There are a handful of resentencing remands in the federal courts last week.

Perhaps most interesting is United States v. Francois, remanding because the sentence imposed exceeded the statutory maximum. One doesn't see that too often (though it's preserved in even the most aggressive appeal waivers - I think of it as a theoretical thing rather than a real meaningful risk, but, hey, last week was the week.).

To the victories!

1. United States v. Allen, Fourth Circuit: Appellant was convicted of conspiring to possess with intent to distribute 50 grams or more of crack cocaine and sentenced to 10 years in prison, the mandatory minimum at the time he committed the offense. Before he was sentenced, the Fair Sentencing Act ("FSA") was passed, which raised the drug quantities that triggered mandatory minimum sentences for certain crack offenses. Because the FSA was passed before appellant was sentenced and appellant didn't possess the amount of crack necessary to trigger the mandatory minimum under the FSA, his sentence was vacated and the case remanded for resentencing.

2. United States v. Dotson, Sixth Circuit.pdf: Appellant was convicted of sexual exploitation of a minor and possession of child pornography. He was sentenced to 22 years in prison to be followed by a 20-year term of supervised release, which carried with it many conditions. Because the district court did not articulate a rationale for imposing some of the conditions of supervised release, the judgment was vacated as to those conditions and the case remanded for further proceedings.

3. United States v. Francois, First Circuit: Appellant was convicted of four counts of possession of a firearm by a convicted felon, one count of possession a firearm with an obliterated serial number, and 12 counts stemming from his use of a stolen identity to purchase those firearms. For these offenses, he was sentenced to 164 months in prison. Because appellant's sentences for some of the offenses related to his use of a stolen identity exceeded the statutory maximum, the case was remanded for resentencing.

4. United States v. Hamilton, Eleventh Circuit: Appellant pled guilty to possession with intent to distribute 5 grams or more of crack cocaine and other drug offenses and was sentenced to 262 months. Appellant made two motions under 18 U.S.C.§ 3582(c)(2) to reduce his sentence based on Amendment 750 to the sentencing guidelines, which lowered the base offense levels applicable to crack offenses. It was error to deny the second motion because (1) the government's and probation's memos contained inaccurate or incomplete information about the drug quantity findings at sentencing and (2) the district court did not determine accurately the drug quantity.

5. United States v. Savani, et al., Eighth Circuit: Three appellants were separately convicted of crack cocaine-related offenses. In each case, appellants were sentenced below the statutory mandatory minimum. Shortly after appellants were sentenced, the FSA became law, and Amendment 750 was approved. In light of this amendment, appellants moved to further reduce their sentences. Because they were not barred for policy reasons from seeking a further sentencing reduction under § 3582(c)(2), the courts' orders denying appellants' motions were vacated and the cases remanded for further proceedings.

6. United States v. Washington, Eleventh Circuit: Appellant pled guilty to four fraud offenses and was sentenced to 105 months in prison. The sentence was based in part on the court's ruling that 250 or more people or entities were victimized by the fraud scheme. Because the government failed to present any evidence that there were 250 or more victims, appellant's sentence was vacated and the case remanded for the court to resentence appellant using a two-level, rather than six-level, enhancement for the number of victims under U.S.S.G. § 2B1.1(b)(2)(A).

Three opinions are in this week's "short wins" - on restitution calculation, competency in a bank robbery case, and the Fair Sentencing Act.

And, in federal public defender budget news, the New York Times had an editorial last week calling for more sensible funding of the government services required by the Constitution. Here's the best bit:

The right to counsel is already badly battered in state courts, largely because most states grossly underfinance the representation of impoverished defendants. Indigent defense in federal criminal cases has served as an admirable contrast because of the high quality and availability of federal defenders. Now this system is in peril. Federal defenders will not be able to take the time to visit clients in prison or search for facts that could raise doubts about clients' guilt.

Budget cuts hit every part of the federal government, as we know. Which is why the Department of Justice last week asked to hire an additional 100 lawyers next year over what they had this year.

As the Legal Times reports it,

The U.S. Department of Justice's budget request for 2014 seeks to add dozens of attorney positions, boosting efforts to combat cybersecurity, prosecute financial and mortgage fraud and combat international piracy of intellectual property.

For those of you keeping score at home, the federal public defender is laying off people - including at least one Federal Public Defender himself - furloughing others, and otherwise scrambling to deal with the 5% budget cut that went into effect in February. Meanwhile, DOJ is staffing up.

Apparently a change in tide does not affect all boats equally.

Should DOJ worry that they won't find enough harried, underpaid public defenders to be on the other side of the the cases that their fancy new prosecutors will be bringing?

And, with that, to the victories!

1.United States v. Fareri, D.C. Circuit: Appellant pled guilty to mail fraud, was sentenced to 105 months in prison, and ordered to pay restitution. Remand was required for the district court to correct the specific amounts owed to appellant's victims, as the list of payments due to each victim exceeded the amount identified in the court's oral pronouncement and written judgment. Though the district court's total restitution amount was binding, remand was required to reapportion the payments between victims. [Note - Matt Kaiser was trial counsel in this case.]

2. United States v. Grigsby, Sixth Circuit: The district court issued an order allowing the government to medicate appellant, a pretrial detainee diagnosed with paranoid schizophrenia, in an effort to restore appellant's mental competency so that he could be prosecuted on bank robbery charges. Because appellant's liberty interest in avoiding involuntary medication outweighed the government's interest in prosecution, the order was reversed and the case remanded for further proceedings.

