April 14, 2013

Not All Violations Of Laws Are Crimes; The Eleventh Circuit Vacates A Conviction For An Illegal Food and Drug Practice That You Can't Be Convicted For

United States v. Izurieta is an odd opinion. Turns out the Eleventh Circuit was a very good defense attorney in this case.

Two brothers - Yuri and Anneri Izurieta - ran an import/export business. They brought food into the United States from Central America.

999830__3.jpgThey were charged with not following FDA procedures when they brought food into the country that - according to a trial stipulation - contained e coli and salmonella.

They were convicted at trial.

They appealed and raised some interesting issues - a Confrontation Clause challenge, a challenge to some of the prosecutor's statements during the trial, and an issue about how the sentence was calculated.

Everyone showed up for oral argument ready, presumably, to talk about these issues. The briefs had been filed. The issues were clear. I'd like to think the defense lawyer was wearing a new suit.

Then, at oral argument, the Eleventh Circuit panel asked whether the indictment in the case actually set out something that is a violation of the criminal law of the United States.

As it happens, it didn't.

So, there's a practice pointer for defense lawyers - check to make sure that an indictment accuses the person charged with something that is actually a crime.

Here are the details.

The brothers were charged with seven counts:

Count 1 charged a conspiracy to unlawfully import in violation of 18 U.S.C. § 371. Counts 2 - 7 charged the Izurietas with the failure "to redeliver, export, and destroy with FDA supervision" five shipments.

More specifically, Counts 2 through 7 charged a violation of 18 U.S.C. § 545, which says,

Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law . . . Shall be fined under this title or imprisoned not more than 20 years, or both.

So the "contrary to law" part is really important.

Here, the brothers violated an FDA regulation which provided for civil, but not criminal penalties. Does section 545 convert the violation of that regulation into a crime?

The Ninth Circuit had previously weighed in on this in 2008 in United States v. Alghazouli, 517 F.3d 1179, 1187 (9th Cir. 2008) and found that section 545 doesn't do the alchemy of converting not criminal regulations into criminal ones.

There, relying in part on an 1892 Supreme Court case that held that "[i]t is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offence" in the course of striking down a conviction for violating a bookkeeping regulation under the Oleomargarine Act (which, seriously, sounds insane. You should read more about it here and here).

The Fourth Circuit, on the other hand, held in United States v. Mitchell, 39 F.3d 465 (4th Cir. 1994), that section 545 criminalizes the violation of otherwise noncriminal regulations when the underlying regs are "legislative" in nature because, really, we're not going to lead the world in prison population without everyone doing their part.

The Eleventh Circuit ragged a bit on the Ninth Circuit's opinion, then noted that

lenity remains an important concern in criminal cases, especially where a regulation giving rise to what would appear to be civil remedies is said to be converted into a criminal law.

Because of ambiguity about whether the regulations that these brothers violated could be prosecuted criminally, the Eleventh Circuit held that, under the rule of lenity, they couldn't be.

The indictment, then, didn't allege a violation of the criminal law. And the brothers' convictions were vacated.

Gentle reader, you may be wondering whether, procedurally, this is kosher. Can it be that an appellate court can first raise whether the indictment charges a violation of the law at oral argument?

It can, because the issue is jurisdictional. If there's no adequate allegation of a crime, then the court of appeals doesn't have jurisdiction to hear the case. So, if there's a jurisdictional error, that can be raised at any point.

As the Eleventh Circuit noted,

In Seher, we held that this court is required to raise sua sponte the jurisdictional issue of whether the indictment sufficiently alleges an offense in violation of the laws of the United States provided the mandate has not issued on direct appeal. Seher, 562 F.3d at 1359.

Also, the opinion was written by Judge Jane Restani, a judge on the United States Court of International Trade, sitting by designation on the Eleventh Circuit. You don't see that very often.

April 11, 2013

Short Wins - Public Defender Withdrawals of Two Kinds

Last week was an active week in the federal appeals courts.

Perhaps most interesting - especially to those who are concerned about the state of our federal public defenders - is the Second Circuit's opinion in United States v. Barton. There, a federal defender tried to get out of a case but the judge wouldn't let him out.

On those facts, it turns out that was reversible error.

As the federal defender budget crisis gets worse, this kind of opinion may be comforting?

As you may have heard, there's been a lot of coverage of the federal defender budget situation in the press in the last week. The federal defender for the Southern District of Ohio laid himself off rather than do the same to his people. NPR had a big story on the federal defender system which is worth a listen.

What's frustrating about a lot of this coverage is that it blames the whole problem on the sequester. While the sequester is, of course, not helping, the Administrative Office of the U.S. Courts announced the budget restructuring on February 14th, before the sequester hit (and, even, before it was clear the sequester was going to hit).

The sequester is bad. And I'm all for getting the word out on that. But it seems that the FPD problem is also the result of something going on that isn't terribly indigent-defense friendly in the AO.

And, with that, to the victories,

1155650_berlin_siegessule.jpg1. United States v. Baird, First Circuit: Appellant was convicted of possession of a stolen firearm. At trial, the court refused to give a jury instruction that would have allowed him to assert the defense of "innocent possession" of the stolen weapon. Because appellant was entitled to that instruction, his conviction was vacated and the case remanded for a new trial.

2. United States v. Barton, Second Circuit: An assistant federal public defender made a motion to withdraw from representing a defendant in a criminal case. The court abused its discretion by forcing the attorney to continue the representation because the defendant, after being informed of his right to counsel, refused to recognize the public defender as his attorney, said he didn't want an appointed attorney, and didn't attempt to establish his financial eligibility for appointed counsel.

