August 17, 2011

The Seventh Circuit On The Possibility Of Race-Based Jury Strikes By An African-American Prosecutor

I'm surprised at how many African-American clients prefer to have a black judge or prosecutor involved in their case.

I don't think it changes the prison time they may eventually serve, or the likelihood of serving prison time, but it seems to make the prosecution and process more morally legitimate to them.

Of course, others have the opposite reaction, seeing the prosecutor and judge - if they are of the same race as the client - as not only implements of a system that's unfair to black people, but as turncoats in a struggle for racial equality.

For what it's worth, in my non-random sample of clients, I don't believe I've yet had a person who has reflected, with me, on being prosecuted by a government headed by a black president.

I see this as a backdrop for an odd issue in the Seventh Circuit's recent opinion in United States v. Rutledge.

Jurors were being selected in Mr. Rutledge's trial. Mr. Rutledge, apparently, is black. There were but two black people brought in to be possible jurors in the trial. The government struck each of them, keeping them from serving on the jury.

Mr. Rutledge's attorney cried foul. It's illegal to strike jurors, even a single juror, based on race. It violates the Equal Protection Clause.

The government is allowed to strike potential black jurors, even all of the potential black jurors, if it can articulate a reason based on something other than race. That reason has to be credible, and it is the court's job to make sure that the reason makes sense.

When Mr. Rutledge's lawyer challenged the government's strike of all of the prospective black jurors, the prosecutor responded,

First, I would state that I, myself, am an African American, for the record . . . .

The Seventh Circuit did not like that remark.

The court of appeals remanded, because the trial court didn't explain whether the prosecutor's race-neutral explanations were credible. It went out of its way, though, to discuss the role that a prosecutor's race should have in an analysis of whether the strikes were permissible (Spoiler Alert - none).

While noting that the court of appeals wasn't exactly sure what the prosecutor mean, it went on to say,

The abbreviated exchange on the record is troubling, though, because it can be read as a request by the government for the judge to assume that simply because the prosecutor is herself African-American, she would not engage in prohibited discrimination.

Then, later, the court of appeals summarized,

While a judge may consider a variety of factors in making a credibility determination, it would be wrong for a judge to assume that a prosecutor of the same race as a juror would not engage in discrimination against that juror simply because of their shared race. As the Supreme Court explained in Powers, the Equal Protection Clause "mandate[s] that race discrimination be eliminated from all official acts and proceedings of the State," which is "most compelling in the judicial system."

The court of appeals went out of its way to say that it doesn't matter to that court what the race of the prosecutor is for a race-based challenge to jury strikes.

What does it say, though, that it matters to my clients?

August 16, 2011

It Is Not Good To Be Hated By Congress

Congress really doesn't like sex offenders.

In 2006, it passed SORNA, the "Sex Offender Registration and Notification Act. It can be found at 42 U.S.C. S 16913. It applies to people who are convicted of state sex crimes, or federal child pornography charges.

SORNA requires that each state create a sex offender registry that meets federal standards. It requires any person who has a qualifying conviction to register both where he was convicted and where he lives.

If a person who is required to register moves, changes, jobs, changes his name, enrolls in an educational program, or leaves an educational program, he has to update his registration within three days - though, thankfully it's three business days, not three calendar days (Congress is accommodating).

Each state is required to make it a crime to fail to comply with these registration rules. The state punishment cannot be less than one year under federal law.

Because federal prosecutors and members of Congress cannot score political points for convictions brought by the state, Congress also created a new federal crime for failing to register. See 18 U.S.C. S 2250.

All this Congressional action, creating multiple levels of registration and prosecution, reminds me more than a little of the reaction of a biker gang to Pee-Wee knocking over their bikes in Pee-Wee's big adventure.

(Sadly, the scene is not able to be embedded - please see it here - Pee Wee With The Bikers)

Biker #2: [the whole gang holds Pee-wee hostage] I say we kill him!

Biker Gang: [shout] Yeah!

Biker #3: I say we hang him, *then* we kill him!

Biker Gang: [shout] Yeah!

Biker #4: I say we stomp him!

Biker Gang: [shout] Yeah!

Biker #4: Then we tattoo him!

Biker Gang: [shout] Yeah!

Biker #4: Then we hang him...!

Biker Gang: [shout] YEAH!'!

Biker #4: And then we kill him!

Biker Gang: [shout] YEAH!'!'!

Pee-wee: [tries to throw voice without moving lips] I say we let him go.

Biker Gang: [shout] NO!'!'!

Biker Mama: [whistles] I say ya let me have him first!

Biker Gang: [break out in raucous laughter]

In United States v. Trent, the Sixth Circuit reversed a conviction for failure to register under section 2250.

Mr. Trent had a qualifying conviction, which required him to register as a sex offender. He failed to. He admitted that he was guilty, and was sentenced to three years in federal prison - roughly equal to the sentences he received for his sex offenses.

The trouble is, Mr. Trent was required to register in Ohio. Ohio didn't adopt the SORNA registration requirements until after Mr. Trent was charged with a crime for failing to register.

So, while he was required to register as a matter of Ohio law, the Sixth Circuit held that he wasn't required to register through SORNA. As a result, his conviction for failing to register under SORNA was vacated, and the charges dismissed.

Lest you think this is a shame - that the Sixth Circuit let a man escape "justice" - please look at the dates in the opinion. Mr. Trent was charged on December 6, 2007. He was sentenced to three years in prison on October 31, 2008. The Sixth Circuit appeal was filed in 2008 (based on the case number).

