Results tagged “Fourth Circuit” from The Federal Criminal Appeals Blog

March 12, 2014

Short Wins - The Aggravated Identity Theft, 18 U.S.C. § 1028A, and Stacking Edition

Aggravated identity theft - charged under 1028A - seems like it's getting more and more popular among federal prosecutors. It does come with massive leverage in plea negotiations; a conviction for a violation of 18 U.S.C. § 1028A carries a mandatory 2 years in prison, consecutive to any other count of conviction. I'm starting to see these in cases beyond the garden variety identity fraud gift card cases - like tax and health care fraud.

The statute says that for subsequent 1028A convictions, a district court has discretion whether to stack them. And United States v. Chibuko addresses exactly that issue and the importance of reading a statute.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Chibuko, Second Circuit: Appellant was convicted of various fraud crimes, including three counts of aggravated identity theft under 18 U.S.C. § 1028A. Although sentences under § 1028A usually carry a two-year sentence, each to run consecutive to each other, Appellant's charges are part of the same scheme involving the same victim. Because the district court did not appreciate its ability to have those sentences run concurrently, the case is remanded for resentencing.

2. United States v. Taylor, Second Circuit: Appellants' convictions for robbery of a pharmacy were vacated. Statements from Taylor were used during trial against all appellants, but those statements were found to be involuntary because Taylor had ingested a large number of pills as he was arrested. Admitting those statements against each of the Appellants was not harmless error, so their convictions were vacated and the cases remanded for new trials.

Defense Attorneys: Kelley J. Sharkey, Jillian S. Harington, and Colleen P. Cassidy

3. United States v. Strayhorn, Fourth Circuit: Appellants were convicted on a number of robbery charges. On appeal, the Fourth Circuit held that a partial fingerprint found on duct tape was insufficient evidence to convict Janson Strayhorn of robbery. The court also held that Jimmy Strayhorn's sentence must be vacated because the district court failed to instruct the jurors, for the brandishing charge, that they needed to find Jimmy Strayhorn had brandished a gun.

Defense Attorneys: James B. Craven III and Tony E. Rollman,

4. United States v. Debenedetto, Seventh Circuit: After being arrested, Appellant was found mentally incompetent and was committed for further evaluation, including an order for involuntary treatment with psychotropic medications. The Seventh Circuit vacated the commitment order because the hearing and written findings of the district court failed to comply with Sell v. United States by not considering less intrusive measures.

5. United States v. Poulin, Seventh Circuit: Appellant pled guilty and received 115 months' imprisonment for possession of child pornography. The sentence was vacated and remanded because the court made not harmless procedural errors, imposing both a sentence and special conditions without providing adequate reasons.

6. United States v. Woodard, Seventh Circuit: Appellant was charged with health care fraud and sentenced to 80 months' imprisonment after pleading guilty. This sentence violated the ex post facto clause because she was sentenced under the wrong version of the sentencing guidelines.

7. United States v. Burrage, Eighth Circuit: On remand from the Supreme Court, the Eighth Circuit reversed Appellant's conviction of distribution of heroin resulting in death. The jury instruction was improper because it did not require the jury to find that the heroin was the proximate cause of the death.

8. Clabourne v. Ryan, Ninth Circuit: The district court denied Appellant's habeas corpus petition which claimed ineffective assistance of counsel at resentencing. The Ninth Circuit issued a certificate of appealability and vacated the denial of relief because there was potential merit to the claim that counsel was ineffective for failing to object to the sentencing court's consideration of a 1982 confession.

Defense Attorney: S. Jonathan Young

9. United States v. Tanke, Ninth Circuit: The Ninth Circuit held that it was plain error to include restitution amounts that were not part of the offenses of conviction and therefore vacated and remanded for resentencing.

January 21, 2014

Short Wins - The First Post of 2014 Edition

There's been a lot of action in the federal circuits these first few weeks of the year, and here, in one post we have a lot of it.

One shout out in particular is U.S. v. Aparicio-Soria. The Fourth Circuit weighs in on resisting arrest. Is it always a crime of violence? Surely not, but, well, it takes a while for things to get to that point.

Congratulations Sapna Mirchandani for a nice win!

To the victories!

1155650_berlin_siegessule.jpg1. U.S. v. Jones, Third Circuit: Appellant was sentenced to 120 months imprisonment following a guilty plea to possession of a firearm by a convicted felon. The Third Circuit vacated the sentence finding that the District Court erred in applying a sentencing enhancement for assault of a police officer. Since the officer was unaware that the Appellant was attempting to withdraw a gun, the officer had not been assaulted.

Defense Attorneys: Thomas W. Patton

2. U.S. v. Guzman, Fifth Circuit: Appellant, who was convicted of being a felon in possession of a firearm, appeals his conviction and sentence because the trial court denied his motion to suppress evidence. Because the District Court expressly declined to make factual findings that may have had a determinative impact on the outcome of the suppression hearing, the Fifth Circuit vacated the conviction and sentence. The case was remanded to ascertain whether the police officer asked Appellant for consent to search his car.

3. U.S. v. Shepard, Sixth Circuit: Appellant was found guilty of three counts of receipt of visual depictions of minors engaged in sexually explicit conduct and one count of attempted receipt. Appellant appealed his convictions and sentence because one juror, prior to the commencement of trial, contacted the court and expressed his inability to view any pictures or video because of the content of those materials. The Sixth Circuit remands for retrial, finding that it was an abuse of discretion to not excuse the juror.

Defense Attorney: Gregory A. Napolitano

4. U.S. v. Currie, Seventh Circuit: Appellant pled guilty to charges of conspiracy to distribute cocaine and possession of a firearm following a felony conviction and was convicted to 121 months imprisonment. At the time of sentencing, the district court believed the mandatory minimum for Appellant to be ten years. The Seventh Circuit remanded for the purpose of ascertaining whether the district court would be inclined to sentence the Appellant differently knowing that Appellant is subject to the lower statutory minimum of five years.

5. U.S. v. Spencer, Seventh Circuit: The Seventh Circuit vacated Appellant's sentence because the district court improperly included a sentencing enhancement. Because one of Appellant's prior convictions did not qualify as a "serious drug offense", the sentencing enhancement should not have been applied when calculating his sentence.

6. U.S. v. Toledo, Tenth Circuit: Appellant was convicted of voluntary manslaughter. During trial the court denied Appellant's request for self-defense and involuntary manslaughter jury instructions. The Tenth Circuit reversed and remanded for a new trial finding that the evidence warranted self-defense and involuntary manslaughter instruction s so that the jury could make factual findings once properly instructed.

Defense Attorney: Marc H. Robert

7. U.S. v. Clark, Second Circuit: After a jury trial, Appellant was convicted of being a felon in possession of a firearm and possession of a controlled substance. On appeal, the conviction for possession of a controlled substance was reversed. The Second Circuit held that there was insufficient evidence for that conviction such that no jury could reasonable find beyond a reasonable doubt that it happened.

