April 1, 2014

Short Wins - The Forfeiture Order Gets Reversed Version

There were a handful of good wins in the federal circuits last week. Notably, United States v. Annabi, pushed back on a government forfeiture because the language in the indictment was inadequate. Forfeiture is a huge issue in criminal cases in federal court these days - it's good to see the home team winning in this area.

Also of note is In re Joannie Plaza-Martinez dealing with a sanction of an AFPD. It's sad to see a criminal defense lawyer sanctioned, especially an AFPD. So it's nice to see that sanction reversed.

To the victories!

1155650_berlin_siegessule.jpg1. In re Joannie Plaza-Martinez, First Circuit: Appellant is an Assistant Federal Public Defender who was sanctioned by the trial judge for asking to postpone a sentencing in one case because she was starting a trial in another case. Finding an abuse of discretion, the First Circuit vacated the sanction.

Defense Attorneys: Hector E. Guzman, Jr., Hector L. Ramos-Vega, and Patricia A. Garrity

2. United States v. Annabi: Appellant was convicted of three counts of mortgage fraud and the trial court ordered forfeiture for all three counts. The indictment for one of those counts did not use the properly statutory language to allow for forfeiture, so that forfeiture was vacated and remanded.

Defense Attorneys: Edward v. Sapone and Paula Schwartz Frome

3. United States v. Vargem, Ninth Circuit: Appellant's sentence was miscalculated under the sentencing guidelines. The court erred in applying a six-level enhancement based on weapons found in Appellant's home and also miscalculated the base offense level.

Defense Attorneys: Steven G. Kalar, Candis Mitchell, and Steven J. Koeninger

4. Davis v. Walker, Ninth Circuit: The district court denied Appellant's request to appoint a guardian ad litem and instead stayed Appellant's civil rights case until Appellant was restored to competency. The Ninth Circuit held that the indefinite stay was a final appealable decision. The stay was vacated because it failed to adequately protect Appellant's rights.

Defense Attorney: Kayvan B. Sadeghi

March 28, 2014

Short Wins - The Smurfing Edition

The big news in this edition of Short Wins is United States v. Abair - a simply crazy Seventh Circuit.

I already wrote about it for a general legal audience on Above the Law (Inspector Javert Goes Smurfing in Indiana) - for our purposes, the legal issue is whether she was appropriately crossed on statements in her tax returns or student loan applications.

I had a case years ago where the AUSA and I litigated whether he could use similar statements in cross if my client testified. We lost. Happily, we weren't able to appeal the decision, but it's freakin' insane the way this stuff comes in sometimes. Abair is a nice step in moving the law in the right way.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Diaz-Rodriguez, First Circuit: Appellant was convicted at trial of aiding and abetting interference with commerce by threats of violence and one count of using a firearm during the commission of a crime of violence. Those convictions were vacated because Appellant was denied his Sixth Amendment Right to Counsel when it forbade him from retaining new counsel during trial without inquiring into his conflict with his present counsel.

Defense Attorney: Rafael F. Castro Lang

2. United States v. Abair, Seventh Circuit: During Appellant's trial for structuring financial transactions in order to evade federal reporting requirements, the prosecutor cross-examined Appellant about alleged false statements on a tax return and student financial aid applications. Because the government lacked a good faith basis for believing Appellant had lied on those documents, the Seventh Circuit reversed the conviction and remanded for a new trial. The Seventh Circuit determined that the information elicited during that cross-examination was prejudicial and harmful error.

3. United States v. Cabrera-Gutierrez, Ninth Circuit: The Court withdrew its June 3, 2013 Opinion and filed this Amended Opinion. The Court held that the district court erred in sentencing Appellant as a Tier III sex offender based on a prior conviction under an Oregon statute. The district court improperly applied the categorical approach to determine how that prior conviction would impact Appellant's sentencing enhancement, so Appellant's sentence was vacated.

Defense Attorney: Rebecca L. Pennell

4. United States v. Cortes, Ninth Circuit: Appellant was tried for drug conspiracy charges after he was arrested during an undercover reverse sting operation. The conviction was reversed because the district court gave the jury an improper jury instruction on an entrapment defense. In giving the jury instruction, the district court erred in excluding that drugs or any profit from the sale of drugs could be a basis for inducement.

Defense Attorney: Gary P. Burcham

5. United States v. Montes-Ruiz, Ninth Circuit: The district court erred in sentencing Appellant by ordering a sentence which was to run consecutively to an anticipated, but not-yet-imposed, federal sentence in a separate case. Since it is impermissible to impose a sentence which will run consecutively to a hypothetical sentence, Appellant's sentence was vacated and the case remanded for resentencing.

Defense Counsel: Devin Burstein

6. United States v. Peyton, D.C. Circuit: The trial court admitted evidence gathered from Appellant's apartment as a part of two separate warrantless searches. Because the first warrantless search was not lawfully permitted, the convictions were vacated and remanded.