According to the Bureau of Prisons, Mr. Trent finished serving his sentence - the one that was vacated on August 5, 2011 - on July 16 of 2010.

August 15, 2011

The Sixth Circuit on Alford Pleas and the Armed Career Criminal Act

Criminal history is important and complicated.

As I explained before, if someone commits a crime of violence, and then is facing sentence for another crime later, their sentence can be significantly increased because of that prior violent crime.

The discussion in my prior post about what counts as a crime of violence is important for understanding the recent Sixth Circuit ruling in United States v. McMurray.

To make a long story short, if a state crime is not always a crime of violence, then, if a person is convicted of it, it only counts as a crime of violence if the court documents from the prior conviction conclusively establish that what the person did was a crime of violence.

In McMurray, Mr. McMurray had a prior conviction for aggravated assault under Tennessee law. Tennessee defines aggravated assault as:

Committing assault and either (1) causing serious bodily injury, or (2) using or displaying a dangerous weapon*

Assault, in Tennessee is defined as:

(1) Intentionally, knowingly or recklessly causes bodily injury to another;

(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or

(3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

To be a crime of violence for federal purposes, an offense has to involve the intentional use of force or the threatened use of force. See 18 U.S.C. S 924(e). Because you can violate Tennessee's assault statute by recklessly hurting someone, it doesn't involve any intentional act. So it is possible to violate this statute and not commit a crime of violence under federal law.

Because sometimes a Tennessee aggravated assault is a federal crime of violence, the sentencing court is to look at the court records to see if they conclusively establish that the person pled guilty to something that meets the federal standard.

Here, though, Mr. McMurray entered an Alford plea - he, basically, pled no contest, not guilty. He made no factual admission; he merely consented to a conviction.

The Sixth Circuit said that such a plea cannot be used to support any finding about the facts of what he pled guilty to.

Because there were no facts about what Mr. McMurray pled guilty to in the record sufficient to show that he committed a crime of violence, as the term is used in federal law, his prior conviction for aggravated assault was not properly labeled a crime of violence.

What this meant for Mr. McMurray is that he was not an Armed Career Criminal. Instead of a 15-year mandatory minimum, his new federal conviction for being a felon in possession carried a statutory maximum of ten years.

The case was sent back to the sentencing judge for a new sentence, with the new statutory maximum.

 

* You can also commit aggravated assault in Tennessee if you're a parent and you fail to protect your kids from an aggravated assault, which strikes me as such a tremendously sad thing to think about that I am now going to stop thinking about it.

August 12, 2011

The Ninth Circuit Makes It Easier For Crimes to Be Violent (Nominally, At Least)

It makes sense to give someone a longer sentence if they're a violent person. And it makes sense to think that if someone has a prior conviction for a violent crime they are more likely to be a violent person. But it is massively difficult to turn that into a rule that can apply to the thousands of federal criminal cases across the country.

As a result, criminal history calculations may be the most technical part of federal sentencing practice. Yet scores of years hang on these technicalities.


This statue is of a person trying to figure out the federal statutory definition of a crime of violence

Whether a person has a prior conviction, or convictions, for a "crime of violence" will determine how much time he will spend in prison - probably more than any other single fact about him - if that person has been convicted of a drug distribution offense, possessing a gun after being convicted of a felony, or reentering the United States unlawfully after a conviction for a felony.

The tax on being a violent person is high.

The Definition of a "Crime of Violence"

What counts as a "crime of violence" is, then, very important.

Generally, a crime of violence is any crime that involves the use of force, or the threatened use of force. See 18 U.S.C. S 924(e)(2)(B). Hitting someone, or committing assault, involves the use of force, so it counts as a crime of violence. Moreover, robbing a bank by threatening to shoot someone counts as a crime of violence because it involves the threatened use of force.

Also, some crimes are simply defined as violent, like arson, extortion, or burglary.

States Define Crimes Differently

Clear enough - federal law has now given us a definition of "crime of violence."* The problem is that the vast majority of criminal convictions are state convictions. To take the example at issue in the Ninth Circuit's recent opinion in United States v. Aguila, consider burglary.

Some states allow burglary to be charged if a person unlawfully enters a car, or a boat, to steal something. Other states don't. If Maryland counts unlawful entry on a boat as burglary, but Iowa doesn't, it's creepy for someone in Maryland to be counted as a violent offender if someone in Iowa isn't when they've committed the exact same act.

To remedy that, the Supreme Court adopted a generic definition of burglary - defining it as an unlawful entry into a building with the intent to commit a crime.**

States Still Define Crimes Their Own Ways

Great. That's clear. One small problem remains - states do not use the generic federal definition when they convict people.

Imagine a man - let's call him "Mr. Aguila" - is convicted of residential burglary in California. Residential burglary is defined, under California law, as entering a building with the intent to commit a crime.

That is close, but not quite, the general federal definition allowed by the Supreme Court - to count under the Court's definition, it has to be an illegal entry into a building with the intent to commit a crime.

Some California burglaries are crimes of violence, and some aren't. How do we know which Mr. Aguila has committed?