3. United States v. Hinds, Eleventh Circuit: Appellant was convicted of conspiring to possess with intent to distribute crack cocaine and sentenced to a lengthy prison term. He was later resentenced to a reduced term of 120 months. The acts giving rise to the conviction occurred before the passage of the Fair Sentencing Act ("FSA"), though appellant was re-sentenced after the Act. The FSA raised the drug quantities required to trigger mandatory minimum sentences for certain crack offenses. Because appellant was re-sentenced after the FSA was enacted, his sentence was vacated and the case remanded for resentencing.

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

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

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

They were convicted at trial.

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

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

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

As it happens, it didn't.

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

Here are the details.

The brothers were charged with seven counts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As the Eleventh Circuit noted,

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

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

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

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

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

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

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

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

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

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

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

First, as the court of appeals pointed out,

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

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

The Eleventh Circuit said no:

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

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

And Ms. Hall will go back for resentencing.

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

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

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

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

To the victories!

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

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

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

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

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

Perhaps our nation's circuit court judges took it easy last week because of the inauguration, or Martin Luther King Jr. Day, but there's only one case where a defendant won in a published opinion in a federal appellate court.

That said, it's a great win -- sufficiency of the evidence reversal from the Eleventh Circuit.

In other news, vaguely related to this blog, I was quoted in the Baltimore Sun, talking about the prospects for Supreme Court review of a Fourth Circuit case involving a federal habeas challenge to a state conviction.

Here's my quote:

Speaking of the possibility of an appeal by Merzbacher, Matthew G. Kaiser, an appeals specialist in Washington, D.C., said the Supreme Court has shown some interest in cases like Merzbacher's, in which attorneys have been accused of failing to discuss plea negotiations with their clients.

Still, Kaiser said, Merzbacher should not hold out too much hope because the court only takes a fraction of the cases it is asked to review. "It's perhaps moved from really massively unlikely to nearly massively unlikely," he said.

The article is available at this link.

To the victory!

1. United States v. Jimenez, Eleventh Circuit: Appellant was convicted of intentionally misapplying $5,000 or more from an organization receiving more than $10,000 in federal funds in one year. Because there was insufficient evidence to support a finding that appellant intentionally misapplied funds, his conviction was reversed and the case remanded with instructions for the district court to enter a judgment of acquittal.

It's hard not to want to celebrate the orderly processes of government on the day after a Presidential Inauguration.

Though, for those of us who represent people accused of crimes, the "orderly processes of government" may feel a bit different. It's good that we don't have lynch mobs or posses with pitchforks chasing people who we think have violated the norms of our society.

But, as our President reminded us yesterday, our journey is not complete. Of course, most folks agree with the President that our journey is not complete until women earn equal pay, same sex couples can marry, voting rights are meaningful, and immigrants are welcomed.

It would also be nice to think that our journey's completion requires maybe not putting more people in prison than any other country in the world.

I suppose that doesn't make for as fun a speech though.

You come here not for complaints about state power, but to be reminded of the virtues of laws, courts, and processes, even for those who are on the outs with our United States government. Regardless of the flaws with our current system, we still have better appellate processes than a group of vigilantes.

It's a good week in the federal circuits for wins in fraud cases. If you only read this week's "Short Wins" you might think that the sentencing guideline for fraud - 2B1.1 - is complicated or difficult to apply. Indeed, the bulk of this week's cases are victories in sentencing appeals.

To the victories!

1. United States v. Catchings, Sixth Circuit: Appellant pled guilty to identity theft. When the district court calculated the amount of loss under Sentencing Guideline § 2B1.1(b)(1), it erroneously included losses stemming from credit cards that were not obtained or used in violation of criminal law. Consequently, the court incorrectly calculated appellant's guidelines range. Remand for resentencing was required.

2. United States v. Grant, Eighth Circuit: Appellant was convicted of conspiracy to distribute at least 30 but less than 50 grams of crack cocaine and sentenced to 170 months in prison. His sentence was reduced to 130 months as a result of the 2008 amendments to the crack cocaine sentencing guidelines. Appellant sought another reduction under the Fair Sentencing Act, and his sentence was reduced to 123 months. Because the district court abused its discretion when it failed to articulate its rationale for sentencing appellant at the middle of the guidelines range, remand for resentencing was required.

3. United States v. Diallo, Third Circuit: Appellant pled guilty to possession of 15 or more counterfeit credit cards with intent to defraud. At sentencing, though the actual loss was $160,000, the district court assessed a 16-level enhancement under Guideline § 2B1.1 because he could have charged $1.6 million on the credit cards at issue. Because the district court did not properly analyze whether appellant intended to cause the full potential loss, and because this error was not harmless, remand for resentencing was appropriate.

4. United States v. Hall, Eleventh Circuit: At appellant's sentencing for a variety of fraud crimes, she was assessed a four-level enhancement under Guideline § 2B1.1(b)(2)(B) because the district court incorrectly found that the offenses involved more than 50 but less than 250 victims. Because it was unclear from the record whether the court would have imposed the same sentence absent any error, the sentence was vacated and the case remanded for resentencing.

