December 10, 2013

Short Wins - The Bizarre Supervised Release Condition Edition

There are some good wins in the federal circuits from last week, but I think that perhaps the most interesting is U.S. v. Malenya.

The case deals, primarily, with supervised release conditions. I've seen some odd supervised release conditions, but this one takes the cake:

You shall notify the U.S. Probation Office when you establish a significant romantic relationship, and shall then inform the other party of your prior criminal history concerning your sex offenses. You understand that you must notify the U.S. Probation Office of that significant other's address, age, and where the individual may be contacted.

Check out the full opinion to see how this, and other really broad conditions, are handled.

To the victories!

1155650_berlin_siegessule.jpg1. U.S. v. Taylor, Second Circuit: Taylor and his co-defendants were convicted of various charges related to a robbery of a pharmacy. Taylor fell asleep repeatedly during post-arrest questioning and was only intermittently alert. Finding that Taylor's post-arrest statements were not voluntary, and admission of those statements was harmful error, the Second Circuit vacated the convictions of all three men and remanded for a new trial.

Defense Attorneys: Kelley J. Sharkey, Jillian S. Harrington, and Colleen P. Cassidy

2. U.S. v. Robertson, Fourth Circuit: Appellant pled guilty to carrying a firearm as a convicted felon, a charge which arose after he was approached by police and allowed them to search him. Finding that Appellant never actually consented, but merely obeyed the police officer's orders, the Fourth Circuit found that the search was presumptively unreasonable in the absence of probable cause. The conviction was reversed.

Defense Attorney: Ronald Cohen

3. U.S. v. Malenya, D.C. Circuit: Appellant entered a plea agreement and received a 36-month term of incarceration, with all suspended but a year and a day. The court also imposed 36 months of supervised release subject to several specific conditions. Because the trial court did not weigh the burden of the supervision conditions with their likely effectiveness, there was an unconstitutional deprivation of liberty. The supervised release conditions are vacated and the case remanded to impose alternative conditions.

Defense Attorneys: Jonathan S. Jeffress, A.J. Kramer, Rosanna M. Taormina, and Tony Axam Jr.

4. U.S. v. Martinez-Cruz, D.C. Circuit: Appellant pled guilty to a single count of conspiracy to distribute methamphetamine. At the time he pled guilty, Appellant waived his right to counsel. Because Appellant provided proof that he was illiterate at the time he signed the plea agreement, the D.C. Circuit found that the burden should have shifted to the government to show, by a preponderance of the evidence, that the wavier was in fact valid. Since the trial court did not shift the burden, the judgment was vacated and the case remanded.

Defense Attorney: Richard K. Gilbert

December 5, 2013

In a Child Porn Case, the Fourth Circuit Clarifies Who's Opinion About Custody Matters, and Worries about the Government Having a 'Heavy Foot'

In many ways, Faisal Hashime's case is a typical child pornography case. A government agent was on the internet looking at child pornography. He saw an email address. He emailed that address and the person who answered agreed to send some child pornography to him.

red-symbols-3-1092769-m.jpgAgents traced the IP address for the email that was sent, and it led to the Hashime residence. There, 19 year old Faisal Hashime lived with his family while he went to community college in Northern Virginia. The agents got a search warrant, as they almost always do in child pornography cases.

Armed with a battering ram, a search warrant, and a phalanx of officers, they stormed into the Hashime residence one morning.

They ordered Faisal and the rest of his family outside. Like many college students, Faisal had been up until 5 a.m. He was wearing his boxer shorts and was forced to stand with the rest of his family in the front yard where the neighbors could see him. It was a chilly morning in this Washington, D.C. suburb, but the family was forced to stand outside in the cold.

Eventually, the family was taken back inside. They weren't allowed to move around their home. They were then taken into their living room. Faisal asked to go to the bathroom but was refused. His mother, who was recovering from brain surgery, asked to lie down, but was not allowed to.

Finally, Faisal was taken to an unfinished part of the basement and interrogated for three hours. He was told he could leave and that he didn't have to make a statement, but he was also told by the officers that they needed to get the truth from him, and that they couldn't leave him there alone.

His mother told the agents that they shouldn't talk to him without a lawyer, but they ignored her and wouldn't let her near Faisal.

At one point, he asked if the interrogation was being recorded. The lead agent told him he wasn't recording the conversation. One of his colleagues, though, was.

He wasn't given Miranda warnings until the end. But before those warnings, he gave a lengthy confession.

He was indicted for possession of child pornography, receipt, distribution, and production.

He filed a motion to suppress his statement, saying that it was custodial and he wasn't given Miranda warnings.

The district court in the Eastern District of Virginia listened to the tape. She said that Faisal sounded calm, so he couldn't have thought he was in custody. The motion was denied.

The Fourth Circuit, in a surprisingly strong opinion by Judge Wilkinson in United States v. Hashime, overturned the district court.

The Fourth Circuit pointed out that here, the agent's action looked like this was custodial. Yet Faisal's demeanor looked like he didn't think this was custody (as far as one could tell from the tape).

But, while the district court relied on Faisail's demeanor, the Fourth Circuit pointed out that it should have, instead, focused on the agents' conduct.

Whether a person is in custody depends on whether a reasonable person in that situation would think she isn't free to leave. It's a classic objective test.

So, the Fourth Circuit pointed out - things from the point of view of the person being interrogated kind of don't really matter. The question isn't what that guy thought, but what someone in his position should have thought.

So the case was remanded for a new trial.

But that's not the only thing interesting about this case.

Faisal decided to plead guilty to the charge of possession and receipt. The receipt of child pornography charge alone carried a mandatory minimum term of five years.

The government, wanting to push forward for even more time, went to trial on the production and distribution charge. The production charge is perhaps the most disturbing - Faisal "produced" child pornography by convincing boys on the internet to send him naked pictures of themselves.

He was convicted, and a fifteen year mandatory minimum applied.

