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

September 22, 2014

Short Wins - The "Silence is Golden" Edition

The most interesting case in the last two weeks, I think, is United States v. Shannon. There, the person accused of a crime simply didn't feel like talking to law enforcement - because, really, who would. The government crossed him on his decision not to talk and asked why he didn't come forward with his exculpatory testimony sooner.

The Third Circuit reversed because this violated his Fifth Amendment rights - there's really no point in having a right not to talk if you hold it against a person when she doesn't talk.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Santaigo, First Circuit: Appellant was convicted of failing to register as a sex offender and the terms of his supervised release included a number of special sex offender conditions. One condition, which was not articulated by the judge at the sentencing hearing but only added in the written judgment, must be vacated because it was imposed in Appellant's absence.

Defense Attorneys: Liza L. Rosado-Rodríguez, Héctor E. Guzmán-Silva, and Héctor L. Ramos Vega

2. United States v. Cuti, Second Circuit: After being convicted of making false statements and securities fraud, Appellant was ordered to pay restitution. The court vacated the restitution order and remanded for the trial court to determine what expenses incurred are "necessary" under the Victim and Witness Protection Act. The court held that legal expenses incurred in connection with civil arbitration were not undertaken or pursued in the aid of prosecution and therefore were improperly included in the restitution order.

Defense Attorneys: Brian C. Brook and Matthew J. Peed

3. United States v. Shannon, Third Circuit: Appellant's conviction was vacated because the government cross-examined Appellant during trial about his post-arrest silence. The government violated Appellant's Fifth Amendment rights when it questioned him about failing to come forward earlier with his exculpatory version of the facts.

Defense Attorney: Paul D. Boas

4. United States v. Farah, Sixth Circuit: Appellant's conviction for refusing to testify in the criminal prosecution of thirty gang members was in violation of the double jeopardy clause. The underlying criminal investigation was, in part, for the sex trafficking of minors and Appellant was convicted of both willfully disobeying an order requiring his testimony and of obstructing or attempting to obstruct the child sex trafficking laws. Those convictions require proof of the same elements, requiring the willfully disobeying conviction to be vacated.

Defense Attorney: James Mackler

5. United States v. Brewer, Eighth Circuit: Appellant was convicted of failing to register as a sex offender under the Sex Offender and Registration Notification Act (SORNA). Appellant, who was convicted prior to the enactment of SORNA, challenged the Attorney General's interim rule that made registration requirements to all pre-Act offenders. Because that rule was set without the required period for notice and comment, and without good cause, and that rule prejudiced Appellant, SORNA did not apply to Appellant and his conviction must be vacated.

6. United States v. Thornton, Eighth Circuit: Appellant was sentenced to the 15-year mandatory minimum for being an armed career criminal. That sentence was vacated because two of his prior convictions did not qualify as the three predicate offenses necessary to be considered an armed career criminal. First, the government admitted that a Missouri burglary conviction for which Appellant received a suspended sentence could not be a predicate offense. Second, Appellant's Kansas burglary conviction was under a statute which criminalized both violent and non-violent conduct. It could not be considered a predicate offense because the government did not prove that Appellant was convicted under the subsection criminalizing violent conduct.

7. Castellanos v. Small, Ninth Circuit: Petitioner's application for habeas relief should have been granted where the government exercised four peremptory strikes against Hispanic venirepersons. The Ninth Circuit found that the government's reason for striking one person because she did not have children was pretextual.

Defense Attorneys: Gia Kim and Sean K. Kennedy

8. Gibbs v. LeGrand, Ninth Circuit: The district court improperly dismissed Appellant's petition for habeas corpus. Because Appellant had repeatedly requested updates from his attorney about his state post-conviction proceedings, and counsel had pledged to update Appellant. Counsel, however, did not tell Appellant his stat post-conviction proceedings had ended, causing Appellant to miss the deadline for his federal habeas petition. That misconduct was an extraordinary circumstance requiring an extension of time for filing the habeas petition.

Defense Attorneys: Megan C. Hoffman, Debra A. Bookout, and Ryan Norwood

9. United States v. Dreyer, Ninth Circuit: Appellant's convictions for child pornography were reversed because the trial court should have excluded where a military agent turned over the fruits of his investigation to local law enforcement. The court held that it is improper for a military special agent to investigate conduct by anyone in the state of Washington, not just those connected with the military. Such investigation violates the regulations and policies proscribing direct military enforcement of civilian laws.

Defense Attorney: Erik V. Levin

10. United States v. Meyer, Ninth Circuit: In California, the one-year statute of limitations in which to file a §2254 habeas petition begins to run once 1) the California Supreme Court denies the state habeas petition; and 2) the United States Supreme Court denies certiorari or the 90-day period for filing a petition for certiorari expires. Petitioner here filed his habeas petition within one year of the denial of his state habeas, and it was only at that point that he had exhausted state remedies and the statute of limitations began to run.

Defense Attorney: Charles Marchand Bonneau II

11. United States v. Heineman, Tenth Circuit: Appellant was convicted after a bench trial of one count of sending an interstate threat. That conviction was reversed because the court did not make a finding that Appellant intended the recipient to feel threatened. The Ninth Circuit held that the First Amendment requires the government to prove in any true-threat prosecution that the accused intended the recipient to feel threatened.

Defense Attorneys: Benjamin McMurray and Kathryn Nester

September 15, 2014

Short Wins - the Distribution of Child Pornography Gets (slightly) Limited Edition

Child porn cases are turning out to be a surprisingly large portion of what's in federal court.

Child pornography is gross and wrong, to be clear. But these cases are, I think, a symptom of a larger problem.

All of us have times in our lives when we're in the wilderness, when we feel adrift and alienated and unsure of where we're going or where we are. Some folks in this time of life turn to alcohol, Some turn to drugs, video games, or other ways to keep themselves from facing the great chasm of dissatisfaction that their lives have become. "The mass of men lead lives of quiet desparation" and all that.

Maybe this desperation is more acute in these times, maybe it's an inevitable part of what it is to be human.

In any event, as anyone who has defended someone who has been accused of possession of child pornography knows, unfortunately, some folks come to this dark place in their lives and instead of drinking their time away, they turn to pornography. Often they start on more mainstream stuff, come to be desensitized and look for things that are more and more disturbing. That can lead them to child pornography. Or these folks are just searching for pornography in volume and come to the massive troves of child pornography floating around the internet.

The government is not shy about bringing these cases. Much as folks with drug addictions get punished by our government when they come to harder stuff - even though what they really ought to get is treatment - people who merely possess child pornography are too aggressively pursued for what is often a mental health problem that requires treatment.

Happily, in United States v. Husmann, the Third Circuit took a stand against a particularly gross practice in the prosecution of child pornography laws.

Much child pornography is shared through online file sharing systems. So, you can have child pornography in a folder that you mark to be shared with others on the internet.

The government sometimes takes the position that making stuff available through putting it in a folder that allows sharing is distribution of child pornography. Distribution is a massively more severe crime than possession with a much more severe mandatory minimum. And by threatening a distribution charge where a person only allowed file sharing, the government can coerce plenty of people into taking a plea, or taking a plea under worse terms.

Thankfully, the Third Circuit came out against that practice, holding that just showing the images were available for sharing isn't the same as saying they were distributed.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Groysman, Second Circuit: Appellant was convicted of health care fraud and money laundering. The main government witness gave testimony that included inadmissible hearsay and opinions, and was allowed, without personal knowledge, to provide the foundation for seven government exhibits that were inaccurate and misleading. The admission of misleading exhibits for which the witness had no personal knowledge of the matters conveyed, as well as inappropriate opinion testimony relating to Appellant's role in the scheme, was prejudicial and required the convictions to be vacated and the case remanded for a new trial.

Defense Attorney: Maurice H. Sercarz

2. United States v. Brown, Third Circuit: Appellant's conviction for being a felon in possession of a firearm was vacated and the remanded for a new trial. The district court erred in admitting evidence of Appellant's past firearm purchases. Although the government had a legitimate non-propensity purpose for admitting the evidence--it showed Appellant's knowledge of the firearm in his car--it still violated 404(b) because the government did not proffer a sufficient explanation of why the evidence was relevant. Evidence that Appellant had previous purchased firearms does nothing to establish that he knowingly possessed a gun six years later.

Defense Attorney: Kimberly R. Brunson

3. United States v. Brown, Third Circuit: The district court inappropriately applied a sentencing enhancement after finding that Appellant was a career offender, requiring Appellant's sentence to be vacated. There is a narrow range of cases where a court can look beyond the legal requirements, and instead examine the factual bases for a conviction to determine if it was a crime of violence. But here, exploring the underlying facts was in error because the prior conviction did not require the factfinder to make a determination that there was a crime of violence so the modified categorical approach cannot be used.

