July 21, 2011

The Seventh Circuit Puts Fast Track Disparity Arguments On A Slow Track, But Doesn't Derail Them Entirely

If you come to the United States from another country, and you aren't really here with permission (that is, you come in violation of U.S. Immigration law), and you're sent back to your home country, but then decide to come back to the United States, odds are you have committed the federal crime of illegal reentry. This is a violation of 8 U.S.C. S 1326(a). The crime is commonly called illegal reentry.

This crime gets committed a lot. And it gets prosecuted in any place where a person who has returned to the country after a prior deportation is discovered. Illegal reentry can be prosecuted in Texas, and it can be prosecuted in Iowa.

(though, as an aside, there's a much larger population of recent immigrants in Iowa than you might think. My hometown of Perry Iowa, for example now has a very good Mexican restaurant. Iowa is trying to respond to these new Iowans in what I think of as a characteristically kind and reasonable way.)

Border districts have many more illegal reentry cases than they can reasonably address. In order to encourage people to plead guilty quickly, so these courts can dispose of these cases, many federal prosecutors on the border set up "Fast Track" programs. Though these programs have now spread beyond the border - Nebraska has one, for example.

Fast Track programs let people get a much lower sentence if they plead guilty quickly, agree to a statement of facts offered by the government, and give up certain rights.

A Very Different Kind of Fast Track

Generally, Fast Track programs are only available to people caught along the border. Folks charged with illegal reentry in other parts of the country have cried foul. If you're caught in Maryland, which does not have a Fast Track program, why should you serve longer than if you're caught in Texas, simply because of a program to manage the court's docket. That doesn't seem like justice.

The federal law that governs sentencing factors, 18 U.S.C. S 3553, even tells judges, in subsection (a)(6), that they should avoid treating people accused of the same crime with the same criminal history differently.

How to handle this, though, is a massive problem. The Seventh Circuit has rolled-up its sleeves to work on it though, in three cases consolidated in its opinion in United States v. Ramirez. And, to be clear, Sentencing Law & Policy beat me to the punch. Check out Berman's coverage here.


The Seventh Circuit held that:

a defendant claiming entitlement to a lower sentence because of a perceived fast-track "disparity" must promptly plead guilty, agree to the factual basis proffered by the government, execute an enforceable waiver of specific rights before or during the plea colloquy, establish that he would receive a fast-track sentence in at least one district offering the program, and submit a thorough account of the likely imprisonment range in the districts where he is eligible, as well as a candid assessment of the number of programs for which he would not qualify. Unless the defendant complies with each of these steps, the sentencing court will be free to reject the argument without comment.

The court was troubled by how much other districts vary in the way they give a reduction for participation in a fast track program. To be sure, that's troubling, though I tend to think it's troubling more as a matter of national policy than of being too lenient to someone who is going to spend four years or so in one of our federal prisons.

If Nebraska gives two levels off of the sentencing guidelines, and Texas gives six, should a defendant in Illinois get two levels off or four under a disparity argument, if they meet all the requirements of both Texas and Nebraska? What should happen, of course, is that in Nebraska, defense counsel should start making Fast Track disparity arguments relative to Texas, so that, later, the Illinois case should look to Texas instead of Nebraska.

Which raises another interesting point - judicial districts vary by their adherence to the guidelines. Are those cognizable as a 3553(a)(6) argument? They should be, of course, but I could see how a defense lawyer would be skeptical to make it - the judge you're trying to convince is the same one you're saying is outside of the mainstream of harshness.

Back to Ramirez, the court did note that proving that any individual defendant should have been eligible for fast track, and how much, is complicated and will be difficult work. They are absolutely right about that.

The court affirmed the sentences in the case, but modified the sentence of one of the defendants to clarify that he is not required to participate in the Inmate Financial Responsibility Program. That is perhaps not the most significant defense win.

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

July 20, 2011

The Eleventh Circuit And The Unwilling Pro Se Criminal Defendant

In my experience, many federal prosecutors play fair. They want to get their conviction, to be sure. The law gives them many advantages, and they're happy to avail themselves of what the law gives them. But I don't know of many federal prosecutors who go out of their way to take away a defendant's lawyer.

Then again, I don't practice in Georgia.

The Eleventh Circuit, today, reversed and remanded a case where a criminal defendant went to trial without a lawyer, because the government opposed him receiving appointed counsel. The case is United States v. Ly. Apparently, in some U.S. Attorney's Offices, they read Gideon narrowly.


Shortly after he was charged with filling prescriptions "outside of the usual course of professional practice and without medical purpose", under 21 U.S.C. 841(a)(1) and 21 C.F.R. section 1306.04, Mr. Ly, asked for appointed counsel. The government opposed his request for a lawyer. A magistrate judge worked with federal probation, and determined that Mr. Ly's wife had significant assets, and that Mr. Ly had shared these assets with his wife. So the court determined that Mr. Ly cannot have an appointed lawyer.

