September 16, 2011

The Federal Government Asks The Ninth Circuit To Hear The Obama Threats Case En Banc

Earlier, during the summer, I blogged about a Ninth Circuit opinion that vacated a conviction for making racially-motivated threats against President Obama.

As I noted at the end of that post, I am really looking forward to seeing how this gets resolved en banc.

And, apparently, I am now closer to getting to see that. The government has filed a petition for the Ninth Circuit to rehear the case. Politico's Josh Gerstein has detailed coverage and a link to the government's filing.

September 16, 2011

The Ninth Circuit Rejects A Car Search In Mr. Rodger's Neighborhood

In many ways, riding in a car is so much worse for you than, say, walking or riding a bike. When I drive, I know I'm not exercising; I can almost feel my muscles convert to fat. Driving burns gasoline, which is bad for the environment. Cars clog roads.

Other than the massive convenience and the ability to privately listen to bad radio, cars don't have much to recommend them.

Cars are even worse when you realize that driving a car also diminishes your Fourth Amendment rights. If the police have probable cause to think you have some contraband, they normally need a warrant to go in your house. Not so for your car. Because cars can move, the courts don't require a warrant to search a vehicle - mere probable cause is enough.

If you're arrested on the street, the police can search, "incident to arrest," anything you could reasonably be thought to reach while you're being subdued and arrested. If you're arrested in a car, the police can search, incident to your arrest, anything inside the car.

Perhaps this is one reason so few drug dealers on The Wire drive minivans. Or perhaps the lack of minivans on The Wire has more to do with this video.

In any event, given the law on the Fourth Amendment and vehicle searches, United States v. Rodgers, from the Ninth Circuit, is a breath of fresh air.

Mr. Rodgers was pulled over at 3:30 in the morning on the mean streets of Lakewood, Washington. His registration information showed that his car was one color - his car was, in fact, another. He was in a neighborhood known for crime, specifically juvenile prostitution.

The police officer who pulled him over approached the car. He recognized Mr. Rodgers as someone he'd pulled over before. Many times.

The officer also saw a girl who he estimated was about fifteen years old. He asked Mr. Rodgers why he was driving the girl at 3:30 in the morning. Mr. Rodgers said that he was taking her to an apartment building as a favor.

The officer suspected that Mr. Rodger's transportation involved a different kind of favor. He asked the girl for identification. She didn't have any. He asked her name, she gave him one.

The officer ran the name and found that there was an arrest warrant out for the girl. He pulled Mr. Rodgers and the girl out of the car, separately, for questioning. He asked the girl again for identification. She had no purse, and no identification in her pockets.

The officer then decided to search the car, near where the girl was sitting, for her identification.

He searched her seat and the center console. He found crystal meth.

He arrested Mr. Rodgers, then searched the entire car. He found a handgun and other drugs. Mr. Rodgers was charged in federal court with federal gun and drug charges.

He challenged the search of his car, but the district court denied his motion.

He was convicted at a bench trial, and determined to be an armed career criminal under 18 U.S.C. ยง 924(e)(1).

The Ninth Circuit reversed, finding that the search violated Mr. Rodger's rights.

The court of appeals rejected the government's position that the officer could search Mr. Rodger's car for the girl's identification, saying,

[The officer] did not identify any particular facts or observations that led him to believe [the girl] had identification and that it was inside Rodgers' car. Nor can we find any such facts in the record. There is, for example, no indication that [the officer] saw [the girl] trying to hide anything in the car, that [she] was eyeing anything inside the car, that [she] made any furtive movements, or that any papers or objects appearing to be identification were in plain view. Indeed, the only relevant fact [the officer] offered--that he never saw a purse or bag that might have contained [the girl's] identification--cuts against a finding of probable cause to search the car.

Because there was no probable cause, or other lawful reason, to search the car for the girl's identification, the evidence found had to be suppressed. Everything found after that was fruit of the same illegal search.


September 15, 2011

A Clever Defendant In The Ninth Circuit Wins, Then Loses, Arguing Double Jeopardy

People love a criminal defendant who tries to outwit the system. I suspect it says something profound about the American impulse to root for the underdog.* I've written before (here and here) about federal criminal defendants in the Ninth Circuit who have been rewarded by being clever about their cases.**

And, in United States v. Alvarez-Moreno, defense counsel cleverly navigated his client to an appellate issue.

Mr. Alvarez-Moreno was charged with transporting an alien for profit under 8 U.S.C. S 1324.

Two weeks before he was to start a jury trial, Mr. Alvarez-Moreno and the government agreed that the trial could be a bench trial. The court also agreed. (One odd feature of the federal system is that you can only have a bench trial on a felony if the government, the person who would be on trial, and court all agree under Federal Rule of Criminal Procedure 23.).

Everyone came to this conclusion right before trial. In the last minute push to get rid of a jury and go to the bench trial, no one noticed that Mr. Alvarez-Moreno never waived a jury trial in writing as required by Rule 23.