Looking at this, the Fourth Circuit said,

Our reversal of the conviction makes it unnecessary to address any sentencing questions. It suffices to note that, in line with our own review of the custody issue and the district court's comments at sentencing, this was a case in which both police and prosecution applied a heavy foot to the accelerator. We do not doubt for an instant that the defendant's conduct here was reprehensible and worthy of both investigation and punishment, as the guilty plea attests. But attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair.

This is not your father's Fourth Circuit

December 4, 2013

Short Wins - The Fair Trial, New Yorker, and Voting Link Edition

Before we get to the last week's wins in the federal circuits, three things:

First, I think the most interesting opinion from the federal circuits in the last week is United States v. Murray from the Second Circuit. Trials in criminal cases may be statistically anomalous, but you still have to let the defendant put on his case.

Second, I can't strongly recommend enough the article in the December 9 issue of the New Yorker on false confessions (sadly, subscription is required). If you're a law geek, there's a lot in the New Yorker this week for you - including a piece by Jeffery Toobin on why the Constitution is really dusty (login required). More on that piece from Above the Law is here.

If you don't have access to the false confession piece, here's the bottom line (and, yes, folks in the trenches already knew much of this):

  • Confessions are really important to jurors.
  • Police can get confessions really easily based on the way American law enforcement do things using a "Reid-style interrogation".
  • Psychologists have shown pretty persuasively (to my eye) that Reid-style interrogations get false confessions.
  • Reid-style interrogations have been at the root of false confessions in a bunch of false conviction DNA cases.
  • British cops have figured out a way to do interrogations that doesn't get false confessions, but still let the police do their investigations.
  • American law enforcement resist change from Reid-style interrogations because they hate science.

Ok, that last point may be the result of an aggressive read on my part. But, like the New Yorker's recent pieces on forfeiture, child pornography civil commitments, and errors in deportation (subscription required for this one), there's some really good reporting on criminal justice issues going on there.

Third, it was pointed out to me that I never provided a link to where you can vote for your favorite law-related blog of 2013. That link is here. Apologies and Happy voting!

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Murray, Second Circuit: Appellant was tried and convicted of four counts of cultivating marijuana following a jury trial. The district court, during the trial, did not allow Appellant to present surrebuttal evidence regarding cell phone towers. The sentence was vacated and the case remanded because this denied Appellant a fair opportunity to defend his case.

Defense Attorney: Lee Ginsberg

2. United States v. Montes-Flores, Fourth Circuit.pdf: After Appellant was sentenced to 46 months imprisonment for illegal reentry into the United States, he appealed his sentence. The Fourth Circuit vacated the sentence and remanded for resentencing finding that the district court improperly applied the modified categorical approach to assault and battery of a highly aggravated nature. This misapplication resulted in a higher sentencing enhancement and therefore sentencing guidelines calling for a higher sentence.

Defense Attorney: Kimberly Harvey Albro and Ann Briks Walsh

November 26, 2013

Short Wins - Blog 100 Announcement Edition

Gentle readers, the ABA has, for the third year in a row, said that this is one of the best legal blogs in the land. Thank you very much for writing in to the ABA to promote this blog and, I assume, bribe them.

2013_Blawg100Honoree_150x150.jpgHere's a list of all the ABA Blog 100 blogs. You can also vote for this blog in the criminal justice category.

This week, not counting the Migdal win we saw last week, there is but one win.

Happy Thanksgiving everyone!

To the victory!

1155650_berlin_siegessule.jpg1. United States v. Arreguin, Ninth Circuit: Appellant's motion to suppress evidence was denied by the District Court. The Ninth Circuit reversed and remanded, directing the trial court to grant the motion to suppress. The Ninth Circuit found that the agents could not have an objective reasonable belief that a houseguest had apparent authority to consent to a search, the government's protective sweep argument was waived, and the plain view doctrine does not apply.

Defense Attorney: Nicholas F. Reyes

November 18, 2013

Short Wins - the Greg Poe Vindicates An AFPD's Reputation Edition

Last week's wins are below - and there are some great reads.

But today, let's congratulate Greg Poe for his work challenging sanctions imposed on a fine career AFPD in the Sixth Circuit.

Here's a link to the opinion.

Nice work, Greg!

To the victories!

1155650_berlin_siegessule.jpg1. U.S. v. Christie, Second Circuit: The district court denied Appellant's motion for a reduction of sentence based on the sentencing guidelines range, even though Appellant was eligible for such a reduction. On appeal, Appellant's case was vacated and remanded to the district court because the court failed to provide an explanation of its decision that was sufficient to permit meaningful appellate review.

Defense Attorney: John W. Brewer

2. U.S. v. Chavez, Tenth Circuit: After being deemed not competent to stand trial, the government won a motion to have Appellant involuntarily medicated. Because the government did not present evidence of an individualized treatment plan for the Appellant, the Tenth Circuit found clear error, vacated the court order, and remanded for further proceedings.

Defense Attorneys: John T. Carlson and Warren R. Williamson

3. U.S. v. Oyegoke-Eniola, Tenth Circuit: Appellant pled guilty to mail fraud and making a false statement on an immigration document. Finding that the district court improperly imposed enhancements under the sentencing guidelines, the sentence was vacated and the case remanded.

Defense Attorneys: Stephen K. Christiansen and Kelley M. Marsden

November 11, 2013

Short Wins - Three Wins

Happy Monday!

We have three short but good cases from the circuits from last week. I think my favorite is U.S. v. Glover, a nice suppression case. Congrats to Adam Kurland for the win.

To the victories!

1155650_berlin_siegessule.jpg1. Huff v. U.S., Sixth Circuit: Appellant entered a plea agreement, pleading guilty to various fraud and identity theft charges. The parties also agreed to use the November 1, 2002 Sentencing Guideline Manual but the court used a later version, resulting in a higher sentencing range. When Appellant first appealed, his attorney talked him into dismissing and the district court rejected Appellant's ineffective assistance of counsel claim without an evidentiary hearing. The Sixth Circuit reverses and remands because a hearing was necessary to properly evaluate the ineffective assistance of counsel claim.

