November 30, 2012

The Confrontation Clause, Business Records, and Child Pornography

It would be hard to overstate the impact of the Supreme Court's recent cases on the Confrontation Clause.

Starting with Crawford v Washington, the Court has given much more meat to the requirement that if testimony is going to be used against someone in a criminal case, the person giving the testimony has to be in the courtroom and actually testifying.

Some of these changes are slow moving. Even though Crawford was decided in 2004 - whether business records provide an exception to the confrontation requirement has been a little unclear. Happily, the First Circuit clarified that business records are not automatically excluded from the Confrontation Clause.

If you're a criminal defense lawyer, that last paragraph made sense. If you're not, it was probably soup. A little background is in order (feel free to skip to the next heading if you already know this).

A Little Background

The Confrontation Clause deals with out-of-court statements. Of course, as any good viewer of Law and Order can tell you, these statements are also hearsay. The interplay between hearsay and the Confrontation Clause and the hearsay rules used to be quite strong. It is now significantly weaker.

Back in the day, the rule was that if the government wanted to introduce someone's out of court statement against a person accused of a crime, the statement had to be generally reliable. Being "generally reliable" meant, generally, that the statement fell within a hearsay exception.

The Confrontation Clause analysis collapsed significantly into the hearsay analysis.

Crawford changed that. In Crawford, the Supreme Court held that out of court statements which are "testimonial" have to be subject to cross-examination - meaning the person who made them has to show up in court and be asked questions by the defense lawyer. It won't do under the Confrontation Clause to simply have someone else repeat the out of court statement, or introduce into evidence some place where the person wrote it down.

Fair enough, but what counts as a "testimonial" statement?

Generally speaking, the Court explained that a testimonial statement is one that was prepared in preparation for a court case. I say "generally speaking" because the Supreme Court has yet to provide us with a comprehensive definition of what counts as testimonial.

288786_personal_files.jpgCan Business Records Be Testimonial?

In Crawford, the Court suggested that business records don't seem to be testimonial. Normally, the phone company doesn't create a phone bill so that it can be used in a later prosecution - it does it so I know how many minutes I've used and so they'll get paid.

Prosecutors, being a crafty sort, then tried to argue that all kinds of law enforcement records were just "business records" - so the Confrontation Clause didn't apply.

In Melendez-Diaz, for example, the government tried to argue that lab reports from a drug testing lab were just business records.

The Court wasn't sympathetic to that view. While it may be that the D.E.A.'s lab's "business" is to generate drug test reports, it's also true that these reports are made pretty much for the exclusive purpose of putting people in prison later.

So, again, if what you focus on is whether these records were created with a later prosecution in mind, you'll see that sometimes business records are testimonial (at least has the Court has gestured at a definition of "testimonial").

Child Pornography in Maine

Which brings us to United States v. Cameron.

Yahoo! was tipped off to the presence of some child pornography somewhere in the tendrils of its internet domain.

Yahoo!, like any internet company, is required to make a report to the National Center for Missing and Exploited Children (we'll call it "NCMEC" from here on out). when it hears that there's child porn in its internet world.

Yahoo!, as is its practice, then compiled a report about what the child porn was, where it was, and the IP address of where it was found. This report was sent to the NCMEC.

NCMEC forwarded that report along to law enforcement.

Law enforcement tracked down the IP address, and found that it went to Mr. Cameron's house.

A search warrant was obtained, and child pornography was found at Mr. Cameron's house.

He was charged with a number of child porn offenses and went to a bench trial. He lost and was sentenced to 192 months in prison.

The Business Records At Trial

At trial, two kinds of business records were introduced against Mr. Cameron.

The first kind were logs of activities on the Yahoo! (and also a Google) account. These the First Circuit had no trouble finding were not a Confrontation Clause problem. They were kept because that's what internet companies do in order to keep their internet companies running. Once the right foundation that they were business records was laid, they were properly admissible, the court found.

The second, though, were not. The reports to NCMEC, the First Circuit found, were "testimonial." So even though they were also business records, the information in them had to come in through a live witness who collected the child pornography information in the first place.

As the First Circuit said of these Child Pornography (or "CP") Reports:

Thus, although the CP Reports may have been created in the ordinary course of Yahoo!'s business, they were also testimonial; the receipts of the Reports, therefore, should not have been admitted without giving Cameron the opportunity to cross-examine the Yahoo! employees who prepared the CP Reports.

The appellate court's analysis is nice.

We start by objectively viewing the evidence to determine the "primary purpose" of the Reports. Firstly, we note that the CP Reports refer to a "Suspect Screen Name," a "Suspect Email Address," and a "Suspect IP Address." A "suspect" is "one who is suspected; esp. one suspected of a crime or of being infected." Webster's Third New International Dictionary 2303 (2002). There was no testimony from Lee, nor any other evidence, that Yahoo! treated its customers as "suspects" in the ordinary course of its business.

Also, the reports are automatically forwarded to NCMEC, which exists, in part, to forward such reports to law enforcement.

The First Circuit concluded that

Given that Yahoo! created CP Reports referring to "Suspect[s]" and sent them to an organization that is given a government grant to forward any such reports to law enforcement, itis clear that under the "objective test" required by Williams, 132 S. Ct. at 2243, the primary purpose of the CP Reports was to "establish[] or prov[e] past events potentially relevant to later criminal prosecution."

It's a lovely opinion. If you have a child pornography case or a confrontation clause case, please read it, there's a lot I haven't covered here.

Mr. Cameron's convictions for a number of counts were vacated and the case was remanded for either a new trial or resentencing.

November 27, 2012

Short Wins - A Few Things Happened Before Thanksgiving

After yesterday's heady news from the ABA Law Journal (did I mention you can vote for this blog here), I completely neglected to, you know, actually blog. Apologies.

Here are brief treatments of the wins from the week with Thanksgiving in it. Like Thanksgiving leftovers, there's not a lot here to be tremendously excited about, but, if you're really into yams and there are yams in the fridge, you're happy.

To carry the metaphor forward, let's hope you're really into sentencing remands.

The three cases are all on sentencing issues. The Ninth Circuit reversed on a sentencing issue in an illegal reentry case based on a change in the probation revocation guidelines, the Fourth Circuit reversed on a Fair Sentencing Act case, and the Fifth Circuit reversed a restitution award in Ponzi scheme case.

There's a backlog of interesting cases (no offense to these guys) from prior weeks. Later this week I'll have a few posts up about those.

To the Victories:

1155650_berlin_siegessule.jpg1. United States v. Catalan, Ninth Circuit: After Appellant was convicted of drug trafficking and served his six-month jail term, he was deported. When he later pled guilty to illegal reentry, his probation on the drug charge was revoked and he was sentenced to 360 days in jail. At his illegal reentry sentencing, the court imposed a 16-level enhancement under Sentencing Guideline 2L1.2(b)(1) based on appellant's six-month sentence and his 360-day sentence. Guideline 2L1.2(b)(1) provides for a 16-level enhancement if the defendant was previously deported after a drug trafficking conviction for which the "sentence imposed" was greater than 13 months. After appellant's sentencing, the Sentencing Commission clarified that a probation revocation sentence served after deportation should not be used to calculate the "sentence imposed" under the Guideline. Because the court used the probation revocation sentence to calculate the "sentence imposed," appellant's sentence was vacated and the case remanded for resentencing.

