August 8, 2013

A Brady Violation in Tennessee

Placido Mendoza drove a truck from North Carolina to Tennessee. His passenger was Abel Tavera.

Tavera was a roofer. He later said (to a jury) that he thought he was going to Tennessee to see a construction project.

23.jpgThe truck had construction equipment in it. And a bucket containing nails.

Under the nails was a large quantity of methamphetamine.

Mr. Tavera went to trial and was convicted. His defense was that he didn't know that the truck had meth in it.

The driver, Mr. Mendoza, pled guilty before Mr. Tavera's trial.

Mr. Tavera was convicted and sentenced to 15 years and six months in prison.

After Mr. Tavera's trial, he learned that Mr. Mendoza told the AUSA - Donald Taylor - that Mr. Tavera had no knowledge of the drug conspiracy he was charged with.

AUSA Taylor never told Mr. Tavera's lawyer that Mr. Mendoza said Mr. Tavera isn't guilty.

And, as a result, the jury never heard that the only other guy in the car told the prosecutor that Mr. Tavera didn't know about the drugs.

As the Sixth Circuit said, "Mendoza's statements to Taylor were plainly exculpatory."

The Supreme Court has said that the government has to hand over all information that is exculpatory and that if it fails to do that, the prosecution is fundamentally unfair.

Yet, despite that the law is crystal clear on this, the Sixth Circuit notes that "nondisclosure of Brady material is still a perennial problem, as multiple scholarly accounts attest."

The procedural history is interesting - Mr. Tavera's motion for a new trial based on the Brady failure was still pending when the Sixth Circuit decided, in United States v. Tavera, that the Brady violation was so clear that the case had to go to a new trial.

The government did not think that it had to disclose this information. As the Sixth Circuit frames their argument:

the government argues, and the dissent agrees, that Tavera (although confined to his prison cell) or his lawyer should have exercised "due diligence" and discovered the statements by asking Mendoza if he had talked to the prosecutor.

The court of appeals held that the Supreme Court rejected the "due diligence" exception to Brady in Banks v. Dretke, 540 U.S. 668 (2004) when it noted that "[a] rule thus declaring "prosecutor may hide, defendant must seek," is not tenable in a system constitutionally bound to accord defendants due process."

Moreover, a rule that a Brady violation is excusable if the defendant or defense lawyer just does more work is kind of stupid. As the Sixth Circuit explained:

The Supreme Court's rejection of the idea that the "prisoner still has the burden to discover the evidence" is based in part on the fact that the prosecution has the advantage of a large staff of investigators, prosecutors and grand jurors, as well as new technology such as wiretaps of cell phones. That is one of the reasons that these investigators must assist the defendant who normally lacks this assistance and may wrongfully lose his liberty for years if the information they uncover remains undisclosed. The superior prosecutorial investigatory apparatus must turn over exculpatory information.

My favorite part is the suggestion that Mr. Tavera's lawyer should have interviewed Mr. Mendoza - because there is just about exactly zero chance that any competent lawyer would let his client talk to a co-defendant about the facts of the case while he's trying to work out a deal with the government.

Because "[t]his case shows once again how prosecutors substitute their own judgment of the defendant's guilt for that of the jury" the court of appeals reversed and recommended that "the U.S. Attorney's office for the Eastern District of Tennessee conduct an investigation of why this prosecutorial error occurred and make sure that such Brady violations do not continue."

August 7, 2013

Marriage Fraud Does Not Wait On Lying To Immigration Officials

Does marriage fraud happen in the marriage, or at the wedding? As it happens, marriage fraud, at least according to the Eleventh Circuit, is a bit of a misnomer - it's really better thought of as wedding fraud.

The statute is 8 U.S.C. § 1325(c). It says that it's a marriage fraud whenever "[a]ny individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws." The case is United States v. Rojas.

2.jpgYunier Rojas and Soledad Marino were friends. Good friends, but just friends. Apparently not even friends with benefits. Just friends.

Ms. Marino is an Argentinian who had overstayed her nonimmigrant visa. Mr. Rojas, as a friend, married her so that she could stay in the country.

The happy day was April 23, 2007.

Two years later, Ms. Marino sent in an application to adjust her status, as a result of her marriage. She sent in a marriage license from April 2007, as well as a list of addresses where she had lived with Mr. Rojas as a married couple.

Folks from Immigration and Customs Enforcement - ICE - interviewed the couple, together.

The interview didn't go well. As a result of discrepancies between what they said, the interviewers decided to interview the couple separately. The two gave different answers about their marriage. One suspects that they were more substantive than whether her favorite flavor of ice cream was really pistachio.

Finally, the ICE agents told the couple that they thought the marriage was a fraud. Both Mr. Rojas and Ms. Marino admitted that it was.

Mr. Rojas signed a statement saying that he and Ms. Marino were just friends - and that he married her so she could stay in the country.

As often happens when folks volunteer information about their own criminal conduct, law enforcement responded charitably - the government indicted Mr. Rojas.

The indictment came on April 27, 2012.