Defense Attorney: Michael M. Losavio

2. U.S. v. Bruguier, Eighth Circuit: After a jury trial, Appellant was convicted of sexual abuse, burglary, aggravated sexual abuse, and sexual abuse of a minor and sentenced to 360 months imprisonment. Appellant argued that the jury instructions for sexual abuse omitted a mens rea element. Agreeing with Appellant, the Eighth Circuit remanded for a new trial on the sexual abuse count and vacated Appellant's sentence.

3. U.S. v. Glover, DC Circuit: Glover was convicted of conspiring to possess and distribute cocaine. A warrant was issued in D.C. but allowed the police to place an electronic bug on Glover's truck which was parked in Maryland. The D.C. Circuit found that this warrant was facially insufficient and the evidence obtained pursuant to it should have been suppressed. Because the district court did not suppress the evidence, the conviction is reversed.

Defense Attorneys: Adam H. Kurland and Robert S. Becker

November 6, 2013

Short Wins - Overcriminalization and Prison Costs Head to Congress

Congress these days seems to have noticed that we have too many federal criminal laws - which is a good thing (the Congressional notice, less the excessive criminal laws).

Last week, the House Judiciary Committee heard testimony on overcriminalization of regulatory crimes. The Hill has a nice write-up in "Regulation horror stories for Halloween."

Here's the intro:

Joyce Kinder was fined $5,000 and sentenced to three years probation for unknowingly catching protected paddlefish in the Ohio River.

Lawrence Lewis was arrested for violating the Clean Water Act after he disposed of sewage from a Washington, D.C., retirement home. He thought it would drain to a water treatment plant, but it instead went into Rock Creek.

Lewis and Kinder are both victims of overenforcement of regulations, according to lawmakers from both parties who say agencies should not threaten to jail people for violating regulations they don't even know exist.

Next week, the Senate is having a meeting on "Oversight of the Bureau of Prisons and Cost-Effective Strategies for Reducing Recidivism." It seems that folks have noticed that the Fair Sentencing Act and Holder's recent announcement about charging policies aren't actually going to help the folks who are already in prison get out sooner.

Here's hoping something comes out of these.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Bethea, Second Circuit: Appellant pled guilty to one count of cocaine distribution in 2010 and was sentenced to 80 months' imprisonment. Although this sentence was outside of the 60-71-month guidelines range and new guidelines would require only a 60-month sentence, Bethea's motion for sentencing modification was denied. Bethea's sentence was vacated and the case remanded to the district court to determine the impact of the new guidelines on his sentence.

2. United States v. Hemingway, Fourth Circuit: Appellant pled guilty to being a felon in possession of a firearm and ammunition and was sentenced to 15 years based on a mandatory minimum statute. The judgment was vacated and the case was remanded for sentencing because the mandatory minimum statute is only controlling when certain prior crimes were committed and Hemingway's prior crimes did not fall within that statute.

3. United States v. McManus, Fourth Circuit: Appellant pled guilty to one count of possession of child pornography and was sentenced to 72 months' imprisonment. Finding that the district court improperly interpreted statutory language and therefore applied the wrong sentencing enhancement, and that this error was not harmless, McManus' sentence was vacated and the case remanded for resentencing.

4. United States v. Hashime, Fourth Circuit: Appellant was convicted of multiple counts related to child pornography. His conviction and sentence were reversed because Hashime was in custody, the agents did not read Hashime his Miranda rights, and the statements made by Hashime during that interrogation were not properly suppressed at trial. The case was remanded for further proceedings so the court did not address whether mandatory minimums were appropriate in this case.

5. United States v. Miller, Sixth Circuit: A jury found Appellant guilty of two counts of making false statements to a bank and two counts of aggravated identity theft. The court reversed both aggravated identity theft convictions because Miller did not "use" the identities as required by statute. The court also reversed one of the false statements convictions because the document did not contain false statements as the term is statutorily defined.

6. United States v. Lyons, Seventh Circuit: Lyons appealed his conviction of possession of a firearm as a felon and the imposed 210 month sentence. Although the conviction was affirmed, the case was remanded for resentencing because the district court committed two procedural errors. First, it failed to state the reasons supporting the sentence and, second, the court incorrectly believed it was required to impose a five-year period of supervised release.

7. United States v. Kyle, Ninth Circuit: Appellant pled guilty to aggravated sexual abuse of a child and was sentenced to 450 months' imprisonment. The guilty plea and sentence were vacated because the district court participated in plea negotiations by prematurely committing itself to a sentence of a specific severity. Because this prejudiced Kyle, the case was remanded with instructions for reassignment to a different judge.

October 31, 2013

Short Wins - the "I'm not dead edition"

Gentle readers,

I have been remiss in my postings of late. Apologies. Here is, in one place, a mass of cases from the last few weeks.


To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Dominic Pelligrino, Second Circuit.pdf
Appellant Pellegrino was charged with having violated New York's narcotics laws and pleaded guilty in state court. Although the circuit court found his arguments on appeal without merit, they act nostra sponte to hold that it was an error not to apply the civil forfeiture standards established by the Civil Asset Forfeiture Reform Act of 2000. This led to the district courts verdict being vacated and remanded.

2. United States v. Arqueta-Ramos, Ninth Circuit.pdf
The case of Delicia Arqueta-Ramos illegally entering the United States was vacated and remanded on the grounds that she took a plea en masse. The circuit court held that district court did not err by advising the defendants of their rights en masse, however it did err but not questioning the defendant individually to ensure she understood her rights.

3. United States v. Haggerty, Tenth Circuit.pdf
After pleading guilty to one count of possession with intent to distribute and one count of possession of a firearm by a previously convicted felon, Haggerty appealed his seventy-two-month sentence. His case was reversed and remanded due to the district court's failure to consider United States Sentencing Guidelines for a one-level reduction for acceptance of responsibility.

