The Federal Criminal Appeals Blog

It's rare that a particular prosecutor is named in an opinion by a federal appeals court. Apparently the Department of Justice wishes it were more rare.

The Ninth Circuit issued a curious opinion last month, in United States v. Lopez-Avila.

Previously, the court of appeals had issued an opinion that was critical of a particular Assistant United States Attorney. The Department of Justice filed a motion asking that the Ninth Circuit remove the name of that prosecutor from the public opinion.

Here's the appellate court's response:

The Department of Justice has an obligation to its lawyers and to the public to prevent prosecutorial misconduct. Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first. United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993). Their job is not just to win, but to win fairly, staying within the rules. Berger, 295 U.S. at 88. That did not happen here[.]

It goes on, after noting that the appeal involved misconduct by the prosecutor in the trial court that was relatively obvious.

When a prosecutor steps over the boundaries of proper conduct and into unethical territory, the government has a duty to own up to it and to give assurances that it will not happen again. Yet, we cannot find a single hint of appreciation of the seriousness of the misconduct within the pages of the government's brief on appeal.

The Ninth Circuit then concludes,

upon initial release of this opinion, the government filed a motion requesting that we remove Albert's name and replace it with references to "the prosecutor." The motion contended that naming Albert publicly is inappropriate given that we do not yet know the outcome of any potential investigations or disciplinary proceedings. We declined to adopt the government's suggestion and denied its motion. We have noticed that the U.S. Attorney's Office in Arizona regularly makes public the names of prosecutors who do good work and win important victories. E.g., Press Release, U.S. Attorney's Office for the District of Arizona, "Northern Arizona Man Sentenced to Federal Prison for Arson," (January 31, 2012) ("The prosecution was handled by Christina J. Reid-Moore, Assistant U.S. Attorney, District of Arizona, Phoenix"), available at http://www.justice.gov/usao/az/press_releases/2012/ PR_01312012_Nez.html. If federal prosecutors receive public credit for their good works--as they should--they should not be able to hide behind the shield of anonymity when they make serious mistakes.

This is the Striesand effect - where an effort to make something not be public gets it even more attention - in action.

Perhaps the best recent example of the Streisand effect was when Dan Snyder, the owner of the Washington Redskins, sued over media coverage he disliked.

My reaction to seeing Snyder's suit was that he seems really entitled.

It's hard not to think the same thing of the Department of Justice here.

I've long thought the punishment for failing to turn off your high beams when you drive past another car at night should be much more draconian. Part of me is encouraged to see that the police of Massillon, Ohio apparently agree.

Excessive Use of High Beams

Two men were driving in Massillon, Ohio after midnight on the Fourth of July. The driver declined to dim his high beams as he drove past a car coming toward him. As it happened, the other car was a police car.

The police officer did a U turn to follow the high-beam enthusiast. He didn't pull the car over right away. Instead he just followed them.

As the officer followed the car, he thought he saw the driver and the passenger reach under their seats. The officer said that made him think they were hiding something.

In his experience, looking under the seat of a car when a person has reached under it leads to the discovery of something illegal "95 to 100" percent of the time.

Never the less, the Massillon police officer did not pull the car over. Instead, after a few blocks, the car pulled over and gestured to the officer.

The Scene In the Parking Lot of the Massillon Moose Lodge

In response, the police officer pulled into the parking lot for the Massillon Moose Lodge. The high-beam user followed into the parking lot. The driver jumped out and asked the police officer for directions to Interstate 77.

The officer asked for, and received, the driver's Ohio state ID (he didn't have a license) and told the driver to get back into the car.

As it happened, the driver didn't have a valid license. Neither did the passenger who owned the car. The passenger, Mr. McCraney, was allowed to call his aunt, who said she'd come to pick them up.

When she arrived 25 minutes later, the parking lot was empty.

Massillon's Finest

The officer had, of course, called for backup. Wikipedia says that Massillon is a town of 32,149. When Mr. McCraney called his aunt, four police cars and five officers were gathered in the parking lot of the Massillon Moose Lodge.

It probably would have been a good time to commit a crime anywhere else in Massillon.

Idle hands are the devil's playthings. Rather than stand around waiting for the aunt, the Massillon, Ohio police force decided to pull the two men out of the car.

The men stood at the back of the car, surrounded by three officers. For no clear reason, two other officers decided to search the car.

They found a gun under the passenger seat. Mr. McCraney was prosecuted in federal court in the Northern District of Ohio for being a felon in possession of a firearm.

The Search For No Real Reason

Mr. McCraney filed a motion to suppress, saying that the search violated his rights to be free of searches done for no reason other than that the cops had 25 minutes to kill until a guy's aunt shows up.

The district court agreed, and suppressed the evidence. The government, however, appealed.

In United States v. McCraney, the Sixth Circuit affirmed.

Search Incident to Arrest

The government argued that, really, these guys were under arrest, even though they hadn't been placed under arrest and the officer let Mr. McCraney call his aunt to pick him up.

The court of appeals held that, even if they were under arrest, searching the inside of a car after the people had been taken out of it is not a search incident to arrest.

A "search incident to arrest" is a search, basically for officer safety, of the body and immediately surrounding area, to make sure a person doesn't grab a weapon and hurt someone.

It used to be that if a person was taken out of a car, the police could search inside the car "incident to arrest" on the theory that anyone could be that guy from the X-men with Gumby arms who could reach back into the car.

In Arizona v. Gant, the Supreme Court severely narrowed this rule - now the search has to be of an area where a person can actually reasonably reach, without consideration of the possibility that the person being arrested has appeared in a Marvel Comic Book.

Reasonable Suspicion Because of the Reaching

The government also argued that there was reasonable suspicion to search the underside of the passenger seat of the car, because the officer saw reaching under there.

The court of appeals looked at all the circumstances - that the folks were trying to get directions, that they were cooperative and otherwise unsuspicious, and concluded that there was not reasonable articulable suspicion to search in the car.

Anthony Doswell was having a bad run of luck.

He was on supervised release from the end of a federal sentence. Supervised release works a bit like probation for those who have been in prison - folks coming out of a federal prison have a period of years where they have to check in with a probation officer, be drug tested, and, if they mess up, sent back to prison.

One big way to mess up is to commit a new crime. The rub is that a person can be violated - and sent back to prison - for committing a new crime, not just for being convicted of committing a new crime.

So, it's possible for a person on supervised release to be charged with a new crime, beat the charge, then be sent to prison anyway.

It's a hard world.

Anthony Doswell was in a spot like that. He was on supervised release and had been charged with having some marijuana on his person. He also tested positive for heroin and didn't show up to mental health treatment, or to meet with his supervising probation officer. [FN1]

He and his lawyer went to court to answer the allegations. His plan was to admit that he had been using marijuana and throw himself on the mercy of the court.

At the hearing, his lawyer learned that Mr. Doswell had previously been charged with heroin distribution.

Mr. Doswell had also been to court on the charge - twice! Each time the chemist who said the heroin in question was heroin had neglected to show up. The heroin case was eventually dismissed.

