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.

October 18, 2011

The First Circuit, Federalism, and the Department of Justice's Distaste For Rejection


The rumble in Rhode Island is over - Rhode Island won.

As frequent readers of this blog - and fans of the Interstate Agreement on Detainers - will recall, a fight broke out between Rhode Island and the United States Department of Justice over a man named Jason Wayne Pleau.

Rhode Island.jpgMr. Pleau appears to have killed a man in the course of a bank robbery. The bank was federally insured (like just about every other bank in the country). The United States Attorney's Office in Rhode Island decided to bring a case against Mr. Pleau based on the charges.

In the state system, Mr. Pleau reached an agreement to plead guilty in exchange for a life sentence without the possibility of parole. That's good enough for Rhode Island, which has a long history of opposition to the death penalty.

If Mr. Pleau is prosecuted in federal court, he can face the death penalty.

Mr. Pleau is in state custody. The U.S. Attorney's Office asked for him to be produced under the Interstate Agreement on Detainers. The Interstate Agreement on Detainers is an agreement between almost every state and the federal government over transfer of people for prosecution.* It's in the U.S. Code.

The Interstate Agreement on Detainers, though, lets a state say no. Rhode Island's Governor, Linc Chafee, did just that. Because Governor Chafee is strongly opposed to the death penalty, he refused to turn Mr. Pleau over to the federal government.

The U.S. Attorney's Office then sought a writ for Mr. Pleau to be turned over to be prosecuted. A writ of habeas corpus ad prosequendum is, in effect, an order issued by a United States District Court telling whoever is holding a person to send the person to that court so the person can be prosecuted. It's authorized by 28 U.S.C. § 2241(c)(5).

The United States District Court for the District of Rhode Island issued the writ.

The Governor, standing on the principle that he opposes the death penalty, refused to turn Mr. Pleau over.

The United States Department of Justice, standing on the principle that it really does not like to be told no, insisted that Mr. Pleau be turned over.

The dispute went to the United States Court of Appeals for the First Circuit.

The court of appeals, in a joint opinion in United States v. Pleau and In re Pleau, held that the United States has a choice - it can use the IAD or it can use a writ to get a prisoner.

But, once the government chooses which way to go, it is stuck with that choice.

Since the federal government asked under the IAD first, it was bound by Governor Chafee's refusal, and cannot later ask for a writ to trump the Governor's right to refuse under the IAD.

What's interesting about the case, though, is less the technical merits of the statutory question about whether the IAD or the statute authorizing writs wins. What's interesting is how the court of appeals looks at this issue. The appellate court could have decided this on narrow statutory grounds. Instead, it ran to the policy concerns.

This was the first time a governor of a state had denied a federal request for a person to be prosecuted - ever. The First Circuit spent a good deal of time on the legitimacy of Rhode Island's interest.

Noting that this is a symbolically important issue, the court of appeals quoted the Governor saying that

he could not "in good conscience" allow the federal government to ride roughshod over Rhode Island's "conscious[] reject[ion]" of execution as an acceptable form of state punishment.

It went on to observe that
the only additional punishment that a federal conviction might bring would appear to be authorization to kill Pleau. The present case thus presents a stark conflict between federal and state policy prerogatives on a matter of literally life-and-death significance.

And then, as if that wasn't already a big nod to the Governor's policy preferences, the court of appeals noted, in a footnote, that maybe the federal government should just step off when it comes to prosecuting these kinds of crimes saying,
We pause to note that the crimes Pleau is alleged to have committed -- armed robbery and murder -- are quintessential state crimes, and betray on their face no hint of any uniquely federal interest. See United States v. Jiménez-Torres, 435 F.3d 3, 14-15 (1st Cir. 2006) (Torruella, J., concurring) (objecting to unwarranted extension of federal criminal jurisdiction over traditionally state crimes). Moreover, given that Pleau has already agreed to plead guilty to state charges and accept a life sentence without the possibility of parole, it is frankly unclear what is to be gained from pursuing federal charges in this case, particularly in light of the truly extraordinary costs of capital litigation.

This is a great question - what exactly is the federal interest here? I suspect, as I said before, that it's just a matter of the United States Department of Justice being willing to spend whatever it takes to keep from being told no.

