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

November 18, 2014

Short Wins - the Dramatic Catch-Up Edition

And, after a really long break, we're back. Apologies. This day job has been very busy lately.

And, of course, if you ever find yourself jonesing for my writing, you can always check out my stuff on Above the Law.

You saw our guest post on Hite last week - it's a great case that bears a close read.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Barnes, First Circuit: Appellant pled guilty to distribution and conspiracy to distribute 50kg of marijuana. At sentencing, the district court attributed 3,000kg of marijuana to Appellant after a judicial finding of that quantity by a preponderance of the evidence. After Alleyne, drug quantities must be proven beyond a reasonable doubt. The First Circuit held that this error was harmful because the government did not provide an explanation that proved, beyond a reasonable doubt, that the error in attributing a larger quantity of drugs did not "contribute" to the complained-about sentence, and therefore vacated the sentence.

Defense Attorney: Judith H. Mizner

2. United States v. Prange, First Circuit: The trial court erred in calculating the loss amount attributable to Appellants when it relied on the PSR, which recommended loss amounts unsupported by law. Appellants were entitled to have the loss amount lowered when the stocks they sold had some value when it was sold. The cases were remanded so the district court could make factual findings as to the value of the shares acquired by the government during the sting.

Defense Attorneys: Steven N. Fuller, Allen Fuller, and Inga L. Parsons

3. United States v. Sevilla-Oyola, First Circuit: After an initial plea hearing and sentencing, Appellant filed a motion challenging his sentence. A number of hearings were held after, during which the trial court lowered the sentence each time. The trial court, however, did not have authority for his actions during a majority of the proceedings. The variety of motions filed by Appellant could not be considered a Section 2255 motion because Appellants only gets one complete round of collateral review and none of the parties had considered Appellant's motions to be a habeas petition. All of the convictions were vacated and remanded for one final resentencing.

Defense Attorney: Rafael F. Castro Lang

4. United States v. Starks, First Circuit: Appellant was convicted of being a felon in possession of a firearm after a police officer stopped him in a car his son had rented. The district court held that Appellant did not have standing to challenge the stop because Appellant was not the authorized driver of the rental car. But because a mere passenger in a car has standing to challenge the constitutionality of the stop, the First Circuit held that Appellant's status as an unlicensed, unauthorized driver was no less than that of a passenger and therefore he had standing. This required the conviction to be vacated and remanded for an evidentiary hearing.

Defense Attorney: James L. Sultan

5. United States v. Zhyltsou, Second Circuit: A jury found Appellant guilty of the unlawful transfer of a false identification document. During trial, the court admitted as evidence a printed copy of a social media webpage which the government claimed was created by Appellant. The government did not satisfy the authentication requirement because it did not prove that it was Appellant's profile page rather than a page on the internet that was about Appellant but which Appellant did not create or control. The conviction was vacated and the case remanded.

Defense Attorney: Yuanchung Lee

6. United States v. Bui, Third Circuit: Appellant's petition for habeas corpus should have been granted because he received ineffective assistance of counsel. Appellant pled guilty only after his trial counsel provided him with incorrect advice regarding the availability of a sentencing reduction pursuant to the "safety valve." Although trial counsel filed a motion for such a reduction, he withdrew it after realizing Appellant was ineligible. This amounted to ineffective assistance of counsel.

Defense Attorneys: Maria K. Pulzetti and Brett G. Sweitzer

7. United States v. Paladino, Third Circuit: Appellant challenged the district court's judgment revoking Appellant's supervised release and imposing a prison sentence. The judgment was vacated and the case remanded for resentencing because Appellant was denied the right to allocute at sentencing when the court did not address Appellant personally or permit him to speak or present information in mitigation of the sentence.

Defense Attorney: Sarah S. Gannett

8. United States v. Catone, Fourth Circuit: A jury convicted Appellant of one count of making a false statement in connection with his receipt of federal workers' compensation benefits and was sentenced to 16 months' imprisonment and to pay $106,411.83 in restitution. The sentence must be vacated because the jury did not make a finding that the offense led to more than $1,000 in falsely obtained benefits, so Appellant could only be given a maximum 12-month, misdemeanor sentence. The loss calculation was wrong because it should have reflected the difference between the amount of benefits that he actually received and the amount that he would have received but for the false statement. Instead, restitution was vacated because the loss amount was calculated as the full amount Appellant had received in workers' compensation during that time period.

Defense Attorneys: Joshua B. Carpenter and Ross Hall Richardson

9. United States v. Randall, Fifth Circuit: Although Appellant pled guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine, the factual basis on which his plea was based and the PSR found that Appellant was only responsible for less than 200 grams of cocaine. Appellant's sentence, which was based on his liability for five kilograms of cocaine, was vacated and remanded because Appellant should be sentenced based only on the facts adopted by the court--that is, the amount attributable only to him and not to the conspiracy as a whole--and that amount did not require a mandatory minimum sentence.

10. United States v. Snelling, Sixth Circuit: Appellant was convicted of conspiracy to commit mail and wire fraud, obstruction of justice, and tax evasion and sentenced to 131 months in prison. In determining the sentencing guidelines range, the court failed to take into account sums paid back to the Ponzi scheme's investors in the course of the fraud. This resulted in a higher loss value, and therefore a larger sentencing enhancement. The sentence was therefore vacated and remanded for recalculation.

Defense Attorney: Kevin M. Schad

11. Swisher v. Porter Co Sheriff's Dept., Seventh Circuit: Appellant brought a §1983 complaint based on a pretrial denial of medical care for a bullet wound to his abdomen. Appellant had not exhausted all administrative remedies, so the district court dismissed his complaint. The denial was reversed because Appellant had not been advised of the grievance procedure and was told by the Warden not to file a grievance.

12. United States v. Bowling, Seventh Circuit: Appellants convictions for making false statements in connection with the purchase of a firearm were reversed and the case remanded for a new trial. The Seventh Circuit held that Appellant had to be given the opportunity to present a mistake of fact defense because, although he was charged with a felony at the time, he was also aware that the plea deal offered was for a misdemeanor. The Court held that Appellant should not have to testify in order to present the defense, but instead can cross-examine other witnesses.

13. United States v. Hinds, Seventh Circuit: Appellant's case was remanded for resentencing because the district court improperly imposed two special conditions of supervised release. The condition requiring Appellant to pay for a portion of his court-ordered substance abuse treatment and drug testing was in error because the district court expressly found that Appellant lacked the ability to pay the interest requirement on the restitution and the court did not order a fine based on the same inability to pay. And the condition requiring Appellant to submit to suspicionless searches and seizures was also in error, and the government conceded at oral argument that this invasive condition has already been banned by the court.

14. United States v. Myers, Seventh Circuit: Appellant was convicted of several identity theft-related crimes and sentenced to 132 months imprisonment. The sentence was vacated because the six-level enhancement for 250 or more victims violated the Ex Post Facto Clause. The guidelines in place at the time of the crime would not have characterized many of the individuals as victims.

15. United States v. Reid, Eighth Circuit: Appellant was convicted of unlawful possession of a firearm by a felon, which carries a ten year maximum sentence. The court found that Appellant's prior conviction qualified him under the Armed Career Criminal Act to a guidelines range of fifteen years to life imprisonment. Because Appellant's prior conviction was not a violent felony, as required by the Armed Career Criminal Act, his sentence was vacated.