March 18, 2014

Short Wins - The Money Laundering Leadership Edition

It's a good week for sentencing remands in the federal circuits. To my mind, the most interesting case is United States v. Salgado, where the Eleventh Circuit reversed a district court for considering the person who was being sentenced's role in the underlying offense that money was laundered in connection with, when the person was sentenced for money laundering. When you're figuring out the guidelines, the Eleventh Circuit said you can't do that.

Mr. Salgado was a leader in the drug operation in the case, but he wasn't a leader in the money laundering. It turns out there's an application note that says leadership on one offense doesn't translate into leadership for the other.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Aviles-Santiago, First Circuit: At his sentencing, the district court increased Appellant's sentence based on information the court knew only from sentencing Appellant's wife in an earlier case. Because Appellant was not given notice of that issue, and because the information was not supported by the record, Appellant's sentence was vacated.

Defense Attorney: Raymond L. Sanchez Maceira

2. United States v. Ortiz-Vega, Third Circuit: The Third Circuit decided, as an issue of first impression, that sentence modifications for crack cocaine offenses under 18 U.S.C. §3582(c)(2) are retroactive. Appellant's request for modification, which was denied at the district court, is granted, and the case remanded.

Defense Attorneys: Sarah S. Gannett and Christy Unger

3. United States v. Salgado, Eleventh Circuit: In calculating the guidelines range for a money laundering offense, the district court considered both the money laundering offense and Appellant's role in the drug conspiracy which generated the money laundering. Because the sentencing guidelines do not allow consideration of the underlying offense, the sentence was vacated and the case remanded.

March 12, 2014

Short Wins - The Aggravated Identity Theft, 18 U.S.C. § 1028A, and Stacking Edition

Aggravated identity theft - charged under 1028A - seems like it's getting more and more popular among federal prosecutors. It does come with massive leverage in plea negotiations; a conviction for a violation of 18 U.S.C. § 1028A carries a mandatory 2 years in prison, consecutive to any other count of conviction. I'm starting to see these in cases beyond the garden variety identity fraud gift card cases - like tax and health care fraud.

The statute says that for subsequent 1028A convictions, a district court has discretion whether to stack them. And United States v. Chibuko addresses exactly that issue and the importance of reading a statute.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Chibuko, Second Circuit: Appellant was convicted of various fraud crimes, including three counts of aggravated identity theft under 18 U.S.C. § 1028A. Although sentences under § 1028A usually carry a two-year sentence, each to run consecutive to each other, Appellant's charges are part of the same scheme involving the same victim. Because the district court did not appreciate its ability to have those sentences run concurrently, the case is remanded for resentencing.

2. United States v. Taylor, Second Circuit: Appellants' convictions for robbery of a pharmacy were vacated. Statements from Taylor were used during trial against all appellants, but those statements were found to be involuntary because Taylor had ingested a large number of pills as he was arrested. Admitting those statements against each of the Appellants was not harmless error, so their convictions were vacated and the cases remanded for new trials.

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

3. United States v. Strayhorn, Fourth Circuit: Appellants were convicted on a number of robbery charges. On appeal, the Fourth Circuit held that a partial fingerprint found on duct tape was insufficient evidence to convict Janson Strayhorn of robbery. The court also held that Jimmy Strayhorn's sentence must be vacated because the district court failed to instruct the jurors, for the brandishing charge, that they needed to find Jimmy Strayhorn had brandished a gun.

Defense Attorneys: James B. Craven III and Tony E. Rollman,

4. United States v. Debenedetto, Seventh Circuit: After being arrested, Appellant was found mentally incompetent and was committed for further evaluation, including an order for involuntary treatment with psychotropic medications. The Seventh Circuit vacated the commitment order because the hearing and written findings of the district court failed to comply with Sell v. United States by not considering less intrusive measures.

5. United States v. Poulin, Seventh Circuit: Appellant pled guilty and received 115 months' imprisonment for possession of child pornography. The sentence was vacated and remanded because the court made not harmless procedural errors, imposing both a sentence and special conditions without providing adequate reasons.

6. United States v. Woodard, Seventh Circuit: Appellant was charged with health care fraud and sentenced to 80 months' imprisonment after pleading guilty. This sentence violated the ex post facto clause because she was sentenced under the wrong version of the sentencing guidelines.

7. United States v. Burrage, Eighth Circuit: On remand from the Supreme Court, the Eighth Circuit reversed Appellant's conviction of distribution of heroin resulting in death. The jury instruction was improper because it did not require the jury to find that the heroin was the proximate cause of the death.

8. Clabourne v. Ryan, Ninth Circuit: The district court denied Appellant's habeas corpus petition which claimed ineffective assistance of counsel at resentencing. The Ninth Circuit issued a certificate of appealability and vacated the denial of relief because there was potential merit to the claim that counsel was ineffective for failing to object to the sentencing court's consideration of a 1982 confession.