The Old Rule In The Ninth Circuit

For a time, in the Ninth Circuit, the rule was that if a person was convicted of a California burglary, or any other offense that did not contain all of the elements of the generic federal offense, then that conviction did not count as a crime of violence because the court "can never find that a jury was actually required to find all the elements of" the crime that would satisfy the federal definition. The case was called United States v. Navarro-Lopez. The emphasis in that approach is on what the jury found. If the jury isn't given the opportunity to conclude that the guy committed a crime of violence, as the federal law defines it, then you can't use the conviction as a prior crime of violence at sentencing.

The New Rule In the Ninth Circuit

In Mr. Aguilar's case, the Ninth Circuit rejected the approach in Navarro-Lopez. Instead, the court of appeals held that the sentencing judge should look at other documents relating to the conviction - such as any facts admitted during a plea hearing, or in a plea agreement, or based on what a jury found. The set of documents is relatively narrow, and set out in the Supreme Court's decision in Shepard v. United States.

The Ninth Circuit expressed confidence that it would only rely on these documents when they give the court certainty that the person committed the crime of violence. I now express a lack of confidence that this will be the case.

 

* There are a few different definitions of "crime of violence" in the different federal statutes and sentencing guidelines that matter. Also, sometimes the term that is used is not "crime of violence" but, rather, "violent crime." Be mindful of that when you wonder why the suicide rate for attorneys is higher than for nonlawyers.

** Yes, readers who are criminal defense lawyers, this isn't the exact definition the Supreme Court used. It's close enough for the broader point of the discussion. Readers are advised not to read this blog as a legal brief.

August 10, 2011

The Fair Sentencing Act: the Battle Between Following the Rules and Fairness Plays Out in the Third Circuit

Much of criminal law can be understood by looking at two opposing viewpoints. They are not the perspective of the police versus the perspective of those who would commit crime. The tension is not between the "good guys," however defined, and the "bad guys."

Rather, it is a tug of war between people who seek rigid application of the law versus people who would construe the law so as to be fundamentally fair.

As a caricature, those who believe in the rigid application of the law, start and end a legal question with what the law says. Work done to find an exception to a written rule -- or to craft an argument that a law should be construed slightly differently than its text to avoid a counterintuitive result -- is not good work to this group. Indeed, the Rule of Law People tend to think that consideration of the results when deciding how to interpret the law is never proper.

On the other side are the folks who think that the results are all that matter. If a rule yields a bad result, it should be construed in a way to change the result it would yield. The language of rules is pliable, and results should force language to yield. The Fairness Folks look to the end result in a case, regardless of what the law requires.

These viewpoints play out in other parts of law and life, of course.* The debate between seeing the United States Constitution as a living document, on one hand, versus requiring that it be interpreted according to the understanding of its creators, on the other hand, is one example. Much of the debate among mainline Protestant churches about the interpretation of the Bible on questions of gay rights is another.

The Fair Sentencing Act

This tension has played out over the past year in a series of cases deciding what is to be done about the Fair Sentencing Act. A bit of background is necessary.

Over the past few years, a consensus emerged that the mandatory minimum sentences for crack offenses were too high, relative to mandatory minimum sentences for powder cocaine - this disparity was reflected in the sentencing guidelines as well. Congress finally sprang into action and passed the Fair Sentencing Act, which was signed by President Obama on August 3, 2010.

The Fair Sentencing Act changed the mandatory minimum sentences for crack cocaine charges for certain quantities of crack. It also directed the sentencing commission to create new crack sentencing guidelines.

The Fair Sentencing Act, by its terms, did not apply retroactively - that is to say, it did not apply to conduct that happened before the Fair Sentencing Act became law.

The Pipeline Problem

The non-retroactivity of the Fair Sentencing Act created a problem. What do you do with cases where someone committed a crime before August 3, 2010, but the person's sentencing hearing was after August 3, 2010? Does the Fair Sentencing Act apply to that person? Generally, the law that applies on the date of the offense is the law that governs the punishment for that offense, absent an express Congressional statement to the contrary. Yet Congress provided no language to change the mandatory minimums as applied to people already in the pipeline.

These people in the pipeline are in a tough spot -- like the soldiers killed between when peace was negotiated but before it began, their lives would be ruined for no good reason, if the Fair Sentencing Act is not applied to them.

As courts resolved this issue, the tension between the Rule of Law People and the Fairness Folks became clear. Congress had already said that the mandatory minimums rolled back by the Fair Sentencing Act were unfair. To give someone a sentence that everyone - including Congress - acknowledges is unfair is, well, unfair.

Yet, to be honest, the stronger textual argument for how to read the Fair Sentencing Act is probably with the courts that held that the pipeline people should not have the benefit of the Act.

If you are parsimonious with exceptions to a rule, you will not apply the Fair Sentencing Act to pipeline cases. Injustice is simply the cost of having a system of laws.

If you are motivated by fairness, the idea that the Act is not retroactive, regardless of the textual argument about retroactivity, will simply be unacceptable.

The Third Circuit in Dixon.

The Third Circuit weighed into this discussion today in United States v. Dixon , coming down squarely on the side of applying the Fair Sentencing Act to pipeline cases. The court of appeals interpreted Congressional intent through the language of fairness - saying, in essence, that it would be profoundly unfair for Congress to not apply the Fair Sentencing Act to the pipeline cases and that we should not assume Congress would intend such a quantity of unfairness.**

The Third Circuit quoted a number of district courts about this injustice, courts noted that:

It is disturbing enough when courts, whose primary task is to do justice, become themselves the instruments of injustice . . . But this discomfort reaches its zenith when the injustice has been identified and formally remedied by Congress itself.

