The Federal Criminal Appeals Blog

We have too many federal criminal laws - more than 4,000. And, as frequent readers of this blog will note, there are times when the federal government prosecutes a person that is a close call - it may or may not be a crime.

For example, in United States v. Costello, the government prosecuted a woman for giving her boyfriend a ride from the bus station on the theory that this was "harboring" an illegal alien. (read my prior write-up on the case here).

In marginal cases like these, the defense normally argues that this is government overreaching. The government normally brushes aside this argument saying, in essence, "trust us." "We," the government continues, "have scarce resources and good judgment. We won't prosecute anyone except for really bad people."

In Costello, Judge Posner responded forcefully to this, saying:

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

Or, take a case in the news lately, United States. Nosal. There, the government prosecuted a man (and, after they lost the appeal, tried him on different grounds and got a conviction last week) for violating the CFAA - the Computer Fraud and Abuse Act - because he encouraged others to access a computer contrary to the authorization given to them to access the computer. (my prior write up on the earlier opinion is here)

The defense argued that this was the government prosecuting a marginal case. The government said, in essence, "trust us."

Judge Kozinksi was unkind to this prosecution.

The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations. But we shouldn't have to live at the mercy of our local prosecutor. Cf. United States v. Stevens, 130 S. Ct. 1577, 1591 (2010) ("We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."). And it's not clear we can trust the government when a tempting target comes along. Take the case of the mom who posed as a 17- year-old boy and cyber-bullied her daughter's classmate. The Justice Department prosecuted her under 18 U.S.C. §1030(a)(2)(C) for violating MySpace's terms of service, which prohibited lying about identifying information, including age. See United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009). Lying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight. The difference between puffery and prosecution may depend on whether you happen to be someone an AUSA has reason to go after.

Normally, the response to an overaggressive government prosecution of these kinds of marginal cases is to define the scope of the statute narrowly so that the prosecuted conduct doesn't fit within the terms of the statue.

But what about a case where the case is marginal but within the language of the statute?

Normally, in that situation, if the language is clear that what the person did is a federal crime, but it clearly isn't what Congress intended, or what any thinking person would think should be a crime (and, sadly, those are different tests), the response is that we have to trust the government to not bring those cases.

Or, if there isn't a mandatory minimum, we have to hope sentencing judges will truly see the case as marginal.

What many folks would say you can't do, though, is go to a jury and argue that this prosecution shouldn't have been brought. Many would say that you aren't allowed to argue, in essence, "yes, my client is guilty, but, still, you shouldn't convict."

Those folks may not have read the First Circuit's opinion in United States v. Baird.

There, Mr. Baird bought a gun from a shady guy. Turns out the gun was stolen.

The government decided to prosecute the guy who bought the gun (using the evidence of the guy who stole the gun) for possession of a stolen firearm.

Mr. Baird wanted an "innocent possession" instruction. He wanted to argue that he didn't know the gun was stolen when he possessed it and that it got rid of it quickly after having learned it was.

The district court refused to give that instruction, relying on cases that said there's no "innocent possession" defense in a possession of a stolen gun case, relying on United States v. Teemer, a prior First Circuit case on whether there's an innocent possession defense to a felon in possession charge.

The First Circuit, reversing on the failure to give the instruction, acknowledge that Teemer held there was no such defense, but then said,

But that is not all Teemer said. While Teemer declined to create a "mandatory safe harbor" for innocent possession, it also acknowledged that "there are circumstances that arguably come within the letter of the law but in which conviction would be unjust," such as if a felon snatched away a loaded gun from his school-aged son and then called the police to retrieve it. Therefore, although Teemer relied primarily on prosecutorial discretion and the common sense of the jury to weed out the cases warranting leniency in § 922(g) cases, we have simultaneously recognized that "extraordinary cases might arise where . . . . if the government were foolish enough to prosecute, some caveat might indeed be needed (e.g., an instruction on a necessity or justification defense.)"

I'm not sure how to read that, except as licensing a very limited kind of jury nullification.

Justifying the applicability of an innocent purchaser defense - which isn't in the statute - the court of appeals imagines what Congressional intent should have been. Since this prosecution didn't do much to get guns off the streets, the First Circuit concludes that it wasn't what Congress meant.

Clearly this isn't going to allow a jury nullification argument most of the time, or even much of the time. But, for those of us who have grown up with a Scalia-generated view of legislative intent, it's a stunning turnaround in how to interpret a statute. And, perhaps, a first step toward allowing some kind of jury nullification.

Many white-collar cases start the same way - a person is an entrepreneur. He has a vision for a business he'd like to build. He wants to do great things and reform an industry.

Things are going well, but he wants to move to that next level. Getting to the next level - whatever it is - takes a little faith, a little elbow grease, and, sometimes, a few cut corners.

The trouble with cutting corners is that once you start to cut them, then get hard to uncut. The corner cutting gets baked into your business model. At some point, the cost of fixing the corner cutting exceeds what you think you can spend on it.

Some corners are worse to cut than others. If a business has gotten in the habit of having less money in cash reserves than it should, they may get away with that. If, on the other hand, like the folks in the First Circuit's opinion in United States v. Wu, they skip getting licenses which are necessary for their import/export business to not be a crime, it can be a little worse.

Alex Wu and Annie Wei ran a business that sold things to folks in China. Specifically, they sold sophisticated electronic components.

As it happens, there are rules about when you can send sophisticated electronic components out of the United States. Our federal government would prefer to have items that could have a military application, even if they can also have a nonmilitary application, from going to a foreign country that might use those things to do us harm.

Mr. Wu and Ms. Wei's company started small - as many do. By 2007, the company had five offices - three in China, one in the U.S., and one in Hong Kong - and 200 employees.

At some point in 1996, someone at the company printed a few regulations from the Commerce Department on Export Controls and placed them in a file at the company.

In 1997, Ms. Wei told Mr. Wu that she had mentioned to a potential vendor that she was selling things to China. The potential vendor refused to sell to her. She told Mr. Wu that the "'big lesson' from this 'mistake' was to avoid providing 'extra' information to vendors."

Over time this lesson proved harder to follow as more and more vendors asked follow up questions about where the parts were going.

Ultimately, after shipping millions of dollars of equipment overseas, the two were indicted.

They were charged with - and later convicted of - a number of offenses, including:

The Munitions List Counts: Both Wu and Wei were convicted on two counts for, on two occasions in June 2006, exporting to China without a license "phase shifters" that are designated as defense articles on the U.S. Munitions List, 22 C.F.R. pt. 121.

There were also a number of other counts, not relevant to the issue they won on (but interesting if you're into this kind of case).

The two Munitions List counts involved exports of "phase shifters". According to the First Circuit,

Two waves are said to be "out of phase" when they have the same frequency but reach their peaks at different points. A phase shifter can change the phase of one of the two waves so that the waves exactly line up with one another (or, vice versa, so that waves that were previously "in phase" no longer line up with one another).

The Munitions List is a list of things that are munitions, and, hence, can't be exported to certain countries without a license. The list is not a list of names of items, rather it's a list of descriptions of kinds of things. So, to paraphrase an Easterbrook opinion, the list would prohibit bicycles, rather than a specific make of Huffy.