8. U.S. v. Vasquez Macias, Second Circuit: Appellant was found guilty by a jury of being a previously-deported alien "found in" the United States. The Second Circuit reversed because Appellant had left the United States, seeking entry into Canada, when he was detained. Appellant was returned to the United States in custody and, although previously had been voluntarily in the United States, he was not "found in" the US at that point.

Defense Attorneys: Jayme L. Feldman and Tracey Hayes

9. U.S. v. Aparicio-Soria, Fourth Circuit: Appellant pled guilty to one count of unlawful reentry of a deported alien after sustaining an aggravated felony conviction. During sentencing, an enhancement was applied for the use of force because of a previous conviction for resisting arrest. The Fourth Circuit held that the Maryland crime of resisting arrest does not categorically qualify as a crime of violence within the meaning of the U.S. Sentencing Guidelines and therefore vacated and remanded for resentencing.

Defense Attorneys: Sapna Mirchandani and James Wyda

10. U.S. v. Freeman, Fourth Circuit: Appellant was convicted of obstructing federal bankruptcy proceedings and ordered to pay $631,050.52 in restitution to the victims. The Fourth Circuit vacated the order of restitution because that loss was suffered during conduct for which Appellant was not charged or convicted.

Defense Attorney: Nancy Susanne Forster

11. U.S. v. Simpson, Fifth Circuit: Simpson's conviction for registration of a false domain name was overturned on appeal because the domain was registered in October 2004 and the relevant law was not enacted until December 2004 and there was no proof that Simpson falsely registered a domain after December 2004. Simpson's sentence was vacated and the case remanded for resentencing.

12. U.S. v. Seymour, Sixth Circuit: Seymour appealed his sentence of 100 months' imprisonment following a conviction of being a felon in possession of a firearm. His sentence was vacated and the case remanded for resentencing because the district court inappropriately applied a firearm sentencing enhancement.

Defense Attorney: Jeffrey F. Kelleher

13. UU.S. v. Cureton, Seventh Circuit: Appellant was convicted of two counts of using a firearm in connection with a violent felony. On appeal, one of those convictions was vacated because both arise from the same conduct.

14. U.S. v. Washington, Seventh Circuit: Appellant pled guilty to attempting to possess cocaine with the intent to distribute and was sentenced to 97 months in prison. The Seventh Circuit found that the trial court's explanation for the sentence imposed was insufficient. The trial court only said that it had considered all factors under the law and that the crime was serious. This insufficiency required the sentence to be vacated and the case was remanded for resentencing.

15. U.S. v. Boose, Eighth Circuit: Appellant's 120-month sentence was vacated. During sentencing, an enhancement was applied for a career offender, but the Eighth Circuit held that Appellant does not meet the definition of a career offender.

December 17, 2013

Short Wins - It's White-Collar Week In The Federal Circuits

It's white-collar week here at the federal criminal appeals blog. Two big wins in white collar cases - a price fixing conspiracy case in U.S. v. Grimm and a sentencing win in a securities fraud case in U.S. v. Simmons.

It warms your heart right before the holidays.

This is also the last week to vote for this blog on the ABA Blog 100. Here's the link - scroll down to the criminal justice blogs and you'll find us.

To the victories!

1155650_berlin_siegessule.jpg1. U.S. v. Grimm, Second Circuit: Three co-defendants were tried and convicted of violating the general federal conspiracy statute for charges arising from the fixing of below-market interest rates paid by General Electric to municipalities. Finding that the continued payment of depressed interest to municipalities did not constitute overt acts in furtherance of the conspiracy, the Second Circuit held that the statute of limitations had run. The convictions were reversed and the case remanded to the district court for dismissal of the indictment.

Defense Attorneys: Howard E. Heiss, Jonathan D. Hacker, Anton Metlisky, Deanna M. Rice, James R. Smart, Walter F. Timpone, David C. Frederick, Brendan J. Crimmins, Emily T.P. Rosen, Andrew Goldsmith, John S. Siffert, Daniel M. Gitner.

2. U.S. v. Simmons, Fourth Circuit: Appellant was convicted of securities fraud, wire fraud, and two counts of money laundering. Both money laundering convictions were reversed because the transactions prosecuted as money laundering constituted essential expenses of the underlying fraud claims and therefore merged with those charges. Appellant's sentence was vacated and the case remanded.

Defense Attorneys: Joshua B. Carpenter, Henderson Hill, Ann L. Hester.

December 5, 2013

In a Child Porn Case, the Fourth Circuit Clarifies Who's Opinion About Custody Matters, and Worries about the Government Having a 'Heavy Foot'

In many ways, Faisal Hashime's case is a typical child pornography case. A government agent was on the internet looking at child pornography. He saw an email address. He emailed that address and the person who answered agreed to send some child pornography to him.

red-symbols-3-1092769-m.jpgAgents traced the IP address for the email that was sent, and it led to the Hashime residence. There, 19 year old Faisal Hashime lived with his family while he went to community college in Northern Virginia. The agents got a search warrant, as they almost always do in child pornography cases.

Armed with a battering ram, a search warrant, and a phalanx of officers, they stormed into the Hashime residence one morning.

They ordered Faisal and the rest of his family outside. Like many college students, Faisal had been up until 5 a.m. He was wearing his boxer shorts and was forced to stand with the rest of his family in the front yard where the neighbors could see him. It was a chilly morning in this Washington, D.C. suburb, but the family was forced to stand outside in the cold.

Eventually, the family was taken back inside. They weren't allowed to move around their home. They were then taken into their living room. Faisal asked to go to the bathroom but was refused. His mother, who was recovering from brain surgery, asked to lie down, but was not allowed to.

Finally, Faisal was taken to an unfinished part of the basement and interrogated for three hours. He was told he could leave and that he didn't have to make a statement, but he was also told by the officers that they needed to get the truth from him, and that they couldn't leave him there alone.

His mother told the agents that they shouldn't talk to him without a lawyer, but they ignored her and wouldn't let her near Faisal.

At one point, he asked if the interrogation was being recorded. The lead agent told him he wasn't recording the conversation. One of his colleagues, though, was.

He wasn't given Miranda warnings until the end. But before those warnings, he gave a lengthy confession.

He was indicted for possession of child pornography, receipt, distribution, and production.

He filed a motion to suppress his statement, saying that it was custodial and he wasn't given Miranda warnings.

The district court in the Eastern District of Virginia listened to the tape. She said that Faisal sounded calm, so he couldn't have thought he was in custody. The motion was denied.

The Fourth Circuit, in a surprisingly strong opinion by Judge Wilkinson in United States v. Hashime, overturned the district court.

The Fourth Circuit pointed out that here, the agent's action looked like this was custodial. Yet Faisal's demeanor looked like he didn't think this was custody (as far as one could tell from the tape).

But, while the district court relied on Faisail's demeanor, the Fourth Circuit pointed out that it should have, instead, focused on the agents' conduct.

Whether a person is in custody depends on whether a reasonable person in that situation would think she isn't free to leave. It's a classic objective test.