Defense Attorney: Thomas W. Patton

4. United States v. Husmann, Third Circuit: Appellant was convicted by a jury of three counts of distributing child pornography after Appellant placed images in a shared computer folder connected to a file sharing network. At trial, the government did not present evidence that any person had downloaded or obtained those images. The mere placement of images into a folder, making those images available to users of the file sharing network, does not constitute distribution. Appellant's conviction was therefore vacated.

Defense Attorneys: Theodore C. Forrence, Jr., Kenneth C. Edelin, Jr.

5. United States v. Foster, Sixth Circuit: Appellant was sentenced to 622 months' imprisonment for two counts of drug possession, two counts of firearm possession, one count of drug distribution, and one count of conspiracy. One of the drug possession charges as well as one firearm possession counts were vacated because they were in violation of the Double Jeopardy Clause. Those two counts duplicate other counts for which Appellant was convicted and sentenced.

Defense Attorney: Frederick Liu

6. United States v. Miller, Sixth Circuit: A jury found Appellants guilty of hate crimes after a string of assaults in Amish communities where the Appellants would cut the hair of members of their Amish community. During trial, the court gave a jury instruction requiring the jury to find that the faith of the victims must be a "significant factor" in motivating the assaults. The convictions must be vacated and Appellants retried because the instruction should have required the jury to find that the faith of the victims was a "but for" cause of the assaults.

Defense Attorneys: Michael E. Rosman, Matthew D. Ridings, Wendi L. Overmyer, Rhonda L. Kotnik, John R. Mithcell, Kip T. Bollin, Holly H. Little, Mark R. Butscha, Jr., David C. Jack, George C. Pappas, Brian M. Pierce, Joseph A. Dubyak, Samuel G. Amendolara, Steven R. Jaeger, Robert E. Duffrin, Rhys . Cartwright-Jones, Damian A. Billak, J. Dean Carro, Wesley A. Dumas, Sr., James S. Gentile, Nathan A. Ray, and Gary H. Levine

7. United States v. Prater, Sixth Circuit: A conviction for third-degree burglary under New York law is not a "violent felony" for purposes of the Armed Career Criminal Act. The district court's determination that these were violent felonies without applying the modified categorical approach was in error. The sentence was vacated and the case remanded.

Defense Attorney: Laura E. Davis

8. United States v. Chapman, Seventh Circuit: Appellant was convicted of drug trafficking by a jury. The district court erroneously admitted details of Appellant's prior drug-trafficking conviction under Rule 404(b). The judge allowed the government to use that evidence to prove knowledge and intent, but the relevance of the evidence depended entirely on a forbidden propensity inference. Appellant's conviction was vacated and remanded for a new trial.

9. United States v. Gonzalez, Seventh Circuit: Appellants were members of the Almighty Latin Kings Nation gang and most pled guilty to various charges, although one went to trial. Appellant Anaya, who was found guilty at trial, must be resentenced because the district court increased a statutory maximum based on facts that were not proven beyond a reasonable doubt. Thus, the sentencing guidelines should have reflected a maximum of 20 years as opposed to 30.

10. United States v. Johnson, Seventh Circuit: At sentencing, the district court did not announce a term of supervised release, but one was incorporated in the court's written amended judgment. The conditions of supervised release which were not orally announced at sentencing were vacated and the case remanded for the district court to clarify conditions of the supervised release.

11. United States v. Fowlkes, Ninth Circuit: The forcible removal of drugs from Appellant's rectum during a body cavity search, without medical training or a warrant, violated Appellant's Fourth Amendment rights. The evidence obtained from that brutal and physically invasive search should have been suppressed. The conviction predicated on the drugs was vacated and the case remanded for resentencing.

Defense Attorney: Thomas P. Sleisenger

12. United States v. Luis, Ninth Circuit: The district court erred in calculating the loss amount after Appellant pled guilty to conspiracy and loan fraud. The district court erred by calculating the restitution amount based on the unpaid principal loan balance rather than the value of the loans when they were purchased.

Defense Attorney: Todd W. Burns

13. United States v. Nora, Ninth Circuit: The district court's denial of a motion to suppress was reversed. Although Appellant's arrest was supported by probable cause, it violated the Fourth Amendment because officers physically took Appellant into custody in his front yard by surrounding his house and ordering him out at gunpoint. All evidence seized in the search incident to arrest should have been suppressed, as should the statements made by Appellant's statements.

Defense Attorney: Michael J. Treman

14. Wharton v. Chappell, Ninth Circuit: The district court's denial of habeas was vacated and remanded for further factual proceedings to determine ineffective assistance of counsel. Appellant's claim that his lawyer was ineffective for failing to investigate and present testimony by Appellant's half-brother that there was sexual abuse ubiquitous in Appellant's family could have merit as the jury may not have rendered a verdict of death. The case was remanded for further proceedings.

Defense Attorneys: Marcia A. Morrissey and Lynne S. Coffin

August 27, 2014

Short Wins - The Late August Edition

It's been an interesting few weeks in the circuits (and, apologies for the gap in posting - pesky family vacations).

Probably my favorite is United States v. Mergen, about whether an FBI agent's statements that what the guy charged with a crime was doing were ok and legal were admissible. I tend to think FBI stings that take advantage of how weak the entrapment defense is are one of the more loathsome things our federal government does - any time you can poke holes in that I think it's a good thing.

Also of note is United States v. Bagdy - there, a guy who spent an inheritance on stuff that wasn't restitution, instead of restitution, didn't violate his supervised release conditions. Supervised release can be insane - especially when restitution is in play. Nice work for the Third Circuit in dialing it back.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Martinez, First Circuit: Appellant pled guilty to one count of being a felon in possession of a firearm and was sentenced to 70 months' imprisonment. That sentence was vacated because the district court erred in applying a six-level sentencing enhancement for having previously committed a crime of violence. The First Circuit held that a conviction for assault and battery in Massachusetts is categorically not necessarily a crime of violence because it does not require proof of intent.

Defense Attorney: William W. Fick

2. United States v. Ramos, First Circuit: Appellant was convicted of various child pornography charges, and as part of his supervised release, was forbidden from using a computer or the internet without permission and also was forbidden from having pornographic material. Those conditions were vacated because they are not reasonably related to Appellant's characteristics and history and thus deprive him of more liberty than is reasonably necessary to achieve the goals of sentencing.

Defense Attorney: Steven A. Feldman

3. United States v. Mergen, Second Circuit: Appellant's conviction under the Travel Act was vacated because the district court erred by excluding as hearsay a recording in which the FBI agent assured Appellant that he had done nothing wrong. The statements should not be excluded as hearsay where prior inconsistent statements are offered for impeachment, and the fact that some portions of the recording were inaudible was not a proper basis for exclusion under the authentication rule.

Defense Attorneys: Andrew J. Frisch and Jeremy B. Sporn

4. United States v. Bagdy, Third Circuit: The district court cannot revoke supervised release based on Appellant's purposeful dissipation of an inheritance he received instead of using the money to pay restitution he owed. While that conduct is reprehensible, it did not violate a specific condition of Appellant's supervised release. The judgment was vacated and the case remanded.

Defense Attorney: Candace Cain

5. United States v. Mark, Third Circuit: After being convicted of conspiracy to possess with intent to distribute a controlled substance, Appellant was sentenced to 210 months' imprisonment. The court remanded for resentencing because the Court did not provide a basis for its findings on the amount of drugs attributable to Appellant and Appellant had disputed the amount as indicated in the PSR. The court's conclusory statements were insufficient since the amount to attribute was in dispute.

Defense Attorney: Pamela L. Colon

6. United States v. McLaurin, Fourth Circuit: Appellant's sentence was vacated because his criminal history calculation included two common law robbery convictions when Appellant was 16. Because this miscalculation was plain error, the case was remanded for resentencing with a lower sentencing range.

Defense Attorneys: Joshua B. Carpenter, Lawrence W. Hewitt, and Henderson Hill

7. United States v. Juarez-Velasquez, Fifth Circuit: Appellant's probation revocation was reversed and vacated because his supervised release expired prior to the date the Probation Office petitioned the court for revocation, depriving the court of jurisdiction. Tolling a term of supervised release is appropriate only when Appellant was imprisoned in connection to a criminal conviction, and Appellant's imprisonment was only while he was awaiting trial for charges for which he was acquitted.

8. United States v. Hackett, Sixth Circuit: Appellant was convicted by a jury of various gang-related, weapons, and drug offenses as well as a RICO conspiracy charge and was sentenced to 440 months' imprisonment. The mandatory-minimum sentence on a firearms count was imposed in violation of Alleyne--because the indictment did not allege that Appellant discharged the weapon--and therefore Appellant's sentence was vacated and remanded for resentencing.

