July 19, 2013

It Is Not A Federal Crime To Touch Someone Who Says They Want To Have Sex With You, Even If You're Gay

John Doe (not his real name - but the guy shouldn't be singled out any more than he already has been. If you really want to see his name, it's on the opinion from the Fourth Circuit) wanted to have gay sex with a stranger.

Instead of going online like a normal person, he went to a national park in North Carolina. Mr. Doe was in his sixties - apparently baby boomers don't use Grindr.

Mr. Doe was not the only person in the park looking for men who were looking to have sex with strangers. In response to a complete absence of real crime anywhere in North Carolina, law enforcement was there too.

The law enforcement officer Joseph Darling was on patrol. Darling saw Mr. Doe on a trail hiking toward him. As they passed each other, Darling said hello. Doe grabbed his groin.

1426349_balanced_rock.jpgA few minutes later, Darling saw Doe again on an unofficial trial. They talked about the weather for a few minutes. Then Darling told Doe that Asheville - which they were near - was an open community that is accepting of gay folks.

Mr. Doe said that he "wanted to be F'ed."

Darling indicated that he would be into that. (the record says that Darling said that he replied "okay or yes, or something to that affirmative")

As Darling described it later, he "gave [Doe] every reason to believe that [Darling] was good to go."

Mr. Doe then turned around - they were three feet or so away from each other - and backed into Darling.

With his left hand, Darling reached back and "very briefly" touched Darling's fully-clothed crotch.

Darling responded, "Police officer, you're under arrest."

Mr. Doe was charged with disorderly conduct. He was convicted by a magistrate judge and sentenced to 15 days in jail, along with a fine and a bar on going in a national park for two years.

Disorderly conduct for these purposes is defined by 36 C.F.R. § 2.34(a)(2) (some CFR provisions establish federal crimes in national parks - see 16 USC § 3) and has three elements:

(1) using language, an utterance, or a gesture, or engaging in a display or act; (2) that is obscene, physically threatening or menacing, or done in a manner likely to inflict injury or incite an immediate breach of the peace; and (3) having the intent to cause or knowingly or recklessly creating a risk of public alarm, nuisance, jeopardy, or violence.

The Fourth Circuit vacated this conviction, holding that there's no notice to Mr. Doe, or anyone else, that brief clothed touching of someone's body who says that they want to have sex with you is obscene.

Which is fair enough. The Fourth Circuit made two other great points though.

First, in response to an argument from the government that really this was a prosecution for Mr. Doe wanting to have sex right there on the unofficial trail, the court of appeals noted:

Defendant's conviction was for disorderly conduct--not disorderly thoughts or desires. And it is undisputed that Defendant's actual conduct never went further than his backing up to Darling and very briefly grabbing Darling's clothed crotch. Moreover, even Darling agreed that, "for all [he] knew, [Defendant] could have very well intended for [the intercourse] to happen at [Defendant's] house." J.A. 88. And such private sexual conduct would, of course, have been perfectly legal. As the Supreme Court pronounced a decade ago, "[l]iberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct" and "allows homosexual persons the right to" engage in consensual intimate conduct in the privacy of their homes. Lawrence v. Texas, 539 U.S. 558, 567 (2003).

Finally, the Fourth Circuit said the whole point of the notice requirement was so that the government can't just make up crimes to punish people for. (for an excellent National Law Journal article on this, go here)

Yet this looks like exactly what you'd expect can happen from government enforcement of loosely defined laws - the government uses them to bully unpopular groups.

the facts of this case illustrate the real risk that the provision may be "arbitrar[ily] and discriminator[ily] enforce[d]." Hill, 530 U.S. at 732. The sting operation that resulted in Defendant's arrest was aimed not generally at sexual activity in the Blue Ridge Parkway; rather, it specifically targeted gay men. Perhaps not surprisingly, then, the all-male undercover rangers arrested only men on the basis of disorderly homosexual conduct.

The Fourth Circuit also shot down a government argument that this was motivated not by hatred of gay people, but by citizen complaints:

If the public is . . . not similarly troubled by a woman propositioning her boyfriend for sex and then briefly touching his clothed crotch, there would exist no citizen complaint and no related sting, even for otherwise identical heterosexual conduct. Simply enforcing the disorderly conduct regulation on the basis of citizen complaints therefore presents a real threat of anti-gay discrimination.

Also the Fourth Circuit determined that touching someone who says they want to have sex with you is not physically menacing - the other prong of the disorderly conduct regulation.

July 16, 2013

Not So Short Wins - The Catch Up Edition

Dear Readers,

Apologies for posting so sparsely lately. Between covering the end of the Supreme Court term for Above the Law (see posts here or here if you'd like) and this day job as a lawyer, I've been remiss in keeping you up to date on what's what in the circuits.

Today, please find the Short Wins for the last two weeks. My personal favorite is United States v. Huizar-Velazquez because there simply isn't enough law on criminal importation of wire hangars.

To the victories!

1155650_berlin_siegessule.jpg1. In re Sealed Case, D.C. Circuit: Appellant pled guilty to possession with intent to distribute crack cocaine. At the time, he was subject to a 20-year mandatory minimum sentence. He provided substantial assistance to law enforcement, and the government asked the court to sentence appellant below the mandatory minimum. The court did so. Notwithstanding the fact that appellant was sentenced below the mandatory minimum, he was eligible for a sentence reduction under the recent amendments to the Sentencing Guidelines. Therefore, the case was remanded for the district court to consider whether a sentence reduction is warranted.

2. United States v. Cotton, Fifth Circuit: Drugs were seized during a search of appellant's car during a traffic stop. Because appellant limited his consent to a search of his luggage only - where the drugs were not located - the officer's prolonged and more extensive search of the entire car violated appellant's Fourth Amendment right. The drugs should have been suppressed as fruits of the unlawful search. Appellant's conviction was vacated and the case remanded.