Mr. Doswell and his attorney may not have had the most transparent relationship.

In any event, Mr. Doswell objected to a violation of his supervised release based on the heroin. The government went forward with the allegation, providing the district court with the charging documents for the state court heroin distribution charge, as well as the chemist's report.

The government did not call any witnesses.

The district court found that Mr. Doswell had violated his supervised release by selling heroin. As the Fourth Circuit summarized it,

Without explanation, the district court concluded that, "notwithstanding the objection," the drug analysis report was "sufficient to support the [heroin] violation alleged." Accordingly, the court found Doswell guilty of the heroin violation set forth in Supplemental Notice, a violation that the court concluded, "in itself, [wa]s sufficient for . . . a mandatory revocation [of Doswell's supervised release]." The court then sentenced Doswell to the statutory maximum, twenty-four months of imprisonment.

On appeal, the only issue the Fourth Circuit dealt with, in United States v. Doswell, was whether, under Federal Rule of Criminal Procedure 32.1(b)(2), Mr. Doswell had a right to have the witnesses against him testify.

The government argued that under a prior Fourth Circuit case, and the general principle that revocation hearings are less formal, it didn't have to have a witness there.

Mr. Doswell, instead, suggested the court of appeals look at the language of Rule 32.1(b)(2), which says that at a revocation hearing, a person has

an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear

Since the district court spent exactly no time balancing whether the interests of justice didn't require the chemist to testify against Mr. Doswell, the Fourth Circuit reversed the finding of violation and remanded.

Big congratulations to the defense lawyer on appeal, Joanna Silver! Way to ask the court to please read the law.

[FN1] - I know, they call the people who supervise folks on supervised release "Probation Officers" even though it's supervised release. I suppose "Supervised Release Officer" is too specialized a title or something.

Dear Reader:

If you read this blog, you're likely interested in federal criminal defense work. If you're interested in federal criminal defense work and, like many Americans, you're looking for a job, I thought it would be helpful to pass along a job announcement.

The Executive Director of Federal Defender Services of Wisconsin, Dan Stiller, is looking for an Assistant Federal Defender. Here's a link to the announcement.

Dan has a clear and strong vision for a first-class office. As the description says, the office is "chasing greatness." Some day the Federal Defenders in Wisconsin may be one of the premier federal defender offices in the country, up there with Jon Sands' office in Arizona, the office in Miami, A.J. Kramer's office in D.C., or Jim Wyda's office in Maryland. (And, yes, I've left many excellent offices off that list). This could be a good chance to get in on the excellence early.

The position closes March 31, 2012 - so if you're interested, hurry.

If you're interested and you apply after seeing this, mention it in your cover letter -- it can't hurt your application that much.

Added Bonus - The office in Wisconsin is a community defender office. Instead of being a government agency (or a part of one) it's a nonprofit corporation that receives federal money. That means that you wouldn't be an Assistant Federal Public Defender, but, rather, an Assistant Federal Defender - arguably that's a cooler title. And, if you're a libertarian, I suppose it would be more ideologically comfortable to not be a government employee.

Two guys are sitting on a porch in Memphis on a July night. They share some conversation and a little bit of marijuana.

Three and a half years later, the Sixth Circuit wrote about that night in United States v. Shields.

Kevin Shields stopped by to visit Eugene Moore on his mother's porch. Earlier that night, Mr. Shields had been seen with a handgun in his waistband by a Memphis police officer.

When the police saw him on the porch, they made eye contact. Mr. Shields then threw the gun into the bushes off the porch.

This is a nice move by Mr. Shields - not only does it confirm that he has the gun, it makes any Fourth Amendment argument harder later, since he likely abandoned it.

But I digress.

As Mr. Shields was being taken to the police car, he said to the officers that he forgot his wallet on the porch. The officers, obligingly, walked him back to the porch where they found the wallet. It was next to a bag that contained marijuana and cocaine residue.

Mr. Shields pled guilty to being a felon in possession of a firearm.

The sentencing guidelines for being a felon in possession of a firearm are in section 2K2.1.

Section 2K2.1(b)(6) says that a person's offense level should increase by four levels if they had the gun in order to further some other felony activity. Four levels, of course, is a pretty big bump on the sentencing table.

The government argued that Mr. Shields' offense level should be increased by four levels under 2K2.1(b)(6) because of the marijuana.

Under Tennessee law, apparently, for someone with Mr. Shields's criminal history, simple possession of marijuana is a felony.

Mr. Shields didn't agree with this. The issue went to a contested sentencing hearing.

At the hearing, the former porch buddies gave different versions of what happened that night.

Mr. Moore was a government witness. He said that he was sitting on the porch when Mr. Shields walked up with liquor, a large bottle of beer, and marijuana. Mr. Shields offered some marijuana to Mr. Moore, who testified that he preferred to abstain.

Mr. Shields, on the other hand, said that he walked up to the porch where Mr. Moore offered him some marijuana. Mr. Moore, however, was out of rolling papers, and Mr. Shields offered to share his.

Mr. Shields, unfortunately, also admitted that he had smoked marijuana in the past and that he had a problem with it.

The district court, applying a preponderance of the evidence standard, found that the marijuana was Mr. Shields'. The sentencing court said,

This is not one of those cases where [the Government] presented overwhelming evidence on it, they just presented a lot of evidence, and it seems to accumulate in such a way as to lead to the conclusion that because of the proximity, because of the timing, because of the other evidence which indicates that you did have a marijuana problem that you would have carried some marijuana with you.

It's always something to see a preponderance of the evidence standard in action.

The sentencing court assessed Mr. Shields the four-level enhancement and sentenced him to two months below the bottom of the sentencing guidelines range.

On appeal, the Sixth Circuit noticed that 2K2.1(b)(6) - the "have a gun in furtherance of another felony" provision is different than a "have a gun while committing another felony" enhancement.

The court of appeals held that there wasn't any evidence that Mr. Shields possessed the gun to help him with the marijuana smoking - he didn't use the gun to roll a joint, for example.

Because there was no connection, other than bad timing, between Mr. Shields' gun possession and the marijuana possession that the district court found, the Sixth Circuit determined that the enhancement did not apply. It sent the case back for a new sentencing hearing.

The federal criminal justice system runs on pleas. If every person charged with a crime demanded that the courts give them the attention that the Constitution guarantees them, United States Attorney's Offices wouldn't be able to prosecute as many people as they do, and federal district courts would grind to a halt.

In the New York Times this week, Michelle Alexander, a law professor at Ohio State University - who wrote The New Jim Crow, arguing that our criminal justice policy is, in essence, a continuation of America's legacy of not being so awesome about issues of race - wrote a piece arguing that criminal defense lawyers should band together and insist that all our clients go to trial to crash the system.

The Michelle Alexander piece has generated all kinds of attention, from geeky to professional.

I'm not unsympathetic to this view. Mandatory minimums drive too many clients to give up their rights too easily. Federal criminal practice should be about more than pleas, cooperation, and sentencing. And I think that just about any person who has handled more than two criminal cases had fantasized about the system-wide chaos that would ensue if we organized people accused of crimes.