Defense Attorney: S. Jonathan Young

9. United States v. Tanke, Ninth Circuit: The Ninth Circuit held that it was plain error to include restitution amounts that were not part of the offenses of conviction and therefore vacated and remanded for resentencing.

March 4, 2014

Short Wins - The "A U.S. Attorney in California Does the Right Thing Edition"

There are two interesting opinions I'd like to highlight from this crop.

First, there's United States v. Prado from the Seventh Circuit. Every now and again, in sentencing, a district court will say it can't consider something. It seems to me that whatever that something is, these days, a district court can probably consider it. Prado is another example of that proposition.

More sensationally, check out the Ninth Circuit's opinion in United States v. Maloney! Laura Duffy, the AUSA for the Southern District of California, watched the en banc argument in this case, decided the government's position was wrong and asked the Ninth Circuit to vacate the conviction. Nice.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Fish, First Circuit: Appellant was convicted of being in possession of body armor after having been convicted of a crime of violence. The conviction was reversed because none of Appellant's previous convictions qualifies as a crime of violence.

Defense Attorney: Thomas J. O'Connor, Jr.

2. Kovacs v. United States, Second Circuit.pdf: The Eastern District of New York denied Appellants' petition for writ of error coram nobis. The Second Circuit reversed and granted the writ after it found that Appellant's lawyer rendered ineffective assistance of counsel. Appellant's lawyer gave erroneous advice regarding deportation after pleading guilty.

Defense Attorney: Nicholas A. Gravanta, Jr.

3. United States v. Maynard, Second Circuit: Appellants were convicted after a series of bank robberies and ordered to pay restitution. Because the amount of restitution included bank expenses beyond the amount taken, the Second Circuit vacated and remanded for a new determination of restitution.

4. United States v. Salazar, Fifth Circuit: After violating the terms of his supervised release, Appellant was sentenced to prison and an additional period of supervised release, including special conditions. The Fifth Circuit found that the district court abused its discretion by ordering imposing the special condition without demonstrating that the condition was reasonably related to statutory factors.

5. United States v. Urias-Marrufo, Fifth Circuit: The district court denied Appellant's motion to withdraw her guilty plea. On appeal, the Fifth Circuit vacated and remanded because the district court did not properly consider the merits of Appellant's ineffective assistance of counsel claim.

6. United States v. Adams, Seventh Circuit: Two of the appellants received sentencing enhancements for maintaining a "stash house" after being convicted of drug offenses. Because the sentencing guideline provision which allowed that enhancement was not in place at the time of the offense, their sentences were reversed and remanded.

7. United States v. Maloney, Ninth Circuit: The United States Attorney moved to vacate the sentence and remand the case after reviewing a video of the en banc oral argument. The court agreed that the prosecutor had made references during rebuttal that were inappropriate and granted the motion to vacate.

8. United States v. Harrison, Tenth Circuit: After being convicted by a jury for a drug conspiracy charge, Appellant was sentenced to 360 months in prison. The sentence was vacated and remanded because the court improperly adopted the calculation in the presentence report showing that Appellant was responsible for more than 1.5 kilograms of methamphetamine.

Defense Attorneys: O. Dean Sanderford and Raymond P. Moore

9. United States v. Jones, Eleventh Circuit: Appellant was sentenced to 180 months for being a felon in possession of a firearm. After the Supreme Court ruling in Descamps, it is clear that Appellant's prior convictions cannot serve as an Armed Career Criminal Act predicate offense. Because a sentencing enhancement was incorrectly applied, the sentence is vacated and remanded.

10. United States v. Baldwin, Second Circuit: Appellant was sentenced to 87 months' imprisonment after pleading guilty to possession of child pornography, and possession of a firearm by a convicted felon. During sentencing a two-level enhancement for distribution of child pornography was imposed. The sentence was vacated because there was no finding of knowledge as required to impose that two-level enhancement.

11. United States v. Lagrone, Fifth Circuit: Appellant was charged with two felony theft counts and sentenced to two concurrent terms of 45 months' imprisonment. Because each of the two theft offenses involved Government property with a value less than $1,000, she could not be convicted of more than a single felony count. The case was therefore vacated and remanded.

12. United States v. Prado, Seventh Circuit: After pleading guilty to one count of extortion, Appellant asked the district court, during sentencing, to consider a similar case and the sentence imposed during that case. The court did not allow that information to be introduced. Appellant's sentence was reversed and remanded because the court erred in not understanding that it had discretion to hear Appellant's argument and that error was not harmless.

13. United States v. Shannon, Seventh Circuit: One of Appellant's special conditions of supervised release was that he could not possess any sexually explicit material. This condition was not discussed by anyone prior to its imposition. Based on that lack of findings or explanation on the lifetime ban, the condition was vacated.