Beyond that, the First Circuit's discussion reminds me of the discussion in the Supreme Court's opinion in United States v. Cabrales of why we have a constitutional venue provision, because

[p]roper venue in criminal proceedings was a matter of concern to the Nation's founders. Their complaints against the King of Great Britain, listed in the Declaration of Independence, included his transportation of colonists "beyond Seas to be tried.

As the federal government comes down on California's medical marijuana providers, maybe it starts to look a bit like the prior sovereign we had in these lands.

* Only forty-eight states have signed onto the IAD. Also, the description here is very general - the IAD is very involved. The Department of Justice's U.S. Attorney's Manual has more information on the IAD.

October 17, 2011

The Supreme Court Is Thinking About Stolen Valor


The Supreme Court has agreed to review the constitutionality of the Stolen Valor Act. The Stolen Valor Act makes lying about having military honors a federal crime. It's at 18 U.S.C. § 704.

There's a good discussion of the Act over at SCOTUSBlog.

The Wall Street Journal Law Blog nicely frames the issue - "What's More Common Than Valor?"

And, of course, there's prior coverage of the Act on this blog, including Chief Judge Kozinski's most awesome paragraph in any reported opinion.

October 16, 2011

Things Look Different Around Here


Thanks for stopping by. As you may have noticed, things here look different.

Clouds on a field.jpgAside from the obvious changes in how the site looks, please note, that you can now subscribe to this blog by email. Check out the box on the sidebar if you'd like blog posts spoon fed to your email, rather than having to go to the trouble of surfing over to this page. Or you can click this link.

The search functionality is also greatly improved, which I'm excited about.

If you've been reading this blog by RSS feed, you may want to update your feed.

I hope you enjoy the new format. New substantive posts are coming soon. If you have any comments, feel free to email me.

Enjoy!

October 12, 2011

An En Banc Fourth Circuit Remands On An Armed Career Criminal Act Case

The Fourth Circuit doesn't issue many published opinions. When it does publish, though, it publishes a lot.

The Fourth Circuit yesterday issued an en banc opinion in United States v. Vann. Here's the description of who wrote what:

A per curiam opinion, in which Chief Judge Traxler and Judges Motz, King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz joined, was issued on behalf of the en banc majority. Judge King wrote a concurring opinion, in which Judges Motz, Gregory, and Davis joined. Judge Agee wrote an opinion concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge Keenan. Judge Davis wrote a concurring opinion. Judge Keenan wrote a concurring opinion, in which Chief Judge Traxler and Judges Agee, Wynn, and Diaz joined. Judge Wilkinson wrote an opinion concurring in the judgment. Judge Niemeyer wrote an opinion concurring in part and dissenting in part, in which Judge Shedd joined.

That's seven separate opinions, for a court that only has fourteen active members (and Judge Allyson Duncan didn't participate in the appeal). The opinions total 100 pages in length.

The question in Mr. Vann's case is a commonly occurring one. If a person is convicted of having a firearm after being convicted of a felony, the person faces a statutory maximum penalty of 10 years. See 18 U.S.C. § 922(g). If however, the person has three separate prior convictions for drug distribution offenses or crimes of violence, then the statutory maximum becomes life in prison, and there is a mandatory minimum of 15 years that applies.

The enhancement is called the Armed Career Criminal Act, and I've written about it here and here and here.

Mr. Vann's case presents a frustrating and common problem with the Armed Career Criminal Act. State laws aren't defined as crimes of violence for federal purposes. The states kind of make their own criminal laws, and tend not to modify them to make later federal sentencings easier. Moreover, when folks are resolving a state case, they tend to resolve it for that case only, so everyone can go on about their business and on to the next case. So, sometimes, the records aren't sparkling clear as to how things were resolved.

Mr. Vann was convicted of being a felon in possession of a firearm. He had three prior convictions under North Carolina's Indecent Liberties Statute. The statute has two prohibitions:

(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:

(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire ["subsection (a)(1)"]; or

(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years ["subsection (a)(2)"].


If Mr. Vann violated section (a)(1), it isn't a crime of violence (necessarily); if he violated (a)(2), it is.