For the Court to continue to impose sentences that are contrary to the statute that Congress itself described as "An Act to restore fairness to Federal cocaine sentencing‟ would be an absurd result.

In this opinion, on this issue, those who seek fairness came out on top. The Third Circuit joins the First and Eleventh Circuits. The Second and Seventh Circuits have not agreed that fairness is more important than the text of this statute.

* And, to be clear, these are caricatures. Most people are likely in a happy middle between these views. The people who are - for all purposes - in one camp or the other are the ones you should avoid at parties.

Moreover, being for fairness doesn't necessarily mean you're defense oriented, or vice versa. For example, you may think a long sentence is more important than the rules that should govern at a sentencing, which would be a fairness oriented thing to think, even though it certainly is not a defense-perspective.

** There's an obvious joke here about whether the Third Circuit has much experience with Congress.

August 9, 2011

Breaking News - Third Circuit Says The FSA Is Retroactive

Here's the conclusion from the Third Circuit's opinion in United States v. Dixon:

We hold that the FSA requires application of the new mandatory minimum sentencing provisions to all defendants sentenced on or after August 3, 2010, regardless of when the offense conduct occurred.

I'll have more on this tomorrow. In the meantime, here is Sentencing Law & Policy on the decision.

Here are posts on FSA decisions from the Seventh Circuit and Second Circuit holding that the FSA does not apply to defendants sentenced after the act was made law, but with offense conduct before it, and on from the Eleventh Circuit and First Circuit going the other way.

August 9, 2011

Important New Decision on the Use of Cell-Phone Data to Locate Someone Just to Arrest Them

Judge Gauvey, a magistrate judge on the United States District Court for the District of Maryland has issued a lengthy, thorough, and important decision on the use of cell phone data by law enforcement just to arrest someone. The opinion is available here (thank you Volokh conspirators for the link).

Here's the juicy bit:

the government asks to use location data in a new way -- not to collect evidence of a crime, but solely to locate a charged defendant. To some, this use would appear reasonable, even commendable and efficient. To others, this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants. In any event, there is no precedent for use of location data solely to apprehend a defendant in the absence of evidence of flight to avoid prosecution. The government did not submit, and the court did not find, any sufficient authority for this use of location technology. In light of legitimate privacy concerns and the absence of any emergency or extraordinary considerations here, the Court concludes that approval of use of location data for this purpose is best considered deliberately in the legislature, or in the appellate courts.

The opinion has generated a lot of attention, and rightly so. Cell phones are ubiquitous - if the government can get access to where we are merely because we have a cell phone, we're moving a lot closer to a government monitoring system, albeit a court approved one, than many people are comfortable with.

Orin Kerr, over at Volokh, argues that Judge Gauvey is wrong. He also has an odd ad hominem attack on her at the end of the post, of the "I'm not saying something bad, I'm merely quoting other people who say she is." The merits of the issue are probably more interesting than the personal stuff.

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

August 9, 2011

The Sixth Circuit Lets A Jury Hear About The Accident of Federal Jurisdiction In A Michigan Swamp Murder

Our federal death penalty is incoherent policy. Death penalty cases are expensive, incredibly time consuming, and, in light of how in the federal system life really does mean life, pointless.

Right now, the First Circuit is considering whether the governor of Rhode Island has to hand over a man serving a life sentence in that state.

The federal government wants to prosecute him federally, for no reason other than to kill him - he's already serving a life sentence. Rhode Island doesn't have a death penalty, and thinks that it can adequately handle this relatively routine murder case without federal intervention.

There's excellent coverage of this dispute at this criminal justice blog, as well as this coverage from the Boston Globe.

What good does a federal prosecution do? Why does the government want to spend more than a million dollars in this economic environment just to get another notch on its belt? Excellent questions that I don't know the answer to.

The legal question in Rhode Island is tricky, and it isn't clear the governor will win this one. I'm looking forward to seeing the national debt increased by the cost of this prosecution. Others are excited about this too.

Yet another example of how our federal death penalty policy makes no sense can be found in the United States Court of Appeals for the Sixth Circuit's opinion in United States v. Gabrion.

Mr. Gabrion was convicted of killing a woman and her infant child. He had been accused of raping her, and was facing trial on that allegation. To prevent her from testifying, he killed her in a swamp in a national forest.

Lines in the Swampland

He was charged federally with that murder because the murder happened in a national forest. Indeed, her body was found 227 feet into the park - had he been 227 feet north when he killed her, he would have been in a park run by the State of Michigan and there would have been no federal jurisdiction for the charge.

If there's no federal jurisdiction, there's no possibility of the death penalty.

An Oddly Important Accident

Mr. Gabrion's lawyer thought this was an odd coincidence of location. Less than a football field's difference in a swampland and the man couldn't be put to death by his government. He thought that decisions about who lives and who dies should not be made on such an arbitrary basis.

Making this accident of location worse, Michigan is the only state in our Union that has a provision in its state constitution that prevents it from imposing the death penalty. Capital punishment has been illegal in Michigan since 1846. Michigan is a seriously anti-death penalty state.

How Death Is Imposed

Death is different, and death penalty cases are handled differently than other cases in a number of ways. One way is that a jury decides first whether the person is guilty and, only if they find guilty, do they decide whether the death penalty should be imposed.