If you're not sure if something is on the list, there's a process where you can ask the State Department.

The government said the phase shifters were on the list. Mr. Wu and Mrs. Wei said they weren't.

The government went and asked the State Department if phase shifters were on the list when they were exported by Mr. Wu and Mrs. Wei's company. The State Department said they were.

The district court instructed the jury that it had to credit the State Department's determination - after all, it's the State Department.

This, the First Circuit held, was error. Whether something is on the Munitions List is an element of the crime. If the jury doesn't get to decide it, that's a serious problem. Even if it's really complicated:

the government may not decide for itself that some prior act by a criminal defendant violated the law, and thereby remove that determination from the province of the jury.

The government tried to argue that the two really thought they were doing something wrong - they tried to shield the final destination of the phase shifters from others - but, as the court of appeals pointed out:

even if the jury found that Wu and Wei believed that phase shifters fell within the Munitions List restrictions, it would still have to conclude that the phase shifters actually did fall within the Munitions List restrictions (regardless of Wu and Wei's beliefs).

The case was remanded for resentencing - because the convictions on a number of other charges still stand.

My grandmother was part Cherokee. I am, I understand, something around one sixty-fourth Cherokee. And, I understand, for years my grandmother's family tried to hide their Indian status.

They did that for a lot of reasons, but a big one is how the federal government would prefer it if fewer folks were Native American.

Oh, how times change - now the government wants folks to be Indians, as the Ninth Circuit's opinion in United States v. Alvirez shows us.

Every Unhappy Family Is Unhappy In Its Own Way

Edgar Mike Alvirez's family had gotten together to spend some time in each other's company. They were at his mother's house. His girlfriend was there. A woman named Drametria Havatone was also there.

At some point, Mr. Alvirez's mother and Ms. Havatone got to talking about how Mr. Alvirez doesn't help his mother out with her financial needs.

By way of counterpoint, Mr. Alvirez's girlfriend - and another woman - starting punching and kicking Ms. Havatone. Ms. Havatone was forcibly removed from the house by the two women.

She fell to the ground. If you believe what the jury did, as she lay there, Mr. Alvirez stepped on her ankle, breaking it badly in several places.

The Law In Indian Country

Mr. Alvirez was charged with violating 18 U.S.C. § 1153, which is a peculiar statute. Though it's called "Assaults in Indian Country", what it says is that it applies to an assault by an Indian:

Any Indian who commits against the person or property of another Indian or other person . . . assault resulting in serious bodily injury . . . within the Indian country, shall be subject to the same law and penalties as all other persons . . . within the exclusive jurisdiction of the United States.

So, to prove that Mr. Alvirez violated section 1153, the government had to prove that he committed assault resulting in serious bodily injury and that he is an Indian.

The Ninth Circuit explained how proving up Indian status works (internal citations omitted):

We apply a two-prong test to determine if this element has been met. First, the government must prove "that the defendant has a sufficient degree of Indian blood," and second, the government must establish that the defendant "has tribal or federal government recognition as an Indian."

To prove the first part of that, the Ninth Circuit has explained,

To satisfy the first prong, the government need only prove that the defendant has "some" Indian blood as a descendant of an Indian parent, grandparent, or great-grandparent.

One way to satisfy this test is by introducing a Certificate of Indian Blood.

Some Documents Are Better Than Others

At Mr. Alvirez's trial, the government introduced a Certificate of Indian Blood through an agent. It argued that the document, which was issued by an Indian tribe, was self-authenticating under Federal Rule of Evidence 902(1).

Though the district court let the certificate in, on appeal this argument lost. The Ninth Circuit held that a certificate from an Indian Tribe is not self-authenticating. Rule 902(1) lists the entities that can issue a self-authenticating document: "United States; a State of the United States; a commonwealth, territory, or insular possession of the United States; the Panama Canal Zone; and the Trust Territory of the Pacific Islands"

Indian tribes aren't on the list.

The Federal Government Sometimes Wants Indian Tribes To Be A Part Of The Federal Government

The government also argued that tribes are basically a part of the federal government - so tribal documents are basically federal government documents. This, too, was shot down:

Tribes are "sovereigns or quasi sovereigns," Kiowa Tribe of Okla. v. Mfg. Tech., Inc., 523 U.S. 751, 757 (1998), not one of the political entities into which the federal government is divided, see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) ("As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.").

Because the Certificate came in, it shouldn't have, and it went to whether Mr. Alvirez is an Indian for section 1153 purposes, the conviction was vacated and the case was remanded for a new trial.

This was a cool, tough case - nice work to AFPD Dan Kaplan for the win!

Our brave new world of internet technology is encouraging innovation of all kinds. Innovation of new ways to interact with each other, new ways to learn, new ways to work, new ways to embezzle and create records of one's embezzlement, and new ways for the government to try to prosecute.

In United States v. Phillips, the Ninth Circuit - in an opinion written by S.D.N.Y. SuperJudge Rakoff sitting by designation - brushed back a prosecution for embezzlement from a tech company.

The government, you see, prosecuted a former CEO of a tech company for mail fraud.

No one uses the mail any more.

False Invoices and Bad Emails

Mark Phillips was the co-founder and CEO of MOD Systems Inc. MOD was a high-tech start-up that was trying to develop and monetize a platform to sell and distribute content to consumers.

Mr. Phillips had a girlfriend - Jan Wallace. Like many men with a girlfriend, he liked to email her. She liked to email him back. It was good.

Unfortunately, Mr. Phillips was also involving her in a scheme to get money out of his company and onto his wrist.

Feel Good Watches

Ms. Wallace introduced Mr. Phillips to Feel Good Watches. Mr. Phillips decided to buy two watches from Feel Good. I'd like to think it was one for him and one for her; it's the romantic in me.

The watches cost $30,000 each - they were Breguet watches. At that price, one can imagine that they would make you feel very good indeed.

Feel Good mailed the first watch to Mr. Phillips. Mr. Phillips then emailed Ms. Wallace and said,

I received the watch, it's beautiful . . . If possible could I pay you for this so I can pay out of a company for consulting work.

Mr. Phillips then created a number of fake invoices for a company called Wallace Black LLC. He had MOD pay Wallace Black LLC through his attorney. The money that went to Wallace Black LLC was deposited into an account controlled by Ms. Wallace.

All of these communications and transfers - it appears - went through email or wires.

Ms. Wallace did not provide accounting services to MOD. It isn't clear whether she provided them to Feel Good Watches.

The fake invoices created a complicated paper trail. Following it was made easier for the government by Mr. Phillips emails with Ms. Wallace.

There was also a regrettable transfer of funds from the company to make a down payment on a mortgage for Mr. Phillip's condo.

The Charges and Trial

Mr. Phillips was charged with wire fraud, mail fraud, and money laundering. He was convicted at trial and sentenced to 48 months in prison.

Where's the Mail?

On appeal, Mr. Phillips argued that he hadn't committed mail fraud, since he hadn't used the mail.

The government's position was that Mr. Phillips used the mails when one of the watches - the first one - was mailed to him.

Mr. Phillips, on the other hand, countered that the watch wasn't a part of the conspiracy, rather, it was simply something that was just that he used the money he received from MOD to buy a watch.

The question is whether the mails were used in furtherance of the scheme to defraud. So, was the watch sent to further the scheme?