3. United States v. Benoit, Tenth Circuit: Appellant was convicted of receipt and possession of child pornography. Because these convictions arose out of the same depictions, the convictions violated the double jeopardy clause, requiring remand to vacate one of the convictions and sentences. Additionally, because the court did not explain whether the specific losses suffered by the victim were proximately caused by appellant's action, remand for redetermination of the portion of damages attributable to appellant was required.

4. United States v. Doyle, Sixth Circuit: Appellant pled guilty to failing to register as a sex offender and was sentenced to three years and one month in prison, followed by ten years' supervised release, which was subject to four special conditions. Because the court procedurally erred in failing to explain the reasons for imposing the special conditions, and because the record doesn't otherwise explain the basis for them, the special conditions were vacated and the case remanded for resentencing.

5. United States v. Fisher, Fourth Circuit.pdf: Appellant pled guilty to possession of a firearm by a felon. The officer responsible for the investigation that led to the appellant's arrest and guilty plea later pled guilty to defrauding the justice system. In particular, the officer admitted lying in the affidavit underpinning the warrant for appellant's home and car, where evidence forming the basis of the charge to which appellant pled guilty was found. The officer's affirmative misrepresentation, which informed appellants' decision to plead guilty, rendered appellant's plea involuntary and violated his due process rights. As a result, the district court erred in denying appellant's motion to vacate his plea.

6. United States v. LKAV, Juvenile Male, Ninth Circuit: Tribal authorities of the Tohono O'odham nation charged a juvenile with murder in 2009. In 2011, the United States filed its own charge against the juvenile and moved to commit him to an adult medical facility for psychiatric evaluation. Because the district court erred in committing the juvenile under 18 U.S.C. § 4241(d), rather than § 5037(e), reversal was required.

7. United States v. Logan, Eighth Circuit: Appellant pled guilty to conspiracy to distribute 50 grams or more of crack cocaine and was sentenced to 156 months in prison, which was later reduced to 120 months based on substantial assistance she provided after sentencing. Later, appellant filed a motion to reduce her sentence based on an amendment to the advisory guidelines that lowered the base offense levels for certain crack offenses. The district court erred in finding appellant wasn't eligible for a sentence reduction under her plea agreement. She was. Consequently, the case was reversed and remanded for further proceedings.

April 1, 2013

Short Wins - More On The Federal Defender Budget Mess And The Withering Sixth Amendment

Two wins in the Eighth Circuit - nice. Other than that, it's a whole lot of resentencing news.

In news related to last week's short wins post, though, where I lamented that Assistant Federal Public Defenders will be doing the same work with less pay, here's more information about the horrible budget/employment situation in our country's federal defender's offices.

In particular, I received an email calling me out for underdescribing how bad the situation is.

From a source in a leadership position of a federal defender organization, on the way the budget cuts have worked in that office:

[T]he nationwide problem is bigger than some lawyers doing the same work for less pay.

And it should be said that the Congressional sequester is but part of our pain. Last year, we ran our joint for just over $4M (and returned nearly $100K at year's end). We started this year upon preliminary funding of $3.8M, notwithstanding a governance scheme that builds in pay raises for our non-AFDs (who are on the GS scale), despite the increasing costs of our privately obtained (by way of our CDO status) health insurance, etc.

Then, the judiciary elected to cut all FDO budgets by five percent: this cut to our annual budgets was announced on Valentine's Day (meaning that resulting 12-month deficits could only be recovered over the fiscal year's remaining 7+ months). This took us to $3.6M (when, last year, we spent $4M).

Then the sequester hit and cost us another 5.5 percent off our annual budget, leaving us halfway through this year to limp into the future on funding $600K less than we judiciously spent just a year ago.

With a gap like that, furloughs and layoffs are inevitable. These are hard times for the 6th Amendment in federal court. Sure, many folks will be able to afford counsel - but thousands of people a year, under attack by the most powerful government in the history of the planet, will have compromised access to a lawyer.

Sad times.

To the victories . . .

1155650_berlin_siegessule.jpg1. United States v. Benjamin, Third Circuit: Appellant was convicted of, among other things, two counts of possession of a firearm by a convicted felon. One charge was based on appellant's use of a gun at a gun range, and the other was based on possession inside his home. Because there was no evidence showing that appellant relinquished constructive possession of the gun, there could only be one conviction. Because this error was plain, affected appellant's substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings, the case was remanded with instructions to vacate the home possession conviction and to merge both convictions into one.

2. United States v. Culbertson, Fifth Circuit: Appellant pled guilty to possession with intent to distribute methamphetamine and was sentenced to 87 months in prison followed by five years' supervised release. Appellant violated his conditions of supervised release and was sentenced to 30 months in prison, followed by 113 days in a residential reentry program. This sentence was above his advisory guideline range of five to 11 months in prison. Because the court based the sentence on its perception of appellant's rehabilitative needs, the case was remanded for resentencing.

3. United States v. Higgins, Eighth Circuit: Appellant was convicted of distributing crack cocaine, among other drug offenses, and sentenced to 360 months in prison on that count. Because the court erred in applying a career offender enhancement to that sentence under guideline § 4B1.1, the sentence was vacated and the case remanded for resentencing.