To guide their decision Congress requires the jurors to look at things that mitigate the person's conduct and that aggravate it. The mitigators are:

  1. Impaired capacity
  2. Duress
  3. Minor participation
  4. Equally culpable defendants
  5. No prior criminal record
  6. Disturbance
  7. Victim's consent
  8. Or, finally, "other factors."

Importantly, the statute requires juries to consider "any mitigating factor." 18 U.S.C. S 3592(a). (Realizing these factors are sometimes a little opaque, you might want to check out the statute - it elaborates on them a bit).

The District Court Holds That "Any" Means "Not Any"

Mr. Gabrion's lawyer argued that he should be able to argue to the Michigan jury that the federal government was trying to kill someone because they were less than a football-field's distance inside federal land. He wasn't saying it meant Mr. Gabrion couldn't be killed - just that it's something the jury was allowed to consider when it made the decision about whether to impose death.

The district court said no. The "any mitigating factor" language was, in essence, not expansive enough to include this mitigating factor.

Mr. Gabrion was sentenced to death.*

The Sixth Circuit Holds That "Any" Means "Any"

The Sixth Circuit reversed, holding in part that there can be no limit on what a jury should consider. Quoting another court, the court of appeals said "There is no qualification or limitation other than the factor "mitigate" against a sentence of death."

So, for death counsel, it's now permissible to argue that it's wrong for the federal government to assert jurisdiction just to try to kill someone, at least in the Sixth Circuit.

 

* To be clear, there is a lot more going on in this opinion, and in Mr. Gabrion's case, than this federal jurisdiction issue. For one thing, Mr. Gabrion seems like kind of a jerk. He punched his lawyer during the proceedings and, according to the court of appeals, faked being crazy.

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

August 8, 2011

If You're Going To Throw The Book At Someone, Throw It As Hard As It Was Thrown At The Last Guy

Imagine that you're a federal judge. Someone has been charged with a crime, and the case comes before you. The person says she's guilty. She says she feels horrible for what she's done. She wishes she could take it back, but can't. She asks for mercy.

Your job is to figure out how she'll be punished. How would you think about that? What would you want to know? What would matter to you?

To be sure, you'd want to look at the law and you'd draw upon the prior experience you had as a lawyer before you came to be a judge. Let's put that aside for a moment. One of the working assumptions of this blog is that criminal law is really about an important way that our government interacts with its citizens - if our criminal law is so technical it can only be understood by lawyers and judges, then we're doing something wrong as a country.

As a moral matter, what do we want our judges to ask about when they impose a sentence? What do we want to motivate them to be merciful or not?

One thing we'd want a judge to ask, I think, is what punishment had been given to other people who had committed a similar crime in the past. There are others, to be sure, but I'd think that would be a big one.

Suppose, for example, that the government asked for a sentence of 18 years in prison. Imagine the person being sentenced could prove, through publicly available data compiled by the United States Sentencing Commission, that a sentence of 18 years was more than twice the longest sentence for the same crime ever given. Would you want the judge to pay attention to this argument?

This is, basically, the situation in the Tenth Circuit's opinion in United States v. Lente. There, Ms. Lente was twenty-two. She spent a day drinking. She took the man she was drinking with to her mom's house, where her mom was drinking. The man's presence became unwelcome. Ms. Lente's mother asked Ms. Lente to drive him home. She did.

As she was driving him home, she struck another car, killing two people in the other car and the man in hers. She pled guilty to three counts of involuntary manslaughter and one count of assault.

She was sentenced to 18 years in prison, more than three times the top of the sentencing guidelines range. She appealed, and her sentence was vacated by the Tenth Circuit. (Here's an article on the first criminal appeal).

On remand, she was resentenced by a different judge. The government urged the court to impose the same sentence as in the first sentencing hearing.

Ms. Lente marshaled significant evidence that this sentence was well outside of the range for prior sentences. One of the things that Congress requires a court to look at when imposing sentence is whether the sentence being imposed is consistent with other sentences for similar offenses. See 18 U.S.C. S 3553(a)(6).

Ms. Lente quoted a letter from the Department of Justice to the United States Sentencing Commission saying that:

In our consideration of federal sentencing policy, we begin from the principle that offenders who commit similar offenses and have similar criminal histories should be sentenced similarly. This was the foundational principle of the Sentencing Reform Act of 1984. We are concerned that our sentencing system may be meeting this principle of sentencing reform less and less.

Ms. Lente urged the court to impose a sentence at the top of the sentencing guidelines range, closer to the sentences others who had committed similar crimes had received. She asked the court, in essence, not to make her a cruel outlier from the rest of the punishment for this crime in the federal system.

As the court of appeals summarized Ms. Lent's argument:

Ms. Lente submitted Sentencing Commission data to the district court on manslaughter sentences from 2001 to 2009. The data aggregate sentences for both involuntary and voluntary manslaughter, so the sentences themselves are probably higher than they would be if only involuntary manslaughter were the data set. To put Ms. Lente's sentence in context, the year with the highest median percentage increase over the maximum end of the Guidelines range was 2004 at 68.6 percent. Ms. Lente's sentence was 237 percent above the end of the range. The year with the highest median number of months above the maximum end of the range was 2009 at 49.05 months. Ms. Lente's sentence was 135 months above the end of the range. The highest average sentence was 65.8 months in 2009. Ms. Lente's sentence was 192 months.

