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April 26, 2013

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

October 29, 2007 started bad for Cortez Fisher.

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

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

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

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

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

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

He was sentenced to ten years in prison.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

November 26, 2012

The ABA Law Journal Thinks This Is One of the 100 Best Law-Related Blogs In The Land

I'm grateful that the ABA Law Journal has, again, decided this is one of the 100 best law-related blogs in the country.

That's right, your very own Federal Criminal Appeals Blog is on the 2012 ABA 100 list.

Here's what the ABA Law Journal said about the blog:

Described by fans as informative, useful and insightful with a dose of nonsnarky humor, D.C. lawyer Matt Kaiser exclusively covers cases involving defendants successful on appeal. Reader Dan Kaplan of the Federal Public Defender's Office in Phoenix says, "I get regular summaries of criminal appellate decisions in my circuit (the 9th), but this blog supplements that with interesting decisions from other circuits. The summaries are thorough but short and very readable, and best of all, they include only defense wins. I have on a few occasions cited in briefs cases I learned about from this blog."


vote_rec_orange.jpg

This means three things:

(1) I am worried the editors at the ABA Law Journal are still drinking.

(2) I owe Dan Kaplan at least a drink (redeemable in Washington, D.C.).

(3) You can vote for this Blog to win the "Criminal Justice" category. Voting takes place here. (or you can click the big button above).

Thank you, very much, to everyone who lobbied the ABA Journal on my behalf. Thanks also to the friendly folks at the ABA Journal for reading my stuff and liking it.

November 15, 2012

How Not To Do Legal Research

I like to work with other lawyers when the case warrants it. In fact, it's rare that I don't have a few cases in the office where I have co-counsel.

Normally, this is good because I get to see how others are handling the same issues I am. I get to learn what other people are doing and I have an opportunity to improve my game.

There are exceptions, though. Three times this calendar year, I've been working with a lawyer at another firm and I've stumbled upon an inexcusably lazy way to do legal research. More on that in a second.

Two trends in lawyer culture are mixing to create a storm of bad lawyering.

68915_law_education_series_1.jpgThe Rise Of Law-Related Stuff On The Internet

First, lawyers and law firms want to do well in search results. To do well in search results requires lawyers to generate content (formerly known as "writing"). Lawyers want to reach out to potential clients with news and information that's relevant to these potential clients.

As a result, lawyers are pumping out articles and blog posts and other marketing materials about how the law works.

On balance, I think this is good. Citizens ought to know how the law works. If a lawyer can't explain a concept in a blog post, she likely can't explain it in a client meeting either.

Yet now the internet is drowning in lawyer marketing material (also cat videos). Some of this material is really good. Some of it is questionable.

Little of it has the same rigor or analytical depth of a brief. Blog posts are rarely cite-checked. Marketing white-papers are not written to go to judges.

More importantly, just about every legal rule has some exception, or limit to its application. A marketing article isn't written to cover every nuance. It's written to get a potential to say "Hey, the person who wrote this knows sort of what she's talking about. I should call her."

That's a very narrow purpose.

The Rise of Google

The second trend creating a mass of bad lawyering is the rise of Google.

Everyone uses Google. I no longer know the local pizza delivery place's phone number, because I just Google it each time I need pizza. Google has become the place people go to for knowledge.

As a result, even good lawyers now routinely go to Google for the answer to a legal problem instead of Westlaw or Lexis. Heck, sometimes I'd rather use Google which is at my fingertips, than turn and reach two feet for a book.

The problem is with what you find when you Google.

If you need a cite, Googling "18 U.S.C. 2319" to get to the criminal copyright statute makes sense. Everyone understands that a statute is an accurate statement of the law. Sure, there may be some interpretation you want to look at from the case law, but if you just want the plain language of the statute, Google will get you there.

It's different, though, if the question is more nuanced. If you need to know how criminal copyright prosecutions work, Googling "criminal copyright" may, or may not, get you to something reliable (though it does get you to this kind of cool Maggie Gyllenhaal video called "Copyright Criminals").