4. United States v. Johnson, Eighth Circuit: Appellant's supervised release was revoked and he was sentenced to 21 months in prison. At the hearing, a probation officer read a police report into evidence alleging appellant had been arrested for certain crimes. The government offered no explanation for the arresting officer's unavailability. This lack of an explanation, balanced against the reliability of the report, resulted in a violation of appellant's right to confront adverse witnesses. As a result, appellant's sentence was vacated and the case remanded for resentencing based on the existing record before it, without considering the police report.

March 25, 2013

Short Wins - A Remand In An Export Control Case

There's only one published win in the last week for a criminal defendant in our federal circuit courts. Gotta love a good case involving the Munitions List.

I would suspect that we should look forward to a slower stream of cases from the circuits as the country's budget crisis plunges forward.

Many of my friends are Assistant Federal Public Defenders, and, over the next few weeks these folks - who are already underpaid for a lawyer - will have to take furlough days. I know these folks and what a furlough will mean. Most of them aren't going to work less hard, they're just going to get paid less.

There's a nice article in the Huffington Post about the furloughs in federal defender offices.

There's a great quote in the article by United States District Judge Catherine C. Blake:

"It's important that people who don't have any power and any voice have people to speak for them . . . You never know when you might need the 6th Amendment."

I think Judge Blake is the finest judge on the federal district court bench because of her wisdom, her raw intelligence, and the caliber of her law clerks. It's great to see her speaking out on this important issue.

To the victory:

1155650_berlin_siegessule.jpg1. United States v. Wu, First Circuit: Appellants were convicted of violating restrictions on the overseas shipment of weapons-grade technologies. Two of the convictions were for exporting items restricted under the U.S. Munitions List. The district court erred in not submitting to the jury an element of the offense. This violated appellants' Sixth Amendment right to a jury trial. Because the error wasn't harmless, appellants' convictions on these two counts were vacated and the case remanded for resentencing.

March 24, 2013

Indian Tribal Documents Are Not Documents From The Federal Government Even When The Federal Government Wants Them To Be

My grandmother was part Cherokee. I am, I understand, something around one sixty-fourth Cherokee. And, I understand, for years my grandmother's family tried to hide their Indian status.

They did that for a lot of reasons, but a big one is how the federal government would prefer it if fewer folks were Native American.

Oh, how times change - now the government wants folks to be Indians, as the Ninth Circuit's opinion in United States v. Alvirez shows us.

Every Unhappy Family Is Unhappy In Its Own Way

Edgar Mike Alvirez's family had gotten together to spend some time in each other's company. They were at his mother's house. His girlfriend was there. A woman named Drametria Havatone was also there.

At some point, Mr. Alvirez's mother and Ms. Havatone got to talking about how Mr. Alvirez doesn't help his mother out with her financial needs.

By way of counterpoint, Mr. Alvirez's girlfriend - and another woman - starting punching and kicking Ms. Havatone. Ms. Havatone was forcibly removed from the house by the two women.

She fell to the ground. If you believe what the jury did, as she lay there, Mr. Alvirez stepped on her ankle, breaking it badly in several places.

1386479_old_paper.jpgThe Law In Indian Country

Mr. Alvirez was charged with violating 18 U.S.C. § 1153, which is a peculiar statute. Though it's called "Assaults in Indian Country", what it says is that it applies to an assault by an Indian:

Any Indian who commits against the person or property of another Indian or other person . . . assault resulting in serious bodily injury . . . within the Indian country, shall be subject to the same law and penalties as all other persons . . . within the exclusive jurisdiction of the United States.

So, to prove that Mr. Alvirez violated section 1153, the government had to prove that he committed assault resulting in serious bodily injury and that he is an Indian.

The Ninth Circuit explained how proving up Indian status works (internal citations omitted):

We apply a two-prong test to determine if this element has been met. First, the government must prove "that the defendant has a sufficient degree of Indian blood," and second, the government must establish that the defendant "has tribal or federal government recognition as an Indian."

To prove the first part of that, the Ninth Circuit has explained,

To satisfy the first prong, the government need only prove that the defendant has "some" Indian blood as a descendant of an Indian parent, grandparent, or great-grandparent.

One way to satisfy this test is by introducing a Certificate of Indian Blood.

Some Documents Are Better Than Others

At Mr. Alvirez's trial, the government introduced a Certificate of Indian Blood through an agent. It argued that the document, which was issued by an Indian tribe, was self-authenticating under Federal Rule of Evidence 902(1).

Though the district court let the certificate in, on appeal this argument lost. The Ninth Circuit held that a certificate from an Indian Tribe is not self-authenticating. Rule 902(1) lists the entities that can issue a self-authenticating document: "United States; a State of the United States; a commonwealth, territory, or insular possession of the United States; the Panama Canal Zone; and the Trust Territory of the Pacific Islands"

Indian tribes aren't on the list.

The Federal Government Sometimes Wants Indian Tribes To Be A Part Of The Federal Government

The government also argued that tribes are basically a part of the federal government - so tribal documents are basically federal government documents. This, too, was shot down:

Tribes are "sovereigns or quasi sovereigns," Kiowa Tribe of Okla. v. Mfg. Tech., Inc., 523 U.S. 751, 757 (1998), not one of the political entities into which the federal government is divided, see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) ("As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.").

Because the Certificate came in, it shouldn't have, and it went to whether Mr. Alvirez is an Indian for section 1153 purposes, the conviction was vacated and the case was remanded for a new trial.

This was a cool, tough case - nice work to AFPD Dan Kaplan for the win!