So, the Fourth Circuit pointed out - things from the point of view of the person being interrogated kind of don't really matter. The question isn't what that guy thought, but what someone in his position should have thought.

So the case was remanded for a new trial.

But that's not the only thing interesting about this case.

Faisal decided to plead guilty to the charge of possession and receipt. The receipt of child pornography charge alone carried a mandatory minimum term of five years.

The government, wanting to push forward for even more time, went to trial on the production and distribution charge. The production charge is perhaps the most disturbing - Faisal "produced" child pornography by convincing boys on the internet to send him naked pictures of themselves.

He was convicted, and a fifteen year mandatory minimum applied.

Looking at this, the Fourth Circuit said,

Our reversal of the conviction makes it unnecessary to address any sentencing questions. It suffices to note that, in line with our own review of the custody issue and the district court's comments at sentencing, this was a case in which both police and prosecution applied a heavy foot to the accelerator. We do not doubt for an instant that the defendant's conduct here was reprehensible and worthy of both investigation and punishment, as the guilty plea attests. But attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair.

This is not your father's Fourth Circuit

November 6, 2013

Short Wins - Overcriminalization and Prison Costs Head to Congress

Congress these days seems to have noticed that we have too many federal criminal laws - which is a good thing (the Congressional notice, less the excessive criminal laws).

Last week, the House Judiciary Committee heard testimony on overcriminalization of regulatory crimes. The Hill has a nice write-up in "Regulation horror stories for Halloween."

Here's the intro:

Joyce Kinder was fined $5,000 and sentenced to three years probation for unknowingly catching protected paddlefish in the Ohio River.

Lawrence Lewis was arrested for violating the Clean Water Act after he disposed of sewage from a Washington, D.C., retirement home. He thought it would drain to a water treatment plant, but it instead went into Rock Creek.

Lewis and Kinder are both victims of overenforcement of regulations, according to lawmakers from both parties who say agencies should not threaten to jail people for violating regulations they don't even know exist.

Next week, the Senate is having a meeting on "Oversight of the Bureau of Prisons and Cost-Effective Strategies for Reducing Recidivism." It seems that folks have noticed that the Fair Sentencing Act and Holder's recent announcement about charging policies aren't actually going to help the folks who are already in prison get out sooner.

Here's hoping something comes out of these.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Bethea, Second Circuit: Appellant pled guilty to one count of cocaine distribution in 2010 and was sentenced to 80 months' imprisonment. Although this sentence was outside of the 60-71-month guidelines range and new guidelines would require only a 60-month sentence, Bethea's motion for sentencing modification was denied. Bethea's sentence was vacated and the case remanded to the district court to determine the impact of the new guidelines on his sentence.

2. United States v. Hemingway, Fourth Circuit: Appellant pled guilty to being a felon in possession of a firearm and ammunition and was sentenced to 15 years based on a mandatory minimum statute. The judgment was vacated and the case was remanded for sentencing because the mandatory minimum statute is only controlling when certain prior crimes were committed and Hemingway's prior crimes did not fall within that statute.

3. United States v. McManus, Fourth Circuit: Appellant pled guilty to one count of possession of child pornography and was sentenced to 72 months' imprisonment. Finding that the district court improperly interpreted statutory language and therefore applied the wrong sentencing enhancement, and that this error was not harmless, McManus' sentence was vacated and the case remanded for resentencing.

4. United States v. Hashime, Fourth Circuit: Appellant was convicted of multiple counts related to child pornography. His conviction and sentence were reversed because Hashime was in custody, the agents did not read Hashime his Miranda rights, and the statements made by Hashime during that interrogation were not properly suppressed at trial. The case was remanded for further proceedings so the court did not address whether mandatory minimums were appropriate in this case.

5. United States v. Miller, Sixth Circuit: A jury found Appellant guilty of two counts of making false statements to a bank and two counts of aggravated identity theft. The court reversed both aggravated identity theft convictions because Miller did not "use" the identities as required by statute. The court also reversed one of the false statements convictions because the document did not contain false statements as the term is statutorily defined.

6. United States v. Lyons, Seventh Circuit: Lyons appealed his conviction of possession of a firearm as a felon and the imposed 210 month sentence. Although the conviction was affirmed, the case was remanded for resentencing because the district court committed two procedural errors. First, it failed to state the reasons supporting the sentence and, second, the court incorrectly believed it was required to impose a five-year period of supervised release.

7. United States v. Kyle, Ninth Circuit: Appellant pled guilty to aggravated sexual abuse of a child and was sentenced to 450 months' imprisonment. The guilty plea and sentence were vacated because the district court participated in plea negotiations by prematurely committing itself to a sentence of a specific severity. Because this prejudiced Kyle, the case was remanded with instructions for reassignment to a different judge.

September 3, 2013

Definitely Not Short Wins

On this, the Monday after Labor Day, I suspect many of us have the feeling that work piles up when you leave the office. And, with last week off from Short Wins, that's definitely what happened here.

Without further ado, to the victories!

1155650_berlin_siegessule.jpg1. Miller v. United States, Fourth Circuit: Appellant was convicted of possession of a firearm by a convicted felon. For appellant's two prior convictions (upon which the instant offense was based), he was sentenced to 6 to 8 months for each offense. He filed a 28 U.S.C. § 2255 motion to vacate his sentence, arguing that his prior convictions were not qualifying predicate convictions. The court agreed, vacated appellant's conviction, and remanded for the petition to be granted.

Attorney: Ann Loraine Hester for Appellant.

2. United States v. Avila, Tenth Circuit: Appellant was charged with possession with intent to distribute a controlled substance. After his motion to suppress was denied, he entered an unconditional guilty plea to the charge. Because the district court informed appellant that he would retain a right to appeal following the entry of his plea without ensuring he understood that the plea might limit that right, the plea was not knowing and voluntary. Appellant's conviction was vacated and the case remanded with instructions for the court to allow appellant to withdraw his guilty plea.

Attorney: Kari S. Schmidt for Appellant.

3. United States v. Booker, Sixth Circuit: Appellant was convicted of possession of a five-ounce rock of crack cocaine, which he had hidden in his rectum. The police took appellant to an emergency room doctor who, using a procedure appellant did not consent to, removed the rock. The court attributed the doctor's actions to the state for Fourth Amendment purposes. Because the unconsented procedure shocks the conscience and violates due process, the crack rock should have been excluded. Appellant's conviction was reversed.

Attorney: Robert L. Jolley, Jr. for Appellant

4. United States v. Cabrera-Umanzor, Fourth Circuit: Appellant pled guilty to unlawful reentry. At sentencing, the court used the "modified categorical approach" to find that appellant's prior state conviction was a "crime of violence," which increased appellant's base offense level by 16. This was error, as the categorical approach should have been used, which would have resulted in a finding that the prior conviction was not a crime of violence. The case was remanded for resentencing.

