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.

August 1, 2011

The Past Can Catch Up With You: Rule 404(b) and a New Trial In North Dakota

I spend a decent amount of time talking to people who have been charged with a crime. Perhaps more than most people. It is amazing how many people's understanding of the law differs from what the law actually is.

The double jeopardy clause may be the part of the criminal law least understood by people who are not in the criminal justice system. The double jeopardy clause prevents the federal government, or a state government, from prosecuting you twice for the same crime.

Here are some things that the double jeopardy clause does not prevent:

  • Being prosecuted in a federal court for the same conduct that was in a state case.
  • Having a higher sentencing guidelines range because of a prior conviction
  • The government telling the judge at sentencing that you have a prior conviction
  • Having a higher mandatory minimum because of a prior conviction
  • The jury in a case being told about your prior conviction

That last one is hard. The double jeopardy clause doesn't prevent the government from telling the jury about a person's prior conviction for a similar crime.

That doesn't mean, of course, that a prosecutor's ability to tell the jury about a prior conviction is boundless. It is bounded by Federal Rule of Evidence 404(b).

Rule 404(b) says that a prior bad act, like a criminal conviction, can be presented to a jury as long as it isn't being presented just to prove that the person on trial is a bad person, but, rather, that he or she has "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident".

In an outlier case, this rule makes some sense - if a guy was previously convicted of committing a murder while wearing a pink prom dress, and is on trial again for committing a new murder in a pink prom dress, we can probably agree that the jury may find his prior pink prom dress murder particularly helpful. The government isn't introducing the evidence just to make him seem like a bad guy, but like a very particular kind of pink-prom-dress-murdering bad guy.

The way the rule is written is slippery though. The Eighth Circuit's recent case, United States v. Williams, shows how slippery this can be.

Mr. Williams was on trial for drug distribution. He had a prior conviction for drug distribution. The government wanted to tell the jury about his prior conviction to prove that he knew how being a drug dealer worked. Knowledge, of course, is a reason to introduce evidence under 404(b).

This let the government go hog wild on Williams knowledge of the drug dealing life. The facts of the case (see for yourself in the opinion) don't really show that Williams needed to know much more than what a regular viewer of The Wire would know. Yet Rule 404(b) let the government tell the jury over and over again - "mark[ing] Williams as a previous drug dealer."

The district court, thankfully, found that the government went too far. They were simply tarring Williams with his past conviction. Sadly, this district court may be an outlier. Rule 404(b) is routinely stretched to allow any kind of prior criminal conduct that was related in almost any way to go to a jury.

 

* And, by the way, kudos to the district court for having the humility to correct a prior mistake. Though, he's not in the Sixth Circuit.

  • As bad as the courts have made Rule 404(b), at least it's not Texas, see Mean But Stupid

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.

July 28, 2011

The Ninth Circuit on Mandatory Minimums, Safety Valve, and Timetravel

Whenever there is a law that says a person who did a specific thing has to suffer a specific punishment, with no exceptions, there will be an application of that law that ordinary people think is unfair.

In New Jersey, two fourteen-year-olds now have to register as sex offenders for a relatively common locker room prank. A six-year old excited about joining cub scouts was suspended for school for forty days under a zero-tolerance policy because he brought a camping tool to school that included a butter knife.

In federal court, there are mandatory minimums in drug distribution cases. These mandatory minimums produce unfair results. People with minor involvement in cases can be required to serve massive sentences of ten or twenty years, and the judge who imposes that sentence has no lawful ability to go below that amount of time.

To make mandatory minimums ever so slightly less unfair, Congress has created something called a "safety value." It's in 18 U.S.C. 3553(f). In the sentencing guidelines, it's in section 5C1.2.

Basically, a person convicted of drug dealing qualifies for the safety value if they:

Safety Valve

(1) didn't hurt anyone,

(2) didn't have gun,

(3) weren't in charge of the drug dealing,

(4) tell the government about their involvement in the drug dealing, and

(5) don't have much prior involvement with the criminal justice system.

The last requirement, that they not have much criminal history, is the subject of the Ninth Circuit's opinion in United States v. Yepez.

The requirement of minimal criminal history, stated more precisely, is a requirement that the person have no more than one criminal history point under the United States Sentencing Guidelines. Criminal history points are assessed as set out in section 4A1.1.

Basically, any conviction where the person serves no time, or less than sixty days in jail, gets one point. But, if the person is on probation during the crime that lands them in federal court, they will receive two additional points.

Mr. Yepez received a DUI conviction when he was 18. He was on probation for it when he drove some meth for someone else.*

Everyone agreed he met every requirement of being safety valve eligible, except he had three criminal history points. One for the original conviction, and two because he was on probation when he drove the drugs. As a result, instead of receiving a sentence of five years, the district court judge found that it had no choice but to sentence Yepez to ten years in a federal prison.