4. United States v. Royal, Fourth Circuit.pdf
Royal was convicted by a jury of unlawfully possessing ammunition was sentenced the 188 months imprisonment after it was determined that he is an armed career criminal under the ACCA. Upon his appeal his sentence was affirmed in part, vacated in part, and remanded for resentencing due to the Supreme Court's recent holding in Descamps v. United States regarding imposition of the ACCA sentencing enhancement.

5. United States v. Liu, Ninth Circuit.pdf
Liu's convictions and sentencing for criminal copyright infringement and trafficking in counterfeit labels were vacated and remanded for two reasons: (1) the jury was improperly instructed to the criminal statutes of acting "willfully" and "knowingly" at the time of the offense; (2) Liu's counsel was ineffective by failing to raise an obvious statute-of-limitation defense.

6. United States v. Lang, Eleventh Circuit.pdf
After being charged with 70 counts of Lang's case was vacated and remanded with directions to dismiss the indictment on the grounds that the indictment was "so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted."

7. United States v. Chandler, Fifth Circuit.pdf
The 420 month sentence Chandler received for engaging in a child exploitation enterprise was vacated and remanded for re-sentencing because 127 months of sentencing imposed on Chandler was partially based on the fact that he was a police officer at the time of the offense. After reviewing the case, the fifth circuit court determined that his status of police officer did not justify the increased sentence.

8. United States v. Gomez, Ninth Circuit.pdf
Appellant Gomez's case was affirmed in part and vacated in part, and remanded. The court affirmed his indictment charging him with illegal reentry. His sentence for sexual conduct with a minor was vacated and remanded due to the court's incorrect imposition of a sixteen-level sentencing enhancement by the district court.

9. United States v. Nelson, Fifth Circuit.pdf
Nelson's conviction for soliciting and receiving bribes as a government official was affirmed, but his sentence was vacated and remanded. This occurred because the district court failed to provide enough evidence to support their decision to apply the Sentencing Guideline that permits the court to increase the offense level corresponding to the bribery amount. The district court valued the bribery amount to be $6,382,000 but only had sufficient evidence to support a claim of $250,000.

10. United States v. Rufai, Tenth Circuit.pdf
All of Mr. Rufai's convictions of aiding and abetting health care fraud charge were reversed due to the absence of sufficient evidence. The district court failed to provide sufficient evidence that demonstrates that Mr. Rufai knowingly and willfully participated in fraud.

11. United States v. Rodriguez, Eleventh Circuit.pdf
Rodriquez's conviction was affirmed, but his sentence was reversed and remanded. The circuit court ruled that the district court had enough evidence to support that Mr. Rodriguez had committed wire, however they did not have enough evidence to support the claim that there were more than 50 victims. This led the circuit court to remand the conviction to the district court for resentencing with a 2-level enhancement rather than a 4-level enhancement.

12. United States v. Moore, Fifth Circuit.pdf
Defendant Moore pleaded guilty to one count for her role in a conspiracy to steal mail from six collection boxes. She appeals her sentence on the grounds that her recommended enhancement was miscalculated. The court ruled that Moore was correct and that she should have only received a 4-level enhancement not the 6-level enhancement she was given. Her sentence was vacated and remanded for resentencing.

13. United States v. Smith, Tenth Circuit.pdf
After pleading guilty to two counts of wire fraud, Mr. Smith was assigned a total offense level of 16, a criminal history category of VI, and sentenced to a term of 180 months' imprisonment on each count of wire fraud. The court ordered these sentences run concurrently and consecutively to a Kansas state sentence Mr. Smith is serving for burglaries and thefts underlying the fraud offenses. This sentence was reversed and remanded on the grounds of a sentencing disparity argument the court found to be a reversible error.

14. United States v. North, Fifth Circuit.pdf
North appeals the district court's denial of his motion to suppress evidence from interception of his cellular phone. The court reversed the denial of his motion on the grounds that the FBI agents recording his call failed to perform minimization efforts and remanded the case for further proceedings.

September 16, 2013

Short Wins - A Twofer week

Due to my own sloth, we're presenting two weeks of short wins in one post. Here it is!

There are some good cases here, featuring the Armed Career Criminal Act, the Fourth Amendment, and law enforcement agents testifying as experts.

In other news, the Sentencing Commission has put out two "quick fact" sheets. One is on "Theft Property Destruction and Fraud" and the other is on Mandatory Minimum Penalties.pdf. My favorite fun fact - the median loss in federal fraud cases is $95,408.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Bonilla-Guizar, Ninth Circuit.pdf: Appellants were convicted of conspiracy to commit hostage taking, hostage taking, and harboring an alien. At sentencing, the court applied two improper enhancements: (1) to Bonilla, the enhancement for a leadership role was improper because the court's findings on this enhancement were ambiguous; (2) for both appellants, the enhancement for use of a firearm was improper, because the evidence was that appellants merely brandished a firearm. For these reasons, appellants' sentences were remanded for a hearing on the leadership role enhancement and to vacate the use of a firearm enhancement.

Attorneys: for Appellants, Francisco Leon and Rosemary Márquez

2. United States v. Lopez-Cruz, Ninth Circuit: Appellant was charged with conspiracy to transport illegal aliens after police answered appellant's cell phone posing as appellant, when appellant had only given police consent to search the phone. The appellate court affirmed the order suppressing evidence obtained from the call because appellant had standing to claim that his Fourth Amendment rights were violated when police answered the call and the consent to search the phone did not extend to answering incoming calls. Further, the district court did not abuse its discretion in denying the government's motion for reconsideration, which raised an exigent circumstances argument for the first time.