Google is only as good as what it gets you. And these days, because of the rise of law firm marketing on the internet, Google is more likely to get you to some law firm's quick discussion of a topic as it is to get you to anything rigorous or reliable.

Law firm marketing material shows you the contours of what the law looks like, but it's nothing you'd want to lean on too heavily.

Google Is Not The End Of Legal Research

Which brings me back to where I started. Three times this year I've been working with other lawyers. We've been trying to figure out the answer to a subtle legal question.

Then, the other lawyer tells me that he or she has figured out the answer and sends me a link to a two-page marketing article from some law firm in, say, St. Louis.

This is not how legal research ought to be done.

Law firm marketing material is not meant to bear the weight of a case or a statute. I'm waiting to see a successful malpractice suit because a lawyer relied on some other lawyer's blog or webpage when giving advice to a client.

If you'd like to use Google as a way of starting real research into an issue - Googling to find a law firm marketing article about a topic, then look at the cases cited in the article - fine. But a lawyer is not done simply because Google sends back an answer from some yokel with a Wordpress blog.

For lawyers, who are chronically busy, sending in a Google search is a tempting prospect. But it's also insane. If you wouldn't cite it to a court, it isn't reliable as a part of a research project.

So, if you're reading my blog, The Federal Criminal Appeals Blog, and you think there's a statement of the law, please don't think that you've looked it up.

April 13, 2012

Chief Judge Kozinski Celebrates The Diversity Of Computer Misuse

If you're reading this at work, you may be committing a federal crime (depending on where you are reading it, and you're employer's policies about reading the internet). Here's hoping you don't get charged!

If you'd willing to brave the threat of Johnny Law, or you're at home, please read on.

Mr. Nosal Wanted To Start A New Company

David Nosal worked at an executive search firm. He left to start a competitor. He had some of his friends log in to his prior employer's computer to download confidential information about that company's business contacts. He used these contacts to launch his new company.

Importantly, the employees were allowed to log on to the database, but the company had a policy that prohibited them from sharing the company's information.

Mr. Nosal was charged in federal court with violating the Computer Fraud and Abuse Act (the CFAA, for those in the business), 18 U.S.C. § 1030(a)(4). He was also charged with a number of other federal crimes.

Mr. Nosal filed a motion to dismiss the CFAA violation. The district court granted it. The government appealed.

In United States v. Nosal, an en banc Ninth Circuit affirmed, in an opinion by Chief Judge Kozinski.

1362248_businessman_with_the_notebook_3.jpgThe Computer Fraud and Abuse Act

The CFAA criminalizes accessing a computer in a way that "exceeds authorized access." "Exceeds authorized access," in turn, is a defined term in the statute, in subsection (e)(6):

the term "exceeds authorized access" means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter

Mr. Nosal's friends were allowed to access their company's computer. They simply weren't allowed to share the information that they found on the computer outside of the company. Does such conduct exceed the authorized access as the term is used in the CFAA.

Here's how Chief Judge Kozinski framed the issue:

This language can be read either of two ways: First, as Nosal suggests and the district court held, it could refer to someone who's authorized to access only certain data or files but accesses unauthorized data or files--what is colloquially known as "hacking." For example, assume an employee is permitted to access only product information on the company's computer but accesses customer data: He would "exceed[ ] authorized access" if he looks at the customer lists. Second, as the government proposes, the language could refer to someone who has unrestricted physical access to a computer, but is limited in the use to which he can put the information. For example, an employee may be authorized to access customer lists in order to do his job but not to send them to a competitor.

Of course, the way we interpret statutes these days is clear - if the language is unambiguous, you go with that language. If it isn't, you revert to a number of rules about statutory construction.

The Language of the Statute

The government had to argue that the statute is unambiguous - that it only supports a reading that bars both accessing information that a person isn't allowed to access and using any of the accessed information in a way that the person isn't allowed to.