16. Deck v. Jenkins, Ninth Circuit: Petitioner's writ of habeas corpus should have been granted where the prosecutor, in closing argument, negated an essential element of the intent to commit a lewd act upon a child. The prosecutor argued that the intent element could be proven if Petitioner intended to commit the act not on the day of his arrest, but at some point in the future. This prosecutorial error was not harmless where the jury was confused, a corrective instruction was not given, and the written jury instructions did not address the subject of the jury's confusion.

Defense Attorney: Charles M. Sevilla

17. Sessoms v. Grounds, Ninth Circuit: Petitioner's writ of habeas corpus should have been granted because a reasonable law enforcement officer should have understood Petitioner's statements as an unambiguous request for counsel. In light of Salinas v. Texas, the requirement of an unambiguous invocation of the right to counsel applied to pre-Miranda statements like Petitioner's.

Defense Attorney: Eric Weaver

18. United States v. Aguilera-Rios, Ninth Circuit: Petitioner's conviction for illegal reentry was reversed because his prior removal order was invalid. The removal order was based on a conviction for unlawful possession of a firearm. The statute criminalizing that conduct did not have an antique firearms exception and therefore was not a categorical match for the Immigration and Nationality Act's firearm offense. Since there was no categorical match, the removal order was invalid.

Defense Attorney: Kara Hartzler

19. United States v. Bell, Ninth Circuit: After being convicted of making false, fictitious, and fraudulent claims to the US treasury, filing false tax returns, contempt, and mail fraud, Appellant was sentenced and, as part of supervised release, required to undergo substance abuse treatment and abstain from consuming alcohol. That condition was vacated and the case remanded because the record contained no evidence showing that Appellant abused any substance.

Defense Attorney: Gregory Charles Link

20. United States v. Brown, Ninth Circuit: A case arising from a Ponzi scheme and bankruptcy fraud was remanded for resentencing. The sentencing court erroneously imposed an enhancement for endangering the solvency or financial security of 100 or more victims where the government did not provide evidence of the impact of the crimes on the requisite number of victims. In addition, Appellant Eddings' sentence also included an erroneous leadership role adjustment because the trial court noted that it wasn't clear whether Eddings controlled a particular participant, and the record does not indicate that he controlled any other criminally responsible participant in the scheme. Further, it was error to apply a sentencing enhancement for having 250 or more victims when the district court relied on 148 victims who were not included in the loss calculation.

Defense Attorneys: Heather Williams, David M. Porter, Rachelle Barbour, and John Balazs

21. United States v. Bryant, Ninth Circuit: Appellant moved to dismiss the indictment charging him with two counts of domestic assault by a habitual offender. Appellant was previously convicted in tribal court of domestic abuse, which the government used to establish the element of a prior offense. The Court held that only tribal court convictions obtained when Appellant had a right to counsel which is, at a minimum, coextensive with the Sixth Amendment right to counsel, can be used in a subsequent prosecution. Because Appellant did not have such a right to counsel during his tribal court convictions, they could not be used against him in this case and the indictment should have been dismissed.

Defense Attorneys: Steve C. Babcock and Anthony R. Gallagher

22. United States v. Castro-Ponce, Ninth Circuit: Appellant's sentence enhancement for obstruction of justice was vacated because the trial court did not explicitly find that Appellant's false testimony was also willful and material.

Defense Attorney: Lynn T. Hamilton

23. United States v. Heredia, Ninth Circuit: The government made repeated and inflammatory references to Appellant's criminal history throughout its sentencing memorandum. Because those references served no practical purpose but to argue implicitly for a higher punishment than it had agreed to recommend, Appellant's sentence was vacated and remanded.

Defense Attorneys: Sean K. Kennedy and Jonathan D. Libby

24. United States v. Hernandez, Ninth Circuit: As part of Appellant's sentence for illegal reentry, the district court added a sentencing enhancement for Appellant's prior conviction of being a felon in possession of a firearm under the California Penal Code. Because that statute does not include an antique-firearm exception, it is not a categorical match for the federal firearms offense. Therefore the enhancement was improper and the case was remanded for resentencing.

Defense Attorneys: Sean K. Kennedy and James H. Locklin

25. United States v. Mavromatis, Ninth Circuit: Appellant's conviction for being in possession of a firearm after being committed to a mental institution. This conviction was barred by double jeopardy because Appellant was previously acquitted on a charge based on the same incident of possession.

Defense Attorneys: Rich Curtner and Noa Oren

26. United States v. Melot, Tenth Circuit: Appellants were held in contempt and sanctions imposed after the district court believed the Appellants fraudulently intervened in the foreclosure of their properties. The sanctions were reversed because Appellants only had notice that the court was considering contempt. The lack of notice of sanctions or the opportunity to be heard was a denial of due process in violation of the Fifth Amendment.

Katherine L. Melot and Billy R. Melot proceeded pro se.

27. United States v. Reyes Vera, Ninth Circuit: Appellants were convicted of a drug conspiracy and the use of a minor to commit a drug trafficking offense. During trial, a police officer was called as an expert to explain the drug jargon used in wiretapped phone calls. The Ninth Circuit held that this testimony was a mix of lay and expert opinion, and the trial court's failure to explain that distinction to the jury was in error. Because this error affected the drug quantities found by the jury in a special verdict (which itself impacted the mandatory minimum sentences), the case was remanded for proper determination of drug quantity.

Defense Attorneys: Gretchen Fusilier and Thomas Paul Slesinger

28. Williams v. Swarthout, Ninth Circuit: Petitioner's writ of habeas corpus should have been granted where the trial court made a misstatement immediately before trial that Petitioner had pled guilty, and that misstatement was not corrected until the jury began to deliberate. This deprived Petitioner of the presumption of innocence and violated his Sixth Amendment right to an impartial jury because the error was not rendered harmless by curative instructions.

Defense Attorneys: William J. Capriola and John P. Ward

29. United States v. Bear, Tenth Circuit: Appellant pled guilty to failing to register or update a registration as a sex offender. The special condition of supervised release restricting Appellant's contact with his children was reversed. Any condition that interferes with the right of familial association can do so only in compelling circumstances, and here the government did not present evidence that Appellant displayed a propensity to commit future sexual offenses or exhibited any proclivity toward sexual violence, nor has he shown any display of danger to his own children.

Defense Attorney: Brooke A. Tebow

30. United States v. Powell, Tenth Circuit: Appellant was convicted of numerous counts related to making, uttering, or possessing a forged security after he altered payee information or forged endorsements and then deposited checks stolen from the United States mail into his bank accounts at various banks. That crime requires the government to prove that the security (including checks) belonged to an organization (such as a bank). His convictions were vacated because proof that the checks were deposited into a federally insured bank was not proof that the checks were "of" the depository banks.

Defense Attorney: Ty Gee

31. United States v. Hite, DC Circuit: Appellant's conviction for attempting to persuade a minor to engage in unlawful sexual activity was vacated. Although it is not necessary for the communication to be directly to a minor, the government must prove that the communications with an intermediary are aimed at persuading, inducing, enticing, or coercing the minor. The jury instructions did not reflect such an understanding and require Appellant's conviction to be vacated. In addition, Appellant should have been permitted to introduce expert evidence about Appellant's lack of sexual interest in children since that question is relevant to proving intent.

Defense Attorneys: Lawrence S. Robbins, Barry J. Pollack, A.J. Kramer, Jonathan Jeffress, and Rosanna M. Taormina

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

July 22, 2014

Short Wins - the Shameless Promotion Edition

Remember back with this blog was more than just Short Wins? Remember when there were long and loving descriptions of cases?

