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.


October 19, 2012

If You Make A Colorable Argument For A Lower Sentence, A District Court Has To Show That It Considered The Argument, Even If The Crime Is Using MySpace To Try To Have Sex With Underage Girls

Michael Begin was a MySpace user. He used MySpace not so much to keep up with fan information about Twilight, but to make the acquaintance of a fourteen-year-old girl.

Though described as a twenty-year old Marine sniper on his MySpace profile, Mr. Begin was actually a 33 year old man with a history of convictions involving underage girls.

1382778_old_brick_cell_phone.jpgMr. Begin and the fourteen year old talked on MySpace often. Their conversations were sexual in nature. He also used his cell phone to send her two pictures which were perhaps inspired by Congressman Weiner. The girls' mother became concerned. Her daughter told Mr. Begin that she was underage. Mr. Begin was undeterred.

The mother contacted the FBI. An FBI agent took over the girls' MySpace page. In addition to posting praise of Robert Mueller, the FBI Agent, posing as the 14-year-old girl, told Mr. Begin that she is underage.

Mr. Begin was undaunted.

The agent, as the girl, made plans to meet Mr. Begin at a restaurant in Bradford, Pennsylvania.

Mr. Begin showed up carrying a knife, a pair of handcuffs, and a condom. After being Mirandized, he admitted he was meeting the girl to have sex with her.

He pled guilty to a two-count indictment:

Count One charged that Begin violated 18 U.S.C. § 2422(b) by using the internet and a cellular phone to attempt to persuade a minor "to engage in any sexual activity for which any person can be charged with a criminal offense, to wit, statutory sexual assault, in violation of [18 Pa. Cons. Stat. § 3122.1], aggravated indecent assault, in violation of [18 Pa. Cons. Stat. § 3125(a)(8)], and indecent assault[,] in violation of [18 Pa. Cons. Stat. § 3126(a)(8)]." App. 17. Count Two charged that Begin violated 18 U.S.C. § 1470 by using a cellular phone to transfer an obscene image to a minor.

At sentencing, Mr. Begin argued for a variance. As the Third Circuit in United States v. Begin summarized it,

Begin argued that the sentence for his attempt to induce statutory rape under 18 U.S.C. § 2422(b) should not exceed the fifteen-year statutory maximum penalty for actually committing statutory rape within the special maritime and territorial jurisdiction of the United States under 18 U.S.C. § 2243.

The Third Circuit thought this argument was colorable - it was a plausible argument and the district court was, therefore, obligated to talk about it when imposing sentence.

The district court disagreed, and completely ignored the argument when sentencing Mr. Begin to twenty years, double the sentence that he was asking for.

The Third Circuit found that this was not a procedurally kosher way to sentence someone.

Having concluded that Begin's . . . disparity argument has colorable legal merit under § 3553(a)(6), we agree with him that the District Court failed to make a sufficient record to demonstrate its consideration of that argument. Though the Court summarized Begin‟s state-federal disparity argument at the beginning of the sentencing hearing, it did not acknowledge that he had also made a federal-federal disparity argument. The Court asked no questions during defense counsel‟s oral argument in favor of downward variance on this ground and made no comments about the issue following that presentation. Strikingly, the Court did not even specifically rule on Begin‟s request for a variance.

Though, what the Third Circuit gives, it also takes away:

We emphasize that colorable legal merit is distinct from actual merit. There is reason to believe that the predatory nature of Begin‟s conduct and the knife and handcuffs found in his possession distinguish his offense from a run-of-the-mill statutory rape. Indeed, the stiff penalties under § 2422(b) are intended to punish and deter predators who use the reach and anonymity of the internet to perpetrate sex crimes against children. . . . Thus, when we say that Begin‟s claim has colorable legal merit, we mean only that, upon appropriate findings of fact, the District Court would be within its discretion to accept the argument and to factor it into the ultimate sentence.

But Mr. Begin will be going back to the district court for it to make a proper record when imposing sentence. We'll see whether it accepts the Third Circuit's suggestions for how to do that.

October 18, 2012

What's It Worth To You? The Seventh Circuit Looks At The Value Of Things Bought Through Bribery

How do you determine the value of a thing?

Normally, in our free-market (or heavily regulated free-market) economy, we think that the value of a thing is set by what people are willing to pay for it.

If I'll see you my collection of neckties for $10,000, and you'll pay $10,000 to buy my collection of neckties, then we know my collection of neckties is worth $10,000.

But does that way of determining value work when talking about government action bought by a bribe?

Maybe.

The Seventh Circuit's case in United States v. Owens illustrates why this is a hard problem.