The Ninth Circuit said no.

The Supreme Court has previously ruled, in United States v. Maze, that where a man used a stolen bank card to pay for motels, and the motels mailed invoices for the stuff he charged, the mailing of the invoices wasn't enough to make things into mail fraud.

Because the bank card scheme's success didn't depend on the mailings, the Court said there was no mail fraud there.

Here, for Mr. Phillips, because the watch being mailed wasn't necessary to the scheme to defraud Mr. Phillips' company, he wasn't guilty of mail fraud.

As the Ninth Circuit put it,

Here, as in Maze, the success of Phillips's fraudulent scheme did not depend in any way on the use of the mails. The fact that Phillips purchased a watch with $30,000 of fraudulently obtained MOD funds, instead of using the funds for his personal benefit in some other fashion, did not in any way affect the scheme "to defraud MOD and to obtain money from MOD," as charged in Count 5. The fact that payment eventually was made to a watch dealer and that watch dealer mailed a watch in return was not a part of the scheme to defraud MOD and to obtain money from MOD - it was simply the byproduct of that scheme. Put another way, as a result of Phillips's successful execution of his scheme to defraud, he had sufficient funds to pay for the watch.

The mail fraud conviction was, therefore, reversed.

It seems that Rolando Ramos was a marijuana dealer. I say that because the police had him on a wire doing drug deals, found marijuana in his house when the executed a search warrant, and because he pled guilty to being involved in a conspiracy to distribute marijuana.

Mr. Ramos worked at a auto repair shop - which he dealt marijuana out of. One guy who worked at the repair shop had a brother in law who was a cop. The cop's name is Carlos Burgos.

Mr. Burgos was convicted of being a part of Mr. Ramos's drug distribution conspiracy. But the First Circuit, in United States v. Burgos, overturned that conviction because there wasn't enough evidence.

Family Ties

Mr. Burgos worked as a uniformed officer in Worchester, Massachusetts. His beat included a high-crime area known as "Main South." In Main South was a car repair shop - G & V General Auto Repair. Mr. Burgos's brother-in-law worked at G & V.

Mr. Burgos's brother in law gave him discounts on car repairs. Mr. Burgos took advantage of those discounts.

Also working at G & V was Mr. Ramos. Mr. Ramos wasn't really a mechanic, he was more of a gopher - running money to the bank and picking up parts.

Also, Mr. Ramos was dealing drugs. Though more on that later.

As time went on, Mr. Burgos got to be friendly with many of the other mechanics at G & V. Eventually, his brother in law moved on to greener pastures, though the mechanics at G & V kept giving Mr. Burgos discounts.

Savvy shopper that he is, Mr. Burgos kept using G & V for his automotive needs.

Mr. Ramos And Mr. Burgos

Mr. Ramos never talked to Mr. Burgos about his drug dealing. When he pled guilty, he flipped, and testified at Mr. Burgos's trial. Mr. Ramos described Mr. Burgos as being a personal friend. The First Circuit seemed skeptical.

Ramos met some members of Mr. Burgos's family, but never went into his house; the only time that Ramos went to Mr. Burgos's house was to tow a car. Mr. Burgos never went to Ramos's house. On one occasion, Ramos helped Mr. Burgos's sister and her infant son by towing her car and repairing a flat tire, which he did without charging her.

Though the court of appeals also noted that Mr. Ramos did sell Mr. Burgos some automotive equipment and, at one point, a used laptop for slightly less than market price. And they exchanged a phone call on Christmas Day once.

But one would hope that each man had closer friends.

Mr. Ramos Needs Information

Eventually, Mr. Ramos became convinced that the police were watching him at the store. This was because police were watching him at the store.

Mr. Ramos asked Mr. Burgos for information about whether he was under surveillance. Mr. Burgos found out that the Vice Squad was, indeed, watching the auto shop.

In the worst evidence for Mr. Burgos, they spoke on a recorded call and Mr. Burgos told Mr. Ramos that he should "take it easy for now" because the police were on to something at the auto shop.

Mr. Burgos Goes To Trial

Mr. Burgos was indicted for being a part of Mr. Ramos's drug conspiracy.

The government looked at this evidence and tried to convince a jury that Mr. Burgos was a dirty cop helping a drug dealer. In fact, they did convince a jury that Mr. Burgos was dirty cop helping a drug conspiracy. The government did not, however, convince the First Circuit.

The First Circuit Addresses Whether This Cop Has This Specific Dirt

The First Circuit first laid out the standard for whether a sufficiency of the evidence challenge would succeed:

Mr. Burgos was convicted of conspiracy to distribute and to possess with intent to distribute marijuana. To affirm his conviction, we must determine whether a reasonable jury could conclude that the Government proved beyond a reasonable doubt each element of the crime: (1) "a conspiracy existed," (2) Mr. Burgos "had knowledge of the conspiracy" and (3) Mr. Burgos "knowingly and voluntarily participated in the conspiracy."

The First Circuit rejected the government's argument that it made a sufficient showing on the second requirement - that Mr. Burgos knew of the conspiracy.

The government argued that Mr. Burgos knew that there was a drug conspiracy, because he likely knew that the vice squad was investigating. The First Circuit stopped the government short on this claim:

a reasonable jury could conclude, beyond a reasonable doubt, that Mr. Burgos knew that Main South was an area of high crime, and specifically high drug crime, that the Vice Squad investigated crimes involving drugs, prostitution and gaming, and that the Vice Squad was surveilling G & V. From this, a jury certainly could infer that Mr. Burgos was aware that the Vice Squad was investigating G & V for possible criminal activity that fell within its purview--drug crimes, prostitution or gaming. None of the evidence, however, establishes, beyond a reasonable doubt, that the Vice Squad was investigating a drug crime, as opposed to prostitution or gaming.

Since there wasn't any reason to think - based just on the fact that the vice squad was looking into the shop - that Mr. Burgos knew this was for drugs, he couldn't have been convicted for being a part of a drug conspiracy.

The government argued, then, that Mr. Burgos should have known that something was afoot - he was a trained police officer after all. The First Circuit thought Mr. Burgos probably should have known something was up, but not what it was:

The combination of both the Gang Unit and the Vice Squad surveilling G & V, Ramos's ability to secure items at well-below retail cost for resale to Mr. Burgos, and Ramos's inquiries, on two occasions, concerning surveillance, were warning signs that something illegal was afoot at G & V. There simply is no evidence, however, that Mr. Burgos knew, or was aware of a high probability, that the illegal actions involved drugs.

The case was vacated and remanded. Mr. Burgos goes home (I'm betting he won't be going back to his old job though).

It would be hard to overstate the impact of the Supreme Court's recent cases on the Confrontation Clause.

Starting with Crawford v Washington, the Court has given much more meat to the requirement that if testimony is going to be used against someone in a criminal case, the person giving the testimony has to be in the courtroom and actually testifying.

Some of these changes are slow moving. Even though Crawford was decided in 2004 - whether business records provide an exception to the confrontation requirement has been a little unclear. Happily, the First Circuit clarified that business records are not automatically excluded from the Confrontation Clause.

If you're a criminal defense lawyer, that last paragraph made sense. If you're not, it was probably soup. A little background is in order (feel free to skip to the next heading if you already know this).