March 18, 2013

Short Wins - Day After St. Patrick's Day Edition

It's a good week for violent crime in the federal circuits - a robbery case from the First Circuit and an assault in Indian country winding up in the Ninth Circuit. And both resulted in a defendant-friendly remand. Go federal appeals courts!

Though I suppose the big news from last's week's defense wins in the federal appeals courts is the Third Circuit's United States v. Reynolds. There, the Third Circuit struck down a conviction for failing to register as a sex offender because the Attorney General's rule that applied SORNA (the federal statute that federalizes sex offender registry - because Congress thinks there simply cannot be enough federal criminal statutes) wasn't totally compliant with notice and comment rulemaking, in as much as there wasn't an opportunity for notice and comment on the rule before it was made.

It's a great issue - kudos to the Third Circuit for thinking the APA is the law even when it applies to people accused of crimes.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Almeida, First Circuit: Appellant was indicted and convicted of burglary. The court applied a robbery sentencing guideline, resulting in a sentence about twice what it would have been under the burglary guideline. Note 1 to guideline § 1B1.2 and the guidelines' Statutory Appendix provide that where the guidelines specify more than one offense guideline for an offense and no plea agreement agrees to a more serious offense, the court must pick the most appropriate guideline based only on the conduct in the indictment. Because the court picked a guideline that wasn't based on bank burglary, appellant's sentence was vacated and the case remanded for resentencing.

2. United States v. Alvirez, Ninth Circuit: Appellant was convicted of assault resulting in serious bodily injury on an Indian reservation. Because Indian tribes aren't listed among the groups that may produce self-authenticating documents, the court abused its discretion in admitting an unauthenticated Certificate of Indian Blood as evidence that appellant has recognition as an Indian. Because the error wasn't harmless, appellant's conviction was reversed and the case remanded.

3. United States v. Reynolds, Third Circuit: Appellant was convicted of sexual assault and required to register as a sex offender. Years later, the Sex Offender and Registration Notification Act ("SORNA") was passed, which required sex offenders to comply with certain registration requirements. A rule was passed that made SONRA applicable to pre-SONRA offenders like appellant, but didn't provide a period for notice and comment on the rule. Because the Attorney General didn't have good cause to waive the notice and comment, the lack of good cause prejudiced appellant. As a result, appellant's conviction for failing to register was vacated.

4. United States v. Williams, Sixth Circuit: Appellant pled guilty to possession with intent to distribute oxycodone. Because the district court erred in applying a two-level enhancement for obstructing justice under § 3C1.1, appellant's sentence was vacated and the case remanded for resentencing.

March 14, 2013

If You Transfer Someone's Personal Identity Information, You Don't Necessarily Use It, And They Aren't A Victim Of Your Identity Theft Conspriacy

Erica Hall was an office assistant at an OB/GYN office in Coral Springs, Florida. The job may not have paid well, because Ms. Hall was trying to make some extra cash on the side by selling patient information to some folks who would use it to get fake credit cards.

1385735_sterilisation.jpgMs. Hall was told by the folks the government described as her coconspirators that for every patient's personal information she handed over, she'd be paid $200. If the information was able to be used to create a credit card that could be used, she'd be paid $1000 for that patient information.

Even though Ms. Hall handed over information for between 65 to 141 folks, and that 16 of those people had information that could be used to make fake credit cards, she was only paid $200.

If you can't trust a co-conspirator, who can you trust.

Ms. Hall pled guilty to conspiracy to commit bank fraud, conspiracy to identity theft, and wrongfully obtaining and transferring someone's health information.

When the probation officer wrote her presentence report, she was given a four-level enhancement for the offense involving more than 50 victims.

Ms. Hall objected to the "more than 50 victim" enhancement - she argued that a "victim" for the purposes of the fraud guidelines, is only someone who suffers and actual loss.

The district court didn't agree though. The district court "concluded that the intentional transfer of information in exchange for consideration constituted actual use for the purposes of § 2B1.1(b)(2)(B)."

The Eleventh Circuit, in United States v. Hall, reversed the district court and vacated the sentence based on this application of the number of victims enhancement.

First, as the court of appeals pointed out,

Application Note 4(E) provides that a "'victim' means (i) any victim as defined in Application Note 1; or (ii) any individual whose means of identification was used unlawfully or without authority."

So, when the identity information was transferred, was that a use of the information?

The Eleventh Circuit said no:

When we apply the rules of statutory construction to the enhancement, we disagree with the district court's interpretation. We first consider the plain meaning of the word "used" as elaborated upon in Application Note 4E. As the Supreme Court noted in Bailey, the word "use" means "to convert to one's service," "[t]o employ," "to avail oneself of," and "to carry out a purpose or action by means of." 516 U.S. at 145, 116 S. Ct. at 506. In other words, "use" is the "application or employment of something . . . for the purpose for which it is adapted." Black's Law Dictionary 1681 (9th ed. 2009). "These various definitions of 'use' imply action and implementation." Bailey, 516 U.S. at 145, 116 S. Ct. at 506. On the contrary, the definition of "transfer" is "[t]o convey or remove from one place or one person to another; to pass or hand over from one to another, esp. to change over the possession or control of" and "[t]o sell or give." Black's Law Dictionary 1636. Transfer means something distinctly different than use.

If I transfer my car to you, that doesn't necessarily mean that I use it - I could just sign over the title. So, as the court of appeals found, transferring identity information - as Ms. Hall did - is a separate thing than using identity information - the thing that gets you the enhancement for the number of victims.