2. United States v. Edmonds, Fourth Circuit: Appellant was convicted of conspiracy to distribute more than 50 grams of crack cocaine, among other drug offenses. He was sentenced to life imprisonment on the conspiracy charge on the effective date of the Fair Sentencing Act, which increased the amount of crack cocaine needed to trigger the life imprisonment mandatory minimum from 50 grams to 280 grams. Because appellant was entitled to the benefits of the Act and the Act was not addressed below, appellant's sentence was vacated and the case remanded for resentencing with directions for the court to consider the Act.

3. United States v. Murray et al, Fifth Circuit: Appellants were convicted and sentenced for crimes arising out of a Ponzi scheme. None of appellants' sentences required restitution and none deferred determination of the amount of restitution to a later date. Because the district court found that restitution was inapplicable, the Mandatory Victims Restitution Act did not authorize the court to reopen appellants' final sentencing judgments to amend the sentences to include a restitution requirement. Because the right to appeal the timing of the court's order was not waived, the restitution orders were reversed.

November 26, 2012

The ABA Law Journal Thinks This Is One of the 100 Best Law-Related Blogs In The Land

I'm grateful that the ABA Law Journal has, again, decided this is one of the 100 best law-related blogs in the country.

That's right, your very own Federal Criminal Appeals Blog is on the 2012 ABA 100 list.

Here's what the ABA Law Journal said about the blog:

Described by fans as informative, useful and insightful with a dose of nonsnarky humor, D.C. lawyer Matt Kaiser exclusively covers cases involving defendants successful on appeal. Reader Dan Kaplan of the Federal Public Defender's Office in Phoenix says, "I get regular summaries of criminal appellate decisions in my circuit (the 9th), but this blog supplements that with interesting decisions from other circuits. The summaries are thorough but short and very readable, and best of all, they include only defense wins. I have on a few occasions cited in briefs cases I learned about from this blog."


vote_rec_orange.jpg

This means three things:

(1) I am worried the editors at the ABA Law Journal are still drinking.

(2) I owe Dan Kaplan at least a drink (redeemable in Washington, D.C.).

(3) You can vote for this Blog to win the "Criminal Justice" category. Voting takes place here. (or you can click the big button above).

Thank you, very much, to everyone who lobbied the ABA Journal on my behalf. Thanks also to the friendly folks at the ABA Journal for reading my stuff and liking it.

November 19, 2012

Short Wins - Thanksgiving Week Edition

It's a slow week here in the federal circuit courts, at least for people accused of a crime who won their cases - only three cases were reversed in the federal court of appeals in published opinions last week.

Happily, what last week's opinions lost in quantity they made up in quality.

Judge Posner weighed in on restitution in child porn cases. Always a fun writer to read.

In other child pornography news, the First Circuit reversed and remanded in a Confrontation Clause case. If you have a Confrontation Clause case on appeal, you should read United States v. Cameron.

Finally, the Tenth Circuit reversed a sentence because the defendant was denied a right to allocute. We've seen this issue before, and, frankly, I find it bizarre that district court's don't get this right every time.

If you're traveling this week, be safe. And remember, take the turkey out of the wrapper before you cook it.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Laraneta, Seventh Circuit (Posner, J.): In child pornography case, the restitution award to two women, pornographic images of whom were found in appellant's possession, required remand for the district court to determine (1) how much to subtract from one of the victim's losses to reflect payment of restitution that she has received in other cases, and (2) whether appellant uploaded any of the victims' images. Additionally, the district court erred in ruling that appellant's liability for restitution was joint and several, as appellant was the sole defendant in this case and could not seek contribution from others.

2. United States v. Cameron, First Circuit: Appellant was convicted of 13 crimes involving child pornography. Because the admission of certain reports violated appellant's Confrontation Clause rights, and because these errors were not harmless with respect to six of the offenses, appellant's convictions for the six offenses were reversed and his sentences vacated.

3.United States v. Castillo, Tenth Circuit: In felon in possession of a firearm case, the district court violated appellant's right of allocution when it failed to allow him a meaningful opportunity to speak on his own behalf before the imposition of his 28-month sentence. Consequently, the case was remanded to the district court with directions to vacate appellant's sentence and for resentencing.

November 16, 2012

The Second Circuit Limits Bank Fraud Prosecutions Where A Check Is Validly Issued (and other facts don't get in the way)

If you're ever involved in a bank fraud case, you should probably read the Second Circuit's opinion reversing Mr. Felix Nkansah's bank fraud conviction. If the government wants to convict someone for bank fraud, the Second Circuit says they've got to show that the person was trying to defraud a bank (as opposed to trying to defraud someone or something else).

The Company You Keep

Felix Nkansah fell in with some bad company.

He worked with a number of other people to steal identity information for people, like names, dates of birth, and social security numbers. Specifically, he stole this information from hospitals, childcare databases, and foster care.

The group then filed false tax returns with the names and social security numbers they had stolen. Cleverly, they didn't file tax returns that showed taxes were owed. Instead, they filed returns that triggered tax refunds.

The fraudulent returns had refunds that totaled more than two million dollars. The group actually received a little more than half a million dollars.

When the refund checks came to a group member, the member would forge a signature on the check and deposit it in a bank account that the group controlled.

Mr. Nkansah was charged with conspiracy to file false claims with the IRS, filing false claims with the IRS, bank fraud, aggravated identity theft in connection with the bank fraud, and identity theft.

He was convicted of all of them at trial.

1390009_dollar.jpgThe Second Circuit

On appeal, though, the Second Circuit reversed his conviction for bank fraud. This was tax fraud, sure. But bank fraud? Nope.

Let's start at the start - with 18 U.S.C. § 1344, the bank fraud statute:

Whoever knowingly executes, or attempts to execute, a scheme or artifice-- (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises; [is guilty of bank fraud]

Mr. Nkansah argued on appeal that there was a lot of evidence that he intended to defraud the federal Treasury, but there wasn't any evidence that he intended to defraud a bank.

While defrauding the Treasury is really bad, he was convicted of bank fraud. And there wasn't evidence that he committed that crime.

In fact, Mr. Nkansah argued that there was no reason to think that the banks lost money through this whole transaction. As the Second Circuit summarized it:

In essence, he argues that the banks were no more victims of his deceptions than a bank in which someone opens an account under a false identity to conceal funds from a spouse or business partner.

The Second Circuit agreed with the law undergirding the prosecution:

Appellant is correct that the bank fraud statute is not an open-ended, catch-all statute encompassing every fraud involving a transaction with a financial institution. Rather, it is a specific intent crime requiring proof of an intent to victimize a bank by fraud. See United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994). "[A] federally insured or chartered bank must be the actual or intended victim of the scheme."