The court, though, found that the statute can plausibly be read to limit just access beyond that allowed - just going onto a part of a database that a person doesn't have permission to be in.

As the court summarized it,

the government argues that [the company]'s computer use policy gives employees certain rights, and when the employees violated that policy, they "exceed[ed] authorized access." But "entitled" in the statutory text refers to how an accesser "obtain[s] or alter[s]" the information, whereas the computer use policy uses "entitled" to limit how the information is used after it is obtained. This is a poor fit with the statutory language. An equally or more sensible reading of "entitled" is as a synonym for "authorized." So read, "exceeds authorized access" would refer to data or files on a computer that one is not authorized to access.

So, phew, the statutory language is ambiguous. Now we can get to the fun stuff (especially when Kozinski is writing).

How Absurd Is The Government's Reading Of The Statute?

Here's the starting point:

If Congress meant to expand the scope of criminal liability to everyone who uses a computer in violation of computer use restrictions -- which may well include everyone who uses a computer -- we would expect it to use language better suited to that purpose.

Chief Judge Kozinski, in a style reminiscent of his opinion on the Stolen Valor Act, celebrates computer misuse.

Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by g-chatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes. While it's unlikely that you'll be prosecuted for watching Reason.TV on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit.

By way of background, the CFAA has a separate provision that criminalizes exceeding authorized access to any computer that's connected to the internet. That provision, subsection (a)(2)(C), doesn't require that the person have any particular intent. So it doesn't have to be in furtherance of any fraudulent or otherwise wrongful activity.

Though as the opinion points out,

This concern persists even if intent to defraud is required. Suppose an employee spends six hours tending his FarmVille stable on his work computer. The employee has full access to his computer and the Internet, but the company has a policy that work computers may be used only for business purposes. The employer should be able to fire the employee, but that's quite different from having him arrested as a federal criminal. Yet, under the government's construction of the statute, the employee "exceeds authorized access" by using the computer for non-work activities. Given that the employee deprives his company of six hours of work a day, an aggressive prosecutor might claim that he's defrauding the company, and thereby violating section 1030(a)(4).

But, assume the intent requirement isn't there and we're dealing with subsection (a)(2)(C). If so,

[b]asing criminal liability on violations of private computer use polices can transform whole categories of otherwise innocuous behavior into federal crimes simply because a computer is involved. Employees who call family members from their work phones will become criminals if they send an email instead. Employees can sneak in the sports section of the New York Times to read at work, but they'd better not visit ESPN.com. And sudoku enthusiasts should stick to the printed puzzles, because visiting www.dailysudoku.com from their work computers might give them more than enough time to hone their sudoku skills behind bars.

The effect this broad construction of the CFAA has on workplace conduct pales by comparison with its effect on everyone else who uses a computer, smart-phone, iPad, Kindle, Nook, X-box, BluRay player or any other Internet-enabled device. The Internet is a means for communicating via computers: Whenever we access a web page, commence a download, post a message on somebody's Facebook wall, shop on Amazon, bid on eBay, publish a blog, rate a movie on IMDb, read www.NYT.com, watch YouTube and do the thousands of other things we routinely do online, we are using one computer to send commands to other computers at remote locations.

I suppose that's one reason to turn the wireless off on your Kindle at work.

It gets worse though,

Our access to those remote computers is governed by a series of private agreements and policies that most people are only dimly aware of and virtually no one reads or under- stands.

For example, it's not widely known that, up until very recently, Google forbade minors from using its services. See Google Terms of Service, effective April 16, 2007--March 1, 2012, §2.3, http://www.google.com/intl/en/ policies/terms/ archive/20070416 ("You may not use the Services and may not accept the Terms if . . . you are not of legal age to form a binding contract with Google . . . .") (last visited Mar. 4, 2012).9 Adopting the government's interpretation would turn vast numbers of teens and pre-teens into juvenile delinquents-- and their parents and teachers into delinquency contributors.