The court's strategy, apparently, was that Mr. Ly would come up with the money if the request for appointed counsel was denied.

Mr. Ly did not come up with the money. He went to trial without a lawyer. The government's case in chief consisted of:

(1) expert testimony about the regulation of controlled substances; (2) expert testimony regarding standard prescription practices and how Ly's actions deviated from those standard practices; (3) testimony from eleven of Ly's patients explaining Ly's prescription practices; (4) testimony from four retail pharmacists who became suspicious of Ly's practices and therefore stopped filling prescriptions written by Ly; (5) evidence that pharmaceutical companies sold large quantities of controlled substances to Ly and that one company stopped selling to Ly because of these purchases; and (6) the results of a lawful search of Ly's house and office.

In response, Mr. Ly tried to call his prior patients to testify that he was a good doctor who provided quality care. The court would not let him. He called a few witnesses, who offered little in support of his cause.

When the rest of Mr. Ly's evidence was in, the judge had this conversation with him:

THE COURT: All right, Dr. Ly, I've heard you say that you have no more witnesses. Do you intend to testify in this case?

DR. LY: No, Your Honor.

THE COURT: Now, do you understand that you have an absolute right to testify in your own behalf?

DR. LY: Yeah, I know, but without counsel, Your Honor, I can't testify.

THE COURT: So it is your personal decision not to testify in this case?

DR. LY: Because I don't have counsel who can ask me questions.

THE COURT: Is it your personal decision not to testify in this case?

DR. LY: What do you mean, Your Honor?

THE COURT: Well, I've told you you have a right to testify. Is it your personal decision not to testify in this case?

DR. LY: No. I decide not to testify because I don't have counsel to ask me questions. I cannot just be cross-examined without my counsel to ask--my own counsel to ask me questions.

THE COURT: So you choose not to testify, then?

DR. LY: If I don't have my own counsel -

THE COURT: - Well, you know you don't have counsel, Dr. Ly. That's not the question. You've not had counsel since this trial started. Now, this is your opportunity to testify or not testify, and I want you to tell me on the record whether you intend to testify or not testify.

DR. LY: That decision I can't make--I can't make it in the split of a second, Your Honor. Could you give me . . .

THE COURT: Well, I'm assuming, then, and I'm taking that as a decision by you not to testify in your own behalf in this case.

DR. LY: I wouldn't agree with that.

THE COURT: Well, we've got a jury sitting in the box, and it is your time to testify. And so you're going to have to make that decision, and you've had months leading up to this trial to make that decision. Now, I'm not going to keep everybody waiting. I'm not going to keep the jury waiting, so you make a decision right now whether you're going to testify or not testify.

DR. LY: I'm not going to testify.

Mr. Ly did not testify, was convicted, and was sentenced to serve 97 months in prison.

The thing about that conversation that the court had with Mr. Ly is that Mr. Ly is actually wrong when he says he can't testify unless he has a lawyer. He can testify, he'd just testify in the narrative - he'd just talk, instead of being asked questions. But the district court judge never corrects that mistake, and allows him to persist in the belief that he's unable to testify because he has no lawyer. Unable to call any witnesses or produce any other evidence, Mr. Ly doesn't testify because he thinks he isn't allowed to.

The Eleventh Circuit today said that violated Mr. Ly's constitutional rights and reversed and remanded.

The issue is tricky - as the court explains, normally there's a default position on a constitutional right:

In the right-to-counsel and guilty-plea contexts, the district court must satisfy itself that the defendant has waived his right knowingly and intelligently . . . and if the court is not so satisfied, it forces upon the defendant the constitutional default. In the case of the right to counsel, the default is an appointed attorney [sic - as to the facts of appointing counsel in this case], and in the case of a jury trial, the default is a plea of not guilty, followed by a jury trial.

In a question of whether to testify, there's no default. A criminal defendant has an absolute right not to testify and an absolute right to testify. It's totally his choice either way.

The court notes that this decision is normally informed by counsel. Here, the government went bare-knuckles to keep Mr. Ly from having a lawyer. So a lawyer he was kept from having. When a criminal defendant goes to trial without a lawyer, it is exceptionally hard to make sure his constitutional rights are not violated.

Pro se defendants are, frankly, a problem. It's sad and wrong to have someone go without a lawyer when their freedom is at stake. If the person freely chooses to go it alone, the court has to let him engage in that folly. But here, where a person was asking, repeatedly, for a lawyer, to force him to trial without one is wrong.

If the government's concern was that Mr. Ly was hiding money and trying to avoid paying for counsel, they had another option. The government, instead, could have sought appointed counsel and asked for a contribution order. That way, if Mr. Ly was convicted, at the time of sentencing the court would have conducted an inquiry into what money was available to pay the lawyer for his services from Mr. Ly's funds. And the court could have made then ordered Mr. Ly to pay as much as he was able for his own defense. Here's a link to one way to do the order from the U.S. Court's webpage.