The sentencing judge, however, ignored this argument. Instead, the court talked about how the guidelines didn't reflect the seriousness of the crime, as the court perceived it.

The appeals court reversed the sentencing judge because it did not consider Ms. Lente's detailed factual argument about how similar cases have been treated in the past, and remanded the case for a new sentencing.

The court of appeals held what is the law of sentencing in a federal criminal appeal - that a sentencing court has to consider every non-frivolous argument made by an attorney at sentencing.

Because the district court refused to respond to Ms. Lente's serious argument that her sentence was far longer and more harsh than anyone else in federal court who had committed this crime, the sentence cannot stand.

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

August 7, 2011

A Lot Of Federal Criminal Law And Procedure In One Opinion: The D.C. Circuit Gives A Lot Of Bang For The Buck

If you want to read about a large number of issues in federal criminal law in one place, you should check out United States v. Moore. Beach reading it isn't.

From whether a person on trial can be forced to wear a stun belt during trial, to a discussion of race-based strikes to members of the jury, to testimony about religious conversions and ineffective assistance of counsel, this 128-page beast of an opinion has everything.

There's even an 11 page concurring opinion on race-based jury strikes!

I am not going to write about all of it.

The court reversed a number of counts on confrontation clause grounds. Interestingly, between the date of the trial in 2005 and when the appeal was decided in 2011, the law of the confrontation clause changed dramatically.

Some background - under the Sixth Amendment, a person accused of a crime has the right to confront his or her accusers. Normally, that means a person - or, really, the person's lawyer - gets to cross-examine anyone who is offering evidence for the government.

This gets tricky when the government tries to introduce forensic evidence. Actually, strike that - it isn't "tricky", it's cumbersome.

As any viewer of ads for TV shows on CBS knows, the government keeps crime labs in their police departments. And in those labs, people analyze evidence to present at trial. The question is whether the person who does the tests, and actually knows what happened when the evidence was tested, has to testify, or if someone from the lab can just say what generally happens when evidence is tested (hint: someone is found guilty).

The Supreme Court has very recently held that yes, the Constitution applies to people in crime labs too - even if they look really good on CSI.

Between when this case was tried and when it was decided on appeal, the constitutional ground moved, and, now, what happened at trial wasn't ok.

So, those counts were remanded.

For everything else in the opinion, please check it out here.

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

August 6, 2011

If a Court Is Going To Lock Someone Up, It Has To Give A Reason

Appellate review in a federal criminal appeal is a funny thing. Sometimes, saying the wrong thing is the easiest way to get reversed. Sometimes it's a question of not saying enough.

The D.C. Circuit remanded a bail reform act decision in United States v. Nwokoro.

Mr. Nwokoro is a U.S. citizen who is from Nigeria. He apparently fell on hard times in Washington D.C. and was living in a homeless shelter. Then he was charged by complaint with a crime. Then he was indicted.


He was arrested and brought to a magistrate judge. The court ordered that he can't be released before trial because he might run under the Bail Reform Act. The court explained that:

[Mr. Nwokoro] has moved to Africa. He has moved hundreds - - well based on the representations I have heard from the Government and the documents I have seen here, I have wire transfers totaling over $280,000 and an Agent testified to . . . a million dollars in receipts in a two-year period [referring to appellant's tax preparation services' gross receipts in 2005 through 2007] .

 

The Court finds that the Defendant is indeed a substantial flight risk. The Court finds . . . that there is no combination of conditions that could possibly protect this Court's interest in having him appear here before this Court. . . . The Court finds that he is a flight risk and that he should be detained pending the outcome of this case.

The problem is that the court isn't supposed to just find someone is a flight risk, the court is also supposed to figure out if there are any conditions of release that can make sure they don't fly. And the court should consider any factors that suggest that the person is not a flight risk.

As the D.C. Circuit noted, there are a lot of reasons to think the guy isn't going to run:

When given the opportunity to flee the area, appellant has not. He does not presently have assets under his control in the United States (his bank account in the United States has been frozen), and he does not have possession of his U.S. or Nigerian passports (which are in government custody) with which to leave this country, much less to enter Nigeria. He has never failed to appear in court when notified, and he has never failed to check in with the Pretrial Services Agency as he was previously required to do on a weekly basis. Indeed, after the magistrate judge dismissed the initial criminal complaint against him, appellant made no apparent attempt to flee prior to his arrest on a new indictment five days later. Appellant was released on his own recognizance two days later and again made no apparent attempt to flee between then and the detention hearing four weeks later. Appellant is not charged with a violent offense, and he has no prior criminal record.

Why couldn't he have been released to a halfway house? Or with a condition that he check in with pretrial services every day? The district court was silent on those questions. Because of that, the D.C. Circuit sent the case back, for a quick hearing on these issues.

One thing this case raises is just how slow even a fast appeal can take. According to the record cites in the opinion, Mr. Nwokoro's hearing was on May 10. The opinion came out on August 3. Which means the man sat in jail for almost three months based on a flawed hearing.

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

August 5, 2011

The Tenth Circuit on Credit Cards, Loss, and the Sentencing Guidelines

Sometimes it's hard to know what's been stolen, even after it's gone.

Suppose I go swimming with David Lat. While we're in the pool, Tom steals our wallets. If Lat and I both have $10 in our wallet, we know what Tom took - he took $20.