I suppose I should talk to a criminal defense lawyer before I tell anyone about a Google search I did with my son as a part of his schoolwork (and because we were curious who would win a fight between a shark and an octopus (spoiler alert - the octopus)).

But, the opinion's bottom line is that we're all guilty of stepping over the line - surely this stuff can't be a federal crime?

The Department of Justice's response was familiar - "Trust us". Judge Posner rejected this a few weeks ago. Chief Judge Kozinski does too:

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.

It's a lovely opinion. I could block quote the whole thing.

The Dissent

The dissent, by Judge Silverman, begins in the most curious way:

This case has nothing to do with playing sudoku, checking email, fibbing on dating sites, or any of the other activities that the majority rightly values.

The majority rightly values "fibbing on dating sites"? It must be hard to be in dissent against a writer like Judge Kozinski, but do you really want to concede the point that way?

In any event, the district court was affirmed, and the case remanded so Mr. Nosal could be prosecuted for the remaining counts.

I should note, for readers in the 11th, 5th, and 7th Circuits, that it appears that your federal circuit courts do not agree with Chief Judge Kozinski's analysis. Apparently, in those parts of the country, you might be prosecuted for using your work computer for nonwork purposes.

Perhaps you should have waited to read this until you get home.

January 3, 2012

The Police Cannot Take A Knife To Your Penis On A City Street


Perhaps January 24, 2009 was a normal day for Joseph Edwards. He woke, tied some crack cocaine around his penis, threatened his ex-girlfriend with a gun, and went out into the Baltimore night.

His ex-girlfriend, however, had complained to the police about his threat. The police began to prepare an arrest warrant and went into the streets to look for Mr. Edwards. Around 11 p.m., the officers found him.

1142077_knife_2.jpgThe police officers asked Mr. Edwards to approach them. He did, calmly. He "looked like he was just walking down the street" according to the officers. He didn't act like a man with a gun - he wasn't fussing with his waistline. He also didn't look like he was involved in drug dealing; the officers didn't see him doing any hand-to-hand transactions before they called out to him.

The officers were worried that Mr. Edwards might be armed though, because of his ex-girlfriend's statement. They put handcuffs on him and patted him down. They seated him on a curb.

The police soon heard that the arrest warrant had been issued. Mr. Edwards was put under arrest, and a police van came to where Mr. Edwards was. Right before being placed in the police van, Mr. Edwards was searched again.

Mr. Edwards, at that point, was on a city sidewalk, illuminated by a streetlight. The police officers loosened Mr. Edwards belt, and pulled his pants and underwear away from his body. The officers shined a flashlight down the back and front of his pants. When they shined the light down the front of his pants - with his underwear pulled back as well - the officers saw the crack cocaine tied to Mr. Edwards penis.

The officer who saw the drugs put on a glove. While another officer held Mr. Edwards' pants and underwear open, and while Mr. Edwards was cuffed from behind, the first officer reached into Mr. Edwards pants with a knife, and cut the drugs off of his penis.

The Fourth Circuit's opinion notes that "[n]othing in the record suggests that Edwards suffered any physical injury as a result of this action."

Mr. Edwards is Charged and Convicted

Mr. Edwards was charged with possession of crack cocaine with intent to distribute. He challenged this search and seizure as not consistent with the Fourth Amendment. The district court denied his motion. Mr. Edwards entered a conditional guilty plea - preserving his right to appeal the motion to suppress the evidence cut off of his penis.

The Fourth Circuit reversed the district court in United States v. Edwards - the Fifth Fourth Amendment opinion in favor of a person charged with a crime in the year 2011 (see here and here).

Is Looking Down Someone's Pants A Strip Search?

The key legal question in Mr. Edwards's case is whether the search of Mr. Edwards was a strip search, or, as strip searches have been otherwise characterized, as a "sexually invasive search."