This was, of course, five years and four days after April 23, 2007 - the day the couple were married.

Mr. Rojas filed a motion to dismiss the indictment, which was denied.

On appeal, the Eleventh Circuit, per curiam, in an opinion that didn't require argument, held that the crime of marriage fraud is completed on the day that the couple enters into the marriage.

This is because the criminal conduct is "knowingly enter[ing] into a marriage" that's a sham to defeat immigration laws.

The government argued that the crime of immigration fraud was not complete until the couple lied to the government about the purpose of the marriage. That, after all, is when the government first learned that a crime had happened.

Since the purpose of entering in a sham marriage - according to the government - is to lie to immigration, the couple has to actually finish lying to immigration for the crime to be done.

The Eleventh Circuit rejected this argument.

To prove marriage fraud, the government must show that (1) the defendant knowingly entered into a marriage (2) for the purpose of evading any provision of the immigration laws.2 See 8 U.S.C. § 1325(c). It is undisputed that Rojas and Marino married on April 23, 2007. It is likewise undisputed that Rojas, at the time he entered into the marriage, did so for the purpose of violating the immigration laws--namely, using the marriage to adjust Marino's immigration status. Filing for immigration benefits may serve as circumstantial evidence of the defendant's unlawful purpose and may lead, as it did in this case, to charges and prosecution for making a false, fictitious, or fraudulent statement to DHS, in violation of 18 U.S.C. § 1001(a)(2). The plain language of the marriage fraud statute, however, cannot plausibly be read to require that a defendant take the additional step of filing for immigration benefits in order for the crime to be complete.

The district court abused its discretion by holding otherwise.

So, Mr. Rojas is free to go. Though I suspect that the statute of limitations on lying to the ICE investigators may not have run yet.

August 2, 2013

Short Wins - The Last Week of Blog Nominating and a Bright Spot on Danbury

Two bits of news before we get to the short wins:

ABA Blog Nominations

First, this is the last week you can tell the ABA Law Journal what you think about this blog - or any other law-related blog - as they prepare their list of the top 100 law-related blogs in the country (or world, or multiverse).

The link is here and you've got to get your stuff in my the end of this week - August 9.

If you like this blog, I'd be grateful if you'd share it with them. If you dislike this blog, please feel free to email me and let me know what you'd like to see done differently.

FCI-Danbury

Second, as you may recall from last week, the Bureau of Prisons is thinking about closing the only federal women's facility in the Northeast.

This is a huge problem because the farther women are incarcerated from their children, the lower the likelihood that they will actually get to see their children while they are incarcerated. And, hopefully, as a society, we can agree that it's generally a good thing for kids to see their moms.

There's a bit of a bright spot - a number of senators have written the Bureau of Prisons to ask them to try to stop the move. As reported in the Hartford Courant and described in Todd Busert's blog, these 11 senators are trying to make the case that the Northeast needs a federal prison for women.

Here's to hoping that works.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Esquivel-Rios, Tenth Circuit: Appellant's car, which bore an out-of-state 30 day registration tag, was stopped after a police officer could not verify the tag with a law enforcement database. During the call to verify the tag, the dispatcher told the officer that these types of tags often don't show up in the database. At trial, the officer confirmed that he too had never seen this type of tag come up. Drugs were found in appellant's car. His motions to suppress the drugs were denied. Because the court did not consider the totality of the circumstances in determining whether the stop violated the Fourth Amendment - including the dispatcher's comment and the officer's own experience with these tags - the case was remanded for the district court to consider this evidence and to determine whether the officer had reasonable suspicion to stop appellant.

2. United States v. Flores, Ninth Circuit: Appellant was convicted of multiple drug conspiracy offenses and a firearm charge and sentenced to 240 months in prison. The district court applied a two-level enhancement under sentencing guideline § 3B1.4 for the use of a person less than 18 in the conspiracy. Because this enhancement was imposed without a factual basis, appellant's sentence was vacated and the case remanded for resentencing.

3. United States v. Lira, Ninth Circuit: Appellant was convicted of drug trafficking and using a firearm in furtherance of a drug trafficking offense. He was sentenced to 120 months on the firearm charge. At the time, the law provided that the mandatory minimum for the firearm charge increased from five to ten years if the firearm was discharged, which the district court found was the case by a preponderance of the evidence. After sentencing, the law changed: the Supreme Court ruled that facts that increase mandatory minimum sentences must be submitted to the jury and established beyond a reasonable doubt. Because appellant's 120-month sentence was based on a fact found by the court by a preponderance of the evidence, resentencing was required.

July 30, 2013

Short Wins - The BOP Makes Prison Harder For Women, and Blog Lobbying

It's a bit of a sleepy week in the circuits, but not too sleepy in the news.

BOP Coverts Danbury to a Men's Prison

In Slate, Yale law professor Judith Resnik wrote about the problems facing female inmates in the Bureau of Prisons (hat tip to Todd Bussert's BOP Blog).