The Ninth Circuit, though, disagreed. Because Yepez's lawyer had gone back to state court and asked the state judge to retroactively end Yepez's probation the day before he committed the federal crime, the Ninth Circuit held that Yepez was not on probation when he committed the crime.

California law lets a judge change a prior order nunc pro tunc. The concept of a nunc pro tunc ruling is probably my favorite legal idea. Basically, it lets a judge time travel to a prior date and issue a ruling from that date that is in effect for all times in the future from that date.

So, as a matter of California law, the nun pro tunc change meant that Yepez wasn't on probation when he drove the meth. The Ninth Circuit held that meant he only had one criminal history point and, therefore, was safety valve eligible.

Senior District Judge Timlin, sitting by designation, dissented. Following the Eighth and Tenth Circuits, he would have said that the federal government doesn't care what a state court does nunc pro tunc. The feds, in essence, don't smile on that kind of time travel.

Professor Berman wonders if the government will seek cert from the Supreme Court on this question.

Personally, I hope not. These distinctions are undignified. A man will spend five years in prison, or not, depending on something as arbitrary as whether a state court judge has the power to change probation in the past.

If the act of deciding what sentence a person gets is a moral act, an act where we, as a society, show our judgments about how we think of justice and blameworthiness, then surely making such decisions turn on the technicalities of judicial time travel fails.

* According to the opinion, he thought it was marijuana. This is, of course, an odd defense. The district court, in any event, found it plausible, since the guy was only 20 years old.

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.

July 27, 2011

The Fourth Circuit Finds that the Police Can't Assume You're A Drug Trafficker Just Because You Clean Your Car, Have Toiletries, and Don't Want Your Shirts Wrinkled

What good is a hunch if you can't say why you have it? If you want to stay inside the Fourth Amendment, not much.

Stephen Digiovanni was driving through Maryland. He was stopped by the Maryland State Police for following too close to another car.

The officer who pulled him over, though, was a member of a Pro-Active Criminal Enforcement Team, a task force set up to investigate drug and terrorist activities. When the officer pulled Mr. Digiovanni over, he didn't see a man in his late fifties driving from Florida to Boston. No, this officer saw a drug trafficker.*

How did the officer know Mr. Digiovanni was a drug trafficker? The officer explained it was a combination of little things. For one thing, Mr. Digiovanni's car was clean. Also, it was a rental car. And he had some shirts hanging up in the back seat. Also, he had a hygiene bag with him. So, naturally, the officer suspected Mr. Digiovanni of being a drug trafficker.

The officer asked Mr. Digiovanni to step out of the car. He asked Mr. Digiovanni what his travel plans were and whether he had drugs. Mr. Digiovanni said he was traveling back to Boston from a trip to Florida and that he didn't have any drugs with him.

The officer asked Mr. Digiovanni if he specifically had any marijuana in the car. Mr. Digiovanni said that he had never smoked marijuana because it puts him to sleep.**

The officer asked if he could search the car. Mr. Digiovanni said ok. Luckily for him, he had trouble opening the trunk, so the officer gave up after three minutes, went back to the police car, and ran his license and registration.

When the license and registration check came back negative, the officer brought Mr. Digiovanni a warning ticket, his license, and his rental car registration. The officer told him that he was free to go, but his earlier consent to search was still in effect and couldn't be withdrawn. He gave Mr. Digiovanni a written consent to search form, which Mr. Digiovanni signed.

The officer, and a backup, found just over 34,000 pills of Oxycodone. He was charged in federal court in Baltimore with possession with intent to distribute Oxycodone.

Clearly, the driver of this car is carrying drugs.

Mr. Digiovanni filed a motion to suppress the pills taken from his car. The Honorable Catherine C. Blake, widely know as a wise and fair jurist, granted the motion.

By way of background, a police officer can, of course, pull a driver over for a violation of the traffic law. But the officer can't keep a person pulled over for longer than giving them the traffic ticket would take, unless the officer has a reasonable, articulable suspicion that the person driving the car has committed a crime.

Judge Blake determined that the officer kept Mr. Digiovanni by the side of the road longer than necessary to run his license and issue a warning ticket. She found there was no reasonable suspicion of him as a drug dealer, since, as the Fourth Circuit put it, his "appearance and demeanor fit in the category of a retired person, one driving from Florida to the northeast."

Judge Blake found the officer's reliance on Mr. Digiovanni's clean car, his shirts hanging so that they wouldn't wrinkle, and his toiletry kit "suspect, because he offered no 'reasonable explanation' for relying on these factors."

Because the officer took longer than he needed to run the license and issue a warning ticket, and he had no reason he could point to for why he thought Mr. Digiovanni was suspicious, the permission that Mr. Digiovanni gave to search his care later was tainted by the officer's prior illegal detention. Thus, the evidence was suppressed.