Summarizing all of this,

The government had to prove beyond a reasonable doubt that appellant intended to expose the banks to losses.

The Evidence Of What Was In Mr. Nkansah's Mind

The government had two kinds of evidence to try to show that Mr. Nkansah intended to defraud the banks. First, they relied on statements made to other folks in the group.

Mr. Nkansah had talked to others about which banks would be least likely to discover the scheme. The Second Circuit rejected these arguments -

While these concerns surely support an inference of an intent to avoid detection, on this record they have no probative value as to an intent to injure the banks.

Second, the government tried to show that because the bank was actually going to suffer a loss - or the bank said it was going to suffer a loss - that was enough to show that Mr. Nkansah thought the bank would suffer a loss.

The Second Circuit has allowed such an inference where a person forged a check and went to the bank to cash it (though, interestingly, the court of appeals said such an inference isn't required). But this isn't such a case - here Mr. Nkansah had a legitimate check (which was issued under false pretenses). That exposes the issuer of the check to a loss, but not, on these facts, the bank.

Because there was no evidence to support the conclusion that Mr. Nkansah intended to defraud the banks - as opposed to the Treasury - his conviction for bank fraud was reversed.

As was his conviction for aggravated identity theft based on the bank fraud.

November 15, 2012

How Not To Do Legal Research

I like to work with other lawyers when the case warrants it. In fact, it's rare that I don't have a few cases in the office where I have co-counsel.

Normally, this is good because I get to see how others are handling the same issues I am. I get to learn what other people are doing and I have an opportunity to improve my game.

There are exceptions, though. Three times this calendar year, I've been working with a lawyer at another firm and I've stumbled upon an inexcusably lazy way to do legal research. More on that in a second.

Two trends in lawyer culture are mixing to create a storm of bad lawyering.

68915_law_education_series_1.jpgThe Rise Of Law-Related Stuff On The Internet

First, lawyers and law firms want to do well in search results. To do well in search results requires lawyers to generate content (formerly known as "writing"). Lawyers want to reach out to potential clients with news and information that's relevant to these potential clients.

As a result, lawyers are pumping out articles and blog posts and other marketing materials about how the law works.

On balance, I think this is good. Citizens ought to know how the law works. If a lawyer can't explain a concept in a blog post, she likely can't explain it in a client meeting either.

Yet now the internet is drowning in lawyer marketing material (also cat videos). Some of this material is really good. Some of it is questionable.

Little of it has the same rigor or analytical depth of a brief. Blog posts are rarely cite-checked. Marketing white-papers are not written to go to judges.

More importantly, just about every legal rule has some exception, or limit to its application. A marketing article isn't written to cover every nuance. It's written to get a potential to say "Hey, the person who wrote this knows sort of what she's talking about. I should call her."

That's a very narrow purpose.

The Rise of Google

The second trend creating a mass of bad lawyering is the rise of Google.

Everyone uses Google. I no longer know the local pizza delivery place's phone number, because I just Google it each time I need pizza. Google has become the place people go to for knowledge.

As a result, even good lawyers now routinely go to Google for the answer to a legal problem instead of Westlaw or Lexis. Heck, sometimes I'd rather use Google which is at my fingertips, than turn and reach two feet for a book.

The problem is with what you find when you Google.

If you need a cite, Googling "18 U.S.C. 2319" to get to the criminal copyright statute makes sense. Everyone understands that a statute is an accurate statement of the law. Sure, there may be some interpretation you want to look at from the case law, but if you just want the plain language of the statute, Google will get you there.

It's different, though, if the question is more nuanced. If you need to know how criminal copyright prosecutions work, Googling "criminal copyright" may, or may not, get you to something reliable (though it does get you to this kind of cool Maggie Gyllenhaal video called "Copyright Criminals").

Google is only as good as what it gets you. And these days, because of the rise of law firm marketing on the internet, Google is more likely to get you to some law firm's quick discussion of a topic as it is to get you to anything rigorous or reliable.

Law firm marketing material shows you the contours of what the law looks like, but it's nothing you'd want to lean on too heavily.

Google Is Not The End Of Legal Research

Which brings me back to where I started. Three times this year I've been working with other lawyers. We've been trying to figure out the answer to a subtle legal question.

Then, the other lawyer tells me that he or she has figured out the answer and sends me a link to a two-page marketing article from some law firm in, say, St. Louis.

This is not how legal research ought to be done.

Law firm marketing material is not meant to bear the weight of a case or a statute. I'm waiting to see a successful malpractice suit because a lawyer relied on some other lawyer's blog or webpage when giving advice to a client.

If you'd like to use Google as a way of starting real research into an issue - Googling to find a law firm marketing article about a topic, then look at the cases cited in the article - fine. But a lawyer is not done simply because Google sends back an answer from some yokel with a Wordpress blog.

For lawyers, who are chronically busy, sending in a Google search is a tempting prospect. But it's also insane. If you wouldn't cite it to a court, it isn't reliable as a part of a research project.

So, if you're reading my blog, The Federal Criminal Appeals Blog, and you think there's a statement of the law, please don't think that you've looked it up.

November 14, 2012

The DC Circuit Vacates A Restitution Order In A Criminal Copyright Case - Or, Making Money Off Pirated Adobe Software Doesn't Necessarily Hurt Adobe As Much As It Helps The Person Making The Money

Gregory Fair was an internet entrepreneur. Of sorts.

Mr. Fair's Criminal Copyright Enterprise

He sold pirated copies of outdated Adobe software on Ebay. His customers could buy this outdated software, then, with an update code Mr. Fair was also able to provide, they could pay Adobe to upgrade their software to the most current version.

1335026_friendly_skull.jpgMr. Fair's customers would then pay, for example, $325 and a little bit of legwork for Adobe software that would cost more than $700 on the open market.

A deal like that sells itself, and over the course of six years his total sales came in around $1.4 million.

All good things must come to an end.

The Postal Service, after hearing complaints from Adobe, launched a sting. Mr. Fair was charged with a criminal copyright offense under 18 U.S.C. § 2319. He pled guilty.

Restitution Arguments at the Sentencing Hearing

Though the plea agreement contained a lot of concessions, it did not contain an agreement about any restitution amount.

Before sentencing, the government provided a spreadsheet of the amount of revenue that Mr. Fair made selling software as a part of his software enterprise. His total sales were $767,465.99. The government proposed that this would be an adequate measure of Adobe's loss for restitution purposes.

Mr. Fair disagreed. He argued that

(1) restitution under the MVRA must take the form of "actual loss" to the victim; (2) "actual loss cannot be equated to 'intended loss' or to gain by the defendant"; and (3) the government had offered "no proof . . . of any actual loss by [the victim,] Adobe Systems."

Moreover, in a move that may be genius or chutzpah, he argued that "his piracy might in fact have benefitted Adobe Systems by increasing consumers' awareness and use of its products."

A temperate man, he did not request payment from Adobe for his work as a part of the sentencing proceeding.