The government did not ask for a contribution order. They asked for a trial without defense counsel. Looks like they may get another one.

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

July 19, 2011

A Divided Ninth Circuit Panel Reverses a Conviction Based on a Racially-Motivated Threat on Barack Obama

Walter Bagdasarian really did not want Barack Obama to be President. As the general election drew near, and Obama's election seemed more certain, Mr. Bagdasarian decided to take action. Instead of volunteering for McCain, or sending money to the Republican National Committee, he logged on to a Yahoo! Finance message board and posted two comments responding to the state of the election.

The comments including disparaging remarks about Mr. Obama and Mr. Obama's race, and noted that Mr. Obama "will have a 50 cal in the head soon." Mr. Bagdasarian also included a call to "shoot" Mr. Obama. He challenged Mr. Obama's fitness for office by virtue of status as an African American, claiming that no African American has ever done anything in history, except open a "sambos" restaurant. (Mr. Bagdasarian did not seem to realize that Sambos was actually owned by two white men, though that may not undermine his larger, and repugnant, point.). Perhaps it goes without saying that Mr. Bagdasarian did not use the term "African American."

Mr. Bagdasarian's comments did not alter the course of the election. They did, however, cause a participant on the message board to contact the Secret Service. Mr. Bagdasarian was interviewed by the Secret Service. His house was searched and a fifty caliber rifle was found. His computer was searched and an email was found that described a method for blowing up the President's car, as well as Mr. Bagdasarian's desire to see that car blown up. As the Ninth Circuit put it, "[t]hese email messages would appear to confirm the malevolent nature of the previous statements as well as Bagdasarian's own malignant nature."

Mr. Bagdasarian was charged with two counts of violating 18 U.S.C. section 879(a)(3), which criminalizes threatening to kill or harm "a major candidate for the office of President of the United States."

(And, yes, gentle reader, that's really the language - does section 879(a)(3) prohibit threatening Ron Paul? Or Ralph Nader? Part of me would love to challenge the constitutionality of the "major candidate" part of that statute. Still, Obama unarguably counted after at least the Iowa caucuses.)

Mr. Bagdasarian lost at trial on stipulated facts. Which is to say, he agreed with everything that happened, he just didn't think he had committed a crime. A federal district court judge thought he had. The Ninth Circuit, however, held that he hadn't in their published opinion in United States v. Bagdasarian.

Judge Reinhardt's majority opinion opens with a walk through the ways American presidential candidates have been maligned through our history. If you're looking for a reason to be depressed about American democracy, this is a decent place to start.

The Ninth Circuit clarified that for a criminal threat statute to apply to pure speech, that speech has to constitute a "true threat." The question, then, is whether two things are true: (1) whether Bagdasarian subjectively intended to cause bodily harm to the President; and (2) whether a person looking at Mr. Bagdasarian's actions and statements would think that he intended to cause bodily harm.

The court found that Mr. Bagdasarian's directive to shoot Mr. Obama is not an expression of an intent to cause harm to him; it "is instead an imperative intended to encourage others to take violent action, if not simply an expression of rage or frustration. The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the President."

Mr. Bagdasarian had, of course, a 50 caliber rifle in his possession when he made the statement that Mr. Obama should be shot with a .50 caliber rifle. The court discounted this, because no one in the chat room knew that he had that rifle.

The court concluded, therefore, that Mr. Bagdasarain's comments, loathsome though they are, were the kind of rough and tumble political speech that our constitution allows.

Judge Wardlaw dissented. She agreed with the statement of law, but found that this was a true threat, and that Mr. Bagdasarian actually threatened Barack Obama with bodily harm both subjectively and objectively.

The interesting thing, I think, is the way her dissent reads. She has a lengthy statement of facts and an independent statement of the law that, in many ways, repeats the discussion in the majority opinion.

Was this is a majority opinion that changed when she lost a vote? The third member of the panel was Chief Judge Kozinski, who, himself, has an interesting relationship with the First Amendment. So, maybe.

I, for one, am really looking forward to seeing how this gets resolved en banc.

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

July 18, 2011

The D.C. Circuit Remands for Resentencing Because [Redacted]

A federal district court judge has broad powers in a federal sentencing. Sadly, often the judiciary fails to fully grasp the extent of its power. When that happens, a federal appeals court remands for resentencing.

For example, suppose a district court judge says at sentencing to the defendant, "You seem like a very kind person, but I can't give you a lower sentence just because you're a kind person -- the law won't allow it." That case is going back on remand. Eighteen U.S.C. section 3553(a) directs a district court to consider the characteristics of the person being sentenced. One of those, obviously, is whether he's nice.

When you think about it, this is kind of an odd situation. The district court is saying that it is moved by something, but can't consider it. Perhaps there's a bit of "don't throw me in the briar patch" syndrome going on -- the judge is moved, and wants to go lower, but feels that if he or she shows mercy to someone convicted of a serious offense it won't be good. So rather than simply owning that decision, one can empathize with why a judge would want to say the law won't let him make that decision. It's easier if the law takes away his ability to be merciful.

