September 7, 2011

How The Eighth Circuit Saved Christmas

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

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

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

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

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

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

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

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

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

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

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

So many "occasions"

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

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

No wonder so many people feel lonely around the holidays.

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

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

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

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

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

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

September 6, 2011

More Valor Stolen From The Stolen Valor Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As the Tenth Circuit explained the allegations,

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

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

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

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

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

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

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

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

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

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

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

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

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

September 5, 2011

My Guest Post on the American Constitution Society Blog

Happy Labor Day!

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

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

September 2, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

THE COURT: Yes, okay.

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

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

HUNT: Okay, that's fine.

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

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

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

September 1, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

August 31, 2011

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

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

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

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

But, to United States v. Parker.

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

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

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

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

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

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

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

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

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

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

August 30, 2011

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

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

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

Then the police came knocking.

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

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

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

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

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

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

The Sixth Circuit reversed in United States v. Johnson.

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

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

As Justice Souter observed in the opinion for the Court,

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

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

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

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


* Seriously, why do people do that?

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

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

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

August 29, 2011

Is Twitter Harrasment a Crime?

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

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

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

As Eugene Volokh explains,

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

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

August 29, 2011

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

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

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

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

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

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

The trial court instructed the jury that:

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

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

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

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

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

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

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


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

August 26, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

The war on drugs makes for some odd law.

August 25, 2011

The Eleventh Circuit Reverses and Remands Because the District Court Made Up A Restitution Amount

It's odd - most lawyers spend their entire careers fighting about money. Criminal defense lawyers - even white collar criminal defense lawyers - tend to focus much more on prison time or guilt and innocence. We're a rare breed of lawyer; we're lawyers who don't fight about money (most of the time).

There are downsides to not normally focusing on money.

As the Wall Street Journal recently wrote, forfeitures are out of control. The government is taking money from people with minimal process and getting away with it. Apparently, the money that law enforcement collects goes back to law enforcement coffers. This seems not to reduce the abuses of forfeiture.

The Eleventh Circuit's recent opinion in United States v. Singletary shows another problem with failing to focus on the money.

Patrick and Robert Singletary pled guilty to participating in a scheme to commit mortgage fraud with a number of unindicted co-conspirators.

At sentencing, their guidelines ranges were 51 to 63 months and 33 to 43 months. The judge imposed sentences of a year and a day*, and 18 months.

He also imposed restitution of $1 million, and a forfeiture order of $1 million.

The issue on appeal? The restitution amount.

In federal court, restitution is available to pay back people who lost money because of a crime. In Singletary, the court had a hearing to determine how much money people lost.

But the district court said, on the record, that it didn't buy the government's evidence. It just didn't find the government's witnesses credible. So, when the government said that the amount that was lost, which would drive the sentencing guidelines and the restitution amount, was more than $3 million, the district court said no.

Instead, the court held, $1 million seemed about right. Not because the court identified transactions that added up to a round $1 million. Rather, it seems that the sentencing court selected $1 million because it was a nice round number that was less than what the government wanted.

The court used the wrong loss number for both the sentencing guidelines and the amount of restitution. Yet only the restitution part was appealed.

Even though the judge used the wrong loss amount when determining the sentencing guidelines, no one really cared. The Singletaries already received sentences under the bottom of the guidelines.

The only thing that mattered - that arbitrary order to pay $1 million.


* I can hear you wondering, "A year and a day? What an odd sentence length? Why would a judge tack on the extra day?" This is an odd circumstance where more time is actually less time. If the court had imposed a sentence of a year, the person would not have been eligible for good time credit. By adding an additional day, good time credit is possible, which, in the federal system, would be worth about 45 days of reduced sentence.

"Why not just impose a sentence of 10 and a half months?" you may ask.

I don't really have an answer for that.

August 24, 2011

The Seventh Circuit Reverses - Judge Posner Would Like To See More Explanation

Judge Richard Posner is sui generis. The Seventh Circuit judge is a towering legal intellectual. He writes on moral theory. He founded a journal. He writes about current political controversies. He is one of the few intellectuals of our time who has "changed the world" according to Tyler Cowen - unlike such slouches as Paul Krugman, Richard Dawkins, and Noam Chomsky. He's lectured in Second Life. He even blogs for the Atlantic.

He has been called "the world's most distinguished legal scholar."

He is also, most importantly, a serious bluebook hater (apologies that the link just goes to the first page of the article at JSTOR - though what a great first page it is. My favorite line comes later as advice to law students - "Make certitude the test for certainty." It summarizes so cleanly what's wrong with so much legal writing.).

One can empathize with a district court judge who has a case being appealed to a panel with Judge Posner. Here you sit, busier than you'd ever want to be. You're underpaid relative to what you could make in the private sector. You have an ever-growing caseload, particularly as Obama fails to get judges confirmed at rates like past presidents. Then this intellectual - who sleeps, what, 45 minutes a night? - comes picking at your work. It has to be hard.

So, for that reason, I have some empathy for the district court judge in United States v. Robertson.