3. United States v. Huizar-Velazquez, Ninth Circuit: Appellant pled guilty to importing wire hangers without paying the proper duties. At sentencing, the court applied the wrong sentencing guideline - it should have applied the guideline addressing evasion of import duties by smugglers trying to fool, rather than corrupt, government officials. Similarly, the court calculated the loss amount under the wrong guideline. For these reasons, appellant's sentence was vacated and the case remanded for resentencing.

4. United States v. White Eagle, Ninth Circuit: Appellant was convicted of the following offenses, among others: conspiracy to convert tribal credit program proceeds (count I); theft and conversion from an Indian Tribal Organization (count II); concealment of public corruption (count IV); and public acts affecting a personal financial interest (count V). Counts I and II were reversed because the alleged object of the conspiracy - modifying a loan - was not criminal. Therefore, there was no conspiracy. Count IV was reversed because the government did not show that appellant violated a specific duty to report credit program fraud. Count V was reversed because the connection between appellant's alleged financial interest and a Bureau of Indian Affairs administrative officer's fraudulent loans was remote and speculative. Further, the court erred at sentencing in calculating the loss amount, requiring remand.

5. Gonzalez v. United States, Second Circuit: Appellant pled guilty to narcotics and bribery crimes and was sentenced to 210 months in prison. The district court denied appellant's 28 U.S.C. § 2255 motion to vacate his conviction and sentence. In the motion, appellant argued that his attorney provided ineffective assistance in connection with the guilty plea and sentencing. Because appellant demonstrated that the attorney's ineffective assistance was prejudicial, the district court's order dismissing appellant's motion was vacated and the case remanded for resentencing with the assistance of competent counsel.

6. United States v. Nicholson, Tenth Circuit: Appellant pled guilty to three drug and weapons-related charges after the district court denied his motion to suppress evidence found in his car after a traffic stop. Because the officer pulled appellant over for making a turn that was not illegal, the officer violated the Fourth Amendment. No other legal basis existed for stopping appellant and the good faith exception did not apply. For these reasons, the denial of appellant's motion to suppress was reversed and the case remanded with directions to vacate his convictions.

7. United States v. Thompson, D.C. Circuit: Appellant was found guilty of drug charges. Because the record was insufficient to resolve appellant's claim that his attorney was ineffective in failing to inform him of plea offers from the prosecution before the offers expired, the case was remanded to the district court for whatever proceedings are necessary to determine whether appellant was denied his right to effective assistance of counsel.

July 5, 2013

Short Wins - Fourth of July Week Edition

Today's featured case is United States v. Hampton for a few reasons.

First, it's from the DC Circuit, and my office is in DC - our Circuit's pro-defendant decisions are particularly exciting (to me).

Second, it involves law enforcement agents offering expert testimony. Law enforcement testimony is massively frustrating - it feels, at times, that there no bounds to what an FBI Agent will testify about.

Third, it comes out of a retrial. Who doesn't love a retrial?

Though, I should say, there are plenty of other great cases in this week's Short Wins.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Buffer, Sixth Circuit: The district court erred in denying appellant's motion to suppress evidence gathered from a search warrant and arrest because it incorrectly determined that (1) the warrant was supported by probable cause and (2) even if the warrant wasn't supported by probable cause, the good faith exception to the warrant requirement applied. Because of these errors, the appellate court reversed the order denying appellant's motion, vacated appellant's conviction, and remanded for further proceedings.

2. United States v. Davis, Fourth Circuit: Appellant received a consolidated sentence for several state law violations. The court counted the sentence as at least "two prior felony convictions" under the Sentencing Guidelines career offender enhancement provision. Because appellant's consolidated sentence was a single sentence for purposes of the career offender enhancement, the court vacated appellant's sentence and remanded for resentencing.

3. United States v. Galpin, Second Circuit: Appellant moved to suppress evidence of child pornography. The court agreed with appellant that the search warrant that led to the discovery of this evidence was overbroad and that the officers lacked probable cause to conduct it. Nevertheless, the court ruled that the warrant was severable and that the images found would have been in plain view during a properly limited search. This ruling was error: because the record as to whether the warrant was severable and whether the images were in plain view was deficient, the trial court's order denying the motion to suppress was vacated and the case remanded for further proceedings.

4. United States v. Hampton, D.C. Circuit: Appellant was convicted of drug conspiracy charges after a mistrial and re-trial. At the re-trial, the district court allowed an FBI agent to give lay-opinion testimony about his understanding of recorded conversations played for the jury. Because the court failed to enforce the boundaries for this type of evidence in Federal Rule of Evidence 701, the court denied the jury the information it needed to assess the agent's interpretations. Appellant's conviction was vacated.

5. United States v. Tien, Second Circuit: Appellant pled guilty to bribery of a public official and forgery of a passport at separate conferences held 16 months apart. In both pleas, the court plainly erred when it violated Federal Rule of Criminal Procedure 11, which sets forth the requirements the court must follow in determining whether a plea is voluntary. Because the pleas weren't knowingly and voluntarily entered, both were vacated and the case remanded.

June 28, 2013

Short Wins - Immigration Fraud and Bad Prosecutor Edition

I'm writing this from the Fourth Circuit Judicial Conference. Here's my brief recap.

Today, Brian Stevenson, a tremendously cool death penalty lawyer told the assembled group that justice for poor folks and people of color is going to be more likely if decision makers are in closer proximity to poor folks and people of color.

Yesterday, there was a talk about how to improve your home security, to keep any one who wants to get in proximity to you from doing so.

There's something for everyone.

Anyway, it's been a good week in the circuits.

