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Orin Kerr, one of the Volokh conspirators, published on that august blog the rates of unpublished opinions of the federal courts of appeals from September 2009 to September 2010. As a guy who practices in the Fourth Circuit, I knew they had a thing for unpublished opinions, I just didn't realize how far out of line the Fourth Circuit is from its sister circuits.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Circuit/Percentage of Opinions that are Unpublished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

September 2, 2011

A Man's Cleverness Reduces His Sentence By 14 Years: The Ninth Circuit, Apprendi, and Pleading Open

Stacy Hunt - a man with multiple prior convictions, who attempted to pick up a package of drugs at an airport in Alaska, flipped on others involved in the drug deal, then fled to California where he was rearrested - appears to have outsmarted the United States Department of Justice and a federal district court judge.

The case is United States v. Hunt, from the Ninth Circuit.

To see how Mr. Hunt was clever, you need to understand two rules of federal criminal law.

First, 21 U.S.C. S 841(a)(1) prohibits possessing drugs with the intent to distribute. The statute prohibits possessing any controlled substance - it doesn't get specific as to the type of drug.

The statutory maximums for section 841(a)(1) for the different kinds of drugs are set out at 841(b). The language is a bit baroque, but, basically, if you violate section 841(a) for possessing cocaine, the statutory maximum is 20 years. If you violate section 841(a) for possessing a Schedule V drug - like codeine , the maximum is 1 year. See section 841(b)(3).

So, to be clear, the first thing you need to know is that the statutory maximum penalty for possession with intent to distribute depends on the kind of drug involved. If it's codeine, the statutory maximum is one year: if it's cocaine, the statutory maximum is twenty-years.

Second, the Supreme Court of the United States held, in Apprendi v. New Jersey that,

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Mr. Hunt was charged with a violation of 21 U.S.C. S 841(a). He fired his lawyer and handled his case himself. He told the court that he wanted to enter a guilty plea - which is his right. He pled guilty to attempting to possess with intent to distribute a controlled substance.

Every plea has to have a factual basis for the judge to accept it - that is, the judge has to make sure that the person pleading guilty admits facts that meet each and every element of the crime.

Here's how the Ninth Circuit recaps the conversation that the court had with Mr. Hunt to make sure he admitted that he violated section 841(a):

First, in response to the court's inquiry regarding the elements of the offense, the Assistant United States Attorney (AUSA) stated that the government would need to prove at trial that Hunt "attempted to possess a parcel that contained a little over a kilogram of cocaine . . . and that he did so knowingly." Hunt stated that he understood those elements. After a few moments passed, the AUSA stated that he forgot to include the element that "Mr. Hunt attempted to possess that cocaine with the intent to distribute it thereafter." Hunt responded that he understood that additional element.

The court then restated the elements of the offense as follows: "So you attempted to possess cocaine, you knew it was cocaine or some illegal drug, and you did it with the intent to distribute. I guess those are the three elements, okay?"(emphasis added). Hunt replied, "To those elements, yes, I agree." Hunt then asked that the government state the elements one last time. The AUSA responded that the government would have to prove that "Mr. Hunt attempted to possess a parcel which contained a little over a kilogram of cocaine [and] . . . [w]e'd have to prove that Mr. Hunt's attempt to possess that cocaine was done knowingly and then we'd have to prove that he intended to distribute that cocaine after coming into possession of it." Hunt replied, "Yes I understand those elements. As far as the specific amount, I don't have personal knowledge of it . . . as I never opened the package and weighed it, but I do accept responsibility for whatever it was."

After the government stated the facts it expected to prove if the case were to proceed to trial--including that Hunt was found in possession of a package of over 500 grams of cocaine and later admitted that he had ordered the drugs in a written statement--Hunt said, "For the most part, the facts are true. I admit all the elements of 841(a)(1), and also as I said, I did not receive the package and open it, so I have no specific knowledge of what it contained other than it did contain a controlled substance, that I do know, and I did attempt to possess that controlled substance." Hunt also confirmed that he had intended to sell or give away the controlled substance. The court then asked the government, "That sounds sufficient, doesn't it, counsel?" The AUSA agreed that Hunt's admission was sufficient to supply a factual basis for the offense, and the court accepted Hunt's plea.