Attorneys: Joanna Beth Silver, James Wyda for Appellant

5. United States v. Evans, Ninth Circuit: In two cases, appellant was charged with being an alien in the U.S. after deportation and misrepresenting his identity and citizenship to fraudulently obtain social security benefits, food stamps, make a claim of citizenship, and apply for a passport. His primary defense was that he was a citizen. His primary evidence to support the defense was a delayed Idaho state birth certificate. The certificate was excluded before trial because the court ruled it was "substantively fraudulent." This violated appellant's Fifth Amendment due process right to present a defense. The error was not harmless. Appellant's convictions were vacated and the case remanded for new trials.

Attorney: Stephen R. Hormel

6. United States v. Flores, et al., Ninth Circuit: Appellants pled guilty to conspiring to possess an unregistered firearm arising out of their purchase of a grenade launcher and ammunition for the launcher. At sentencing, the court enhanced appellants' sentences 15 levels after finding that the offense involved a missile under Guideline § 2K2.1(b)(3)(A). This was error because the ammunition did not qualify as missiles. The sentences were vacated and the case remanded for resentencing.

Attorneys: Richardo M. Gonzalez for Appellant Alfredo Lara; Barbara M. Donovan for Appellant Arturo Lara; Frederick Carroll for Appellant Flores.

7. United States v. John Doe, Sixth Circuit: Appellant pled guilty to two counts of distributing over 50 grams of crack cocaine and was sentenced to 130 months after a downward departure was applied. The Fair Sentencing Act was passed four years later, substantially reducing the mandatory minimum and advisory range applicable to appellant's offense. Because appellant's original sentence was based on an advisory range which was subsequently lowered, and because the reduction is consistent with the Sentencing Commission's policy statement in § 1B1.10, he was eligible for a sentence reduction. The sentence was vacated and the case remanded.

Attorney: Melissa M. Salinas

8. United States v. McKye, Tenth Circuit: Appellant was convicted of conspiring to commit money laundering and securities fraud. At trial, the court refused to give an instruction appellant tendered that would have permitted the jury to decide whether the investment notes at issue constituted securities. Instead, the court instructed the jury that the term "security" includes a "note." Because whether a note is a security is a mixed question of law and fact, the court erred in giving that instruction. The government failed to show the error was harmless. Appellant's conviction was reversed.

Attorneys: Howard A. Pincus, Raymond P. Moore, for Appellant

9. United States v. Sedaghaty, Ninth Circuit: Appellant was convicted of conspiring to defraud the United States and filing a false return on behalf of a tax exempt organization. Several errors were made below that, cumulatively prejudiced appellant: the government violated its obligations under Brady v. Maryland by withholding significant impeachment evidence; the court erred in approving an inadequate substitution for classified material in violation of the Classified Information Procedures Act; and the government's search of appellant's hard drives went far beyond the scope of the warrant. The case was remanded for a new trial.

Attorneys: Steven T. Wax, Lawrence Matasar

10. United States v. Swor, Ninth Circuit: Appellant pled guilty to investment fraud and was ordered to pay restitution under the Mandatory Victims Restitution Act. The court abused its discretion by including in the restitution order losses suffered by victims of an investment scheme that began two months after, and was separate from, the scheme in which appellant was involved. These losses were too attenuated to impose liability on appellant. Appellant's sentence was vacated with regard to the amount of restitution order and remanded to reduce the restitution amount.

11. United States v. Thompson, et al., Ninth Circuit: Appellants were convicted of bank larceny and their sentences were enhanced because they were convicted of using a thermal lance to open the back of an ATM to steal the money inside. Their sentences were enhanced under 18 U.S.C. § 844(h)(1), which imposes a mandatory 10-year consecutive sentence (in addition to the underlying felony) on anyone who "uses fire . . . to commit any felony." Because the enhancement does not apply to the use of a thermal lance, the case was remanded for resentencing.

Attorneys for Appellants: Mark Yanis; Gretchen Fusilier; Sean K. Kennedy; Samuel A. Josephs.

12. United States v. Tragas, Sixth Circuit: Appellant was convicted of offenses arising out of her involvement in an international credit and debit card fraud conspiracy. She was sentenced to 300 months in prison. Because the district court used an incorrect version of the Guidelines when sentencing appellant, appellant's sentence was vacated and the case remanded for resentencing.

Attorneys: Erik W. Scharf, Wayne R. Atkins

July 22, 2013

Short Wins

It's been a busy week in the federal circuits - lots of good wins to check out.

Also, while I'm shamelessly pimping, please check out an article I wrote for the National Law Journal here about DOJ prosecutions, pleas, and why the law ought to be clearer.

To the victories!

1155650_berlin_siegessule.jpg1.United States v. Adams, et. al, Sixth Circuit: Appellants were convicted office RICO and related offenses arising out of their alleged participation in a vote-buying scheme in Kentucky. Because of cumulative error from the district court's evidentiary rulings, including the admission of an Inside Edition video, evidence of witness intimidation, the use of an inaccurate transcript, and state election records, among other evidence, appellants' convictions on all counts were vacated and the case remanded for a new trial.

2. United States v. Botello-Rosales, Ninth Circuit: Appellant pled guilty to drug and firearm charges after his motion to suppress statements he made to police after his arrest was denied. Because the Spanish-language warning administered to appellant failed to reasonably convey to appellant his Miranda rights, the district court erred in denying the motion to suppress. As a result, the district court's order denying the motion was reversed, appellant's conviction vacated, and the case remanded for further proceedings.

3. United States v. Daniels, et. al, Fifth Circuit: Appellants were convicted of conspiring to distribute more than five kilograms of cocaine. Because there was insufficient evidence to support the finding as to the quantity of drugs, the court reversed as to that finding only, vacating appellants' sentences and remanding for the district court to resentence appellants for the drug conspiracy pursuant to a statutory provision associated with a lesser quantity of drugs.

4. United States v. Garcia, Ninth Circuit: Appellant was convicted of involuntary manslaughter. The involuntary manslaughter jury instruction was defective because it failed to tell the jury that "gross negligence" was required for a conviction. Because the jury wasn't properly instructed, appellant's conviction was reversed.

5. United States v. Lanning, Fourth Circuit: Appellant was convicted of disorderly conduct arising out of his brief touching of an officer's fully-clothed crotch, which was done in response to a police officer in a sting operation's deliberate attempt to convince appellant he would have sex with him. Because no rational trier of fact could have found beyond a reasonable doubt that appellant's actions were "physically threatening or menacing" or "likely to inflict injury or incite an immediate breach of the peace," and because the term "obscene" was unconstitutionally vague as applied to appellant, appellant's conviction was reversed and the case remanded for a judgment of acquittal.

6. United States v. Perez-Valencia, Ninth Circuit: Appellant pled guilty to conspiring to distribute methamphetamine after the court denied his motion to suppress evidence obtained by a wiretap. The wiretap application was filed by an assistant district attorney. Because the record was insufficient to determine the precise nature of the attorney's authority when he applied for the wiretap, the case was remanded to develop the factual record. Further, on remand, if the court determines that the attorney lacked the authority to apply for the wiretap, it was instructed to consider whether the evidence subject to the motion to suppress is so attenuated from the statutory violation that it need not be excluded.