Here are my two favorite cases from the last week:

In United States v. Tavera the Sixth Circuit had some trouble disclosing statements that tended to show that the defendant was not actually guilty. Here's the quotable gem: "This case shows once again how prosecutors substitute their own judgment of the defendant's guilt for that of the jury."

Also, in United States v. Rojas the Eleventh Circuit kicked a marriage fraud conviction on statute of limitations grounds.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Gillenwater, Ninth Circuit: The district court erred in finding appellant incompetent to stand trial because, at the competency hearing, appellant was denied his constitutional right to testify. This error was not harmless because the court did not know what the appellant would have testified about.

2. United States v. Hernandez-Meza, Ninth Circuit: Appellant's conviction for illegal reentry was dismissed because it was in violation of the Speedy Trial Act. Further, the court abused its discretion when it let the government reopen its case-in-chief to present evidence that had not been produced in discovery to rebut appellant's defense. The case was remanded for a hearing to determine whether the prosecution willfully failed to disclose the evidence and, if so, to impose sanctions.

3. United States v. Rojas, Eleventh Circuit: The trial court abused its discretion in denying appellant's motion to dismiss his marriage fraud indictment on statute of limitations grounds. Because that crime is complete on the date of the marriage, the government's indictment was barred by the five-year limitations period. The trial court's ruling was reversed and the case remanded.

4. United States v. Tang, Fifth Circuit: Appellant pled guilty to failing to register as a sex offender after traveling in interstate commerce. He appealed some conditions of his supervised release, including a ban on Internet use and a restriction on dating people with minor children. The internet restriction was vacated because it was not reasonably related to the factors in 18 U.S.C. § 3553(a) and involved a greater deprivation of liberty than reasonably necessary. The dating restriction was vacated because that restriction from the written judgment was not part of the oral pronouncement of sentence.

5. United States v. Tavera, Sixth Circuit: Appellant, along with a co-defendant, was convicted of participating in a drug conspiracy. During plea negotiations, the co-defendant told the government's lawyer in appellant's case that appellant had no knowledge of the conspiracy. The prosecutor never disclosed these statements to appellant. The prosecutor's failure to disclose the statements resulted in a due process violation. As a result, the court vacated the conviction and remanded for a new trial.

6. United States v. Valerio, Eleventh Circuit: The trial court erred in denying appellant's motion to suppress evidence that led to his arrest for growing marijuana because the officers' Terry stop and subsequent seizure was unauthorized by the Fourth Amendment. Appellant's conviction was vacated.

7. United States v. Vazquez, Ninth Circuit: Appellant was convicted of possession with intent to distribute methamphetamine and sentenced to 144 months. He received an additional point in his guidelines range calculation based on his conviction for "driving while license suspended." That conviction should not have been counted because he was not sentenced to probation for more than one year or to prison for at least 30 days. The sentence was vacated and the case remanded.

June 17, 2013

Short Wins - Forced Medication and Discovery Issues Edition

There's a great diversity of cases where defendants won in the federal circuit's last week.

Probably the most significant - in terms of it's implication for other cases, is the discovery dispute in United States v. Muniz-Jaquez from the Ninth Circuit.

Though, of course, it's still from the Ninth Circuit.

And there's now interesting pro-defendant competency and forced medication law from the Fourth Circuit in United States v. Chatmon

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Chatmon, Fourth Circuit: After he was indicted for conspiracy to distribute crack and heroin, appellant was diagnosed with paranoid schizophrenia and deemed incompetent to go to trial. Later, the court granted the government's motion to forcibly medicate appellant to restore him to competency. This was error because the court did not discuss any less intrusive alternatives in granting the motion. The order was vacated and the case remanded.

2. United States v. Malki, Second Circuit: After appellant was convicted of retaining classified documents without authorization and sentenced to 121 months in prison, he successfully appealed and was resentenced. At resentencing, the court erred by engaging in a de novo resentencing. Because the remand was for limited, not de novo, resentencing, the case was remanded again for resentencing.

3. United States v. Muniz-Jaquez, Ninth Circuit: Appellant was convicted of being a deported alien in the United States. The trial court abused its discretion in excluding dispatch tapes that could have assisted in appellant's defense or could have helped him challenge adverse testimony at trial. Appellant's conviction was reversed and the case remanded for the tapes to be produced and for the court to address any motions the tapes may generate.

4. United States v. Rothstein, Eleventh Circuit: Appellant, who was convicted of running a Ponzi scheme through his law firm, placed the fruits of his scheme into his firm's bank accounts, where they were commingled with the firm's receipts from legitimate clients. The court erred in ordering the forfeiture of some of the accounts as proceeds of the scheme because the commingled proceeds could not be divided without difficulty, and forfeiture should have been sought under substitute property provisions. Further, the court erred in forfeiting to the government other properties without resolving the issue of whether the illicit funds were used to acquire them. Remand was required to resolve that issue.

5. United States v. Windless, Fifth Circuit: Appellant knowingly failed to register as a sex offender and pled guilty to the same. He was sentenced to supervised release and two conditions were imposed: (1) participation in a mental health treatment program; and (2) no direct or indirect conduct with children under 18. The court erred in relying at sentencing on three "bare arrest records" - records that did not contain any information about the underlying facts or conduct that led to the arrest - in imposing the conditions. Also, the second condition was overly broad. For these reasons, the first condition was vacated and the second reversed, and the case remanded for resentencing.

June 13, 2013

Short Wins - Assault on An Officer and the Ex Post Facto Clause

There were three wins in the federal circuits last week, discussed below. The most interesting is probably United States v. Zabawa which gives a fair shake at sentencing to someone who assaulted an officer (who headbutted him).

It reminds me of a joke Bill Clinton liked to tell during the impeachment:

A kid comes home from school with a black eye. His mom asked what happened. The kid says, "Mom, it all started when the other guy hit back."