The government argued that because the only part visible to the public was Mr. Edwards "dip" or waistband area, this wasn't a strip search. The district court appears to have accepted this argument.

The Fourth Circuit disagreed. It held that a strip search is a search where clothing is moved to permit visible inspection of the naked body - the person doesn't have to be completely naked.

It was also persuaded by the facts of the most recent Supreme Court strip search case, Safford United School District v. Redding. The court of appeals noted that there,

The Court held that a school official's order that a student "remove her clothes down to her underwear, and then 'pull out' her bra and the elastic band on her underpants. . . . in the presence of the two officials who were able to see her necessarily exposed breasts and pelvic area to some degree," constituted a search that could be fairly called a "strip search." Id. at 2641

Can The Police Cut Things Off A Person's Penis On A City Street?

Because the search of Mr. Edwards was a sexually invasive search, its reasonableness under the Fourth Amendment gets a particular kind of scrutiny.

The Fourth Circuit held that this search simply does not survive the heightened scrutiny. The Fourth Circuit notes that the officer,

cut the sandwich baggie off Edwards' penis with a knife while Edwards was restrained in handcuffs, an act that could only cause fear and humiliation.

Moreover, the court of appeals was disturbed by how dangerous taking a knife to the penis of a handcuffed man on a city street is.

When [the officer] discovered the sandwich baggie containing suspected contraband tied to Edwards' penis, [the officer] dropped his flashlight, obtained a knife, and put on gloves, while another officer continued to hold open Edwards' pants and underwear. Without the aid of the flashlight, [the officer] took the knife and cut the sandwich baggie off Edwards' penis. We conclude that [the officer]'s use of a knife in cutting the sandwich baggie off Edwards' penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness

The conviction was reversed and the evidence was suppressed.

What Does This Mean For Gender-Based Judging?

I can't help but think of what this case says about gender and identity in judicial nominations. Of course, the Fourth Circuit has to look to Safford Unified School District v. Redding - it's a very recent strip search case. That case involved the strip search of a 13-year old girl.

But something else about Safford and Mr. Edwards's case deserves attention.

Justice Ginsberg, talking about Safford, criticized her colleagues for never having been that age and that sex. She is quoted as having said that "I didn't think that my colleagues, some of them, quite understood."

This came up in the midst of Justice Sotomayor's nominations fight, her "wise Latina" remarks, and a national conversation about gender and judging.

Mr. Edwards case is, perhaps, a counterpoint to the concern that if you haven't had the life experience unique to a person affected by a ruling you can't impartially judge the issue. Here, both Judges in the majority in the Fourth Circuit's ruling were female - as was the district judge for that matter. The only male judge to consider the case wrote a dissent.

Or maybe it doesn't require a penis to know that it's not a good idea to put a knife to one on a city street when its owner is handcuffed behind his back.

September 7, 2011

How The Eighth Circuit Saved Christmas

Legislators like to punish repeat offenders. That's just good politics - "Mike Sloss puts repeat offenders behind bars" sounds better than "Mike Sloss has a balanced policy on recidivism" when put on a bumper sticker.

So it isn't surprising that the Armed Career Criminal Act, located at 18 U.S.C. S 924(e)(1), jacks up the penalties for a person convicted of being a felon in possession of a firearm if the person who is convicted has at least three prior convictions for drug dealing or a violent crime.

In a nod to fairness, though, Congress does require that those prior convictions be committed "on occasions different from one another."

What counts as an "occasion" though? The Eighth Circuit, in United States v. Willoughby, faced exactly that question.

Mr. Willoughby pled guilty to being a felon in possession of a firearm. At sentencing, the district court had to figure out if one of Mr. Willoughby's prior convictions counted as one prior conviction, or as two. He had been convicted of two counts of conduct in the one previous case.