In United States v. Delany, the D.C. Circuit reversed and remanded because the district court believed it did not have the power to consider something at sentencing. As the court noted, a district court has to consider any serious argument that a lower sentence is warranted based on age, lack of criminal history, efforts at rehabilitation, or attempts to cooperate with the government.

"Indeed, '[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.' 18 U.S.C. S 3661

After making this statement, the D.C. Circuit then goes on to, well, I don't know. Except for the conclusion that the sentence was reversed and a Fourth Amendment issue didn't go the defendant's way, the rest of the opinion is redacted.

So we don't know what it was that caused the district court to get reversed.

This, personally, is annoying. I practice in federal court in D.C. I need to know what the sentencing law is in the jurisdiction that I practice. I know that the U.S. Attorney's Office has a copy of this opinion -- my opposing counsel now knows the law as expressed in this case. But I don't. And I don't get to.

There are good reasons for redaction, especially when I'm asking for it. But this appears to be a case important enough to warrant publication -- it would be nice to know what it says. Redaction makes sense in many cases in the district court. But if the issue is important enough for it to be the basis of a D.C. Circuit opinion, it raises significant questions about how we are to know how the law is developing.

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

July 14, 2011

The Eighth Circuit Holds that the "Know Nothing" Defense Can Be Asserted Against a Securities Fraud Charge

The University of Nebraska is known for its tremendously powerful football program. It has less of a reputation for academic prowess. Which has been the inspiration for the following joke --

Question: What's the N on the side of the Nebraska football helmet stand for?

Answer: Knowledge.

Admittedly, the joke works a little better when delivered orally.

The Eighth Circuit today reversed a Nebraska district court for discounting the importance of knowledge in a securities fraud case in United States v. Behrens. A bit of background is in order:

There is an odd sentencing provision that applies in securities cases. Under 15 U.S.C. section 78ff(a), if a person is convicted of an offense that uses section 78ff to define the offense's penalty, and that offense relies on breaking a rule or regulation of the Securities and Exchange Commission, and the person can prove at sentencing that he had no knowledge of the rule, then, regardless of the fact that he was convicted of a crime, he cannot serve a sentence of imprisonment.

This is called the "Know Nothing" defense. Note, the Know Nothing defense is not really a defense -- rather it's a sentencing rule. It is a defense to having to serve time in prison, not to a conviction. (though, of course, avoiding prison is still tremendously valuable to someone faced with not avoiding prison)

Behrens was convicted, indeed, he plead guilty, to using the mail to fraudulently or deceptively contravene a rule of the SEC under 18 U.S.C. section 78j(b). He tried to assert the Know Nothing defense, but the district court said that it was not applicable to that securities fraud statute.

The Eighth Circuit looked at the statute and held that the deception has to subvert an SEC rule -- the violation of the rule is, therefore, an element of the offense. Finding that the district court in Nebraska erred in its interpretation of the statute, the appeals court reversed.

Fear not, pro-government readers, Mr. Behrens will still have to prove his lack of knowledge on remand.

One interesting question is why the prosecutor didn't simply require a plea to mail fraud to avoid this issue. Perhaps it had to do with giving law enforcement a securities fraud stat instead of a general fraud conviction Or maybe the U.S. Attorney's Office in Nebraska was frustrated by the lack of 8th Circuit law on this question, and wanted to present it to the appeals court. If so, kudos to that office for structuring the plea in such a way as to allow the law to develop.

Perhaps the "N" stands for Nothing, in "Know Nothing"? For a list of other suggestions, please see the comments section on this post at a Nebraska Football fan site.

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

July 13, 2011

The First Circuit Reverses For Multiple Evidentiary Errors

Felix Sanabria is either a humble fisherman trolling the waters off of Puerto Rico, or, if the government is to be believed, he's a serious drug importer. Whichever he is, his federal drug conviction was reversed on appeal this week by the First Circuit in United States v. Sanabria.

At trial, the government relied on the testimony of witnesses who fingered Mr. Sanabria. The case turned on three transactions where drugs were exchanged. No photographs were ever taken of the person the government said was Mr. Sanabria -- a person known as "El Chapo."

At his trial, Mr. Sanabria's lawyer tried to mount a defense. Mr. Sanabria is, apparently, dark-skinned. One of the witnesses who testified against Sanabria had told a law enforcement agent that El Chapo was light-skinned. At trial, that witness said that Mr. Sanabria was El Chapo. His lawyer thought that maybe the jury should hear about that prior description, and he tried to ask the government agent who worked the case what that witness had said. The trial judge wouldn't let him on the theory that whether Mr. Sanabria matched the description of El Chapo was a collateral issue -- it wasn't relevant enough.