Defense Attorney: David L. Doughten

9. United States v. Noble, Sixth Circuit: During their trial for various drug trafficking charges, Appellants moved to suppress evidence obtained from a frisk during a traffic stop. The decision to perform the frisk was based solely on: 1) a passenger acting extremely nervous; 2) the DEA task force told the officer that the vehicle was suspected to be involved in drug trafficking; and 3) the idea that subjects involved in drug trafficking often carry a weapon to protect themselves. That was not enough to amount to a reasonable suspicion so the convictions were vacated and the case remanded.

Defense Attorneys: Frederick J. Anderson, Charles P. Gore, and Katherine A. Crytzer

10. United States v. Tomlinson, Sixth Circuit: Appellant was convicted by a jury for being a felon in possession of a firearm. Appellant timely raised his Batson challenge before the jury was sworn and the trial commenced, so the case was remanded for a Batson hearing. The Sixth Circuit held that a Batson challenge does not have to happen contemporaneously for each stricken juror.

Defense Attorney: Valentine C. Darker

11. United States v. Toviave, Sixth Circuit: Appellant was convicted of forced labor for requiring his young relatives to cook, clean, and do household chores. The Court found that Appellant's behavior was reprehensible, but did not amount to forced labor. Requiring a child to do chores cannot possibly amount to forced labor, and physically punishing children for failing to perform those chores does not change the nature of the work from chores into forced labor. His conviction was therefore vacated.

Defense Attorney: Christopher Keleher

12. Socha v. Boughton, Seventh Circuit: The district court abused its discretion when it rejected Petitioner's equitable tolling argument when requesting habeas relief. Although he failed to file his petition within the given time limits, equity required that the deadline be forgiven. Petitioner faced many difficulties in filing his petition, none of which were his fault, including his inability to obtain his case file for almost a year from the public defender despite numerous requests.

13. United States v. Adame-Hernandez, Seventh Circuit: The district court withdrew Appellant's guilty plea over his objection. This violated the procedures of Rule 11 which allows a district court to reject a plea agreement and then allow Appellant to either stand by the plea or withdraw it. It was an abuse of discretion for the court to make that choice for Appellant. The court also erred in believing Appellant had breached the plea agreement.

14.United States v. Domnenko, Seventh Circuit: A 14-point sentencing enhancement was not sufficiently explained or supported and therefore required remand. Appellants were convicted of fraud, but a conviction for their involvement does not necessarily mean that all economic damages were reasonably foreseeable.

15. United States v. Jones, Seventh Circuit: The sentences for three Appellants were vacated and remanded for resentencing. Jones' request to be sentenced under the Fair Sentencing Act was erroneously denied. Mockabee was sentenced under a more recent version of the sentencing guidelines which resulted in a higher guidelines range than the previous version. Drake's sentence was also vacated and remanded for resentencing because the jury failed to make specific findings regarding drug quantities which increased the mandatory minimum. All three must be resentenced.

16. United States v. Moore, Seventh Circuit: A jury convicted Appellant of using or carrying a firearm during and in relation to a crime of violence but was unable to reach a verdict on the predicate violent crime itself. The conviction was vacated because the trial court solicited a partial verdict form the jury before the jurors indicated that no further deliberations would be useful. Because this could have resulted in a premature verdict, the conviction must be vacated.

17. United States v. Walton, Seventh Circuit: The trial court's denial of Appellant's motion to suppress was in error. Appellant had Fourth Amendment standing despite the fact that he was a parolee because parolees do not receive fewer constitutional protections based on their status. Further, the person who is listed on a rental agreement for a rental car does possess an expectation of privacy that enables him to challenge a search under the Fourth Amendment. Thus, the denial of the suppression motion was reversed and remanded for further proceedings.

18. United States v. Zheng, Seventh Circuit: After pleading guilty to aggravated identity theft and conspiracy to misuse Social Security numbers and commit passport fraud, Appellant was sentenced to 61 months in prison. A two-level sentencing enhancement for fraudulent use of a foreign passport was applied. The case was remanded for resentencing because the application of the enhancement would double-count conduct that was already considered in the aggravated identity theft conviction and therefore was improper.

19. Franco v. United States, Eighth Circuit: After pleading guilty to conspiracy to distribute methamphetamine, Appellant was sentenced to 120 months' imprisonment. Appellant filed a habeas petition arguing that his sentence should be vacated because his attorney failed to file a requested notice of appeal. The district court erred by denying the habeas petition without an evidentiary hearing to determine whether Appellant had asked his attorney to file an appeal. The denial of the petition was reversed and remanded.

20. Colwell v. Bannister, Ninth Circuit: The district court's grant of summary judgment was reversed in a §1983 claim. The Nevada Department of Corrections' categorical denial of Petitioner's request to have cataract surgery amounted to deliberate indifference when it was based on an administrative policy that one eye was good enough for prison inmates. The case was remanded for trial.

Defense Attorneys: Mason Boling, Lauren Murphy, Dustin E. Buehler, Michelle King, Joy Nissen, and Gregory C. Sisk

21. Hernandez v. Spearman, Ninth Circuit: The district court erred in failing to apply the prison mailbox rule when dismissing Petitioner's habeas corpus petition as untimely. The mailbox rule applies when a pro se habeas petitioner gives his petition to a third party to mail from within the prison.

Defense Attorney: Tony Faryar Farmani

22. Nordstrom v. Ryan, Ninth Circuit: Petitioner's allegations that prison officials violated his constitutional rights when they read a confidential letter to his lawyer should not have been dismissed for failure to state a claim. Petitioner stated a Sixth Amendment claim by alleging that officials read his legal mail, claimed entitlement to do so, and his right to private consultation with counsel had been chilled. Those allegations also supported Petitioner's claim for injunctive relief. The district court's dismissal was reversed.

Defense Attorneys: Michelle King, Joy Nissen, Gregory C. Sisk, Mason Boling, Lauren E. Murphy, and Dustin E. Buehler.

23. United States v. JDT, Juvenile Male, Ninth Circuit: The adjudications of delinquency for six counts of aggravated sexual abuse were vacated and remanded for reconsideration. The district court abused its discretion in denying Appellant's requests to suspend his status as a juvenile delinquent because the court did not weigh the factors bearing on suspension.

Defense Attorney: Keith J. Hilzendeger

24. United States v. Mageno, Ninth Circuit: Appellant's conviction for conspiracy to distribute methamphetamine was reversed because the prosecutors made several factual misstatements in closing arguments which encouraged the jury to convict Appellant based on evidence not presented at trial. The Ninth Circuit determined that there was a reasonable probability that the misstatements affected the outcome of Appellant's trial.

Defense Attorney: Mace J. Yampolsky

25. United States v. Hale, Tenth Circuit: Appellant was convicted of making a materially false statement under oath in a bankruptcy case. That conviction cannot stand where the questions giving rise to the allegation were ambiguous and the answers provided by Appellant may have been valid under one interpretation of the questions asked. That conviction was reversed.

Defense Attorney: Joseph Alexander Little, IV

26. United States v. Roy, Eleventh Circuit: Appellant's conviction for possession of child pornography was vacated and the case remanded for a new trial because the trial court allowed the government to elicit testimony and evidence even though defense counsel was not in the courtroom. This was a violation to Appellant's 6th Amendment right to counsel because the government was allowed to examine its computer forensics expert witness and admit inculpatory evidence (pictures) even though defense counsel was not in the courtroom.

August 1, 2014

Short Wins - the Entrapment Edition

It is rare and wonderful to see an entrapment opinion. And United States v. Kopstein fits the bill.

In other news, I was on TV last night talking about the trial of former Virginia Governor Bob McDonnell. If you're interested, here's a clip (I start at about 2:15).

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Kopstein, Second Circuit: Appellant was convicted by a jury of transporting and shipping child pornography. During trial, Appellant's sole defense was entrapment. The conviction was vacated and the case remanded because the jury instruction on entrapment failed to consistently and adequately guide the jury. Here, a jury instruction on the lesser-included offense of possession would allow the jury to return a verdict of guilty on the transporting and shipping charge, even if the jury found Appellant not guilty of possession. This was confusing because it would allow the jury to render a verdict of guilty on the greater offense even if the prosecution had failed to prove a necessary part of its case (the lesser offense).

Defense Attorney: Norman Trabulus

2. United States v. Caldwell, Third Circuit: Appellant's conviction of being a felon in possession of a firearm was vacated because the district court improperly admitted evidence of Appellant's prior convictions for unlawful firearm possession. Because the government's theory of the case was only for actual possession, and therefore knowledge was not at issue, knowledge was not a proper reason to admit the prior prejudicial convictions under Rule 404(b).

3. United States v. Mohamed, Seventh Circuit: A jury convicted Appellant of one count of knowingly transporting and possessing contraband cigarettes. The Seventh Circuit interpreted Indian's cigarette tax law as not applying to cigarettes merely possessed in Indiana. Since cigarettes simply passing through the state in interstate commerce do not have to bear Indiana tax stamps, the government failed to bear its burden to prove sale, use, consumption, handling, or distribution within Indiana and Appellant's motion for judgment of acquittal should have been granted.