The district court agreed with the government. The district court reasoned that

"[i]t's undisputed that [Fair]'s revenue from the sales of pirated Adobe products was at least $767,000," and that "if anyone held the right to collect revenue from the sale of these products, it was Adobe [Systems]," and so it followed that "since the sales did occur and revenue was generated, and the right to the revenue was held by Adobe [Systems] and not by [Fair], that Adobe [Systems] has the right to be restored to the revenue that it lost [in] its right to collect on actual sales that were made."

Mr. Fair appealed.

Mr. Fair Goes To The D.C. Circuit

The D.C. Circuit, in United States v. Fair, reversed the restitution award.

About the district court's reasoning, the D.C. Circuit started by saying that just about no federal appellate court thinks the district court's approach is supported by the law.

The circuit courts of appeals are in general agreement that the defendant's gain is not an appropriate measure of the victim's actual loss in M[andatory Victim Restitution Act] calculations. See Zangari, 677 F.3d at 92-93 (2d Cir.); Arledge, 553 F.3d at 899 (5th Cir.); United States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008); Chalupnik, 514 F.3d at 754 (8th Cir.); United States v. Galloway, 509 F.3d 1246, 1253 (10th Cir. 2007); cf. United States v. Kuo, 620 F.3d 1158, 1164-65 (9th Cir. 2010); United States v. Harvey, 532 F.3d 326, 341 (4th Cir. 2008); United States v. Badaracco, 954 F.2d 928, 942-43 (3d Cir. 1992).

So the amount that Mr. Fair made on the sales of copyright-violating software isn't the right measure of what Adobe lost. Fair enough. What is?

Sometimes, in a criminal copyright case, the copyright violator puts things into the market that completely block the legitimate seller from selling at all.

For example, if I sell bootlegged copies of The Green Bag ("an entertaining journal of law") for a mere $35 a subscription per year, it would prevent The Green Bag from being sold for many consumers.

In a case like that, the D.C. Circuit said, the restitution owed to The Green Bag would be not the cost of its lost sales - so not $40 per subscription I sold - but rather The Green Bag's profits per subscription. Or, as the D.C. Circuit put it,

the actual loss to the displaced (authentic) seller is the profit lost from the displaced sales -- not the retail value of the goods that would have been sold.

Here, though, the government put on no such evidence of Adobe's lost profits

the government offered no evidence of either the number of sales that Adobe Systems likely lost as a result of Fair's scheme or the profit that Adobe Systems would have made on any such diverted sales. The record contains only a spreadsheet tallying Fair's eBay sales and unsubstantiated, generalized assertions of government counsel regarding Adobe Systems' lost sales. . . . There thus was no evidentiary basis on which the district court could find that had Fair's customers not purchased pirated Adobe software from him at a greatly reduced price, all or any portion of them would have purchased full-priced versions from Adobe Systems.

Moreover, to the extent that the government thought that it could simply use the guidelines infringement loss number as a restitution amount, the court of appeals slapped it down

To the extent the government defends the use of gross proceeds as "consistent with the calculation of loss under the Sentencing Guidelines," Appellee's Br. at 15, it ignores the different approaches in the Guidelines and the M[andatory Victims Restitution Act]. Essentially, the government blurs the line between the "infringement amount" calculated under Sentencing Guidelines § 2B5.3 in criminal copyright cases, which is derived by multiplying the retail value of the infringed or infringing items by the quantity of infringing items, and the restitution amount calculated under the MVRA, which must reflect the actual, provable loss suffered by the victim.

But that's not all, gentle readers.

No Second Bite on Remand

The government, perhaps seeing which way the wind was blowing, asked the D.C. Circuit to limit the damage. If we lose, the government asked, please at least remand for a new hearing on restitution.

The government wanted another bite at the apple.

The D.C. Circuit was having none of it.

No special circumstances are present that would warrant reopening the record on restitution in Fair's case. The government's burden to prove actual loss under the MVRA was well-established before sentencing. See also Tr. Oct. 22, 2009 at 23 (government counsel stating, "[w]e welcome the burden to prove restitution."). The government was allowed to present evidence . . . . Indeed, whether the government had offered evidence demonstrating actual loss was the central issue addressed during the parties' restitution discussion at the sentencing hearing.

Because the government already had a full and fair opportunity to prove that restitution was appropriate, and it failed to do so, the D.C. Circuit vacated the restitution award and denied the government another chance to meet its burden.

Fair enough.

November 13, 2012

The Second Circuit on Fraud, the Federal Sentencing Guidelines, and Mass-Marketing

If Mitt Romney is right that 47% of Americans think of themselves as victims, then the Second Circuit's opinion in United States v. Lacy may be deeply unpopular.

Like Mitt Romney, Kirk Lacey and Omar Henry had a vision for the future.

Unlike Mitt Romney, their vision involved short sales, straw buyers, and a little light mortgage fraud.

Like Mitt Romney, Mr. Lacey and Mr. Henry were not able to see their vision realized.

MTC Real Estate, Inc.

Mr. Lacey and Mr. Henry worked at MTC Real Estate.

MTC would buy houses in a short sale, then find a straw buyer who had no intention of making mortgage payments. That person would buy the house at a price higher than the one MTC bought it for. MTC would make the difference, the straw buyer would default, and the bank that loaned the money was left holding the bag.

1400144_vintage_radio_2.jpgTo find enough straw buyers, MTC advertised on the radio. Straw buyers were promised $50,000 for buying a house. Some of the straw buyers were even paid what they were promised.

It was a simple and deeply illegal business.

Sentencing

Mr. Lacey and Mr. Henry - along with eight others - were charged with conspiracy to commit bank and wire fraud for this real estate plan.

Mr. Lacey and Mr. Henry - unlike the eight others - went to trial. They lost.

The government, at sentencing, asked for a two-level upward enhancement of their guidelines under U.S.S.G. § 2B1.1(b)(2)(A)(ii), which says:

If the offense. . . (ii) was committed through mass-marketing, increase by 2 levels;

Mr. Lacey and Mr. Henry argued that this enhancement shouldn't apply - the radio ads were directed at straw buyers who were not victims. The banks were the victims here, not the straw buyers. In fact, the straw buyers even made $50,000 each. Much of the time.

As the Second Circuit put it,

The district court agreed with the government, noting that "the MTC marketing campaign was critical to the success of the fraud" because the marketing was "how MTC found people with distressed properties that could be exploited." The district court therefore held that although the mass-marketing was not directed at the victims of the fraud (that is, the banks that made the mortgage loans), the mass-marketing was still "relevant conduct" to the offense and so the enhancement should apply.

Mr. Henry was sentenced to a year and a day - allowing him to receive good time credit from the Bureau of Prisons. Mr. Lacey was sentenced to 46 months.

The Second Circuit and Fraud Victims

The Second Circuit reversed finding, basically, that

After a careful reading of the Guidelines and other relevant authority, we hold that the mass-marketing enhancement is properly applied only when the targets of the mass-marketing are also in some way victims of the scheme. Because it is not clear on the current record whether the straw buyers who were the targets of the mass-marketing in this case were in some sense victims, we will remand to the district court for further factfinding.