A Little Background

The Confrontation Clause deals with out-of-court statements. Of course, as any good viewer of Law and Order can tell you, these statements are also hearsay. The interplay between hearsay and the Confrontation Clause and the hearsay rules used to be quite strong. It is now significantly weaker.

Back in the day, the rule was that if the government wanted to introduce someone's out of court statement against a person accused of a crime, the statement had to be generally reliable. Being "generally reliable" meant, generally, that the statement fell within a hearsay exception.

The Confrontation Clause analysis collapsed significantly into the hearsay analysis.

Crawford changed that. In Crawford, the Supreme Court held that out of court statements which are "testimonial" have to be subject to cross-examination - meaning the person who made them has to show up in court and be asked questions by the defense lawyer. It won't do under the Confrontation Clause to simply have someone else repeat the out of court statement, or introduce into evidence some place where the person wrote it down.

Fair enough, but what counts as a "testimonial" statement?

Generally speaking, the Court explained that a testimonial statement is one that was prepared in preparation for a court case. I say "generally speaking" because the Supreme Court has yet to provide us with a comprehensive definition of what counts as testimonial.

Can Business Records Be Testimonial?

In Crawford, the Court suggested that business records don't seem to be testimonial. Normally, the phone company doesn't create a phone bill so that it can be used in a later prosecution - it does it so I know how many minutes I've used and so they'll get paid.

Prosecutors, being a crafty sort, then tried to argue that all kinds of law enforcement records were just "business records" - so the Confrontation Clause didn't apply.

In Melendez-Diaz, for example, the government tried to argue that lab reports from a drug testing lab were just business records.

The Court wasn't sympathetic to that view. While it may be that the D.E.A.'s lab's "business" is to generate drug test reports, it's also true that these reports are made pretty much for the exclusive purpose of putting people in prison later.

So, again, if what you focus on is whether these records were created with a later prosecution in mind, you'll see that sometimes business records are testimonial (at least has the Court has gestured at a definition of "testimonial").

Child Pornography in Maine

Which brings us to United States v. Cameron.

Yahoo! was tipped off to the presence of some child pornography somewhere in the tendrils of its internet domain.

Yahoo!, like any internet company, is required to make a report to the National Center for Missing and Exploited Children (we'll call it "NCMEC" from here on out). when it hears that there's child porn in its internet world.

Yahoo!, as is its practice, then compiled a report about what the child porn was, where it was, and the IP address of where it was found. This report was sent to the NCMEC.

NCMEC forwarded that report along to law enforcement.

Law enforcement tracked down the IP address, and found that it went to Mr. Cameron's house.

A search warrant was obtained, and child pornography was found at Mr. Cameron's house.

He was charged with a number of child porn offenses and went to a bench trial. He lost and was sentenced to 192 months in prison.

The Business Records At Trial

At trial, two kinds of business records were introduced against Mr. Cameron.

The first kind were logs of activities on the Yahoo! (and also a Google) account. These the First Circuit had no trouble finding were not a Confrontation Clause problem. They were kept because that's what internet companies do in order to keep their internet companies running. Once the right foundation that they were business records was laid, they were properly admissible, the court found.

The second, though, were not. The reports to NCMEC, the First Circuit found, were "testimonial." So even though they were also business records, the information in them had to come in through a live witness who collected the child pornography information in the first place.

As the First Circuit said of these Child Pornography (or "CP") Reports:

Thus, although the CP Reports may have been created in the ordinary course of Yahoo!'s business, they were also testimonial; the receipts of the Reports, therefore, should not have been admitted without giving Cameron the opportunity to cross-examine the Yahoo! employees who prepared the CP Reports.

The appellate court's analysis is nice.

We start by objectively viewing the evidence to determine the "primary purpose" of the Reports. Firstly, we note that the CP Reports refer to a "Suspect Screen Name," a "Suspect Email Address," and a "Suspect IP Address." A "suspect" is "one who is suspected; esp. one suspected of a crime or of being infected." Webster's Third New International Dictionary 2303 (2002). There was no testimony from Lee, nor any other evidence, that Yahoo! treated its customers as "suspects" in the ordinary course of its business.

Also, the reports are automatically forwarded to NCMEC, which exists, in part, to forward such reports to law enforcement.

The First Circuit concluded that

Given that Yahoo! created CP Reports referring to "Suspect[s]" and sent them to an organization that is given a government grant to forward any such reports to law enforcement, itis clear that under the "objective test" required by Williams, 132 S. Ct. at 2243, the primary purpose of the CP Reports was to "establish[] or prov[e] past events potentially relevant to later criminal prosecution."

It's a lovely opinion. If you have a child pornography case or a confrontation clause case, please read it, there's a lot I haven't covered here.

Mr. Cameron's convictions for a number of counts were vacated and the case was remanded for either a new trial or resentencing.

Federal conspiracy law is a crazy thing.

It seems simple enough - a person is guilty of a federal criminal conspiracy if they agree with someone else to commit a federal crime and take some steps to carry out committing that crime.

But the agreement doesn't have to be explicit - it can be inferred from the way people act. Sort of in the same way that when my daughter puts cookies in our shopping cart at the grocery store while I'm watching we have an agreement that we're going to buy cookies.

And if my daughter puts cookies and soda in the cart, is that two conspiracies - a conspiracy to buy soda and a conspiracy to buy cookies - or is it one big conspiracy to buy sweets?

The Supreme Court talked about - and was confused by - how federal conspiracy law works earlier this week, particularly how it intersects with the federal statute of limitations.

The Tenth Circuit, in United States v. Frierson, dealt with another part of federal conspiracy law - one much closer to the example about my daughter at the grocery store.

Mr. Frierson was convicted of both conspiracy to distribute crack cocaine and conspiracy to distribute more than 50 grams of crack cocaine. They were separate counts. He was convicted at trial of both.

Is that one conspiracy or two?

As it happens, when a person is accused of one crime, in two places in the same indictment, that indictment is called "multiplicitous."

As the Tenth Circuit explained:

"Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior." United States v. Barrett, 496 F.3d 1079, 1095 (10th Cir. 2007) (internal quotation marks omitted). "[M]ultiplicity is not fatal to an indictment." Id. (internal quotation marks omitted). Indeed, "[t]he government may submit multiplicitous charges to the jury." United States v. Nickl, 427 F.3d 1286, 1301 (10th Cir. 2005). But "multiplicitous sentences violate the Double Jeopardy Clause," McCullough, 457 F.3d at 1162 (internal quotation marks omitted), so "if a defendant is convicted of both charges, the district court must vacate one of the convictions," Nickl, 427 F.3d at 1301.

Mr. Frierson's two conspiracy convictions were for the same general time period. The only difference between then is that one explicitly involved more than 50 grams of crack, and the other didn't set out a quantity of the drug.

To establish that the two conspiracies . . . were distinct - that is, that the conspiracy convictions were not multiplicitous - the jury had to find the "existe[nce] [of] more than one agreement to perform some illegal act or acts." United States v. Fleming, 19 F.3d 1325, 1330 (10th Cir. 1994) (internal quotation marks omitted). To do so, the "jurors [had to be] adequately instructed that they could not find [Defendant] guilty of more than one count of conspiracy unless they were convinced beyond a reasonable doubt that he entered into two separate agreements to violate the law." United States v. Swingler, 758 F.2d 477, 492 (10th Cir. 1985).