1388504_chicago_city_skyline_2.jpgHow To Do Business In Chicago

Dominick Owens worked for the City of Chicago as a zoning inspector. Christoir McPhillip was an "expediter" - a guy who worked with folks who needed things from zoning inspectors to make sure they got the things they needed.

Not surprisingly, for someone working in the shadow of the law, he came into some trouble and wound up cooperating with the federal government. (I'm assuming he came into trouble. The opinion only says that he was a cooperator. My bet is that he wasn't doing it out of a sense of patriotism.)

Mr. McPhillip recorded Mr. Owens taking $600 for issuing certificates of occupancy for single family homes. He recorded him twice taking one bribe each time. Mr. Owens was indicted for two counts of violating 18 U.S.C. § 666(a)(1)(B) - once for each bribe.

The $5,000 Question

Mr. Owens was convicted at trial and appealed. His only issue on appeal was whether the government proved that he violated the bribery statute.

The only element he said the government didn't prove was the value threshold.

According to 18 U.S.C. § 666(a)(1)(B), the thing that was provided in exchange for a bribe - here the certificates of occupancy - has to be worth more than $5,000.

The Value Of A Thing Bribed For

How do you determine the value of the government action that was purchased by a bribe? There are two ways.

First, you can look at the value of the bribe. This is a basic market analysis. If you'd pay $14,000 for the government to indict your ex-wife, then the value of an indictment against your ex-wife is at least $14,000.

As the Seventh Circuit describes it:

at how much someone in the market was willing to pay for the benefit and an official was willing to take to provide the benefit--the value of the bribe. This means that the bribe amount may suffice as a proxy for value; at least it provides a floor for the valuation question.

Of course, that answer cuts against the government in Mr. Owens' case - the bribes were only $600.

The second way is to look at the value of the thing purchased or the value of the benefit to the person paying the bribe received from what he got from the bribe.

In United States v. Curescu, 674 F.3d 735 (7th Cir. 2012), for example, a developer had used an unlicensed plumber to add plumbing to four newly constructed residential units. A plumbing inspector discovered the violation and told the developer that he had to redo the plumbing using a licensed plumber. Id. at 738. Rather than removing the old plumbing and replacing it using a licensed plumber, a different plumbing inspector was bribed to certify falsely that a licensed plumber had completed the plumbing in the four units, which allowed the illegal plumbing to remain. Id. Thus, the value of the false certification was the money the developer did not have to spend redoing the plumbing, an amount that exceeded $5,000.

The government in Mr. Owens case argued that the mortgages at issue in Mr. Owens bribes ranged from $200,000 to $600,000. So, since certificates of occupancy were necessary for the mortgages to be funded, the government said, the certificates of occupancy were worth well more than $5,000.

Not so fast, said the Seventh Circuit.

It cannot be that simple, though, as anyone who complies with the Board of Zoning procedures and has a home that passes inspection can receive a certificate of occupancy for free. Obtaining the issuance of the certificates through greasing a palm rather than through legitimate means must therefore create value in some other way.

What's the other way that a certificate of occupancy issued through a bribe can be valuable?

Perhaps, as the Government suggests, it is obtaining a certificate without an inspection. This could be valuable in at least two ways. First and most obviously, if the home's construction was defective and the home would not pass inspection, paying a bribe and avoiding an inspection would save the cost of performing repairs. Alternatively, a home could be free of zoning violations, but a developer or homeowner places a premium on expediting the issuance of a certificate due to a pressing need to sell or occupy the home or obtain a mortgage with favorable and time sensitive terms.

So, if it's the first way, the value of the benefit from the bribe would be the value of the repairs avoided. If it's the second way, the value would be the value of not losing the time it would take to wait for a legitimate certificate.

The problem for the Government, though, is that it failed to present any evidence of either of these situations in this case, or of any situation in which the issuance of the certificates as a result of the bribes benefitted the developers or homeowners in some way that the issuance of the certificates through legitimate means would not have.

And, without that proof, Mr. Owens conviction was reversed by the Seventh Circuit.

October 15, 2012

Short Wins - Federal Sex Crimes Are Still Good Candidates for Reversal, And Bribery Gets Reversed Too

Last week saw a continuation of the short win trends we've seen in the past -- federal sex crimes are frequently represented. Though this week is heavier on reversals involving enticing a minor.

1155650_berlin_siegessule.jpgThe Ninth Circuit lets a man expand the record to investigate an ineffective assistance claim, the Third Circuit finds that an argument that trying to get someone to engage in statutory rape shouldn't be worse than actually committing statutory rape makes some sense, and a bribery conviction is reversed in the Seventh Circuit because the evidence was insufficient. It's not a bad week in federal criminal appeals.