July 19, 2013

It Is Not A Federal Crime To Touch Someone Who Says They Want To Have Sex With You, Even If You're Gay

John Doe (not his real name - but the guy shouldn't be singled out any more than he already has been. If you really want to see his name, it's on the opinion from the Fourth Circuit) wanted to have gay sex with a stranger.

Instead of going online like a normal person, he went to a national park in North Carolina. Mr. Doe was in his sixties - apparently baby boomers don't use Grindr.

Mr. Doe was not the only person in the park looking for men who were looking to have sex with strangers. In response to a complete absence of real crime anywhere in North Carolina, law enforcement was there too.

The law enforcement officer Joseph Darling was on patrol. Darling saw Mr. Doe on a trail hiking toward him. As they passed each other, Darling said hello. Doe grabbed his groin.

1426349_balanced_rock.jpgA few minutes later, Darling saw Doe again on an unofficial trial. They talked about the weather for a few minutes. Then Darling told Doe that Asheville - which they were near - was an open community that is accepting of gay folks.

Mr. Doe said that he "wanted to be F'ed."

Darling indicated that he would be into that. (the record says that Darling said that he replied "okay or yes, or something to that affirmative")

As Darling described it later, he "gave [Doe] every reason to believe that [Darling] was good to go."

Mr. Doe then turned around - they were three feet or so away from each other - and backed into Darling.

With his left hand, Darling reached back and "very briefly" touched Darling's fully-clothed crotch.

Darling responded, "Police officer, you're under arrest."

Mr. Doe was charged with disorderly conduct. He was convicted by a magistrate judge and sentenced to 15 days in jail, along with a fine and a bar on going in a national park for two years.

Disorderly conduct for these purposes is defined by 36 C.F.R. § 2.34(a)(2) (some CFR provisions establish federal crimes in national parks - see 16 USC § 3) and has three elements:

(1) using language, an utterance, or a gesture, or engaging in a display or act; (2) that is obscene, physically threatening or menacing, or done in a manner likely to inflict injury or incite an immediate breach of the peace; and (3) having the intent to cause or knowingly or recklessly creating a risk of public alarm, nuisance, jeopardy, or violence.

The Fourth Circuit vacated this conviction, holding that there's no notice to Mr. Doe, or anyone else, that brief clothed touching of someone's body who says that they want to have sex with you is obscene.

Which is fair enough. The Fourth Circuit made two other great points though.

First, in response to an argument from the government that really this was a prosecution for Mr. Doe wanting to have sex right there on the unofficial trail, the court of appeals noted:

Defendant's conviction was for disorderly conduct--not disorderly thoughts or desires. And it is undisputed that Defendant's actual conduct never went further than his backing up to Darling and very briefly grabbing Darling's clothed crotch. Moreover, even Darling agreed that, "for all [he] knew, [Defendant] could have very well intended for [the intercourse] to happen at [Defendant's] house." J.A. 88. And such private sexual conduct would, of course, have been perfectly legal. As the Supreme Court pronounced a decade ago, "[l]iberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct" and "allows homosexual persons the right to" engage in consensual intimate conduct in the privacy of their homes. Lawrence v. Texas, 539 U.S. 558, 567 (2003).

Finally, the Fourth Circuit said the whole point of the notice requirement was so that the government can't just make up crimes to punish people for. (for an excellent National Law Journal article on this, go here)

Yet this looks like exactly what you'd expect can happen from government enforcement of loosely defined laws - the government uses them to bully unpopular groups.

the facts of this case illustrate the real risk that the provision may be "arbitrar[ily] and discriminator[ily] enforce[d]." Hill, 530 U.S. at 732. The sting operation that resulted in Defendant's arrest was aimed not generally at sexual activity in the Blue Ridge Parkway; rather, it specifically targeted gay men. Perhaps not surprisingly, then, the all-male undercover rangers arrested only men on the basis of disorderly homosexual conduct.

The Fourth Circuit also shot down a government argument that this was motivated not by hatred of gay people, but by citizen complaints:

If the public is . . . not similarly troubled by a woman propositioning her boyfriend for sex and then briefly touching his clothed crotch, there would exist no citizen complaint and no related sting, even for otherwise identical heterosexual conduct. Simply enforcing the disorderly conduct regulation on the basis of citizen complaints therefore presents a real threat of anti-gay discrimination.

Also the Fourth Circuit determined that touching someone who says they want to have sex with you is not physically menacing - the other prong of the disorderly conduct regulation.

July 5, 2013

Short Wins - Fourth of July Week Edition

Today's featured case is United States v. Hampton for a few reasons.

First, it's from the DC Circuit, and my office is in DC - our Circuit's pro-defendant decisions are particularly exciting (to me).

Second, it involves law enforcement agents offering expert testimony. Law enforcement testimony is massively frustrating - it feels, at times, that there no bounds to what an FBI Agent will testify about.

Third, it comes out of a retrial. Who doesn't love a retrial?

Though, I should say, there are plenty of other great cases in this week's Short Wins.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Buffer, Sixth Circuit: The district court erred in denying appellant's motion to suppress evidence gathered from a search warrant and arrest because it incorrectly determined that (1) the warrant was supported by probable cause and (2) even if the warrant wasn't supported by probable cause, the good faith exception to the warrant requirement applied. Because of these errors, the appellate court reversed the order denying appellant's motion, vacated appellant's conviction, and remanded for further proceedings.

2. United States v. Davis, Fourth Circuit: Appellant received a consolidated sentence for several state law violations. The court counted the sentence as at least "two prior felony convictions" under the Sentencing Guidelines career offender enhancement provision. Because appellant's consolidated sentence was a single sentence for purposes of the career offender enhancement, the court vacated appellant's sentence and remanded for resentencing.

3. United States v. Galpin, Second Circuit: Appellant moved to suppress evidence of child pornography. The court agreed with appellant that the search warrant that led to the discovery of this evidence was overbroad and that the officers lacked probable cause to conduct it. Nevertheless, the court ruled that the warrant was severable and that the images found would have been in plain view during a properly limited search. This ruling was error: because the record as to whether the warrant was severable and whether the images were in plain view was deficient, the trial court's order denying the motion to suppress was vacated and the case remanded for further proceedings.

4. United States v. Hampton, D.C. Circuit: Appellant was convicted of drug conspiracy charges after a mistrial and re-trial. At the re-trial, the district court allowed an FBI agent to give lay-opinion testimony about his understanding of recorded conversations played for the jury. Because the court failed to enforce the boundaries for this type of evidence in Federal Rule of Evidence 701, the court denied the jury the information it needed to assess the agent's interpretations. Appellant's conviction was vacated.

5. United States v. Tien, Second Circuit: Appellant pled guilty to bribery of a public official and forgery of a passport at separate conferences held 16 months apart. In both pleas, the court plainly erred when it violated Federal Rule of Criminal Procedure 11, which sets forth the requirements the court must follow in determining whether a plea is voluntary. Because the pleas weren't knowingly and voluntarily entered, both were vacated and the case remanded.