Yet, here, the jury was not so instructed.

As the Tenth Circuit said,

The instruction to the jurors that they "separately consider each defendant and each Count," R. Vol. 1 at 243, did not alert them that they needed to find that the two conspiracies involved distinct agreements. And there was nothing in the government's closing argument to suggest that the conspiracy alleged in Count 11 was anything other than part of the larger conspiracy alleged in Count 28, or that Defendant had two separate agreements to distribute illegal drugs. Thus, the two convictions on Counts 11 and 28 are plainly multiplicitous.

Mr. Frierson's case was remanded to the district court judge for him to be sentenced on one or other of the conspiracies - but not both. And the other has to be vacated.

And, yes, gentle reader, in the end that may be a $100 difference.

Christopher Spears was no stranger to a fake document. Though at some point, it's about standards.

Mr. Spears had a thriving business outside of Chicago, in Lake County Indiana, making all kinds of fake identification documents - he made drivers' licenses, handgun permits, high school diplomas, etc.

He was a bigger diploma mill than Phoenix University.

Unfortunately for Mr. Spears, he sold a fake handgun permit to a woman named Tirsah Payne. Ms. Payne was on pretrial release for a drug charge and wasn't allowed to have a gun (which, presumably, was why she needed Mr. Spears).

Ms. Payne tried to buy a gun at a sporting goods store. The clerk was not satisfied with her permit and turned her away.

He photocopied the fake permit first, and sent the photocopy to the ATF.

As you can imagine, one thing led to another, and Mr. Spears came to the attention of the ATF.

The ATF obtained an arrest warrant and a search warrant. Here's what they found on his person when they arrested him:

a zippered binder containing five documents that either depicted or resembled Indiana driver's licenses. Two of these documents . . . were color photocopies on 8.5-by- 11-inch paper of what look like Indiana driver's licenses. The other three documents . . . were laminated cards approximating the size and bearing the markings and information typically seen on an Indiana driver's license.

And here's what they found in his house:

a makeshift basement office with a desk, computer, printer, some check paper, and a briefcase sitting next to the desk. The briefcase contained another laminated document resembling an Indiana driver's license . . . . Forensic examination of the computer revealed templates for making fraudulent Indiana handgun-carry permits.

Mr. Spears was then charged with five federal crimes: (1) aiding and abetting an attempt to acquire a firearm by fraud in violation of 18 U.S.C. §§ 2 and 922(a)(6) arising from Payne's attempt to purchase a firearm using the fake handgun permit; (2) aggravated identity theft in violation of § 1028A(a)(1) stemming from Spears's sale of the fake handgun permit to Payne ; (3) producing false identification documents in violation of § 1028(a)(1); (4) unlawfully possessing five or more false identification documents in violation of § 1028(a)(3); and (5) possessing an implement designed to make a forged security in violation of 18 U.S.C. § 513(b).

Though things broke bad for Mr. Spears for most of these charges - he was convicted by a jury for all the charges and sentenced to 34 months (10 months on everything but the aggravated identity theft, and 24 months for that) - in United States v. Spears, the Seventh Circuit reversed on the charge for having five or more false identification documents!

For the government to win on a violation for having five or more false identification documents, they have to show that he had five or more documents that meet this definition:

a "false identification document" is defined as "a document of a type intended or commonly accepted for the purposes of identification of individuals" that "is not issued by or under the authority of a governmental entity" but "appears to be issued by or under the authority of . . . a State."

So, basically, the document has to look like it's within the ballpark of being a legitimate fake ID.

The Seventh Circuit quoted the Fourth Circuit on how to think of this:

A "false identification document" within the meaning of § 1028(d)(4) is "an identification document that, although not issued by or under the authority of the [government], nonetheless appear[s] to a reasonable person of ordinary intelligence to be issued by or under the authority of the [government]." United States v. Jaensch, 665 F.3d 83, 91 (4th Cir. 2011). The document need not be an exact replica of a government-issued identity card, see id. at 94-95; United States v. Fuller, 531 F.3d 1020, 1025-26 (9th Cir. 2008), but it must at least appear to be government-issued and of a type commonly accepted for identification.

So, if the ID is too far from a real ID, it can't be a fake identification document.

Or, said another way, if you're really bad at making fake ID's, it's not against (this) law to make them.

Here, the government introduced color photocopies of fake driver's licenses. The Seventh Circuit said these clearly don't count:

color photocopies on 8.5-by-11-inch paper of what appear to be Indiana driver's licenses. These two exhibits are not false identification documents under the statutory definition. No reasonable person would say that a photocopy of a driver's license "appears to be" issued by or under the authority of a State, and photo- copies of driver's licenses are not commonly accepted for identification.

Perhaps more as an insult to Mr. Spears craft, the Seventh Circuit also rejected other purported identification documents:

their production value is what one might expect if an elementary-school student created an identification card as a toy. They have the thickness of laminated pieces of paper, not state-issued driver's licenses, and their picture quality is laughably bad. No reasonable person making even a cursory examination of these "driver's licenses" would think they are state- issued.

With that denigration of Mr. Spears craft, the Seventh Circuit remanded the case for resentencing.

What are the implications of this case for McLovin'?

Warning - NSFW if where you work isn't F-word friendly:

Perhaps Ramie Marston was confused?

She filed for bankruptcy on her own - without a lawyer.

When you file for bankruptcy, you have to fill out a lot of paperwork. Here, Ms. Marston was asked what other names she'd used in the past.

She did not disclose the names "Susan Blake" or "Kristy Kromer" as names that she'd used in the past. These were the names of some of her friends.

Yet Ms. Marston had, in fact, used those names herself; she used them when she applied for credit cards in her friends' names.

She was also asked to identify all of her creditors. She did identify Susan Blake as someone she owed money to. She didn't disclose that she might owe credit card companies money based on the charges she made in her friends' names.

The bankruptcy trustee challenged Ms. Marston's petition, so she withdrew it.

Then she was indicted for bankruptcy fraud for not disclosing that she used her friends' names and for not revealing the debt to the credit card companies from using her friends' names.

A funny thing happened at trial. Instead of introducing evidence about what happened with Susan Blake, the prosecutor agreed to a stipulation drafted by defense counsel.

As the First Circuit describes it in United States v. Marston:

the government, instead of presenting a full scale case, accepted a stipulation in which Marston admitted inter alia that she had possessed credit cards bearing the names of both Marston and Blake, that she made purchases with those cards never authorized by Blake, and that the "fraudulent liabilities incurred in Blake's name by Marston totaled approximately $61,545."

The district court judge told the prosecutor not to agree to such a stipulation. Yet the prosecutor agreed.

In any event, Ms. Marston was convicted of all four counts of the indictment and sentenced to 37 months in prison.

Count Four of the Indictment is the one that dealt with the credit card debt relating to Susan Blake.

On appeal, Ms. Marston's lawyer argued that the evidence wasn't sufficient to convict her of that count.