Attorney: Devin Burstein for the appellant

3. United States v. Richard North, Fifth Circuit: The district court erred in denying appellant's motion to suppress evidence obtained from the interception of his cellphone, which led to his arrest for possession of cocaine, for three reasons: (1) it lacked jurisdiction to permit interception of cell phone calls from Texas at a listening post in Louisiana under the criminal investigations wiretap statute; (2) the court's non-compliance with the wiretap statute implicates a core concern of the statute; and (3) the government failed to comply with minimization protocols when it monitored one of the phone calls at issue. The denial of the motion to suppress was reversed and the case remanded for further proceedings.

4. United States v. Bahr, Ninth Circuit: Appellant pled guilty to possessing child pornography and was sentenced to two 240-month concurrent sentences. In a prior period of post-release supervision, appellant made statements that were incorporated into his presentence report for the current case. This violated appellant's Fifth Amendment privilege against self-incrimination and, as a result, his sentence was vacated and the case remanded for resentencing.

Attorney for Appellant: Thomas J. Hester

5. United States v. Descamps, Ninth Circuit:The Supreme Court reversed the Ninth Circuit's decision in United States v. Descamps, 466 F. App'x 563 (9th Cir. 2012). The Supreme Court held that (1) courts may not apply the modified categorical approach to sentencing under the Armed Career Criminal Act ("ACCA") when the offense of conviction has a single, indivisible set of elements, and (2) appellant's prior burglary conviction under California law was not for a violent felony within the meaning of ACCA. The Ninth Circuit, in turn, reversed its prior decision and remanded the case for further proceedings.

6. United States v. Freeman, Sixth District.pdf Appellant was convicted by a jury of conspiracy to use interstate commerce facilities in the commission of murder for hire and was sentenced to life without parole. After bringing an appeal, the court ruled that his conviction be vacated and remanded for a new trial on the grounds that the lay testimony given by an FBI agent did not show any clear expert methodology on the formation of his opinions. In other words, the agent's testimony failed to live up to the requirement of Rule 702 that states "the product of reliable principles and methods...reliably applied... to the facts of the case".

7. United States v. Hockenberry & Gray, Sixth District.pdf One of two Appellants' sentences was in part affirmed and reversed. Appellant Hockenberry's district court sentence was vacated and remanded for sentencing on the grounds of the district court erring on their denial of the appellants' motion to suppress and their classifications as armed career criminals. Appellant Gray's sentence was affirmed.

September 10, 2013

Short Wins - Sleepy Time In The Circuits

It's a sleepy week in the Circuits last week - a resentencing and a restitution remand.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Daniels, et al., Fifth Circuit: Appellants were convicted of conspiring to distribute and to possess with intent to distribute five kilograms or more of cocaine. The finding as to drug quantity was vacated because there was insufficient evidence to support it. Appellants' sentences were vacated and the case remanded for resentencing for the court to recalculate appellants' Guidelines range calculations, which were driven by the conspiracy's vacated five kilogram finding.

2. United States v. Edwards, et al., Eleventh Circuit: Appellants were convicted of wire fraud, mail fraud, and money laundering, and ordered to pay over $6 million in restitution. Because the government had no evidence to demonstrate that five of the alleged victims were entitled to restitution, the court clearly erred in awarding restitution with respect to these victims. The restitution order was vacated and the case remanded for a hearing on whether the five individuals at issue are entitled to restitution.

September 3, 2013

Definitely Not Short Wins

On this, the Monday after Labor Day, I suspect many of us have the feeling that work piles up when you leave the office. And, with last week off from Short Wins, that's definitely what happened here.

Without further ado, to the victories!

1155650_berlin_siegessule.jpg1. Miller v. United States, Fourth Circuit: Appellant was convicted of possession of a firearm by a convicted felon. For appellant's two prior convictions (upon which the instant offense was based), he was sentenced to 6 to 8 months for each offense. He filed a 28 U.S.C. § 2255 motion to vacate his sentence, arguing that his prior convictions were not qualifying predicate convictions. The court agreed, vacated appellant's conviction, and remanded for the petition to be granted.

Attorney: Ann Loraine Hester for Appellant.

2. United States v. Avila, Tenth Circuit: Appellant was charged with possession with intent to distribute a controlled substance. After his motion to suppress was denied, he entered an unconditional guilty plea to the charge. Because the district court informed appellant that he would retain a right to appeal following the entry of his plea without ensuring he understood that the plea might limit that right, the plea was not knowing and voluntary. Appellant's conviction was vacated and the case remanded with instructions for the court to allow appellant to withdraw his guilty plea.

Attorney: Kari S. Schmidt for Appellant.

3. United States v. Booker, Sixth Circuit: Appellant was convicted of possession of a five-ounce rock of crack cocaine, which he had hidden in his rectum. The police took appellant to an emergency room doctor who, using a procedure appellant did not consent to, removed the rock. The court attributed the doctor's actions to the state for Fourth Amendment purposes. Because the unconsented procedure shocks the conscience and violates due process, the crack rock should have been excluded. Appellant's conviction was reversed.

Attorney: Robert L. Jolley, Jr. for Appellant

4. United States v. Cabrera-Umanzor, Fourth Circuit: Appellant pled guilty to unlawful reentry. At sentencing, the court used the "modified categorical approach" to find that appellant's prior state conviction was a "crime of violence," which increased appellant's base offense level by 16. This was error, as the categorical approach should have been used, which would have resulted in a finding that the prior conviction was not a crime of violence. The case was remanded for resentencing.

Attorneys: Joanna Beth Silver, James Wyda for Appellant

5. United States v. Evans, Ninth Circuit: In two cases, appellant was charged with being an alien in the U.S. after deportation and misrepresenting his identity and citizenship to fraudulently obtain social security benefits, food stamps, make a claim of citizenship, and apply for a passport. His primary defense was that he was a citizen. His primary evidence to support the defense was a delayed Idaho state birth certificate. The certificate was excluded before trial because the court ruled it was "substantively fraudulent." This violated appellant's Fifth Amendment due process right to present a defense. The error was not harmless. Appellant's convictions were vacated and the case remanded for new trials.