Probably the bigger news, though, is the Supreme Court's decision on Monday in Peugh v. United States.

The short version - the Ex Post Facto clause applies to the sentencing guidelines.

For the longer version, please check out my coverage on Above the Law here.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Reed, Fifth Circuit: Appellant was convicted of trafficking in counterfeit goods. After voluntarily dismissing his appeal, he filed a 28 U.S.C. § 2255 motion seeking to vacate his conviction and sentence for ineffective assistance of counsel, among other grounds. The district court denied the motion and denied a certificate of appealability. On appellant's motion, the Fifth Circuit granted a certificate of appealability only on the issue of whether the district court erred in denying, without having an evidentiary hearing, appellant's ineffective assistance claim. The Fifth Circuit vacated the district court's order on that issue only and remanded for a hearing.

2. United States v. Whatley, Eleventh Circuit: Appellant was convicted of robbing several banks. During his sentencing, the district court erred when it applied a four-level enhancement for abduction of the bank employees because appellant ordered them to move around to different areas within the banks. The case was remanded for resentencing with instructions for the court to apply the two-level enhancement for physical restraint of the employees.

3. United States v. Zabawa, Sixth Circuit: While in federal custody, appellant assaulted an officer, who responded by headbutting appellant, which left the officer with a cut over his eye. As a result of this interaction, appellant was convicted of assaulting a federal officer under 18 U.S.C. § 111(a)(1) and (b). Because § 111(b) specifies that the person must "inflict[]" the predicate injury to the officer, rather than cause it, appellant's conviction under (b) was improper: the officer himself admitted that his injury might have resulted from his headbutt to appellant, rather than from any force appellant applied to him. As a result, appellant's conviction under § 111(b) was reversed.

June 5, 2013

Short Wins - Slow News Day Edition & DNA Collection News

Last week, with the Memorial Day holiday, was a slow week for wins in the federal circuits- there's only one short win.

Monday, of course, was a huge day for the government's ability to collect massive amounts of data about the citizenry. I mean, of course, the Supreme Court's opinion in Maryland v. King.

My coverage at Above the Law is available here (it's dissent heavy).

And, if you really are patient and eager for more of my take on the case, I was on Huffington Post TV talking about it (you can scroll past the technical issues, which, I swear, get resolved).

To the victory!

1155650_berlin_siegessule.jpg1. United States v. Joseph, Ninth Circuit: Appellant pled guilty to two counts of possession of contraband and one count of providing contraband to a fellow inmate in violation of 18 U.S.C. § 1791. One of the possession counts and the providing contraband count arose out of a December 2010 incident, while the remaining count arose out of conduct in February 2011. The court imposed consecutive sentences for each count. Because the court plainly erred in interpreting § 1791(c) to require consecutive sentencing for controlled substances offenses that arose out of separate items of drugs, the court vacated appellant's sentence and remanded for resentencing.

May 28, 2013

Short Wins - Special Assessment Lawyering and a Remand For The Oral Pronouncement of a Special Condition of Supervised Release

There are some dramatic wins in the federal appeals courts. Sometimes an entire conviction is overturned, and it is clear that the person will walk free. Other times, a large and unjust sentence is reversed.

And then there are this week's "wins". In one, a former judge, convicted of fraud, will have the total punishment imposed on him reduced by $100 - the cost of the Special Assessment that was imposed on a count that exceeded the statute of limitations.

In another, the district court imposed a condition of supervised release ordering treatment for a gambling addiction in the Judgment following the sentencing hearing, but not at the hearing itself. So the case will go back for a sentencing hearing where the judge can say that the person is going to be going to treatment for gambling addiction to the person's face.

To the victories?

1155650_berlin_siegessule.jpg1. United States v. Ciavarella, Third Circuit: Appellant, a former judge, was convicted of honest services mail fraud, among other offenses, and sentenced 336 months in prison and ordered to pay a special assessment and restitution. Because the mail fraud count was barred by the statute of limitations, and because appellant did not waive his challenge to this count on that ground, his conviction on this count was vacated. Remand was required to amend the judgment to reduce the special assessment.

2. United States v. Martin, Sixth Circuit: Appellant was sentenced to 120 months for being a felon in possession of a firearm. In the written judgment, the court imposed a special condition of supervised release that appellant undergo treatment for a gambling addiction. The government conceded that the court's failure to orally impose the condition was an abuse of discretion and requested remand for the court to conform its written judgment to the oral pronouncement. The appeals court granted that relief.

May 20, 2013

Short Wins - The Fair Sentencing Act and the New York Times on Brady and Criminal Discovery

There was only one win in the federal circuits last week, but United States v. Blewett was a whopper - the Sixth Circuit held that the Fair Sentencing Act applies retroactively to people sentenced before it took effect. Here's the best language:

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination).

In unrelated news, the New York Times had an excellent editorial (available here subject to the Times kind of annoying content restriction thing - private browsing anyone?) on Brady and criminal discovery.

Here's my favorite part:

It might seem obvious that prosecutors with any sense of fairness would inform a defendant's lawyer of evidence that could be favorable to the defendant's case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.

This is exactly right. The problem is that prosecutors aren't required to follow Brady and turn over evidence that matters if someone is going to plead.

And, prosecutors are allowed to give sweet plea deals that expire before they're required to hand over all the evidence. So, unless defense counsel is aggressive about asking for all the evidence - and the prosecutor is inclined to turn it over - folks have to choose whether to risk going to trial or locking in a plea without being able to meaningfully assess their chances of acquittal.

As the Times points out, an early open file discovery rule would fix that.

So, doubtless, DOJ will get right on that.

To the Victory!