Mr. Alvarez-Moreno was convicted at the bench trial.

After he was convicted, he filed a "Motion to Set Aside Verdict By Trial Court" because Mr. Alvarez-Moreno did not properly waive his right to a jury trial. There's no question but that Mr. Alvarez-Moreno's conviction would be reversed on appeal if allowed to stand.

The district court treated that motion as a motion for a new trial, which it granted. The court set a new trial date.

Here's where things get interesting.

Mr. Alvarez-Moreno filed a motion to vacate the order for a new trial and dismiss the indictment because double jeopardy had attached. The trial court denied the motion.

Mr. Alvarez-Moreno appealed. (Normally, you can't appeal a criminal case until after sentencing. One of the narrow exceptions is for a violation of double jeopardy - the idea is that the harm in a double jeopardy violation is the second trial, so the appellate court will hear the decision before that harm can take place.)

The Ninth Circuit found that a new trial would violate double jeopardy. Jeopardy attached in the first trial when the judge started hearing evidence. Once jeopardy attaches, a person accused of a crime can only be retried - consistent with double jeopardy - in certain narrow circumstances.

One of those circumstances is if the defendant himself asks for a new trial. The district court construed Mr. Alvarez-Moreno's motion to set aside the verdict as a motion for a new trial. The Ninth Circuit said, basically, no. For that reason, a new trial would violate double jeopardy and the Ninth Circuit vacated the court's order granting one.

The appeals court, however, went a little further, denying Mr. Alvarez-Moreno's win much pleasure. The court of appeals directed the district court, on remand, to deny Mr. Alvarez-Moreno's original motion to set aside the court's verdict.

The Ninth Circuit then laid out Mr. Alvarez-Moreno's options:

If Alvarez-Moreno wants to correct the legal error, he can make a proper motion under Rule 33 for a new trial, or he can appeal the final judgment after he is sentenced; in either event, under the principles discussed earlier, he would have consented to retrial. Alternatively, Alvarez- Moreno may view those two routes as merely prolonging the inevitable, and so may decide that he does not want to undergo the stress of another trial. If so, he is, of course, entirely free to forego any Rule 33 motion or appeal and accept the sentence meted out on the basis of the conviction after it is reinstated upon remand. That sentence would not be void, but voidable, and if the sentence is complied with he could not be punished again for the same offense.

Perhaps cleverness has its limits.

 

* Though, as Adam Levin rightly reminds us in The Instructions, "anyone can tell his own underdog story. Be wary of underdogs."

** Why does this stuff only happen in the Ninth Circuit? You almost never see a clever defendant appeal come out in a defense-friendly way in, say, the Fourth Circuit.

September 14, 2011

Sex Offenders, Supervised Release, and The Eighth Circuit

As I think I've mentioned here before, Congress really does not like sex offenders. As it happens, neither do a number of federal district court judges.

The Eighth Circuit Court of Appeals recently made it a little harder for sentencing judges to act out of unthinking distaste for sex offenders in United States v. Springston.

A little background on Mr. Springston

Mr. Springston was required to register as a sex offender based on a 1986 conviction for sexual assault. Apparently, the sexual assault did not involve a child.

Mr. Springston had not registered as a sex offender. He was indicted for failing to register as a sex offender under 18 U.S.C. S 2250.

He was convicted and sentenced to three years in prison. The sentencing court also imposed ten years of supervised release on the end of his sentence.

A little background on supervised release

Supervised release, for those not familiar with the federal system, is a lot like what you think of as parole, only significantly less pleasant. A person on supervised release has not gotten out of prison earlier than the end of his sentence, and, if he violates his supervision, is not limited in the amount of additional prison time that he can receive by the remaining term of supervision.

When a person is given a sentence that includes supervised release, the sentencing court also sets conditions of supervision - things the person has to do, or he can be violated. If the person is violated, he can be sent back to prison.

Mr. Springston's supervised release conditions

The sentencing judge imposed three conditions of supervised release that were challenged in his appeal:

  1. He could not have unsupervised contact with a minor

  2. He could not have internet access at his house, or access the internet without the probation officer's supervision

  3. He had to have mental health treatment.

The sentencing court didn't spend a lot of time talking about these conditions. From the opinion, it looks like he just took the internet away from Mr. Springston without much thought (which, when you think about things like this, may not be so bad).

The Eighth Circuit vacated these conditions.



What a district court judge has to do when imposing conditions of supervised release, even for a sex offender

First, the law. Eighteen U.S.C. section 3583(d) requires

that a special condition must be reasonably related to the nature and circumstances of the offense of conviction, the defendant's history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant's educational, vocational, medical, or other correctional needs.

More importantly, a district court judge can't just make stuff up for special conditions, even for sex offenders. Rather,

In fashioning a special condition of supervised release, a court must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements.