In the First Circuit, and others,

A false oath conviction under 18 U.S.C. § 152(2) requires the government to prove (1) the existence of a bankruptcy proceeding; (2) that the defendant made a false statement in that proceeding under penalty of perjury; (3) that the false statement concerned a material fact; and (4) that the defendant made the false statement knowingly and fraudulently.

The statement in Count 4 that was allegedly false was that she didn't owe the specific credit card companies that issued the fraudulently procured credit cards that Ms. Marston ordered using Susan Blake's name. (or, rather, she didn't list them on a part of the form that she said she had filled out completely - which amounts to the same thing).

The court of appeals found that the government had failed to prove that Ms. Marston's statement was false.

The only evidence of Ms. Marston's credit card fraud involving Susan Blake came from the stipulation. Yet the stipulation just said that the charges happened, were fraudulent, and involved Susan Blake.

The stipulation didn't say that the debts were still outstanding at the time the bankruptcy petition was filed.

As the First Circuit said,

the missing element is proof that at the time that the bankruptcy petition was filed, there were still extant claims against Marston. The stipulation quoted above was enough to prove beyond a reasonable doubt that claims against Marston had arisen when the unauthorized purchases were made; but the prosecutor accepted a stipulation that nowhere said that these claims remained unpaid at the time Marston filled out the bankruptcy forms.

Because there was no proof on this essential part of the element of falsity, the case was remanded for resentencing.

Gerard Sasso made some bad decisions.

As humans have for thousands of years, he enjoyed stargazing. He also had an odd habit of collecting laser pointers - perhaps inspired by that scene in the 1985 Val Kilmer film "Real Genius" where a laser leads to an improbably awesome party.

Mr. Sasso's use of a laser, though, didn't lead to a super cool party thrown by engineering students - even though it was not far from M.I.T. Instead, it led him to federal prison.

Rather, Mr. Sasso pointed one of his lasers at a police helicopter escorting a natural gas tanker through Boston Harbor.

Who knew a shopping trip to Staples could lead a person so awry?

The police take laser pointers very seriously in Boston. One of the officers in the chopper saw the laser light. He told the pilot to avoid looking directly at it. The pilot swerved to avoid the laser pointer, but was unsuccessful and, to quote the First Circuit, "the laser beam hit the aircraft, filling the cockpit with bright green light."

Things got more intense from there.

The troopers elected to abandon their escort mission of making sure natural gas doesn't explode in Boston Harbor, in order to track down the laser pointer menace.

As they flew toward their quarry in a zigzag pattern, the beam struck the helicopter several times. The final strike occurred when the helicopter was approximately half a mile away from the source.

The "final strike" indeed.

Finally, the helicopter called for ground support. Officers went to Mr. Sasso's apartment (which was where the helicopter told them to look).

Mr. Sasso was evasive with the officers. Eventually,

[One of the officers] noticed an item on the defendant's nightstand that appeared to be a laser pointer. When asked about the artifact, the defendant began to backtrack. According to [the officer], the defendant said, "I did it. It was me," and added that he was sorry and did not mean to cause all the commotion. The defendant explained that he had a penchant for stargazing, and that when he saw the helicopter he decided to "light it up." When he heard the helicopter directly overhead, he "got scared" and hid the laser that he had pointed at the helicopter in a baseboard heater.

Mr. Sasso then showed them where he kept nine other laser pointers.

He was charged with a violation of 18 U.S.C. § 32(a)(5) - performing an act that interferes with an aircraft with reckless disregard for human life.

Mr. Sasso went to trial and was convicted. He was sentenced to three years in prison.

His defense was that he admitted he used the laser pointer, but that it was just a laser pointer and he didn't mean to harm anyone or foresee that harm could result.

The jury was instructed that:

the government must prove that the defendant willfully interfered with a person engaged in the authorized operation of an aircraft. To act "willfully" in this context means to act deliberately and intentionally, on purpose, as opposed to accidentally, carelessly or unintentionally. If a person's actions interfere with an aircraft operator, you may infer that the person acted willfully if his actions were deliberate and intentional and had the natural and probable effect of interfering with the aircraft operator.

The defense objected - Mr. Sasso acted willfully to the extent that he intended to aim the laser, but he did not intend to interfere with the aircraft's operation.

The trial court disagreed and gave the instruction above.

The First Circuit, in United States v. Sasso, agreed with Mr. Sasso's lawyers. As the court of appeals said,

Reasonable jurors could understand from the quoted instruction that it would be enough to convict the defendant if they found that he deliberately pointed a laser in the helicopter's direction and interference occurred as a natural and probable consequence of that action, regardless of whether the defendant knew that interference was a natural and probable effect of the action. So viewed, the instruction did not adequately distinguish between negligently (but innocently) pointing a laser at objects in the sky without any intent to interfere with the operation of an aircraft and "willfully . . . interfer[ing]," which is the level of scienter demanded by the plain text of the statute.

And, with that, Mr. Sasso's conviction was vacated and the case sent back for a new trial.

James Mathurin had a hard adolescence.

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

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

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

The Federal Case

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

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

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

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

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

The Speedy Trial Act

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

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

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

The Government Did Not Stop Time

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

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

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

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

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

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

The Other Way To Stop Time

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

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

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

David Sklena and Edward Sarvey worked together in the futures pit of the Chicago Board of Trade.

On April 2, 2004, between 7:31 and 7:38 in the morning, the government contends that the two men engaged in a conspiracy to commit commodities and wire fraud.

Seven Minutes in April

April 2, 2004, it turns out, was a bad day. Thirty-five seconds into 7:31 a.m. the market price for Five-Year Note futures dropped in response to new unemployment numbers.

That price drop triggered sell orders - it required Sarvey to sell 2,474 of his customer's futures contracts at the best price he could find.

At 7:37, Sarvey sold 2,274 contracts to Sklena at a lower-than-market price. Sklena sold back 485 of them for a slightly higher, but still below-market price.

Both men then turned around and sold the contracts they had purchased for a market price on the open market. Skelna's sales brought in $1.6 million. Sarvey took in $350,000.

During the time that the two men made their below-market and off-market trades, others on the trading floor noticed the two men were huddled together talking. One has the impression that their conversation appeared almost conspiratorial.

The CFTC Investigates

They were investigated by the Commodity Futures Trading Commission (the CFTC for those in the know). The CFTC filed a civil complaint against them for making non-competitive trades.

As a part of that case, the CFTC took lengthy depositions from both men.

The Criminal Charges

The two men were charged in federal court with making noncompetitive trades, and conspiracy to commit wire and commodities fraud.

Before trial, Mr. Sarvey died. Because he died, the Department of Justice no longer prosecuted him.

As a part of his defense, Mr. Skelna wanted to use Mr. Sarvey's deposition testimony from the CFTC matter.

The district court said no - the deposition testimony was not admitted.

Mr. Skelna was convicted. He appealed, and in United States v. Skelna, the Seventh Circuit reversed and remanded based on the failure to admit Mr. Sarvey's deposition.

Hearsay and the Federal Government

The deposition is, of course, hearsay. Hearsay is generally not admissible. However, there are exceptions.

One exception is Federal Rule of Evidence 804(b)(1):

"[t]estimony that [(A)] was given as a witness at a . . . lawful deposition, whether given during the current proceeding or a different one; and [(B)] is now offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination" may be admitted where the witness has since become unavailable.