Attorney: Stephen R. Hormel

6. United States v. Flores, et al., Ninth Circuit: Appellants pled guilty to conspiring to possess an unregistered firearm arising out of their purchase of a grenade launcher and ammunition for the launcher. At sentencing, the court enhanced appellants' sentences 15 levels after finding that the offense involved a missile under Guideline § 2K2.1(b)(3)(A). This was error because the ammunition did not qualify as missiles. The sentences were vacated and the case remanded for resentencing.

Attorneys: Richardo M. Gonzalez for Appellant Alfredo Lara; Barbara M. Donovan for Appellant Arturo Lara; Frederick Carroll for Appellant Flores.

7. United States v. John Doe, Sixth Circuit: Appellant pled guilty to two counts of distributing over 50 grams of crack cocaine and was sentenced to 130 months after a downward departure was applied. The Fair Sentencing Act was passed four years later, substantially reducing the mandatory minimum and advisory range applicable to appellant's offense. Because appellant's original sentence was based on an advisory range which was subsequently lowered, and because the reduction is consistent with the Sentencing Commission's policy statement in § 1B1.10, he was eligible for a sentence reduction. The sentence was vacated and the case remanded.

Attorney: Melissa M. Salinas

8. United States v. McKye, Tenth Circuit: Appellant was convicted of conspiring to commit money laundering and securities fraud. At trial, the court refused to give an instruction appellant tendered that would have permitted the jury to decide whether the investment notes at issue constituted securities. Instead, the court instructed the jury that the term "security" includes a "note." Because whether a note is a security is a mixed question of law and fact, the court erred in giving that instruction. The government failed to show the error was harmless. Appellant's conviction was reversed.

Attorneys: Howard A. Pincus, Raymond P. Moore, for Appellant

9. United States v. Sedaghaty, Ninth Circuit: Appellant was convicted of conspiring to defraud the United States and filing a false return on behalf of a tax exempt organization. Several errors were made below that, cumulatively prejudiced appellant: the government violated its obligations under Brady v. Maryland by withholding significant impeachment evidence; the court erred in approving an inadequate substitution for classified material in violation of the Classified Information Procedures Act; and the government's search of appellant's hard drives went far beyond the scope of the warrant. The case was remanded for a new trial.

Attorneys: Steven T. Wax, Lawrence Matasar

10. United States v. Swor, Ninth Circuit: Appellant pled guilty to investment fraud and was ordered to pay restitution under the Mandatory Victims Restitution Act. The court abused its discretion by including in the restitution order losses suffered by victims of an investment scheme that began two months after, and was separate from, the scheme in which appellant was involved. These losses were too attenuated to impose liability on appellant. Appellant's sentence was vacated with regard to the amount of restitution order and remanded to reduce the restitution amount.

11. United States v. Thompson, et al., Ninth Circuit: Appellants were convicted of bank larceny and their sentences were enhanced because they were convicted of using a thermal lance to open the back of an ATM to steal the money inside. Their sentences were enhanced under 18 U.S.C. § 844(h)(1), which imposes a mandatory 10-year consecutive sentence (in addition to the underlying felony) on anyone who "uses fire . . . to commit any felony." Because the enhancement does not apply to the use of a thermal lance, the case was remanded for resentencing.

Attorneys for Appellants: Mark Yanis; Gretchen Fusilier; Sean K. Kennedy; Samuel A. Josephs.

12. United States v. Tragas, Sixth Circuit: Appellant was convicted of offenses arising out of her involvement in an international credit and debit card fraud conspiracy. She was sentenced to 300 months in prison. Because the district court used an incorrect version of the Guidelines when sentencing appellant, appellant's sentence was vacated and the case remanded for resentencing.

Attorneys: Erik W. Scharf, Wayne R. Atkins

August 26, 2013

Eric Holder Editorial in the Baltimore Sun

Due to various case and vacation related reasons, there will be no short wins today.

But, fear not - if you really want to read stuff written by me about federal criminal law, you can read my editorial in Sunday's Baltimore Sun here about Eric Holder's proposals to reduce the prison population.

Here's the punchline:

No one at the Department of Justice wins an award or gets a promotion for deciding to walk away from a case, or advocating for a lower fair sentence instead of a higher one they can brag about in the office. And Mr. Holder's "reforms" do nothing to change that. If federal prosecutors aren't throwing people in prison from state court, they'll find other people to put in prison.

We either need to drastically reform the culture of law enforcement -- and reward decisions to walk away as much as decisions to go forward -- or we need to drastically reduce the number of people who make a living from other people going to prison.

August 19, 2013

Short Wins - 9th and 11th Circuit edition

There are some great cases from the Ninth and Eleventh Circuits this week - especially United States v. Ermoian on obstruction of justice. Good times.

And, of course, the big news of last week was Eric Holder's recognition that there are a lot of people in federal prison. I'm skeptical that a policy that lets folks with one or two criminal history points avoid a mandatory minimum is going to do much to reduce our prison population, as I told some folks last week, but if the Attorney General is going to pay lip service to an idea, I suppose I'm glad it's an idea that I agree with.

To the victories!

1155650_berlin_siegessule.jpg1. Spencer v. United States, Eleventh Circuit: Appellant was convicted of distributing crack and sentenced to 151 months based in part on his designation as a career offender. Appellant argued at sentencing and on appeal that one of his predicate felony convictions upon which the career offender status was based no longer qualified as a predicate crime of violence. The court ruled that appellant could use a timely filed motion under 28 U.S.C. § 2255 to pursue that argument when an intervening case from the Supreme Court validated the argument and applies retroactively. Because appellant correctly argued that one of his predicate convictions no longer qualified as a predicate crime of violence, the district court's denial of the § 2255 motion was vacated and the case remanded for resentencing.