I still aspire to get back to that vision for the blog - that was fun. Seriously, look for more long write-ups soon. I've been distracted by writing for Above the Law (here is a link to my columns (I particularly like the one about cannibalism)) and my day job as a practicing lawyer.

But, if you're jonesing for those long write-ups again, thanks to the good people at James Publishing, you can now read them in one handy-dandy book. It has the jazzy title Criminal Defense Victories in the Federal Circuits. Or you could just read the archives.

In other self-promoting news, the ABA's annual list of best blogs is open for nominations. Here's the link. It would be nice if you'd say something nice about this blog, but don't feel like you have to.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Flores-Mejia, Third Circuit: The court vacated Appellant's sentence after being convicted of reentry after deportation. The Third Circuit, however, used the opportunity to change its current law and now requires a party to object to procedural errors during the sentencing proceeding once that error is evident, otherwise it is not preserved. Because the new rule cannot apply retroactively, Appellant's case was remanded.

Defense Attorney: Robert Epstein

2. Hurst v. Joyner, Fourth Circuit: The district court improperly denied a petition for habeas corpus. The Fourth Circuit remanded for an evidentiary hearing where a juror communicated with her father during the penalty phase of Appellant's capital murder trial. At her father's suggestion, the juror read a section in the Bible about "an eye for an eye," and then voted in favor of the death penalty the following day. An evidentiary hearing was necessary to determine whether that communication had a substantial and injurious effect or influence on the jury's verdict.

Defense Attorney: Robert Hood Hale

3. United States v. Garrett, Sixth Circuit: Appellant was sentenced to 151 months' imprisonment after pleading guilty to one count of conspiracy to distribute more than 50 grams of crack cocaine. Although that sentence was at the bottom of Appellant's guidelines, the Sixth Circuit determined that Appellant was eligible for resentencing because his sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission. Appellant's initial Guidelines range was 151 to 188 months, but after the Guidelines Amendment, it would be 120 to 137 months.

Defense Attorneys: Bradley R. Hall and James Gerometta

4. Townsend v. Cooper, Seventh Circuit: Appellant sued a number of officials at his correctional facility and the district court granted summary judgment in favor of the Appellees. The court determined, taken in the light most favorable to Appellant, that Appellant raised genuine issues of material fact about whether he had a liberty interest in avoiding transfer to more restrictive prison conditions, which would require procedural due process. Because there was not appropriate notice or an opportunity to be heard, the district court's grant of summary judgment was vacated and remanded.

5. United States v. Harden, Seventh Circuit: Appellant pled guilty to possession with intent to distribute cocaine and Appellant agreed to allow a magistrate judge perform he plea colloquy. Taking and accepting guilty pleas in felony cases is not one of the enumerated duties of magistrate judges and was determined by the Seventh Circuit to be both important and dispositive. Therefore, magistrate judges are not authorized to accept guilty pleas in felony cases, even if both parties would consent.

6. United States v. Sheth, Seventh Circuit: After pleading guilty to health care fraud, the district court entered an order of criminal forfeiture for cash and investment accounts then valued at about $13 million plus real estate and a vehicle. The forfeited assets would be credited against his $12,376,310 restitution. The government then sought further assets to apply to restitution and the district court ordered Appellant to turn over those assets. The turnover order was vacated and remanded for discovery and an evidentiary hearing to determine whether the first set of forfeited assets was sufficient to cover the restitution order.

7. United States v. Doering, Eighth Circuit: Appellant pled guilty to tampering with evidence and was sentenced to 90 months' imprisonment and ordered to pay $45,382.88 in restitution. The restitution order was vacated and remanded because Appellant's plea agreement did not list, as required, that an offense listed in the Mandatory Victims Restitution Act gave rise to the plea agreement. Without that specific, mandatory term, restitution under the MVRA was unauthorized.

8. United States v. Howard, Eighth Circuit: The order of restitution against Appellant was vacated because the calculation improperly included losses from dates preceding the relevant conduct of Appellant's extortion conviction. The losses arose outsides of the dates listed in the indictment.

9. United States v. Nguyen, Eighth Circuit: Appellant's conviction for knowingly shipping, transporting, receiving, possessing, selling, and distributing contraband cigarettes was reversed because there was insufficient evidence. Specifically, the government had no evidence that Appellant was aware of any applicable sales taxes on the cigarettes; the government had no evidence as to Appellant's knowing violation of the statute.

10. United States v. Thomas, Eighth Circuit: Appellants was sentenced to 120 months' imprisonment after pleading guilty to possession with intent to distribute 50 grams or more of methamphetamine. The case was remanded because the district court's oral sentence was ambiguous about the sentencing guidelines range on which the Appellant's sentence as based. On appeal, that ambiguity made it impossible to determine if the district court committed procedural error.

11. United States v. Gonzalez, Ninth Circuit: The Ninth Circuit remanded Petitioner's case with instructions to grant the writ of habeas corpus based on the prosecution's failure to disclose Brady material that would have impeached the credibility of a critical witness. The California Court of Appeal's decision that Petitioner had not established that the evidence was newly discovered was an unreasonable determination of the facts. The court held that the California Court of Appeal's requirement of due diligence was contrary to, or involved an unreasonable application of, clearly established federal law.

Defense Attorney: John Lanahan

12. Wood v. Ryan, Ninth Circuit: The district court improperly denied Appellant's request for a preliminary injunction delaying his execution, which was scheduled for July 23, 2014. Appellant presented claimed that Department of Corrections violated his First Amendment rights by denying him information regarding the method of his execution. Because Appellant presented serious questions to the merits of the claim, and because the balance of hardships tips in his favor, the preliminary injunction should have been granted

13. United States v. Charles, Eleventh Circuit: Appellant pled guilty to charges relating to a conspiring to use unauthorized access devices. Appellant's sentence was vacated because the district court committed legal error when it included a two-level sentence increase for trafficking in unauthorized access devices (for example, a prepaid debit card). Because Appellant was convicted of aggravated identity theft as well, the district court was precluded from considering any specific offense characteristic for the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense.

14. United States v. Estrella, Eleventh Circuit: As part of his sentence for illegal reentry, Appellant's received a sentencing enhancement for a crime of violence based on his prior conviction for wantonly or maliciously throwing, hurling, or projecting a missile, stone, or other hard substance at an occupied vehicle. Under the categorical approach, the Eleventh Circuit determined that a conviction for that crime does not necessarily involve proof of the use, attempt, or threat of force. Therefore, the crime of violence enhancement was improper.

15. Bahlul v. United States, D.C. Circuit: Hamdan II held that there cannot be retroactive prosecution for conduct committed before the Military Commissions Act of 2006 unless that conduct was already prohibited under existing U.S. law as a war crime triable by a military commission. But that understand was contrary to the statutory wording, which allowed for the prosecution of any crimes. The D.C. Circuit, applying an ex post facto analysis, determined that Appellant's conviction for providing material support for terrorism and solicitation of others to commit war crimes were not previously offenses that were triable by a military commission, so the convictions were vacated.

Defense Attorneys: Michel Paradis, Mary R. McCormick, and Todd E. Pierce

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 23, 2014

Short Wins - the "Venue in a Federal Criminal Case Is Not Infinite" Edition

There's a lot in this week's edition of Short Wins, but my favorite is United States v. Aurenheimer.

