4.jpgInstead of being charged with drug trafficking, they were charged with money laundering for paying for the drugs, under 18 U.S.C. § 1956.

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

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

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

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

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

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

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

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

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

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

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

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

January 4, 2012

A Tale of Two Circuits

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

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

1314903_medical_doctor.jpgThe defendant never has a chance to cross-examine the person who actually tested the item - the results of the test come into evidence through the testimony of the person who just read the reports of the testing.

Is that ok?

The Confrontation Clause

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

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

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

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

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

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

The First Circuit

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

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

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

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

The Fourth Circuit

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

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

The Lesson

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

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

January 3, 2012

The Police Cannot Take A Knife To Your Penis On A City Street

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

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

1142077_knife_2.jpgThe police officers asked Mr. Edwards to approach them. He did, calmly. He "looked like he was just walking down the street" according to the officers. He didn't act like a man with a gun - he wasn't fussing with his waistline. He also didn't look like he was involved in drug dealing; the officers didn't see him doing any hand-to-hand transactions before they called out to him.

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

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

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

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

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

Mr. Edwards is Charged and Convicted

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

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

Is Looking Down Someone's Pants A Strip Search?

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

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

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

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

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

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

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

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

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

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

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

The conviction was reversed and the evidence was suppressed.

What Does This Mean For Gender-Based Judging?

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

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

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

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

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

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

December 20, 2011

Running From A Courtroom And The Armed Career Criminal Act

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

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

It turns out that it isn't.

920501_shoe-string_sands.jpgBackground on the Armed Career Criminal Act

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

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

Mr. Oaks

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

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

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

Mr. Oaks appealed.

The Sixth Circuit affirmed.

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

The Supreme Court and Mr. Oaks

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

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

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

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

And they say watching TV is bad for you.

After The Supreme Court's Remand

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

The district court found that,

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

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

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

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

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

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

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

December 19, 2011

How To Help Hundreds Of Women Who Have Been In The Criminal Justice System

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

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

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

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

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

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

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

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

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

You can donate at this link.

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

December 18, 2011

Tax Restitution Trips Up A District Court Judge In The Seventh Circuit

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

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

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

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

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

369110_taxpapers.jpgFor what it's worth, I go half way with Justice Scalia on this. There are too many federal drug prosecutions, but, from my perspective, the quality of the federal district court bench is still excellent - especially the judges I appear in front of (and who may be (but probably aren't) reading this).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 16, 2011

Over-posting To Twitter Is Not A Crime

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

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

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

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

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

Moving on to explain Twitter, Judge Titus says that,

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

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

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

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

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

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

December 15, 2011

The Right To Not Remain Silent

People are social animals. We teach each other. We learn from each other. We judge each other.

Perhaps dozens of times a day we make evaluations about other people based on how they look at us and what they say to us. We make determinations about other people based on race and class and whether we think another person is "one of us" - in all the ways that a person can be one of us. Maybe pheromones play a role in how we evaluate each other. But these small judgments we make in our interactions with others shape how we treat each other in ways large and small.

None of this goes away when a judge puts on a robe and imposes a sentence on a person who has been convicted of a crime.

A federal district judge will know generally about the crime - the judge either sat through a trial and heard the testimony, or read a statement of offense in a plea agreement - and will know from the presentence report about the person being sentenced.

But these background facts don't give the judge the same human knowledge about the person that a face-to-face interaction does. Which is why whether the person speaks at his sentencing - and how he acts if he does speak - can be very important.

Rule 32 of the Federal Rules of Criminal Procedure give a person being sentenced a right to talk to the judge about what sentence the court should impose.

837375_mouth.jpgThe right to talk to the judge before the sentence is imposed was given a very muscular reading by the Eleventh Circuit in United States v. Perez.

Mr. Perez, along with a number of others, was convicted of conspiring to rob a check cashing store, as well as a drug stash house that did not, in fact, exist. The federal government, in an apparent effort to bring counter-terrorism tactics to the street, has started finding people who may be interested in committing a crime, then arranging with a confidential informant to have them find some fake entity to conspire to rob. It's easier to catch fake crime than real crime, I suppose. (For more on these kinds of cases, please see this post at the Ninth Circuit blog).