2. United States v. Acosta-Chavez, Ninth Circuit: Appellant pled guilty in 2005 to Illinois aggravated criminal sexual abuse and was removed from the country. After he reentered illegally, he was indicated on that basis, pled guilty, and was sentenced to 30 months in prison. His sentence was based in part on the court's designation of the 2005 crime as a "crime of violence." This was error. Because the error was not harmless, the sentence was vacated and the case remanded for resentencing.

Attorney: David W. Basham, for Appellant.

3. United States v. Edwards, Ninth Circuit: Appellant pled guilty to being a felon in possession of a firearm and was sentenced to 46 months in prison. At sentencing the district court found that appellant's prior conviction for attempted burglary under Nevada law was a "crime of violence" using the modified categorical approach. In this case, applying that approach was error. Appellant's sentence was vacated and the case remanded for resentencing without the "crime of violence" enhancement.

Attorney: Chad A. Bowers, for Appellant.

4. United States v. Ermoian, et al., Ninth Circuit.pdf: Appellants were convicted of obstructing justice arising out of their alleged conduct during an FBI investigation. Because an FBI investigation is not an "official proceeding" under the federal obstruction of justice statute, the jury instruction identifying it as such was erroneous. The government conceded that, if an FBI investigation wasn't an official proceeding, the obstruction of justice charges could not have been sustained on evidence presented at trial. For these reasons, appellants' convictions were reversed and retrial was barred.

Attorneys: for Mr. Ermoian, John Balazs; for Mr. Johnson, Jerald Brainin.

5. United States v. Madden, Eleventh Circuit: Appellant was indicted for, among other things, knowingly using and carrying a firearm in relation to a crime of violence and knowingly possession a firearm in furtherance of a drug trafficking crime. At trial, the court's instructions to the jury constructively amended this charge by using different and confusing language. He was convicted on this charge. Because the amendment was plain error, appellant's conviction was reversed and the case remanded.

August 16, 2013

It Doesn't Violate (One) Federal Law To Tip Your State Legislator In Puerto Rico

When you go to a restaurant, you have to pay for the meal - there's a quid pro quo. But you don't have to leave a tip (we're leaving aside situations where you have a large party and they automatically add 18%). A tip you leave because you want to note and appreciate the service you received. Maybe a tip is expected, but a waiter can't sue you for not leaving one.

So too with bribes, gratutities, and law makers. If a member of Congress makes a deal with you where you'll give him $10,000 in exchange for voting for your favorite bill, that's a bribe. But if he votes for your favorite bill and then you send him $10,000 because you're excited about his vote, that's a gratuity.

As the Supreme Court has said,

for bribery there must be a quid pro quo -- a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.

A high-profile case in Puerto Rico highlights the difference - and establishes that, in the First Circuit at least - a gratuity is not a violation of 18 U.S.C. § 666.

Section 666 is the federal statute that prohibits corrupt acts with state and local government actors. It says that any one who is an agent of a state or local government and "corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with" that person's work as an agent of the government, has violated section 666(a)(1).

Similarly, anyone who "corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward" any one who is an agent of a state or local government violates section 666(a)(2).

The First Circuit held that this language doesn't prohibit mere gratuities.

What Happens In Vegas

Juan Bravo Fernandez - or Mr. Bravo - was the President of Ranger American, a private security firm.

Hector Martinez Maldondad - Mr. Martinez - was a member of the Senate of the Commonwealth of Puerto Rico.

Mr. Martinez was the chair of the Public Safety Committee. In 2005, it was considering some legislation that would have been very favorable to Mr. Fernandez - Senate Projects 410 and 471.

As the First Circuit tells it in United States v. Martinez:


On May 14, 2005, prominent Puerto Rican boxer Felix "Tito" Trinidad was scheduled to fight Ronald Lamont "Winky" Wright at the MGM Grand Hotel & Casino in Las Vegas, Nevada. On March 2, Bravo purchased four tickets to the fight at a cost of $1,000 per ticket. The same day, Martinez submitted Senate Project 410 for consideration by the Puerto Rico Senate. On April 20, Martinez presided over a Public Safety Committee hearing on Senate Project 471 at which Bravo testified. The next day, Bravo booked one room at the Mandalay Bay Hotel in Las Vegas. On May 11, Martinez issued a Committee report in support of Senate Project 471.

I suppose it goes without saying that the trips were really nice.

Both men were charged with a number of things - including charges involving the giving or receiving of a bribe in violation of 18 U.S.C. § 666.

The Jury Instructions

Here's part of how the jury was instructed:

I instruct you that a defendant is not required to have given, offered, or agreed to give a thing of value before the business, transaction, or series of transactions. Rather, the Government may prove that defendant Bravo gave, offered, or agreed to give the thing of value before, after, or at the same time as the business, transaction, or series of transactions. Therefore, the government does not need to prove that defendant Bravo gave, offered, or agreed to offer the trip to Las Vegas before defendant Martínez performed any official action or series of acts.

Of course, if you give someone cash after they perform a service, instead of before, that's a tip, rather than a bribe.

Another part of the instruction makes it a little clearer:

the Government does not need to prove that defendant Martinez solicited, demanded, accepted or agreed to accept the trip to Las Vegas before defendant Martinez performed any official act or series of acts.

Again, this looks a whole lot like the government can get a conviction if there's just some relationship between the money and the official act, rather than that the money caused the official act - which you'd need for bribery.

The government's closing argument didn't walk back from this. The government said:

These instructions clarify that -- that it doesn't matter if the trip was offered before official acts were taken, at the same time official acts were taken, or after official acts were taken, because the crime is offering or accepting the trip with intent to influence or reward.

These instructions, on these facts, allowed the First Circuit to conclude that the jury was instructed that Mr. Martinez or Mr. Bravo could be convicted if they merely received a gratuity, rather than a bribe.

Does section 666 criminalize gratuities?

The First Circuit said yes.