The presentence report determined that Mr. Hunt's crime involved cocaine. Accordingly, the presentence report found that the statutory maximum was 20 years.

The sentencing court adopted this finding, and determined that a 20-year statutory maximum applies to Mr. Hunt.

Mr. Hunt objected to this determination, and he had this exchange with the sentencing court:

HUNT: Also, when I made my objections, which has been overlooked, I also objected on the grounds that I did not at plea colloquy admit to a specific type of controlled substance, and I only agreed that I attempted to possess a controlled substance.


HUNT: Not crack, cocaine, or marijuana, or anything like that. I only agree to a Schedule II -- not even a Schedule II. I only agree to a controlled substance. So are you also making a finding for the type of drug also?

THE COURT: Yes, okay.

HUNT: So I'd like to make sure that my (indiscernible) objection is in for not just quantity but also as to type of drugs. And my position is that I should fall back to marijuana for no remuneration, with a statutory max of five years [sic], up -- under (b)(1)(D).

THE COURT: Very well. Boy, you're smart. You've made your record, but I -- you haven't changed my mind.

HUNT: Okay, that's fine.

The sentencing court heard evidence as a part of the sentencing proceeding. Folks testified that the drugs were cocaine. Mr. Hunt was sentenced on the assumption that the statutory maximum is 20 years. The court gave him a sentence of 15 years in prison.

On appeal, the Ninth Circuit found that the district court's sentence is not consistent with Apprendi. Because Mr. Hunt did not admit that the controlled substance was cocaine, rather than, say, codeine, and no jury found that the drugs were cocaine, the statutory maximum cannot be more than one year. As the Court held, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

Mr. Hunt's sentence was vacated, and the Ninth Circuit remanded the case with instructions to sentence Mr. Hunt with a statutory maximum of one year.

September 1, 2011

Why The Government Has To Prove They Don't Make Computers in Iowa

Rarely has conduct at a hockey game exposed such an interesting constitutional feature of federal criminal law.

Randy Johnson was taking photographs at a hockey game in Des Moines, Iowa. He was a professional photographer. His assistant, Dawn, was helping by removing memory cards from Mr. Johnson's cameras and transferring the photographs on those memory cards onto his laptop.

While she was downloading and organizing his photographs, she noticed a folder labeled "girls". They appeared to be photographs of girls - not women referred to in a mildly sexist way. Without going into details, photographs of such a nature as those are illegal to possess.

Dawn took the laptop to a police officer at the hockey game. The police officer took Mr. Johnson to the police station.

He was indicted for receiving child pornography and possessing child pornography. He went to trial and was convicted on both counts. The sentencing judge imposed a sentence of 120 months on the possession count and 136 months on the receipt count. The sentences were to run concurrent.

Mr. Johnson appealed his sentence on two grounds. First, that the evidence wasn't sufficient for a conviction on the receipt count. Second, if it was, double jeopardy bars a prosecution for both. (astute readers will recall seeing this issue before).

In United States v. Johnson, the Eighth Circuit reversed Mr. Johnson's conviction - why the conviction was reversed exposes an interesting constitutional trick at the core of many criminal statutes.

To find someone guilty of receipt of child pornography, you need to prove, basically, that the person received child pornography using something that crossed a state line. More specifically, the government has to prove that the person received child pornography

using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails

18 U.S.C. 2252(a)(2)

This is normally called the "jurisdictional element" - it's an element of the crime, and the only reason it's there is to make sure that Congress has the power to make the law.

Congress cannot make any law that it wants - rather it needs to make sure that every law it makes is made through the exercise of some power delegated by the constitution.

The most popular clause for Congress to use to justify it's power to make law is the Commerce Clause. This is the justification offered for Congress's power to enact the health care reform law, slowly making it's way to the Supreme Court. Justice Thomas has distinguished himself by wanting to roll back the breadth of the Commerce Clause. That Clause is kind of a big deal.

In federal criminal cases, the jurisdictional element, and the Commerce Clause in general, is very rarely a deal.