5. United States v. Resendiz-Moreno, Fifth Circuit: After appellant plead guilty to illegal reentry, the district court calculated his offense level, applying a 16-level enhancement under Guideline § 2L1.2(b)(1)(A)(ii) based on the court's determination that appellant's prior conviction for first-degree cruelty to children constituted a crime of violence. Because the statute under which appellant was convicted did not require a showing of physical force, the offense did not constitute a crime of violence. Therefore, appellant's sentence was vacated and the case remanded for resentencing.

6. United States v. Roussel, Fifth Circuit: Appellant was convicted of wire fraud and conspiracy involving a scheme to defraud a utilities provider. At sentencing, the court erred in applying a two-level enhancement under Guideline § 2C1.1(b)(1) because it incorrectly found that more than one bribe occurred. The court also erred in calculating the fraudulent contract's expected benefit to appellant, as it's calculation was purely speculative. As a result, the court started at an incorrect guidelines range. Because it is unclear whether the court would have imposed the same sentence had it started with the correct range, the errors were not harmless, and remand for resentencing was required.

7. United States v. Zepeda, Ninth Circuit: Appellant was convicted of nine offenses arising out of his role in injuring people inside a home located on the Ak-Chin Reservation of Arizona. In counts 2 through 9, appellant was convicted under The Major Crimes Act, which governs certain crimes committed by Indians in Indian country. Because the government failed to prove beyond a reasonable doubt that appellant was an Indian under the Major Crimes Act, his convictions on these counts were vacated.

Who doesn't love a good Franks hearing? Apparently the district court judge in the Seventh Circuit case of United States v. McMurtrey.

It's a relatively quiet week in the federal circuit's for defense victories. A Fourth Amendment win in the Tenth Circuit, a few sentencing remands, and, most exciting (for me) a Franks hearing remand in the Seventh.

To the victories!

1. United States v. Castro, Third Circuit: Appellant was convicted of offenses arising out of three separate schemes to extort money through violence. Because the record did not contain evidence that he knowingly made a false statement to the FBI, his conviction of this offense was reversed. Given the reversal of his conviction on this count, remand was required for resentencing on appellant's conviction for conspiracy to commit extortion to calculate the correct guidelines range.

2. United States v. De La Cruz, Tenth Circuit: The district court erred in denying appellant's motion to suppress his ID card, which was obtained during an investigative seizure, because (1) the agents did not have reasonable suspicion to continue to detain appellant to obtain his identification and (2) the court erroneously concluded that appellant's identification was not suppressible, even if there was an unlawful seizure. For these reasons, the district court's decision was reversed and the case remanded.

3. United States v. Fraga, Fifth Circuit: Appellant was sentenced to 27 months in prison and a lifetime of supervised release after pleading guilty to failing to register as a sex offender. Because the district court did not give reasons for its imposition of a lifetime term of supervised release, this portion of the sentence was vacated and the case remanded.

4. United States v. McIntosh, Eleventh Circuit: Appellant was sentenced to 120 months in prison after pleading guilty to possession of five grams of crack with intent to distribute and carrying a firearm during a drug trafficking offense. After appellant committed these offenses, but before he was sentenced, the Fair Sentencing Act was enacted. The Act, among other things, raised the threshold possession amount that triggered the mandatory minimum sentence - 120 months - applied in appellant's case. Because appellant was sentenced after the Act's effective date, he was entitled to have the benefit of the Act's higher threshold for the mandatory minimum sentence. Consequently, his sentence was vacated and the case remanded for resentencing.

5. United States v. McMurtrey, Seventh Circuit: Because appellant demonstrated that the affidavits on which the search warrant for appellant's home was based were contradictory, remand was required for a full hearing pursuant to Franks v. Delaware.

When a person is convicted of a federal crime, especially in a fraud case, but in lots of other kinds of federal criminal cases too, the district court sometimes also orders that the person pay restitution.

The point of restitution is that the person has to pay back any money that they took - they have to make any victims of the crime whole again.

To satisfy a restitution judgment, the federal government can go try to get that money from assets that a person has - they can go after bank accounts and retirement accounts and houses.

A frequent question many folks have is whether they can also go after property that a person jointly owns with his or her spouse.

The Eleventh Circuit recently opined on how this works in United States v. Duran.

Duran Duran

Lawrence Duran and Carmen Duran were married.

Then Lawrence Duran was convicted of participating in a conspiracy to defraud Medicare. As a part of his sentence, he was ordered to pay restitution of more than $85 million. He was also sentenced to 50 years in prison.

Before Mr. Duran's legal troubles, he owned an apartment with Mrs. Duran in New York City.

The Durans divorced before Mr. Duran was sentenced. In the divorce, it appears that Mrs. Duran was given sole title to the New York apartment.

Hungry Like The Wolf

After Mr. Duran was sentenced, the government wanted its $85 million. It applied for a writ to execute the restitution judgment. In the application for the writ, the government said that the apartment was a substantial asset that it should be able to collect.

When the prosecutors applied for the writ of execution, they told the court that they were serving it by using the district court's electronic case filing system. By filing it, in other words, it would be sent electronically to any attorney who had filed a notice of appearance in the case.

Because Carmen Duran wasn't a lawyer involved in the case - and didn't have a lawyer in the case - she didn't get a copy of the motion asking for a writ.

The Reflex

Getting an application from the government, though, caused the Court to approve the application for a writ. The writ ordered the Marshals Service to satisfy the judgment against Lawrence Duran by "levying on and selling" the apartment.