The BOP is converting Danbury to an all-male facility (Danbury is, of course, where Piper Kerman of "Orange is the New Black" fame did her time). This despite years of lobbying to open up more prisons for women closer to where their families are in the Northeast. It'll be harder for lawyers to see their clients, clients to get seen by their lawyers, and women to have visits from their children.

This is not good.

Also, if you're worried about the plight of women in BOP custody, here's a great nonprofit to get involved with.

ABA Blog Voting Time

Unrelatedly, it's now time for folks who are fans of this blog to let the ABA Journal know. I'd be grateful for any props. Here's the link.

Short Wins

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Flores-Cordero, Ninth Circuit: Appellant pled guilty to illegal reentry and, at sentencing, a 16-level increase was added to his base offense level based on his prior state conviction for resisting arrest. Because appellant's prior conviction did not constitute a "crime of violence" under U.S.S.G. § 2L1.2, the sentence was vacated and the case remanded for resentencing.

2. United States v. Hogg, Sixth Circuit: Appellant pled guilty to possession with intent to distribute crack and was sentenced to 188 months in prison after two motions to withdraw his plea were denied. Before he was sentenced, the Fair Sentencing Act was passed, enacting more lenient penalties for crack offenses. At his sentencing, the law provided that courts should look to the penalty provisions in effect when the person committed the offense - not to the lesser penalties in the Act. The Supreme Court changed that after appellant was sentenced, ruling that people sentenced after the Act's enactment are entitled to the more lenient penalties. Because the district court and counsel did not correctly anticipate the potential impact of the Act on appellant's sentence (because they were not clairvoyant), appellant was given incorrect advice at his plea hearing. As a result, he should have been permitted to with draw his plea. The case was reversed and remanded.

3. United States v. Juncal, Second Circuit: Appellants were convicted of conspiracy to commit mail and wire fraud arising out of a scheme to obtain a $3 billion loan to finance the construction of a pipeline across Siberia. Appellants were sentenced to twenty years in prison. Because of procedural errors in appellants' sentencing, including the court's failure to weigh the 18 U.S.C. § 3553(a) factors, the cases were remanded for resentencing.

July 22, 2013

Short Wins

It's been a busy week in the federal circuits - lots of good wins to check out.

Also, while I'm shamelessly pimping, please check out an article I wrote for the National Law Journal here about DOJ prosecutions, pleas, and why the law ought to be clearer.

To the victories!

1155650_berlin_siegessule.jpg1.United States v. Adams, et. al, Sixth Circuit: Appellants were convicted office RICO and related offenses arising out of their alleged participation in a vote-buying scheme in Kentucky. Because of cumulative error from the district court's evidentiary rulings, including the admission of an Inside Edition video, evidence of witness intimidation, the use of an inaccurate transcript, and state election records, among other evidence, appellants' convictions on all counts were vacated and the case remanded for a new trial.

2. United States v. Botello-Rosales, Ninth Circuit: Appellant pled guilty to drug and firearm charges after his motion to suppress statements he made to police after his arrest was denied. Because the Spanish-language warning administered to appellant failed to reasonably convey to appellant his Miranda rights, the district court erred in denying the motion to suppress. As a result, the district court's order denying the motion was reversed, appellant's conviction vacated, and the case remanded for further proceedings.

3. United States v. Daniels, et. al, Fifth Circuit: Appellants were convicted of conspiring to distribute more than five kilograms of cocaine. Because there was insufficient evidence to support the finding as to the quantity of drugs, the court reversed as to that finding only, vacating appellants' sentences and remanding for the district court to resentence appellants for the drug conspiracy pursuant to a statutory provision associated with a lesser quantity of drugs.

4. United States v. Garcia, Ninth Circuit: Appellant was convicted of involuntary manslaughter. The involuntary manslaughter jury instruction was defective because it failed to tell the jury that "gross negligence" was required for a conviction. Because the jury wasn't properly instructed, appellant's conviction was reversed.

5. United States v. Lanning, Fourth Circuit: Appellant was convicted of disorderly conduct arising out of his brief touching of an officer's fully-clothed crotch, which was done in response to a police officer in a sting operation's deliberate attempt to convince appellant he would have sex with him. Because no rational trier of fact could have found beyond a reasonable doubt that appellant's actions were "physically threatening or menacing" or "likely to inflict injury or incite an immediate breach of the peace," and because the term "obscene" was unconstitutionally vague as applied to appellant, appellant's conviction was reversed and the case remanded for a judgment of acquittal.

6. United States v. Perez-Valencia, Ninth Circuit: Appellant pled guilty to conspiring to distribute methamphetamine after the court denied his motion to suppress evidence obtained by a wiretap. The wiretap application was filed by an assistant district attorney. Because the record was insufficient to determine the precise nature of the attorney's authority when he applied for the wiretap, the case was remanded to develop the factual record. Further, on remand, if the court determines that the attorney lacked the authority to apply for the wiretap, it was instructed to consider whether the evidence subject to the motion to suppress is so attenuated from the statutory violation that it need not be excluded.

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.