According to the police report in the prior case, an undercover cop went with a confidential information to Mr. Willoughby's house. The affidavit in support of the complaint said that when the officer and CI got there,

Michael Willoughby was sitting in a chair in the northeast corner of the living room. . . . Willoughby was wearing a tan/off white t-shirt and blue jeans. He was also wearing red suspenders hanging down by his legs. These are commonly referred to as ["]braces["] by Neonazi/skinhead groups.

Undeterred by the menacing "braces", the law enforcement officer and the CI asked Mr. Willoughby if they could by drugs. Willoughby left the room to get some drugs.

When Willoughby returned to the living room he had two sandwich bags containing a green leafy substance in his hand. He started to give both to the C/I. I held out my left hand. Willoughby gave one to the C/I then gave one to me. The C/I gave Willoughby the $25 I gave him. I gave Willoughby $50. I smelled the contents of the bag Willoughby gave me. It smelled and looked like marijuana. We immediately left the house.

The district court found that this course of conduct was actually two different "occasions." Because handing the drugs to the undercover cop was a different "occasion" than handing drugs to the CI, this transaction gave rise to two drug offenses. Willoughby was, therefore, determined to be an Armed Career Criminal. As a result, he faced a mandatory minimum sentence of fifteen years.

If Willoughby had handed all the drugs to the CI, perhaps it would have been one "occasion." But that quarter of a second between when the CI took the drugs and when the undercover cop did, Willoughby restarted the "occasion" clock, according to the sentencing judge.

So many "occasions"

This makes me wonder what holidays, and other special "occasions", are like at the district judge's house. Personally, I like special "occasions" because they're a time with family. Hearing of the district court's approach to the term "occasion" in our shared language, though, makes me think that I'm wrong.

Apparently, at Thanksgiving, when I take a piece of turkey, it's a different "occasion" than when I take the mashed potatoes. And there's no "occasion" where I get to eat with my family all gathered together - by the time my dad takes his food, it's already a different "occasion" than when my son did.

No wonder so many people feel lonely around the holidays.

Happily, the Eighth Circuit rejected an interpretation of "occasion" that leads to such isolation.

The Eighth Circuit held that Willoughby's drug dealing was a single "occasion" because "the sale was, in actuality, one 'continuous course of conduct.'"

There are strict limits, though, to what counts as one "occasion" even for the Eighth Circuit. The court of appeals explained

"'[c]rimes occurring even minutes apart can qualify [as separate 'occasions'] if they have different victims,' thereby reflecting a lack of substantive continuity, 'and are committed in different locations,'

As guidance for the holidays, I think that means that if your dad and brother go out to the radial-arm saw in the garage to have a cigar and a glass of cognac, they aren't celebrating the same special "occasion" as the folks inside still finishing off the pecan pie. At least according to the Eighth Circuit.

Though that result, at least, seems consistent with my own intuitions.

September 2, 2011

A Man's Cleverness Reduces His Sentence By 14 Years: The Ninth Circuit, Apprendi, and Pleading Open

Stacy Hunt - a man with multiple prior convictions, who attempted to pick up a package of drugs at an airport in Alaska, flipped on others involved in the drug deal, then fled to California where he was rearrested - appears to have outsmarted the United States Department of Justice and a federal district court judge.

The case is United States v. Hunt, from the Ninth Circuit.

To see how Mr. Hunt was clever, you need to understand two rules of federal criminal law.

First, 21 U.S.C. S 841(a)(1) prohibits possessing drugs with the intent to distribute. The statute prohibits possessing any controlled substance - it doesn't get specific as to the type of drug.

The statutory maximums for section 841(a)(1) for the different kinds of drugs are set out at 841(b). The language is a bit baroque, but, basically, if you violate section 841(a) for possessing cocaine, the statutory maximum is 20 years. If you violate section 841(a) for possessing a Schedule V drug - like codeine , the maximum is 1 year. See section 841(b)(3).

So, to be clear, the first thing you need to know is that the statutory maximum penalty for possession with intent to distribute depends on the kind of drug involved. If it's codeine, the statutory maximum is one year: if it's cocaine, the statutory maximum is twenty-years.