The court of appeals looked at the language of the mass-marketing enhancement and noted that the offense has to be "committed through mass-marketing."

As at least one other Circuit has recognized, an offense is "committed through mass-marketing" when mass-marketing is used to recruit or deceive victims of the offense, not when mass- marketing targeted at audiences other than victims is used in connection with the fraud in some other, more tangential manner. See United States v. Miller, 588 F3d. 560, 568 (8th Cir. 2009).

So, to the Second Circuit's way of looking at this,

It is not enough that a scheme may be advanced by the use of mass marketing techniques; a scheme is committed through mass-marketing only when the mass marketing is directed toward individuals who will be harmed by the scheme.

Indeed, the language surrounding the enhancement for mass-marketing helped the Second Circuit reach this reading:

All the other subsections of § 2B1.1(b)(2) base enhancements on the number of victims. Indeed, the mass-marketing enhancement is posed as an alternative to the smallest number of victims in an escalating series of adjustments based on rising numbers of victims. The pattern thus strongly suggests that the enhancement scheme is designed to measure the scope of the wrong by the number of victims, and that the use of mass-marketing is relevant even when the number of actual victims is small, because fraudulent mass-marketing creates a large number of potential victims.

So the district court's reasoning was off, and the case has to be remanded.

Possible Defeat from the Jaws of Victory

But, of course, nothing is as simple in the land of federal criminal appeals.

The court went on to say that

If a mortgage fraud scheme predictably results in pecuniary harm to unwitting, deceived straw buyers, the straw buyers have sustained "actual loss" and are therefore "victims" within the meaning of the Guidelines. They are therefore properly considered under the mass-marketing enhancement.

Not content to let a district court judge figure out how to find that the enhancement applies, the Second Circuit went on to explain exactly what the district court would have to look for on remand:

Returning to the facts of the instant case, it is not clear on the present record whether at least some of the consumers who were the targets of mass marketing were in some sense victimized, notwithstanding that the main thrust of the fraud was directed at banks. To the extent that any straw buyer was in on the scheme or received the promised $50,000 payment, such a buyer could not be seen as a victim. But some straw buyers testified that their credit scores were ruined. Others testified that they intended in good faith to purchase the property and pay the mortgage

More happily, the court of appeals described at some length why radio ads may not be mass-marketing under the guidelines definition at all.

A fun time will doubtless be had in the district court on remand as it follows the Second Circuit's instructions to

consider two questions: first, whether the defendants engaged in "mass-marketing" within the meaning of the relevant Guideline, as interpreted by the commentary; and second, if the defendants did engage in "mass-marketing," whether the consumers who were the target of that mass-marketing were also in some sense victims of the overall criminal scheme, i.e., whether they were injured by the scheme.

Also, the court asked the Sentencing Commission to make this stuff clearer.

Also, why does the Second Circuit hyphenate "mass-marketing" but not "factfinding"?

November 12, 2012

Short Wins - It's a Good Week For Remands In Fraud Cases

It's a good week for reversals in fraud cases.

The Second Circuit sent two fraud cases back for resentencing, and vacated a conviction in its entirety! And they're cool issues -- for example, for the "mass marketing" enhancement under the fraud guidelines to apply, the government has to show not just that mass marketing happened, but that mass marketing happened to victims. A number of convictions were also vacated in a criminal tax prosecution, and the Second Circuit found a violation of the defendant's public trial right.

The D.C. Circuit entered the fraud remand fray, sending a criminal copyright case back because of errors in the restitution order.

Exciting stuff.

For those who are obsessive about extraterritorial criminal law (a growing number of folks, these days), the Eleventh Circuit vacated a few convictions for people convicted of violating U.S. drug trafficking laws for things they did in Panamanian waters.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Bellaizac-Hurtado, Eleventh Circuit: As a result of observations by the United States Coast Guard in the territorial waters of Panama, four people were convicted in the United States of engaging in a drug trafficking conspiracy. Panama consented to prosecution in the United States. Because drug trafficking is not "an offense against the Law of Nations" under the Maritime Drug Law Enforcement Act, Congress exceeded its power under the Act's Offenses Clause when it proscribed the conduct in the territorial waters of Panama. Consequently, the Act is unconstitutional as applied to these four individuals and, as a result, the convictions were vacated.

2. United States v. Marquez, First Circuit: In crack cocaine distribution case, appellant was sentenced to 121 months in prison based on the district court's finding that he had acquired for distribution 304 grams of crack in two 152-gram allotments. Although it was not error to attribute the first 152-gram allotment to appellant, the court committed clear error in attributing the other 152-gram acquisition to appellant because there was no evidence to support the finding that the additional quantity was actually 152 grams. This secondary finding had a "dramatic leveraging effect," as it triggered a 120-month mandatory minimum. Consequently, appellant's sentence was vacated and the case remanded for resentencing.

3. United States v. Lacy, Henry, Second Circuit: In mortgage fraud case, the district court erred in applying a two-level enhancement to appellants' sentences for an offense "committed through mass-marketing" under Guideline § 2B1.1(b)(2)(A)(ii) without making sufficient findings to show that the targets of the mass-marketing scheme were also in some way victims of the scheme. Consequently, remand for additional findings was required. The court also failed to credit any of the value of the collateral in formulating its restitution orders, warranting remand for recalculation of the restitution amount.

4. United States v. Gyanbaah, et al., Second Circuit: Appellant was convicted of five offenses arising out of his participation in a fraudulent tax return scheme. Because there was insufficient evidence to convict him of bank fraud and aggravated identity theft related to the bank fraud, his convictions on these counts were vacated and the case remanded for resentencing.

5. United States v. Gupta, Second Circuit: In immigration fraud cause, appellant's sixth amendment right to a public trial was violated when the district court intentionally excluded the public from the courtroom during the entirety of jury selection without first considering the following factors: (1) the party seeking to close the proceeding must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) the trial court must make findings adequate to support the closure. Consequently, appellant's conviction was vacated.

6. United States v. Fair, DC Circuit: In copyright infringement and mail fraud case, the district court erred in entering a restitution order against appellant because the government failed to meet its burden under the Mandatory Victim Restitution Act to present evidence from which the court could determine the victim's actual loss. Consequently, the restitution order was vacated.

7. United States v. Woodard, Tenth Circuit: Appellant's conviction for possession of more than 100 kilograms of marijuana with intent to distribute was reversed because there was a reasonable probability that the jury would have reached a different result had appellant been allowed to cross-examine a witness about a prior judicial determination that the witness was not credible.

November 9, 2012

Federal Conspiracy Law and the Tenth Circuit; or, How Many Conspiracies Can One Man Be A Part Of?

Federal conspiracy law is a crazy thing.

It seems simple enough - a person is guilty of a federal criminal conspiracy if they agree with someone else to commit a federal crime and take some steps to carry out committing that crime.