And Ms. Hall will go back for resentencing.

March 11, 2013

Short Wins - Slow News Day Edition

Only one win last week - on a technical issue of what counts as a crime of violence, statutory rape, and sentencing law.

Pity.

To the victory!

1155650_berlin_siegessule.jpg1. United States v. Rangel-Castaneda, Fourth Circuit: The district court incorrectly classified appellant's Tennessee statutory rape conviction as a generic "statutory rape" offense and, by extension, a "crime of violence" under the sentencing guidelines enhancement in § 2L1.2(b)(1)(A)(ii). This is because Tennessee's provision is significantly broader than the generic offense: in Tennessee, the age of consent is 18, while the "generic, contemporary meaning" of statutory rape sets it at 16. For these reasons, the case was remanded for resentencing.

March 6, 2013

The Third Circuit Shows How The Sentencing Guidelines For Fraud Are Complicated; Victims and Losses Bamboozle The Government And District Court

The federal sentencing guidelines are probably the most problematic in three areas - fraud, child pornography, and drugs.

Today's case, United States v. Diallo, illustrates two of the big problems with the fraud guidelines. First, they're really complicated - so complicated that federal prosecutors sometimes don't really understand how they work. In this case, the prosecutor at sentencing took a position so clearly inconsistent with the guidelines that the government abandoned it for the appeal.

(An astute reader will notice that this means the district court went along with the federal prosecutor's flawed guidelines understanding. It's a shame, but c'est la guerre.).

Second, the fraud guidelines are driven by what the "intended loss" is. And "loss" for sentencing guidelines purposes is a squishy notion. And squishy notions are bad when you're trying to figure out how much prison time to give someone.

785364_creditcard.jpgCredit Card Problems

Issa Diallo had a problem with credit cards. Sure, like many Americans, he charged more than he should of. Unlike many Americans, he put these charges on cards that weren't issued to him.

He went into a Wegman's (it's a grocery store, for our geographically diverse readers) and bought 26 gift cards with a counterfeit credit card. The next day he came back to do it again and was arrested.

Law enforcement went into his car with a warrant. They found a treasure trove of stolen identity documents:

53 counterfeit credit cards, a counterfeit Louisiana driver's license, 24 gift cards, a Global Positioning System (GPS), a laptop computer, a thumb drive, and a skimming device, which is a hand-held device that copies, stores, and encodes credit card information from a credit card's magnetic strip. A subsequent search by Secret Service agents resulted in the discovery of a second thumb drive and another gift card. Searches of the laptop and thumb drives revealed over 200 compromised Discover, Visa, and MasterCard credit card accounts.

He pled guilty to having counterfeit credit cards under 18 U.S.C. § 1029(a)(3). In the plea, there was no agreement about the number of victims or the amount of the loss. These are, of course, massively important to figuring out the guidelines range under U.S.S.C. § 2B1.1.

What's It Take To Be A Victim?

At sentencing, a Secret Service agent testified that there were credit cards for 51 financial institutions in Mr. Diallo's possession.

There's a four-level guidelines enhancement if there are more than 50 victims.

The government said that meant there were more than 50 victims, so the enhancement for more than 50 victims should apply.

The defense lawyer argued that "victim" for purposes of the number of victims enhancement, means people who actually lost money as a result of Mr. Diallo's criminal conduct.

What's the loss amount?

The Secret Service Agent testified that only $160,000 was actually charged on the cards that Mr. Diallo had. Though when you add up the credit limits for each of the cards, the total amount that could have been charged was $1.6 million.

So, since "loss" for the guidelines purposes means the higher of actual loss or "intended loss" - the amount that a person could reasonably think could have been lost as a result of the office - the government said that Mr. Diallo should have known that the loss could have been $1.6 million.

Mr. Diallo's attorney was able to get the agent to acknowledge that there was no way Mr. Diallo could have known what the credit limit on the cards was absent a subpoena.

The District Court Speaks

These were hotly contested questions. There was testimony and argument. The Third Circuit reports that:

The Court's analysis on these two issues consisted of the following: "The intended loss for credit cards he personally used and the cards he manufactured and provided to others totaled $1.6 million. Over 50 financial institutions were affected by his actions. So obviously it is a very serious offense."

It's not the most satisfying way to grapple with a hotly litigated legal issue.

The Appeal

On appeal, the government - perhaps reading the commentary for the sentencing guidelines that applied to this case relating to the number of victims enhancement for the first time - acknowledged that "victim" means "someone who suffered a loss."

Since not all of the financial institutions had cards that were actually used by Mr. Diallo, there weren't 50 or more companies that were actually harmed. So the government abandoned the "number of victims" argument.

Good on them for admitting their error. Perhaps it would have been better to do that before the sentencing hearing, but better late than never.

Turning to the loss amount issue, the Third Circuit started by setting the stage

This appeal requires us to determine how sentencing courts should calculate what "pecuniary harm was intended to result" from credit card fraud when the fraud's perpetrator did not know the credit limit, which is the potential loss amount from the stolen credit card.

The appellate court reasoned that if the district court had really done a searching analysis and decided that there was a reasoned basis for thinking that Mr. Diallo meant to take the full limit of each card, that could be supported, perhaps, depending on how good the reasoning was.

But that's not what happened here. And the Third Circuit was really not impressed with what the district court did.

from the District Court's statement at sentencing--"The intended loss for credit cards he personally used and the cards he manufactured and provided to others totaled $1.6 million" App. 30-31--we would be speculating as to what evidence or argument was the basis for the District Court's finding that $1.6 million was Diallo's intended loss amount. This type of "speculation 'is inappropriate' in light of the inherently discretionary nature of the sentencing court's decision."