Carmen Duran filed a motion to dissolve the writ and not have her apartment sold. She said she was an innocent owner of the apartment who deserved an evidentiary hearing. Mrs. Duran said that she got half the apartment in the divorce anyway.

The government opposed Mrs. Carmen's motion, saying that she could get half of whatever they collected when the Marshals sold it. They said that their judgment lien had priority over Mrs. Duran's unrecorded claim.

When you look at the property records of New York, apparently, the apartment is listed as jointly owned by both Durans.

It seems that Mrs. Duran's divorce lawyer failed to record the new deed that showed she owned the apartment alone.

So Misled

The district court said it didn't have jurisdiction to hear the claim. If Mrs. Duran wants to challenge this, the district court's view was that the right place for a property dispute in New York was a state court in New York.

Mrs. Duran appealed.

The Eleventh Circuit started by looking at the Fair Debt Collections Act - the statute that the government has to use to collect a restitution judgment.

As the Eleventh Circuit explained,

The Act limits the authority of the United States to levy against jointly-owned property. The United States may levy "property which is co-owned by a debtor and any other person only to the extent allowed by the law of the State where the property is located." Id. § 3010(a). With regard to levying against property under a writ of execution, "[c]o-owned property [is] subject to execution [only] to the extent such property is subject to execution under the law of the State in which it is located." Id. § 3203(a).

The Act also says the government has to give notice to any co-owner or any other person with an interest in the property before they can take it. And the government has an affirmative burden to look for people who might have an interest.

Most importantly, the Eleventh Circuit said,

The Act obliges a district court to adjudicate any contested ownership interests in property subject to a writ of execution. The Act provides that the United States may levy only property in which a judgment debtor has a "substantial nonexempt interest." Id. § 3203(a). To that end, the district court must determine whether the debtor has any ownership interests in the property, and the district court must determine the ownership interests of any person who moves to dissolve or modify any writ.

So, all ended well for Mrs. Duran - except as to her ex-husband's fifty year prison sentence.

The Eleventh Circuit directed that

On remand, the district court must determine the respective ownership interests, if any, of Carmen and Lawrence in the apartment when the United States obtained the writ of execution and whether Lawrence had a "substantial nonexempt interest" in the apartment that the United States could levy.

Sometimes a boat ride - a three hour cruise - can take you places you could never have anticipated.

For Yimmi Bellaizac-Hurtado, Pedro Felipe Angulo-Rodallega, Albeiro Gonzalez-Valois, and Luis Carlos Riascos-Hurtado, a ride in a wooden boat off the coast of Panama took them to the Eleventh Circuit, the Bureau of Prisons, and through the heart of the Constitution's grant of power to Congress to make laws to punish "Offenses against the Law of Nations."

Welcome to the Jungle

The four men were spotted in Panamanian waters by the United States Coast Guard in 2010. Their boat was wooden and had no lights or flag.

The Coast Guard told the Panamanian National Aero-Naval Service. I'm guessing that's both their navy and air force, but the webpage Google gives me for them is down. Tech support is probably out chasing fishing boats.

Anyway, the Aero-Naval Service chased the boat. It ran to land, and the four men jumped off and ran into the jungle.

The Aero-Naval Service found 760 kilos of cocaine in the boat. This did not diminish their interest in the four men.

Give Me Your Tired, Your Poor, Your Huddled Masses

The four men were caught in the jungle. The United States and Panama agreed that they would he prosecuted in the United States.

A grand jury in Miami indicted the four for "conspiracy to possess with intent to distribute five kilograms or more of cocaine, and for actual possession with intent to distribute five kilograms or more of cocaine, on board a vessel subject to the jurisdiction of the United States."

For the statutory provisions undergirding this charge, see 46 U.S.C. §§ 70503(a), 70506 and 21 U.S.C. § 960(b)(1)(B).

Astute readers may be wondering what it means to be "on board a naval vessel operating in the jurisdiction of the United States." How bounded is the jurisdiction of the United States - if at all?

Or, more belligerently, what gives Congress the right to make laws about operating a fishing boat with 760 kilograms of cocaine off the shore of Panama?

Congress's view, apparently, is that it has this power because of the Constitution. Our Constitution contains a provision, at Article I, section 8, clause 10, which says that Congress can "define and punish . . . Offences against the Law of Nations."

These four men - this huddled mass - clearly had good counsel. They filed a motion to dismiss the case against them because Congress does not have the authority to regulate drug-laden fishing boats in Panama.

The district court was uninterested in this argument. The motion was referred to a magistrate judge who denied the motion. As the Eleventh Circuit summarized it:

The magistrate judge reasoned that the district court had jurisdiction because the defendants were operating a stateless vessel and that the Act was constitutional as applied because Congress and several courts had determined that drug trafficking was "universally condemned" by various nations with "reasonably developed" legal systems.

The district court adopted the magistrate judge's findings.

Movin' On Up

The men pled guilty, with an agreement that they can challenge whether Congress has the power to criminalize their conduct. They were sentenced to between 25 to 90 months in prison and went to the Eleventh Circuit.

In United States v. Belliaizac-Hurtado, the Eleventh Circuit reversed.

Offenses Against the Law of Nations

The Supreme Court, according to the Eleventh Circuit, has said that the Offenses Against the Law of Nations clause covers three things: "the power to define and punish piracies, the power to define and punish felonies committed on the high seas, and the power to define and punish offenses against the law of nations."