The Eighth Circuit finds that that the district court can't just rely on views about sex offenders as a class of people to impose conditions of supervised release

The Eighth Circuit vacated all three challenged conditions.

As to the condition that Mr. Springston not have the internet in his house, the court of appeals observed,

The record . . . is devoid of evidence that Springston has ever used a computer for any purpose.

About the condition that Mr. Springston never be near a child unsupervised - despite that his offense did not involve a child - or that he needed mental health treatment, the district court only explained that

"Mr. Springston's history as a sex offender justifies all of those conditions."

The Eighth Circuit disagreed, and vacated these conditions of supervised release.

A condition of supervised release has to be based on an individualized inquiry about the person being sentenced. Mr. Springston's conditions weren't.

September 13, 2011

The Seventh Circuit Reminds Us That Loss Is Not Equal To Restitition (also, pleading open has benefits).

Tomas Leiskunas, a man who "at 26 years old . . . had a minor criminal history and at least two aliases," was charged with being a straw purchaser in a mortgage fraud scheme in the federal district court in Chicago.

The folks who were engaged in the scam, according to the Seventh Circuit's opinion in United States v. Leiskunas, would take out fake mortgages in Mr. Leiskunas's name* on houses that he was never going to live in. He would attend real estate closings and say that he was going to live in the houses.

That's against the law.

Mr. Leiskunas decided to plead guilty. He declined to accept a plea agreement from the government, deciding, instead, that he would like to plead open. (For prior posts on defendants who have done well on appeals by pleading open, check out this post, this post, or this post).

The biggest effect of an open guilty plea is that there are no agreements about the person's sentencing guidelines. In a fraud case, as in almost any white-collar case, loss amount is the largest question on the table. In Mr. Leiskunas's case, it was also responsible for his win in the Seventh Circuit.**

The starting point for most white-collar sentencing guidelines is section 2B1.1 of the federal sentencing guidelines. The biggest factor driving a white-collar case is normally loss amount.

The guidelines say that the loss amount is the amount of money that is reasonably foreseeable to be lost to the person charged with the crime.

In Mr. Leiskunas's case, the government had a novel and concrete theory of loss.

The total amount loaned in the closings that Mr. Leiskunas participated in was $4,473,161.55.

Because, as you may have noticed, the housing market is not doing well, each house involved in Mr. Leiskunas's case was foreclosed on (that they were a part of a mortgage fraud conspiracy may have been a contributing factor). The total value of money raised at these foreclosure sales was $1,792,000 less than the total amount loaned.

Thus, the government argued, the amount the banks lost must have been the amount that was reasonably foreseeable to Mr. Leiskunas.

The district court adopted the government's calculation of loss without much discussion.

The Seventh Circuit reversed because the district court did not offer an explanation for accepting the government's position.

The appeals court did not opine on the merits of the government's position. It did not note, for example, that there was no way Mr. Leiskunas could have known what the houses would fetch later at a foreclosure sale. The court of appeals did not explain that the amount used as a loss number was the amount of harm actually suffered, which is very different than the amount of harm that Mr. Leiskunas would have been able to predict when he participated in the mortgage fraud. The Seventh Circuit also did not point out that the government's test completely fails to account for the way the guidelines explicitly say that loss amount should be calculated.

Nope, the Seventh Circuit just sent it back for a better explanation.

 

* Or, if not his actual name, one he would be willing to answer to during a real estate closing.

** Sort of. The Seventh Circuit also reversed on the district court's determination that Mr. Leiskunas did not play a minor role in the mortgage fraud scheme. The district court expressed the belief that the law was that Mr. Leiskunas could not be a minor player if he was essential to the scheme or was involved, in a minor way, a number of times. This was not the law, according to the Seventh Circuit. For more, see USSC S 3B1.2.

September 12, 2011

Dismiss a Case Because of a Speedy Trial Act Violation? Not so fast.

The Speedy Trial Act is an odd thing. Normally, a person charged with a federal crime - be it a white-collar crime or a drug distribution charge - has spent less time looking at the government's evidence than the government. Often, a defendant is going to want more time to prepare for trial than the 70 days provided by the Speedy Trial Act, at 18 U.S.C. 3161. (Though not always, Senator Ted Stevens didn't seek more time and that worked out well for him.)

That said, normally the government wants more time too. And, for that matter, the trial court often wants more time. That's likely less the case in, say, the Eastern District of Virginia, but in a number of federal courts around the country - especially as the pace of judicial confirmations slows - the trial judge is hoping that a trial isn't going to happen 70 days into the case as much as anyone.

As a result, in many cases there winds up being a conspiracy between the government, the court, and, sometimes, the defendant to defeat the Speedy Trial Act.

The Act excludes any time that a motion is pending during the 70 day time. So, normally, the defendant files a motion to suppress evidence, or, quixotically, to dismiss the indictment, and that stops the Speedy Trial Clock.