So, 804(b)(1) applies if the CFTC is the same party as DOJ for the purpose of the deposition and if the CFTC and DOJ had a similar motive between the deposition and later trial use of the testimony.

The Seventh Circuit was comforted that the CFTC and DOJ were close enough by the statutory framework:

the CFTC is an executive branch agency that, although possessing its own litigating authority, is required by statute to report on its litigation activities directly to the Justice Department (which as we said acts as the attorney for the United States). See 7 U.S.C. § 13a-1(a), (f)-(g). This statutory control mechanism suggests to us that, had the Department wished, it could have ensured that the CFTC lawyers included questions of interest to the United States when they deposed Sarvey.

The statutory structure and the way the attorneys were acting gave the court of appeals comfort that the CFTC and DOJ were the same party for Rule 804(b)(1) purposes:

the CFTC and the Department of Justice play closely coordinated roles on behalf of the United States in the overall enforcement of a single statutory scheme. Their interdependence is memorialized in the statute. Perhaps the point would be even more clear if the Department had litigating authority for the agency, as it often does, but we decline to hold that this is the sine qua non for finding that the United States and one of its agencies are in substance the same party. Functionally, the United States is acting in the present case through both its attorneys in the Department and one of its agencies, and we find this to be enough to satisfy the "same party" requirement of Rule 804(b)(1).

Moreover, the court of appeals concluded that DOJ and the CFTC had a similar motive:

Both were investigating the same underlying conduct with an eye to taking enforcement action, and so they shared the same motive to find out what went on. In fact, aside from the Department's need to prove the jurisdictional fact of the use of the wires, the agency and the Department alleged and needed to prove the same allegations, as a comparison of the CFTC's civil complaint and the indictment demonstrates. Furthermore, although the CFTC proceeding was civil in nature and the present prosecution criminal, the deterrent effect of a large civil penalty (like the one that the court ultimately imposed against Sklena) can be similar to that of a criminal sentence.

The Seventh Circuit then found that the error was not harmless. It vacated Mr. Skelna's conviction and remanded for a new trial.

It's very fashionable these days for United States Attorney's Offices to bring large indictments charging many people with involvement in a drug conspiracy.

They almost always get convictions.

Yet in the case of United States v. Gaskins, the D.C. Circuit - in an opinion written by a former federal prosecutor - ruled that the United States Attorney's Office indicted, and a jury convicted, a man for being a part of a drug conspiracy when no reasonable juror could have found that he was involved.

The government's case was pretty standard for a large drug conspiracy. They indicted 21 people, including Mr. Gaskins. The government had wiretaps. The government executed search warrants.

After the indictment, lots of people flipped and testified for the government. Many of them were working down from a mandatory life charge.

Again, in a drug case, this is pretty much par for the course.

Yet none of this evidence tied poor Mr. Gaskins to the conspiracy he was indicted for belonging to.

Here's how the D.C. Circuit described the government's best evidence based on a cooperator:

Briggs . . . testified that he was motivated to get his pending criminal cases resolved and to get out of jail. In January 2004, he entered into a plea agreement pursuant to which he was released to help the government obtain information regarding several suspects, including Gaskins. As a condition of release, he had to report to the FBI on a daily basis. Briggs testified that he had multiple contacts and conversations with Gaskins after he was released. Although he said that Gaskins helped him fill out job and housing applications, Briggs said that none of their interactions involved the subject of narcotics.

That Gaskins - helping a man get housing and a job. Still, not exactly Stringer Bell.

The government executed a search warrant at Mr. Gaskins' mother's house. As the D.C. Circuit said:

In addition, the government searched the apartment in southeast Washington where Gaskins lived with his mother. That search yielded neither drugs, nor records, nor any other evidence linking Gaskins to the conspiracy. Nor did it (or any other search) yield evidence that Gaskins had expensive jewelry, clothes, cars, or homes -- as searches did uncover with respect to other conspirators. The government's only evidence was that Gaskins lived in his mother's modest apartment.

And of the wiretaps:

FBI Special Agent John Bevington testified that the government conducted four months of wiretaps, from February 17 to June 26, 2004, during which it intercepted more than 14,000 calls. Recordings of many calls were played to the jury. Bevington and Detective Hall testified that two signature traits of a narcotics conspiracy are using coded language and asking conspirators to go to a land line, both of which could be discerned in several of the recorded calls. None of the calls by other alleged conspirators mentioned drugs or drug transactions in connection with Gaskins, whether in clear or in coded language. No call in which Gaskins participated mentioned drugs or drug transactions at all, in code or otherwise, and he was never asked to go to a land line.

See - that land line thing from Pulp Fiction is real.

The jury, nonetheless found him guilty.

Actually, to be more specific, the jury eventually found Mr. Gaskins guilty. The narcotics conspiracy he was alleged to be involved in had four separate objectives. The jury first found that he was guilty of the conspiracy, but that the government hadn't proven that he was seeking any of the objectives of the conspiracy. The district court, rightly puzzled by this, sent the jury back to resolve the conflict (over Mr. Gaskins' objection). The jury, then, returned a guilty verdict, determining that Mr. Gaskins was involved in the drug conspiracy.

Because the D.C. Circuit resolved Mr. Gaskins case based on the sufficiency of the evidence, and not based on the trial court's handling of the odd verdict form, the court of appeals did not resolve the question of what the court should have done with the odd jury determination.

Mr. Gaskins was ultimately sentenced to 22 years. The D.C. Circuit ordered him released and the judgment of conviction vacated after oral argument.

Think about that. Your government sought 22 years for a guy who wasn't on a wire, who no snitch said was involved, and who - when they searched his house - had no evidence of drugs there.

It's exceptionally rare for the Fourth Circuit to reverse a life sentence for someone who caused another person to die in the course of a botched bank robbery. And when the panel that heard the appeal has both Judges Wilkinson, and Niemeyer - whoa nelly - that's one whopper of a government error.

A Bank Robbery Gone Bad

September 28, 2008 did not turn out the way Larry Whitfield had planned.

His hope was to start the day with a bank robbery. He went to a credit union in North Carolina with a friend, a .357 magnum, and an assault rifle.

As he walked into the credit union's vestibule, a metal detector in the vestibule locked the inner doors of the credit union. Thwarted, Mr. Whitfield shook the doors of the financial institution.

They did not yield.

Mr. Whitfield and his companion sped away.

A Chase Gone Bad

Mr. Whitfield and his companion separated. Eventually, as the police pursued, he broke into the home of an elderly couple - Herman and Mary Parnell.

Ms. Parnell was home. Mr. Parnell was not.

Mr. Whitfield called a friend to come get him. Ms. Parnell was very upset - panicked and breathing oddly - to have Mr. Whitfield in his house.

Mr. Whitfield's friend later testified that Mr. Whitfield told Ms. Parnell at one point - "[M]a'am, just calm down. I'm probably more scared than you are, and I'm actually just trying to leave."

Ms. Parnell said she was short of breath and Mr. Whitfield tried to give her a glass of water and aspirin. His friend suggested that he call and ambulance. He didn't.

Ms. Parnell died of a heart attack.

Mr. Whitfield fled out the back door, and was caught by the police and arrested.