Mr. Sanabria's lawyer also tried to show that a government witness against Mr. Sanabria was intimidated into giving a statement implicating him. The judge said that the witness's motivation to give a false statement wasn't admissible. And the witness's prior statement about being intimidated couldn't be used against her now, because that statement wasn't made under oath (FYI, for the non-lawyers, statements can come into evidence when they aren't under oath -- in fact, it's rare for a statement to be made under oath before it's offered at a trial.).

Before the trial, a person who had met with Mr. Sanabria after he was arrested asked him if he was guilty. Mr. Sanabria said he wasn't, that they got the wrong guy. The government asked that witness if the witness thought Mr. Sanabria was lying about that. The witness said he though Mr. Sanabria was lying. The trial judge thought that question was appropriate.

Mr. Sanabria was convicted and sentenced to fifty years in prison.

The First Circuit carefully went through each of these issues, showing how they are, basically, not consistent with the law. The Court found that these mistakes by the trial judge "unavoidably call into doubt the reliability of the verdict and the underlying fairness of the trial." They reversed the conviction.

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

July 12, 2011

The Tenth Circuit Gives Some Criminal History Relief in a Gun Case

It's ironic in a sense. Some of the most complicated questions of federal criminal law have to do with calculating the way a person's criminal history intersects with the sentencing guidelines in a federal weapons charge. Yet weapons crimes are, themselves, generally unsophisticated. When a very good lawyer on a weapons charge gets paired with a stereotypical gun charge client, it creates odd pairings of super-geeky lawyers and folks who are attracted to the elegant simplicity of a hair trigger.

Which brings us to a reversal for resentencing in an appeal from a federal gun charge. The Tenth Circuit today reversed and remanded for resentencing in a gun case, United States v. Armijo. The basic facts are vanilla -- Armijo was convicted of possessing a gun. He's got a prior felony conviction, so that violates 18 U.S.C. section 922(g). The guidelines for a felon in possession charge depend on the defendant's criminal history. If he has two prior convictions that are either drug distribution charges or crimes of violence, then his guidelines start at a level 24 (assuming we're not talking about a machine gun).

The question is, what counts as a crime of violence? The phrase "crime of violence" is the rabbit-hole into which thousands of hours of attorney time have disappeared (though for a good reason -- the wrong answer from an appellate court can lead to thousands of years of people's lives disappearing into a less pleasant kind of hole).

What counts as a crime of violence doesn't just matter for the felon in possession guidelines. If a person is convicted of being a felon in possession and he's got three crimes of violence in his past, then he's an Armed Career Criminal. An Armed Career Criminal's statutory maximum is life, instead of ten years for a garden-variety felon in possession, and he is facing a mandatory minimum sentence of fifteen years.

So there's a decent amount of law on what convictions count as a crime of violence.

The Tenth Circuit today clarified that manslaughter in Colorado is not a crime of violence. It's an interesting call. On the government's side, manslaughter is specifically listed in the guidelines as an example of a crime of violence (it's in note one of the commentary for section 4B1.2). That seems like kind of a bad starting point for Mr. Armijo.

However, the Tenth Circuit notices that as Colorado defines manslaughter, it requires only recklessness, not a higher intent to actually harm someone. So, the Tenth Circuit concludes, this can't be a crime of violence, if a crime of violence is something that has, as an element, "the use, attempted use, or threatened use of physical force". Such use of force has to be on purpose for it to count as a crime of violence.

In other words, you can't accidentally commit a crime of violence in the Tenth Circuit. (or, as it happens, in the Fourth, see United States v. Peterson, 629 F.3d 432 (4th Cir. 2011).)

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

July 12, 2011

The Ninth Circuit Hears an Appeal the Appellant Doesn't Want to Bring, Then Reverses for a Competency Hearing

United States v. Duncan is a hard case that presents a hard issue of federal criminal appellate procedure -- if the appellant doesn't want to appeal, can the court hear the appeal? As it happens, in a very narrow set of cases, yes.

I won't go into what happened to get Mr. Duncan indicted, except to say that if we're going to have a death penalty, this is probably the kind of conduct that we're going to want it to apply to (seriously, skip the statement of facts in the opinion -- you'll sleep better).

At trial, Mr. Duncan fired his lawyers and said he wanted to represent himself. He's got a right to do that, if he can do it knowing what he's doing. The district court asked two experts to work for the court to see if Mr. Duncan can represent himself. They were in conflict, and the district court decided that he was competent and let him represent himself.

In a death penalty case, the jury first decides guilt or innocence, then decides, in a separate phase of trial, whether the sentence should be death. In the penalty phase, sophisticated counsel investigates heavily and digs deep to present a compelling case of why this person's life shouldn't be ended.

Here, Mr. Duncan merely took the stand, made no statements, and after the government declined to ask him any questions, sat down.

When a person represents himself, the trial court will often appoint standby counsel. The court in Mr. Duncan's case did that. After the jury sentenced Mr. Duncan to die, his standby counsel filed a notice of appeal.

