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?

August 19, 2011

The Sixth Circuit Sends An Escape Case Back For Resentencing

Darrell Walker made an exceptionally bad decision.

He was serving a prison sentence for credit card fraud, he was assigned to a halfway house at the end of his prison term (the Bureau of Prisons has federal prisoners spend the last months of a prison sentence at a halfway house as a way to reintegrate people into the community).

Mr. Walker did not return to the halfway house when he was supposed to. Indeed, he never returned at all. Twenty-two days after he left the halfway house, he was rearrested for escape.

Running From The Law

For his twenty-two days of freedom, Mr. Walker was sentenced to three years in prison.

The Sixth Circuit reversed his sentence in United States v. Walker.

The sentencing presentation focused on how much Mr. Walker needs drug treatment. The guy has a serious drug problem, according to the description of his woes in prison.

The sentencing judge gave Mr. Walker a longer sentence than the sentencing guidelines asked for, or than the judge was otherwise inclined to give, because he wanted Mr. Walker to have more time in prison to get drug treatment.

Yet the Supreme Court rejected this as a sentencing option very recently in Tapia v. United States. A federal judge cannot give a person more time in prison just to make sure the person gets some rehabilitative benefit from prison.

Thus, Mr. Walker's sentence was vacated, and a new sentencing hearing will have to happen.

As an aside, the Sixth Circuit opinion says that Mr. Walker escaped from supervised release. This is almost certainly wrong. The federal escape statute Mr. Walker was charged under was, likely, 18 U.S.C. S 751. This statute prohibits escape from the custody of the Attorney General (as the statement of facts in the opinion says).

If a person is in the custody of the Attorney General, the person is in prison, and not yet on supervised release. Put another way, the Sixth Circuit's statement that Mr. Walker escaped from supervised release is not consistent with its statement that he was in the custody of the Attorney General.

It's an odd thing - to be in prison and yet in a halfway house - but that's how it's done.

And I am kind of a dork for pointing that out.

August 18, 2011

Pleading Guilty Only Makes Sense If There Is Evidence That You Are Guilty

The vast majority of federal criminal cases are resolved through plea agreements.

There are a lot of advantages to pleading guilty, among them: the sentencing guidelines level will be lower under section 3E1.1 of the sentencing guidelines; a person can sometimes avoid a charge with a mandatory minimum; and the government will often offer some concessions in what it seeks at sentencing.

It makes sense that a person facing a federal crime would want to put herself in a better position for sentencing.

But only if she's guilty.

The Eighth Circuit reversed a conviction and vacated a guilty plea where the factual record did not support a conclusion that the person pleading guilty committed the crime that she was pleading guilty to.

The case is United States v. Heid.

Ms. Heid wanted to help her son - what mother wouldn't. When her son was arrested, she wanted to bail him out. She made some calls, collected some money, and took the money to the courthouse - with two bailbondsmen. She posted the bond and her son was released.

The federal government became convinced that Ms. Heid used drug money to secure her son's bond. She was indicted, along with the two bailbondsmen and someone who contributed the money, for conspiracy to commit money laundering.

Ms. Heid pled guilty. She wanted to accept responsibility. She did not enter into a plea agreement - she just went to court and said she was guilty.

The district court judge accepted her plea, even though he said he didn't know that she met the intent requirement in the statute. You see, to be guilty of money laundering, you have to both know that the money came from something illicit, and you have to know that the point of the transaction you're entering into is to disguise that the cash came from something illicit.

But, because the bailbondsmen were going to trial soon, the district court thought he'd probably learn a lot more soon, so he was willing to accept the plea, subject to hearing about how the bailbondsmen were guilty later.

A funny thing happened on the way to the bailbondsmen's conviction though. They were acquitted at trial.

Ms. Heid tried to withdraw her plea. The district court said no. The Eighth Circuit, reviewing the record, determined that there was no evidence in the record that Ms. Heid was actually factually guilty.

Specifically, there was no evidence about what she knew about the money's source or that the point of giving the money to the bailbondsmen was to launder it.

Because there was no factual support for her plea, the plea was vacated.

It's nice that her conviction was vacated because there's no evidence that she was guilty. It would have been better if it happened sooner than six months before she's set to be released from prison.

August 17, 2011

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

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

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

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

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

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

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

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

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

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

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

The Seventh Circuit did not like that remark.

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

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

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

Then, later, the court of appeals summarized,

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

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

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

August 16, 2011

It Is Not Good To Be Hated By Congress

Congress really doesn't like sex offenders.

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

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

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

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

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

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

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

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

Biker Gang: [shout] Yeah!

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

Biker Gang: [shout] Yeah!

Biker #4: I say we stomp him!

Biker Gang: [shout] Yeah!

Biker #4: Then we tattoo him!

Biker Gang: [shout] Yeah!

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

Biker Gang: [shout] YEAH!'!

Biker #4: And then we kill him!

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

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

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

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

Biker Gang: [break out in raucous laughter]

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

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

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

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

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

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

August 15, 2011

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

Criminal history is important and complicated.

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

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

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

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

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

Assault, in Tennessee is defined as:

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

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

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

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

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

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

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

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

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

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


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

August 12, 2011

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

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

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

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

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

The tax on being a violent person is high.

The Definition of a "Crime of Violence"

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

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

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

States Define Crimes Differently

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

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

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

States Still Define Crimes Their Own Ways

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

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

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

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

The Old Rule In The Ninth Circuit

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

The New Rule In the Ninth Circuit

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

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


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

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