At sentencing, the sentencing court said to Mr. Perez's counsel "will the defendant be allocating?" Mr. Perez's lawyer conferred with his client then told the court, "No, Your Honor. He doesn't wish to address the Court." Mr. Perez did not, then, address the court.

The Eleventh Circuit found that this violated Mr. Perez's right to present information to the court. The court of appeals noted that:

On a number of occasions, "[w]e have explicitly held that the requirement of Rule 32[(i)(4)(A)(ii)] is not satisfied when the court does not address the defendant personally concerning the defendant's desire to allocute but instead addresses defendant's counsel only."

In light of that, the court held that it was not convinced that Mr. Perez knew that he had a right to speak to the sentencing judge.

Because the right to allocute is fundamental, the Eleventh Circuit reversed, even though no one objected at the time.

Waxing poetic about the importance of allocution, the court of appeals said

The right of allocution provides a defendant "an opportunity to plead personally to the court for leniency in his sentence by stating mitigating factors and to have that plea considered by the court in determining the appropriate sentence." United States v.Tamayo, 80 F.3d 1514, 1518 (11th Cir. 1996). "As early as 1689, it was recognized that the court's failure to ask the defendant if he had anything to say before sentence was imposed required reversal." Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 655, 5 L. Ed. 2d 670 (1961) (Frankfurter, J., plurality opinion). Although criminal procedures have progressed significantly since the seventeenth century, "[n]one of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation." Id. Allocution continues to "ensure that sentencing reflects individualized circumstances," United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994) (citing United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991), while maximizing the "perceived equity of the process." Id. (quoting Barnes, 948 F.2d at 328). Consequently, a defendant's right of allocution, which is codified in Federal Rule of Criminal Procedure 32, remains firmly entrenched in our criminal jurisprudence.

And so, back for resentencing Mr. Perez will go.

December 14, 2011

Safety Valve, Government Power, And Marijuana in the Woods of Arkansas

The federal government has powerful tools to keep a person from exercising his constitutional right to go to trial - like crushingly long mandatory minimum sentences.

An aside to illustrate the point

The government's use of mandatory minimums reminds me of the plea colloquy of a particularly honest client of mine.

The judge asked my client "Has anyone threatened you to get you to plead guilty?"

My client said yes.

1207444_courtroom_1.jpgThe judge, clearly taken aback, and, frankly, looking at me, said "Who threatened you? How?"

My client pointed at the prosecutor and said "They said I'll get mandatory life if I don't take a plea."

The judge, relieved, said "Oh, ok, but no one threatened you with any violence or anything, right?"

My client said right, and the hearing moved on.

I think my client's honesty may have faded at the end of the exchange. What the government was saying, in essence, is that he was being threatened with living in a cage until he dies. If he tries to escape, people will force him back into that cage.

What threat of violence to him could be more severe than that, shy of a threat of death? Yet the judge determined that the plea wasn't coerced.

How to Avoid A Mandatory Minimum

There are, generally, two ways to avoid a mandatory minimum sentence. The first is by helping the government put someone in prison. The other is called the "safety valve."

The "safety valve" is set out in 18 U.S.C. § 3553(f). It says, in essence, that if a person has little prior involvement with the criminal justice system, didn't lead the criminal enterprise that he's being sentenced for, didn't use a gun, and no one got hurt, that person can be sentenced as though the mandatory minimum didn't exist. With one additional catch.

The person has to truthfully tell the government everything that he did in connection with the crime he's being sentenced for.

If a person tries to help the government, the government will require that he gives up his right to a trial. Safety valve works a little differently.

Safety Valve and Trial

By its terms, the safety valve provision can kick in to help someone who was convicted at trial, rather than pleading guilty.

The Eighth Circuit's case of United States v. Honea shows exactly when and why safety valve should be used after a trial.

Never Let Your Kids Use Your Water

Mr. Honea had some land in Arkansas. It was next to some land that was untended, but owned by Deltic Timber.

Mr. Honea's daughter, Paula, was using Mr. Honea's land to get access to the untended Deltic Timber land. On that land, she was running a marijuana growth operation. Two guys slept on the land in tents, tending the plants. Paula ran water hoses from Mr. Honea's house to the marijuana operation, using massive amounts of water. Paula's husband, Mr. Honea's son-in-law, also helped with the operation.