This isn't a case of piracy, and it isn't a case of a felony committed on the high seas.

The Eleventh Circuit held that the power to define and punish offenses against the law of nations is limited only to offenses which are "customary violations of international law."

Congress can't expand what's meant by the law of nations under this Clause. For example, the Supreme Court held (in 1820) that Congress can't define piracy to include murder and then have murder be punishable under a grant of power from this clause:

Nor is it any objection to this opinion, that the law declares murder to be piracy. These are things so essentially different in their nature, that not even the omnipotence of legislative power can confound or identify them. Had Congress, in this instance, declared piracy to be murder, the absurdity would have been felt and acknowledged; yet, with a view to the exercise of jurisdiction, it would have been more defensible than the reverse, for, in one case it would restrict the acknowledged scope of its legitimate powers, in the other extend it. If by calling murder piracy, it might assert a jurisdiction over that offence committed by a foreigner in a foreign vessel, what offence might not be brought within their power by the same device?

It goes on like that. And makes you grateful for Scalia's writing.

Ok - so Congress can't just make up new "law of nations" to expand its power under this Clause. The Eleventh Circuit, relying on a practically recent Supreme Court opinion, held that,

on the issue whether Congress must declare the conduct to be an offense against the law of nations to exercise its power under the Offences Clause, the Supreme Court has explained that "[w]hether the offense as defined is an offense against the law of nations depends on the thing done, not on any declaration to that effect by congress." United States v. Arjona, 120 U.S. 479, 488, 7 S. Ct. 628, 632 (1887).

The law of nations, then, is the same as "customary international law." And the Eleventh Circuit defines "customary international law" as the "general and consistent practice of states followed by them from a sense of legal obligation."

The court of appeals goes on to note that

"Private criminal activity will rarely be considered a violation of customary international law because private conduct is unlikely to be a matter of mutual legal concern"

From that it falls out relatively straightforwardly that PWID in a fishing boat in Panama isn't within the power of Congress to regulate under this statutory framework.

Preserved in Amber

This opinion reads like it's preserved in amber. Doubtless it's an artifact of being about an area of law where there's been no action since the 19th Century.

But still, the idea that categories of legal things have essences that Congress can't define away is precious. And, in the criminal realm at least, almost completely absent.

Congratulations, though, to our four Panamanian friends. I hope that if they're prosecuted in Panama for what it surely a violation of Panamanian law, that they get credit for the time they served in the land of the free.

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!

1. 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.

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:

1. 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.

James Mathurin had a hard adolescence.

As a seventeen-year old, he went on a five-month crime spree in Miami involving armed robberies and carjackings.

Finally, he was arrested when the police suspected that he had carjacked an Acura. He told the police about how he'd spent the past few months. The state law enforcement authorities investigated and corroborated a lot of what he said.

It seemed that Mr. Mathurin was in a hurry to grow up. Happily for Mr. Mathurin, the federal government was not in enough of a hurry to charge him with a crime - the Eleventh Circuit reversed his conviction for a violation of the Speedy Trial Act in United States v. Mathurin.

The Federal Case

Never one to pass up an easy prosecution, the federal government got involved in Mr. Mathurin's activities. Mr. Mathurin was charged in a juvenile information in federal court in Miami. They asked to prosecute him as an adult.

On August 27, 2009, the federal district court entered an order letting the government proceed against him as an adult.

The government and Mr. Mathurin's lawyer started plea negotiations. At a status conference on December 22, 2009, it became clear that Mr. Mathurin was not interested in a guilty plea.

He was indicted by a federal grand jury on December 29, 2009.

Ultimately, he was tried and convicted of many of the charges. He was sentenced to 492 months. For those of you not used to dividing by twelve numbers in excess of 360, that's 41 years in prison.

The Speedy Trial Act

The federal Speedy Trial Act - at 18 U.S.C. § 3161 - has a number of requirements. One of them is that if a person is arrested or charged by any charging document other than an indictment in federal court, then the person has to be indicted by a grand jury within 30 days - or have the charges dismissed - or the indictment violates the Speedy Trial Act.

Of course, this is the law - there are exceptions to this requirement that are set out at section 3161(h).

One of these exceptions is for "[a]ny period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the government."

The Government Did Not Stop Time

The Eleventh Circuit determined that the 30-day Speedy Trial clock started when the district court ordered that Mr. Mathurin could be tried as an adult, on August 27, 2009.

It is, of course, more than thirty days from August 27, 2009 to December 22, 2009.

The government argued that much of that time they were in plea negotiations, so that time should be excluded under the Speedy Trial Act. The government's view is that the period during which the parties are participating in plea negotiations count as a "period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the government."

Of course, plea negotiations often don't involve the judge - much less the court's consideration of a proposed plea agreement. And the plea negotiations didn't in Mr. Mathurin's case.

Indeed, as the Eleventh Circuit held that "insofar as the District Court was never asked to review a proposed plea agreement during the relevant period," the Speedy Trial clock was not properly tolled as a result of "other proceedings" involving the defendant.

The Eleventh Circuit went out of its way to say that it had to strictly construe the language of the Speedy Trial Act in the wake of Bloate v. United States - an opinion by Justice Thomas that called for strictly hewing to the language of the Speedy Trial Act.

The Other Way To Stop Time

Of course, there is another way to stop the Speedy Trial clock - if the government had asked the district court to find that the time should be excluded because it meets the ends of justice - and complied with the significant procedural requirements discussed by the Supreme Court in United States v. Zedner - it likely could have excluded this time.