1155650_berlin_siegessule.jpg1. United States v. Blewett, Sixth Circuit: Appellants were convicted in crack cocaine cases and sentenced to ten years under the then-applicable mandatory minimum, which was based on the quantity of crack possessed. In 2010, the Fair Sentencing Act substantially reduced crack sentences, including the mandatory minimum imposed in appellants' cases. Because the federal perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old law violates the Equal Protection Clause, the Act should apply to all defendants, including those sentenced prior to its passage. For these reasons, appellants' case was remanded for resentencing.

May 17, 2013

Does A Person Submitting False Medicare Bills Abuse The Trust Of The Doctor Making Money Off Of The False Bills?

Hiring is always hard, especially in a small office.

You have work that needs to be done. You can't do it all. Maybe you're a professional, like a doctor, and some of the work isn't the best use of your time.

So you hire someone to help. Really, how much do you know about a person as the result of a hiring process? Yet, despite that, you give them responsibility over a portion of your business.

And you trust them.

As the First Circuit's case in United States v. Zehrung shows, sometimes that trust is not repaid in the way you expect.

69133_medical_exam_equipment.jpgDawn Zehrung worked in a doctor's office. While the doctor was seeing patients - he had 14,000 patients - she was responsible for sending the office's bills to Medicare, the state of Maine's Medicaid program, and other insurance companies.

She also had unsupervised control of the firm's checkbook, accounts payable, and copays from patients.

In what I suspect the doctor now sees as folly, Ms. Zehrung was paid a bonus if the firm did well.

Shortly after she took over the billing, the firm's monthly revenues went up 33%. The good doctor asked her why they were making so much more money all of a sudden. Ms. Zehrung said she was simply working back accounts receivable.

The doctor accepted this explanation. I'd like to think he drove off in a new sports car after hearing it.

Later, the doctor thought the continued increase was as a result of laser hair removal procedures that they had started doing.

As it happens, Ms. Zehrung was not just working the receivables. And, doubtless there's money to be made in laser hair removal, but that's not how the money in this office was being made.

It was, instead, being made through simple upcoding.

Ms. Zehrung would take the doctor's notes about what had been done, then she would submit bills for procedures that paid more.

Also, she would destroy some of the records that showed what was actually done.

Finally, the doctor was alerted by a nurse who spotted the problem. I'd like to think he was reached by the nurse on his cell phone, while he was sitting beachside drinking something with an umbrella in it.

He asked Ms. Zehrung to explain herself. Eventually, he made a serious of calls that wound up with Ms. Zehrung being arrested, charged, and pleading guilty to healthcare fraud.

At sentencing, there was, apparently, only one disputed issue - whether Ms. Zehrung should be subject to an abuse of position of trust enhancement.

The government said she should - she abused the good doctor's trust. He trusted her and she betrayed that trust.

She said she shouldn't - the enhancement is normally appropriate for folks who have some special skill with discretion, like a lawyer, who abuses the trust that comes with that skill.

It's clear that, say, a bank teller who embezzles is not eligible for an abuse of position of trust enhancement.

So, was Ms. Zehrung's trust anything more than one finds in a run of the mill employee - someone who is trusted to do an important job in a small business?

The district court applied the enhancement. As the court of appeals explained, the court reasoned:

She did the billing with "no supervision," the judge added - "[t]here was no direct oversight, no review," he repeated again - and "she assumed complete financial control within the office." And, the judge suggested, her position made it significantly easier for her to commit the crime charged.

The First Circuit reversed and remanded for more factfinding. These remarks, it concluded, were not enough to explain whether the enhancement was justified.

This case is a nice slalom through the different ways the abuse of position of trust enhancement can apply. And it's a lovely read.

May 16, 2013

The Second Circuit On Appointed Counsel And The Perils of Hiring A Lawyer For A Federal Criminal Case

Most people who are accused of a crime in federal court are unable to pay for a lawyer and have one appointed for them.

Which makes sense - a decent lawyer for a federal criminal case is expensive, the need to find a lawyer is urgent, and most people don't have substantial liquid assets to hire one quickly.

Most people, then, are represented by either a federal public defender or an appointed attorney.

The advantage is that they don't have to pay. The disadvantage is that they don't get to choose the lawyer they hire. Maybe the lawyer they get is someone they don't get along with. Maybe the client thinks an appointed lawyer won't work as hard. Maybe, for some lawyers, there's just a different dynamic when the client is paying for the lawyer's services.

In any event, sometimes, when a client has an appointed lawyer, things go poorly with the relationship with that lawyer.

68920_law_education_series_5.jpgThe Second Circuit's opinion in United States v. Barton is an interesting example of what can happen when that relationship breaks bad.

John Barton was accused of doing some illegal things involving meth and a gun. He had an initial appearance - a first hearing in a case shortly after a person is arrested.

At the initial appearance, the judge asked Mr. Barton if he'd like an appointed lawyer or to hire his own lawyer. An assistant federal public defender, Elizabeth Switzer, was with him at the hearing. Normally, if a person wants an appointed lawyer, the person has to complete a financial affidavit so the judge can see if the person really can't afford a lawyer.

Mr. Barton did not fill out a financial affidavit. He told the judge that he wanted to hire a lawyer. The judge gave Mr. Barton several days to find a lawyer.

Hiring a lawyer proved challenging for Mr. Barton. He came back to court three more times, each time with Ms. Switzer, and each time he was unable to hire a lawyer. The court continued to give him time to hire someone.

Finally, Mr. Barton decided to take matters into his own hands. He filed a motion without a lawyer seeking to dismiss the charges against him. As the Second Circuit described the motion:

He argued, among other things, that he was not properly named in the complaint, which was made out against "JOHN BARTON" and not "John Anthony Barton"; that he was legally allowed to possess both marijuana and methamphetamine to treat narcolepsy caused by a head injury he suffered in connection with a car accident; and that New York State is a sovereign territory into which the laws of the United States do not extend.