Everyone except for Mr. Honea flipped and testified against him. He was charged with conspiracy to grow more than 1,000 marijuana plants, aiding and abetting in the possession with intent to distribute between 100 and 1,000 marijuana plants, and aiding and abetting the manufacture of more than 1,000 marijuana plants.

These charges carry a mandatory minimum sentence of ten years.

Before trial, when everyone was cooperating with the government, Mr. Honea's son-in-law wrote to Mr. Honea. He wrote:

Don't go to trial, just take a plea. You're a smart man, I know you'll make the right decision.

Mr. Honea's Trial

At trial, Mr. Honea took the stand. He said he knew nothing about the marijuana operation. He knew his son-in-law was harvesting rocks to resell to construction companies - which made sense to him since his son-in-law was a contractor - but he knew nothing about marijuana on the property.

Mr. Honea was convicted of aiding and abetting in the manufacture of more than 1,000 marijuana plants. He was acquitted of the other two counts.

Mr. Honea faced a mandatory minimum sentence of ten years.

The Judge Gets Concerned

After trial, and before sentencing, the trial judge was worried. He sent a letter to counsel for Mr. Honea and the government. As the court of appeals described it:

the district court sent the parties a letter order "to express [its] concern about the application of the statutory mandatory minimum sentence in this case and to ask whether Mr. Honea might qualify for the 'safety valve.'" The district court noted that Honea was "acquitted . . . on 2 of the 3 counts," including "the most serious charge--conspiracy to manufacture marijuana (Count 1)[,] as well as the charge of aiding and abetting the possession with intent to distribute marijuana (Count 3)." The court surmised that Honea's conviction for "aiding and abetting the manufacture of marijuana (Count 2)" was "based principally on the jury's finding that he permitted the other Defendants to cross his property to access the adjoining land where the grow operation was located and also provided them access to his water supply." According to the court, "no competent evidence" existed that "Honea profited in any way from the manufacture or distribution of the marijuana." The court also cited Honea's lack of a "criminal record.

The government responded that Mr. Honea was not safety valve eligible, because he had not met with them to disclose his involvement with the operation.

That was remedied - Mr. Honea met with the government and said that he didn't ask questions, but should have, and didn't know about any marijuana operation.

This was good enough for the court, but not for the government. The government argued that Mr. Honea's statement was inconsistent with the jury's verdict. As a result, the government thought Mr. Honea should not be eligible for a safety valve reduction.

The district court disagreed, sentencing Mr. Honea to the time he had originally spent in jail - 20 days.

The government appealed.

The Eighth Circuit affirmed, finding that there was no conflict between the jury's verdict and the safety valve proffer.

December 9, 2011

Ms. Tapia Wins! Again!

For a person convicted of a crime, winning in the Supreme Court of the United States can be a mixed bag.

Sometimes it works out well. Clarence Gideon was acquitted when he was retried, this time with the aid of a defense lawyer. He was also, of course, lovingly portrayed by Henry Fonda in film, and is now perhaps the most often-invoked indigent of the Twentieth Century.

657704_supreme_court.jpgOn the other hand, Ernesto Miranda, the man who gave us Miranda warnings, was convicted on retrial after his statement was suppressed. He served 11 years in prison for rape.

Freddie Booker's case turned federal criminal sentencing on its head. Mr. Booker was resentenced after his case rendered the federal sentencing guidelines advisory - he was given exactly the same sentence with the advisory guidelines as with the mandatory ones.

Perhaps that was a harbinger.

Alejandra Tapia won her case in the United States Supreme Court last term. And, happily, yesterday, she found that she'll get some relief from that win.

She was convicted at trial of bringing two undocumented people into the country for financial gain, and of bail jumping - apparently Ms. Tapia did not make it to court for one of the hearings in her case.

She was sentenced to 51 months, the high-end of the applicable guidelines range. The sentencing court said that she had a drug problem and needed treatment while in prison. The sentence he imposed was to help her get that treatment.

Ms. Tapia appealed the sentencing judge's reliance on her need for drug treatment, but the Ninth Circuit affirmed. Ms. Tapia took her case all the way to the Supreme Court. In the Supreme Court, she won.

There, in Tapia v. United States, the Court held that a district judge cannot increase a sentence on a person in order to provide more time in prison to rehabilitate the person.

(Judge Posner has already provided district court judges with a roadmap for how to circumvent Tapia.)