But it didn't. And, as a result, Mr. Mathurin's convictions were vacated and the case was remanded with instructions to dismiss the indictment.

The district court judge gets to decide if the indictment is dismissed with prejudice or without. So don't look for notice of Mr. Mathurin's coming home party too soon.

Stuart Register ran a business that conducted criminal background checks on people.

He had a number of employees. Employees, of course, have to be paid. To pay them, he used a payroll company - PrimePay. PrimePay withheld taxes from the employees' pay, and told Mr. Register how much he needed to send to the government for those taxes.

Mr. Register did not send money that was withheld to pay taxes.

As you might suspect, that is a federal crime.

Mr. Register also falsified his personal taxes from 2003 until 2006.

That is also a federal crime.

He was indicted and pled guilty without a plea agreement.

The tax loss - the amount of money the government lost because of the tax crime - for Mr. Register's withholding offense was a little more than $300,000.

The loss for his falsified tax returns was around $115,000.

The question is - should Mr. Register be punished more because he had two separate kinds of tax offenses.

A step back is helpful. Under the federal sentencing guidelines, sometimes, two different offenses "group." And sometimes they don't. Generally, a person being sentenced wants the charges to group.

Intuitively, you can see that if a person robs two banks, those are separate crimes with separate victims. The harm caused by the bank robbery is the fear instilled in the teller, as well as the money taken from the bank.

So, if a person robs a bank on Monday, then on Tuesday robs the same bank again - but with a different teller let's say - you would think there are two separate harms. As a result, you would want the person's sentence to increase based on the second scary thing that happened to the teller.

And the guidelines accommodate that intuition - when there are two separate harms like that the crimes do not group. When things do not group, then each serves to increase the sentence that the sentencing guidelines suggest.

Imagine, though, that the person is just embezzling from the bank. Suppose, let's say, that a teller is slipping money out when counting the receipts. And she does that on Monday and Tuesday. There, the harm is the money being stolen. So, the guidelines count all the money that's taken, and add it together, but do not treat each separate event as something that necessarily should increase the person's sentence - beyond the increase that comes just from more money being added.

For Mr. Register, the question was whether the two tax offenses should group.

The probation officer preparing the presentence report said that they do not group. Both Mr. Register and the government objected, and the probation officer stuck to his or her guns. In response to the joint objection, the probation officer said (with my emphasis added),

The guidelines direct under USSG § 3D1.2 that counts can be grouped together when they involve substantially the same harm. Under subsection (b), counts can be grouped together when they involve the same victim and two or more acts connected by a common criminal objective or common scheme or plan. Under subsection (d) counts can be grouped together when the offense level is determined largely on the basis of the total amount of harm or loss. The defendant has been convicted of 17 counts representing two offenses: Failure to Pay Over Taxes to the [IRS] and Filing Fraudulent Federal Income Tax Returns. During the years 2004 through 2007, the defendant failed to pay over employment taxes to the IRS for his employees. In addition, during the same period, he failed to pay income taxes on his own income and claimed inflated amounts of federal income tax withheld causing the IRS to pay him refunds that he was not entitled to. Although the IRS is the ultimate victim in both endeavors, the probation office views the defendant's criminal behavior as two separate criminal objectives with two separate harms. It does not appear that the defendant committed both acts to specifically defraud the IRS. It does appear that the acts occurred as a result of his lifestyle and/or his personal financial situation. His behavior was not part of a single course of conduct with a single criminal objective.

So, the probation officer concluded that because there was no single course of conduct, there could be no singular harm, even though the one singular entity - the IRS - was out money because of the conduct.

The district court agreed, and sentenced Mr. Register to the high-end of his non-grouped guidelines range - 27 months.

Mr. Register appealed, and the 11th Circuit, in United States v. Register, reversed.

The court of appeals decision tracks closely the language of section 3D1.2 - basically, when the sentencing guidelines range is driven by a loss amount, there is no requirement in the guidelines that the offenses at issue arise out of the same plan or scheme.

So, since there was one victim - the IRS - suffering one harm - the loss of tax revenue - the two different tax crimes group, and Mr. Register goes back for resentencing.

You've got to feel for federal district judges.

Their caseloads are going up as the Senate refuses to confirm judges to replace those who have left the bench. Justice Scalia doesn't respect them. Their pay hasn't been meaningfully increased in years.

So you could understand why a federal district court judge would want to have fewer trials.

Of course, the easiest way to see a case not go to trial is to see it result in a plea.

But a federal judge isn't allowed to participate in the plea negotiations between the parties (it's in the rules - Federal Rule of Criminal Procedure 11(c)).

What counts as participating in plea negotiations? As it happens, the Eleventh Circuit recently opined on that question in United States v. LaCour.

Mr. LaCour's Internet Drug Emporium

Jude LaCour ran a business called the Jive Network. In an effort to cut down on the spiraling cost of prescription medicines, and how expensive it can be to find a doctor to write a prescription, the Jive Network ran a number of webpages.

Customers of the Jive Network would fill in an online form about their health. They would order drugs that they thought would ameliorate whatever health condition they suffered from.

A doctor would review the web form. The doctor had no ability to change the amount or kind of drug, but the doctor did have to sign off on the prescription. The Jive Network would then issue a prescription in the doctor's name and send out the drugs.