The case was sent back for resentencing.

March 4, 2013

Short Wins - It's a Relatively Good Week For The Constitution

It's a good week in the federal circuits for folks accused of a crime.

Instead of the all-too-common diet of sentencing remands, there are some nice wins on our rights against unreasonable searches and seizures and against uncounseled statements to law enforcement. Well done appellate counsel!

And, what week would be complete without an opinion on restitution in child pornography cases.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Black, Fourth Circuit: Appellant pled guilty to being a felon in possession of a firearm after his motion to suppress the firearm was denied. Because the officers who stopped him lacked reasonable suspicion to believe he was engaged in a crime, the stop violated the Fourth Amendment, and the firearm should have been suppressed as fruit of the unlawful search. For these reasons, the district court's ruling on the motion was reversed and appellant's conviction and sentence were vacated.

2. United States v. Gamble, Sixth Circuit: Appellants were convicted of two unrelated child pornography offenses and ordered to pay over $1 million in restitution to "Vicky," one of the people depicted in the images. Because the courts did not require a showing of proximate cause between Vicky's losses and the appellants' offenses, remand for that analysis was required. Furthermore, on remand, the lower courts must reconsider the extent to which appellants must pay restitution where they share responsibility for Vicky's injuries with hundreds of other child pornography viewers.

3. United States v. Ramirez, First Circuit: Appellant pled guilty to conspiracy to distribute and distribution of crack cocaine. He was sentenced to 13 years in prison. Because the record was unclear as to whether the court applied an enhancement for knowingly or intentionally using a minor person when committing the offenses, remand was required to resolve this question.

4. United States v. Hunter, Seventh Circuit: The district court properly granted appellant's motion to suppress statements he made to police after asking for his attorney. Because appellant unambiguously and unequivocally invoked his right to counsel, the officers should have stopped questioning him. As a result, the statements appellant made after asking for his attorney were properly suppressed.

5. United States v. Bell, D.C. Circuit: Appellant was convicted of conspiring to possess and distribute PCP. He argued that his lawyer was ineffective because the lawyer didn't tell him that he could have received a lower sentence under the "safety valve" provision of the Guidelines. Appellant also said his lawyer was ineffective because the lawyer didn't request a continuance at the sentencing hearing when it became apparent that appellant didn't about the safety valve. Because the record suggested a serious possibility that the lawyer was ineffective and that this ineffectiveness prejudiced appellant, remand was proper to resolve this uncertainty.

6. United States v. Moore, Fourth Circuit: Appellant was convicted of carjacking, using a firearm in the carjacking, and conspiracy. Because the district court erred in denying appellant's motion for a new trial, which was based in part on newly discovered evidence that a picture of a potential suspect in the underlying offenses was mislabeled, his conviction was vacated and the case remanded for a new trial.

March 2, 2013

When Counting Bribes For Sentencing Guidelines Purposes, You Only Count The Ones That Actually Happened

Michael Roussel used to be a Captain in the New Orleans Police Department. As you might expect, he was convicted of bribery.

After his conviction at trial, he went to sentencing. The judge determined that an enhancement for receiving more than one bribe was warranted. The Fifth Circuit, in United States v. Rousel, disagreed.

419055_rainy_night_in_the_french_quar.jpgSynergy

Mr. Roussel was friends with Joey Branch. As a result of Mr. Branch's plea and cooperation agreement with the federal government, one suspects that they are no longer friends.

But back in 2008, Mr. Branch was an entrepreneur trying to place private security guards and Mr. Roussel was a police official with deep connections in a police force that has a tradition of officer's moonlighting as private security guards.

There was synergy in their relationship.

Of course, the thing about success is that one naturally wants it to continue and build. What was once an exciting threshold quickly starts to look like a stale plateau. And so it was with Mr. Branch and Mr. Roussel. Soon, they were working together to try to get more business for Mr. Branch's company. And that involved recorded calls to a confidential informant.

The informant worked for an energy company, and part of his job was to hire security guards during natural disasters. Roussel, Branch, and the informant agreed that uncertified, but falsely represented as certified, guards would be hired by the informant's company in exchange for the three splitting the profits and a fake job for the informant's wife.

Mr. Roussel ultimately gave $1,000 to the informant as earnest money of a sort. He and Mr. Branch were arrested soon after that - no other money was made.

Is Each Payment A Separate Bribe?

At sentencing, the district court determined that Mr. Roussel should receive a guidelines enhancement for being involved in multiple bribes.

Here's what the district court said:

[w]hat was intended was a series of actions over a period of time. This contract was to continue for some period of time in the future . . . . It could not be anticipated exactly when they would occur, but whenever there would be a presidentially declared natural catastrophe or emergency and Entergy would be required to immediately beef up its security force, then . . . Gladius, would be called upon to supply security officers, . . . but in any event, it seems to me that that is very different from a one-time agreement to pay a bribe that is then just paid over in installments. This was going to be a series of actions. Effectively another bribe to be paid every time there was another event that occurred.

If you're bribing a public official and tell him that you're going to give him, say $10,000 for selecting your bid for a federal contract, and you pay him in two installments of $5,000, is that one bribe or two? One can see how this could be a hard question.

Here, though, the Fifth Circuit thought it wasn't that tricky - in counting the number of bribes, you don't look at all the stuff that could have happened if the full deal went through. Instead, you look at what actually happened.