The Supreme Court remanded to the Ninth Circuit to determine whether Ms. Tapia is entitled to relief based on its holding.

On remand from the Supreme Court Ninth Circuit held that Ms. Tapia is entitled to resentencing in United States v Tapia. The district court's consideration of her drug history and need for drug treatment was plain error.

As the Ninth Circuit said, in determining that Ms. Tapia was negatively effected by the sentencing judge's findings:

There is little reason to think that the district judge did not mean what he said in sentencing Tapia. He stated that "the need to provide treatment" was one of the considerations that "affect[ed]" the length of the sentence he imposed. We take him at his word, and hold that Tapia has shown that there is a "reasonable probability that [she] would have received a different sentence" but for the district judge's impermissible consideration of this factor.

So, back to the district court for resentencing for Ms. Tapia. Here's to hoping she avoids Mr. Miranda and Mr. Booker's fates and receives less than her prior 51 months.

December 8, 2011

The First Circuit Vacates A Plea

Sometimes being a defense lawyer in federal court is a matter of playing for dropped balls. In some cases, if everything goes the way it looks like it should for the government, there's not much chance of a good result. But, mistakes are often made. If the right mistakes happen, things can look different quickly.

877665_sport_balls_1.jpgThe appeal in the First Circuit's recent opinion in United States v. Ortiz shows the importance of playing for a dropped ball.

A Night in May

According to a statement of facts that Mr. Ortiz signed, in May of 2007, he and his friends decided to try to steal a car. The car was occupied. The men in the car got out, and had a fistfight with Mr. Ortiz and his friends. When the fight was over, the men in the car got back in the car and tried to drive away.

One of Mr. Ortiz's friends blocked the way of the car. People yelled. Mr. Ortiz shot into the car, killing the driver.

Mr. Ortiz was charged with four crimes: (1) conspiracy to commit carjacking; (2) car jacking; (3) use of a firearm in connection with a crime of violence; and (4) causing the death of a person through the use of a firearm. [FN1]

Mr. Ortiz Pleads Guilty

Mr. Ortiz worked out a plea to Count Three - use of a firearm in connection with a crime of violence under 18 U.S.C. 924(c). Because a gun was discharged, Count Three carries a mandatory minimum term of ten years.

As a part of the plea agreement, Mr. Ortiz and the government agreed that they would both ask for the ten year sentence be imposed. At the plea hearing, the judge told Mr. Ortiz that Count Three carried a mandatory minimum ten year sentence.

In his plea, Mr. Ortiz also waived his right to appeal.

A charge under 924(c) does not have a maximum penalty established by statute - rather, courts have construed it as having a maximum sentence of life. [FN2] This fact, however, was not mentioned in Mr. Ortiz's plea agreement paperwork. It was also not addressed at his plea hearing - which violates Rule 11 of the Federal Rules of Criminal Procedure.

Mr. Ortiz Has a Presentence Report

Mr. Ortiz, like every other person who is convicted in federal court, was the subject of a presentence report. The presentence report accurately stated that the maximum penalty for his count of conviction was life in prison.

At his sentencing hearing, though, the district judge neglected to ask whether Mr. Ortiz had read the presentence report.

Mr. Ortiz is sentenced

Expecting to receive a sentence of ten years in prison, Mr. Ortiz was surprised when the court imposed a sentence of 30 years.

He was further surprised when one of his friends from the night of the shooting, beat two counts at trial and received a sentence of only 15 years.

Mr. Ortiz tried to withdraw his plea after he was sentenced because his sentence was three times the amount of he expected to receive. The district court denied the motion. Mr. Ortiz appealed.

The Appeal

The government argued that Mr. Ortiz could not bring an appeal, because he waived that right in his plea agreement. The government also argued that the original plea should stand.

The court of appeals, though, thought differently. It remanded, since Mr. Ortiz was not aware that by pleading guilty he could be sentenced to life in prison.

The court remanded, with instructions to vacate the conviction.

As an interesting postscript, the court noted that Mr. Ortiz, if re-convicted, could, of course, receive up to life in prison. Mr. Ortiz's counsel presented, during the course of the appeal, a statement that Mr. Ortiz was aware of that risk, and wanted to proceed with the appeal anyway.

Here's to hoping Mr. Ortiz doesn't do worse on remand.