4. United States v. Daniels, Ninth Circuit: The Ninth Circuit vacated Appellant's sentence and remanded for resentencing after his supervised release was revoked. It was plain error for the district court not to offer Appellant an opportunity to speak before it imposed a post-revocation sentence.

Defense Attorneys: K. Elizabeth Dahlstrom, Sean K. Kennedy, Brianna Fuller Mircheff

June 30, 2014

Short Wins - the Seventh Circuit Draws a Line on Supervised Release

There's been a lot in the circuits in the last week, but perhaps the most surprising bit is that the Seventh Circuit issued four opinions on supervised release conditions.

Supervised release may not be the sexiest of issues, but, especially in child pornography cases, it matters a lot. I'm not sure what's in the water in Chicago, but whatever it is reaffirms that these conditions need to be narrowly tailored and properly justified.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Ganias, Second Circuit: Following a jury trial, Appellant was convicted for tax evasion. That conviction was vacated because the district court erred in denying a motion to suppress personal computer records. Those records were retained by the Government for more than two-and-a-half years after Appellant's computer was copied pursuant to a search warrant. This unauthorized retention of personal files violated Appellant's Fourth Amendment rights.

Defense Attorneys: Stanley A. Twardy, Jr. and Daniel E. Wenner

2. United States v. Adepoju, Fourth Circuit: Appellant was convicted by a jury of bank fraud and aggravated identity theft and sentenced to 70 months' imprisonment. During sentencing, Appellant was given a sentencing enhancement for sophisticated means. Completing paperwork to open a bank account in another's name, including obtaining that personal information via internet searched, did not constitute sophisticated means, so the sentence was vacated and the case remanded for resentencing.

Defense Attorney: John O. Iweanoge, II

3. United States v. Henriquez, Fourth Circuit: The Fourth Circuit determined that first degree burglary in Maryland did not constitute a generic burglary and therefore does not qualify as a crime of violence under the U.S. Sentencing Guidelines. Appellant's sentence was reversed because he received a sentencing enhancement for having committed a crime of violence.

Defense Attorneys: Paresh S. Patel and James Wyda

4. United States v. Blevins, Fifth Circuit: Appellant received a sentencing enhancement for having a prior felony drug conviction. In order to apply that enhancement, the Government was required to serve notice on Appellant. The Government's service of such information under a first indictment was insufficient when that indictment was dismissed and the Government then filed a second, separate indictment. The notice must be served as part of the prosecution to which the sentencing is connected, so the case was remanded for further proceedings.

5. United States v. Escobedo, Fifth Circuit: During trial, the Government introduced evidence of Appellant's withdrawn guilty plea and related inculpatory statements. Appellant withdrew the guilty plea prior to its acceptance by the district court and proceeded to trial instead. The plea included a waiver of Appellant's ability to challenge the introduction of his withdrawn guilty plea and related inculpatory statements. Because the plea was ambiguous about whether that waiver took effect immediately or only upon the acceptance of the plea, the case was reversed and remanded.

6. United States v. Mackay, Fifth Circuit: After pleading guilty to conspiracy to distribute and possession with intent to distribute marijuana. Because of a clerical error, Appellant's PSR and judgment listed cocaine instead of marijuana. Appellant filed a motion to correct that error. The refusal to correct the PSR was reversed. The Fifth Circuit concluded that the PSR is a part of the record under Rule 36 and because the BOP uses the PSR for classification and designation, the error was not harmless.

7. United States v. Rodriguez-Lopez, Fifth Circuit: Appellant was convicted by a jury of conspiracy to distribute marijuana. The district court applied a three-level sentencing enhancement for his managerial or supervisor role in the drug conspiracy. On appeal, the Court vacated and remanded for resentencing because there was no evidence that Appellant had exercised supervisory control over other members of the conspiracy, nor was he involved in the planning of operations of the organization. Instead, he only recruited another to purchase firearms, and that person recruited others. That involvement was insufficient to prove a managerial position for the sentencing enhancement.

8. United States v. Baker, Seventh Circuit: Appellant pled guilty for failing to register as a sex offender and was sentenced to 77 months' imprisonment followed by a life term of supervised release. The judge also imposed eight special conditions of supervised release. The life term of supervised release was vacated because the judge improperly calculated the guidelines and failed to provide for any justification for exceeding the correct 5-year guidelines term. Three special conditions were also vacated because they were not reasonably tailored or properly defined. Finally, the order was deficient in failing to account for Appellant's potential inability to pay for some of the required treatment and tests of his supervision.

9. United States v. Benhoff, Seventh Circuit: Appellant pled guilty to knowingly transporting and shipping child pornography and, along with his sentence, was given special conditions of supervised release. The court's order on two of the special conditions was remanded sot that the trial court can narrowly tailor them. The trial court must clarify what materials are "sexually stimulating" as well as narrow the scope of the no contact with minors order so it does not block Appellant's access to protected speech.

10. United States v. Farmer, Seventh Circuit: Once again, the Seventh Circuit vacated the special conditions of Appellant's supervised release and remanded for further consideration. In this case, the special conditions bore no reasonably direct relationship to Appellant's underlying crime. Appellant pled to attempted extortion and using interstate communications in that attempt. The two conditions--a prohibition on self-employment and a requirement that Appellant submit to a search of his person, vehicle, office, residence, and property without a warrant--were not reasonably related to his convictions.

11. United States v. Garrett, Seventh Circuit: Appellant's sentencing guidelines were miscalculated after his drug offense conviction. The court did not clearly state the drug quantity that it found attributable to Appellant or adequately indicate the evidence it found reliable in determining Appellant's relevant conduct. Appellant's sentence was vacated and the case remanded for resentencing.

12. Henderson v. Ghosh, Seventh Circuit: Appellant, a prisoner, filed suit against health care providers and corrections employees alleging deliberate indifference to his medical needs. During litigation, Appellant's motions for recruitment of counsel were denied. Only once the defendants filed a summary judgment motion was Appellant's motion for recruitment of counsel granted. This trial court did not properly assess Appellant's competence to litigate his claims, which was only exacerbated by his incarceration. In addition, the factual and legal complexity of the claims necessitated the appointment of counsel in this case.

13. United States v. Glover, Seventh Circuit: Appellant's motion to suppress guns, drugs, and paraphernalia seized from his home pursuant to a search warrant was improperly denied. The search warrant had no information regarding the informant's credibility, which undermined the magistrate's ability to be a neutral arbiter of probable cause. The complete absence of that information was sufficient to raise an inference of reckless disregard for the truth, which warranted reversal.

14. United States v. Johnson, Seventh Circuit: Appellant's special condition of supervised release which required him to participate in sex offender treatment was not supported. Appellant's only sex-related offense was a misdemeanor conviction fifteen years before sentencing in the immediate case. That condition of supervised release was therefore vacated.

15. United States v. Nelson, Eighth Circuit: Appellant's currency was seized pursuant to a lawful traffic stop, where Appellant was found to be carrying a small amount of marijuana and paraphernalia. Appellant had gathered the currency in advance of a road trip from his own savings account, stock dividends, and family. Despite the legitimate sources of the currency, the government instituted a forfeiture proceeding claiming that the currency was substantially connected to drug trafficking. The trial court's ruling allowing the forfeiture was reversed because the Government failed to prove that Appellant was planning to purchase and transport large amounts of drugs and other evidence indicated that Appellant was not engaged in trafficking.

16. United States v. Aguilera-Rios, Ninth Circuit: Appellant's conviction for illegal reentry was reversed. The Ninth Circuit found that Appellant's removal order was invalid because it was based on a conviction under the California Penal Code which was not a categorical match for the federal firearms aggravated felony.

Defense Attorney: Kara Hartzler

17. United States v. Jackson, Ninth Circuit: The Ninth Circuit reversed Appellant's conviction for unlawfully manufacturing or possessing an identification card of the design prescribed by the head of any department or agency of the United States. No rational fact-finder could conclude beyond a reasonable doubt that the fake card Appellant was "of the design prescribed by the head of any department or agency of the United States," because the card was created by the maintenance center at a Marine Corps base and Appellant created a copy of the card previously issued to him because he constantly lost his actual card.

Defense Attorney: Davina T. Chen

18. Boyd v. United States, Eleventh Circuit: Appellant's fourth §2255 motion was dismissed as successive. That dismissal was reversed because the term "successive" does not refer to all habeas petitions filed second or successively in time. Instead, it bars only motions which could have been raised in a claim for relief in an earlier motion but were not. Appellant's three previous §2255 motions did not render the fourth successive because the wrong which he now asserts was not obvious until 2003 and the first §2255 motion was in 2001. The second and third §2255 motions were not decided on the merits and therefore did not make this motion successive either.