These are innovative legal theories, to be sure.

Two more hearings were held on whether Mr. Barton would hire a lawyer. Each time, Ms. Switzer appeared with him.

Finally, the judge, concerned about Mr. Barton's head injury and how sometimes he didn't make complete sense when talking during the hearings, decided that Mr. Barton should be evaluated to see if he is competent to stand trial.

The judge asked Ms. Switzer - who had not been appointed - to "remain in the case not as appointed counsel, but to assist Mr. Barton" until the possibly not competent man hired a lawyer. Because federal public defenders, apparently, are really best viewed as social workers.

Ms. Switzer left the federal public defender's office for greener pastures. At Mr. Barton's next hearing, Robert Smith, in the federal defender's office, showed up instead.

Mr. Barton refused to answer any questions from the court about whether he would hire a lawyer. He did mention the issues raised in his motion to dismiss the charges. When the judge said she would give him two more weeks to find a lawyer then appoint Mr. Smith, Mr. Barton's response was "I object."

A few weeks later, at another hearing, Mr. Barton again mainly objected and talked about his motion to dismiss. The court appointed Mr. Smith, since Mr. Barton hadn't found any other lawyer. The next day, the court issued an order finding Mr. Barton competent.

At an arraignment a few weeks later, Mr. Smith entered a plea of not guilty for Mr. Barton. Mr. Barton objected.

Not surprisingly, Mr. Smith soon after that moved to withdraw as counsel for Mr. Barton. Apparently Mr. Barton refused to see Mr. Smith - Mr. Smith thought this was, perhaps, not the best attorney client relationship.

More hearings were held. Mr. Barton did not hire an attorney. He did not complete a financial affidavit. He did, however, press forward about the issues in his motion to dismiss.

Finally, the motion to withdraw was denied. The district court reasoned that Mr. Barton never said he wanted to represent himself, and that "representation by counsel . . . should be the standard, not the exception."

Mr. Smith took an interlocutory appeal, saying that to be forced to represent a client who wouldn't talk to him is inconsistent with his obligations as a lawyer.

The Second Circuit let Mr. Smith out of the case. Since there was no financial affidavit - and Mr. Barton said he was able to hire a lawyer - the district court didn't have the authority to appoint him in the first place. An appointment without a statutory basis is not really much of an appointment at all.

As the Second Circuit summed it up,

We can think of no justification for requiring these unwilling individuals to continue their unauthorized relationship. Accordingly, the district court abused its discretion when it denied Smith's motion to withdraw.

Going forward, here's where the Second Circuit sees things:

Of course, Barton is free to change his mind. Should he succeed in hiring an attorney following remand, that attorney may file an appearance. Alternatively, if Barton asks for appointed counsel, and if he qualifies financially, the district court must appoint counsel. What the district court may not do, however, is foist an unwilling attorney upon an unwilling defendant, who has actively refused the appointment of counsel and declined to demonstrate his financial eligibility under the CJA.

The court, unfortunately, did not rule on whether being forced to represent a client who refuses to talk to you violates your responsibilities as a lawyer.

May 13, 2013

Short Wins - Missing Evidence, Medicare Fraud, and How Normal People React To Federal Prosecutions

There was only one published criminal case in the federal circuits last week where the defendant won. It's a good case on jury instructions for missing evidence, and the short write up is below.

In other news - I stumbled across this lovely write up of a Medicare Fraud prosecution by a doctor.

I often am talking to people who are amazed at how the federal criminal justice system works when they encounter it for the first time. The article is titled "Is a charting error a federal crime?" (spoiler alert: the author thinks that it is, but shouldn't be)

Many folks in the medical profession who take federal health care benefits observe, as this article does, that

the laws are increasingly designed to deter expensive care of the elderly, and that the judicial system focuses more on procedural rules than on substantive justice.

In the case, a doctor who was under investigation for years was charged with health care fraud. He lost at trial. The article is written by a doctor who went to watch the appellate arguments.

It sounds like things at the argument went well for the doctor - one judge apparently said that the government's position meant that "[a]ny error in any medical record related to a health program could be a federal crime." I'm betting the judge didn't mean that this was a good legal rule.

Though, in the end, the author concludes that

Doctors need to know that anything in the medical record can be used against them -- as can errors by their own million-dollar attorney.

The first part probably isn't literally true, but one can forgive some folks in a highly regulated industry who are, mainly, just trying to help people, for thinking that it is.

To the Victory!

1155650_berlin_siegessule.jpg1. United States v. Sivilla, Ninth Circuit: Appellant was convicted of offenses arising out of the discovery of cocaine hidden in the engine manifold of his car. Instead of preserving the car as evidence, it was sold for parts by the government notwithstanding appellant's attorney's requests to preserve it, the prosecutor's pledge to do so, and a court order compelling such action. At trial, the court denied appellant's request that the jury be instructed that the defense was not given a chance to inspect the car because it was not preserved as evidence, despite the court's order to do so. Because the government's poor conduct in failing to preserve the car significantly prejudiced appellant, the court abused its discretion in denying the request for a jury instruction. The case was remanded for a new trial with instructions to grant appellant a remedial jury instruction.

May 6, 2013

Short Wins - And More on Jury Nullification

Six new cases from the federal circuits this week. My favorite - a subjective measure, I know - is United States v. Ramirez. Any time a court, even the Ninth Circuit, vacates a drug conspiracy conviction for insufficient evidence it's worth a read.

Last week I posted about a First Circuit case that raised, I thought, a specter of support for jury nullification. Lots of folks responded to that - it turns out that nullification is a popular topic.