The trouble is that Mr. Vann entered a guilty plea in the state case to an indictment that accused him of both (a)(1) and (a)(2). So, is that a plea to the lesser of the two, or the more serious of the two? Or both?

Judge Niemeyer, in dissent, said that when a person pleads to an indictment that alleges Y and Z, the person pleads to both charges. This is familiar enough to anyone who has taken an intro to logic class in college.

But, natural language is funny, and not always a friend to the logician. To walk down a path not directly related to Mr. Vann, as the University of California, Irvine's logic wiki points out,

It's also worth noting that some English sentences carry some meaning that is not captured in Propositional Logic. For example, the sentence 'Jane Austen died and was buried in Winchester Cathedral in 1817' can be translated as P [and] Q (where P stands for 'Jane Austen died' and Q stands for 'Jane Austen was buried in Winchester Cathedral in 1817'). Now, since P [and] Q and Q [and] P are logically equivalent, they mean the same thing. However, the English sentence 'Jane Austen was buried in Winchester Cathedral in 1817 and died' implies that she was buried alive!

Whew! That's a good one.

Back to Mr. Vann. The question before the court of appeals was this - When a person pleads guilty to an indictment, are they pleading guilty to all parts of it, or can they be pleading guilty to the bare minimum that satisfies an offense charged in the indictment?

The en banc opinion of the court of appeals determined that they are pleading guilty to the bare minimum.

As the appeals court held,

That Vann's predicate charging documents properly use the conjunctive term 'and,' rather than the disjunctive 'or,' does not mean that Vann 'necessarily' pleaded guilty to subsection (a)(2). Similarly, in trials by jury, it has been established that a defendant convicted under a conjunctively charged indictment cannot be sentenced -- in the absence of a special verdict identifying the factual bases for conviction -- to a term of imprisonment exceeding the statutory maximum for the 'least-punished' of the disjunctive statutory conduct.

Because a finding of guilt that is ambiguous between two is read to mean that the person is guilty of the least significant offense for jury purposes, it is read the same way for a plea.


October 6, 2011

The Eighth Circuit Holds That Health Care Kickbacks Are Different Than Fraud

Medical supplies are big business. Sadly, where there's big business, there's big money, and, often, there's big law enforcement attention.

Geff Yielding worked as an assistant for a surgeon, Dr. Jordan, in Little Rock Arkansas. His wife, Kelley, started a company called ANI, that was in the medical services business. She became a sales agent for two bone-related medical supply companies. As such, she was paid on commission based on the number of sales she generated to surgeons.

Dr. Jordan used a nurse named Jordan Wall to order his supplies. Mr. Wall was an employee of the hospital where Dr. Jordan practiced.

Between February 2003 and October 2004, Kelley Yielding earned $384,000 in commissions. Her company, over the same period, wrote twenty-two checks to Jordan Wall.

One suspects that those checks may have been, uh, fishy.

A side note about health care kickbacks - in the world of medicine, paying someone for using your medical service or supplies is illegal. It's a violation of the Stark Act. In many businesses, paying for referrals is legal, indeed, de rigueur. In medicine when you're dealing with Medicare or Medicaid, a kickback is a crime. It's codified at 42 U.S.C. § 1320a-7b.

In 2004, Jordan Wall was fired by the hospital because there appeared to be improprieties in the way he ordered the products sold by Kelley Yielding - the hospital thought they didn't need one of the products, yet Mr. Wall ordered it anyway.

Also, creepily enough, more than one hundred pieces of bone were missing from the hospital's bone inventory. It isn't clear how this is related, but the Eighth Circuit's opinion notes it.*

Three days after Mr. Wall was fired, Dr. Jordan forwarded an email he received from the hospital about how the hospital was still investigating suspicious and unnecessary purchases of the products that Kelley Yielding sold.

The hospital was also still investigating the missing bone.

Three days later, Jordan Wall paid ANI, Kelley Yielding's company, $34,000, the exact amount he was paid in 2004. The repayment was labeled "repayment on loan."

The FBI investigated, searched the Yielding's house, and found a document purporting to be a note. The note said it was for a no interest loan to Jordan Wall from ANI, Kelley Yielding's company.