This gets tricky, however, because if the Speedy Trial Act is not complied with, the Act requires that the indictment gets dismissed - though more on that later. So a defendant both wants to stop the clock, and benefit from the clock not being stopped.

In the Eight Circuit's recent opinion in Bloate v. United States, the court of appeals addressed an interesting Speedy Trial Act issue.

Mr. Bloate was convicted and sentenced to 30 years in prison. He filed a motion to dismiss the indictment under the Speedy Trial Act. It was denied. He appealed, complaining about the Speedy Trial Act. His appeal lost. He went to the United States Supreme Court. The Supreme Court held that the Eighth Circuit should not have denied his Speedy Trial Act claim for the reason it did. The Court remanded for the Eighth Circuit to take a mulligan on the Speedy Trial Question.

Here's the timeline for Speedy Trial Analysis - Mr. Bloate was indicted on August 24. His motions were due on September 13. On September 7, he filed a motion for more time that the court granted the same day. On September 25, Mr. Bloate filed something with the court called a "Waiver of Pretrial Motions" - it indicated that he wasn't going to file any pretrial motions (it was well named).

On October 4, the district court had a hearing, where it asked Mr. Bloate if he understood he could file motions and was deciding not to on purpose - this is, whether the waiver was knowing and voluntary. It was, and nothing happened until the government filed motions on February 23 of the next year, which stopped the clock.

There are more than 70 days between August 24 and February 23.

The Supreme Court looked at this timeline and was called to resolve whether the time Mr. Bloate had to prepare pretrial motions, from when the scheduling order issued on August 24 until the court's hearing on October 4 was excludable. In an opinion by Justice Thomas, the Court concluded that it isn't.*

The Eight Circuit then had the case on remand to see if filing a "Waiver of Pretrial Motions" counts as a pretrial motion. If it does, the time while it was pending would be excluded. The Eighth Circuit walks through a number of reasons why it isn't (in the same way that a waiver of a right to a trial is not a trial). The court of appeals concludes that a "Waiver of Pretrial Motions" is not a pretrial motion.

But, just when you thought Mr. Bloate was going home and avoiding 30 years in prison, the Eighth Circuit directed the district court to decide whether Mr. Bloate's indictment should be dismissed with prejudice or without - basically whether the government could just seek a new indictment to bring charges against Mr. Bloate anew.

What do you think the district court will decide?

 

* Justice Thomas's originalism has been the subject of a lot of attention lately, thanks largely to Jeffrey Tobin's piece in the New Yorker. This opinion looks like a kind consequence of originalism - you stick with what the words actually mean, even if they make prosecuting people harder.

September 9, 2011

A Federal Judge Dismisses An Indictment On A Pretrial Motion Based On Determination About The Facts In The Case, And All I Do Is Complain

One of the massively frustrating things about federal criminal procedure is that you cannot normally challenge, through a pretrial motion, whether the facts that the government think happened actually violate some criminal law.

By contrast, in a civil case, if I'm suing you, you can file a motion that says my lawsuit should be dismissed. This is a good thing.

For example, suppose I file suit against you and say, in my complaint, "You gave me a banana. That was negligent. The Court should give me 20 million dollars. A jury trial is requested." The very first thing you would do is file a motion that says "Matt said that I was negligent, but didn't say how, other than that I gave him a banana, which is not normally negligent. His law suit should be dismissed."

And, when a judge read that, he, or she, would seriously think about whether to dismiss my lawsuit, before everyone spent thousands of dollars preparing and worrying and yelling at each other on the phone.

In a criminal case, though, this is normally not possible. The government can put in an indictment "Larry gave Susan a banana. He distributed cocaine in violation of 21 U.S.C. S 841 in the District of Columbia." and that will pass muster. If the person charged with the crime tries to file a motion to dismiss, they'll lose - Federal Rule of Criminal Procedure 7 requires just about nothing in the way of factual specificity. On to trial you'll go.*

Sometimes, the government and the defendant agree about what happened for the purposes of a pretrial motion. The government thinks that it was a crime, and the person accused thinks that it wasn't a crime. Normally, there is little way for the person accused to ask the court if the conduct was a crime, before everyone spends a tremendous amount of money, and the person accused of the crime undergoes a tremendous amount of stress. The most reliable way to handle something like this is on a stipulated facts trial, like in the Ninth Circuit's case on racially motivated threats against President Obama. Of course, then the person charged with the crime doesn't get to have a meaningful trial.

Most federal district court judges, in most cases, will not consider a motion to dismiss an indictment if it relies on any assumptions about what the facts of the case are.

Happily, Judge Boasberg on the United States District Court for the District of Columbia,** granted a motion to dismiss a count on an indictment based on a pretrial determination about the facts in the case in United States v. Nitschke.