In Mr. Johnson's case, two errors combined, and, as a result, the government did not prove that Mr. Johnson's receipt of child pornography affected interstate commerce.

First, the government charged that the images were downloaded from the internet in the indictment. Downloading from the internet, a means of interstate commerce, counts. Yet, at trial, the government's own expert testified that he wasn't sure if the pictures came from the internet - there are a lot of ways to transfer files and he could have gotten them from a CD or DVD from someone else.

Second, the trial court gave the wrong instruction to the jury about the jurisdictional element. The judge instructed the jury that, to find Mr. Johnson guilty, they would have to find that

"[t]he material[s] containing the [illicit] visual depictions were produced using materials that had been mailed, shipped, or transported by computer in interstate or foreign commerce."

As the court of appeals explained, the Eighth Circuit has previously held that if the government shows that the computer used to download the contraband crossed state lines before the child pornography was downloaded, that's enough to meet this element.

And, of course, it's easy as rhubarb pie to show that a computer in Iowa crossed state lines - they don't make computers in Iowa.

Yet, because the government failed to introduce evidence that met the jurisdictional element, Mr. Johnson's conviction cannot stand.

August 31, 2011

Protesters Have No Reason To Picket The Ninth Circuit (Though If They Did, They'd Be Welcome To Do It)

The Ninth Circuit is a hotbed of defendant-friendly First Amendment jurisprudence in criminal cases.

The Ninth Circuit recently held that racially-motivated threats on an internet message board don't violate the law. And, recently, in United States v. Parker, the Ninth Circuit vacated the conviction of a protester at a military base.

Perhaps the defense lawyers in the Twitter harassment case should try to transfer venue.

But, to United States v. Parker.

Mr. Parker prefers to spend time protesting at the Vandenberg Air Force Base in California. When he's protesting there, it appears that he sets up shop on Ocean Avenue, a public road that crosses the base.

Not once, not twice, but thrice he was asked to move along. He was directed to the "designated protest area" outside the base's gate.* He was barred from protesting on Ocean Avenue by the military police. Yet he returned.

Finally, he was charged with violating 18 U.S.C. 1382, which says:

Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or

Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed there from or ordered not to reenter by any officer or person in command or charge thereof--

Shall be fined under this title or imprisoned not more than six months, or both.

He appealed, saying that he was on a public road. The argument is that you can't be prosecuted for entering a military base if it's also a public road, because the military doesn't have the exclusive right to kick people out of public roads.

In a way, it's the governmental inverse of the rule that one roommate can't consent to let the police search another roommate's stuff.

And the Ninth Circuit, in a panel which included D.C. Circuit Judge Brett Kavanaugh, reversed.

* One imagines that it was "outside the gate" in the sense that it was in Maine.

August 30, 2011

Thinking Of the Police As A Dinner Guest: The Sixth Circuit Declines To Require An Additional Seat At The Table

It was an ordinary Tuesday night. Lannerick Johnson was at home with his ex-wife, Karen. Their kids were home too. Lannerick and Karen had been through hard times before, but he'd partly moved back in - he was sleeping there frequently and had left some things in the room they shared.

Perhaps they were watching Tim Russert moderate a debate between Barack Obama, Hillary Clinton, Joe Biden, and John Edwards on NBC. Karen's mom and grandmother were home too; they all lived in the house, which was owned by Karen's mom.

Then the police came knocking.

The officers didn't have a warrant, they were just doing a "knock and talk." Karen's grandmother opened the door. Karen and Lannerick came into the front room. The police asked if they could search the house, you know, just to be neighborly.

Karen's grandmother said yes. Karen said yes, and voluntarily led the police to some marijuana in her room.* Lannerick said no.

The police had Karen and her grandmother out to the front yard to sign formal consent to search forms. They searched the house, over Lannerick's objection, and - in the room that Lannerick Johnson shared with Karen - found evidence that Mr. Johnson was unduly interested in other people's personal identifying information.

He was charged with possession of false identification documents and aggravated identity theft.

He filed a motion to suppress, because he didn't consent to have the room he was sharing with Karen searched by the police.

The district court determined that he hadn't consented, but that, since it wasn't his house, it didn't matter; he couldn't refuse to let the police search the place. His consent-happy drug-possessing ex-wife's permission was all the police needed.