14. United States v. Howard, Eighth Circuit: Appellant's sentence was vacated and remanded for resentencing because one of his prior convictions no longer qualified as a "violent felony" under the Armed Career Criminal Act after the Supreme Court's decision in Descamps v. United States, ____ U.S. ____, 133 S.Ct. 2276 (2013).

February 21, 2014

Short Wins - A Dog's Breakfast of Victories

It's a grab bag of victories in the federal circuits for last week. A few sentencing remands - including one based on a loss calculation in a health care fraud case - but the most interesting remand is in the First Circuit's opinion in United States v. Delgado-Marrero.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Delgado-Marrero, First Circuit: Delgado-Marrero and Rivera-Claudio were both convicted by a jury of drug and gun charges and sentenced to 15 years in prison. Delgado-Marrero was granted a new trial because the district court erred by excluding testimony of a defense witness. The First Circuit also found error with regard to Rivera-Claudio's sentence because the district court failed to properly instruct the jury that in answering a post-verdict special question regarding quantity of drugs, they needed to be sure of the quantity beyond a reasonable doubt.

Defense Attorneys: Rafael F. Castro-Lang, Linda Backiel

2. United States v. Johnson, Seventh Circuit: Appellant's sentence was vacated because a sentencing enhancement was incorrectly applied. Based on the victim's testimony at sentencing, Appellant had not committed a sex offense while in failure to register status, so that enhancement was improper.

3. United States v. Perry, Seventh Circuit: Appellant twice violated the terms of his supervised release. Based on the second violation, he was sentenced to five years' imprisonment. Because the original conviction had a statutory maximum term of imprisonment of two years, the new sentence for five years' imprisonment was vacated and remanded.

4. United States v. Bankhead, Eighth Circuit: Appellant received a 180-month mandatory minimum sentence under the Armed Career Criminal Act ("ACCA") after pleading guilty to being a felon in possession of a firearm. His sentence was reversed and remanded because a predicate juvenile offense, which was used in determining sentence, did not qualify as an ACCA predicate offense.

5. United States v. Gonzalez-Monterroso, Ninth Circuit: Appellant's sentence was vacated and remanded. The district court erred in determining that Appellant's prior Delaware conviction for attempted rape in the fourth degree was a crime of violence warranting a 16-level sentencing enhancement. The Ninth Circuit determined that Delaware's statutory definition of "substantial step" criminalized more conduct than the generic federal statutory definition.

6. United States v. Popov, Ninth Circuit: Appellants were convicted of conspiracy to commit health care fraud arising from the submission of fraudulent bills to Medicare. The Ninth Circuit reversed the district court's findings regarding the amount of loss, holding that evidence can be submitted to show that the amount billed to Medicare overestimates the actual loss amount.

February 12, 2014

Short Wins - We Aren't Dead Edition

Gentle readers,

The Courts of Appeal have been more diligent in issuing opinions than we've been in posting them. Apologies. As those of you who do trial work can understand, sometimes it's really hard to do anything other than eat and sleep when there are witnesses to prepare for and arguments to make. Alas.

That said, wow, these are a bunch of cases that a scholar of sentencing and supervised release law would love. Enjoy!

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Pena, First Circuit: Appellant pled guilty to conspiracy to distribute and also to possession with intent to distribute a drug and was sentenced to 12 years' imprisonment. Because the plea proffer did not contain an admission that Appellant's actions resulted in the death of a person, and the government did not prove that element beyond a reasonable doubt, the sentence was vacated and the case remanded for resentencing.

Defense Attorney: Robert L. Sheketoff

2. United States v. Rodriguez-Santana, First Circuit: Appellant challenged the special sex-offender conditions of his supervised release. The First Circuit vacated the special condition that Appellant permit monitoring of any device with internet access or data or video storage or sharing capabilities because the government conceded that this condition may not be justified.

Defense Attorneys: Thomas J. Trebilcock-Horan, Hector E. Guzman, Jr., Liza L. Rosado-Rodriguez

3. United States v. Williams, Seventh Circuit: Appellant pled guilty to identity theft-related crimes and was sentenced to 56 months' imprisonment. That sentence was calculated using sentencing guidelines in effect at the time of sentencing, rather than at the time the crimes were committed. Because this resulted in higher sentencing guidelines, the sentence was vacated and the case remanded for resentencing.

4. United States v. Maynard Williams, Ninth Circuit: The Ninth Circuit reversed and vacated the district court's order revoking Appellant's supervised release. Appellant had entered an Alford plea. The Ninth Circuit held that such a plea is insufficient to prove commission of a state crime for purposes of a federal supervised release violation because the state itself does not treat such a plea as probative of the Appellant's guilt.

Defense Attorney: Alison K. Guernsey

5. U.S. v. Benns, Fifth Circuit: Appellant was convicted of making false statements on a credit card application. His sentence was reversed and the case remanded for resentencing because the district court improperly calculated the loss amount attributable to him.