Judge Boasberg dismissed an indictment where the facts of the case - as set out by pretrial motion which were not objected to by the government - showed that there was no crime.

The opinion defends the normal practice, though, asserting that,

"[i]t would certainly be improper to force the government in the normal case to proffer its evidence pretrial so that the defense might test its sufficiency. That could, for instance, curtail the government's ability to obtain additional evidence or locate additional witnesses."

I just don't understand that point. What would be bad about putting the government's theory of the evidence to the test? If there are additional witnesses the government needs, why is it indicting?

Robust pretrial motions practice in civil cases - dismissing bad lawsuits before they go too far - is a good thing. It saves money, time, and stress.

What's so broken about our civil justice system that it won't work for criminal cases?

* Though perhaps you could file a motion to strike the part about the banana. It's kind of surplus language.

** Yes, this is is strictly speaking not about a federal criminal appeal. Here's to hoping it doesn't undermine the thematic content of this blog too much.

September 9, 2011

The Second Circuit Joins The Ninth In Rejecting Restitution In A Child Porn Case

As devoted readers will recall, the Ninth Circuit recently rejected a restitution claim by a woman who was depicted in child pornography when she was a child. The Second Circuit just agreed with the Ninth Circuit, in United States v. Aumais. Yet another Circuit jumps on the anti-restitution for child porn victims freight train.

The Second Circuit held that "proximate cause is a deeply rooted principle in both tort and criminal law that Congress did not abrogate" when it created the statute that allows restitution, 18 U.S.C. S 2259. Because the woman seeking restitution couldn't show that the defendant's conduct was a proximate cause of her harm, her restitution award was vacated.

The opinion in Aumais rejects a restitution claim made by the same woman that was at issue in the prior Ninth Circuit case, Kennedy, and for the same reasons.

All of this got me thinking. In both opinions, the woman, "Amy", describes feeling trauma whenever she gets a victim notification from the United States Department of Justice. Why they doesn't DOJ just stop sending notices?

In any event, the Second Circuit now agrees with many others that if the district court is going to charge some one for the financial costs of a crime, the person has to have caused the harm that the court is holding the person responsible for.

September 8, 2011

Maybe the Fourth Circuit is trying to protect its brand?

Orin Kerr, one of the Volokh conspirators, published on that august blog the rates of unpublished opinions of the federal courts of appeals from September 2009 to September 2010. As a guy who practices in the Fourth Circuit, I knew they had a thing for unpublished opinions, I just didn't realize how far out of line the Fourth Circuit is from its sister circuits.

Here's the table:

Circuit/Percentage of Opinions that are Unpublished

4th Circuit/ 93.0%

3rd Circuit/ 89.8%

11th Circuit/ 89.6%

2nd Circuit/ 88.3%

5th Circuit/ 87.4%

9th Circuit/ 86.9%

6th Circuit/ 83.6%

10th Circuit/ 77.5%

8th Circuit/ 71.8%

1st Circuit/ 65.1%

DC Circuit/ 62.3%

7th Circuit/ 59.8%

What is up with that? It's massively frustrating for litigants to think that their case doesn't matter. When the court stamps -- on 93% of it's cases -- language that says, in effect, "we're not going to pay attention to this decision later", the court undermines the confidence that litigants have that they're getting a fair shake.

What explains the Fourth Circuit's much higher rate of unpublished opinions, particularly in comparison to the D.C. Circuit? Do they have three times the number of Anders briefs?

September 8, 2011

The First Circuit Vacates A Conspiracy Conviction

Federal conspiracy charges are challenging. What counts as a conspiracy is broad enough to make conspiracy charges a favorite of federal prosecutors. Yet, the precise bounds of any given conspiracy are very difficult to trace.

Courts swing back and forth between whether to restrict conspiracy charges or let federal prosecutors have a freer reign with them. Opinions, or, worse, jury instructions, setting out the evidence required to prove a conspiracy swing back and forth.

On one hand, the government has to show that there's an agreement between the people who are supposedly in the conspiracy. On the other hand, an agreement doesn't have to be in writing, or even acknowledged as an agreement, and it can be inferred from the actions of the people who are accused of a crime. Yet mere temporal or physical proximity between the alleged co-conspirators is not enough to prove a conspiracy. Though a person can become a co-conspirator without knowing all the parts of the conspiracy, mere knowledge of the conspiracy is not enough to make a person a conspirator.

Reading these opinions reminds me of the Simpson's Halloween Special where Homer buys a toy for Bart at a creepy ancient medicine store:

Shopkeeper: [Homer has agreed to purchase a Krusty doll for Bart's birthday] Take this object, but beware it carries a terrible curse!

Homer: Ooh, that's bad.

Shopkeeper: But it comes with a free frogurt!

Homer: That's good.

Shopkeeper: The frogurt is also cursed.

Homer: That's bad.

Shopkeeper: But you get your choice of toppings.

Homer: That's good!