19. United States v. Dougherty, Eleventh Circuit: Two Appellants' sentences of 428 months were vacated. The trial court improperly applied six-level sentencing enhancements for assaulting a police officer during immediate flight from an offense. The Eleventh Circuit determined that "immediate flight" did not encompass the assault on a police officer which occurred eight days after the flight began. That is, continuing flight does not qualify as immediate flight.

May 21, 2014

Short Wins - the Expert Testimony Edition

In this edition, I think the most interesting case (of a number of interesting cases) is United States v. Garcia.

There, the government had an agent testify as an expert. The Fourth Circuit reversed, because the agent's "expert testimony" exceeded the bounds of what counts as expert testimony.

The way agents get qualified as experts is, often, nuts. It's good to see the Fourth Circuit rolling it back.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Jones, First Circuit: Appellant was sentenced to two life sentences, as well as various other 10-to-40 year sentences, related to child pornography and child sex act charges. The First Circuit found that Appellant's prior conviction did not require proof that he acted with the intent to degrade, humiliate, or arouse the victim and therefore did not qualify as a predicate offense requiring a life sentence. Because the sentences for the other charges were impacted by the two life sentences, the case was remanded for resentencing.

Defense Attorney: Jonathan G. Mermin

2. United States v. Lucena-Rivera, First Circuit: Appellant pled guilty to one count of conspiracy to commit money laundering and was sentenced to 220 months in prison. Because the trial court did not make sufficient findings of facts regarding the sentencing enhancement for being "in the business of laundering funds" the case was remanded for factual findings.

Defense Attorneys: Martin G. Weinberg and Kimberly Homan

3. United States v. Santiago-Burgos, First Circuit: After pleading guilty to a drug conspiracy charge, Appellant was sentenced to 97 months' imprisonment. Appellant argued, and the government conceded, that two criminal history points were improperly assessed. The First Circuit therefore remanded for resentencing.

Defense Attorney: Heather Golias

4. United States v. Sepulveda-Hernandez, First Circuit: The First Circuit held that a statute which doubles the maximum available penalty for drug distribution in close proximity to a youth center is an independent offense and not just a sentence-enhancing factor. The evidence at trial was not sufficient to support a conviction for that offense, so the conviction was vacated.

Defense Attorney: Irma R. Valldejuli

5. United States v. Gill, Second Circuit: Appellant's collateral challenge to his order of deportation was denied by the district court, which relied on the fact that §212(c) of the Immigration and Nationality Act had been repealed. The repeal of §212 effectively eliminated statutorily-provided discretionary relief from deportation to a class of non-citizens, including Appellant. Allowing deportation of Appellant would have an impermissible retroactive effect on those who relied on §212 when they were tried and convicted. The case was therefore remanded.

6. United States v. Pena, Second Circuit: During sentencing, Appellant received a sentencing enhancement for obstruction of justice based on written statements he made in support of a motion to suppress. In denying the motion to suppress, the trial judge found Appellant's statements not credible. The sentencing judge then applied a sentencing enhancement based on the trial judge's finding of falsity in Appellant's statements. The Second Circuit found that the district court committed clear error in determining that Appellant willfully made false statements and remanded for resentencing.

7. United States v. Smith, Third Circuit: As part of Appellant Smith's sentence for bank fraud and aggravated identity theft, he was ordered to pay restitution of $68,452. The case was remanded once prior, and Appellant's restitution amount was increased to $77,452. Because the district court exceeded the scope of remand by revisiting the restitution amount, the additional $9,000 in restitution was vacated.

Defense Attorney: Peter A. Levin

8. Barnes v. Joyner, Fourth Circuit: Petitioner, who was convicted of first-degree murder and sentenced to death, appeals the denial of his writ of habeas corpus. Because the post-conviction court failed to apply a presumption of prejudice and also failed to investigate the alleged juror misconduct which led to the petition, the case was remanded for an evidentiary hearing.

Defense Attorneys: Milton Gordon Widenhouse, Jr. and George B. Currin

9. United States v. Blackledge, Fourth Circuit: Appellant was civilly committed as a sexually dangerous person under the Adam Walsh Child Protection and Safety Act. During the commitment hearings, Appellant's lawyers had twice moved to withdraw as counsel, but both motions were denied. The Fourth Circuit found that it was abuse of discretion to deny the motions to withdraw because the trial judge did not engage in an adequate inquiry as to the substance of the motion to withdraw. The district court erred in failing to examine the length of time Appellant and his attorney had ceased communication and trial preparation. The judgments on the motions to withdraw were vacated and the case remanded for further consideration.

Defense Attorney: Richard Croutharmel

10. United States v. Garcia, Fourth Circuit: After a jury trial, Appellant was convicted of narcotics trafficking. Those convictions were vacated because the trial court abused its discretion by allowing an FBI agent to testify as both an expert and lay witness. The court's cautionary instruction to the jury and sustaining some objections was not sufficient to mitigate the risk of prejudice.

Defense Attorney: Todd Michael Brooks and Erek L. Barron

11. United States v. Ocasio, Fourth Circuit: Appellant was convicted by a jury for extortion under the Hobbs Act and was ordered to pay restitution to Erie Insurance as part of his sentence. The Fourth Circuit vacated the restitution order because Erie Insurance was never proven, or even alleged, to be a victim of the conspiracy, and restitution awards must be tied to the loss caused by the convicted offense.

Defense Attorneys: Matthew Scott Owen and Daniel S. Epps

12. United States v. Ramirez-Castillo, Fourth Circuit: Appellant was sentenced to 33 months' imprisonment after a jury determined that two objects he made while in prison were weapons and violated a federal statute prohibiting the possession of those weapons. The convictions were vacated because the jury was never asked whether Appellant was guilty, but only whether the first object was a weapon and whether the second object was possessed by Appellant.

Defense Attorney: Cameron Jane Blazer

13. United States v. Sadler, Sixth Circuit: Appellants, a husband and wife, were convicted of various crimes associated with operating pain-management clinics. One of Mrs. Sadler's convictions - for wire fraud - was not supported by the evidence so the conviction was reversed. The wire fraud statute does not punish those who simply use a scheme to defraud, but instead only those who use a scheme to defraud with the intention of depriving others of money or property. The government did not prove Mrs. Sadler's intent to defraud others of money or property.

Defense Attorney: William G. Brown

14. Avila v. Richardson, Seventh Circuit: The Court reversed the denial of habeas relief and remanded for further proceedings because the state court applied a rule of law contrary to controlling precedent of the Supreme Court. Appellant's claim of ineffective assistance of counsel was wholly denied because the court said such an appeal was waived by his plea. However, the Supreme Court has held that a guilty plea can be challenged if the plea itself was the result of ineffective assistance of counsel.

15. United States v. Ford, Eighth Circuit: On remand from the Supreme Court following United States v. Burrage, the Eighth Circuit held that the government had not proven at trial that the drugs Appellant sold were a but-for cause of death of a buyer. The conviction and sentence were vacated.

16. United States v. Shaw, Eighth Circuit: Appellant was sentenced to 378 months' imprisonment after the court determined a mandatory-minimum 7-year sentence was required for brandishing a firearm in furtherance of a drug-trafficking offense. Because the jury had not made a specific finding about the firearm, the sentence was vacated and remanded for resentencing.

17. United States v. Stokes, Eighth Circuit: Appellant pled guilty to possession with intent to distribute. The sentencing judge based the sentence in part on the idea that Appellant's long-term unemployment was indicative of being a drug dealer. The Eighth Circuit found that this determination was clearly erroneous because the facts in the records only supported the fact that Appellant had previous used drugs. The case was remanded for reconsideration of Appellant's request for a downward variance.

18. Butler v. Long, Ninth Circuit: The Ninth Circuit reversed the district court's denial of an untimely habeas petition. Petitioner was not provided an opportunity to amend the previously-field habeas petition and so was entitled to equitable tolling from the date of the first dismissal until the filing of the current petition.

Defense Attorney: John Ward

19. Dixon v. Williams, Ninth Circuit: Petitioner filed a habeas corpus petition challenging the jury instruction on self-defense. Because the trial court's instruction was inaccurate--asking for an honest but "reasonbale" (instead of "unreasonable) belief in the necessity for self-defense--and it lowered the State's burden of proof, the writ of habeas corpus must be granted.

Defense Attorneys: Randolph Fiedler and Debra A. Bookout

20. Frost v. Boening, Ninth Circuit: The writ for habeas corpus should be granted because the trial court infringed on Petitioner's Sixth and Fourteenth Amendment rights when it precluded counsel from making a reasonable doubt argument to the jury. The Ninth Circuit held that Petitioner was deprived of his right to demand that the jury find him guilty of all elements of the crime and that the burden of proof had shifted.

Defense Attorney: Erik B. Levin

21. United States v. Brooks, Ninth Circuit: The district court failed to set time limitations on an involuntary medication order. Because over a year had passed from the order, the Ninth Circuit ordered a new inquiry pursuant to Sell v. United States.