One doctor who worked at the Jive Network filled prescriptions in as little as six seconds.

From 2002 to 2005, the Jive Network had more than $85 million in revenue.

Mr. LaCour's Federal Criminal Case

Mr. LaCour was indicted, along with a few of the doctors who worked for the Jive Network, in a 53 count indictment that accused them of conspiracy to distribute Schedule III and Schedule IV prescriptions without a valid prescription, a few individual counts of distributing drugs without a prescription, and a rack of money laundering charges.

Many folks pled.

The district court judge assigned to the case wanted to make sure that everyone who didn't plead knew that they had the option of trying to negotiate a plea.

During a status conference, the district court asked the government and the lawyers for the people accused of a crime if plea negotiations had happened. The district court specifically talked about whether there's a way to structure a plea so that it would have less affect on the professional licenses of the doctors who were accused.

The district court concluded the conversation by telling everyone that he would be the judge to sentence everyone - apparently some of the cases were assigned to another judge - and that knowing who the judge is would matter a lot to the defendants.

Then, a few weeks later, the district court raised plea possibilities again. As the Eleventh Circuit described it:

The District Court stated, "I want to now address each of the defendants individually and talk about the possibility of other resolutions of this matter other than a trial." The District Court acknowledged that it is "strictly prohibited from attempting to work out any kind of an agreement upon resolution of the case short of a trial." The Court nonetheless went on to note that "[t]his case if there is a conviction requires the Court [to] determine here that defendant fits with respect to the sentencing guidelines." The Court then distributed a chart that, based on the record, may have shown the sentencing guidelines ranges, and it went on to discuss the history of the federal sentencing regime and the applicable law as it stands. In describing the current sentencing regime, the District Court stated that "the Supreme Court has made it pretty clear . . . that we judges have a great deal of discretion in that area."

That last statement is kind of odd. It's sort of like "remember, I'm the guy you want to make sure is happy at the end of the day."

The District Court did state, "Remember, I'm not permitted to engage in plea negotiations, so I'm not suggesting to any defendant that you should consider pleading guilty." The District Court, however, said: "But I am concerned that you understand what the position of the government is if in fact you should want to think about pleading guilty. . . . I'm not interested in the details [of any offer], but I want to be sure that each defendant for whom the government has presented a proposition knows about the proposal." The District Court then asked the government to indicate whether it had presented a proposal to the defendants. The government stated that it did put forward a proposal for each defendant. The District Court then directly asked each individual defendant, including all five appellants, whether they had seen the proposal."

Not more than two weeks later, the trial started.

The court of appeals held that this was over the line. Because "the district court explicitly indicated that it would like the defendants to begin and engage in plea negotiations" it violated the commandment in Rule 11 not to participate in the negotiation.

As most folks know, the Supreme Court recently held that defense counsel can be ineffective in messing up plea negotiations. If the district court had said, instead of what he did here, something like "I just want to make sure everyone's being constitutionally effective - defense counsel, have you talked about plea negotiations" would that violate Rule 11? I suppose we'll have to find out.

Mr. LaCour, as a result, had his sentence reversed and remanded so that he could be resentenced in front of a different judge.

Interestingly, the other folks who the district court encouraged to plead won't be eligible for resentencing because they didn't appeal anything else in connection with their sentences. Deeply unlucky.

As frequent readers of this blog know, the Armed Career Criminal Act gets a lot of appellate attention.

Simply put, if you've been previously convicted of a felony, and you're found with a gun, that's a federal crime. Normally, the most you can get for that crime is 10 years.

But, under the Armed Career Criminal Act, if you have three prior convictions for either a crime of violence or a drug distribution offense, then you face a mandatory minimum sentence of 15 years, and a maximum sentence of life.

That's a big change.

As I've written about before (here from the Ninth Circuit, here from the Fourth Circuit, here from the Eighth Circuit, and in two places from the Sixth Circuit, here and here, to suggest a few places to look), what counts as a "crime of violence" is really miles away from clear.

In short, the Armed Career Criminal Act is a mess. What counts as a qualifying predicate offense is light years from clear. And it's a mess that is causing thousands of additional years of prison time for people.

But don't take my word on it; the New York Times recently had an editorial about how wrong the ACCA is.

The New York Times writes that,

Justice Antonin Scalia has called this federal statute unconstitutional because some of its language is so vague that it "permits, indeed invites, arbitrary enforcement." In dissenting in a case last year, he wrote, "Many years of prison hinge on whether a crime falls within" the act.

The Eleventh Circuit addressed whether statutory rape counts as a "crime of violence" under the ACCA in United States v. Owens.

Statutory rape, basically, is the crime of having sex with someone who is too young to consent by law. In Alabama, the state law that matters in Owens, the age of consent is generally 16.

Mr. Owens was previously convicted, many times, for having sex with someone between the ages of 12 and 16 (we know the person was older than 12, because he was convicted of an offense with that age range - presumably having sex with someone younger than 12 has its own separate statutory section, and is punished more severely.

After picking up his statutory rape convictions, Mr. Owens was convicted of being a felon in possession of a firearm.

So, the question is - is statutory rape a crime of violence?