Shopkeeper: The toppings contain potassium benzoate.

[Homer looks puzzled]

Shopkeeper: ...That's bad.

Homer: Can I go now?

(the clip is available on Hulu here - sorry for the lack of embeddable video)

The First Circuit's recent decision in United States v. Szpyt illustrates a serious problem with conspiracy prosecutions - the conspiracy the prosecutor thinks he or she has, and sets out in the indictment, may not actually be the conspiracy that gets proven at trial.

In Mr. Szpyt's case, he was charged with being in a single conspiracy to distribute cocaine and marijuana with a man named Sanborn (who was also charged). They were alleged to sell both kinds of drugs to and with the members of a biker gang in Maine named the Iron Horsemen.

The government put on a wealth of evidence that Sanborn ran what the First Circuit called a "marijuana distribution emporium." Sanborn sold marijuana and cocaine - the evidence at trial only showed that Szpyt sold cocaine. There was no credible evidence that Szpyt was a marijuana dealer.

Because the government said that both Sanborn and Szpyt both sold both drugs, they argued that the government's evidence showed a different conspiracy than the one the government described in the indictment.

As the First Circuit explained the problem,

Perhaps this case is best understood if we think of Sanborn as a drug supermarket owner, who sold different products, cocaine and marijuana, rather than bananas and tomatoes, from different distributors: cocaine from the . . . Szpyt chain and marijuana from the Demarco and Boivin-Chase suppliers. Were we actually considering such fruit distribution chains in the context of an actual supermarket, we would be hard put to argue that the intersection of those two separate fruit product distribution chains would be of any legal significance as far as somehow making the members of the two separate chains overall business partners. Neither would it be reasonable to argue that merely distributing tomatoes to the supermarket, by itself, would make the tomato distributor a partner in the supermarket's overall business of selling bananas and other foods. When we transfer this bucolic scenario to the present case, we can perceive no legally significant difference in the outcome. The Vizcaino-Dellosantos- Szpyt criminal conspiracy to distribute cocaine was a different criminal enterprise than the Boivin-Chase-Sanborn-Jordan marijuana enterprise, with different products, a different source of supply, different goals, and a different history. Similarly, distributing cocaine (rather than tomatoes) to Sanborn's drug supermarket does not, by itself, make Vizcaino, Dellosantos and Szpyt partners in Sanborn's drug supermarket business of distributing cocaine and marijuana.

Thus, the First Circuit ruled, the government's evidence varied from the allegations in the indictment. The evidence showed that two conspiracies existed, not one.

Not all variances require a reversal though. The court of appeals will only find that the government's failure to prove what it said happened triggers a reversal if it prejudices the person convicted.

Here, the First Circuit found that there was substantial prejudice. The defendant, and his lawyer, went to trial thinking they were responding to one kind of conspiracy. When they got there, they faced evidence of another. The First Circuit held that this unfairly compromised their ability to prepare for trial.

Accordingly, the court of appeals vacated the convictions.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.

September 7, 2011

Please say nice things about this blog to the ABA

Dear readers,

The American Bar Association is asking people to tell it what law-related blogs are good.* If you like this blog, I would very-much appreciate it if you would say something nice to the ABA about it. The ABA puts together a list of the 100 law-related blogs in the country that it thinks are funny, cool, or reflect good parenting by the blogger's Mom and Dad. These blogs are crowned the best blogs in the country.

Much like The Onion's campaign to win a Pulitzer Price, I suspect my quest for honor may not be rewarded. At least I didn't ask Tom Hanks to do a YouTube video.

Here is the link to say nice things about a blog to the ABA. The deadline's September 9, 2011, which is Friday (the day after tomorrow)

If you don't like this blog, please feel free to send me an email telling me why (yes, you can use profanity). You can email me here.

Ok, that's enough self-promotion in one day for a guy raised in Iowa.

* Many in this world call a law-related blog a "blawg", including the ABA. I don't, mainly because the phrase sounds, to my ear exactly like "blog." When I try to say it out loud so that there is a difference in the way it sounds compared to "blog", the word feels too chewy to me -- like a raisin stuffed with cold oatmeal. But far be it for me to tell you, or the ABA, how to refer to a law-related blog. Use the language any way you'd like.

September 7, 2011

How The Eighth Circuit Saved Christmas

Legislators like to punish repeat offenders. That's just good politics - "Mike Sloss puts repeat offenders behind bars" sounds better than "Mike Sloss has a balanced policy on recidivism" when put on a bumper sticker.

So it isn't surprising that the Armed Career Criminal Act, located at 18 U.S.C. S 924(e)(1), jacks up the penalties for a person convicted of being a felon in possession of a firearm if the person who is convicted has at least three prior convictions for drug dealing or a violent crime.

In a nod to fairness, though, Congress does require that those prior convictions be committed "on occasions different from one another."