Federal venue is a broad thing. It's nice to see a circuit push back a little on just how broad it can be.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Millan-Isaac, First Circuit: Appellants pled guilty to aiding and abetting a robbery and possession of a firearm. On appeal, the First Circuit held that the district court erred in sentencing both Appellants. During Appellant Cabezudo's sentencing, the court erred by failing to calculate or discuss the appropriate sentencing guidelines range. During Appellant Millan's sentence hearing, the court considered new information for which Appellant did not have notice. Therefore both sentences are vacated and remanded.

Defense Attorneys: Megan Barbero, Gregory P. Teran, Rachel I. Gurvich, and Julie Soderlund

2. United States v. Aurenheimer, Third Circuit: Appellant's conviction was vacated because the district court did not have proper venue. For a cybercrime conspiracy case, proper venue exists only where one accessed information without authorization or obtained information, neither of which occurred in New Jersey.

Defense Attorneys: Tor B. Ekeland, Mark H. Jaffe, Orin S. Kerr, Marcia C. Hofmann, and Hanni M. Fakhoury

3. United States v. Velazquez, Third Circuit: Appellant's motion to dismiss should have been granted because his right to speedy trial was violated. The government tried for nearly five years to apprehend Appellant by running his name through the NCIC database, but other leads were also available. Those standard practices for finding a wanted person should have been attempted.

Defense Attorney: Jerome Kaplan

4. United States v. White, Third Circuit: Appellant's conviction was vacated because the court improperly denied Appellant's motion to suppress. A search of Appellant's house, which had turned up guns, was unlawful because Appellant was arrested outside of the house. The district court should have considered whether there was an articulable basis for the protective sweep of the home.

Defense Attorneys: Leigh M. Skipper, Brett G. Sweitzer, Sarah S. Gannett, and Keith M. Donoghue

5. United States v. Whiteside, Fourth Circuit: The Court held that federal inmates may use a federal habeas corpus motion to challenge a sentence that was based on the career offender sentencing guidelines enhancement when case law has determined that the enhancement was inapplicable to the Appellant. The court therefore vacated the sentence and remanded for resentencing.

Defense Attorneys: Ann Loraine Hester and Henderson Hill

6. United States v. Barbour, Sixth Circuit: Appellant pled guilty to a federal firearms defense. At sentencing the government argued that two previous robberies - which had occurred on the same night at the same gas station - constituted two offenses. The Sixth Circuit held that the government has the burden of showing the offenses were committed on different occasions from one another and the government failed to meet that burden here so the case was remanded for resentencing.

Defense Attorney: Laura E. Davis

7. United States v. Kamper, Sixth Circuit: Appellant Head's sentence was vacated because the district court erred in applying sentencing enhancements for obstruction of justice and playing an aggravating role as manager or supervisor of a conspiracy. The Court explained that telling an obvious lie under oath is insufficient to support a sentencing enhancement for obstruction of justice when the trial court did not make factual findings regarding the elements of perjury including materiality and intent. Without determining the proper standard of review, the Court held that the aggravating role enhancement was improper because it requires management of participants, not merely management of the criminal scheme.

Defense Attorney: Allison L. Ehlert

8. United States v. Kilgore, Sixth Circuit: Appellant challenged a four-level sentencing enhancement for being a felon in possession of a firearm. Appellant became a felon when he stole two unloaded firearms from a police station, and because he had stolen firearms, was "in possession" of them. However, the Sixth Circuit held that the sentencing enhancement can only be applied to those whose offense triggering application of the enhancement is separate and distinct conduct from the underlying offense. In this case there was not "another felony offense" so the sentence was vacated.

Defense Attorney: Laura E. Davis

9. United States v. Farano, Seventh Circuit: Appellants were convicted by a jury of mail and wire fraud, money laundering, and theft of government funds. The order for restitution was vacated and remanded so the district judge could consider evidence on whether the refinancing banks had based their decision in whole or in part on fraudulent representations by the Appellants.

10. United States v. Martins, Eighth Circuit: The case was reversed because the district court improperly denied a post-trial motion to suppress evidence. The Eighth Circuit found that there was not probable cause for the traffic stop because the officer's inability to read a license plate controls, not a post-arrest determination regarding the percentage or portion of the text covered. The trial court therefore erred by not suppressing the evidence because the office stated he was able to read the license plate within 100 feet of the car.

11. United States v. Anthony Fast Horse, Eighth Circuit: Appellant was convicted of one count of criminal sexual conduct. The jury instruction during trial failed to require the jury to find that Appellant had knowledge that the victim lacked the capacity to consent to the sexual conduct. The conviction was reversed and remanded for a new trial.

12. United States v. Curtis, Eighth Circuit: After being found incompetent to stand trial, Appellant was required to take medication involuntarily. In ordering the involuntary medication, the trial court failed to consider all the circumstances relevant to Appellant and the consequences and purposes of that medication required by Sell v. United States. The case was remanded for further findings.

13. United States v. Christian, Ninth Circuit: Appellant was convicted of two counts of transmitting threats through interstate commerce. The Ninth Circuit vacated both convictions because the district court abused its discretion by excluding Appellant's expert solely because the expert examined Appellant for competency rather than diminished capacity and would testify regarding diminished capacity. The district court should have evaluated whether the substance of the testimony would help the jury make a determination of Appellant's ability to for the specific intent of the crime. A new trial was required.

Defense Attorney: Jess R. Marchese

14. United States v. Dominguez-Maroyoqui, Ninth Circuit: Appellant's sentence was vacated and remanded because the trial court imposed a sentencing enhancement based on Appellant's 1996 conviction for assaulting a federal officer under 18 U.S.C. §111(a). The Ninth Circuit held that a conviction under §111(a) is not categorically a crime of violence and does not require, as a necessary element, proof that Appellant used, attempted to use, or threatened to use physical force.

Defense Attorney: Gary P. Burcham

15. United States v. Emmett, Ninth Circuit: The district court denied Appellant's motion for early termination of supervised release. That order was vacated and remanded for further proceedings because the trial court denied the motion without a hearing or any response from the government or probation office. The trial court's only reasoning was that Appellant had not demonstrated undue hardship caused by supervised release, but that was not an adequate basis for denying Appellant's motion.

Defense Attorney: James H. Locklin

16. United States v. French, Ninth Circuit: Appellant was convicted by jury of two money laundering convictions. Both convictions were reversed because there was insufficient evidence to support them. The trial court also erred by failing to define "proceeds" as "profits" during jury instructions.

Defense Attorneys: Michael J. Kennedy, Rene Valladares, and Dan C. Maloney

17. United States v. Harrington, Ninth Circuit: The Ninth Circuit reversed Appellant's conviction for refusing to submit to a blood alcohol test in a national park. It was a violation of due process to convict Appellant when park rangers told him three times that his refusal to submit to the test was not a crime itself, even though it was.

Defense Attorney: Katherine L. Hart

18. United States v. Brown: A magistrate judge ruled on Appellants motion to vacate his sentence under 28 U.S.C. §2255. The Eleventh Circuit held that a §2255 motion is not a civil matter and magistrate judges only have statutory over civil matters under the Federal Magistrate Act of 1979. The motion was therefore vacated and remanded.

19. United States v. Ransfer, Eleventh Circuit: A jury convicted Appellants of multiple counts of robbery, conspiracy, and firearm charges. The Eleventh Circuit vacated convictions for Appellant Lowe arising out of one robbery because there was no evidence that he took any action in furtherance of that crime. The case was remanded for resentencing.