But, like Brian Tannenbaum says, it's never going to happen. A criminal defense lawyer has to look out for each client, in each case. We're not doing systematic reform - we're doing individual representation.

If you want to reform the system, work for the ACLU or be a law professor. If you're practicing law, you should help individual people with individual legal problems. The faults of the system are a secondary concern (which doesn't mean that you won't think about them while failing to sleep at 3 in the morning - just that your job isn't to change them, except as you need to in the course of representing your client).

The problems with our system of federal factory justice, highlighted in Professor Alexander's work, are serious ones though. And the Fifth Circuit's recent opinion in United States v. Carreon-Ibarra highlights.

Mr. Carreon-Ibarra pled guilty to a count in an indictment that charged him with using a firearm in connection with a drug trafficking offense. It was charged under 18 U.S.C. 924(c).

At the plea hearing, he was told that the charge carried a mandatory minimum of 5 years.

As it happened, the gun in question was a machinegun. So his mandatory minimum was, in fact, 30 years.

The presentence report, prepared by the Probation Office, reported that Mr. Carreon-Ibarra's mandatory minimum was 30 years.

Mr. Carreon-Ibarra's counsel objected. The lawyer objected to the presentence report, and objected to the district court at the sentencing hearing.

The judge, appreciative of the fact that Mr. Carreon-Ibarra had been told he faced only a five-year mandatory minimum at the plea hearing, told Mr. Carreon-Ibarra that he considered him subject to only a five-year mandatory minimum. The court said it had the power to give him as little as five years on this count.

The district court them imposed a forty year sentence.

The problem arose, though, when the district court issued its judgment. In the written judgment that followed the hearing, the court said that Mr. Carreon-Ibarra pled guilty to the machinegun offense, which carries a mandatory minimum sentence of thirty years.

Clearly, the district court didn't read it's own judgment in light of its statements at sentencing.

The Fifth Circuit reversed, holding that Mr. Carreon-Ibarra's plea was deficient because he wasn't accurately told what the mandatory minimum would be.

How does this happen? How does a smart judge, appointed by the President and confirmed by the Senate pay this little attention to documents that send a man to prison for forty years?

It happens because there are too many federal criminal cases that have become too routine for courts to give the attention that these cases need.

And that's why people who are going through the criminal justice system are angry.

They can feel that their cases don't get deep attention from the courts or the prosecutors. People know when they've been turned into file numbers or claims. Claims that send them to prison for massive amounts of time. People resent how little the most important case in their lives matters to the people who make decisions about them.

It makes people want to do crazy things to tear the system down.

Even though that would be a bad idea.

James Kimsey was not a lawyer.

But when Frederick Rizzolo was deep in a hard bit of contentious litigation, James Kimsey wanted to help out. Mr. Rizzolo's lawyers withdrew from the case. Mr. Rizzolo tried to go on without a lawyer, but his efforts were poor. One can imagine that Mr. Rizzolo felt the situation was bleak.

James Kimsey came to the rescue. While not a lawyer, Mr. Kimsey had some prior legal experience - he was previously sanctioned for the unauthorized practice of law. He was also, apparently, willing to work for free.

Mr. Kimsey ghostwrote some of Mr. Rizzolo's pleadings in his civil case. He seemed to be acting a lot like a lawyer. He wrote a summary judgment motion. He cited to Erie Railroad Co. v. Thompkins. I suspect he even wore a blue suit with a red tie.

Unfortunately, Mr. Rizzolo's opposing counsel got wind of the help Mr. Kimsey was providing. He filed a "Motion to Reveal Pro Se Litigant Rick Rizzolo's Ghost Writer."

The Motion to Reveal went to a hearing. A United States Magistrate Judge determined that Mr. Kimsey was ghostwriting pleadings for Mr. Rizzolo. The Magistrate Judge referred a prosecution for criminal contempt to the United States Attorney's Office.

18 U.S.C. § 402

Mr. Kimsey was prosecuted under section 402 - the criminal contempt of court statute. Eighteen U.S.C. section 402 reads:

Any person, corporation or association willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title and shall be punished by a fine under this title or imprisonment, or both.

The government argued that Mr. Kimsey violated this, by breaking one of the standing local rules of the Court that says that only lawyers can practice law in federal court.

Mr. Kimsey asked for, and was denied, a jury trial. He was convicted. And, in United States v. Kimsey, the Ninth Circuit reversed, and dismissed the criminal contempt charges against Mr. Kimsey.

Mr. Kimsey's case was reversed for two reasons. First, he had a right to a jury trial that was not honored. Second, the Ninth Circuit held that violating a local rule does not subject a person to criminal contempt.

A Statutory Jury Right

Normally, if the most you can receive in prison is six months or less, you do not have a right to a jury trial. The constitutional right to a jury trial only kicks in after you are eligible for a sentence or more than six months.

However, Section 402 refers to 18 U.S.C. § 3691. Section 3691 grants a right to a jury trial. Thus, even though there was no constitutional jury trial right, there was a statutory jury trial right. And, Mr. Kimsey didn't get one.

So the case was remanded for that reason.

There Are Rules and Then There Are Rules

More significantly, though, the court of appeals held that a local rule is not the kind of rule that a person can be punished with criminal contempt for violating.

This was a straightforward question of statutory interpretation - does violating a "rule" mean (a) violating a local rule or a court rule (e.g., the Federal Rules of Civil Procedure) or (b) violating a rule directed at a specific person (or narrowly defined class of persons).

The district court assumed that it meant (a), as had the Ninth Circuit and Seventh Circuits earlier. Though, assuming isn't the same as deciding, so the Ninth Circuit reconsidered the question here. Moreover, the D.C. Circuit had actually decided that "rule" for these purposes means something directed at a specific person.

The court of appeals looked at what the dictionary says -- though sadly the dictionary from the time that section 402 was made law has both definitions. So, the Ninth Circuit had to turn elsewhere.

A Word Is Known By The Company It Keeps

The appellate court, implicitly following up on Judge Posner's observations about statutory interpretation and reading words in context, noted that,

although standing court rules already existed in the early twentieth century,9 and so, based on etymology alone, it would not be inconceivable that § 402's use of the term "rule" referred to them, this possibility is severely under- mined by the application of a basic canon of statutory interpretation: "The canon, noscitur a sociis, reminds us that a word is known by the company it keeps, and is invoked when a string of statutory terms raises the implication that the words grouped in a list should be given related meaning."

Noting that the string of words in section 402 is actually "any lawful writ, process, order, rule, decree, or command of any district court of the United States" and that each of these is an action directed at a person specifically - except perhaps "rule" - the court of appeals read "rule" to mean something directed at a person specifically too.