Mr. Duncan wrote the court saying that he didn't want to appeal. The district court struck the appeal.

The Ninth Circuit being what it is, decided that it would decide whether it had jurisdiction to hear the appeal.

The appeals court first had to decide if it could hear the appeal. Mr. Duncan clearly didn't want it heard (the government didn't either). The only people involved in the case who wanted the appeal to be heard were Mr. Duncan's already fired standby lawyers.

The Ninth Circuit held that

"in the unusual circumstance in which the petitioner and his appointed attorney are actively contesting the petitioner's competence as between themselves, the lawyer, as a participant for the petitioner in the proceedings, is entitled to appeal the court's decision of mental competence, which would otherwise remain unreviewed in a death penalty case. Indeed, we recognized that in some cases a lawyer bears an ethical obligation, acting in the best interest of his client, to contest his client's competency to dismiss his action."

Death is different, and, when it comes to competency in a death case, the Ninth Circuit wants to hear the appeal.

The Ninth Circuit then reviewed the competency evidence and found that the district court should have held a hearing in order to evaluate whether Mr. Duncan was competent.

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

July 11, 2011

The Ninth Circuit Vacates a Restitution Award in a Child Pornography Case

Joshua Kennedy was flying into Seattle from overseas. Customs searched his laptop and found child pornography on it. The appeal of his conviction was decided today by the Ninth Circuit today in United States v. Kennedy, presenting a really interesting take on the scope of federal restitution -- and the kind of harm that comes from the transportation of child pornography.

As an aside, let's stop there for a second. Did you know that the government can search you at the border (meaning, basically, anywhere Customs has a checkpoint)? Searches of computers at the border are way more common than I suspect most people suspect. Legal challenges are being mounted.

The searches of laptops at the border are invasive. And they don't require probable cause. Customs can search everything on your iPhone anytime you fly back from overseas. They don't need a reason. They can just take your phone and search it. Surely the amount of our personal lives that we keep on our computers and phones counsels in favor of rethinking this rule at some point. Is there a greater threat to national security, or whatever, if I email myself a file from Paris than if I put it on a thumb drive and carry it through Customs?

Anyway, back to the restitution issue.

Mr. Kennedy was convicted of transporting child pornography. The government asked the district court to impose a restitution order, because two of the women who were depicted in the images that were found on his computer. The government submitted evidence that having their earlier abuse viewed by strangers has been very damaging.

Psychologists presented evidence of the harm they'd suffered. One of the women said every time a victim notice came from a US Attorney's office she would have a panic attack (one would hope that she could simply take her name off of the notification list, but I know the federal victim notification laws are complicated).

One woman asked for $3 million. The other asked for $227,000.

The district court gave them $1,000 for each image they were in, basically throwing its hands up on how to figure out what the measure of damages for a situation like this should be.

The Ninth Circuit reversed. The Court noted that to succeed in a claim for restitution, the government has to show that the defendant's conduct was a cause of the harm that was suffered by the victim. So, here, the women seeking money would have to show that Kennedy's possession of their image caused them to be harmed.

The Ninth Circuit said, basically, no way. The women were harmed, to be sure, but Kennedy's possession of the images wasn't known to them -- if he hadn't possessed them, they would have been no better off. That he did possess them rendered them no worse off. So, because his possession didn't change the quantity or quality of harm suffered by the women, Kennedy didn't cause the harm.

It's a compelling theory of causation, I think, and it resolves what was developing into a thorny issue of public policy. Restitution in situations like this have been kind of a hot area in the press lately. This guy seems to have built a whole practice area on it. The New York Times has written about the controversy.

I can't wait to see how long it takes for the Supreme Court to reverse, or Congress to amend the statute.

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

July 11, 2011

The First Circuit Reverses (One Count Of) a Conviction

The First Circuit today reversed a conviction in a federal criminal appeal. Or, at least one count of one of the co-defendant's convictions. His other nine counts of conviction withstood appellate scrutiny. Still.

In United States v. Newell, two men were accused of fraud involving an Indian tribe of about seventy people in the northern part of Maine. The opinion is exactly the kind that appellate courts should be writing -- it is dense and considers the arguments advanced by the parties in detail. At seventy-eight pages, it is perhaps not the terse read that most consumers of judicial opinions want. That said, if one important function of a court is to make sure the parties recognize that their arguments were heard, this opinion meets that standard. For the members of the tribe involved, there are almost ten pages of opinion per tribe member!

The reversal, though, is exactly the kind of appellate reversal that should happen. One of the men accused of the crime, Parisi, signed a check authorization for a person who was not employed with the tribe. Three witnesses for the government testified that they didn't recall if Parisi knew that the person didn't work for the tribe during the time period covered by the check. Parisi himself didn't work for the tribe during that time period. As the First Circuit noted, "we see no reason to believe that he knew,with in a few months of his arrival, where every tribal member had worked in the previous fiscal year."