The Sixth Circuit reversed in United States v. Johnson.

The court of appeals held that the Supreme Court's relatively recent decision in Georgia v. Randolph clarified what happens when two people share a living space and only one consents.

Basically the Supreme Court held that for the cops to search your stuff in a space that you're living in, they need your permission; getting your roommate's permission to search is not enough.

As Justice Souter observed in the opinion for the Court,

it is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, "stay out." Without some very good reason, no sensible person would go inside under those conditions

In kind of a lovely way of viewing things, Justice Souter then determined that this social convention governs the way the police should be viewed - as something akin to a dinner guest:

Since the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.

Thus, as the court of appeals in Johnson held, if one person staying in a room invites the police in, and another refuses to allow them entry, the police have to find another door to "knock and talk" on.


* Seriously, why do people do that?

We fought and won a war to get the right to keep the government from searching our stuff, and Karen's just going to give away her rights like that? Exactly what is she getting in exchange from diming herself out?

So, if you found this page because you're Googling "what super bad thing will happen if I tell the police they can search my house with drugs in it" who have come to your house and asked if they can search it" - my advice is that you should not let the police search your house for no reason, especially if you have drugs in your house.

Update: the Fourth Amendment Blog is in on the party. Check out the post here. I like the observation on that page that the district court really strained to avoid applying Randolph.

August 29, 2011

Is Twitter Harrasment a Crime?

The Federal Public Defender's Office in Maryland is mounting a vigorous defense of a man accused of harassing someone on Twitter. As the New York Times reports,

Twitter posts have fueled defamation suits in civil courts worldwide. But this is a criminal case, invoking a somewhat rarely used law on cyberstalking. And it straddles a new, thin line between online communications that can be upsetting -- even frightening -- and constitutional safeguards on freedom of expression.

Apparently, Mr. Cassidy created a large number of posts directed at one woman. The United States Attorney's Office for the District of Maryland is prosecuting him. It's an odd thing to use a criminal prosecution to make law. If conduct is so bad that it would land you in prison, you should be able to know clearly - and in advance - if it's against the law. Yet here it looks like the boundary of the law isn't that clear.

As Eugene Volokh explains,

This, it seems to me unconstitutional. Speech doesn't lose its First Amendment protection just because it intentionally causes emotional distress to a person (see Snyder v. Phelps and Hustler v. Falwell), even when there's a "course of conduct" consisting of two or more incidents of speech rather than just one. If Larry Flynt had published several nasty criticisms of Jerry Falwell rather than just the one in Hustler v. Falwell, his speech would have remained protected. So this portion of the statute is overbroad on its face.

Mr. Volokh also wonders what kind of prosecutorial decision making went into deciding to bring this case.

August 29, 2011

The Third Circuit Holds That A Jury Can't Infer Intent From Constitutionally Protected Silence

So often the difference between doing something normal and committing a crime is what's in someone's mind. White collar crimes turn on intent - mail fraud, wire fraud, securities fraud, and bank fraud all look to what was in the mind of the person accused of the crime.

Yet, intent is also a hard bit of evidence to secure. Unless there's a smoking gun document - which is ever more likely in this age of email - there is no direct evidence of intent in most cases.

And, ultimately, what a person accused of a crime intended is a question for the jury. As an NACDL article on the topic notes, we know that Martha Stewart was thinking because a jury says we did.

The way a jury decides intent, therefore, is crucial. Which makes the Third Circuit's decision in United States v. Waller so very interesting.

There, the Third Circuit reversed and remanded for a new trial because of the intent instruction used by the district court.

The trial court instructed the jury that:

Intent ordinarily may not be proved directly because there is not a way of fathoming or scrutinizing the operation of the human mind. However, you may infer a defendant's intent from all of the surrounding circumstances. . . . You may also consider any statements made or omitted by the defendant, as well as all other facts and circumstances in evidence which demonstrate the defendant's state of mind.

The jury heard this instruction, then found that the defendant had the requisite intent - Mr. Waller was found guilty.

The Third Circuit found that this instruction violated Mr. Waller's constitutional rights.