6. U.S. v. Robinson, Fifth Circuit: Appellant was convicted of child pornography charges and sentenced to 720 months in prison. On appeal, the sentence was vacated and remanded because the trial court did not appreciate its authority to consider evidence of the Appellant's cooperation during sentencing.

7. U.S. v. Wooley, Fifth Circuit: Appellant was sentenced to 30 months imprisonment during a probation violation hearing. The trial court stated that it imposed that sentence because of the court's belief that Appellant had an untreated drug problem. The sentence was reversed because a sentencing court is prohibited from increasing or lengthening a prison sentence to promote rehabilitation.

8. U.S. v. Whitlow, Seventh Circuit: Appellant was convicted and sentenced for drug-related offenses. The Seventh Circuit remanded to allow the trial court to exercise discretion on whether to give credit for eight months Appellant spent in in pretrial custody.

9. U.S. v. Rouillard, Eighth Circuit: Appellants conviction for sexual abuse of an incapacitated person under 18 U.S.C. § 2242(2) was reversed and remanded. The Eighth Circuit, en banc, recently clarified the mens rea requirement of 18 U.S.C. §2242(2) and this development requires remand in this case because the Appellant's request for a jury instruction on his knowledge of the incapacity of the person was denied.

10. U.S. v. Mathauda, Eleventh Circuit: Appellant was convicted of various mail and wire fraud charges and sentenced to 252 months' imprisonment. The sentence was vacated and remanded for resentencing because the district court erred in adding a sentence enhancement for Appellant's alleged violation of a prior court order.

11. U.S. v. Hagman, Fifth Circuit: After pleading guilty to two firearms charged, Appellant challenged a four point sentencing enhancement for bartering 8 to 24 firearms. The Fifth Circuit vacated the sentence and remanded because the government failed to prove by a preponderance of the evidence that Appellant had possessed or unlawfully sought to obtain that many firearms.

12. U.S. v. Adkins, Seventh Circuit: Appellant pled guilty to receipt of child pornography and was sentenced to 210 months in prison and a number of special conditions. The Seventh Circuit vacated Appellant's sentence and remanded the case because one special condition - to not view or listen to any pornography or sexually stimulating material or sexually oriented material or patronize locations where such material is available - was unconstitutionally vague and overbroad.

13. U.S. v. Jordan, Seventh Circuit: Appellant was sentenced to 24 months in prison for violating terms of his supervised release. On appeal, he challenged the revocation of his supervised release arguing that the district court erred by considering hearsay evidence without first making the "interest of justice' finding required when the defendant was denied the right to question an adverse witness under the Federal Rules of Criminal Procedure. The Seventh Circuit agreed, and reversed and remanded.

14. U.S. v. Tucker, Eight Circuit: Appellant's sentence was vacated and remanded for resentencing because the elements under the Nebraska statute, under which Appellant was convicted, do not ordinarily encompass conduct that presents a serious potential risk of physical injury to another. Therefore Appellant inappropriately received an enhanced sentence under the Armed Career Criminal Act.

15. U.S. v. Ransfer, Eleventh Circuit: After a jury trial, Appellants were convicted of sixteen counts involving robbery, conspiracy, and using and carrying firearms. The Eleventh Circuit found that there was no evidence that one appellant, Lowe, took any action in furtherance of one of the robberies. His conviction was vacated on those related counts and the case remanded for sentencing.

January 21, 2014

Short Wins - The First Post of 2014 Edition

There's been a lot of action in the federal circuits these first few weeks of the year, and here, in one post we have a lot of it.

One shout out in particular is U.S. v. Aparicio-Soria. The Fourth Circuit weighs in on resisting arrest. Is it always a crime of violence? Surely not, but, well, it takes a while for things to get to that point.

Congratulations Sapna Mirchandani for a nice win!

To the victories!

1155650_berlin_siegessule.jpg1. U.S. v. Jones, Third Circuit: Appellant was sentenced to 120 months imprisonment following a guilty plea to possession of a firearm by a convicted felon. The Third Circuit vacated the sentence finding that the District Court erred in applying a sentencing enhancement for assault of a police officer. Since the officer was unaware that the Appellant was attempting to withdraw a gun, the officer had not been assaulted.

Defense Attorneys: Thomas W. Patton

2. U.S. v. Guzman, Fifth Circuit: Appellant, who was convicted of being a felon in possession of a firearm, appeals his conviction and sentence because the trial court denied his motion to suppress evidence. Because the District Court expressly declined to make factual findings that may have had a determinative impact on the outcome of the suppression hearing, the Fifth Circuit vacated the conviction and sentence. The case was remanded to ascertain whether the police officer asked Appellant for consent to search his car.