[FN1] The opinion describes these each as aiding and abetting charges to the substantive counts, then, bizarrely, in footnote one, takes the government to task for charging these as, e.g., a violation of "18 U.S.C. § 2119(3) and 2." (emphasis in original). The footnote then continues "Because it is unclear what statutory provision "and 2" refers to in each instance, we have omitted that language here."

I hate to, in essence, say "duh" to a court of appeals, but, I think it's pretty obvious that "and 2" refers to 18 U.S.C. § 2, the statutory provision that sets out aiding and abetting liability.

I'm no fan of defending the government, but this is an odd attack based on a blindingly obvious misunderstanding by the opinion's author.

[FN2] This quirk leads to a delightfully paradoxical turn of phrase - the statutory maximum for a violation of 18 U.S.C. § 924(c) is not set by statute.

December 5, 2011

Club Rules, Prejudicial Evidence, and Hard Distinctions About Child Pornography

In a classic Simpsons episode, Homer Simpson, as a young person, is excluded from a club of his peers - the club is called the "No Homers Club." Homer complains, noting that there was a Homer inside the clubhouse.

He's told - "It says no Homers. We're allowed to have one." (Incidentally, the "No Homers Club" is now the name of many Simpsons fan clubs).

DSC01433_z.JPGClub rules tend, I think, to be silly. The Seventh Circuit's recent opinion in United States v. Loughry however, meant the difference in whether a child pornography conviction stands can depend on the rules of a private "club."

Robert Loughry was accused of being an administrator of an online club that had very rigid rules. The club, called the "Cache," existed to allow users access to a particular kind of child pornography. Other kinds were explicitly prohibited.

As the Seventh Circuit explained it,

Only "lascivious exhibition" pornography, which included the exhibition of girls' genitals, was permitted on the Cache. Images depicting sexual contact or other sexually explicit material were prohibited.

Mr. Loughry was accused of distribution of child pornography, advertising child pornography, and related conspiracy counts. He was not accused of possession of child pornography.

The government introduced evidence of the images found at the Cache. As the Seventh Circuit explained,

The site was divided into sub-forums and topic areas. There was a non-nude gallery area and a nude gallery area, which was subdivided by ages into "18 and over nude," "13-18 nude," and "under 13 nude" categories. The Cache's rules prohibited posting any images depicting sexual contact, masturbation, penetration, boys, or men. According to several witnesses, the purpose of the Cache was to provide its members with access to child pornography consisting of the lascivious exhibition of the genitals of minor girls.

During the trial, the government introduced evidence of Mr. Loughry exercising the kind of role in the Cache that one would expect an administrator to exercise - he promoted members, he kicked them out, and he created new member accounts.

The last government witness, though, introduced evidence of significant hard-core child pornography found on Mr. Loughry's computer. It was the kind of child pornography that would not have been allowed in the Cache. It's described in the opinion, if you want to know more.

Mr. Loughry was convicted and sentenced to 30 years in prison.

On appeal, he challenged the district court's decision to admit the hard-core child pornography from his computer as unduly prejudicial under Rule 403 of the Federal Rules of Evidence. Again, keep in mind that Mr. Loughry was not charged with the crime of possessing the hard-core child pornography on his computer.

The court of appeals took the district court to task for not looking at the hard-core child pornography before ruling on the admissibility question. Because the trial judge didn't look at that evidence, the court of appeals reasoned, that judge couldn't have made an informed decision about how prejudicial it was.

As the court of appeals said it,

The challenged videos include the kind of highly reprehensible and offensive content that might lead a jury to convict because it thinks that the defendant is a bad person and deserves punishment, regardless of whether the defendant committed the charged crime. Given the inflammatory nature of the evidence, the district court needed to know what was in the photographs and videos in order for it to properly exercise its discretion under Rule 403. Without looking at the videos for itself, the court could not have fully assessed the potential prejudice to Loughry and weighed it against the evidence's probative value.

Describing the kind of hard core child pornography that was shown, the court of appeals determined that it was prejudicial - and that the prejudice outweighed the value of admitting it, noting,

Such displays have a strong tendency to produce intense disgust.

The Seventh Circuit then found that the judge's error was not harmless, and reversed and remanded the case.

Child pornography cases are hard, and it is challenging to make the kinds of distinctions that the Seventh Circuit made here. Good on them for doing this work though, even though it's hard.

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.