June 17, 2013

Short Wins - Forced Medication and Discovery Issues Edition

There's a great diversity of cases where defendants won in the federal circuit's last week.

Probably the most significant - in terms of it's implication for other cases, is the discovery dispute in United States v. Muniz-Jaquez from the Ninth Circuit.

Though, of course, it's still from the Ninth Circuit.

And there's now interesting pro-defendant competency and forced medication law from the Fourth Circuit in United States v. Chatmon

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Chatmon, Fourth Circuit: After he was indicted for conspiracy to distribute crack and heroin, appellant was diagnosed with paranoid schizophrenia and deemed incompetent to go to trial. Later, the court granted the government's motion to forcibly medicate appellant to restore him to competency. This was error because the court did not discuss any less intrusive alternatives in granting the motion. The order was vacated and the case remanded.

2. United States v. Malki, Second Circuit: After appellant was convicted of retaining classified documents without authorization and sentenced to 121 months in prison, he successfully appealed and was resentenced. At resentencing, the court erred by engaging in a de novo resentencing. Because the remand was for limited, not de novo, resentencing, the case was remanded again for resentencing.

3. United States v. Muniz-Jaquez, Ninth Circuit: Appellant was convicted of being a deported alien in the United States. The trial court abused its discretion in excluding dispatch tapes that could have assisted in appellant's defense or could have helped him challenge adverse testimony at trial. Appellant's conviction was reversed and the case remanded for the tapes to be produced and for the court to address any motions the tapes may generate.

4. United States v. Rothstein, Eleventh Circuit: Appellant, who was convicted of running a Ponzi scheme through his law firm, placed the fruits of his scheme into his firm's bank accounts, where they were commingled with the firm's receipts from legitimate clients. The court erred in ordering the forfeiture of some of the accounts as proceeds of the scheme because the commingled proceeds could not be divided without difficulty, and forfeiture should have been sought under substitute property provisions. Further, the court erred in forfeiting to the government other properties without resolving the issue of whether the illicit funds were used to acquire them. Remand was required to resolve that issue.

5. United States v. Windless, Fifth Circuit: Appellant knowingly failed to register as a sex offender and pled guilty to the same. He was sentenced to supervised release and two conditions were imposed: (1) participation in a mental health treatment program; and (2) no direct or indirect conduct with children under 18. The court erred in relying at sentencing on three "bare arrest records" - records that did not contain any information about the underlying facts or conduct that led to the arrest - in imposing the conditions. Also, the second condition was overly broad. For these reasons, the first condition was vacated and the second reversed, and the case remanded for resentencing.

May 6, 2013

Short Wins - And More on Jury Nullification

Six new cases from the federal circuits this week. My favorite - a subjective measure, I know - is United States v. Ramirez. Any time a court, even the Ninth Circuit, vacates a drug conspiracy conviction for insufficient evidence it's worth a read.

Last week I posted about a First Circuit case that raised, I thought, a specter of support for jury nullification. Lots of folks responded to that - it turns out that nullification is a popular topic.

On Twitter, I was directed to this recent opinion out of New Mexico on nullification. If you have time, I highly recommend it. It canvasses the history of nullification as an important part of what our criminal justice system is built on then says, basically, no.

I also exchanged a few emails about nullification with a prosecutor friend of mine (yes, I have prosecutor friends, don't tell). He pointed out, rightly, that nullification is not your friend if you're thinking of, say, the Criminal Section of the Civil Rights Division of DOJ going into, say, Alabama, to prosecute hate crimes. Or almost any public corruption trial of a very popular politician. It's a fair point. The interplay between popular sentiment and the rule of law is complicated. And, as soon as cases that raise those kinds of concerns are the majority of the criminal trials in the country, perhaps prohibiting nullification would clearly be good.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Davis, Fourth Circuit: Appellant pled guilty to possession of a stolen firearm and was ordered to pay restitution to reimburse the homeowner from whose home he broke into for the value of the unrecovered firearm and damage caused by the break-in. Because the homeowner is not a victim under the Victim and Witness Protection Act, and because appellant's plea agreement did not include an explicit agreement to pay restitution to a person other than a victim of the offense of conviction, there was no basis to order restitution. This plain error required reversal of the restitution order.

2. United States v. Luna-Acosta, Tenth Circuit: Appellant pled guilty to illegal re-entry into the United States. At sentencing, the district court orally announced a sentence of one year in prison. Five months later, a written judgment was filed imposing a 33-month sentence. Because the court lacked jurisdiction to alter the sentence, the sentence was vacated and the case remanded for the court to enter a new judgment with a one-year sentence.

3. United States v. Mackay, Tenth Circuit: Appellant was convicted of unlawfully prescribing controlled substances and sentenced to 20 years in prison. Although the total sentence was below the advisory guidelines range, it exceeded the statutory maximum sentence on nine counts. Because the judgment was unclear whether the court intended to impose a 20-year sentence on each count, which would have been illegal, the case was remanded to allow the court to clarify the sentence for the record.

4. United States v. Mancuso, Ninth Circuit: Appellant was convicted of possession and distribution of cocaine, as well as two counts of maintaining a drug-involved premises. The distribution conviction was vacated because it joined two or more distinct and separate offenses into a single count. The convictions for maintaining a drug involved premises were vacated because the district court committed plain error by utilizing a "significant purposes" instruction rather than a "primary or principal use" instruction.

5.United States v. Patrick, Sixth Circuit: Appellant pled guilty to drug and firearm charges. At the plea hearing, the judge did not state the mandatory minimum penalty for the firearm charge. Because the court's failure to ensure that appellant understood that he faced a mandatory minimum sentence of five years for the firearm charge affected his substantial rights, the plea was vacated to allow appellant to withdraw his plea.

6. United States v. Ramirez, Ninth Circuit: Appellant was convicted of distribution, possession with intent to distribute, and conspiracy to distribute meth. When viewing the evidence on the conspiracy charge in the light most favorable to the government, the government failed to present sufficient evidence showing that appellant had an agreement with another to distribute meth. As a result, the conspiracy conviction was vacated and the case remanded for the district court to grant a judgment of acquittal on that count and to conform the sentence accordingly.

April 29, 2013

Short Wins - Resentencing Mania Sweeps The Federal Appeals Courts

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!

1155650_berlin_siegessule.jpg1. 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).

April 26, 2013

The Fourth Circuit Holds That A Plea Based on Law Enforcement Fraud Is Invalid, Even If The Person Is Guilty

October 29, 2007 started bad for Cortez Fisher.

He walked out of his house and the Baltimore police approached him (he lived in Baltimore). They asked to talk to him. He said no. He tried to drive away, but backed into a cop car.

He was arrested and searched - they found empty glass vials in his pants pocket.

The officers got a search warrant for Mr. Fisher's house and car, based on an affidavit by Baltimore DEA Task Force Officer Mark Lunsford.