Defense Attorney: C. Renee Manes

22. United States v. Preston, Ninth Circuit: Appellant's conviction was reversed and the case remanded for a new trial because the trial court improperly admitted a confession by the Appellant. Taking into consideration the particular circumstances of the Appellant, the Ninth Circuit held that the confession was involuntary because the tactics used by law enforcement, along with Appellant's intellectual disability, created a coercive interrogation and an involuntary confession.

Defense Attorneys: Keith Swisher

23. United States v. Ramirez-Estrada, Ninth Circuit: Appellant's convictions for attempted entry after deportation and making a false claim to United States citizenship were reversed. The Ninth Circuit held that Appellant's post-invocation silence was improperly used to impeach him at trial.

Defense Attorney: Caitlin E. Howard

24.United States v. Thum, Ninth Circuit: Appellant's supervised release was revoked by the trial court after it found him guilty of encouraging or inducing an illegal alien to reside in the United States. The judgment was reversed and the case remanded with instruction to dismiss the petition because merely escorting an alien from a fast food restaurant near the border to a nearby vehicle does not violate the statute.

Defense Attorney: Devin Burstein

25. United States v. Castro-Perez, Tenth Circuit: Appellant pled guilty to distributing cocaine and was sentenced to 63 months' imprisonment and three years of supervised release. Under the sentencing guidelines, Appellant received a two-level enhancement for committing a drug crime while possessing a dangerous weapon. The Tenth Circuit held that there was no physical relation between the weapon and the drug trafficking activity as required for the sentencing enhancement and therefore remanded for resentencing.

Defense Attorney: Deborah Roden

26. United States v. Hill, Tenth Circuit: Appellant was convicted of charged related to a bank robbery. During trial, an FBI agent was allowed to testify as an expert about his interrogation of Appellant and about Appellant's credibility. The Tenth Circuit found that it was plain error to allow expert testimony opining on the credibility of a witness, including the Appellant, and that this error affected Appellant's substantial rights. The convictions were reversed.

Defense Attorneys: Howard A. Pincus and Warren R. Williamson

27. United States v. Thomas, Tenth Circuit: After a jury trial, Appellant was found guilty of two drug charges and sentenced to 130 months in prison. Appellant's sentence was vacated because the district court erred during sentencing by applying harsher guidelines based on six prior convictions. The government's evidence had only addressed one of the six convictions, so it was improper for the sentencing court to rely on the other five.

Defense Attorney: Thomas D. Haney

28. United States v. Harrell, Eleventh Circuit: Appellant pled guilty to robbery charges and received an agreed-upon sentence of 25 years. This conviction was vacated because the trial court was improperly involved in plea negotiations. The trial court instigated and orchestrated the plea negotiations, commenting on the potential sentences both after trial and after a plea. This seriously affected the integrity and fairness of the judicial proceeding, so Appellant must be allowed to withdraw the guilty plea.

April 1, 2014

Short Wins - The Forfeiture Order Gets Reversed Version

There were a handful of good wins in the federal circuits last week. Notably, United States v. Annabi, pushed back on a government forfeiture because the language in the indictment was inadequate. Forfeiture is a huge issue in criminal cases in federal court these days - it's good to see the home team winning in this area.

Also of note is In re Joannie Plaza-Martinez dealing with a sanction of an AFPD. It's sad to see a criminal defense lawyer sanctioned, especially an AFPD. So it's nice to see that sanction reversed.

To the victories!

1155650_berlin_siegessule.jpg1. In re Joannie Plaza-Martinez, First Circuit: Appellant is an Assistant Federal Public Defender who was sanctioned by the trial judge for asking to postpone a sentencing in one case because she was starting a trial in another case. Finding an abuse of discretion, the First Circuit vacated the sanction.

Defense Attorneys: Hector E. Guzman, Jr., Hector L. Ramos-Vega, and Patricia A. Garrity

2. United States v. Annabi: Appellant was convicted of three counts of mortgage fraud and the trial court ordered forfeiture for all three counts. The indictment for one of those counts did not use the properly statutory language to allow for forfeiture, so that forfeiture was vacated and remanded.

Defense Attorneys: Edward v. Sapone and Paula Schwartz Frome

3. United States v. Vargem, Ninth Circuit: Appellant's sentence was miscalculated under the sentencing guidelines. The court erred in applying a six-level enhancement based on weapons found in Appellant's home and also miscalculated the base offense level.

Defense Attorneys: Steven G. Kalar, Candis Mitchell, and Steven J. Koeninger

4. Davis v. Walker, Ninth Circuit: The district court denied Appellant's request to appoint a guardian ad litem and instead stayed Appellant's civil rights case until Appellant was restored to competency. The Ninth Circuit held that the indefinite stay was a final appealable decision. The stay was vacated because it failed to adequately protect Appellant's rights.

Defense Attorney: Kayvan B. Sadeghi

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.

March 4, 2014

Short Wins - The "A U.S. Attorney in California Does the Right Thing Edition"

There are two interesting opinions I'd like to highlight from this crop.

First, there's United States v. Prado from the Seventh Circuit. Every now and again, in sentencing, a district court will say it can't consider something. It seems to me that whatever that something is, these days, a district court can probably consider it. Prado is another example of that proposition.

More sensationally, check out the Ninth Circuit's opinion in United States v. Maloney! Laura Duffy, the AUSA for the Southern District of California, watched the en banc argument in this case, decided the government's position was wrong and asked the Ninth Circuit to vacate the conviction. Nice.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Fish, First Circuit: Appellant was convicted of being in possession of body armor after having been convicted of a crime of violence. The conviction was reversed because none of Appellant's previous convictions qualifies as a crime of violence.

Defense Attorney: Thomas J. O'Connor, Jr.

2. Kovacs v. United States, Second Circuit.pdf: The Eastern District of New York denied Appellants' petition for writ of error coram nobis. The Second Circuit reversed and granted the writ after it found that Appellant's lawyer rendered ineffective assistance of counsel. Appellant's lawyer gave erroneous advice regarding deportation after pleading guilty.

Defense Attorney: Nicholas A. Gravanta, Jr.

3. United States v. Maynard, Second Circuit: Appellants were convicted after a series of bank robberies and ordered to pay restitution. Because the amount of restitution included bank expenses beyond the amount taken, the Second Circuit vacated and remanded for a new determination of restitution.

4. United States v. Salazar, Fifth Circuit: After violating the terms of his supervised release, Appellant was sentenced to prison and an additional period of supervised release, including special conditions. The Fifth Circuit found that the district court abused its discretion by ordering imposing the special condition without demonstrating that the condition was reasonably related to statutory factors.

5. United States v. Urias-Marrufo, Fifth Circuit: The district court denied Appellant's motion to withdraw her guilty plea. On appeal, the Fifth Circuit vacated and remanded because the district court did not properly consider the merits of Appellant's ineffective assistance of counsel claim.

6. United States v. Adams, Seventh Circuit: Two of the appellants received sentencing enhancements for maintaining a "stash house" after being convicted of drug offenses. Because the sentencing guideline provision which allowed that enhancement was not in place at the time of the offense, their sentences were reversed and remanded.

7. United States v. Maloney, Ninth Circuit: The United States Attorney moved to vacate the sentence and remand the case after reviewing a video of the en banc oral argument. The court agreed that the prosecutor had made references during rebuttal that were inappropriate and granted the motion to vacate.

8. United States v. Harrison, Tenth Circuit: After being convicted by a jury for a drug conspiracy charge, Appellant was sentenced to 360 months in prison. The sentence was vacated and remanded because the court improperly adopted the calculation in the presentence report showing that Appellant was responsible for more than 1.5 kilograms of methamphetamine.

Defense Attorneys: O. Dean Sanderford and Raymond P. Moore

9. United States v. Jones, Eleventh Circuit: Appellant was sentenced to 180 months for being a felon in possession of a firearm. After the Supreme Court ruling in Descamps, it is clear that Appellant's prior convictions cannot serve as an Armed Career Criminal Act predicate offense. Because a sentencing enhancement was incorrectly applied, the sentence is vacated and remanded.

10. United States v. Baldwin, Second Circuit: Appellant was sentenced to 87 months' imprisonment after pleading guilty to possession of child pornography, and possession of a firearm by a convicted felon. During sentencing a two-level enhancement for distribution of child pornography was imposed. The sentence was vacated because there was no finding of knowledge as required to impose that two-level enhancement.

11. United States v. Lagrone, Fifth Circuit: Appellant was charged with two felony theft counts and sentenced to two concurrent terms of 45 months' imprisonment. Because each of the two theft offenses involved Government property with a value less than $1,000, she could not be convicted of more than a single felony count. The case was therefore vacated and remanded.