Or, as the court of appeals said

Simply put, the government proved the payment of only one bribe--the $1,000 "good faith" money to Dabdoub. The rest was all speculative.

Mr. Roussel is going back for resentencing.

February 25, 2013

Short Wins - Three Odd Cases

Three odd cases were decided last week in the federal circuits.

First, the Eleventh Circuit vacated a set of convictions because the indictment didn't successfully allege that the folks who were convicted had committed a crime.

The Sixth Circuit had a two-fer this week; one case involved sentencing irregularities and the other involved irregularities of a more troubling and frequent kind - cops lying.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Izurieta, Eleventh Circuit: Appellants were convicted of one count of conspiring to unlawfully import goods and six counts of smuggling goods into the United States. Because the indictment did not adequately set forth a violation of criminal law on any of the counts, all of appellants' convictions were vacated. The smuggling counts were based on a regulation, the violation of which resulted in paying a fine, not criminal punishment. The conspiracy count did not adequately put appellants on notice as to what criminal statute they were alleged to have violated, especially given that the vast majority of the indictment focused on acts that were not criminal.

2. United States v. Kurlemann, Sixth Circuit: Eric Duke and Bernard Kurlemann were involved in a scheme to sell homes to straw men who couldn't afford them. Kurlemann was convicted of making false statements to a lending institution, among other offenses. Because the jury instructions for the false statements count included an erroneous legal theory, Kurlemann's conviction was reversed and the case remanded for retrial on this count. At Duke's sentencing for loan fraud and making false statements, the court granted his motion for a downward departure under Guideline § 5K1.1 for substantially assisting in Kurlemann's prosecution, but didn't identify Duke's post-departure Guidelines range. As a result, it was unclear whether or by how much the court varied from that range in imposing sentence. For these reasons, the case was remanded for resentencing.

3. United States v. Shaw, Sixth Circuit: Appellant pled guilty to distributing cocaine after officers discovered large amounts of it in his home during a protective sweep. Police unlawfully entered and remained in the home under false pretenses. First, they lied about having a search warrant - it was actually for a neighbor's home - and second, once inside, they lied again about the address on the warrant. Because the officers had no right to enter the house based on a lie and no right to stay there based on a lie, the interaction violated the Fourth Amendment. As a result, the district court's denial of appellant's motion to suppress the cocaine was reversed, and the case remanded for further proceedings.

February 22, 2013

The Supreme Court Says A Seizure Isn't Incident To A Search That Happened A Mile Away

Someone told the police that Chunon Bailey sold drugs. Worse, he sold drugs and had a gun at his house at 103 Lake Drive in Wyandanch, New York.

That someone was a confidential informant.

The police took that tip and got a search warrant for 103 Lake Drive.

The police were getting ready to go into his house - they had set up outside and were watching it.

They saw Mr. Bailey leave the basement apartment at 103 Lake Drive and get in a car. Two officers followed the car as it drove away. The rest of the search team started searching the house.

A mile away, the cops pulled Mr. Bailey over. They ordered him out of the car and patted him down. They found a ring of keys in his pocket.

They then put him in handcuffs and told him that he was being detained incident to a search warrant at 103 Lake Drive - a mile away.

Inside the house they found a number of things that were unlawful to possess. He was charged in the Eastern District of New York with possessing those things.

Detention Incident to a Search Warrant

1038828_u_s__supreme_court_2.jpgNormally, when the police execute a search warrant, they can hold people who are inside the house that's being searched. Even though holding someone is a "seizure" that generally not only allowed under the Fourth Amendment, there's an exception when the person was held while the police execute a search warrant.

Mr. Bailey's case is a little off that mark though.

Sure, if the cops bust in to your house, it makes sense that they'd want to make sure you don't come after them with a gun or take a magnet to all of your hard drives. And the best way to do that is make sure you're not near a gun or a magnet - which will require a little bit of detention.

So courts are sensitive to that and allow the police to detain someone - even though any detention is a "seizure" within the scope of the Fourth Amendment as a part of executing a search warrant. The Supreme Court said that's ok in Michigan v. Summers.

Though, Mr. Bailey's case, the limits of a detention incident to the execution of a warrant grew way beyond what the rule had allowed in the past - following a guy away from his house, stopping him a mile away, and bringing him back just so he could be "incident" to his place being searched.

Nonetheless,

The Court of Appeals for the Second Circuit ruled that Bailey's detention was proper and affirmed denial of the suppression motion. It interpreted this Court's decision in Summers to "authoriz[e] law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practicable." 652 F. 3d 197, 208 (2011).

Happily for Mr. Bailey, we have a Supreme Court.

The Court, in United States v. Bailey, held that Mr. Bailey was not detained as a part of a search that was happening a mile away from a place he was trying to leave.

One opinion, written by Justice Kennedy, said this was because the Fourth Amendment balancing of harms that's necessary to figure out if a seizure is "reasonable" cuts against this kind of search. Another opinion, written by Justice Scalia, said this was because Summers announced a bright line rule that just doesn't apply to this case.

But, in the end, Mr. Bailey's detention was not lawful.

February 19, 2013

Short Wins - President's Day Edition

It's a scattershot collection of sentencing remands in this week's short wins.

Also, Happy Belated President's Day everyone, or, as OPM says, happy Washington's Birthday:

This holiday is designated as "Washington's Birthday" in section 6103(a) of title 5 of the United States Code, which is the law that specifies holidays for Federal employees. Though other institutions such as state and local governments and private businesses may use other names, it is our policy to always refer to holidays by the names designated in the law.