You Will Not Probably Go To Jail For Using Comic Sans

The court of appeals also reasoned that allowing a criminal contempt prosecution for violating a local rule would lead to a deliciously absurd result:

If "rule[s]" encompass local court rules, then . . . a court would be able to fine or imprison attorneys for, let's say, failing to conform to local rules specifying the width of margins, appropriate typeface, or kind of paper used for pleadings. See, e.g., D. Haw. L.R. 10.2 ("All documents presented for filing shall be on white opaque paper of good quality . . . with one inch margins . . . ."); C.D. Cal. L.R. 11-3.1.1 ("A monospaced [type]face may not contain more than 10-1/2 characters per inch."); C.D. Cal. L.R. 11.3.2. ("All documents shall be submitted on opaque, unglazed, white paper (including recycled paper) not less than 13-pound weight."). It is at least exceedingly unlikely that Congress intended to authorize convictions of criminal contempt for disobeying ministerial, generally applicable requirements forbidding low-quality paper or excessively small type.

Though I suspect some workers in some court's Clerk's offices would not see criminal sanctions for using the wrong font or paper as a bad result.

One of the most jarring things about federal criminal practice, especially for lawyers who are well trained in civil litigation - is how many procedural rights and doctrines don't apply.

You want to move for summary judgment? No such motion exists (as a general matter, but see this post).

You want to take a deposition? You're likely out of luck. (Yes, that's right, you get more information about the other side's case in a civil case - which is only about money - than you do in a criminal case where someone might go to prison).

Yet, every now and again, a decision comes down that reminds you that in some cases - perhaps rare cases - the old familiar doctrines from law school can provide a benefit in a federal criminal case.

United States v. Valdiviez-Garza is one such case.

There, the Eleventh Circuit ordered the district court to dismiss an indictment because of the doctrine of collateral estoppel.

That's right - collateral estoppel. In a criminal case.

Collateral estoppel, for the one non-lawyer reader of this blog (hi Mom!), is the rule that once an issue is fully and finally resolved between any two parties, it is settled, and can't be argued again.

How does this arise in a criminal case? Here's what happened.

Mr. Valdiviez-Garcia was charged with illegal reentry. The elements of illegal reentry are that the person charged:

(1) was an alien at the time of the offense; (2) who had previously been removed or deported; (3) and had reentered the United States after removal; (4) without having received the express consent of the Attorney General.

The thing is, Mr. Valdiviez-Garza had already been tried for illegal reentry years before. In that case, he was acquitted.

Mr. Valdiviez-Garza's dad, it seems, was a United States citizen. And, under certain circumstances, if one of a person's parents is a citizen, the person is a citizen.

In the first trial, the only issue was whether Mr. Valdiviez-Garza was a citizen. His lawyer focused on only one issue in the trial - the lawyer cross-examined only one witness, and that cross dealt only with Mr. Valdiviez-Garza's citizenship.

The jury acquitted Mr. Valdiviez-Garza in that case. Because there was only one issue in the first trial, the Eleventh Circuit determined that Mr. Valdiviez-Garza was acquitted on the basis of reasonable doubt about his citizenship.

Therefore, the Eleventh Circuit held, it is finally settled that there is a reasonable doubt as to whether Mr. Valdiviez-Garza is a United States citizen. Under collateral estoppel, the United States government cannot take a position contrary to there being reasonable doubt about whether he is a citizen.

So, when, years later, Mr. Valdiviez-Garza was indicted, again, for illegal reentry, the Eleventh Circuit ordered the district court to dismiss the case, because there is reasonable doubt as to an element of the offense.

Interestingly, the Eleventh Circuit ordered the district court to dismiss the appeal on an interlocutory appeal - without a trial. As the court of appeals explained,

Because the collateral estoppel doctrine implicates the constitutional protection against double jeopardy, we have jurisdiction to review the interlocutory decision under the collateral order doctrine.

Let's hope Mr. Valdiviez-Garcia was not held in custody too long on this charge before the Eleventh Circuit ordered the indictment dismissed.

A Joke:

What's the difference between a white-collar investigation and a blue-collar investigation?

In a blue-collar case, the government knows what the person has done, they just don't know who done it.

In a white-collar case, the government knows who done it, they just don't know what they've done.

[insert the sound of a rim shot]

This joke shows two things. First, the bar for lawyer humor is incredibly low. Second, in a white-collar case, once the government has indentified you as a target, they are likely to keep investigating until they find something to charge you with.

United States v. Fenzl makes the same point (the second one, about the tenacity of the Department of Justice - not the one about how bad legal jokes are).

Steven Fenzl's Case

The government targeted Steven Fenzl, and his colleague Douglass Ritter. The two men ran Urban Services of America, Inc. The company bid on a contract to refurbish the garbage cans of the City of Chicago, Illinois. The company's bid was the lowest bid.

Unfortunately, the contract that the company bid on was never awarded. The folks at Urban thought that perhaps it was because there were too few bids submitted in response to the proposal. Though they weren't sure.

A bit after the company failed to win the bid, the Chicago Tribune announced that Urban was under investigation for improprieties in checks that had been issued to other contractors. Though the investigation never yielded a finding of wrongful conduct, no one told the folks at Urban that the investigation was over until months had passed.

Eventually, the City of Chicago again sought bids on a contract to refurbish their garbage cans. Urban had yet to learn that it was no longer under investigation. It was also worried that not enough other bids would come in.

Urban Services of America Organizes Other Bids

The company then started organizing other companies to also provide bids. The arrangements were, in essence, that the other companies would subcontract the work to Urban if it won, then tack on a profit margin for itself.

Not surprisingly, this did not result in these companies underbidding Urban. Since the other companies didn't really do the kind of work they were bidding on anyway - and would have had to subcontract to Urban - this was not a surprising result.

In the end, Urban bid on the contract, as did three companies that Urban encouraged to bid. Three other companies, that had nothing to do with Urban, also submitted proposals.

Urban was the lowest bid of all seven and won the contract.

The Antitrust Division Gets Interested

The United States Department of Justice's Antitrust Division has a criminal section. The prosecutors in that office launched an investigation of Urban.

Bid rigging, generally, is illegal. As the Seventh Circuit said, "bid rigging [is] a form of price fixing in which bidders agree, usually by rotating bids, to eliminate competition among the bidders."

Yet, here, this bid rigging wasn't done to eliminate competition, rather, it was to encourage the city to take the bids seriously, again, the Seventh Circuit:

at some point [the Department of Justice] realized it didn't have an antitrust case. Urban had been the low bidder and its aim in "colluding" with other potential bidders had not been to prevent them from underbidding it but merely to buy insurance against its bid's being rejected because of false accusations against Ritter and Urban; if Urban lost the bid, at least it would be able to obtain some refurbishing work as a subcontractor of the winning bidder. The bidders invited by Urban were almost certain to submit higher bids because Urban would be doing the actual work and charging for it and the bidders would be repricing Urban's work in their bids.

This is, sort of, pro-competitive bid rigging.

The Department of Justice is Not Deterred

The Department of Justice had their man (or company), so the lack of a crime wasn't going to be an obstacle to prosecution.

So the prosecutors decided to charge fraud rather than an antitrust violation. [T]he theory behind the charge of fraud for misleading the City by inflating the number of bids was never made clear at trial. No evidence was presented that the more bidders there were, the more likely Urban's bid was to be accepted and that this would result in a higher price to the City for getting its garbage carts spruced up. Had there been four bidders rather than seven, Urban would still have been the low bidder, and there is no indication that the City would have cancelled the auction on the ground that there were too few bidders.