What if Lat and I both have credit cards? Suppose Lat has an Amex Black card with a $100,000 limit and I've got a Capitol One card with a $1500 limit. Tom charges a $40 annual subscription to the Green Bag to each card (one for him and one for his mom - and worth every penny, by the way). What is the value of what Tom has tolen?

 


Perhaps he's stolen $80, the value of the things he charged on the credit cards?

Perhaps he's stolen $101,500, the credit limit of the two credit cards?

Perhaps he's stolen something in between - the foreseeable amount that he'd be able to charge on each card, maybe capped by the actual amount on the cards? So, if on assumes that the average credit limit is $10,000, he stole $10,000 from Lat and $1,500 from me.

Under the federal sentencing guidelines, much of a person's sentence is riding on how you calculate the loss from an economic crime.

It was just this question that the Tenth Circuit answered this week in United States v. Manatau.

There, the court of appeals held that the guidelines are clear - loss means intended loss. It has to be the amount that the person intended to take, not the amount that the person could have taken, or the amount that a person in general would think that he would have been able to take.

The government argued that the loss amount should be the full amount that the person could have taken - to use my example, the loss would have been $101,500. The court found no support for this view, noting that the guidelines incorporate a mens rea requirement - that is, the guidelines only punish a person for what he, himself, thought he was taking.

Should a person who steals a credit card be punished more severely for stealing in Georgetown than in Columbia Heights?

Maybe. What this opinion makes clear, I think, is that if a thief is in Georgetown to steal a credit card thinking it will let him charge, for example, a Chanel sequined tweed coat for $9,010, then the loss amount would be higher than that of a thief looking to charge a pair of Keens at REI.

So the thief gets a more stringent punishment only if he's planning on using the higher credit limit to get access to fancier stuff.

And, as Professor Berman has already pointed out, this opinion is going to have meaningful and interesting implications in many other cases involving economic crimes.

And, as Scott Greenfield has noted, the person charged with the crime is likely to get hosed anyway.

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

August 4, 2011

The Second Circuit Grants A New Trial: Why Market Movements Should Come With Cliff Notes

Causation is tricky.

So often we infer what caused what from the order things happen in - the government fails to reach an agreement on the debt ceiling, and the stock market drops. We conclude that one causes the other.

What do we do when there are multiple causes of a movement in stock price? If Greece defaults at the same time new job numbers are released, can we say which causes the movement of a stock price?

If you're just chatting about the markets, it probably doesn't matter. You don't need to answer the question of what caused the market action - it can be overdetermined.

If, however, you're the United States government, and you are trying to show that a series of actions mattered to investors, you are going to want to show that they affected the stock price. But what to do about all the other things that affected the stock price?

This question was taken up by the Second Circuit in United States v. Ferguson.

There, executives at General Reinsurance and an executive at AIG were convicted of numerous charges - conspiracy, mail fraud, securities fraud, and making false statements to the Securities and Exchange Commission.

The basis of the charges was a reinsurance transaction between the two companies. Such a transaction is, apparently, normally done to mitigate risk. Here, there was, the government alleged, no risk to mitigate - the transaction was intended solely to create an accounting illusion about AIG's reserves so that its stock price would not suffer.

Would you believe this was an actual trial exhibit?

To prove fraud, the government has to prove that a false statement is material - that it matters to someone in some decision they have to make. In this case, the government wanted to prove that it mattered to investors; that the reinsurance transaction affected the stock price.

The problem, though, is that lots of things affect stock price. At the same time at issue in the case, AIG was being accused of "bid-rigging, improper self-dealing, earnings manipulations, and more." Each of these allegations also affected AIG's stock price.

So, for the folks on trial to challenge whether the reinsurance contract affected the stock price, they would have had to argue that it wasn't the allegedly fraudulent reinsurance contract, rather it was the allegedly unlawful bid-rigging.

It's kind of like arguing that you couldn't have killed Tom because you were busy robbing Mary across town. It doesn't sit well with a jury.

The defendants offered to just agree that the reinsurance contract affected the stock price, so it wouldn't have to be submitted to the jury. The government, though, wouldn't agree.

This likely seems odd. The government thinks something happened. Why can't the defendant just agree, then that would be one less thing that the jury needs to worry about? The answer is that the Supreme Court has held that a defendant can't prevent the government from putting on the salacious bit of its case just by stipulating to it. The case is called Old Chief. It's how we know jury nullification works both at least one ways.

So the government wouldn't stipulate that the stock price dropped. Instead, they introduced a chart showing that the stock price dropped. But everyone agreed that the chart was inaccurate, because it reflected a drop in the price that was caused by other allegations of misconduct other than those in the trial.

The Second Circuit held that this was soup. The government doesn't have to stipulate to an element of the offense, but they can't use that as a mechanism to introduce misleading evidence. Moreover, the government really played the falling stock price up to the jury, arguing that:

[B]ehind every share of [AIG] stock is a living and breathing person who plunked down his or her hard-earned money and bought a share of stock, maybe [to] put it in their retirement[] accounts, maybe to put it in their kids' college funds, or maybe to make a little extra money for the family.

As a result, the Second Circuit vacated the conviction and ordered a new trial.

As an aside, it's nice to see that Seth Waxman came into the case on the side of the lead defendant. I'm sure I'll bump into him at a National Association of Criminal Defense Lawyers meeting soon.