On Twitter, I was directed to this recent opinion out of New Mexico on nullification. If you have time, I highly recommend it. It canvasses the history of nullification as an important part of what our criminal justice system is built on then says, basically, no.

I also exchanged a few emails about nullification with a prosecutor friend of mine (yes, I have prosecutor friends, don't tell). He pointed out, rightly, that nullification is not your friend if you're thinking of, say, the Criminal Section of the Civil Rights Division of DOJ going into, say, Alabama, to prosecute hate crimes. Or almost any public corruption trial of a very popular politician. It's a fair point. The interplay between popular sentiment and the rule of law is complicated. And, as soon as cases that raise those kinds of concerns are the majority of the criminal trials in the country, perhaps prohibiting nullification would clearly be good.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Davis, Fourth Circuit: Appellant pled guilty to possession of a stolen firearm and was ordered to pay restitution to reimburse the homeowner from whose home he broke into for the value of the unrecovered firearm and damage caused by the break-in. Because the homeowner is not a victim under the Victim and Witness Protection Act, and because appellant's plea agreement did not include an explicit agreement to pay restitution to a person other than a victim of the offense of conviction, there was no basis to order restitution. This plain error required reversal of the restitution order.

2. United States v. Luna-Acosta, Tenth Circuit: Appellant pled guilty to illegal re-entry into the United States. At sentencing, the district court orally announced a sentence of one year in prison. Five months later, a written judgment was filed imposing a 33-month sentence. Because the court lacked jurisdiction to alter the sentence, the sentence was vacated and the case remanded for the court to enter a new judgment with a one-year sentence.

3. United States v. Mackay, Tenth Circuit: Appellant was convicted of unlawfully prescribing controlled substances and sentenced to 20 years in prison. Although the total sentence was below the advisory guidelines range, it exceeded the statutory maximum sentence on nine counts. Because the judgment was unclear whether the court intended to impose a 20-year sentence on each count, which would have been illegal, the case was remanded to allow the court to clarify the sentence for the record.

4. United States v. Mancuso, Ninth Circuit: Appellant was convicted of possession and distribution of cocaine, as well as two counts of maintaining a drug-involved premises. The distribution conviction was vacated because it joined two or more distinct and separate offenses into a single count. The convictions for maintaining a drug involved premises were vacated because the district court committed plain error by utilizing a "significant purposes" instruction rather than a "primary or principal use" instruction.

5.United States v. Patrick, Sixth Circuit: Appellant pled guilty to drug and firearm charges. At the plea hearing, the judge did not state the mandatory minimum penalty for the firearm charge. Because the court's failure to ensure that appellant understood that he faced a mandatory minimum sentence of five years for the firearm charge affected his substantial rights, the plea was vacated to allow appellant to withdraw his plea.

6. United States v. Ramirez, Ninth Circuit: Appellant was convicted of distribution, possession with intent to distribute, and conspiracy to distribute meth. When viewing the evidence on the conspiracy charge in the light most favorable to the government, the government failed to present sufficient evidence showing that appellant had an agreement with another to distribute meth. As a result, the conspiracy conviction was vacated and the case remanded for the district court to grant a judgment of acquittal on that count and to conform the sentence accordingly.

May 1, 2013

Did The First Circuit Encourage Jury Nullification?

We have too many federal criminal laws - more than 4,000. And, as frequent readers of this blog will note, there are times when the federal government prosecutes a person that is a close call - it may or may not be a crime.

673264_hammer_to_fall.jpgFor example, in United States v. Costello, the government prosecuted a woman for giving her boyfriend a ride from the bus station on the theory that this was "harboring" an illegal alien. (read my prior write-up on the case here).

In marginal cases like these, the defense normally argues that this is government overreaching. The government normally brushes aside this argument saying, in essence, "trust us." "We," the government continues, "have scarce resources and good judgment. We won't prosecute anyone except for really bad people."

In Costello, Judge Posner responded forcefully to this, saying:

The government tells us not to worry: we judges can rely on prosecutors to avoid bringing cases at the outer margin of the government's sweeping definition of "harboring." But this case is at the outer margin. No doubt it was brought because the Justice Department suspects that the defendant was involved in her boyfriend's drug dealings, but cannot prove it, so the Department reaches into its deep arsenal (the 4000-plus federal crimes) and finds a crime that she doubtless never heard of that it can pin on her. She was sentenced only to probation and to pay a fine but now has a felony record that will dog her for the rest of her life if she loses this appeal.

Or, take a case in the news lately, United States. Nosal. There, the government prosecuted a man (and, after they lost the appeal, tried him on different grounds and got a conviction last week) for violating the CFAA - the Computer Fraud and Abuse Act - because he encouraged others to access a computer contrary to the authorization given to them to access the computer. (my prior write up on the earlier opinion is here)

The defense argued that this was the government prosecuting a marginal case. The government said, in essence, "trust us."

Judge Kozinksi was unkind to this prosecution.

The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations. But we shouldn't have to live at the mercy of our local prosecutor. Cf. United States v. Stevens, 130 S. Ct. 1577, 1591 (2010) ("We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."). And it's not clear we can trust the government when a tempting target comes along. Take the case of the mom who posed as a 17- year-old boy and cyber-bullied her daughter's classmate. The Justice Department prosecuted her under 18 U.S.C. §1030(a)(2)(C) for violating MySpace's terms of service, which prohibited lying about identifying information, including age. See United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009). Lying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight. The difference between puffery and prosecution may depend on whether you happen to be someone an AUSA has reason to go after.

Normally, the response to an overaggressive government prosecution of these kinds of marginal cases is to define the scope of the statute narrowly so that the prosecuted conduct doesn't fit within the terms of the statue.

But what about a case where the case is marginal but within the language of the statute?