The Seventh Circuit's later skepticism notwithstanding, the government charged the Urban principals with fraud. Mr. Ritter pled guilty. Mr. Fenzl went to trial and was convicted. He was sentenced to 16 months in prison, a fine of $40,000, and restitution of $35,302.18.

The Seventh Circuit

Judge Posner, who knows a thing or two about antitrust law, wrote for the Seventh Circuit. He was not a fan of this prosecution (Judge Posner is not getting invited to any Department of Justice parties after this opinion, or this one).

As the learned jurist wrote,

It's difficult to see what's wrongful about such a "scheme." Suppose in despair of ever doing work for the City again Urban had sold its assets to another company and told it, "You go bid on the refurbishing contract." Would anyone think such conduct improper? How different is that from what Urban planned to do in case it was denied the contract even if it was the low bidder? Misconduct in bidding involves trying to reduce rather than increase the competition among bidders.

In addition to criticizing the theory undergirding the prosecution, Judge Posner noted that the government proved it's case using the wrong witness.

A government investigator testified - not as an expert witness - that the City would have disqualified Urban's bid if it knew that it had put the other bidders up to their bids. The basis for this knowledge was opaque to Judge Posner.

Without the testimony of City employees,

it is a matter of conjecture whether the relevant employees in the Department would have awarded the contract--at a loss to the City--to a higher bidder, in order to punish Urban (for what exactly?). But instead of asking them what they would have done had they known what Urban was up to, the prosecutors asked an investigator what he thought they would have done. What the government dignifies by the term "personal knowledge"--for a lay witness is permitted to base his testimony on his personal knowledge (and on nothing else)--is the investigator's conjectures based on seven years of "training and experience," an impermissible basis for lay opinion testimony.

Mr. Fenzl was charged under two separate fraud theories in separate fraud charges. On one he was acquitted. On the other, the court of appeals remanded for a new trial.

One wonders what Mr. Ritter - who pled guilty early - thinks of this opinion.

Deanna Costello's love knew no boundaries. Literally. For years she had a romantic relationship with a man who was not in the United States lawfully. It led to a strong judicial slapdown of the Department of Justice by one of our nation's leading jurists, in United States v. Costello.

Ms. Costello's Boyfriend

Ms. Costello lived in Cahokia, Illinois, perhaps five miles from St. Louis. She lived with a man from Mexico for a year ending in July 2003. That time ended when he was arrested on a federal drug charge. He plead guilty and was sent back to Mexico after his prison sentence.

In March of 2006, Ms. Costello picked her boyfriend up at the bus station in St. Louis. She drove him to her house, where they lived until October 2006. Sadly, he was then arrested on new drug charges, and the couple were again separated. As the court of appeals noted, he "was given a stiff prison sentence."

Ms. Costello was charged with harboring an alien. She went to a stipulated facts trial - basically a trial where she and the government agree what happened, they simply disagree about whether what happened was a crime.

She was convicted. The district court sentenced her to two years probation and a $200 fine.

The Appeal

She appealed. Judge Posner, writing for the Seventh Circuit, reversed, in an opinion as critical of the government as any I've read in a very long time.

Judge Posner concluded, basically, that harboring an alien does not include having a person in the country unlawfully as a live-in boyfriend.

Judge Posner started by noting that "[t]here is no evidence that the defendant concealed
her boyfriend or shielded him from detection" and that, indeed, since he was arrested at her house several times, it's more likely that law enforcement would find him if he was there than, say, at a relative's house.

Or, alternatively,

The defendant in the present case was not trying to encourage or protect or secrete illegal aliens. There is no suggestion that she prefers illegal aliens as boyfriends to legal aliens or citizens. She had a boyfriend who happened to be (as she knew) an illegal alien, and he lived with her for a time.

A Car Ride Is Not Harboring

The district court made much of Ms. Costello having driven the man from the bus station to her house. Judge Posner wasn't impressed with this fact, noting that

the distance was so short--about six miles--that in a pinch he could have walked. And had he wanted to take public transportation he could have used the St. Louis metro transit system; the price of his ticket would have been $2.75. (That is the price today; it probably was lower in 2006.) There is nothing to suggest that the two of them had prearranged the pickup, or that, had she not picked him up, he would have returned to Mexico. (We don't know how long he had been in the United States.)

A car ride is not harboring an alien.

Judge Posner spent considerable time considering the meaning of "harboring" in the statute criminalizing harboring an alien. Judge Posner considered the way "harboring" is used, and the breadth of the anti-harboring statute if "harboring" covers Ms. Costello's conduct.

The Government's View of Harboring Is Absurd

Judge Posner was concerned that the government's view of what counts as harboring sweeps lots and lots of conduct into the criminal law. In perhaps the most awkward - yet at the same time still awesome - sentence he's ever written, Judge Posner asks:

is it likely that Congress intended that parents whose child invites an immigrant classmate who, as they know, is illegally in the country to a sleepover might be branded as criminals even if he didn't accept the invitation, since the statute criminalizes attempts?

The court of appeals also points out the absurd consequences of the government's statutory interpretation,

an illegal alien becomes a criminal by having a wife, also an illegal alien, living with him in the United States; if they have children, born abroad and hence illegal aliens also, living with them, then each parent has several counts of criminal harboring, on the government's interpretation of the statute.

Judge Posner Doesn't Trust The Government

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

Down with the Dictionary

In perhaps my favorite section of the opinion (though there are many) Judge Posner criticizes the government's use of the dictionary -

"Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings A sign in a park that says "Keep off the grass" is not properly interpreted to forbid the grounds crew to cut the grass.

To try to learn how "harboring" is normally used, Judge Posner turned to Google:

a search based on the supposition that the number of hits per term is a rough index of the frequency of its use--reveals the following:

"harboring fugitives": 50,800 hits
"harboring enemies": 4,730 hits
"harboring refugees": 4,820 hits
"harboring victims": 114 hits
"harboring flood victims": 0 hits
"harboring victims of disasters": 0 hits
"harboring victims of persecution": 0 hits
"harboring guests": 184 hits
"harboring friends": 256 hits (but some involve
harboring Quakers--"Friends," viewed in
colonial New England as dangerous heretics)
"harboring Quakers": 3,870 hits
"harboring Jews": 19,100 hits

It is apparent from these results that "harboring," as the word is actually used, has a connotation--which "sheltering," and a fortiori "giving a person a place to stay"--does not, of deliberately safeguarding members of a specified group from the authorities, whether
through concealment, movement to a safe location, or physical protection.

And entertaining an alien is not against the law.

As the internet has made it easier for people to share information - from snarky comments about published criminal cases in the federal circuits, to snarky comments about politics or the Academy Awards - it has made trading child pornography much easier.

Twenty years ago, to trade child pornography, you had to use the mail or meet someone with the same interest. Now, just about any person with an internet connection can find this contraband in less than an hour.