1. Buenrostro v. United States, Ninth Circuit: Appellant filed several postconviction claims after he was convicted of conspiracy to manufacture methamphetamine and sentenced to a mandatory minimum term of life imprisonment without parole based on his two prior felony drug convictions. Of those claims, the Ninth Circuit granted appellant's motion to expand the record, which sought to reassert a previously raised ineffective assistance of trial counsel claim based on counsel's alleged failure to communicate a plea offer.

2. United States v. Begin, Third Circuit: Appellant appealed his sentence on charges related to his attempt to persuade a minor to have sex with him. At sentencing, he requested a downward variance based on an asserted disparity between his sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under federal law. The district court erred in failing to consider this request at sentencing because (1) the argument had colorable legal merit and (2) the court failed to make a sufficient record to demonstrate that it considered the argument. Because the sentence was procedurally unreasonable, appellant's sentence was vacated and the case remanded for the district court to consider appellant's request for a downward variance.

3. United States v. Owens, Seventh Circuit: Appellant, a zoning inspector, was convicted of two counts of federal program bribery for accepting two $600 bribes in exchange for issuing certificates of occupancy for newly constructed homes. Because there was insufficient evidence to show that the certificates had a value of $5,000 or more as required by the applicable statute, appellant's conviction and sentence were reversed.

4. United States v. Zobel, Sixth Circuit: After pleading guilty to knowingly coercing and enticing a minor to engage in sexual activity, appellant was sentenced to a term of imprisonment and special conditions of supervised release were imposed, including a condition banning him from possessing or viewing "sexually suggestive" materials. Because the condition affects substantial First Amendment rights and calls into question the fairness of the proceedings given the severity of the restriction, the condition was vacated.

5. United States v. Mendiola, Tenth Circuit: Appellant's supervised release, which was imposed pursuant to his conviction for being a felon in possession of ammunition, was revoked. The district court imposed a term of imprisonment, and recommended that appellant participate in a drug treatment program while incarcerated. Because the court committed plain error in basing the length of the sentence on appellant's need to participate in a drug program, the sentence was reversed and the case remanded to the district court for resentencing.

October 12, 2012

You Can Only Be Convicted Of Defrauding A Financial Institution If The Thing You Defraud Is A Financial Institution

Hurricane Georges was bad for Puerto Rico. It destroyed the way of life for a number of Puerto Rican farms. The federal government offered low-interest loans to farmers who were hurt by the hurricane.

The federal government loaned this money through the Farm Services Agency. The Farm Services Agency - as the name suggests - is an agency that provides services to farms. And farmers.

1070316_orange_twister.jpgThe Farm Services Agency hired folks on the ground in Puerto Rico to process loan applications. One such person was Juan Colon-Rodriguez - his friends, including the First Circuit, just call him Mr. Colon.

Mr. Colon was trained as an agronomist. He earned about $45,000 in commissions helping farmers put together loan applications to the Farm Services Agency.

Beware the loan officer who works on commission.

During an audit, the Farm Services Agency found problems with some of Mr. Colon's loan applications. An investigation followed. Mr. Colon was indicted in the United States District Court for the District of Puerto Rico with defrauding a financial institution in violation of 18 U.S.C. § 1344, and making a number of false statements in violation of 18 U.S.C. § 1014.

He was convicted at trial.

On appeal, Mr. Colon challenged his conviction for defrauding a financial institution and the First Circuit, in United States v. Colon, agreed that he shouldn't have been convicted of that charge.

According to the First Circuit, the elements of defrauding a financial institution are:

(1) the defendant must engage in a scheme or artifice to defraud, or must make false statements or misrepresentations to obtain money from (2) a financial institution and (3) must do so knowingly.

The trouble is, not everything that involves financing is a financial institution. Indeed, here,

the government . . . conceded [that] it offered no evidence that the FSA qualified as a "financial institution" at the time of the offense conduct in this case

Mr. Colon's conviction for defrauding a financial institution, therefore, was vacated.

Interestingly, after Hurricane Georges (and not relevant to it),

Congress amended the definition of "financial institution" in 18 U.S.C. § 20 to include a "mortgage lending business." See Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 2(a)(3); see also United States v. Bennett, 621 F.3d 1131, 1138 (9th Cir. 2010). A mortgage lending business is "an organization which finances or refinances any debt secured by an interest in real estate, including private mortgage companies and any subsidiaries of such organizations, and whose activities affect interstate or foreign commerce." 18 U.S.C. § 27. This case does not require us to decide whether the FSA is included within the expanded definition of "financial institution."

Mr. Colon won on one count of conviction. Sadly, however, it appears there was substantial evidence that supported Mr. Colon's other convictions.

As to the other counts,

To establish a violation of § 1014, the government must prove that (1) the defendant made a false statement; (2) the defendant acted knowingly; and (3) the false statement was made for the purpose of influencing action on the loan.