Normally, in that situation, if the language is clear that what the person did is a federal crime, but it clearly isn't what Congress intended, or what any thinking person would think should be a crime (and, sadly, those are different tests), the response is that we have to trust the government to not bring those cases.

Or, if there isn't a mandatory minimum, we have to hope sentencing judges will truly see the case as marginal.

What many folks would say you can't do, though, is go to a jury and argue that this prosecution shouldn't have been brought. Many would say that you aren't allowed to argue, in essence, "yes, my client is guilty, but, still, you shouldn't convict."

Those folks may not have read the First Circuit's opinion in United States v. Baird.

There, Mr. Baird bought a gun from a shady guy. Turns out the gun was stolen.

The government decided to prosecute the guy who bought the gun (using the evidence of the guy who stole the gun) for possession of a stolen firearm.

Mr. Baird wanted an "innocent possession" instruction. He wanted to argue that he didn't know the gun was stolen when he possessed it and that it got rid of it quickly after having learned it was.

The district court refused to give that instruction, relying on cases that said there's no "innocent possession" defense in a possession of a stolen gun case, relying on United States v. Teemer, a prior First Circuit case on whether there's an innocent possession defense to a felon in possession charge.

The First Circuit, reversing on the failure to give the instruction, acknowledge that Teemer held there was no such defense, but then said,

But that is not all Teemer said. While Teemer declined to create a "mandatory safe harbor" for innocent possession, it also acknowledged that "there are circumstances that arguably come within the letter of the law but in which conviction would be unjust," such as if a felon snatched away a loaded gun from his school-aged son and then called the police to retrieve it. Therefore, although Teemer relied primarily on prosecutorial discretion and the common sense of the jury to weed out the cases warranting leniency in § 922(g) cases, we have simultaneously recognized that "extraordinary cases might arise where . . . . if the government were foolish enough to prosecute, some caveat might indeed be needed (e.g., an instruction on a necessity or justification defense.)"

I'm not sure how to read that, except as licensing a very limited kind of jury nullification.

Justifying the applicability of an innocent purchaser defense - which isn't in the statute - the court of appeals imagines what Congressional intent should have been. Since this prosecution didn't do much to get guns off the streets, the First Circuit concludes that it wasn't what Congress meant.

Clearly this isn't going to allow a jury nullification argument most of the time, or even much of the time. But, for those of us who have grown up with a Scalia-generated view of legislative intent, it's a stunning turnaround in how to interpret a statute. And, perhaps, a first step toward allowing some kind of jury nullification.

April 29, 2013

Short Wins - Resentencing Mania Sweeps The Federal Appeals Courts

There are a handful of resentencing remands in the federal courts last week.

Perhaps most interesting is United States v. Francois, remanding because the sentence imposed exceeded the statutory maximum. One doesn't see that too often (though it's preserved in even the most aggressive appeal waivers - I think of it as a theoretical thing rather than a real meaningful risk, but, hey, last week was the week.).

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Allen, Fourth Circuit: Appellant was convicted of conspiring to possess with intent to distribute 50 grams or more of crack cocaine and sentenced to 10 years in prison, the mandatory minimum at the time he committed the offense. Before he was sentenced, the Fair Sentencing Act ("FSA") was passed, which raised the drug quantities that triggered mandatory minimum sentences for certain crack offenses. Because the FSA was passed before appellant was sentenced and appellant didn't possess the amount of crack necessary to trigger the mandatory minimum under the FSA, his sentence was vacated and the case remanded for resentencing.

2. United States v. Dotson, Sixth Circuit.pdf: Appellant was convicted of sexual exploitation of a minor and possession of child pornography. He was sentenced to 22 years in prison to be followed by a 20-year term of supervised release, which carried with it many conditions. Because the district court did not articulate a rationale for imposing some of the conditions of supervised release, the judgment was vacated as to those conditions and the case remanded for further proceedings.

3. United States v. Francois, First Circuit: Appellant was convicted of four counts of possession of a firearm by a convicted felon, one count of possession a firearm with an obliterated serial number, and 12 counts stemming from his use of a stolen identity to purchase those firearms. For these offenses, he was sentenced to 164 months in prison. Because appellant's sentences for some of the offenses related to his use of a stolen identity exceeded the statutory maximum, the case was remanded for resentencing.

4. United States v. Hamilton, Eleventh Circuit: Appellant pled guilty to possession with intent to distribute 5 grams or more of crack cocaine and other drug offenses and was sentenced to 262 months. Appellant made two motions under 18 U.S.C.§ 3582(c)(2) to reduce his sentence based on Amendment 750 to the sentencing guidelines, which lowered the base offense levels applicable to crack offenses. It was error to deny the second motion because (1) the government's and probation's memos contained inaccurate or incomplete information about the drug quantity findings at sentencing and (2) the district court did not determine accurately the drug quantity.

5. United States v. Savani, et al., Eighth Circuit: Three appellants were separately convicted of crack cocaine-related offenses. In each case, appellants were sentenced below the statutory mandatory minimum. Shortly after appellants were sentenced, the FSA became law, and Amendment 750 was approved. In light of this amendment, appellants moved to further reduce their sentences. Because they were not barred for policy reasons from seeking a further sentencing reduction under § 3582(c)(2), the courts' orders denying appellants' motions were vacated and the cases remanded for further proceedings.

6. United States v. Washington, Eleventh Circuit: Appellant pled guilty to four fraud offenses and was sentenced to 105 months in prison. The sentence was based in part on the court's ruling that 250 or more people or entities were victimized by the fraud scheme. Because the government failed to present any evidence that there were 250 or more victims, appellant's sentence was vacated and the case remanded for the court to resentence appellant using a two-level, rather than six-level, enhancement for the number of victims under U.S.S.G. § 2B1.1(b)(2)(A).