The easy flow and production of child pornography is a serious social problem. My concern is that the only solution we seem to be thinking about is to criminalize the market for it and make the punishments for participating in this market draconian.

A Very Large Opinion

The Eleventh Circuit's opinion in United States v. McGarity is a glimpse into the world of child pornography.

Law enforcement learned of a massive online collective of child pornography users. The ring used a sophisticated web of encryption, changing bulletin boards, and membership tests to weed out law enforcement and communicate with each other.

It had leaders - using names such as "Yardbird" "Helen" "Soft" and "Tex" who enforced security and internal discipline. They also decided who was able to join.

After an investigation into the group, fourteen people were arrested. None of the people arrested was a leader in the child pornography ring - though "Helen" was prosecuted in Britain.

The men prosecuted in the United States received sentences ranging from twenty years to fifty years. The leader of the ring, "Helen," was sentenced in Britain to 12 and a half years.

The court of appeals opinion in McGarity is a massive 130 pages. Much of the case in the district court was affirmed, though there were some defense victories of note.

Obstruction of Justice

All the men charged were also charged with obstruction of justice under 18 U.S.C. 1512(c). The superseding indictment, following the language of the statute, accused the men of trying to obstruct an official proceeding. It did not say what that proceeding was.

The Eleventh Circuit held that this was insufficient. Following an opinion from the First Circuit, the court of appeals held that if the government is going to charge obstruction of an official proceeding, it has to say what official proceeding was obstructed.

This is a neat exception to the general rule that a prosecutor has to merely parrot the statute in order to adequately allege an offense. The Eleventh Circuit said that an indictment that doesn't say what official proceeding was obstructed doesn't provide enough notice of how the law was broken. This is fair enough - it's just also true of, say, 75% of the indictments that come out of a federal grand jury.

It's a step in the right direction at least.

Those convictions were vacated and that count of the superseding indictment was vacated.

CEE Requires Three

Finally, all of the men accused were convicted of a violation of statute that criminalizes participating in a Child Exploitation Enterprise under 18 U.S.C. § 2252A(g). A CEE charge requires that the jury finds that a person participated in a series of at least three other child pornography offenses.

Yet one of the men accused was convicted of the CEE charge and was only convicted of two underlying child pornography charges. His CEE conviction was vacated.

Conspiracy is a Lesser Included Offense of CEE

Many of the men were also convicted of conspiracy to do things relating to the distribution of child pornography. They were also convicted of the CEE charge. They argued that the conspiracy charge was a lesser included offense of CEE. For that reason, the conspiracy charge should be vacated, under double jeopardy principles. (see this post for a more thorough explanation of the double jeopardy principles involved).

As luck would have it, the guy who had his CEE conviction vacated because he was only convicted of two underlying acts was also convicted of conspiracy. His conspiracy conviction stands.

The Eleventh Circuit held, today, that a person cannot be compelled to unencrypt encrypted files under the Fifth Amendment in In re Subpoena Duces Tecum issued March 25, 2011.

John Doe [FN1] is a man who knows how to keep quiet. He came to the government's attention in the worst of ways. In March of 2010, the government found that someone was uploading child pornography to You Tube. [FN2]

Law enforcement tracked the IP addresses of the person who did the uploading. The IP addresses led them to a series of hotels. The only person common to all the hotels where things had been uploaded from was John Doe.

The government tracked John Doe to a hotel room in California. It got a search warrant to go into his room.

Inside the room, law enforcement found a number of computers and hard drives, capable of storing more than 5 terabytes of data.

The government sent the hard drives to the FBI. The FBI, however, was not able to search it all because much of it was encrypted with TrueCrypt technology. [FN3]

The government issued a grand jury subpoena to John Doe to come and open the encrypted files.

John Doe told the government that he would assert his Fifth Amendment privilege against self-incrimination and refuse to testify under the "act of production" privilege.

Generally, the production of documents or evidence that already exists can't be blocked for Fifth Amendment reasons. (Yes, the government can generally get your diary). However, the act of production privilege allows a person to assert a Fifth Amendment privilege if the act of producing evidence would, itself, incriminate that person.

The United States Attorney's Office, aware of this, sought statutory immunity under 18 U.S.C. 6002. As the Eleventh Circuit summarized the government's immunity position:

The Government stated in its letter served on Doe on April 7, 2011, and before the district court on April 19, 2011, that it would not use Doe's act of production against him in a future prosecution; but it would use the contents of the unencrypted drives against him.

At a hearing on the immunity order, the district court went along with the government's request. It decided that Mr. Doe would be immunized from a prosecution based on his act of revealing the documents, but he would not be immunized if the government could link him to any contraband, say child pornography, found on the hard drives through another means, such as the fact that it was found in his hotel room when they executed a search warrant.

John Doe was unsatisfied with this protection.

He refused to unencrypt the hard drives and was held in contempt and taken into custody. He then appealed that contempt order. [FN4]

The Eleventh Circuit reversed the contempt finding, holding that Mr. Doe was allowed to assert the Fifth Amendment since the statutory immunity he was granted was not as broad as his Fifth Amendment protection.

Basically, the Eleventh Circuit held that the Fifth Amendment protects a person from being compelled to unencrypt a hard drive under the act of production doctrine.

The court of appeals held that the act of production is not testimonial, and thus not subject to Fifth Amendment protection, only if two conditions are met:

First, the Fifth Amendment privilege is not triggered where the Government merely compels some physical act, i.e. where the individual is not called upon to make use of the contents of his or her mind. The most famous example is the key to the lock of a strongbox containing documents, see Hubbell, 530 U.S. at 43, 120 S. Ct. at 2047 (citing Doe v. United States, 487 U.S. 201, 210 n.9, 108 S. Ct. 2341, 2347 n.9, 101 L. Ed. 2d 184 (1988)), but the Court has also used this rationale in a variety of other contexts. Second, under the "foregone conclusion" doctrine, an act of production is not testimonial--even if the act conveys a fact regarding the existence or location, possession, or authenticity of the subpoenaed materials--if the Government can show with "reasonable particularity" that, at the time it sought to compel the act of production, it already knew of the materials, thereby making any testimonial aspect a "foregone conclusion."

Here, unencrypting does require some sort of mental work - it requires a person to recall and use his password. So the first exception doesn't apply.

The second exception is a little more interesting - and this is the part that serves as an ad for TrueCrypt.

The court of appeals explained that when a document encrypted with TrueCrypt, a scan of the hard drive doesn't tell you whether there's something there. Blank hard drive space shows up the same as data.

So, for example, child pornography looks the same as blank hard drive space through TrueCrypt.

Because of that, there is no way for the government to know if there is any contraband in the hard drive which is encrypted. Which means that there is no "foregone conclusion" that there's evidence a crime in those hard drives.

Because neither exception applied, the Fifth Amendment protected Mr. Doe from having to unencrypt his hard drives.

[FN1] - Not his real name.

[FN2] - Seriously? You Tube?

[FN3] - This whole opinion reads like an ad for TrueCrypt, in a sense.