3. U.S. v. Shepard, Sixth Circuit: Appellant was found guilty of three counts of receipt of visual depictions of minors engaged in sexually explicit conduct and one count of attempted receipt. Appellant appealed his convictions and sentence because one juror, prior to the commencement of trial, contacted the court and expressed his inability to view any pictures or video because of the content of those materials. The Sixth Circuit remands for retrial, finding that it was an abuse of discretion to not excuse the juror.

Defense Attorney: Gregory A. Napolitano

4. U.S. v. Currie, Seventh Circuit: Appellant pled guilty to charges of conspiracy to distribute cocaine and possession of a firearm following a felony conviction and was convicted to 121 months imprisonment. At the time of sentencing, the district court believed the mandatory minimum for Appellant to be ten years. The Seventh Circuit remanded for the purpose of ascertaining whether the district court would be inclined to sentence the Appellant differently knowing that Appellant is subject to the lower statutory minimum of five years.

5. U.S. v. Spencer, Seventh Circuit: The Seventh Circuit vacated Appellant's sentence because the district court improperly included a sentencing enhancement. Because one of Appellant's prior convictions did not qualify as a "serious drug offense", the sentencing enhancement should not have been applied when calculating his sentence.

6. U.S. v. Toledo, Tenth Circuit: Appellant was convicted of voluntary manslaughter. During trial the court denied Appellant's request for self-defense and involuntary manslaughter jury instructions. The Tenth Circuit reversed and remanded for a new trial finding that the evidence warranted self-defense and involuntary manslaughter instruction s so that the jury could make factual findings once properly instructed.

Defense Attorney: Marc H. Robert

7. U.S. v. Clark, Second Circuit: After a jury trial, Appellant was convicted of being a felon in possession of a firearm and possession of a controlled substance. On appeal, the conviction for possession of a controlled substance was reversed. The Second Circuit held that there was insufficient evidence for that conviction such that no jury could reasonable find beyond a reasonable doubt that it happened.

8. U.S. v. Vasquez Macias, Second Circuit: Appellant was found guilty by a jury of being a previously-deported alien "found in" the United States. The Second Circuit reversed because Appellant had left the United States, seeking entry into Canada, when he was detained. Appellant was returned to the United States in custody and, although previously had been voluntarily in the United States, he was not "found in" the US at that point.

Defense Attorneys: Jayme L. Feldman and Tracey Hayes

9. U.S. v. Aparicio-Soria, Fourth Circuit: Appellant pled guilty to one count of unlawful reentry of a deported alien after sustaining an aggravated felony conviction. During sentencing, an enhancement was applied for the use of force because of a previous conviction for resisting arrest. The Fourth Circuit held that the Maryland crime of resisting arrest does not categorically qualify as a crime of violence within the meaning of the U.S. Sentencing Guidelines and therefore vacated and remanded for resentencing.

Defense Attorneys: Sapna Mirchandani and James Wyda

10. U.S. v. Freeman, Fourth Circuit: Appellant was convicted of obstructing federal bankruptcy proceedings and ordered to pay $631,050.52 in restitution to the victims. The Fourth Circuit vacated the order of restitution because that loss was suffered during conduct for which Appellant was not charged or convicted.

Defense Attorney: Nancy Susanne Forster

11. U.S. v. Simpson, Fifth Circuit: Simpson's conviction for registration of a false domain name was overturned on appeal because the domain was registered in October 2004 and the relevant law was not enacted until December 2004 and there was no proof that Simpson falsely registered a domain after December 2004. Simpson's sentence was vacated and the case remanded for resentencing.

12. U.S. v. Seymour, Sixth Circuit: Seymour appealed his sentence of 100 months' imprisonment following a conviction of being a felon in possession of a firearm. His sentence was vacated and the case remanded for resentencing because the district court inappropriately applied a firearm sentencing enhancement.

Defense Attorney: Jeffrey F. Kelleher

13. UU.S. v. Cureton, Seventh Circuit: Appellant was convicted of two counts of using a firearm in connection with a violent felony. On appeal, one of those convictions was vacated because both arise from the same conduct.

14. U.S. v. Washington, Seventh Circuit: Appellant pled guilty to attempting to possess cocaine with the intent to distribute and was sentenced to 97 months in prison. The Seventh Circuit found that the trial court's explanation for the sentence imposed was insufficient. The trial court only said that it had considered all factors under the law and that the crime was serious. This insufficiency required the sentence to be vacated and the case was remanded for resentencing.

15. U.S. v. Boose, Eighth Circuit: Appellant's 120-month sentence was vacated. During sentencing, an enhancement was applied for a career offender, but the Eighth Circuit held that Appellant does not meet the definition of a career offender.

December 30, 2013

Short Wins - Last Post Of The Year Edition

It's generally a slow time of year between Christmas and New Year's, but the federal circuits have been busy. But who wouldn't want to start the year with a remand in a criminal case (other than the government)?