12. United States v. Prado, Seventh Circuit: After pleading guilty to one count of extortion, Appellant asked the district court, during sentencing, to consider a similar case and the sentence imposed during that case. The court did not allow that information to be introduced. Appellant's sentence was reversed and remanded because the court erred in not understanding that it had discretion to hear Appellant's argument and that error was not harmless.

13. United States v. Shannon, Seventh Circuit: One of Appellant's special conditions of supervised release was that he could not possess any sexually explicit material. This condition was not discussed by anyone prior to its imposition. Based on that lack of findings or explanation on the lifetime ban, the condition was vacated.

14. United States v. Howard, Eighth Circuit: Appellant's sentence was vacated and remanded for resentencing because one of his prior convictions no longer qualified as a "violent felony" under the Armed Career Criminal Act after the Supreme Court's decision in Descamps v. United States, ____ U.S. ____, 133 S.Ct. 2276 (2013).

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.

November 18, 2013

Short Wins - the Greg Poe Vindicates An AFPD's Reputation Edition

Last week's wins are below - and there are some great reads.

But today, let's congratulate Greg Poe for his work challenging sanctions imposed on a fine career AFPD in the Sixth Circuit.

Here's a link to the opinion.

Nice work, Greg!

To the victories!

1155650_berlin_siegessule.jpg1. U.S. v. Christie, Second Circuit: The district court denied Appellant's motion for a reduction of sentence based on the sentencing guidelines range, even though Appellant was eligible for such a reduction. On appeal, Appellant's case was vacated and remanded to the district court because the court failed to provide an explanation of its decision that was sufficient to permit meaningful appellate review.

Defense Attorney: John W. Brewer

2. U.S. v. Chavez, Tenth Circuit: After being deemed not competent to stand trial, the government won a motion to have Appellant involuntarily medicated. Because the government did not present evidence of an individualized treatment plan for the Appellant, the Tenth Circuit found clear error, vacated the court order, and remanded for further proceedings.

Defense Attorneys: John T. Carlson and Warren R. Williamson

3. U.S. v. Oyegoke-Eniola, Tenth Circuit: Appellant pled guilty to mail fraud and making a false statement on an immigration document. Finding that the district court improperly imposed enhancements under the sentencing guidelines, the sentence was vacated and the case remanded.

Defense Attorneys: Stephen K. Christiansen and Kelley M. Marsden

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.

July 30, 2013

Short Wins - The BOP Makes Prison Harder For Women, and Blog Lobbying

It's a bit of a sleepy week in the circuits, but not too sleepy in the news.

BOP Coverts Danbury to a Men's Prison

In Slate, Yale law professor Judith Resnik wrote about the problems facing female inmates in the Bureau of Prisons (hat tip to Todd Bussert's BOP Blog).

The BOP is converting Danbury to an all-male facility (Danbury is, of course, where Piper Kerman of "Orange is the New Black" fame did her time). This despite years of lobbying to open up more prisons for women closer to where their families are in the Northeast. It'll be harder for lawyers to see their clients, clients to get seen by their lawyers, and women to have visits from their children.

This is not good.

Also, if you're worried about the plight of women in BOP custody, here's a great nonprofit to get involved with.

ABA Blog Voting Time

Unrelatedly, it's now time for folks who are fans of this blog to let the ABA Journal know. I'd be grateful for any props. Here's the link.

Short Wins

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Flores-Cordero, Ninth Circuit: Appellant pled guilty to illegal reentry and, at sentencing, a 16-level increase was added to his base offense level based on his prior state conviction for resisting arrest. Because appellant's prior conviction did not constitute a "crime of violence" under U.S.S.G. § 2L1.2, the sentence was vacated and the case remanded for resentencing.

2. United States v. Hogg, Sixth Circuit: Appellant pled guilty to possession with intent to distribute crack and was sentenced to 188 months in prison after two motions to withdraw his plea were denied. Before he was sentenced, the Fair Sentencing Act was passed, enacting more lenient penalties for crack offenses. At his sentencing, the law provided that courts should look to the penalty provisions in effect when the person committed the offense - not to the lesser penalties in the Act. The Supreme Court changed that after appellant was sentenced, ruling that people sentenced after the Act's enactment are entitled to the more lenient penalties. Because the district court and counsel did not correctly anticipate the potential impact of the Act on appellant's sentence (because they were not clairvoyant), appellant was given incorrect advice at his plea hearing. As a result, he should have been permitted to with draw his plea. The case was reversed and remanded.

3. United States v. Juncal, Second Circuit: Appellants were convicted of conspiracy to commit mail and wire fraud arising out of a scheme to obtain a $3 billion loan to finance the construction of a pipeline across Siberia. Appellants were sentenced to twenty years in prison. Because of procedural errors in appellants' sentencing, including the court's failure to weigh the 18 U.S.C. § 3553(a) factors, the cases were remanded for resentencing.

July 16, 2013

Not So Short Wins - The Catch Up Edition

Dear Readers,

Apologies for posting so sparsely lately. Between covering the end of the Supreme Court term for Above the Law (see posts here or here if you'd like) and this day job as a lawyer, I've been remiss in keeping you up to date on what's what in the circuits.

Today, please find the Short Wins for the last two weeks. My personal favorite is United States v. Huizar-Velazquez because there simply isn't enough law on criminal importation of wire hangars.

To the victories!

1155650_berlin_siegessule.jpg1. In re Sealed Case, D.C. Circuit: Appellant pled guilty to possession with intent to distribute crack cocaine. At the time, he was subject to a 20-year mandatory minimum sentence. He provided substantial assistance to law enforcement, and the government asked the court to sentence appellant below the mandatory minimum. The court did so. Notwithstanding the fact that appellant was sentenced below the mandatory minimum, he was eligible for a sentence reduction under the recent amendments to the Sentencing Guidelines. Therefore, the case was remanded for the district court to consider whether a sentence reduction is warranted.

2. United States v. Cotton, Fifth Circuit: Drugs were seized during a search of appellant's car during a traffic stop. Because appellant limited his consent to a search of his luggage only - where the drugs were not located - the officer's prolonged and more extensive search of the entire car violated appellant's Fourth Amendment right. The drugs should have been suppressed as fruits of the unlawful search. Appellant's conviction was vacated and the case remanded.

3. United States v. Huizar-Velazquez, Ninth Circuit: Appellant pled guilty to importing wire hangers without paying the proper duties. At sentencing, the court applied the wrong sentencing guideline - it should have applied the guideline addressing evasion of import duties by smugglers trying to fool, rather than corrupt, government officials. Similarly, the court calculated the loss amount under the wrong guideline. For these reasons, appellant's sentence was vacated and the case remanded for resentencing.

4. United States v. White Eagle, Ninth Circuit: Appellant was convicted of the following offenses, among others: conspiracy to convert tribal credit program proceeds (count I); theft and conversion from an Indian Tribal Organization (count II); concealment of public corruption (count IV); and public acts affecting a personal financial interest (count V). Counts I and II were reversed because the alleged object of the conspiracy - modifying a loan - was not criminal. Therefore, there was no conspiracy. Count IV was reversed because the government did not show that appellant violated a specific duty to report credit program fraud. Count V was reversed because the connection between appellant's alleged financial interest and a Bureau of Indian Affairs administrative officer's fraudulent loans was remote and speculative. Further, the court erred at sentencing in calculating the loss amount, requiring remand.

5. Gonzalez v. United States, Second Circuit: Appellant pled guilty to narcotics and bribery crimes and was sentenced to 210 months in prison. The district court denied appellant's 28 U.S.C. § 2255 motion to vacate his conviction and sentence. In the motion, appellant argued that his attorney provided ineffective assistance in connection with the guilty plea and sentencing. Because appellant demonstrated that the attorney's ineffective assistance was prejudicial, the district court's order dismissing appellant's motion was vacated and the case remanded for resentencing with the assistance of competent counsel.

6. United States v. Nicholson, Tenth Circuit: Appellant pled guilty to three drug and weapons-related charges after the district court denied his motion to suppress evidence found in his car after a traffic stop. Because the officer pulled appellant over for making a turn that was not illegal, the officer violated the Fourth Amendment. No other legal basis existed for stopping appellant and the good faith exception did not apply. For these reasons, the denial of appellant's motion to suppress was reversed and the case remanded with directions to vacate his convictions.

7. United States v. Thompson, D.C. Circuit: Appellant was found guilty of drug charges. Because the record was insufficient to resolve appellant's claim that his attorney was ineffective in failing to inform him of plea offers from the prosecution before the offers expired, the case was remanded to the district court for whatever proceedings are necessary to determine whether appellant was denied his right to effective assistance of counsel.

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 16, 2013

The Second Circuit On Appointed Counsel And The Perils of Hiring A Lawyer For A Federal Criminal Case

Most people who are accused of a crime in federal court are unable to pay for a lawyer and have one appointed for them.