[FN4] - In fact, Mr. Doe was held in custody until he was ordered released after oral argument by the Eleventh Circuit.

Nancy Bell had serious health problems. Because of those health problems, she was prescribed pain medicine - OxyContin.

When a person is prescribed oxycodone, which is the generic version of OxyContin, she is required to be tested through pill counts and urine screens to make sure she's actually using it. Ms. Bell was tested, her treatment center said that she had an "outstanding record" of compliance.

The Market For Oxycodone

The reason people taking oxycodone are tested is because there is a tremendous illicit market for the drug.

Ms. Bell was no stranger to that market, unfortunately. She, and her daughter, Iris Gibson, were discovered by law enforcement to be selling oxycodone to others. The "others" decided they liked the government enough to help them prosecute Ms. Bell and Ms. Gibson.

Ms. Bell and Ms. Gibson were charged with conspiracy to distribute oxycodone. They pled guilty without a plea agreement. They went to a sentencing hearing.

The Quantity of Oxycodone

The biggest issue in the sentencing of Ms. Bell and Ms. Gibson was the quantity of oxycodone that was sold illegally.

The sentencing guidelines - specifically section 2D1.1 - suggest longer sentences for people who are involved in a greater quantity of drugs being distributed. Similarly, in a fraud case, the guidelines - specifically section 2B1.1 - suggest a longer sentence for people who are involved in a greater amount of money being taken.

Here, the government introduced the records of the quantity of pills that Ms. Bell was prescribed. They wanted to use that as the basis for the drug quantity.

The government also introduced lengthy testimony from the others who were involved in the drug distribution scheme with Ms. Bell.

Ms. Bell introduced her records from the pain management center to establish that she actually took a lot of these pills. As a result, she argued that the quantity that should be attributed to her should be reduced by the reasonable amount of medicine that she took, under her legitimate prescription for the medicine.

The district court, after listening to what appears to have been a lot of testimony, punted. The sentencing court decided that about 104.5 grams of oxycodone. The court didn't explain how much Ms. Bell consumed herself, or how much was sold to the others, or anything else. The court just asserted that 104.5 was the right number.

The district court then sentenced Ms. Bell and Ms. Gibson based on guidelines ranges based on that number.

The Fourth Circuit Appeal

Ms. Bell and Ms. Gibson appealed. They argued that the judge has to do more to explain how he arrived at the drug quantity.

In United States v. Bell, the Fourth Circuit agreed. Writing for the panel, Judge Andre Davis wrote that, "the district court's explanation for how it calculated that quantity is insufficient to allow for meaningful appellate review."

The court of appeals remanded the case for resentencing for the district court to explain how it arrived at the amount that it used to impose sentencing.

Footnote 8

All of this is relatively uncontroversial, as for as appellate decisions go. Except for the very odd disagreement between the panel about footnote 8 of the opinion.

In the main text, the opinion lists a number of questions that were unanswered by the district court - things like how much oxycodone each witness testified to, how much Ms. Bell used personally and legally, and the time period over which the illegal pill distributing spanned.

After listing these factors, Judge Davis dropped a footnote - footnote 8 - which started,

I hasten to make two observations. First, I do not suggest that any one or more of the specific queries listed above is or should be either a necessary or a sufficient basis for a permissible finding of drug quantity in any particular case. Like relevant conduct in any case, the district court approaches its task based on the facts and circumstances presented. Second, I recognize that some of these queries, such as the quantity Bell herself consumed, may be more difficult for the government to prove than others. But that does not relieve the government of proving such facts by a preponderance of the evidence at sentencing.

The rest of the panel - Judges Hamilton and Floyd - refused to join this footnote. The rest of the (lengthy) footnote takes these judges to task for failing to sign on to these relatively benign legal propositions.

Really - it's controversial that proving things at sentencing is a "task based on the facts and circumstances presented"? Or that some facts are harder to prove than others?
After reading the footnote and the concurrence by Judge Hamilton, I really don't see the issue, except, perhaps, that Judge Hamilton seems less likely to accept an invitation to a cocktail party for criminal defense lawyers.

Ms. Gibson's Challenge

Ms. Gibson raised a separate challenge. She argued that the government failed to prove that the drugs were attributable to her. Judge Davis was sympathetic, and provided guidance on remand,

the district court will have the opportunity in any event to revisit the evidence of the extent and timing of Gibson's involvement in the conspiracy. We note, however, that the district court's rejection of Gibson's argument turned on its finding that Gibson "had full knowledge of the scope of the conspiracy and quantity of drugs involved." J.A. 427. Gibson's "knowledge" of the scope of Bell's drug sales, however, is only part of the analysis; under the Guidelines the full amount of oxycodone sold or transferred by Bell is only attributable to Gibson for drug weight purposes if that full amount was reasonably foreseeable to Gibson and within the scope of the criminal activity that she jointly undertook with Bell. See U.S.S.G. § 1B1.3 cmt. n.2. Moreover, if Gibson did not join the conspiracy until May 2008, oxycodone distributed by Bell or other conspiracy members before that date could not be considered "relevant conduct," even if Gibson knew of that conduct. Id.

Ms. Gibson, it appears, will have a better time at resentencing as well.

Related Links:

• Immigration Fraud and the Sentencing Guidelines Numbers Game


• Judge Posner On Narcotics Wholesalers and Drug Quantity

Today, of course, is Valentine's Day. And, so, today's post is a story of marriage, love (presumably), and bankruptcy fraud.

Scott and Debra Spurlin

Scott and Debra Spurlin had a number of assets and bank accounts.

They owned Golden Athletics LLC, which, in turn, owned their three cars. They owned Golden Choice Financial, which owned the house they lived in. They owned International Oil, Gas, and Mineral Management, Inc., which owned an account from which Mr. Spurlin wrote checks to Mrs. Spurlin.

They also had a number of bank accounts.

When it came time to file for bankruptcy, however, the Spurlins said that they had one bank account - with $157 in it; that their assets were only $3,364; and that they owned only one company, Spurlin and Associates. Spurlin and Associates filed for bankruptcy the day after the Spurlins did. The Spurlins did not disclose the other companies that the owned, which, in turn, owned their house and cars.

During the course of the bankruptcy, they also answered a form about Mrs. Spurlin's father. More on that below.

The Spurlins Are Charged With Bankruptcy Fraud

The Spurlins were indicted for bankruptcy fraud under 18 U.S.C. §152(1) for not disclosing their other assets, and for making a false statement in a bankruptcy proceeding under 18 U.S.C. 152(3). Mr. Spurlin was also indicted under, 18 U.S.C. §157(1), for filing for bankruptcy to hid a separate fraud scheme.

After trial, the Spurlins were convicted on all counts. In United States v. Spurlin, the Fifth Circuit reversed Mr. Spurlin's conviction for making a false statement in bankruptcy.

The rest of their convictions stand, however.

The Form

The Spurlins' conviction for making a false statement was based on three questions on a form that the bankruptcy trustee created.