March 18, 2014

Short Wins - The Money Laundering Leadership Edition

It's a good week for sentencing remands in the federal circuits. To my mind, the most interesting case is United States v. Salgado, where the Eleventh Circuit reversed a district court for considering the person who was being sentenced's role in the underlying offense that money was laundered in connection with, when the person was sentenced for money laundering. When you're figuring out the guidelines, the Eleventh Circuit said you can't do that.

Mr. Salgado was a leader in the drug operation in the case, but he wasn't a leader in the money laundering. It turns out there's an application note that says leadership on one offense doesn't translate into leadership for the other.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Aviles-Santiago, First Circuit: At his sentencing, the district court increased Appellant's sentence based on information the court knew only from sentencing Appellant's wife in an earlier case. Because Appellant was not given notice of that issue, and because the information was not supported by the record, Appellant's sentence was vacated.

Defense Attorney: Raymond L. Sanchez Maceira

2. United States v. Ortiz-Vega, Third Circuit: The Third Circuit decided, as an issue of first impression, that sentence modifications for crack cocaine offenses under 18 U.S.C. §3582(c)(2) are retroactive. Appellant's request for modification, which was denied at the district court, is granted, and the case remanded.

Defense Attorneys: Sarah S. Gannett and Christy Unger

3. United States v. Salgado, Eleventh Circuit: In calculating the guidelines range for a money laundering offense, the district court considered both the money laundering offense and Appellant's role in the drug conspiracy which generated the money laundering. Because the sentencing guidelines do not allow consideration of the underlying offense, the sentence was vacated and the case remanded.

May 28, 2013

Short Wins - Special Assessment Lawyering and a Remand For The Oral Pronouncement of a Special Condition of Supervised Release

There are some dramatic wins in the federal appeals courts. Sometimes an entire conviction is overturned, and it is clear that the person will walk free. Other times, a large and unjust sentence is reversed.

And then there are this week's "wins". In one, a former judge, convicted of fraud, will have the total punishment imposed on him reduced by $100 - the cost of the Special Assessment that was imposed on a count that exceeded the statute of limitations.

In another, the district court imposed a condition of supervised release ordering treatment for a gambling addiction in the Judgment following the sentencing hearing, but not at the hearing itself. So the case will go back for a sentencing hearing where the judge can say that the person is going to be going to treatment for gambling addiction to the person's face.

To the victories?

1155650_berlin_siegessule.jpg1. United States v. Ciavarella, Third Circuit: Appellant, a former judge, was convicted of honest services mail fraud, among other offenses, and sentenced 336 months in prison and ordered to pay a special assessment and restitution. Because the mail fraud count was barred by the statute of limitations, and because appellant did not waive his challenge to this count on that ground, his conviction on this count was vacated. Remand was required to amend the judgment to reduce the special assessment.

2. United States v. Martin, Sixth Circuit: Appellant was sentenced to 120 months for being a felon in possession of a firearm. In the written judgment, the court imposed a special condition of supervised release that appellant undergo treatment for a gambling addiction. The government conceded that the court's failure to orally impose the condition was an abuse of discretion and requested remand for the court to conform its written judgment to the oral pronouncement. The appeals court granted that relief.

April 1, 2013

Short Wins - More On The Federal Defender Budget Mess And The Withering Sixth Amendment

Two wins in the Eighth Circuit - nice. Other than that, it's a whole lot of resentencing news.

In news related to last week's short wins post, though, where I lamented that Assistant Federal Public Defenders will be doing the same work with less pay, here's more information about the horrible budget/employment situation in our country's federal defender's offices.

In particular, I received an email calling me out for underdescribing how bad the situation is.

From a source in a leadership position of a federal defender organization, on the way the budget cuts have worked in that office:

[T]he nationwide problem is bigger than some lawyers doing the same work for less pay.

And it should be said that the Congressional sequester is but part of our pain. Last year, we ran our joint for just over $4M (and returned nearly $100K at year's end). We started this year upon preliminary funding of $3.8M, notwithstanding a governance scheme that builds in pay raises for our non-AFDs (who are on the GS scale), despite the increasing costs of our privately obtained (by way of our CDO status) health insurance, etc.

Then, the judiciary elected to cut all FDO budgets by five percent: this cut to our annual budgets was announced on Valentine's Day (meaning that resulting 12-month deficits could only be recovered over the fiscal year's remaining 7+ months). This took us to $3.6M (when, last year, we spent $4M).

Then the sequester hit and cost us another 5.5 percent off our annual budget, leaving us halfway through this year to limp into the future on funding $600K less than we judiciously spent just a year ago.

With a gap like that, furloughs and layoffs are inevitable. These are hard times for the 6th Amendment in federal court. Sure, many folks will be able to afford counsel - but thousands of people a year, under attack by the most powerful government in the history of the planet, will have compromised access to a lawyer.

Sad times.

To the victories . . .

1155650_berlin_siegessule.jpg1. United States v. Benjamin, Third Circuit: Appellant was convicted of, among other things, two counts of possession of a firearm by a convicted felon. One charge was based on appellant's use of a gun at a gun range, and the other was based on possession inside his home. Because there was no evidence showing that appellant relinquished constructive possession of the gun, there could only be one conviction. Because this error was plain, affected appellant's substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings, the case was remanded with instructions to vacate the home possession conviction and to merge both convictions into one.

2. United States v. Culbertson, Fifth Circuit: Appellant pled guilty to possession with intent to distribute methamphetamine and was sentenced to 87 months in prison followed by five years' supervised release. Appellant violated his conditions of supervised release and was sentenced to 30 months in prison, followed by 113 days in a residential reentry program. This sentence was above his advisory guideline range of five to 11 months in prison. Because the court based the sentence on its perception of appellant's rehabilitative needs, the case was remanded for resentencing.

3. United States v. Higgins, Eighth Circuit: Appellant was convicted of distributing crack cocaine, among other drug offenses, and sentenced to 360 months in prison on that count. Because the court erred in applying a career offender enhancement to that sentence under guideline § 4B1.1, the sentence was vacated and the case remanded for resentencing.

4. United States v. Johnson, Eighth Circuit: Appellant's supervised release was revoked and he was sentenced to 21 months in prison. At the hearing, a probation officer read a police report into evidence alleging appellant had been arrested for certain crimes. The government offered no explanation for the arresting officer's unavailability. This lack of an explanation, balanced against the reliability of the report, resulted in a violation of appellant's right to confront adverse witnesses. As a result, appellant's sentence was vacated and the case remanded for resentencing based on the existing record before it, without considering the police report.

March 18, 2013

Short Wins - Day After St. Patrick's Day Edition

It's a good week for violent crime in the federal circuits - a robbery case from the First Circuit and an assault in Indian country winding up in the Ninth Circuit. And both resulted in a defendant-friendly remand. Go federal appeals courts!

Though I suppose the big news from last's week's defense wins in the federal appeals courts is the Third Circuit's United States v. Reynolds. There, the Third Circuit struck down a conviction for failing to register as a sex offender because the Attorney General's rule that applied SORNA (the federal statute that federalizes sex offender registry - because Congress thinks there simply cannot be enough federal criminal statutes) wasn't totally compliant with notice and comment rulemaking, in as much as there wasn't an opportunity for notice and comment on the rule before it was made.