Since we were off last week, here are the wins from the last two weeks in the federal circuits.

Happy New Year!

To the victories:

1155650_berlin_siegessule.jpg1. U.S. v. Duron-Caldera, Fifth Circuit: Appellant was convicted of illegal reentry. The conviction was vacated and the case remanded because the government should not have been allowed to admit an affidavit by the appellant's grandmother. The use of the affidavit violated the Confrontation Clause.

2. U.S. v. Doss, Seventh Circuit: Appellant was convicted and sentenced for a variety of identity fraud and identity theft charges. Finding that a sentencing enhancement was improperly applied, the Seventh Circuit vacated the sentence.

3. U.S. v. DeJarnette, Ninth Circuit: DeJarnette appealed his conviction for failure to register as a sex offender. The Ninth Circuit reversed the conviction because the Attorney General has not validly specified if the Sex Offender Registration and Notification Act (SORNA) applied to those already under sex offender restrictions when SORNA was enacted.

Defense Attorney: Mark D. Eibert

4. U.S. v. Timmann, Eleventh Circuit: Appellant was convicted of possession of a firearm by a convicted felon. On appeal, the Eleventh Circuit vacated the convictions because the trial court improperly denied the Appellant's motion to suppress evidence collected from a warrantless search. Because there was no urgent, ongoing emergency, the emergency aid exception to the warrant requirement should not have applied, and therefore the evidence collected should have been suppressed.

5. U.S. v. Pole, D.C. Circuit: Appellant was convicted of five counts of wire fraud and one count of theft. Because Appellant's claim for ineffective assistance of counsel was colorable, they were remanded. Further, because the trial court did not make the proper factual findings regarding restitution, the restitution order was vacated and remanded.

Defense Attorneys: Beverly G. Dyer, A.J. Kramer, and Tony Axam, Jr.

6. U.S. v. Rushton, Seventh Circuit: Appellant pled guilty to one count of mail fraud and one count of money laundering and received a 4-level enhancement at sentencing for commodity pool operator fraud as well as a 2-level enhancement for abuse of a position of trust. The Seventh Circuit reversed and remanded because the abuse of trust enhancement is barred if the enhancement for being a commodity pool operator applies; therefore, Appellant's sentence was not calculated correctly.

7. U.S. v. Caceres-Olla, Ninth Circuit: After pleading guilty to unlawful reentry into the United States, Appellant was sentenced to 46 months in prison. The court applied a sentencing enhancement based on a prior crime. However, the Ninth Circuit held that a prior felony conviction under Florida Statute §800.04(4)(a) does not qualify as a crime of violence and therefore vacated and remanded for resentencing.

8. U.S. v. Lin, Ninth Circuit: Appellant was convicted under 18 U.S.C. §1546(a) for fraud and misuse of visas, permits, and other documents. The panel from the Ninth Circuit remanded because §1546 does not prohibit the mere possession of an unlawfully obtained driver's license issued by the Commonwealth of the Northern Mariana Islands. Instead, §1546 targets different documents, but the government did not prove that Appellant possessed any such document.

Defense Attorney: Mark B. Hanson

9. U.S. v. Eiland, D.C. Circuit: Eiland and Miller were convicted of various narcotics-related offenses. On appeal, the D.C. Circuit vacated Miller's conviction for participation in a continuing criminal enterprise because the government failed to produce sufficient evidence that Miller acted as an organizer, supervisor, or manager to five or more individuals. Thus, the government did not establish all elements of the crime. The Court also vacated the fine imposed on Eiland and remand for reconsideration of that portion of the sentence because the district court vacated the conviction for which the fine was imposed.

Defense Attorneys: Eric H. Kirchman, Kenneth M. Robinson, Dennis M. Hart, and Frederick Miller

10. U.S. v. Miller, D.C. Circuit: This case is related to the above case, U.S. v. Eiland. In this related opinion, the D.C. Circuit vacates a number of convictions because the district court's responses to jury notes impermissibly interfered with the jury's independent role as fact-finder. The trial court abused its discretion by directing the jury to evidence previously unidentified by the jury as supporting a charge in the indictment. The Court also vacated Thomas' life sentences for narcotics conspiracy and RICO conspiracy and remanded for resentencing because those sentences violated Apprendi.

Defense Attorneys: Dennis M. Hart and David B. Smith

December 17, 2013

Short Wins - It's White-Collar Week In The Federal Circuits

It's white-collar week here at the federal criminal appeals blog. Two big wins in white collar cases - a price fixing conspiracy case in U.S. v. Grimm and a sentencing win in a securities fraud case in U.S. v. Simmons.

It warms your heart right before the holidays.

This is also the last week to vote for this blog on the ABA Blog 100. Here's the link - scroll down to the criminal justice blogs and you'll find us.

To the victories!