548792_downtown_baltimore.jpgIn the affidavit, DEA Task Force Officer Lunsford said that he had talked to a confidential informant who was reliable and had helped him with a number of prior cases. The confidential informant said that Mr. Fisher sold drugs out of his house. DEA Task Force Officer Lunsford said that after hearing from the confidential informant, he personally had watched Mr. Fisher sell drugs from his car.

Law enforcement searched Mr. Fisher's house and car. They found drugs and a gun.

Mr. Fisher plead guilty to being a felon in possession of a firearm.

He was sentenced to ten years in prison.

One year later, DEA Task Force Officer Lunsford pled guilty to fraud for lying on affidavits in search warrants.

Now former-DEA Task Force Officer Lunsford said that Mr. Fisher's affidavit was one of the ones he lied in.

The District Court Holds That When Police Lie On A Search Warrant Affidavit It Isn't Necessarily A Miscarriage of Justice

Of course, as soon as the U.S. Attorney's Office learned that a man was in prison based on a lie, they immediately moved to vacate his conviction. A prosecutor's ethical mandate, of course, is to do substantial justice and protect the integrity of our system of justice.

No, wait, sorry, my bad. I must have misunderstood what a prosecutor is supposed to do. The U.S. Attorney's Office did exactly nothing.

Mr. Fisher, however, was understandably concerned that he had been convicted based on the word of someone who was now an admitted fraud.

He sent a letter to the district court saying that maybe he should have his plea taken back, since a law enforcement lie is a "but for" cause of his incarceration.

The district court held that this was not a good reason to withdraw a plea:

Unquestionably, if [Defendant] had known of Lunsford's criminal misconduct, he would have filed a motion to suppress, and the motion may well have been successful. Nevertheless, [Defendant] does not deny that he was unlawfully in possession of a firearm (as he admitted under oath during his Rule 11 colloquy). Under these circumstances[,] I cannot find that a failure to allow [Defendant] to withdraw his guilty plea would result in a "miscarriage of justice." Certainly, [Defendant] was denied of an opportunity to pursue a motion to suppress that might have been meritorious, but neither the Government nor his own counsel was aware of Lunsford's criminal misconduct at the time that [Defendant] entered his guilty plea and was sentenced. Therefore, it cannot be said that [Defendant's] counsel was ineffective or that the Government breached any obligation that it owed to him.

I don't understand how the district court could determine that "it cannot be said that . . . the [g]overment breached any obligation that it owed to" Mr. Fisher when it prosecuted him based on evidence obtained from a fraudulent affidavit. Wasn't ex-DEA Task Force Officer Lunsford a part of the government when he made the fraudulent affidavit?

The Fourth Circuit Holds That You Can Withdraw A Plea When It Is Procured By Fraud

The Fourth Circuit, in United States v. Fisher, took a different view:

This . . . is not a case where Defendant sought to withdraw his plea "merely because he discover[ed] long after the plea ha[d] been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action." Rather, Defendant's misapprehension stems from an affirmative government misrepresentation that "strikes at the integrity of the prosecution as a whole."

The Fourth Circuit was also good to note that just because Mr. Fisher was factually guilty doesn't matter - even a guilty person can suffer a miscarriage of justice.

Ultimately, the court of appeals found Mr. Fisher's plea was simply too compromised to stand:

Given the totality of the circumstances of this case--a law enforcement officer intentionally lying in a affidavit that formed the sole basis for searching the defendant's home, where evidence forming the basis of the charge to which he pled guilty was found--Defendant's plea was involuntary and violated his due process rights. Under these egregious circum- stances, Defendant was deceived into making the plea, and the deception prevents his act from being a true act of volition.

Though, as the court of appeal helpfully pointed out, the government can try Mr. Fisher again if want to put ex-DEA Task Force Officer Lunsford on as a witness at trial.

April 11, 2013

Short Wins - Public Defender Withdrawals of Two Kinds

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

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

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

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

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

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

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

And, with that, to the victories,

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

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

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

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

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

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

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

March 4, 2013

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

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

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

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

To the Victories!

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

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

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

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

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

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

January 17, 2013

The Fourth Circuit Holds That Corporations Aren't People For The Purposes Of The Identity Theft Statute, Or Take That Citizens United

Tamatha Hilton was the bookkeeper for a company called Woodsmith's. Woodsmith's made furniture. Ms. Hilton made bad decisions.

Specifically, for a few years, she took checks written by Woodsmith's customers and gave them to her husband, Jimmy Hilton. Mr. Hilton did not work at Woodsmith's.

Mr. Hilton gave the checks to his ex-wife, Jacqueline Hilton. Ms. Hilton opened a bank account at Suntrust in her name, saying that she was the owner of a company called Woodsmiths Furniture Company.

She was not.

She was, however, the owner of a pre-printed stamp from an office supply store that said checks made out to Woodsmiths should be deposited into her Suntrust Account.

You can probably guess how that was used.

1390098_garden_chairs_2.jpgOver two years Woodsmiths lost around $650,000 to Ms. Hilton's Suntrust Account.

The three were charged with identity theft, mail fraud, mail theft, money laundering, conspiracy, passing forged securities, and making a false statement to a financial institution.

At trial, Ms. Hilton was acquitted of making a false statement to a financial institution. Everyone else was convicted of everything else.

In their appeal to the Fourth Circuit, resolved in United States v. Hilton, Mr. and Ms. Hilton challenged their convictions for identity theft, on very clever grounds:

Jimmy and Jacqueline appeal their convictions for identity theft and aggravated identity theft, in violation of 18 U.S.C. §§ 1028(a)(7) and 1028A (the identity theft statutes). They argue that the conduct charged, namely, the use of the stamp bearing Woodsmiths' name in endorsing the stolen checks, did not constitute a violation of the identity theft statutes, because the language of those statutes does not encompass the act of stealing the identity of a corporation.

Ultimately, the Fourth Circuit agreed.

Noting that,

In light of the serious consequences flowing from a criminal conviction, the rule of strict construction rests on the principle that "no [person] shall be held criminally responsible for conduct which he could not reasonably understand to be pro- scribed." Accordingly, although "[t]he simple existence of some statutory ambiguity is not sufficient" to trigger automatic resolution of the ambiguity in favor of a defendant, "we will construe [a] criminal statute strictly and avoid interpretations not clearly warranted by the text." (internal citations omitted)

The statute, 18 U.S.C. § 1028(a)(7) makes it illegal to transfer, possess, or use "a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of [f]ederal law, or that constitutes a felony under any applicable [s]tate or local law." The vicious § 1028A - which imposes a two-year consecutive mandatory minimum if someone commits and identity theft crime in connection with another felony - uses the same language.

In the definition section for both statute defines "means of identification" as "any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual."

Under the Dictionary Act - the Act that defines terms used in federal statutes if there isn't another definition that's more closely tailored - "person" includes corporations. "Individual" though, might not.