Used car dealers with their "President's Day Sales" may differ though.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Battle, Tenth Circuit: Appellant was convicted of conspiracy to possess with an intent to distribute 50 grams or more of crack. He was sentenced to 360 months in prison, and was later resentenced to 324 months after he filed a motion to reduce his sentence based on the retroactive amendment of the crack cocaine guidelines. The 324-month sentence was based in part on the court's finding that appellant was responsible for more than 3.4 kilograms of crack. Because the record did not support attributing this amount to appellant, the court reversed and remanded for resentencing.

2. United States v. Epps, D.C. Circuit: Appellant was convicted of various drug offenses under a Rule 11(c)(1)(C) plea agreement. He was sentenced to 188 months in prison followed by five years of supervised release. The court had jurisdiction to hear the appeal notwithstanding appellant's release from prison and the start of his supervised release. The appeal was not moot because appellant's term of supervised release may be impacted by the outcome of the appeal. Finally, appellant was entitled to a reduction of his sentence under the revised guidelines. For these reasons, the case was reversed and remanded.

3. United States v. May, Ninth Circuit: Appellants pled guilty to receipt of stolen mail and mail theft. The court's loss calculation included expenses the U.S. Postal Service ("USPS") incurred to avert future thefts. The court improperly ordered restitution for USPS' expenses because the mail theft of which the defendants were convicted occurred after, and could not have caused, USPS' delivery procedure change. As a result, the portion of the restitution order awarding restitution for USPS' expenses was vacated.

4. United States v. Patrick, Seventh Circuit: Appellant pled guilty to sex trafficking and was sentenced to 360 months in prison, to be served consecutive to a 20-year state court sentence appellant was serving. Because the court failed to discuss appellant's cooperation with authorities, appellant's sentence was vacated and the case remanded for further proceedings.

5. United States v. Capers, et al., Eleventh Circuit: Bishop Capers, Leon Frederick, and Larry Little were convicted of conspiracy to possess with intent to distribute cocaine and crack cocaine. The court ruled that the Fair Sentencing Act, which reduced the guidelines ranges for the offenses at issue, did not apply to Mr. Capers and Mr. Little's sentencing guidelines calculations because their offenses were committed before the Act was passed. This was error. Consequently, Mr. Capers and Mr. Little's sentences were vacated and the case remanded for resentencing.

February 12, 2013

You Can't Suppress The Body, But You Can Suppress The Fake ID Used To Find The Body

The Supreme Court has said that you can never suppress the body of a person accused of a crime - the person's identity is not able to be kept out of evidence, even if that identity is the result of an unlawful arrest or search.

This is a huge issue in illegal reentry cases. If a person is deported then returns to this crime, that's illegal reentry. If the person is deported after having been convicted of certain kinds of felonies - whoa buddy, that's illegal reentry after having been convicted of an aggravated felony.

In light of the Supreme Court's rule about how you can't suppress the body of the person accused, many people who handle illegal reentry cases find them massively depressing. If you can't suppress the person's identity, even if the knowledge comes from an unlawful search, then you've gutted the Fourth Amendment for people accused of illegal reentry.

Yet, in United States v. De La Cruz, the Tenth Circuit said that a motion to suppress should have been granted when the subject of the motion to suppress was whether a man's identification was taken against his Fourth Amendment rights.

1337574_clean_my_car_3.jpgMr. De La Cruz Was in the Wrong Place

Three ICE agents were staking out Gill's Truck Wash in Tulsa, Oklahoma. They were looking for a man who they thought was in the country illegally. The truck wash wasn't open yet.

A car pulled up with tinted windows. A passenger got out. The agents got a one or two second glimpse of the person driving the car.

They decided that the person driving the car may be the guy they're looking for.

They pulled the car over.

The car was not driven by the man they were looking for - instead, it was driven by Enrique De La Cruz.

Mr. De La Cruz was dropping off his brother Armando. In the backseat of the car sat Mr. De La Cruz's wife and his mother in law. They were joined by Armando's wife.

The agents asked Mr. De La Cruz if he was the man they were looking for. They compared the way he looked to the picture they had of the other man. Mr. De La Cruz was not the other man.

The agent, figuring that he had already pulled the guy over, asked Mr. De La Cruz for his identification. Mr. De La Cruz gave them a fake id. They used the fake id to figure out who he is. Turns out he was in the country illegally - after having been previously deported.

The Tenth Circuit

The Tenth Circuit found that this stop and search violated Mr. De La Cruz's rights under the Fourth Amendment.

The interesting part, though, is what they held about whether he's allowed to complain about the stop.

As the Tenth Circuit set it up

In Lopez-Mendoza, a case addressing civil deportation hearings, the Supreme Court noted that "[t]he 'body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." Id. at 1039. Lopez-Mendoza, however, does not "exempt[] from the 'fruits' doctrine all evidence that tends to show a defendant's identity." Rather, Lopez-Mendoza's "statement that the 'body' or identity of a defendant are 'never suppressible' applies only to cases in which the defendant challenges the jurisdiction of the court over him or her based upon the unconstitutional arrest, not to cases in which the defendant only challenges the admissibility of the identity-related evidence."

So, Mr. De La Cruz can challenge the admissibility of the fake id at his trial. That fake license was taken in violation of his Fourth Amendment rights, so it won't come in at trial.