What counts as an "occasion" though? The Eighth Circuit, in United States v. Willoughby, faced exactly that question.

Mr. Willoughby pled guilty to being a felon in possession of a firearm. At sentencing, the district court had to figure out if one of Mr. Willoughby's prior convictions counted as one prior conviction, or as two. He had been convicted of two counts of conduct in the one previous case.

According to the police report in the prior case, an undercover cop went with a confidential information to Mr. Willoughby's house. The affidavit in support of the complaint said that when the officer and CI got there,

Michael Willoughby was sitting in a chair in the northeast corner of the living room. . . . Willoughby was wearing a tan/off white t-shirt and blue jeans. He was also wearing red suspenders hanging down by his legs. These are commonly referred to as ["]braces["] by Neonazi/skinhead groups.

Undeterred by the menacing "braces", the law enforcement officer and the CI asked Mr. Willoughby if they could by drugs. Willoughby left the room to get some drugs.

When Willoughby returned to the living room he had two sandwich bags containing a green leafy substance in his hand. He started to give both to the C/I. I held out my left hand. Willoughby gave one to the C/I then gave one to me. The C/I gave Willoughby the $25 I gave him. I gave Willoughby $50. I smelled the contents of the bag Willoughby gave me. It smelled and looked like marijuana. We immediately left the house.

The district court found that this course of conduct was actually two different "occasions." Because handing the drugs to the undercover cop was a different "occasion" than handing drugs to the CI, this transaction gave rise to two drug offenses. Willoughby was, therefore, determined to be an Armed Career Criminal. As a result, he faced a mandatory minimum sentence of fifteen years.

If Willoughby had handed all the drugs to the CI, perhaps it would have been one "occasion." But that quarter of a second between when the CI took the drugs and when the undercover cop did, Willoughby restarted the "occasion" clock, according to the sentencing judge.

So many "occasions"

This makes me wonder what holidays, and other special "occasions", are like at the district judge's house. Personally, I like special "occasions" because they're a time with family. Hearing of the district court's approach to the term "occasion" in our shared language, though, makes me think that I'm wrong.

Apparently, at Thanksgiving, when I take a piece of turkey, it's a different "occasion" than when I take the mashed potatoes. And there's no "occasion" where I get to eat with my family all gathered together - by the time my dad takes his food, it's already a different "occasion" than when my son did.

No wonder so many people feel lonely around the holidays.

Happily, the Eighth Circuit rejected an interpretation of "occasion" that leads to such isolation.

The Eighth Circuit held that Willoughby's drug dealing was a single "occasion" because "the sale was, in actuality, one 'continuous course of conduct.'"

There are strict limits, though, to what counts as one "occasion" even for the Eighth Circuit. The court of appeals explained

"'[c]rimes occurring even minutes apart can qualify [as separate 'occasions'] if they have different victims,' thereby reflecting a lack of substantive continuity, 'and are committed in different locations,'

As guidance for the holidays, I think that means that if your dad and brother go out to the radial-arm saw in the garage to have a cigar and a glass of cognac, they aren't celebrating the same special "occasion" as the folks inside still finishing off the pecan pie. At least according to the Eighth Circuit.

Though that result, at least, seems consistent with my own intuitions.

September 6, 2011

More Valor Stolen From The Stolen Valor Act

The Stolen Valor Act, at 18 U.S.C. 704, makes it a federal crime to lie about having certain military honors.

The Ninth Circuit, in an opinion that can almost never be quoted enough, held that the Stolen Valor Act is unconstitutional. Judge Kozinksi writes,

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy ("No, I don't live around here"); to avoid hurt feelings ("Friday is my study night"); to make others feel better ("Gee you've gotten skinny"); to avoid recriminations ("I only lost $10 at poker"); to prevent grief ("The doc says you're getting better"); to maintain domestic tranquility ("She's just a friend"); to avoid social stigma ("I just haven't met the right woman"); for career advancement ("I'm sooo lucky to have a smart boss like you"); to avoid being lonely ("I love opera"); to eliminate a rival ("He has a boyfriend"); to achieve an objective ("But I love you so much"); to defeat an objective ("I'm allergic to latex"); to make an exit ("It's not you, it's me"); to delay the inevitable ("The check is in the mail"); to communicate displeasure ("There's nothing wrong"); to get someone off your back ("I'll call you about lunch"); to escape a nudnik ("My mother's on the other line"); to namedrop ("We go way back"); to set up a surprise party ("I need help moving the piano"); to buy time ("I'm on my way"); to keep up appearances ("We're not talking divorce"); to avoid taking out the trash ("My back hurts"); to duck an obligation ("I've got a headache"); to maintain a public image ("I go to church every Sunday"); to make a point ("Ich bin ein Berliner"); to save face ("I had too much to drink"); to humor ("Correct as usual, King Friday"); to avoid embarrassment ("That wasn't me"); to curry favor ("I've read all your books"); to get a clerkship ("You're the greatest living jurist"); to save a dollar ("I gave at the office"); or to maintain innocence ("There are eight tiny reindeer on the rooftop").