This reminds me, just a bit, of the recent Onion piece, "Investigation Finds Man Wrongfully Imprisoned for 3 of 76 Murders".

Still, a reversal of a conviction by a federal appellate court is rare enough it's to be noted, even if it's just the one count.

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

July 9, 2011

The Ninth Circuit Says the District Court Can't Negotiate An Appeal Waiver

You've got to feel for federal district court judges.  No one wants someone else looking over their shoulder.  Even though winning a federal criminal appeal is hard to do, district court judges still do get reversed more often than they'd like. 

Yet, when it comes to pleading guilty, only the government can ask the defendant to give up his right to plead guilty -- the judge doesn't have a role in plea negotiations. 

One district court judge in the Ninth Circuit had a novel solution -- he'd just negotiate, "man to man", his own appeal waiver with a defendant.  Which gives rise to a remarkable Ninth Circuit opinion in United States v. Gonzalez-Melchor.

The Court told the defendant he'd sentence him below the guidelines, to something like 60 or 65 months (off the low end in the 80's), if the defendant would agree in open court not to appeal the sentence and "waste" everyone's time with an appeal. (in fairness, the court did retract the characterization of the appeal as wasteful (which is either ironic or appropriate since the Ninth Circuit reversed and remanded)).

Despite his "man to man" pledge not to appeal, the defendant appealed anyway.  The Ninth Circuit, considering this court-negotiated appeal waiver, had little trouble finding the waiver invalid.

Sadly, the Ninth Circuit remanded for resentencing, thereby unraveling the whole deal, rather than letting the appeal go forward without the waiver.  I'm looking forward to reading the opinion in a few years where the sentencing court gives the guy low end, and he appeals saying he should have gotten what he got the first time, and is only getting a higher sentence because he wouldn't agree to an illegal appeal waiver.

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

July 8, 2011

The Fourth Circuit Invites Open Pleas

In a federal criminal appeal this week, the Fourth Circuit bucked a line of cases in other circuits and held that the government can't try to give a longer sentence to criminal defendants just because they won't give up their right to appeal. 

A bit of background is helpful.

In the federal system, if a person enters a plea of guilty and accepts responsibility for their conduct, their federal sentencing guidelines level is reduced by two-levels automatically.  If the government makes a motion for additional acceptance, the guidelines level will drop an additional, third level.  The government is supposed to make that motion based on whether the person said he was going to plead early in the process, thereby saving the government time in preparing for trial (because, of course, using the government's resources efficiently is a factor in 18 U.S.C. section 3553(a)).

The guidelines provisions are set out in section 3E1.1.

In United States v. Divens, though, the government said that they knew the defendant, Divens, was going to plead early.  It's just that he wouldn't execute a plea agreement that gave up his right to appeal.  The government said they wouldn't move for the additional level if it meant they had the possibility of having to do an appeal.  At sentencing, without a government motion, the Court didn't give Divens credit for the third level.

Divens appealed, saying that the government can only refuse to move for the third level if they have to prepare for trial.  Here, the government didn't have to prepare, because Divens said he'd plead early.

Stunningly, the Fourth Circuit agreed.  Even though a number of other circuits have held that the government doesn't have to make the motion, the Fourth now requires the government to move for an additional level when trial prep has been avoided, regardless of whether the defendant will bend to additional government demands.

Why does this matter?  Because in plea negotiations, the government often demands plenty of concessions that don't have anything to do with avoiding trial preparation.  The government requires defendants to waive their ability to FOIA their investigative files (even though they likely couldn't get them anyway based on other FOIA exceptions), to waive their appeal rights, to give up forfeiture rights, to agree to restitution, and others.  The threat the government uses is that they won't move for the third level if the defendant won't give up these rights.

So, after Divens, the threat of the third level should be substantially different in the Fourth Circuit.

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

June 10, 2011

OIG Investigations and Federal Employees

Federal employees are in a vulnerable position for an investigation by an Office of Inspector General (or OIG).  Basically, an OIG investigation can run in two different directions.  Each has it's own dangers that a federal employee who hears from an OIG Agent needs to be aware of.

If an OIG Agent is investigating a criminal violation of law, then the federal employee has the risk of being prosecuted.  If the OIG Agent thinks he or she can prove that the federal employee committed a crime, and the OIG Agent can convince an Assistant United States Attorney to bring a case, then the federal government is bringing its resources to bear to convict the federal employee of a crime.  Often, this means that the government wants a felony conviction, and it can quickly mean that prison time is a real risk.

If, however, the Assistant United States Attorney decides that a criminal prosecution is not warranted, either because there isn't enough evidence of a crime, or because what happened isn't serious enough to warrant a prosecution, or because what the OIG Agent is investigating isn't a violation of a criminal law, then the federal employee is still not in a good position, because he or she can lose his or her job.  If criminal charges aren't an option, the OIG Agent can require that a federal employee give an interview.  If the employee doesn't give the interview, then that can be a basis for a disciplinary action.