1155650_berlin_siegessule.jpg1. U.S. v. Grimm, Second Circuit: Three co-defendants were tried and convicted of violating the general federal conspiracy statute for charges arising from the fixing of below-market interest rates paid by General Electric to municipalities. Finding that the continued payment of depressed interest to municipalities did not constitute overt acts in furtherance of the conspiracy, the Second Circuit held that the statute of limitations had run. The convictions were reversed and the case remanded to the district court for dismissal of the indictment.

Defense Attorneys: Howard E. Heiss, Jonathan D. Hacker, Anton Metlisky, Deanna M. Rice, James R. Smart, Walter F. Timpone, David C. Frederick, Brendan J. Crimmins, Emily T.P. Rosen, Andrew Goldsmith, John S. Siffert, Daniel M. Gitner.

2. U.S. v. Simmons, Fourth Circuit: Appellant was convicted of securities fraud, wire fraud, and two counts of money laundering. Both money laundering convictions were reversed because the transactions prosecuted as money laundering constituted essential expenses of the underlying fraud claims and therefore merged with those charges. Appellant's sentence was vacated and the case remanded.

Defense Attorneys: Joshua B. Carpenter, Henderson Hill, Ann L. Hester.

December 11, 2013

The D.C. Circuit Holds That A Judge In D.C. Cannot Authorize A Bug in Maryland

The United States government thought that Lonnell Glover was a drug dealer. They tapped his phone, but he spoke in code so they couldn't get any evidence on him that way.

The government knew that Mr. Glover liked to talk in his truck, as so many Americans do. So they decided to get authorization from a judge to put a bug - a little microphone - in his truck.

The bug was authorized by a federal judge in Washington, D.C. The truck, at the time, was at Baltimore Washington International Airport (or, more accurately, Thurgood Marshall Baltimore Washington International Airport).

bug-1411396-m.jpgThe bug picked up some conversations, not in code, that strongly suggested Mr. Glover is a drug dealer. He was convicted, and, on appeal, challenged the validity of the wire tap because it was authorized by a federal judge in D.C. for a car in Maryland.

The D.C. Circuit, in an opinion by Senior Judge Silberman, reversed, in United States v. Glover.

Eighteen U.S.C. section 2518(3) allows a federal district judge to:

"authoriz[e] or approv[e] interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction)."

Does this language let a federal judge in Washington, D.C. authorize a wire tape for a wire that's not in Washington, D.C.?

That parenthetical is not a model of clarity. Here's how the D.C. Circuit parses it:

To be sure, the parenthetical phrase is somewhat ambiguous. It seems reasonable to read the words "such jurisdiction" in the phrase as referring back to the jurisdiction in which the judge is sitting; i.e., in this case, the District of Columbia, since the provision mentions no other jurisdiction. It is also possible that the phrase, by implication, refers to the jurisdiction in which the mobile interception device is installed.

So, could the parenthetical be read to say that a federal judge in D.C. could authorize the interception of conversations in Maryland for an investigation being run by the U.S. Attorney's Office in DC? The D.C. Circuit says no - it doesn't work with the rest of the language of the section:

Under either reading, the parenthetical makes clear that a judge cannot authorize the interception of communications if the mobile interception device was not validly authorized, and a device cannot be validly authorized if, at the time the warrant is issued, the property on which the device is to be installed is not located in the authorizing judge's jurisdiction. A contrary reading would render the phrase "authorized by a Federal court within such jurisdiction" completely superfluous.

The government has a response to this.

It argues that:

The government points to a handful of cases in which courts have found that an "interception" under Title III takes place at both the location of the listening post and at the location of a tapped phone. The government argues that in light of these cases, we should recognize that an issuing court has the power to authorize covert, trespassory entries onto private property, anywhere in the country, for purposes of placing surveillance equipment. The only jurisdictional limitation the government acknowledges is that the listening post must be located in the issuing court's jurisdiction.

It's like the argument the government frequently makes about wire fraud venue - any place that the wire goes through is an appropriate location for venue. If you email from California to Nevada, but the email goes through a server in Virginia, the government has argued that you can be tried in Virginia. Though it's a little odder here - the government, of course, controls where the listening post sits.

The D.C. Circuit doesn't go along with the government here - noting that the "listening post" language is just not in the statute.

Finally, the government asks the Court to ignore the jurisdictional problem because of the "good faith" exception to the warrant requirement. The D.C. Circuit gives this argument short shrift:

The government's last refuge is a plea that we recognize the government's "good faith" and, therefore, import a good faith exception to Title III's remedy of suppression. The Supreme Court has done so regarding Fourth Amendment violations, see United States v. Leon, 468 U.S. 897, 911 (1984), where there is no explicit textual remedy. Here, of course, Congress has spoken: The statute requires suppression of evidence gathered pursuant to a facially insufficient warrant.

The convictions were reversed, and the wiretapped conversations are suppressed.

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