Because that's an ambiguous question, the Fourth Circuit held that the identity theft statute does not apply to corporations.

we are left with a "grievous ambiguity or uncertainty in the statute[s]," and we decline to speculate regarding Congress' intent. Instead, faced with the choice of two plausibly valid interpretations, "we yield to the rule of lenity." (internal citations omitted)

Though the convictions for mail fraud, mail theft, money laundering, conspiracy, and passing forged securities still stood. The folks who were convicted were remanded for resentencing.

January 5, 2013

Short Wins - Restrictions on Prison Communications, Career Offender Remands, Competency Hearings, and Mail Fraud

Happy New Year!

In our first "Short Wins" of the new year, the Eighth Circuit reverses a district court's order restricting a person in BOP custody from communicating with folks on the outside, the Ninth Circuit reverses on a career offender determination, and the Sixth Circuit reversed when a district court didn't give a person counsel in a competency hearing.

My personal favorite, though, is the Ninth Circuit's remand in a mail fraud case that, the court of appeals determined did not involve the mails.

Sometimes it's the little things.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Allmon, Eighth Circuit: After appellant was convicted of offenses arising out of his involvement in a drug trafficking operation and a conspiracy to kill a witness, the district court granted the government's motion to restrict appellant from communicating with 29 people. Years later, the court on its own motion ordered more stringent restrictions on appellant's communications after it learned that appellant circumvented the initial restrictions. Because the Director of the Bureau of Prisons did not make a motion to further restrict appellant's communications, this was error. As a result, the order requiring more stringent restrictions was vacated.

2. United States v. Lee, Ninth Circuit: Appellant was convicted of distributing crack cocaine and was sentenced as a career offender under Sentencing Guideline section 4B1.1 based on two prior convictions that the district court identified as controlled substance offenses. Because the government failed to meet its burden of showing that one of the two convictions qualifies as a predicate offense, the case was remanded for the district court to consider appellant's career offender status.

3. United States v. Phillips, Ninth Circuit: Appellant was convicted of mail fraud, among other offenses, arising out of his scheme to defraud his company. Because appellant's fraudulent scheme did not depend in any way on the use of the mails, his conviction for mail fraud was reversed.

4. United States v. Pileggi, Fourth Circuit: Appellant was convicted of various offenses as a result of his involvement in a fraudulent sweepstakes scheme. He was sentenced to 50 years in prison and ordered to pay more than $ 4 million in restitution. Appellant appealed his sentence, but not the restitution amount. On remand for resentencing, the court increased the restitution amount to more than $ 20 million. Because the appellate court's mandate did not give the district court the authority to change the restitution amount, the second restitution order was vacated and the case remanded for the district court to reinstate the first order.

5. United States v. Ross, Sixth Circuit: Appellants Bryan Ross and Robert Burston were convicted of offenses arising out of their involvement in a counterfeit check scheme. With respect to Mr. Ross, the district court erred when, upon granting a competency hearing, it failed to reappoint full-time counsel to represent Mr. Ross until the issue of competency was resolved. Mr. Ross' case was remanded for an evidentiary hearing to determine whether he was unconstitutionally deprived of counsel at the competency hearing. If the district court determines that Mr. Ross was deprived of counsel, his conviction and sentence will be vacated.

6. United States v. Watson, Fourth Circuit: Appellant was convicted of being a felon in possession of a firearm and ammunition. The district court denied appellant's motion to suppress a statement he made after being detained by police for three hours without probable cause. This was error because (1) appellant's three-hour detention was an unlawful custodial arrest in violation of his Fourth Amendment rights, (2) the taint of this unlawful arrest was not purged by the two Miranda warnings provided during his detention or by any intervening circumstance, and (3) the erroneous admission of appellant's statement was not harmless. As a result, appellant's convictions were vacated and the case remanded to the district court.

7. United States v. Xu, Ninth Circuit: Four Chinese nationals appealed their convictions arising out of their scheme to steal funds from the Bank of China and retain the proceeds by illegal transfers of funds and by immigration fraud. Because the district court erred in applying Sentencing Guideline section 2S1.1(a)(1) instead of section 2S1.1(a)(2), which resulted in a higher base offense level, the case was remanded for resentencing.

December 17, 2012

Short Wins - Stealing the Identity of a Corporation, Conspiracies to Distribute Marijuana, and Jury Instructions for Sexual Assault

This week's wins cover three circuits and four diverse areas of law.

Particularly interesting (to me) are the Fourth Circuit's opinion holding that it may not be a crime to steal the identity of a corporation. It feels like corporate personhood and its limits are popping up in all sorts of ways these days.

The Eighth Circuit has an interesting jury instruction issue in a sexual assault case, and, remarkably, the First Circuit has a remand based on the sufficiency of the evidence in a marijuana conspiracy case. A good set of wins all around.

And good work Fourth Circuit for having two entries on the list!

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Hilton, Fourth Circuit: Appellants Jacqueline, Tamatha, and Jimmy Hilton were convicted of offenses arising out of their scheme to defraud a furniture manufacturer. Jacqueline and Jimmy were convicted of, among other crimes, identity theft and aggravated identity theft. Because the statutes governing these crimes are ambiguous as to whether they include the theft of a corporation's identity, Jacqueline's and Jimmy's convictions on these counts were vacated. As to the remaining counts, the court vacated Jacqueline's and Jimmy's sentences and remanded for resentencing.

2. United States v. Rouillard, Eighth Circuit: At appellant's trial for rape, he requested that the jury be instructed that the knowledge element of rape required the jury to find not only that (1) he engaged in a sexual act with a woman when she was incapable of consenting, but also that (2) he knew of the woman's incapacity or inability to consent. The district court declined to provide instruction (2). This was error, as (2) is an element of the offense and deprived appellant of his defense. Consequently, appellant's conviction was reversed and the case remanded for a new trial.

3. United States v. Torres-Miguel, Fourth Circuit: Appellant was convicted of illegal reentry by an aggravated felon. At sentencing, the district court imposed a 16-level enhancement based on its finding that appellant's state conviction for a criminal threat constituted a prior "crime of violence" under Sentencing Guideline § 2L1.2(b)(1)(A)(ii). Because the state conviction did not qualify as a crime of violence, the enhancement was improper. Appellant's sentence was vacated and the case remanded for resentencing.

4. United States v. Burgos, First Circuit: In drug conspiracy case, a rational jury could not have concluded beyond a reasonable doubt that appellant had knowledge of or was willfully blind to a marijuana distribution operation. Because the government did not meet its burden of proving that appellant knowingly and voluntarily participated in the conspiracy, appellant's conviction was vacated with instructions for the district court to enter a judgment of acquittal.

November 27, 2012

Short Wins - A Few Things Happened Before Thanksgiving

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

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

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

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

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

To the Victories:

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

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

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

October 31, 2012

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

Robert Peoples is no stranger to car trouble.

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

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

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

Mr. Peoples was on time the next day.

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

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

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

The trial went on.

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

What Not To Do After Losing In Court

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

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

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

Moreover,

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

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

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

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

The Varieties of Federal Criminal Contempt

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

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

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

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

Old Habits Die Hard

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

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

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

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

A Summary Hearing

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

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

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

As the Fourth Circuit has said,

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

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

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