The Stolen Valor Act has recently been found unconstitutional by another jurist, Magistrate Judge DiGirolamo on the United States District Court for the District of Maryland. Here's the opinion. (for more coverage, see the Washington Examiner)

If you accept the premise set out by Garrett Epps in the Atlantic that the debate over the Stolen Valor Act is really just a debate about whether lies have First Amendment protection, then Judge DiGirolamo comes squarely down on a reading of a more expansive First Amendment. He writes,

First Amendment protection does not hinge on the truth of falsity of the matter stated. While some false speech may be proscribed, the Supreme Court has made it clear that not all of it is.
September 6, 2011

Summary Evidence And White-Collar Crimes: The Tenth Circuit Says You Can't Summarize What Isn't In Evidence

White-collar criminal cases present unique challenges. White-collar cases often involve vast amounts of information - in addition to a subject matter that's complicated and all the difficulties of a general federal criminal case.

For example, I had a case that had close to 60 gigabytes of evidence produced by the government, not counting the information that I collected through my own investigation.

The information deluge is a problem in figuring out a case. It's also a problem in figuring out how to present a case to a jury.

Yet the way this information is conveyed to the jury in a white-collar case is the same as in any trial - it is primarily explained through witnesses or other demonstrative evidence. No trial lawyer sends the jury back with 80 boxes of documents and tells them that if they examine it all, they'll reach the right verdict.

The government often handles this challenge by using summary evidence. Basically, the Federal Rules of Evidence lets a party introduce evidence that summarizes other evidence in a case. So, the government will frequently make a chart that summarizes what other documents in the case revealed, or what other witnesses said. The summary is admitted as evidence - it gets shown to the jury during trial and it goes back to the jury room during deliberations.*

Of course, summary evidence is often not a friend to the defense. By cherry picking the worst parts of the documents, the government can create an impression for the jury that's unhelpful in the quest for an acquittal.

The Tenth Circuit, in a mortgage fraud case, recently reversed (one count of) a conviction because the district court admitted a summary chart that was clearly inadmissible. The case is United States v. Irvin.

The core of the mortgage fraud case was that the people on trial - Mr. Vanatta and Mr. Miller - had provided false information on behalf of home buyers so that they could get mortgages. Mr. Sparks helped and was charged. He preferred his chances with the United States Attorney's Office's 5K1.1 committee, and testified for the government.

As the Tenth Circuit explained the allegations,

In order to ensure that otherwise unqualified buyers could obtain financing, Sparks and Vanatta enhanced such buyers' apparent creditworthiness by, among other things, overstating the buyers' income, altering bank statements to add deposits, and drafting false letters of employment. The mortgage lenders were further induced to extend financing through Miller's use of inflated home appraisals, overvaluing the relevant properties and thereby enhancing the lenders' perceived loan-to-collateral ratio.

If you've been reading the news lately, or purchased a home between 2003 and 2008, these kinds of allegations are probably not new to you.

The summary evidence in United States v. Irvin summarized a large number of loan documents.

The underlying loan documents, though, were not admitted into evidence. In fact, they were inadmissible as hearsay, because they contained thousands of statements of facts.

Hearsay, for the uninitiated, includes statements in documents that someone wants to get in front of a jury - it isn't limited to someone repeating what another person said from the witness stand.

So, if you have an email from Larry, and Larry describes something that happened, Larry's email is hearsay.

Hearsay can be a part of a trial, but there has to be an exception that applies to allow it to be admissible. There are many hearsay exceptions.**

One hearsay exception is for business records. If, for example, a mortgage company keeps certain records for it's business, and you can meet certain criteria, and have someone from the mortgage company testify that those criteria are met, then you can introduce the loan documents.

Though in Irvin, the government didn't do that. It had no witness from the company to show that the hearsay exception applied, so it wasn't able to admit them.

Since the documents that made up the summary document were inadmissible, the summary document itself was inadmissible.

* This is not the same, as a matter of legal doctrine, as a summary witness. The government really likes to use those too. When the government uses a summary witness, an agent will get on the stand and basically narrate what she can about what happened in the case - it's like the government gets to provide another opening statement. As the D.C. Circuit has observed, there are some problems with summary witnesses too.

** Here's a cute video on hearsay exceptions that may not make any sense if you haven't been to law school.

(Why do lawyers think it's funny to see legal terms used in a song?)

September 5, 2011

My Guest Post on the American Constitution Society Blog

Happy Labor Day!

I hope you're spending the day with something, or someone, that isn't on the internet. In case my hopes are frustrated, and you're looking for something to read, I have a guest post on the American Constitution Society's blog:

What Can the Rumble in Rhode Island Tell us About the Obama Administration and the Death Penalty?