The Fourth Circuit affirmed in United States v. Digiovanni.

* As it happens, he was right.

** Right. It doesn't really make sense.

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.

July 26, 2011

The Second Circuit Rocks Out On The Fourth Circuit's Love of The Third Level

Recently, the Fourth Circuit held that the government cannot deny someone who pleads guilty the third level for acceptance of responsibility under 3E1.1. Here's my earlier post on the Fourth Circuit opinion (which describes the issue in much more detail).

Today, the Second Circuit joined the Fourth Circuit's celebration of giving full sentence-reduction credit to people who plead guilty.

In United States v. Lee, the defendant, Mr. Lee entered a guilty plea and did it soon enough that they knew they wouldn't have to prepare for trial. The government refused to move for a third level reduction in Mr. Lee's sentencing guidelines under 3E1.1, though, because Mr. Lee had the temerity to disagree with the government about what happened in the crime.

He entered a guilty plea, but, apparently, did not fully submit to the will of the United States government, and so they had to have a sentencing hearing. The Second Circuit's opinion is not crystal clear on the government's reasoning, but, apparently, the government wanted Mr. Lee to spend more time in prison because either (1) he disagreed with the government, or (2) he made them do extra work.

The Second Circuit held that the government's refusal to move for the third level was unlawful. The court said that the government cannot withhold the third level simply because they have to prepare for a sentencing hearing, relying heavily on the Fourth Circuit's decision in Divens.

Let that 3E1.1 law keep developing in a way that gives people credit for giving away their rights in a guilty plea.

Hat tip to Professor Berman.

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.

July 26, 2011

The Fifth Circuit Affirms A Grant Of A New Trial In A Case Of Texas Family Backstabbing

No good comes from stealing a shotgun during a hurricane evacuation.

The people of Port Naches Texas had to leave their homes when Hurricane Gustav threatened. While they were away, homes were burgled. A shotgun and a rifle were stolen from a house.

Those weapons were later resold to a guy named Robert Newsom. They were sold by a white man who Newsom knew was a member of the Piazza family and a woman. The man was tattooed and bald. The woman said the guns used to belong to her father, but he died. Newsom paid $175 for the guns.

Newsom later heard about a burglary of some guns during the hurricane evacuation and became suspicious. He went to the police with his newly acquired guns. The police found the woman, Sandy Guilbreaux, who confessed. Sandy was married to Jed Piazza, but told the police that it was Jed's brother Chad who sold the weapons with her.

The police went after Chad. Newsome picked him out of a lineup that did not include Jed, though he noted that the guy in the picture had hair, and the guy he bought the guns from didn't.

Jed is bald. Chad is not.

Newsom's phone showed that he was called from Jed's phone to set up the gun sale.

The federal government took an interest in this case, and prosecuted Chad for selling the guns. Chad was convicted and sentenced to thirty-three months in prison.

The defense theory was that Ms. Guilbreaux was lying to protect her husband. Ms. Guilbreaux gave conflicting statements when she testified about how much hair Chad had, eventually settling on the idea that he had just shaved his head. She admitted that she had trouble remembering things because she had psychological issues and took prescription medicine that made her forgetful. She lied about being previously convicted for theft.

Chad and Jed's mother testified that Sandy told her that she was lying to the police about who she sold the gun with.

After the trial, Jed and Chad's brother Darrin came home from a time in prison. He had been home when the gun-selling happened and wrote an affidavit that he was with Chad during the time of the gun sale. On the night of the gun sale, Darrin swore that,

Around 9:00PM, my brother, Jed Piazza and his common law wife Sandy arrived in a blue colored sedan that looked like an old police car. Jed drove that type of vehicle during hurricane evacuations so he would not be stopped by police. At this time, I was outside smoking cigarettes with one of my other brothers, Steve "Bubba" Piazza. Jed told Steve that he had some guns in the trunk of their car that they wanted to sell. Steve told Jed that he knew of a guy that purchased guns from him in the past but this buyer would not buy stolen guns. Upon hearing this, Sandy, Jed's common law wife, said that the guns were her father's. Jed then called this person's phone number he got from inside a spiral notebook Steve had of everyone's numbers. I believe this person's name is Robert Newsome [sic].

Chad's lawyer filed a motion for a new trial based on Darrin's statement. The district court granted it.

The government appealed, apparently wanting to make sure there was a circuit court opinion describing their decision to prosecute a case in federal court based on the testimony of the wife of the chief alternative suspect who suffers psychological problems, has a criminal history that she lied about, and told another witness that her husband committed the crime.

The Fifth Circuit affirmed the district court's decision to grant a new trial in United States v. Piazza.

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.