But the agreement doesn't have to be explicit - it can be inferred from the way people act. Sort of in the same way that when my daughter puts cookies in our shopping cart at the grocery store while I'm watching we have an agreement that we're going to buy cookies.

704767_old_meets_new.jpgAnd if my daughter puts cookies and soda in the cart, is that two conspiracies - a conspiracy to buy soda and a conspiracy to buy cookies - or is it one big conspiracy to buy sweets?

The Supreme Court talked about - and was confused by - how federal conspiracy law works earlier this week, particularly how it intersects with the federal statute of limitations.

The Tenth Circuit, in United States v. Frierson, dealt with another part of federal conspiracy law - one much closer to the example about my daughter at the grocery store.

Mr. Frierson was convicted of both conspiracy to distribute crack cocaine and conspiracy to distribute more than 50 grams of crack cocaine. They were separate counts. He was convicted at trial of both.

Is that one conspiracy or two?

As it happens, when a person is accused of one crime, in two places in the same indictment, that indictment is called "multiplicitous."

As the Tenth Circuit explained:

"Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior." United States v. Barrett, 496 F.3d 1079, 1095 (10th Cir. 2007) (internal quotation marks omitted). "[M]ultiplicity is not fatal to an indictment." Id. (internal quotation marks omitted). Indeed, "[t]he government may submit multiplicitous charges to the jury." United States v. Nickl, 427 F.3d 1286, 1301 (10th Cir. 2005). But "multiplicitous sentences violate the Double Jeopardy Clause," McCullough, 457 F.3d at 1162 (internal quotation marks omitted), so "if a defendant is convicted of both charges, the district court must vacate one of the convictions," Nickl, 427 F.3d at 1301.

Mr. Frierson's two conspiracy convictions were for the same general time period. The only difference between then is that one explicitly involved more than 50 grams of crack, and the other didn't set out a quantity of the drug.

To establish that the two conspiracies . . . were distinct - that is, that the conspiracy convictions were not multiplicitous - the jury had to find the "existe[nce] [of] more than one agreement to perform some illegal act or acts." United States v. Fleming, 19 F.3d 1325, 1330 (10th Cir. 1994) (internal quotation marks omitted). To do so, the "jurors [had to be] adequately instructed that they could not find [Defendant] guilty of more than one count of conspiracy unless they were convinced beyond a reasonable doubt that he entered into two separate agreements to violate the law." United States v. Swingler, 758 F.2d 477, 492 (10th Cir. 1985).

Yet, here, the jury was not so instructed.

As the Tenth Circuit said,

The instruction to the jurors that they "separately consider each defendant and each Count," R. Vol. 1 at 243, did not alert them that they needed to find that the two conspiracies involved distinct agreements. And there was nothing in the government's closing argument to suggest that the conspiracy alleged in Count 11 was anything other than part of the larger conspiracy alleged in Count 28, or that Defendant had two separate agreements to distribute illegal drugs. Thus, the two convictions on Counts 11 and 28 are plainly multiplicitous.

Mr. Frierson's case was remanded to the district court judge for him to be sentenced on one or other of the conspiracies - but not both. And the other has to be vacated.

And, yes, gentle reader, in the end that may be a $100 difference.

November 5, 2012

Short Wins - The Election, Conspiracies, and Sentencing Remands

It's another relatively slow week in the federal appeals courts of our great nation. Perhaps folks are too saturated with election coverage to issue opinions.

Of the three courts that issued opinions this week, only one is in a battleground states (or quasi battleground state) - the Tenth Circuit in Colorado.

The Eleventh Circuit based in Georgia and the Fifth Circuit in New Orleans surely are not drowning in direct mail pieces or television ads.

Perhaps their productivity isn't crippled by constant refreshing of Real Clear Politics.

And, perhaps that explains why we haven't heard from the Sixth Circuit -- normally a prolific creator of news for this blog -- which is based in the uber-battleground state of Ohio.

In any event, there are a few great cases from the last week, especially the Tenth Circuit's multiplicity opinion in United States v. Frierson. As the feds use conspiracy charges ever more frequently, multiplicity arguments are a good way to reign in the metaphysical problems of profligate conspiracy theories (e.g., If a thousand angels are dancing together on the head of a pin, how many conspiracies to dance together can there be?).

And, looking forward, there's a huge event on Tuesday. That's right -- the Federal Public Defender for DC, A.J. Kramer, will be arguing a withdrawal from a conspiracy case in the Supreme Court. I would expect there will be coverage lots of places, including here.

Also, if you're an undecided voter and didn't know it, the election is Tuesday.

With that, on to the victories:

1155650_berlin_siegessule.jpg1. United States v. Frierson, Tenth Circuit: In case involving two convictions for conspiracy to distribute crack cocaine, appellant's convictions were plainly multiplicitous because the jury was not instructed that they could not find appellant guilty of more than one count of conspiracy unless they were convinced beyond a reasonable doubt that he entered into two separate agreements to violate the law. Because neither the instructions nor the government suggested that the first conspiracy count was anything other than part of the larger conspiracy alleged in the second, the Tenth Circuit remanded with instructions to vacate appellant's conviction and sentence on either the first or the second conspiracy counts.

2. United States v. Murray et al, Fifth Circuit: Three defendants were convicted of crimes arising out of their participation in a Ponzi scheme and, at the time of sentencing, were not ordered to pay restitution. Because the district court sentenced the defendants without ordering restitution and found that, from the facts on the record, 18 U.S.C. § 3663A(c)(3) applied, the "shall order" provision in § 3663A(a) did not authorize the court to reopen its judgment more than sixth months later to add an order of restitution.

3. United States v. Miller, Eighth Circuit: In case arising out of a husband and wife's methamphetamine-related convictions, the district court committed two procedural sentencing errors in determining that the wife's advisory guidelines sentencing range was 188-235 months in prison: (1) the court failed to apply Guideline § 2D1.1(a)(5), which may have substantially increased her advisory guidelines range; and (2) the "confused sentencing record" casts doubt on the court's drug quantity finding. For these reasons, the wife's sentence was vacated and remanded for resentencing.

October 31, 2012

The Worst That Can Happen If You're Late To Court Just Got A Little Less Bad; the Fourth Circuit on Criminal Contempt For the Tardy

Robert Peoples is no stranger to car trouble.

After his release from prison, he brought three lawsuits against South Carolina prison officials for violating his civil rights.

On the day of jury selection for his civil rights suit, Mr. Peoples was late. The federal judge hearing the case told Mr. Peoples that he had to be in court the next morning by 9:30.

816170_tire_puncture.jpgThe next day, Mr. Peoples was late. The District Judge, Judge Currie, told him that if he was late again the case would be dismissed.

Mr. Peoples was on time the next day.

Though the day after that he called the courthouse fifteen minutes before he was supposed to be there. Mr. Peoples reported that he had a flat tire and that roadside assistance was on its way.

The district court, in an effort of largess that it would later regret, confirmed that Mr. Peoples had car trouble and dispatched the Marshals to give him a ride to court.