Initially, the Eleventh Circuit said yes. The court of appeals held that statutory rape involves the use of force on the person of another. Here's how the court summarized its conclusion from the prior opinion:

We explained that "the plain meaning of 'physical force' is power, violence, or pressure directed against a person consisting in a physical act." In interpreting the term "physical force" . . . , we noted that "a person cannot engage in nonconsensual sexual penetration with another without exerting some level of physical force." Because under Alabama law second-degree rape is sexual intercourse with a person incapable of consenting to the act, we concluded "that a second degree rape conviction under Alabama law must involve the use of physical force against the person of another."

There's a tidy bit of equivocation on the word "consent" between the second sentence and the third - a fifteen-year old can "consent" in the sense of the second sentence in a way that he can't in the third - but you get the court's idea.

Then the Supreme Court decided Johnson v. United States. As the Eleventh Circuit described the Court's reasoning in Johnson:

The Court reasoned that because "context determines meaning," the phrase "physical force" as used in the statutory definition of violent felony "means violent force - that is, force capable of causing physical pain or injury to another person." The word "violent" connotes "a substantial degree of force," and the implication of "strong physical force" is made even more pellucid by its attachment to the word "felony." "[T]he term 'physical force' itself normally connotes force strong enough to constitute 'power'-and all the more so when it is contained in a definition of 'violent felony.'" Thus, the Court concluded that battery under Florida law did not satisfy the definition of "violent felony"

In light of Johnson, the Eleventh Circuit's prior holding in Owens was remanded and the Eleventh Circuit considered it again.

On remand, the Eleventh Circuit changed course.

For this court to uphold Owens's sentence, we would have to conclude [statutory rape] "inherently poses a serious potential risk of physical injury to another" and consequently "qualifies as a crime of violence["] comports with the Johnson Court's definition of "violent felony" under the ACCA. We would be intellectually dishonest if we decided that in the affirmative.

The court of appeals noted that to secure a conviction for statutory rape

the government need only show that the offender is 16 years old or older and engaged in sexual intercourse with a person of the opposite sex who is between the ages of 12 and 16, without legal capacity to consent. See Ala. Code § 13A-6-62. The government is not required to show forcible compulsion

Since violence isn't required for statutory rape to be committed, statutory rape is not a crime of violence.

Mr. Owens is going back for resentencing.

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.

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.

People are social animals. We teach each other. We learn from each other. We judge each other.

Perhaps dozens of times a day we make evaluations about other people based on how they look at us and what they say to us. We make determinations about other people based on race and class and whether we think another person is "one of us" - in all the ways that a person can be one of us. Maybe pheromones play a role in how we evaluate each other. But these small judgments we make in our interactions with others shape how we treat each other in ways large and small.

None of this goes away when a judge puts on a robe and imposes a sentence on a person who has been convicted of a crime.

A federal district judge will know generally about the crime - the judge either sat through a trial and heard the testimony, or read a statement of offense in a plea agreement - and will know from the presentence report about the person being sentenced.

But these background facts don't give the judge the same human knowledge about the person that a face-to-face interaction does. Which is why whether the person speaks at his sentencing - and how he acts if he does speak - can be very important.

Rule 32 of the Federal Rules of Criminal Procedure give a person being sentenced a right to talk to the judge about what sentence the court should impose.

The right to talk to the judge before the sentence is imposed was given a very muscular reading by the Eleventh Circuit in United States v. Perez.

Mr. Perez, along with a number of others, was convicted of conspiring to rob a check cashing store, as well as a drug stash house that did not, in fact, exist. The federal government, in an apparent effort to bring counter-terrorism tactics to the street, has started finding people who may be interested in committing a crime, then arranging with a confidential informant to have them find some fake entity to conspire to rob. It's easier to catch fake crime than real crime, I suppose. (For more on these kinds of cases, please see this post at the Ninth Circuit blog).

At sentencing, the sentencing court said to Mr. Perez's counsel "will the defendant be allocating?" Mr. Perez's lawyer conferred with his client then told the court, "No, Your Honor. He doesn't wish to address the Court." Mr. Perez did not, then, address the court.

The Eleventh Circuit found that this violated Mr. Perez's right to present information to the court. The court of appeals noted that:

On a number of occasions, "[w]e have explicitly held that the requirement of Rule 32[(i)(4)(A)(ii)] is not satisfied when the court does not address the defendant personally concerning the defendant's desire to allocute but instead addresses defendant's counsel only."

In light of that, the court held that it was not convinced that Mr. Perez knew that he had a right to speak to the sentencing judge.

Because the right to allocute is fundamental, the Eleventh Circuit reversed, even though no one objected at the time.

Waxing poetic about the importance of allocution, the court of appeals said

The right of allocution provides a defendant "an opportunity to plead personally to the court for leniency in his sentence by stating mitigating factors and to have that plea considered by the court in determining the appropriate sentence." United States v.Tamayo, 80 F.3d 1514, 1518 (11th Cir. 1996). "As early as 1689, it was recognized that the court's failure to ask the defendant if he had anything to say before sentence was imposed required reversal." Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 655, 5 L. Ed. 2d 670 (1961) (Frankfurter, J., plurality opinion). Although criminal procedures have progressed significantly since the seventeenth century, "[n]one of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation." Id. Allocution continues to "ensure that sentencing reflects individualized circumstances," United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994) (citing United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991), while maximizing the "perceived equity of the process." Id. (quoting Barnes, 948 F.2d at 328). Consequently, a defendant's right of allocution, which is codified in Federal Rule of Criminal Procedure 32, remains firmly entrenched in our criminal jurisprudence.

And so, back for resentencing Mr. Perez will go.