FYI, I'm late to the party. Everyone and their mother has written about this. See:

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

August 3, 2011

Arrests Are Not Convictions: A Sentencing Judge Is Reversed For An Excess of Candor

Thomas Johnson was no stranger to the law. Growing up in New Orleans, the twenty-four year old had been arrested at least 15 times. Three of those arrests resulted in convictions.

Mr. Johnson said that in his neighborhood, to get arrests, the cops would pull up whenever there were a group of guys on the corner and arrest the ones the cops were able to catch.

This is probably not the corner where Mr. Johnson was arrested.

One time when the police pulled up on a group of young men on a New Orleans corner, Mr. Johnson ran. As he ran, he threw a silver and black object from his pants. That object happened to be a gun.

He pled guilty to being a felon in possession of a firearm in federal court in Louisiana. His sentencing guidelines range was 37 to 46 months.

The government asked the court to sentence him to 70 months in prison, almost twice the bottom of the guidelines range. The government supported this request by noting, among other things, that Mr. Johnson had been arrested twelve times without being convicted. The three times he was convicted, he only received probation. So, the government reasoned, Mr. Johnson needed to be sentenced to a lot of time in this case to make up for the time he didn't get before (or something like that).

The district court looked at his 12 past arrests and thought that where there's smoke, there's fire. Because the facts of the 12 arrests were all pretty similar - cop pulls up to corner, Mr. Johnson, with others, runs and the cops chase him - the court figured that Mr. Johnson was probably doing something illegal each time. He was sentenced accordingly, to 63 months in prison.

His lawyer objected to the district court's use of the prior arrest records. They are, after all, just arrests, not convictions. If it's unfair to use someone's past convictions against them, it's so much more unfair to use the person's past arrests.

The Fifth Circuit, in United States v. Johnson, agreed.

Noting that all the facts found by the district court at sentencing have to be sufficiently reliable to satisfy due process - meaning, basically, you've got to know that the information the judge is using when he imposes sentence is reliable - the court of appeals held that the district court cannot use an arrest record as evidence of prior illegal conduct.

The Fifth Circuit, in other words, rejected the district court's "where there's smoke there's fire" reasoning. Or, to use the Fifth Circuit's fancier words, "[w]e have long recognized that an arrest, without more, is quite consistent with innocence."

This is a good result. Congratulations to Mr. Johnson, and his lawyer.

Here's what I'm troubled by. In every federal sentencing, the court asks the United States Probation Office to prepare a presentence report. It's required by Rule 32(c) of the Federal Rules of Criminal Procedure.

The presentence report is supposed to be a financial, employment, educational, family, and medical history of the person about to be sentenced. It also includes a criminal history. Here's a link to a blank presentence report form so you can see what's in it.

The criminal history section always includes the person's past arrests that did not result in a conviction.

If, as the Fifth Circuit so rightly says, "an arrest . . . is quite consistent with innocence," why do sentencing courts get pages and pages of arrests when they're looking at what information to consider before a sentencing hearing?

Each arrest gets two or three paragraphs. Most people's children get a sentence or two buried at the end of one paragraph. Are arrests, which a district court is supposed to ignore, more important than a person's kids? If you look at the space devoted to the topics in the presentence report, then it's hard to say that the answer, from the court's point of view, is anything but yes.

The problem with Johnson, I suspect, is that this district court judge was simply excessively honest. This kind of reversal won't happen often. Sentencing judges see arrest records all the time - the system is set up to force them to see these arrest records. Most judges, I suspect, simply don't mention them if they matter because no district court judge wants to be reversed.

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

August 2, 2011

Appellate Advocate Wins A Chance To Save His Client $100

Just because you win, doesn't mean you win something you want.

Gary Dudeck pled guilty to three charges: possessing child pornography, receiving child pornography, and receipt of images depicting minors engaged in sexual activity.*

The district court sentenced him to ten years on each of the three counts, and ran the sentence concurrently.

Mr. Dudeck appealed, and argued that he can't be guilty of all three of these charges.

While there's a lot that double jeopardy doesn't mean, double jeopardy prevents a person from being convicted of the same crime twice.

So, if you commit an assault and an aggravated assault, where an aggravated assault is basically just defined as an assault plus some kind of aggravating factor, at sentencing, the court should dismiss the assault, and only sentence you for the aggravated assault.


Mr. Dudeck argued that receiving child pornography requires possessing child pornography, so that his conviction of possession should be ignored. Otherwise, it would violate double jeopardy.

The Sixth Circuit agreed that receipt of child pornography includes possession of child pornography in his case, United States v. Dudeck. The court remanded because it wasn't clear whether the images that supported the possession count were the same ones that supported the receipt count.

And, if Mr. Dudeck prevails, what does he get? The sentencing court already made clear that the sentence for receipt and possession should be the same. And the court already ran them concurrent to one another.

Mr. Dudeck, if he wins on this argument, as the potential to save himself $100. Every criminal defendant has to pay $100 for every felony count that he or she is convicted of. It's the law.

If Mr. Dudeck's possession conviction is overturned, he saves himself a full one hundred dollars.

 

* You may wonder what the difference is between receiving child pornography and receiving images depicting minors engaging in sexual activity. Basically, receiving child pornography - pictures involving real children - is a separate crime that receiving images that contain "virtual" children. If the image is real child porn, its receipt is prohibited by 18 U.S.C. S 2252(a)(2). If the image is of a virtual child, receipt is prohibited by 18 U.S.C. S 2252A(a)(2), which relies on a broader definition of child pornography.

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