The statute criminalizes anyone who gives something to a state legislator (and others) with an intent to "influence or reward" that person. A number of circuits have held that the "or reward" bit of this includes gratuities. United States v. Anderson, 517 F.3d 953 (7th Cir. 2008); United States v. Ganim, 510 F.3d 134, 150 (2d Cir. 2007); United States v. Zimmerman, 509 F.3d 920, 927 (8th Cir. 2007).

The other way to read this is that the "or reward" applies to situations where the agreement was made before the official action, but the payment came later. If that's the case - and the deal was hatched, and "reward" just means paying off the previously agreed on sum in exchange for the official act - then this applies to bribes. It doesn't additionally criminalize bribery.

So, if you go into a restaurant and tell the waiter "I'll give you a $20 tip if you never let my iced tea glass get empty" then, because there's a qui pro quo, you've converted the tip from a gratuity to a bribe (except that it's completely legal to refill an iced tea glass frequently).

The First Circuit thought this was a plausible reading - and also noted that if you don't read it this way, it gets odd.

There are different punishments for bribes and gratuities if you're bribing a federal official. If it's a bribe of a federal official, the statutory maximum is 15 years. If it's just a gratuity, then the max is two years.

But for section 666 applying to state officials, any violation has a statutory maximum of 10 years.

The First Circuit thought it would be pretty odd to have such a high statutory maximum if Congress intended section 666 to apply to gratuities, that are normally capped at 2 years for federal officials.

For these reasons, and others, the convictions were vacated.

August 12, 2013

Short Wins - Attorney General Holder Wants Fewer People In Prison And We Add Attorney Names

It's been a busy week in the circuits. But first, two news items.

Eric Holder Walks Back The War On Drugs

Today, as has been widely reported, Eric Holder will announce that "widespread incarceration at the federal, state and local levels is both ineffective and unsustainable." Here's coverage at the Wall Street Journal.

This is good news, though, of course, it could have been better news. We have the highest incarceration rate in the world. We're spending way too much money to destroy families and communities for no good law enforcement reason. I can't help but wonder how many pointless years of prison time were imposed while Holder lead the Department of Justice before he made these changes.

It looks like Holder's proposals are (1) aimed at trimming a little bit of the horribleness of the war on drugs and (2) making it easier for folks to get released from prison early in some limited circumstances.

The devil, as always, will be in the details. We'll see. And, of course, this does nothing for the other areas of the law -- like fraud and child pornography possession -- where the sentences are also unconscionably high.

Attorney Names

In other news, we're adding a new part of Short Wins today. In the past, we've just published a short description of the case, and longer write-ups have come out during the week.

Today, in response to emails from some readers, we'll start to add the name of the lawyer who argued the case.

This has two goals. First, it will congratulate our fellow members of the bar who should be congratulated. Second, my friends in federal public defender offices have asked what percentage of wins are from the FPD community. I don't keep track, but this will make that a little easier to see.

Sadly, some circuits don't list the attorney who argued a case in the opinion. For the lawyers who won cases in those circuits, I'm sorry to say we won't be digging through Pacer to find your names.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Fries, Eleventh Circuit: Appellant was convicted of transferring a firearm to an out-of-state residence when neither he nor the buyer was a licensed firearms dealer. Because the evidence at trial did not prove that appellant sold a weapon to a person who wasn't a licensed firearms dealer - an essential element of the offense - appellant's conviction was reversed with instructions for the trial court to enter a judgment of acquittal.

2. United States v. Hughes, Fifth Circuit: Appellant was charged with one count of conspiring to distribute crack and four counts of using a phone to facilitate the commission of a drug crime. At his plea hearing, the government informed the court that, in exchange for appellant's guilty plea to the drug conspiracy count, the government would move to dismiss the remaining charges at sentencing. Appellant pled guilty to all five counts. Although the government reminded the district court of the agreement to drop four of the five counts, the court sentenced appellant on all five counts. The court abused its discretion in sentencing appellant on all five counts because it provided no reasoning justifying its refusal to dismiss the four counts, and because the government did not argue that dismissing the counts would have been "clearly contrary to manifest public interest."

3. United States v. Lee, Ninth Circuit: Appellant pled guilty to conspiring to distribute methamphetamine and a forfeiture count. For three years after her guilty plea, appellant substantially assisted the government's investigation and prosecution of a drug network in which she had been involved. She was then sentenced to 96 months in prison. Her sentence was vacated and remanded for resentencing because of three errors: the district court (1) failed to use the Guidelines as a starting point; (2) incorrectly calculated the Guidelines range; and (3) failed to determine a revised minimum sentence under 18 U.S.C. § 3553(e), as it was required to in considering appellant's substantial assistance.

Mark Eibert, Half Moon Bay, California, for Defendant-Appellant.

4. United States v. Nelson, Sixth Circuit: Appellant was convicted of being a felon in possession of a firearm and ammunition. At trial, the court admitted testimony from police regarding an anonymous 911 caller's description of appellant, which was hearsay evidence admitted to prove that appellant possessed a gun. The evidence shouldn't have been admitted because it went directly to the key issue for jury resolution, wasn't necessary for the government to provide the jury with a coherent narrative, and was too prejudicial for the harm to be cured without a limiting instruction. The error wasn't harmless because it was more probable than not that it had a material impact on the verdict. For these reasons, the judgment was vacated and the case remanded for a new trial.

Erik R. Herbert, Nashville, Tennessee, for Appellant.

5. United States v. Thomas, Ninth Circuit: Marijuana was found in a toolbox in appellant's car as a result of a search conducted by a drug dog and the dog's handler. Appellant was subsequently indicted for possessing marijuana with intent to distribute and, more than a year later, with conspiring to possess with intent to distribute marijuana. Appellant filed a motion to suppress the marijuana, which was denied. This was error, which was not harmless, as the government failed to disclose adequate evidence of the drug dog's and his handler's proficiency and experience to justify the search that led to the drugs.

Brian I. Rademacher, Assistant Federal Public Defender, District of Arizona, Tucson, Arizona, argued the cause and filed the briefs for the appellant.