Mr. Whitfield Is Indicted

Mr. Whitfield was charged in federal court with attempted bank robbery, an number of weapons counts, and violating 18 U.S.C. § 2113(e).

Section 2113(e) is a strange one. Here's what it says:

Whoever, in committing [bank robbery or attempted bank robbery], or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.

As the Fourth Circuit explained in Mr. Whitfield's case, United States v. Whitfield,

[Section] 2113(e) encompasses three alternative offenses pertinent to this case -- penalizing a defendant who, in evading apprehension for an attempted bank robbery: (1) "kills any person" (the "killing offense"); or (2) "forces any person to accompany him without the consent of such person" (the "forced accompaniment offense"); or (3) "forces any person to accompany him without the consent of such person" and "death results" (the "death results offense").

Oddly, Mr. Whitfield's indictment did not charge him with each of these offenses - or even the third one. Instead, his indictment said,

LARRY WHITFIELD did knowingly enter and attempt to enter Fort Financial Credit Union . . . with intent to commit therein a felony affecting that credit union, in violation of 18 U.S.C. § 2113(a), . . . as set forth in COUNT ONE of this Indictment; and in avoiding or attempting to avoid apprehension for said offense, forced M.P. to accompany him without her consent, and killed M.P.

He was charged with violating the first and second offenses set out in section 2113(e), but not the third (the one that kind of obviously looks like it applies).

The Case Goes To The Jury

Mr. Whitfield's case went to trial.

Mr. Whitfield's counsel noted the error in how the indictment was written and how it did not include the third element. The district court was unmoved.

At the end of trial, the jury was instructed that there are two ways of violating section 2113(e) and,

[w]ith respect to the second way of violating this statute, if you find that the defendant forced Mary Parnell to accompany him, you must also decide whether that forced accompaniment resulted in Mary Parnell's death.

The jury found Mr. Whitfield guilty of forcing Mary Parnell to accompany him, and also found that Mr. Whitfield's forced accompaniment caused Mary Parnell's death.

At sentencing, the district court determined that Mr. Whitfield was subject to a mandatory life term for his conviction on the forcible accompaniment charge.

Mr. Whitfield was sentenced to life on the forcible accompaniment when death results charge - indeed, the judgment described the offense as "[f]orced accompaniment while attempting to avoid apprehension for an attempted bank robbery resulting in death."

He was sentenced to an additional 300 months on a number of other charges arising out of his attempted bank robbery and flight.

The Fourth Circuit Vacates Mr. Whitfield's Conviction

He appealed.

The Fourth Circuit held that the three offenses in set out in section 2113(e) are indeed three separate offenses:

[W]e are content to adhere to the Supreme Court's nomenclature and describe § 2113(e) as creating "separate offenses by the specification of distinct elements." See Jones, 526 U.S. at 252.15 More specifically, the killing offense requires proof that a defendant "kill[ed] any person." The forced accompaniment offense necessitates proof that a defendant "force[d a] person to accompany him without the consent of such person." And the death results offense -- although entailing the lesser-included forced accompaniment offense -- requires further proof that "death result[ed]."

Because Mr. Whitfield wasn't indicted for violating the separate "death results" charge, even though he was later convicted for it - and sentenced to life for it - his conviction and sentence violated his right to be indicted by a grand jury.

As the Fourth Circuit put it,

[B]y instructing on the uncharged death results offense, the district court constructively amended Count Four to broaden the possible bases for conviction beyond those presented to the grand jury. When such a constructive amendment is found, the error is fatal and reversible per se.

Though, Mr. Whitfield was convicted for a violation of section 2113(e) other than on the "death results" language.

And he'll be resentenced for that on remand.

The range is between 10 years and life.

Like many Americans, Meggan Alexander wanted to participate in the dream of home ownership. Like many Americans, Ms. Alexander had lost her job.

Unlike many Americans, Meggan Alexander signed documents at a real estate closing that said she was employed when she wasn't.

The government can be a stickler for proper paperwork. Because she signed these documents saying that she was employed when she wasn't, she was indicted for making a false statement with the intent to influence an FDIC-insured entity.

Fortunately for Ms. Alexander, the government is not always a stickler for its own paperwork, as the Eighth Circuit's opinion in United States v. Alexander shows.

One of the things the government has to prove in order to convict someone of lying in connection with a loan from an FDIC-insured institution is that the institution that was lied to is FDIC-insured.

This requirement isn't trivial - without it there is no federal jurisdiction for the crime. It's not dissimilar to this earlier jurisdictional case arising out of the great state of Iowa.

At trial, the government and Ms. Alexander stipulated that Bank of America is FDIC-insured.

The loan documents, however, showed that the lender was Bank of America N.A.

So, as the Eighth Circuit explained it,

in order to satisfy the jurisdictional element for purposes of section 1014, the government could demonstrate either (1) that Bank of America, N.A. was FDIC insured, or (2) that Bank of America was Bank of America N.A.'s alter ego so that Bank of America's FDIC-insured status was implicated in the case.

The government didn't meet the first requirement:

Alexander is correct that there is no evidence in the record to show that--absent a connection to Bank of America--Bank of America, N.A. or Bank of America Mortgage were independently FDIC insured. The only evidence of FDIC insurance was the stipulation signed by Alexander, which failed to include any mention of Bank of America, N.A. or Bank of America Mortgage.

This is presumably because the government thought it had a sufficient stipulation; it didn't think that anyone would argue that Bank of America is a different entity than Bank of America N.A. or Bank of America Mortgage.

The court of appeals describes the government's argument on the second point this way:

our review turns to whether there was sufficient evidence to prove that Bank of America, N.A. and Bank of America Mortgage were alter egos of Bank of America so that Bank of America's FDIC-insured status extended to them. This is familiar territory for the government, as it rested on this "same entity" theory at trial. During their testimony, bank employees and other witnesses involved in the loan process used the terms "Bank of America," "Bank of America, N.A.," and "Bank of America Mortgage" interchangeably. Likewise, although the loan application and several other documents in evidence refer to "Bank of America, N.A." as the lender, other documents, including one of Alexander's hardship letters, occasionally reference "Bank of America" as the lender. The government insists that all three "Bank of America" titles "refer to the same entity and that was the entity to which defendant made her false statements." The government asks that the FDIC-insurance stipulation be read broadly to encompass all three "Bank of America" entities.

The Eighth Circuit, though, wasn't persuaded:

the evidence presented in the instant case does not show how the three different entities are structured or how funds were disbursed. No evidence was offered to show that the mortgage financed by Bank of America, N.A. was actually financed by funds from Bank of America. The witnesses called by the government were low-level employees, none of whom were shown to be qualified to testify about the corporate structure of the different entities. The fact that employees used the terms "Bank of America," "Bank of America, N.A.," and "Bank of America Mortgage" interchangeably in their testimony and on internal correspondence does not establish that the entities are one and the same.

And, with that, Ms. Alexander's conviction for making false statements to the Bank of America N.A. was reversed because there wasn't evidence that Bank of America N.A. or Bank of America Mortgage were FDIC-insured.

Sadly, Ms. Alexander was convicted on another count involving HUD insurance for the mortgage and there's no question that HUD is a federal program.

But at least she gets to be resentenced without the FDIC count.