It's a great issue - kudos to the Third Circuit for thinking the APA is the law even when it applies to people accused of crimes.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Almeida, First Circuit: Appellant was indicted and convicted of burglary. The court applied a robbery sentencing guideline, resulting in a sentence about twice what it would have been under the burglary guideline. Note 1 to guideline § 1B1.2 and the guidelines' Statutory Appendix provide that where the guidelines specify more than one offense guideline for an offense and no plea agreement agrees to a more serious offense, the court must pick the most appropriate guideline based only on the conduct in the indictment. Because the court picked a guideline that wasn't based on bank burglary, appellant's sentence was vacated and the case remanded for resentencing.

2. United States v. Alvirez, Ninth Circuit: Appellant was convicted of assault resulting in serious bodily injury on an Indian reservation. Because Indian tribes aren't listed among the groups that may produce self-authenticating documents, the court abused its discretion in admitting an unauthenticated Certificate of Indian Blood as evidence that appellant has recognition as an Indian. Because the error wasn't harmless, appellant's conviction was reversed and the case remanded.

3. United States v. Reynolds, Third Circuit: Appellant was convicted of sexual assault and required to register as a sex offender. Years later, the Sex Offender and Registration Notification Act ("SORNA") was passed, which required sex offenders to comply with certain registration requirements. A rule was passed that made SONRA applicable to pre-SONRA offenders like appellant, but didn't provide a period for notice and comment on the rule. Because the Attorney General didn't have good cause to waive the notice and comment, the lack of good cause prejudiced appellant. As a result, appellant's conviction for failing to register was vacated.

4. United States v. Williams, Sixth Circuit: Appellant pled guilty to possession with intent to distribute oxycodone. Because the district court erred in applying a two-level enhancement for obstructing justice under § 3C1.1, appellant's sentence was vacated and the case remanded for resentencing.

March 6, 2013

The Third Circuit Shows How The Sentencing Guidelines For Fraud Are Complicated; Victims and Losses Bamboozle The Government And District Court

The federal sentencing guidelines are probably the most problematic in three areas - fraud, child pornography, and drugs.

Today's case, United States v. Diallo, illustrates two of the big problems with the fraud guidelines. First, they're really complicated - so complicated that federal prosecutors sometimes don't really understand how they work. In this case, the prosecutor at sentencing took a position so clearly inconsistent with the guidelines that the government abandoned it for the appeal.

(An astute reader will notice that this means the district court went along with the federal prosecutor's flawed guidelines understanding. It's a shame, but c'est la guerre.).

Second, the fraud guidelines are driven by what the "intended loss" is. And "loss" for sentencing guidelines purposes is a squishy notion. And squishy notions are bad when you're trying to figure out how much prison time to give someone.

785364_creditcard.jpgCredit Card Problems

Issa Diallo had a problem with credit cards. Sure, like many Americans, he charged more than he should of. Unlike many Americans, he put these charges on cards that weren't issued to him.

He went into a Wegman's (it's a grocery store, for our geographically diverse readers) and bought 26 gift cards with a counterfeit credit card. The next day he came back to do it again and was arrested.

Law enforcement went into his car with a warrant. They found a treasure trove of stolen identity documents:

53 counterfeit credit cards, a counterfeit Louisiana driver's license, 24 gift cards, a Global Positioning System (GPS), a laptop computer, a thumb drive, and a skimming device, which is a hand-held device that copies, stores, and encodes credit card information from a credit card's magnetic strip. A subsequent search by Secret Service agents resulted in the discovery of a second thumb drive and another gift card. Searches of the laptop and thumb drives revealed over 200 compromised Discover, Visa, and MasterCard credit card accounts.

He pled guilty to having counterfeit credit cards under 18 U.S.C. § 1029(a)(3). In the plea, there was no agreement about the number of victims or the amount of the loss. These are, of course, massively important to figuring out the guidelines range under U.S.S.C. § 2B1.1.

What's It Take To Be A Victim?

At sentencing, a Secret Service agent testified that there were credit cards for 51 financial institutions in Mr. Diallo's possession.

There's a four-level guidelines enhancement if there are more than 50 victims.

The government said that meant there were more than 50 victims, so the enhancement for more than 50 victims should apply.

The defense lawyer argued that "victim" for purposes of the number of victims enhancement, means people who actually lost money as a result of Mr. Diallo's criminal conduct.

What's the loss amount?

The Secret Service Agent testified that only $160,000 was actually charged on the cards that Mr. Diallo had. Though when you add up the credit limits for each of the cards, the total amount that could have been charged was $1.6 million.

So, since "loss" for the guidelines purposes means the higher of actual loss or "intended loss" - the amount that a person could reasonably think could have been lost as a result of the office - the government said that Mr. Diallo should have known that the loss could have been $1.6 million.

Mr. Diallo's attorney was able to get the agent to acknowledge that there was no way Mr. Diallo could have known what the credit limit on the cards was absent a subpoena.

The District Court Speaks

These were hotly contested questions. There was testimony and argument. The Third Circuit reports that:

The Court's analysis on these two issues consisted of the following: "The intended loss for credit cards he personally used and the cards he manufactured and provided to others totaled $1.6 million. Over 50 financial institutions were affected by his actions. So obviously it is a very serious offense."

It's not the most satisfying way to grapple with a hotly litigated legal issue.

The Appeal

On appeal, the government - perhaps reading the commentary for the sentencing guidelines that applied to this case relating to the number of victims enhancement for the first time - acknowledged that "victim" means "someone who suffered a loss."

Since not all of the financial institutions had cards that were actually used by Mr. Diallo, there weren't 50 or more companies that were actually harmed. So the government abandoned the "number of victims" argument.

Good on them for admitting their error. Perhaps it would have been better to do that before the sentencing hearing, but better late than never.

Turning to the loss amount issue, the Third Circuit started by setting the stage

This appeal requires us to determine how sentencing courts should calculate what "pecuniary harm was intended to result" from credit card fraud when the fraud's perpetrator did not know the credit limit, which is the potential loss amount from the stolen credit card.

The appellate court reasoned that if the district court had really done a searching analysis and decided that there was a reasoned basis for thinking that Mr. Diallo meant to take the full limit of each card, that could be supported, perhaps, depending on how good the reasoning was.

But that's not what happened here. And the Third Circuit was really not impressed with what the district court did.

from the District Court's statement at sentencing--"The intended loss for credit cards he personally used and the cards he manufactured and provided to others totaled $1.6 million" App. 30-31--we would be speculating as to what evidence or argument was the basis for the District Court's finding that $1.6 million was Diallo's intended loss amount. This type of "speculation 'is inappropriate' in light of the inherently discretionary nature of the sentencing court's decision."

The case was sent back for resentencing.

February 7, 2013

It's Hard To Lie (Though Not For The Reason You Think); or You Haven't Made A False Statement If The Statement You Made Isn't False

Daniel Castro was a high-ranking person in the Philadelphia Police Department. And the Third Circuit's opinion in his case - United States v. Castro - may just be the most awesome published opinion I've seen in months.

Mr. Castro was charged with three separate extortion conspiracies and also with making a false statement to federal agents - a violation of 18 U.S.C. § 1001.

The jury hung on the extortion charges. They convicted on the false statement charge.

He pled to one extortion conspiracy to avoid retrial and the plea agreement had an appeal waiver.

Yet, despite that, the Third Circuit reversed his false statement conviction because the government hadn't proven it. The Third Circuit held that he was so clearly not guilty of making a false statement that it would be a manifest injustice to not reverse on those grounds - so the appeal waiver didn't bar their consideration of the issue.