Mr. Robertson pled guilty to growing marijuana plants. He was convicted and sent to prison for ten years. When he was released, he was on supervised release for eight years.

Shortly before his supervised release was to end, he was charged with growing marijuana plants. He went before the same judge for sentencing on the new marijuana plant charge that he had before.

The district court was unhappy to see Mr. Robertson again.

He sentenced Mr. Robertson on his new charge to 30 months in prison (I assume based on the number of plants he was growing). Then he turned to sentencing for the supervised release violation.

Sentencing on a supervised release violation is always tricky. The person being sentenced has already been before the judge. He's already gotten a second chance, and he's blown it. He's asking, often, for a second second chance. It can be a tough sell.

The guidelines suggest that a sentence of 12 to 18 months would be appropriate. The district court imposed a sentence of 34 months.

The district judge asked Mr. Robertson why he was still growing marijuana after spending eight years in prison. Mr. Robertson replied that "he just liked the way the plant looked" and that he "liked to smoke it." The district court suggested that, perhaps, he could take up "growing gardenias."

(In fairness, that suggestion really didn't take into account that Mr. Robertson likes to smoke his crops.)

The district court repeated that it was unhappy to see Mr. Robertson again. It them imposed sentence.

Judge Posner, the prolific explainer of legal theories, was unimpressed.

Noting that a judge sentencing a person for a supervised release gets the largest possible amount of deference from an appeals court, Judge Posner held that the district court did not provide enough explanation of its sentence.

As Judge Posner said,

We cannot brush off the appeal on the ground that of course the district judge knows the statutory sentencing factors and the relevant Guideline provisions and so he must have had a good reason for imposing a sentence almost twice as long as the maximum recommended by the Sentencing Commission (34 months versus 18 months). If that response to his appeal were proper, a judge would never have to give a reason for a sentence that was within the sentencing range set by Congress. Anyway what a busy judge knows is not always present to his mind.

(sarcastic emphasis in original)

Clearly, the district court judge should have explained his sentence. One of the central values of a reasoned process in our courts is that the providing of reasons for a judges action is what gives them legitimacy. It's the inverse of the silence we foist on to defendants. Yet Mr. Anderson didn't get the benefit of that reasoned explanation.

Still. One suspects that, perhaps, Judge Posner realizes how much explanation he would have given if he were the judge imposing sentence.

August 23, 2011

The Fourth Circuit and the Fourth Amendment: If You Search Like a Redcoat, You Can't Use What You Find in Court

The Fourth Circuit has - for the second time in the past few weeks - given meaning to the Fourth Amendment's prohibition against unreasonable searches and seizures.

In United States v. Massenburg, Judge Andre Davis rejected a government claim that a police officer had reasonable articulable suspicion to search a citizen. This is fresh on the heels of the Fourth Circuit's holding that wanting to avoid wrinkled shirts is not an indicicator of criminality.

Judge Davis

In Massenburg, the police were in a neighborhood where shots had been fired. A group of four young African-American men were walking by two police officers. The officers asked if they could speak with the men. The men stopped and answered a few questions. One of the men, Mr. Massenburg, stood a few feet away from the others. A police officer asked one of the men for his identification. The man complied. A police officer asked if he could pat the men down. Three said that he could.

The fourth man, Mr. Massenburg, did not make eye contact with the officer, but said that he did not give consent for a pat down.

The officer told him he was going to pat him down anyway. The cop found a gun. The man was charged with being a felon in possession of a firearm under 18 U.S.C. S 922(g).

For the police to pat you down, they have to have either reasonable articulable suspicion of a crime (plus a reasonable concern for their safety while they're stopping you to talk about the crime), or they have to have your permission.

Mr. Massenburg filed a motion to suppress the weapon. The district court denied it. Mr. Massenburg then pled guilty, on the condition that he be allowed to appeal the district court's decision that his search was legal.

Judge Davis's opinion is fascinating and worth a close read - he's an engaging writer.

Judge Davis identifies three possible justifications for the pat down. First, Mr. Massenburg refused the pat down. Second, Mr. Massenburg refused to look the police officer in the eye. Finally, Mr. Massenburg was in a neighborhood where gunfire had been heard.

As to the first consideration, the court noted that refusing to consent cannot be the basis for a search:

If the ordinary response of the innocent upon being asked to consent to a search--some mild nervousness--sufficed to create reasonable suspicion, then Terry's reasonable suspicion requirement would become meaningless: officers could ask a citizen for permission to conduct a voluntary search, and, if denied, they could use the citizen's denial as evidence of criminal activity and perform the search anyway.

As to a refusal to maintain eye contact, the court thought that this was too close to the refusal to consent to search:

Though, as an analytic matter, nervousness can be separated from the denial of consent itself, to attempt to extricate the very mildest indicators of nervousness--such as a failure to maintain eye contact during the refusal . . . --from the denial itself is too nice a matter. Virtually any denial will be accompanied by these mild reactions to the request, and thus virtually any denial would go much of the way toward authorizing a non-consensual search. This cannot be the case.