Which makes sense - a decent lawyer for a federal criminal case is expensive, the need to find a lawyer is urgent, and most people don't have substantial liquid assets to hire one quickly.

Most people, then, are represented by either a federal public defender or an appointed attorney.

The advantage is that they don't have to pay. The disadvantage is that they don't get to choose the lawyer they hire. Maybe the lawyer they get is someone they don't get along with. Maybe the client thinks an appointed lawyer won't work as hard. Maybe, for some lawyers, there's just a different dynamic when the client is paying for the lawyer's services.

In any event, sometimes, when a client has an appointed lawyer, things go poorly with the relationship with that lawyer.

68920_law_education_series_5.jpgThe Second Circuit's opinion in United States v. Barton is an interesting example of what can happen when that relationship breaks bad.

John Barton was accused of doing some illegal things involving meth and a gun. He had an initial appearance - a first hearing in a case shortly after a person is arrested.

At the initial appearance, the judge asked Mr. Barton if he'd like an appointed lawyer or to hire his own lawyer. An assistant federal public defender, Elizabeth Switzer, was with him at the hearing. Normally, if a person wants an appointed lawyer, the person has to complete a financial affidavit so the judge can see if the person really can't afford a lawyer.

Mr. Barton did not fill out a financial affidavit. He told the judge that he wanted to hire a lawyer. The judge gave Mr. Barton several days to find a lawyer.

Hiring a lawyer proved challenging for Mr. Barton. He came back to court three more times, each time with Ms. Switzer, and each time he was unable to hire a lawyer. The court continued to give him time to hire someone.

Finally, Mr. Barton decided to take matters into his own hands. He filed a motion without a lawyer seeking to dismiss the charges against him. As the Second Circuit described the motion:

He argued, among other things, that he was not properly named in the complaint, which was made out against "JOHN BARTON" and not "John Anthony Barton"; that he was legally allowed to possess both marijuana and methamphetamine to treat narcolepsy caused by a head injury he suffered in connection with a car accident; and that New York State is a sovereign territory into which the laws of the United States do not extend.

These are innovative legal theories, to be sure.

Two more hearings were held on whether Mr. Barton would hire a lawyer. Each time, Ms. Switzer appeared with him.

Finally, the judge, concerned about Mr. Barton's head injury and how sometimes he didn't make complete sense when talking during the hearings, decided that Mr. Barton should be evaluated to see if he is competent to stand trial.

The judge asked Ms. Switzer - who had not been appointed - to "remain in the case not as appointed counsel, but to assist Mr. Barton" until the possibly not competent man hired a lawyer. Because federal public defenders, apparently, are really best viewed as social workers.

Ms. Switzer left the federal public defender's office for greener pastures. At Mr. Barton's next hearing, Robert Smith, in the federal defender's office, showed up instead.

Mr. Barton refused to answer any questions from the court about whether he would hire a lawyer. He did mention the issues raised in his motion to dismiss the charges. When the judge said she would give him two more weeks to find a lawyer then appoint Mr. Smith, Mr. Barton's response was "I object."

A few weeks later, at another hearing, Mr. Barton again mainly objected and talked about his motion to dismiss. The court appointed Mr. Smith, since Mr. Barton hadn't found any other lawyer. The next day, the court issued an order finding Mr. Barton competent.

At an arraignment a few weeks later, Mr. Smith entered a plea of not guilty for Mr. Barton. Mr. Barton objected.

Not surprisingly, Mr. Smith soon after that moved to withdraw as counsel for Mr. Barton. Apparently Mr. Barton refused to see Mr. Smith - Mr. Smith thought this was, perhaps, not the best attorney client relationship.

More hearings were held. Mr. Barton did not hire an attorney. He did not complete a financial affidavit. He did, however, press forward about the issues in his motion to dismiss.

Finally, the motion to withdraw was denied. The district court reasoned that Mr. Barton never said he wanted to represent himself, and that "representation by counsel . . . should be the standard, not the exception."

Mr. Smith took an interlocutory appeal, saying that to be forced to represent a client who wouldn't talk to him is inconsistent with his obligations as a lawyer.

The Second Circuit let Mr. Smith out of the case. Since there was no financial affidavit - and Mr. Barton said he was able to hire a lawyer - the district court didn't have the authority to appoint him in the first place. An appointment without a statutory basis is not really much of an appointment at all.

As the Second Circuit summed it up,

We can think of no justification for requiring these unwilling individuals to continue their unauthorized relationship. Accordingly, the district court abused its discretion when it denied Smith's motion to withdraw.

Going forward, here's where the Second Circuit sees things:

Of course, Barton is free to change his mind. Should he succeed in hiring an attorney following remand, that attorney may file an appearance. Alternatively, if Barton asks for appointed counsel, and if he qualifies financially, the district court must appoint counsel. What the district court may not do, however, is foist an unwilling attorney upon an unwilling defendant, who has actively refused the appointment of counsel and declined to demonstrate his financial eligibility under the CJA.

The court, unfortunately, did not rule on whether being forced to represent a client who refuses to talk to you violates your responsibilities as a lawyer.

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.

January 2, 2013

Telling People They Can Use A Drug In A Way Different Than How The FDA Says They Can Use A Drug Is Not A Crime, Says the Second Circuit

Alfred Caronia was a sales rep for a pharmaceutical company. And, despite what you might think by reading some of the literature, being a pharmaceutical sales rep is not a crime. It's even more emphatically not a crime after the Second Circuit's opinion in United States v. Caronia.

1213599_pills.jpgPart of Mr. Caronia's job was to encourage folks to buy Xyrem.

According to the Second Circuit,

Xyrem's active ingredient is gamma-hydroxybutryate ("GHB"). GHB has been federally classified as the "date rape drug" for its use in the commission of sexual assaults.

Despite Xyrem's dark side, it was approved by the FDA for two uses for folks with narcolepsy.

Mr. Caronia's company thought that perhaps doctors should be prescribing it for an even greater assortment of problems.

Mr. Caronia's job, in part, was to find doctors who would talk to other doctors about the benefits of Xyrem's FDA-approved uses. The doctors did not provide this service for free.

One of the doctors who worked with Mr. Caronia was Dr. Peter Gleason.

And, by way of background - it's ok for a doctor to prescribe a drug for a use that isn't on the label. The FDA doesn't want to get between a doctor's relationship with her patient, even on off-label uses of prescription drugs.

At the same time, it's a crime to "misbrand" a regulated drug. A drug is misbranded if:

its label is false or misleading; the label fails to display required information prominently; its container is misleading; or it is dangerous to health when used in the dosage, manner, frequency, or duration prescribed, recommended, or suggested on the label.

The Wire

The federal government started investigating Dr. Gleason for promoting an off-label use of Xyrem.

The feds wired up a cooperator. The cooperator was another doctor, who called Mr. Caronia and asked about an off-label use of Xyrem.

Mr. Caronia, as only a man paid on commission can, talked up the benefits of the drug for many kinds of maladies - insomnia, Fibromyalgia, restless leg, Parkinsons, chronic fatigue, chronic pain, and MS.

He also said it will make you lose weight without dieting or exercise. [that was a joke]

These statements - and other related ones - got Mr. Caronia indicted for conspiracy to commit misbranding.

Indicted For Aggressive Sales

Mr. Caronia said that he was being indicted for commercial speech. There's a line of cases from the Supreme Court that say that even commercial speech is protected by the First Amendment.

The district court agreed. As the Second Circuit said,

The court observed that "the criminal information . . . allege[d] Caronia's promotion of off-label uses of an FDA-approved drug," and concluded that Caronia stood charged with a crime the actus reus of which was First Amendment speech.

But, the district court concluded that the prohibition on commercial speech is reasonably tailored to the objectives of the Food Drug and Cosmetic Act. So it's ok to charge people criminally for this First Amendment activity.

Mr. Caronia went to trial and was convicted.

The Second Circuit

One big question running through the appeal is whether Mr. Caronia was charged with a crime based on his speech - as the district court determined - or whether he was charged with misbranding and his speech was used as evidence of his other acts that were criminal.

The Second Circuit went through the trial testimony and found that the government's theory here was that Mr. Caronia violated the law by his speech.

So, the government is prosecuting Mr. Caronia's speech. Is that ok?

That's really two questions - first, is Mr. Caronia's conduct covered by the statute and, second, if his conduct is covered by the statute, does it violate the First Amendment.

The Second Circuit let that second question answer the first:

under the principle of constitutional avoidance, . . . we construe the FDCA as not criminalizing the simple promotion of a drug's off-label use because such a construction would raise First Amendment concerns. Because we conclude from the record in this case that the government prosecuted Caronia for mere off-label promotion and the district court instructed the jury that it could convict on that theory, we vacate the judgment of conviction.

So, according to the Second Circuit, promoting the off-label use of a drug is not a crime under the statute. If it were, the courts would have to think about whether such a statute is constitutional.