1095398_right_or_wrong.jpgThe (Not) False Statement

Mr. Castro had a friend, Rony Moshe. Mr. Castro lost some money in a bad investment. He thought of his losses as a debt owed to him by the person he invested with - a man named Encarnacion. Mr. Moshe proposed that he could refer some tough debt collectors to help Mr. Castro collect this "debt" from Mr. Encarnacion. Mr. Moshe really went out of his way to try to work with Mr. Castro.

As you may have already suspected, Mr. Moshe was also an FBI informant.

After a lot of back and forth and a lot of regrettable statements on wires, Mr. Moshe gave Mr. Castro some money that he told Mr. Castro came from Encarnacion. In fact, it came from the FBI.

The FBI interviewed Mr. Castro. The asked him if he ever got money from Mr. Encarnacion.

Mr. Castro said that he did not. Though of course he thought that he did. Though he didn't - the money came from the FBI.

His statement that he didn't get any money from Encarnacion was the basis of his false statement conviction.

Failing to Fib

On appeal, Mr. Castro argued that this wasn't a false statement. In fact, it was a true statement - he did not, in fact, get any money from Encarnacion.

Mr. Castro didn't know that the statement was true - he intended to lie. But, despite his best efforts, he failed to fib.

The Third Circuit set out the standard for a false statement prosecution:

To establish a violation of §1001, the government [is] required to prove each of the following five elements: (1) that [the accused] made a statement or representation; (2) that the statement or representation was false; (3) that the false statement was made knowingly and willfully; (4) that the statement or representation was material; and (5) that the statement or representation was made in a matter within the jurisdiction of the federal government.

The second element is plain as day. And Mr. Castro's statement wasn't false. So, the Third Circuit reversed his conviction for making a false statement.

The Government's (Rejected) Arguments

The government was unhappy with this result - Mr. Castro thought he was committing a crime, even if he actually wasn't. The Third Circuit empathized, but disagreed:

In the broadest sense, it is surely so that Castro was morally wrong even if not legally guilty, but our legal system does not convict people of being bad. If they are to be convicted, it is for specific crimes, and the government here undertook the burden of proving that Castro had committed each element of the specific crime set forth in § 1001. It failed to do that.

The government was really unhappy with this result. They argued that there's a "sting operation exception" to the requirement that a person make a false statement for there to be a successful false statement prosecution. Undercover operations do odd things to the truth. Many is the time I've sat with someone after they've been arrested in a sting and the predominant emotion is betrayal. Folks just can't get over being lied to by someone who turned out to be a federal agent.

The Third Circuit didn't much care for the "sting operation exception"

The ready and dispositive response to that argument is that, even if a "sting exception" to the strictures of § 1001 is a good idea, it is simply not in the statute. Congress knows how to pass laws that penalize statements made to law enforcement officers by a defendant who incorrectly believes the statements to be false. Compare 18 U.S.C. § 1956(a)(1) ("knowing" laundering of funds "which in fact involves the proceeds" of a crime), with id. §1956(a)(3) (intentional laundering of funds "represented to be" proceeds of a crime). But it did not do so when it enacted § 1001, and we are not free to amend the law.

In a desperate move, the government then argued that the money really came "from" Encarnacion, even though they came from the FBI.

The Third Circuit's response - "It is not clear how the quotation marks around the word "from" in that sentence help the argument."

Ouch.

As a result, Mr. Castro's false statement conviction was reversed.

So many ways to be wrong, but morally and in terms of what happened. Yet they add up to make something so right.

January 15, 2013

Short Wins - Day After The Inauguration Edition

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

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

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

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

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

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

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

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Catchings, Sixth Circuit: Appellant pled guilty to identity theft. When the district court calculated the amount of loss under Sentencing Guideline § 2B1.1(b)(1), it erroneously included losses stemming from credit cards that were not obtained or used in violation of criminal law. Consequently, the court incorrectly calculated appellant's guidelines range. Remand for resentencing was required.

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

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

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

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

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

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

January 13, 2013

Short Wins - A Franks Hearing in the Seventh Circuit!

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

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

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Castro, Third Circuit: Appellant was convicted of offenses arising out of three separate schemes to extort money through violence. Because the record did not contain evidence that he knowingly made a false statement to the FBI, his conviction of this offense was reversed. Given the reversal of his conviction on this count, remand was required for resentencing on appellant's conviction for conspiracy to commit extortion to calculate the correct guidelines range.

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

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

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

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

October 19, 2012

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

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

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

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

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

Mr. Begin was undaunted.

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

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

He pled guilty to a two-count indictment:

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

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

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

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

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

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

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

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

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

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

October 15, 2012

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

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

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

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

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

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

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

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

September 24, 2012

Short Wins - Fraud and Child Pornography Edition

Today's short wins are dominated by federal sex offenses and fraud. It must be something in the water.

As the last few have been, this post contains a number of cases that were decided over the end of the summer.

1155650_berlin_siegessule.jpgVery soon -- perhaps even next week -- the Short Wins will start to become a recap of all the published federal criminal defense wins from each of the circuits on a weekly basis. So, if you're an criminal appellate practitioner (on the defense side), our hope is that this will soon be one stop shopping for 28(j) letters.

One other note - I had a preview of sorts for the upcoming Supreme Court term at Above the Law called Kaiser's Guide To Bluffing Your Way Through Knowledge About The Supreme Court's New Term to Non-Lawyers. It's not long on criminal defense stuff, but I do make fun of lawyers.

To (the) victories:

1. United States v. Marston, First Circuit: In bankruptcy fraud case, appellant appealed her conviction for knowingly and fraudulently failing to disclose certain debts to creditors on her bankruptcy petition that were incurred under appellant's friend's name, which appellant used without her friend's permission. Because the government failed to prove that, at the time appellant filed the petition, there were still outstanding claims by these creditors, her conviction was improper, warranting reversal.

2. United States v. Cunningham, Third Circuit: In child pornography case, the district court abused its discretion by failing to review child pornography video clips found on appellant's computer before admitting them into evidence and by allowing the videos to be shown to the jury. Because the highly inflammatory nature of the videos clearly and substantially outweighed their probative value, and because these errors were not harmless, appellant's conviction was vacated and the case remanded for a new trial.

3. United States v. Leal-Del Carmen, Ninth Circuit: On appeal of appellant's conviction for bringing in illegal aliens, appellant was denied his Sixth Amendment right to a meaningful opportunity to present a complete defense when the government deported an illegal alien who would have provided exculpatory evidence for appellant before counsel for appellant was even appointed. This prevented the jury from hearing anything at all about the testimony of appellant's sole favorable witness. Reversed and remanded.

4. United States v. Robers, Seventh Circuit: In conspiracy to commit wire fraud case, district court erred in including attorneys' fees for collecting a debt and unspecified fees in its restitution order because these fees are not recoverable under the Mandatory Victims Restitution Act of 1996. Vacated improper aspects of restitution award and remanded for entry of new restitution order.

5. United States v. Butler, Tenth Circuit: Brothers James and Marlin Butler, who sold guided deer hunts, pled guilty to conspiring to sell and transport poached deer. In sentencing the brothers, the district court erred in conflating the value of the deer with the full price of a guided hunt. The court also improperly imposed James' special conditions of supervision without considering whether the conditions would interfere with his lawful employment. Vacated appellants' sentences and remanded for resentencing.