Second, the Supreme Court of the United States held, in Apprendi v. New Jersey that,

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Mr. Hunt was charged with a violation of 21 U.S.C. S 841(a). He fired his lawyer and handled his case himself. He told the court that he wanted to enter a guilty plea - which is his right. He pled guilty to attempting to possess with intent to distribute a controlled substance.

Every plea has to have a factual basis for the judge to accept it - that is, the judge has to make sure that the person pleading guilty admits facts that meet each and every element of the crime.

Here's how the Ninth Circuit recaps the conversation that the court had with Mr. Hunt to make sure he admitted that he violated section 841(a):

First, in response to the court's inquiry regarding the elements of the offense, the Assistant United States Attorney (AUSA) stated that the government would need to prove at trial that Hunt "attempted to possess a parcel that contained a little over a kilogram of cocaine . . . and that he did so knowingly." Hunt stated that he understood those elements. After a few moments passed, the AUSA stated that he forgot to include the element that "Mr. Hunt attempted to possess that cocaine with the intent to distribute it thereafter." Hunt responded that he understood that additional element.

The court then restated the elements of the offense as follows: "So you attempted to possess cocaine, you knew it was cocaine or some illegal drug, and you did it with the intent to distribute. I guess those are the three elements, okay?"(emphasis added). Hunt replied, "To those elements, yes, I agree." Hunt then asked that the government state the elements one last time. The AUSA responded that the government would have to prove that "Mr. Hunt attempted to possess a parcel which contained a little over a kilogram of cocaine [and] . . . [w]e'd have to prove that Mr. Hunt's attempt to possess that cocaine was done knowingly and then we'd have to prove that he intended to distribute that cocaine after coming into possession of it." Hunt replied, "Yes I understand those elements. As far as the specific amount, I don't have personal knowledge of it . . . as I never opened the package and weighed it, but I do accept responsibility for whatever it was."

After the government stated the facts it expected to prove if the case were to proceed to trial--including that Hunt was found in possession of a package of over 500 grams of cocaine and later admitted that he had ordered the drugs in a written statement--Hunt said, "For the most part, the facts are true. I admit all the elements of 841(a)(1), and also as I said, I did not receive the package and open it, so I have no specific knowledge of what it contained other than it did contain a controlled substance, that I do know, and I did attempt to possess that controlled substance." Hunt also confirmed that he had intended to sell or give away the controlled substance. The court then asked the government, "That sounds sufficient, doesn't it, counsel?" The AUSA agreed that Hunt's admission was sufficient to supply a factual basis for the offense, and the court accepted Hunt's plea.

The presentence report determined that Mr. Hunt's crime involved cocaine. Accordingly, the presentence report found that the statutory maximum was 20 years.

The sentencing court adopted this finding, and determined that a 20-year statutory maximum applies to Mr. Hunt.

Mr. Hunt objected to this determination, and he had this exchange with the sentencing court:

HUNT: Also, when I made my objections, which has been overlooked, I also objected on the grounds that I did not at plea colloquy admit to a specific type of controlled substance, and I only agreed that I attempted to possess a controlled substance.

THE COURT: Right.

HUNT: Not crack, cocaine, or marijuana, or anything like that. I only agree to a Schedule II -- not even a Schedule II. I only agree to a controlled substance. So are you also making a finding for the type of drug also?

THE COURT: Yes, okay.

HUNT: So I'd like to make sure that my (indiscernible) objection is in for not just quantity but also as to type of drugs. And my position is that I should fall back to marijuana for no remuneration, with a statutory max of five years [sic], up -- under (b)(1)(D).

THE COURT: Very well. Boy, you're smart. You've made your record, but I -- you haven't changed my mind.

HUNT: Okay, that's fine.

The sentencing court heard evidence as a part of the sentencing proceeding. Folks testified that the drugs were cocaine. Mr. Hunt was sentenced on the assumption that the statutory maximum is 20 years. The court gave him a sentence of 15 years in prison.