The government, according to the court of appeals, met these elements in the section 1014 counts.

For example, Mr. Colon helped a poultry farmer who claimed damage to his four poultry barns. Sadly, at the time of Hurricane Georges, the farmer only owned two barns.

He did later purchase two more, though that was with the money obtained from the loan by the Farm Services Agency.

Mr. Colon's case was not remanded, because the one conviction that was vacated didn't affect his sentence.

On reflection, of course, this is surely wrong. At least the case should have been remanded to refund Mr. Colon his $100 special assessment.

October 9, 2012

People Accused of Child Pornography Offenses Get To Examine The Software Used To Prosecute Them And Don't Have To Just Take The Government's Word On It (in the Ninth Circuit)

Max Budziak had some child pornography on his computer.

An FBI agent, using a program developed by the FBI called EP2P, logged onto his computer through the internet and downloaded child pornography from him on two separate days in July, 2007.

1165303_green_power.jpgLimeWire and EP2P

The FBI said that EP2P is a souped-up version of LimeWire - a file sharing program that is publicly available and lets people share files with each other's computers.

LimeWire normally pieces together bits of disparate fragments from different LimeWire users. So, for example, if you wanted to download "The Usual Suspects" from LimeWire, you would get fragments from different users.

For whatever reason, some folks think that poses an intellectual property problem. LimeWire has currently been shut down - check out their website.

According to the FBI, if a computer is hooked up to LimeWire, EP2P lets the FBI see all of the files that the LimeWire user is making available on the internet and, more importantly, download all of them from a single user.

The Search of Mr. Budziak's Home

Based on the information from EP2P, the FBI got a warrant and searched Mr. Budziak's home. They found a desktop computer with a copy of LimeWire installed on it.

There were five child pornography videos on the computer in a LimeWire shared folder.

Mr. Budziak was charged with two counts of distributing child pornography - to FBI agents - and one count of possessing it when the search was executed.

What's Up With EP2P?

Mr. Budziak's defense, in essence, was that he didn't understand that LimeWire has a default setting that shares your files with people.

This matters, because if he didn't intend to share the files, he isn't guilty of intentionally distributing child pornography.

He also wanted to get information about how EP2P works so that he could challenge the search of his house and the affidavit that authorized it.

The FBI, ever helpful, provided a number of affidavits of how EP2P works. Mr. Budziak's counsel said that they'd like to examine the software for themselves (or, rather, have their expert examine it).

His lawyer filed three separate motions to compel the government to provide access so that he could examine the software that allowed the government to prosecute him. Each motion was denied by the district court.

Mr. Budziak went to trial and was convicted of all counts. He was sentenced to five years in prison.

The Ninth Circuit Says You Don't Have To Trust The Government

On appeal, in United States v. Budziak, the Ninth Circuit vacated based on the district court's failure to order the government to provide access to the EP2P software.

The Ninth Circuit explained that once a person accused of a crime makes a threshold showing that evidence is material, the government is obligated to turn it over. As the court of appeals said:

Budziak argues that he made a sufficient showing that discovery of the EP2P software was material to preparing his defense. We agree. All three of Budziak's motions to compel provided more than a general description of the information sought; they specifically requested disclosure of the EP2P program and its technical specifications. Budziak also identified specific defenses to the distribution charge that discovery on the EP2P program could potentially help him develop. In support of his first two motions to compel, Budziak presented evidence suggesting that the FBI may have only downloaded fragments of child pornography files from his "incomplete" folder, making it "more likely" that he did not knowingly distribute any complete child pornography files to Agents Lane or Whisman. Stever, 603 F.3d at 753. In support of his third motion to compel, Budziak submitted evidence suggesting that the FBI agents could have used the EP2P software to override his sharing settings.

Perhaps more succinctly, the court of appeals noted that "[g]iven that the distribution
charge against Budziak was premised on the FBI's use of the EP2P program to download files from him, it is logical to conclude that the functions of the program were relevant to his defense."

The government argued that handing the EP2P program over wouldn't matter, since they turned over the logs and the software itself won't be any more useful. The court of appeals shot that down:

In cases where the defendant has demonstrated materiality, the district court should not merely defer to government assertions that discovery would be fruitless. While we have no reason to doubt the government's good faith in such matters, criminal defendants should not have to rely solely on the government's word that further discovery is unnecessary. This is especially so where, as here, a charge against the defendant is predicated largely on computer software functioning in the manner described by the government, and the government is the only party with access to that software.

Of course, Mr. Budziak isn't out of the woods yet. For him to reverse his conviction for good, he'll have to show that if he had access to the EP2P software it could have mattered. And on that question the Ninth Circuit remanded to the district court.

Here's to hoping the district court makes up its mind before Mr. Budziak has finished his sentence.