Judge Currie found that Mr. Peoples had left his house in time to get to court, but was delayed by an unanticipated event. The case was not dismissed for his failure to appear and prosecute the case.

The trial went on.

On April 12, sadly, Mr. Peoples was late again. The judge heard argument from the parties about whether to dismiss the case, then decided that Mr. Peoples was willfully late. Judge Currie dismissed the case with prejudice.

What Not To Do After Losing In Court

A person has a number of options when a judge rules against her. She can file an appeal. She can ask for reconsideration. She can decide it's tough marbles and go home.

Mr. Peoples did not pursue these options. Instead, according to the Fourth Circuit, he went into the

courtroom, and approached Deputy Clerk Sara Samsa, who was gathering jury certificates to bring to Judge Currie. Peoples interrupted Samsa and repeated several times, "Tell Judge Currie get the f--- off all my cases. I started to tell her something there. I started to tell her ass something today."

Moreover,

Although the audio of the recording is somewhat garbled, it also contains an additional statement from Peoples in which he tells Judge Currie to "straighten the f--- up" or "straight the f--- up."

(As an aside, I think this is a very dignified way of handling the profanity inherent in this opinion. One would expect such classiness from Judge Diana Motz.).

This caused quite a bit of trouble. Court security was called. Details of finishing the case's dismissal were delayed. The FBI was called to take a statement from the courtroom clerk.

Judge Currie issued a show cause order as to why Mr. Peoples shouldn't be held in contempt. Then Judge Currie recused herself from that proceeding, since the profanity had Judge Currie as its object.

The Varieties of Federal Criminal Contempt

There are two kinds of criminal contempt available to a federal judge - both are under Federal Rule of Criminal Procedure 42.

A 42(a) contempt proceeding is like a criminal trial - the person has a lawyer, has notice and opportunity to be heard, and a prosecutor is appointed.

A 42(b) proceeding is different. Rule 42(b) says that a court "may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies. . . ."

Mr. Peoples proceeding on his regrettable statements about Judge Currie was a 42(a) proceeding. He had a lawyer, notice of the charges, and a prosecutor was appointed.

Old Habits Die Hard

Sadly, Mr. Peoples had car trouble on his way to the contempt proceeding and was late. The judge said that there would be a second contempt proceeding on his tardiness after the first contempt proceeding.

He was found in criminal contempt on the first count having to do with his suggestions about how Judge Currie comport herself. (it's a fascinating read - please check out the opinion for how the court got there if you're interested)

With no break in the proceedings, but with a bit of time for Mr. Peoples to talk to his lawyer while court was still in session, the second contempt proceeding started.

Mr. Peoples was found in contempt of court in that proceeding.

A Summary Hearing

On appeal, in United States v. Peoples, the Fourth Circuit reversed that second contempt finding.

Because the procedural requirements of 42(a) weren't followed, the contempt finding was only allowable if it was a summary disposition for contempt.

And a summary contempt disposition is only allowable if it's for someone who does something contemptuous in the presence of the judge who issues the contempt order.

As the Fourth Circuit has said,

We, and the majority of our sister circuits, do not consider tardiness or absence from court to provide an adequate basis for summary disposition under Rule 42(b). See In re Gates, 600 F.3d at 339 (holding that mere tardiness, like failure to appear, does not occur "in the actual presence of the court" and therefore is not subject to summary punishment (internal quotation marks omitted)); see also In re Contempt Order, 441 F.3d 1266, 1268 (10th Cir. 2006) (explaining that attorney's failure to appear "by no stretch . . . occur[red] within the presence of the court"); In re Chandler, 906 F.2d 248, 249-50 (6th Cir. 1990) ("'A lawyer's failure to attend court is not a contempt in the presence of the court.'" (quoting United States v. Onu, 730 F.2d 253, 255-56 (5th Cir. 1984))); United States v. Nunez, 801 F.2d 1260, 1264 (11th Cir. 1986) (per curiam) ("[T]he majority of circuits which have considered the issue have concluded that counsel's tardiness or absence cannot be characterized as contempt in the presence of the court.").

So, Mr. Peoples second contempt finding could not stand and was reversed, even while his first contempt determination is still good.

If you're thinking about being late to court, think about Mr. Peoples. You may have your case dismissed against your wishes, but at least you can't be held in contempt on a summary disposition.

October 27, 2012

Short Wins - Pro Se Criminal Contempt Reversed And Other Cases

It's a dog's breakfast of victories in the nation's federal criminal appellate courts.

Personally, I love a good case on the district court's contempt power -- look to see the Fourth Circuit's contempt reversal in United States v. Peoples profiled in more depth a little later in the week. The case has everything -- a pro se litigant, a finding of contempt, and profanity (which is tastefully referred to in the opinion). It reminds me of another great pro se contempt case from last year. It reminds me, too, of the Sixth Circuit's relatively recent case on the limits of a district court's power to sanction a lawyer. Always good stuff.

Which is not to give short shrift to the two other wins from last week -- resentencing in an illegal reentry case and unsupported supervised release conditions in a federal sex case.

And, of course, this week the Supreme Court is hearing more arguments and it's a relatively criminal heavy week. Tuesday has a Padilla case, as well as a nice Fourth Amendment question -- can the cops detain someone incident to a search warrant if the person is not actually present when the search warrant is executed. Wednesday is dog sniff day.

Of course, that assumes that Frankestorm doesn't blow the Eastern Seaboard away. Wish us luck with that.

1155650_berlin_siegessule.jpgOn to the victories:

1. United States v. Peoples, Fourth Circuit: On appeal of appellant's two criminal contempt convictions, the Fourth Circuit held that, as to the second conviction, the district court committed plain error when it summarily imposed a contempt sanction for appellant's tardiness because the court failed to provide appellant with notice and an opportunity to be heard, and because this failure affected appellant's substantial rights.

2. United States v. Rodriguez-Escareno, Fifth Circuit: In illegal reentry case, the district court applied a 16-level enhancement to appellant's sentence because it considered his earlier crime, conspiracy to distribute methamphetamine, to be a "drug trafficking offense" under Guideline § 2L1.2(b)(1)(A)(i). The court erred in applying the enhancement because the elements of the conspiracy conviction under 21 U.S.C. § 846 are not consistent with the meaning of "conspiring" under the relevant Guideline: the Guideline requires an overt act, while § 846 does not. This was plain error because it was obvious and affected appellant's substantial rights: had his sentence been properly calculated, his Guidelines range would have been 15-21 months, as opposed to the 41-51 months determined by the court. Appellant's 48-month sentence was vacated and the case remanded for resentencing.

3. United States v. Child, Ninth Circuit: Appellant was convicted of attempted sexual abuse. A condition of supervised release prohibited him from residing with or being around children under age 18, including his daughters, and from socializing with or dating anybody with children under age 18, including his fiancée, without prior approval from his probation officer. The court failed to make specific findings on the record addressing the necessity of restricting appellant's ability to have contact with his children and fiancée. Because of the significant liberty interest implicated, these errors - as well as the absence in the record of any evidence supporting the condition - rendered the condition substantively unreasonable. The condition was also overbroad. For these reasons, the condition was vacated and the case remanded.