While the investigation was happening, Kelley Yielding died.**

Jordan Wall pled and flipped. He said that Geff Yielding arranged kickbacks for the products his wife sold and created a fake note to cover their tracks after the investigation started.

Mr. Geff Yielding was indicted and convicted for the kickback scheme and creating a false document to obstruct justice. He was sentenced to 78 months in prison, or six and a half years.

It isn't clear if anyone was ever prosecuted for the missing bone.

The Eighth Circuit, in United States v. Yielding, reversed for resentencing because the sentencing court miscalculated the United States Sentencing Guidelines.

Mr. Yielding was convicted of participation in a kickback scheme. So the court should have used sentencing guideline § 2B4.1. Like many white-collar crime guidelines, § 2B4.1 looks to the amount of money at stake to determine how serious the crime is.

Unlike many white-collar crime guidelines, § 2B4.1 does not look at the loss caused by the crime, rather, it looks to the size of the bribe (or kickback) or the profit made from the bribe (or kickback).

The sentencing court looked at the loss to the purchasers who bought the unneeded bone products, rather than the value of the commissions that the Yieldings received, or the amount of the kickback that they offered.

So, the guidelines were miscalculated - bribery has very different rules than fraud.

As a result, Mr. Yielding's case was remanded for resentencing, presumably with a much lower guidelines range at the end.

For additional news coverage, check out the Times Record from Arkansas.

* Did you know hospitals keep bone stockpiled? Me neither.

** It's not explained how she died in the opinion, though I'd like to know if it was related to it. Or caused by stress from it?

October 4, 2011

The Miranda Analysis Is Different For the Military, Says the First Circuit

Brian Rogers learned the hard way that, sometimes, selling a computer has a downside. As many computer experts recommend, if you're selling a computer you need to wipe the hard drive so that your financial information can't be found by someone else.

Mr. Rogers, however, should not have been worried about the buyer of his computer finding his financial information. Rather, he should have worried about the purchaser finding his child pornography.

Mr. Rogers was a non-commissioned Naval Officer at the Brunswick Naval Air Station in Maine. The police worked with the Naval Criminal Investigative Service (NCIS, for those who don't watch TV). Law enforcement obtained a search warrant.

NCIS and the police worked out that they would search Mr. Rogers condo when he wasn't there. They went in and searched the house while his pregnant wife and small child were home, but Mr. Rogers wasn't.

Instead, as the search was going on, NCIS asked Mr. Rogers' commanding officer to order him to go to the parking lot outside his home. They told him nothing else, except that his wife was ok.

Mr. Rogers went home. Armed police officers were in his house. NCIS wasn't there, but other police were. An officer asked him if he wanted to talk, after explaining the nature of their search. The office explained that Mr. Rogers wasn't under arrest, but that if Mr. Rogers was going to talk, "today's the day."

While they were talking, an NCIS officer arrived.

During that conversation, Mr. Rogers said that he downloaded the illegal images.

The Miranda Challenge

Mr. Rogers challenged that statement, saying that he was not free to resist the questioning, and the statement was un-Mirandized, so that it ought to be suppressed.

The district court denied the motion. Mr. Rogers entered a conditional plea, allowing him to appeal the district court's Miranda decision. The district court sentenced him to five years in the meantime.

The First Circuit's Decision

The First Circuit, in United States v. Rogers - an opinion written by retired Associate Supreme Court Justice Souter - held that Mr. Rogers' statement should have been suppressed.

First, Justice Souter explained that the issue of whether a person is in custody is not really a question of whether the person is free to leave, but more whether he or she is free to stop talking - "the crux of the first element [of a Miranda violation] must be liberty to terminate the verbal engagement with the police, not the liberty to leave."

When it comes to the freedom to stop talking, Justice Souter determined that the military is just different. As the court of appeals explained,

"[T]he most significant element in analyzing the situation is that the military had made certain that Rogers did not walk into it voluntarily, or confront the police with free choice to be where he was."

Because Mr. Rogers was ordered, literally, by his commanding officer, to be present for questioning, Justice Souter concluded for the First Circuit that he would not have felt free to terminate the questioning.

Because Mr. Rogers would not have felt free stop answering questions, his Miranda rights were violated.

The case was then remanded to see if a later curative instruction might have taken care of the Miranda violation.