The instruction contained the phrase "You may also consider any statements made or omitted by the defendant" - Mr. Waller's counsel argued that this violated Mr. Waller's right to remain silent.*

The Supreme Court has already held that a prosecutor can't argue that someone is guilty because he invoked Miranda (much the same way the Fourth Circuit has held that a refusal to consent to search does not give a police officer permission to search).

The Third Circuit just extended that holding to a trial court's instructions.

Because the trial court's instruction let the jury infer intent merely from Mr. Waller invoking his constitutional right not to talk when he was arrested, or not to speak in his own defense at trial, the instruction violated his rights.


* Doctrinally, there are a few distinct rights to remain silent. One is a Sixth Amendment right to counsel, which undergirds the requirement that a person be given Miranda warnings. The other right is a Fifth Amendment right to refuse to self-incriminate. There is also a Due Process right not to speak.

August 26, 2011

Prior Criminal Offenses and Hypothetical Bad Men: The Fourth Circuit Comes Back to Real People

Drug dealing is very illegal. It's so illegal that if you deal drugs, and get caught and convicted, then deal drugs again later, Congress has set up a special way for you to spend even more time in prison.

Consider the person charged with a crime in the Fourth Circuit's recent case of United States v. Simmons.

Mr. Simmons was convicted of possessing some marijuana that he was going to sell.* Because of the quantity of marijuana involved, he faced a mandatory minimum of five years in prison.

Congress has already said that if you have a prior felony conviction for selling drugs (or holding drugs while you think about selling them, which is, apparently, just as bad, see footnote * below), your mandatory minimum can double if the government files a notice about that prior conviction. It's set out in 21 U.S.C. S 841 and 21 U.S.C. S 851.

The thing is, the prior conviction has to be a prior felony conviction. Under federal law, that means the prior conviction has to be for an offense that could have resulted in a sentence of more than one year. The maximum penalty, in other words, has to be more than a year.

This is another area where state law on criminal history intersects awkwardly with federal law.

How do you know what the possible maximum penalty is? Do you look at what that particular person could have received? Or do you look at what the worst possible person charged with that crime could have received?

This is a stickier problem than you might think, because lots of states have statutes that change the amount of prison time that a person can receive based on the person's criminal history.

In Simmons, for example, Mr. Simmons could not have been sentenced to more than a year in prison on his prior state court marijuana charge because it was his first offense. Though, someone who had multiple prior convictions could have.

Let's think about that for a second - the point of this law is to punish people who were really bad before. Doesn't that suggest that what we care about is how bad this particular person was, rather than some generic bad guy?

For the Fourth Circuit, before Simmons, no. The old Fourth Circuit rule was that you consider the person with the absolute worst criminal history possible. If that hypothetical guy could have been sent to prison for more than a year, then the state crime is a serious one, regardless of whether it was serious for the actual person who is in front of the court now.

This meant that Mr. Simmons, even though he couldn't have been sentenced to more than a year on his prior state conviction, he was treated as though he could have been. As a result, his mandatory minimum doubled from five years to ten years.

The Supreme Court, though, has recently decided Carachuri-Rosendo v. Holder. That case held that, in an immigration case where the courts are directed to look at prior convictions, you look not at what a hypothetical recidivist - a person doing life on the installment plan, as it were - could have been sentenced to, but the actual person who is going to be affected by the prior conviction.

In Simmons, the Fourth Circuit held that the Supreme Court's position in the immigration case applies in criminal cases. It, therefore, concluded that Mr. Simmons had not committed a prior felony; his mandatory minimum could not be increased because of that prior conviction.


* The technical name of the offense is possession with intet to distribute.

When you think about it, this is an odd thing to criminalize because you aren't really prohibiting drug dealing (though that's separately a crime), you're criminalizing pre-drug dealing. And you're criminalizing it to the same extent as actual drug dealing - the penalties are the same for possession with intent to distribute (or "PWID" to those cool kids in the know) are the same as the penalties for distribution.

We don't do that in other areas of criminal law. If I get caught with a ski mask, a gun, and Google maps directions to a bank, I don't get punished as though I've already robbed a bank.

The war on drugs makes for some odd law.