They were asked:

4. Are your parents living? Father _______ Mother _______ Are your spouses' parents living? Father _______ Mother ____

5. If not, was any property left by your parent(s) at the time of death? _________

6. Do you understand that should you inherit anything during the next 6 months it will be necessary for you to advise me (your Trustee) in writing within 10 days? ______

The Spurlins answered that Mrs. Spurlin's father had died, and answered "no" to question 5 - indicating that he did not die with any property.

In fact, Mrs. Spurlin's father did have property when he died. He just didn't leave any property to the Spurlins.

The government argued that they filed out line 5 incorrectly - and thereby made a false statement in bankruptcy. The jury agreed, apparently.[FN1]

Making A False Statement In Bankruptcy

As the Fifth Circuit explained, to prove a violation of 18 U.S.C. 152(3) the government must prove:

(1) there was a bankruptcy proceeding;

(2) defendant made a declaration or statement under penalty of perjury in relation to the proceeding;

(3) the declaration concerned a material fact;

(4) the declaration was false; and

(5) defendant made the declaration knowingly and fraudulently.

Here, there was no question that elements (1), (2), and (3) were met. There was a bankruptcy proceeding and the form indicated clearly that it was filled out under penalty of perjury. The standard for materiality is very weak - as the Fifth Circuit said, quoting the district court,

The court described a material fact as one that "has a natural tendency to influence or is capable of influencing the decision of the decision maker to whom it was addressed." The assets available in bankruptcy will influence how the trustee handles the bankruptcy, because bankruptcy is about distributing the available assets.

What Did The Form Ask?

The Spurlins and the government disagree, however, about whether the statement was false.

The Spurlins argued that that, given the context in which it was asked, question 5 really means "Did the deceased parent leave any property to you?" not just whether they left any property at all.

The Fifth Circuit agreed. Very few people die without any property of any kind - if you adopted the government's reading of the question it wouldn't get any useful information. Moreover, the whole point of the question is to find out about assets of the people in bankruptcy - why would the Trustee care about other assets that people's parents left?

And, so, Mr. Spurlin's conviction on this count was reversed for insufficient evidence - because the statement wasn't clearly false, there was not enough evidence for a jury to convict him.

Mrs. Spurlin's Testimony

Mrs. Spurlin, however, did not fare as well.

Mrs. Spurlin testified at trial. On cross, the government asked her how she interpreted question 5 of the form that she filled out.

Here's the exchange:

Q. And the question did not ask whether or not you owned any property following your parents' death, did it?

A. No.

Q. It simply asked: Was there any property left by your parents at the time of death?

A. Correct.

Q. And the answer given here is no?

A. Correct.

Q. And that wasn't accurate, was it?

A. No. I did not fill this out, ma'am.

The Fifth Circuit found this concession to be fatal. Because she admitted that the answer to question 5 was false, the court of appeals determined that the jury had enough evidence to decide that the answer was false, as to her.[FN2]

This strikes me as odd. If the answer is false, it's false, and if the answer is true it's true. I could see Mrs. Spurlin's answer being relevant to whether she intentionally made a false statement, but that's not what's up for debate.

I think, rather, that this is simply an example of why it's very bad for a person to admit to an element of a crime - it gets very hard to undo that later.

[FN1] - Though, frankly, there's so much going on in the rest of this case I think there's reason to doubt how much the jury actually thought about how to interpret this question.

[FN2] - Mrs. Spurlin's defense was that she didn't fill out the form. The Fifth Circuit rejected that as a defense, since she still said everything was accurate under penalty of perjury. In other words, it isn't an element of making a false statement in bankruptcy that you fill out the form yourself.

It's now almost unremarkable that the Fourth Circuit had a defense-friendly published opinion. Yet, on that fact, I will now remark, since the Fourth Circuit recently decided United States v. Gaines.

Driving in Baltimore

Travis Gaines was sitting in the back of a white Crown Victoria, traveling down the streets of Baltimore City. The Crown Vic drove past a police car, with three cops inside.

The police car followed the Crown Vic. The police turned on their car's lights and pulled over the car.

Mr. Gaines, in the back seat, started shuffling around. The police said they could see him moving in the back of the car.

When the Crown Vic stopped, they pulled Mr. Gaines out of it. One of the officers did a pat down, found a gun, and yelled "gun" to the other officers. Mr. Gaines hit the cop and tried to run away. (for what it's worth, he was convicted of assault in Maryland state court for this)

To Federal District Court We Go

Mr. Gaines was caught, and charged in federal court with being a felon in possession of a firearm.

His attorney filed a motion to suppress the gun. He argued that the car was not pulled over for a good reason and that the search of Mr. Gaines, as a result, violated his rights.

The government countered that the Crown Vic was pulled over for a good reason - that there was reasonable articulable suspicion to pull the car over.

Why was the car pulled over?

The police testified at a motions hearing that the Crown Vic was pulled over because there was a crack in the windshield.

One of the police officers, sitting in the back of the police car, testified that when he saw the Crown Vic, he noticed a small crack in the Crown Vic's windshield from the other side of the intersection.

To put this in context, the federal district judge who decided the motion to suppress described the crack as very small and "in the lower right portion of the Crown Victoria's windshield."

The police said that once the first cop saw the crack, they started following the Crown Vic. Through the entire car - including the seats in the car - the other officers said that they, too, saw the crack.

The police testified that they only pulled the car over when they had all three confirmed that they saw the crack.

The district court said, in a word, hogwash. The judge refused to credit this testimony and found that there was simply no credible way to determine that the police would have been able to see that crack in the windshield. In essence, the district court decided that the cops lied. [FN1]

It appears that the police pulled the Crown Vic over, then looked for a reason why they did. Happily, the federal court rejected that approach to law enforcement.

Intervening Acts

The government, presumably wanting to stand behind police tactics even when they are based on a lie, did not stop there.

The government argued that Mr. Gaines' assault and resisting arrest were an intervening act that were an independent basis to find the gun.

Generally, if the police pull you over when they don't have a reason to, and you then give them a reason, you don't get to complain about the first traffic stop.

So, to make this more concrete, assume that you get pulled over for driving the speed limit. Let's say the police just find that suspicious. While they're pulling you over, the passenger in your car starts shooting off fireworks out the window of the car at people walking by. You can no longer complain (successfully) about being pulled over for driving the speed limit, because your passenger gave them a good reason to pull you over.

Here, the government argued basically the same thing happened. The government argued that because Mr. Gaines assaulted the officer, they could arrest him for that and search him for the gun. If that works, then the lie-based windshield-crack search doesn't matter.

The trouble is, Mr. Gaines hit the cop after they found the gun. So, the gun was found not as a result of Mr. Gaines' assault, but only of the bad search.

A Side Note

It's worth noting that this is the second Fourth Circuit opinion that's come out this year where (a) a defendant won; (b) the case involved a Fourth Amendment issue; (c) based on police tactics by Baltimore City Police; and (d) the case was argued for the government by Maryland's United States Attorney, Rod Rosenstein. Here's my commentary on the other opinion.

[FN1] - I wonder how that perjury prosecution is going. Oh, right.