Judge Davis also noted that the atmospherics of the lack of eye contact do not necessarily indicate that Mr. Massenburg was being evasive, rather,

Given the complex reality of citizen-police relationships in many cities, a young man's keeping his eyes down during a police encounter seems just as likely to be a show of respect and an attempt to avoid confrontation.

Finally, Judge Davis addresses the idea that the police can search people who are in high-crime neighborhoods, or in neighborhoods where shots have just been heard. He determined that the government does not have this power - it comes too close to a general search of anyone in an area, unrelated to the person's particular actions. As the court notes,

To hold otherwise would be to authorize general searches of persons on the street not unlike those conducted of old by the crown against the colonists. Allowing officers to stop and frisk any individuals in the neighborhood after even the most generic of anonymous tips would be tantamount to permitting a regime of general searches of virtually any individual residing in or found in high-crime neighborhoods, where "complaints" of "random gunfire" in the night are all too "usual[ ]." James Otis famously decried general searches as "instruments of slavery . . . and villainy," which "place[ ] the liberty of every man in the hands of every petty officer," warning against abuses by "[e]very man prompted by revenge, ill humor, or wantonness." Timothy Lynch, In Defense of the Exclusionary Rule, 23 Harv. J. L. & Pub. P. 711, 722 (2000) (quoting James Otis, Speech on the Writs of Assistance (1761)). The Fourth Amendment, and the courts' Fourth Amendment jurisprudence, is aimed at this evil. Without reasonable particularized suspicion of wrongdoing, such searches and seizures offend the Constitution.

I don't disagree that the government's actions in high-crime neighborhoods resemble, in many ways, those of an occupying force rather than of a helpful

Terry Stop?


Indeed, this observation feels thematically similar to criticisms of our nation's drug policy made by David Simon - like Judge Davis, a resident of Baltimore. (though, sadly, it looks as though there will not be another season of The Wire).

Yet this opinion is striking because of how it could have gone the other way. Indeed, in the district court, it did go another way. In the district court's view of the case, the police were justified in searching Mr. Massenburg based on his refusal to consent to a search, lack of eye contact with the police, and presence in a high-crime neighborhood.

August 22, 2011

The Ninth Circuit Remands For A Third Trial In An Illegal Reentry Case

Winston Churchill is famous for his "Never Give In" speech.

They must be watching that speech in the Federal Defenders of San Diego, particularly in that office's representation of Carlos Jesus Marguet-Pillado. Those lawyers did tremendous work for their client, solely because they never gave up. See the Ninth Circuit's recent opinion in United States v. Marguet-Pillado.

Mr. Marguet-Pillado was charged with illegal reentry. To be convicted, the government has to prove that he is an alien who was previously deported from the country and who came back without permission.

His attorneys found his birth certificate. His birth certificated said that Michael Marguet is Mr. Marguet-Pillado's father. Michael Marguet is a United States citizen.

As it happens, Michael Marguet is not Mr. Marguet-Pillado's birth father - he is his step-father.

If Mr. Marguet-Pillado is a United States citizen by virtue of his step-father's citizenship, then he is not an alien. If he is not an alien, he is not guilty of illegal reentry.

Mr. Marguet-Pillado went to trial. He waived a jury trial, and went to a trial in front of a judge. At that trial, he stipulated that he was deported and reentered the country. He argued that he was a citizen by virtue of his step-father's citizenship.

He lost. He appealed. The Ninth Circuit held that derivative citizenship, or citizenship that a person can acquire through one's parents, even if not born in the United States, cannot be conferred through a step-parent.

The Ninth Circuit sent the case back for another trial.

On retrial, Mr. Marguet-Pillado stipulated to nothing. He has a right to demand that the government prove him guilty beyond a reasonable doubt of each part of the offense. He held them to that proof. He demanded a jury.

He asked the trial court to instruct the jury about derivative citizenship. His lawyer said,

obviously, I'm not going to mislead the court or the jury . . . [however] . . . I think the Ninth Circuit has instructed us we're entitled to challenge the quality of the government's evidence . . . I'm not going to argue that our now-rejected legal theory should be the law[, but] I think we're entitled to say that the government hasn't met its burden with respect to an element of the crime.

He asked to have the jury told that derivative citizenship is possible. Here's the instruction:

A person is a natural-born United States citizen if that person was born in the United States. A person born outside the United States is also a natural-born citizen of the United States if, before the person's birth, one biological United States citizen parent of that person was physically present in the United States for ten years, at least five of which were after the citizen parent reached the age of fourteen.

Everyone agrees this is an accurate statement of the law. Yet the district court said no to this requested instruction. The Ninth Circuit already said that Mr. Marguet-Pillado is not a citizen - the district court wasn't going to instruct the jury that they can think about this.

Mr. Marguet-Pillado lost at trial. He appealed.

The Ninth Circuit just reversed, again. It reaffirmed the unremarkable proposition that the government has to prove every element of the offense to get a conviction. So the government has to prove Mr. Marguet-Pillado is not a citizen. And Mr. Marguet-Pillado is entitled to an instruction about who is a citizen.

So, back to trial again. Maybe the third time's a charm?