On appeal, the Ninth Circuit found that the district court's sentence is not consistent with Apprendi. Because Mr. Hunt did not admit that the controlled substance was cocaine, rather than, say, codeine, and no jury found that the drugs were cocaine, the statutory maximum cannot be more than one year. As the Court held, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

Mr. Hunt's sentence was vacated, and the Ninth Circuit remanded the case with instructions to sentence Mr. Hunt with a statutory maximum of one year.

September 1, 2011

Why The Government Has To Prove They Don't Make Computers in Iowa

Rarely has conduct at a hockey game exposed such an interesting constitutional feature of federal criminal law.

Randy Johnson was taking photographs at a hockey game in Des Moines, Iowa. He was a professional photographer. His assistant, Dawn, was helping by removing memory cards from Mr. Johnson's cameras and transferring the photographs on those memory cards onto his laptop.

While she was downloading and organizing his photographs, she noticed a folder labeled "girls". They appeared to be photographs of girls - not women referred to in a mildly sexist way. Without going into details, photographs of such a nature as those are illegal to possess.

Dawn took the laptop to a police officer at the hockey game. The police officer took Mr. Johnson to the police station.

He was indicted for receiving child pornography and possessing child pornography. He went to trial and was convicted on both counts. The sentencing judge imposed a sentence of 120 months on the possession count and 136 months on the receipt count. The sentences were to run concurrent.

Mr. Johnson appealed his sentence on two grounds. First, that the evidence wasn't sufficient for a conviction on the receipt count. Second, if it was, double jeopardy bars a prosecution for both. (astute readers will recall seeing this issue before).

In United States v. Johnson, the Eighth Circuit reversed Mr. Johnson's conviction - why the conviction was reversed exposes an interesting constitutional trick at the core of many criminal statutes.

To find someone guilty of receipt of child pornography, you need to prove, basically, that the person received child pornography using something that crossed a state line. More specifically, the government has to prove that the person received child pornography

using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails

18 U.S.C. 2252(a)(2)

This is normally called the "jurisdictional element" - it's an element of the crime, and the only reason it's there is to make sure that Congress has the power to make the law.

Congress cannot make any law that it wants - rather it needs to make sure that every law it makes is made through the exercise of some power delegated by the constitution.

The most popular clause for Congress to use to justify it's power to make law is the Commerce Clause. This is the justification offered for Congress's power to enact the health care reform law, slowly making it's way to the Supreme Court. Justice Thomas has distinguished himself by wanting to roll back the breadth of the Commerce Clause. That Clause is kind of a big deal.

In federal criminal cases, the jurisdictional element, and the Commerce Clause in general, is very rarely a deal.

In Mr. Johnson's case, two errors combined, and, as a result, the government did not prove that Mr. Johnson's receipt of child pornography affected interstate commerce.

First, the government charged that the images were downloaded from the internet in the indictment. Downloading from the internet, a means of interstate commerce, counts. Yet, at trial, the government's own expert testified that he wasn't sure if the pictures came from the internet - there are a lot of ways to transfer files and he could have gotten them from a CD or DVD from someone else.

Second, the trial court gave the wrong instruction to the jury about the jurisdictional element. The judge instructed the jury that, to find Mr. Johnson guilty, they would have to find that

"[t]he material[s] containing the [illicit] visual depictions were produced using materials that had been mailed, shipped, or transported by computer in interstate or foreign commerce."

As the court of appeals explained, the Eighth Circuit has previously held that if the government shows that the computer used to download the contraband crossed state lines before the child pornography was downloaded, that's enough to meet this element.

And, of course, it's easy as rhubarb pie to show that a computer in Iowa crossed state lines - they don't make computers in Iowa.

Yet, because the government failed to introduce evidence that met the jurisdictional element, Mr. Johnson's conviction cannot stand.