Federal employees face unique risks.  They're conduct has its own law enforcement offices that are set up to investigate - aside from government contractors, OIG Agents spend a lot of time looking at federal employees. 

For a federal employee who is under scrutiny by an OIG Agent, it is important to know what is happening, and what needs to be done to protect your job, and, possibly, your freedom.

June 7, 2011

Matt Teaches a Course on Campus Sexual Assault Defense

I have represented, successfully, students at Universities in the greater D.C. area who have been charged in internal campus disciplinary proceedings with sexual assault.  In the cases I've handled, no prosecutor would take these cases - the evidence is simply not strong enough to support a conviction.  Moreover, the complaining witnesses have an interest in not having anyone outside of the campus environment look into what happened.

The cases I've handled arise out of romantic relationships that are ending badly, or out of nights out drinking.  There is no question that the couple had sex, the only issue is whether the sex was consensual.

What's challenging about these cases is that schools are not obligated to provide the same rights to their students that people who are accused of a crime in a normal court have.  Normally, the school writes a code of student conduct that defines how these procedures will work.  Sometimes the school doesn't follow its own procedures.  This can seriously undermine a student's ability to defend himself.

Recently, I gave a talk for lawyers on how to represent students accused of sexual assault on campus.

Here's an ad for the lecture:

In the full talk, I explain how there are a number of federal laws that apply to these kinds of situations, and how lawyers who have students who have been accused of these kinds of campus charges can defend their clients. 

This kind of situation can be a minefield, and schools are under tremendous pressure to take action when a sexual assault is reported.  It can be very difficult for a lawyer to effectively help a client, since the rules are not familiar, and the players have a different set of background notions of what should happen.

And, in these cases, the stakes are incredibly high.  A person falsely convicted of sexual assault on campus can have a notation on their transcript that can follow them for life.  It can completely alter a student's educational future, which, in turn, can change the course of a student's life.

March 31, 2011

American Exceptionalism and the United States Prison Population

There has been a lot of debate in the media in the past year, or so, about American Exceptionalism.  Put simply, American Exceptionalism is the idea that the United States of America is fundamentally different than other nations.  The idea was popular during the midterm elections as a way for Republicans to try to show that they love America more than the President.  It's perhaps more interesting to argue about that than the details of health insurance regulation.

I recently took my son to Philadelphia, to the National Constitution Center.  The museum starts with a seventeen minute live action play about our Constitution.  It's hard not to buy into the idea and ideal of American Exceptionalism in Philadelphia.  If there's a reason to think we're different, and better, surely it has it's roots in what happened in that city. (That said, a bit of distance to reflect on the idea of [insert nation here] exceptionalism may simply reveal that it isn't meaningfully different than patriotism).

I do think America is qualitatively different than other countries.  I agree with a form of American Exceptionalism in three ways.  First, I think this country, unique among others, celebrates and encourages people to carve their own path in life.  Americans innovate and rally and strive.  In a deeply unquantitative and unscientific way, I think Americans do that more than other people.  That's to be applauded.

Regrettably, America is exceptional in a second, more numerically verifiable way.  We have more people in prison than any other nation on the planet.  That's not in relative numbers, but in absolute ones.  We have 2.3 million people in prison, compared with China's 1.6 million.  Considering that China is four times the size of the United States, and is not, ahem, freedom loving, that's stunning.

I have close relationships with a number of prosecutors, and, at times, I'll ask them about their work.  The question I come back to is this - If the United States locks up more people than any other country on the planet, what does that same about America?  Are our citizens uniquely inclined toward criminal activity?  Are we, as a people, more deserving of prison time? 

I don't think that's the answer.  I think we can accept that it can be the answer (we're not Australia, after all).  Rather, I think the answer, as David Simon has argued, is that the war on drugs has been a war on poor people.  Though I don't think a prosecutor is allowed to agree (unless he or she thinks it's ok for a country to declare war on poor people, which is a separate problem).

Rather, I think a third kind of American Exceptionalism explains how prosecutors react to our unconscionably high number of prisoners.  Years ago, I went to a talk by then Chief-Justice Rehnquist.  He was explaining that he was in Finland, meeting with the Attorney General of that country.  He asked her if the Supreme Court of Finland has the power to declare an act of parliament against the law in Finland.  The Attorney General consulted with her advisors and said that they could, but never had. 

To Rehnquist, this answer illuminated a key difference between Americans and the rest of the world - it is unthinkable for an American to have power and not test it's limits.  We are, according to our late Chief Justice, a power-hungry people. 

I have talked to a number of prosecutors, and I can see the lure of the position.  One can walk into a lot of opportunities from a U.S. Attorney's Office.  But I don't know one yet who I've heard offer a thoughtful response to how dramatically out of whack our prison population is with the rest of the world.  I can see, though, how Rehnquist could offer an explanation why people who increase our prison population don't stop to think much about its size.

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