October 25, 2012

D.C. Circuit Tells A District Judge, "You've Got The Power [To Impose A Sentence Lower Than The Guidelines Range]"

Pretty much every federal district judge in the country knows by now that the sentencing guidelines are not mandatory, the guidelines can't be presumed to be accurate, and that federal district court judges have authority to impose a sentence above, below, or within the sentencing guidelines, applying the factors set out in 18 U.S.C. § 3553(a).

1268685_washington_monument.jpgAnd so just about every federal district judge knows that if he or she says she's going to give a guidelines sentence, he or she has to also say it's the sentence that they'd give under § 3553(a).

It's odd, but in federal court it's very important that a judge knows what power he has, which is exemplified in the D.C. Circuit's opinion in United States v. Terrell. If a district judge is going to give a guidelines sentence, he or she has to be clear about whether a lower sentence is even possible.

Mr. Terrell had a crack (conviction) problem. He pled guilty to dealing a bit of crack and went to sentencing.

At sentencing, he asked the judge to give him less time than the sentencing guidelines called for. The guidelines in his case called for a sentence of 210 months on the low side (ok, perhaps it was more than "a bit" of crack).

The judge, though, told Mr. Terrell that he didn't think he could help him out. As the D.C. Circuit summarized it,

the court stated that it would sentence Terrell below the applicable Guidelines range only if it found "compelling reasons" to do so. See, e.g., Tr. 6/27/06, at 4:6-14 ("There would have to be compelling reasons for the Court not [to] impose an advisory guideline sentence."); id. at 7:8, 7:18-20 ("Now, I'm not so sure compelling reasons exist here. . . . [I]f you think there's a basis for the Court to impose something other than an advisory guideline sentence it's going to have to be for compelling reasons."); see also Tr. 8/4/05, at 4:16-18 ("In all likelihood, I'm going to follow the guidelines even though they're advisory. In all likelihood I'm going to do that."). The court explained that it had found "compelling reasons" to deviate from the Guidelines in only two prior sentencings. Tr. 6/27/06, at 4:6-14.

If there's one thing a federal appellate court doesn't like, it's being ignored. Just three months before Mr. Terrell's hearing, the D.C. Circuit had decided, in United States v. Pickett, 475 F.3d 1347, 1353 (D.C. Cir. 2007), that a district court can't decide that the sentencing guidelines are presumptively reasonable - put another way, it can't say that it'll only go below the sentencing guidelines if it has compelling reasons.

For the district court to keep on applying a "compelling reasons" standard was, perhaps, a bit of a snub to the august appellate court.

As the court of appeals put it,

Even after we issued our decision in Pickett, the court indicated that it was continuing to apply its "compelling reasons" approach. See Tr. 3/27/07, at 10:2-3 ("The question becomes why shouldn't the Court impose a [within-Guidelines] sentence of 210 months? . . . I just can't think of any compelling reasons why I should not impose a sentence of 210 months.").

Because the district court was wrong about when it could go below the sentencing guidelines - employing a "compelling reasons" approach after the D.C. Circuit had already said that wasn't the law - the D.C. Circuit remanded because, "the [district] court took too narrow a view of its authority to deviate from the Guidelines"

Mr. Terrell will be resentenced.

October 22, 2012

Short Wins - The DC Circuit Has Two Criminal Reversals In One Week

The D.C. Circuit, normally an infrequent presence on this blog, has two cases in one week!

One involves Osama bin Laden's driver and his happy adventures with retroactivity. The was a remand for a judge who thought that a below guidelines sentence is only appropriate when there are "compelling reasons" to go below the guidelines range.

There's also go action in a Sixth Circuit meth case involving the Fourth Amendment, and a crime of violence case out of the Tenth Circuit.

Fire up those 28(j) templates - here are this week's Short Wins:

1155650_berlin_siegessule.jpg1. Consolidated Sixth Circuit Cases: United States v. Beals; United States v. Miller; United States v. Ambrose: In case arising out of an alleged methamphetamine manufacturing and distribution conspiracy, Pamela Miller, Leslie Beals, and Bobby Ambrose challenged their convictions for drug-related offenses. The Court dismissed Miller's appeal and affirmed Beals' convictions. The Court affirmed Mr. Ambrose's convictions but remanded for the district court to make findings on "unresolved matters" related to the execution of the search warrant, the fruits of which were presented at trial. The Court further ruled that, if the district court determines on remand that the officers exceeded the warrant's scope, it should determine whether blanket suppression of all of the evidence presented against Mr. Ambrose is warranted and, if so, how this affects his convictions and sentences.

2. United States v. Hamdan, DC Circuit: Salim Hamdan, an al Queda member who worked for Osama bin Laden, was convicted by a military commission for "material support for terrorism," a war crime specified by the Military Commissions Act of 2006, based on actions he took from 1996 to 2001 - before the enactment of the Military Commissions Act. Because the D.C. Circuit read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under the relevant statute that was on the books at the time of his conduct (10 U.S.C. § 821), the Court reversed the military commissions court's judgment and directed that Hamdan's conviction be vacated.

3. United States v. Joe, Tenth Circuit: In aggravated sexual abuse case, the district court erred when it enhanced the appellants' offense levels for physical restraint of the victim and use of force against the victim because it is impossible to commit aggravated sexual abuse without also applying force that constitutes physical restraint of the victim. Because this error was not harmless, the Tenth Circuit remanded the case to the district court for resentencing.

4. United States v. Terrell, D.C. Circuit: In possession with intent to distribute crack case, the district court committed plain error in sentencing appellant because it took too narrow a view of its authority to deviate from the Sentencing Guidelines. In particular, the Court stated that it would sentence appellant below the Guidelines only if it found "compelling reasons" to do so. This approach was forbidden before appellant's sentencing. Because this error affected appellant's substantial rights and seriously affected the fairness, integrity, or public reputation of the judicial proceedings, resentencing was warranted.

5. United States v. Duran, Tenth Circuit: The district court erred in applying a crime of violence sentencing enhancement when it sentenced appellant pursuant to his guilty plea to possession of a firearm by a convicted felon. Because appellant's prior conviction for aggravated assault can be committed with a mens rea no higher than recklessness under Texas law, the crime is not a crime of violence under U.S.S.G. § 4B1.2(a). As a result, the enhancement did not apply, and remand for resentencing was warranted.

6. United States v. Quinn, Seventh Circuit: In child pornography case, the district court erred in failing to explain its decision to sentence appellant to a lifetime of supervised release. The term of supervised release was vacated, and the case remanded for resentencing with instructions for the court to consider (1) how appellant's arguments that he has a lower-than-normal risk of recidivism affect the appropriate length of supervised release, (2) the interaction between the length and terms of supervised release, and (3) the possibility of setting sunset dates for some of the more onerous terms of supervised release.