6. United States v. Nielsen, Ninth Circuit: In sentencing appellant pursuant to his guilty plea to coercion and enticement of a minor, the district court erred in applying the "repeat and dangerous sex offender" enhancement under U.S.S.G. § 4B1.5(a) based on appellant's adjudication as a delinquent youth. Because the delinquency adjudication did not constitute a "sex offense conviction," the Ninth Circuit vacated the sentence and remanded for resentencing.

7. United States v. Navedo, Third Circuit: In illegal weapons possession case, the district court erred in denying appellant's motion to suppress weapons that police discovered in appellant's home after his warrantless arrest because appellant was detained without reasonable suspicion or probable cause to arrest. Remanded with instructions to vacate the order denying appellant's motion to suppress.

8. United States v. Johnson, Eleventh Circuit: In sentencing appellant after his guilty plea to interfering with commerce by threats or violence, brandishing a firearm during a crime of violence, and being a felon in possession of a firearm, the district court erred in applying a two-level sentencing enhancement under U.S.S.G. § 3C1.2 for reckless endangerment during flight. The court's reliance on three pieces of evidence to support the enhancement was misguided: the first two evidentiary showings were insufficient to prove that appellant actively encouraged or brought about the dangerous conduct, and the court did not make the requisite finding for enhancement for the third. Vacated and remanded for resentencing.

9. United States v. Williams, Ninth Circuit: The district court erred in grouping together appellant's convictions for wire fraud, extortion, and destruction of a letter box for purposes of sentencing under U.S.S.G. § 3D1.2 because the victims of appellant's mailbox-related offenses and his wire fraud and extortion offenses were distinct. The court further erred in applying three sentencing enhancements: (1) a five-level sentencing enhancement under U.S.S.G. § 2B3.2(b)(3)(iii) for brandishing a firearm; (2) a leadership enhancement under U.S.S.G. § 3B1.1(c); and (3) a two-point adjustment under U.S.S.G. § 3C1.1 for obstructing justice. Vacated appellant's sentence and remanded for resentencing.

10. United States v. Alvarado, Fifth Circuit: In child pornography case, the district court erred in automatically imposing a lifetime sentence of supervised release without engaging in any analysis of the circumstances surrounding appellant's crime. Vacated court's order regarding lifetime supervision and remanded for further proceedings.

11. United States v. Murray, Third Circuit: After his release from incarceration on his convictions for traveling interstate to engage in illicit sexual conduct with a minor and possession of child pornography in the District of New Jersey, appellant moved to the Western District of Pennsylvania. When the Pennsylvania probation office sought to modify appellant's supervised release conditions to include new, more restrictive conditions, the district court erred in granting the request without articulating a viable basis for those new conditions. Vacated order; remanded for the district court to more clearly explain why the conditions are no greater than necessary to satisfy the 18 U.S.C. § 3553(a) sentencing factors.

August 28, 2012

A Speakeasy Robbery Leads To An Important Witness Tampering Opinion

Glorious Shaver, Andrew White, and Jermel Lewis knew of a speakeasy in North Philadelphia.

A woman named Jeanette Ketchmore would buy bottles of booze and sell drinks from then for four or five dollars in her home. Some of those bottles of booze crossed state lines before making it to Ms. Ketchmore's house.

1254218_glass_of_whiskey.jpgShe was not licensed by the state or local government to provide these drinks.

Messrs. Shaver, White, and Lewis were not content to drink at Ms. Ketchmore's home. Instead, they decided to rob it at 5:30 in the morning on November 8, 2005.

They were caught and prosecuted in state court. After a year in state court, the federal government decided to prosecute - to protect the interests of those bottles of alcohol that crossed state lines.

The three men were indicted in federal court in Philadelphia for Hobbs Act Robbery.

They were convicted, and, in United States v. Shavers, the Third Circuit affirmed their Hobbs Act robbery convictions (if you're interested in the commerce clause and the Hobbs Act, there is a lengthy discussion that may be interesting. Though, SPOILER ALERT, the defendants lose).

But that's not all - there were also witness-tampering charges against Messrs. Shaver and White that resulted in an interesting and important opinion from the Third Circuit.

Messrs. Shaver and White made a number of calls from a jail while they had been charged in state court trying to encourage witnesses to the speakeasy robbery to have a different memory.

They were charged with violating 18 U.S.C. § 1512(b)(2)(1), which says that it's a crime to:

use[] intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to-- (1) influence, delay, or prevent the testimony of any person in an official proceeding . . .

The trouble is, official proceeding is later defined by section 1515(a)(1)(A) as a federal proceeding.

Does a state court proceeding count as an official proceeding for the purposes of the witness tampering statute?

The Third Circuit says no, relying on Arthur Anderson LLP v. United States:

In Arthur Anderson LLP v. United States, the United States Supreme Court reviewed convictions under § 1512(b)(2)(A) and (B). 544 U.S. 696, 698 (2005). The Court held that to satisfy the "official proceeding" requirement under those subsections, the Government must show a "nexus" between the defendant's conduct and a particular proceeding. Id. at 707- 08. To meet that nexus requirement, the Government must prove that the defendant "ha[d] in contemplation [a] particular official proceeding" when he or she attempted to interfere with evidence or a witness. Id. at 708. The proceeding need not have been pending or about to be instituted, but it must have been foreseeable. Id. at 707-08.

The government argued that the Supreme Court sotto vocce narrowed Arthur Anderson in Fowler v. United States. There, a bank robber shot a police officer after a bank robbery.

Mr. Fowler was charged under section 1512(a)(1)(C), which applies to people who kill someone - or try to - to avoid prosecution.

The Supreme Court held that for a prosecution under 1512(a)(1)(C) the government only had to show a reasonable likelihood that the person killed would have communicated with law enforcement that could have made it to federal law enforcement.

This is, of course, a different standard than the defendant-specific foreseeability requirement in Arthur Anderson.

Yet, the Supreme Court in Fowler never cites Arthur Anderson.

In light of that silence in Fowler, and the different ends of a prosecution under 1512(a) and one under 1512(b) - namely that the first involves someone dying and not the second - the Third Circuit held that Arthur Anderson and Fowler are simply different doctrinal boxes.

The Third Circuit concludes:

This . . . leads us to the logical conclusion that there are at least two lines of jurisprudence developing separately under the VWPA: one for the investigation-related provisions, such as § 1512(b)(3) and (a)(1)(C), and one for the "official proceeding" provisions, such as § 1512(b)(1) and (b)(2). See Ronda, 455 F.3d at 1288 (observing that the link to a federal proceeding in the investigation-related provisions is less stringent than the "official proceeding" requirement in § 1512(b)(1) and (2)). Hence, we hold that a successful prosecution under § 1512(b)(1) requires proof, beyond a reasonable doubt, that the defendant contemplated a particular, foreseeable proceeding, and that the contemplated proceeding constituted an "official proceeding," as defined by § 1515(a)(1)(A).

Messrs. Shavers and White were charged under § 1512(b)(1) - which requires proof of a particular foreseeable federal proceeding. Because their efforts to tamper with witnesses were efforts to tamper with a state court proceeding, the Third Circuit concluded that the conviction for trying to tamper with the federal case must fail.

As the court of appeals noted:

It is clear from the transcript of the telephone calls that Shavers's and White's efforts were directed at preventing potential witnesses of the speakeasy robbery from testifying at their upcoming hearing in Pennsylvania state court. There is no evidence that they contemplated any other proceeding.

The convictions for witness tampering were vacated.