Recently in Federal Crime Category

June 13, 2012

The Tenth Circuit Offers A Recent History Of Fake Drug Checkpoints And The Fourth Amendment

No one likes a liar.

Well, almost no one. Chief Judge Kozinski seems to like liars, at least some of the time.

But, generally, lying leaves a bad taste in our societal mouth. This is true even when the police do the lying.

1377780_highway_in_the_sky.jpgDriving Through Rural Kansas

Dennis Neff was driving through rural Kansas on the interstate around noon in late July. He passed signs that warned of a drug checkpoint ahead in Spanish and English. The signs warned that drug dogs were in use.

Instead of continuing to the checkpoint, Mr. Neff pulled off at the next exit onto Spring Creek Road.

Spring Creek Road is "a rural, gravel road speckled with residences but no businesses."

It may go without saying that Mr. Neff was not from around those parts.

The Police Lied

As it happens, there was no drug checkpoint. That would have taken time, resources, and money.

Instead, the police were watching who pulled off onto Spring Creek Road to avoid the drug checkpoint, especially cars that didn't seem to be from the area.

A trooper in a marked police car followed Mr. Neff's car after it turned off onto Spring Creek Road. Mr. Neff passed a driveway, then turned into a second driveway.

As he started to back his car out of the second drive way to turn around, back in the direction of the interstate, he saw the trooper.

The trooper said later that Mr. Neff looked startled to see him.

Mr. Neff tried to drive back toward the interstate, but the trooper ordered him to stop. The trooper approached Mr. Neff's car, pulled him out and gave him a pat down search. He found nothing.

Mr. Neff, pretty close to immediately after the pat down, told the trooper that he was carrying a crack pipe.

In a search of the car a few minutes later, they trooper found seven kilogram-sized bags of cocaine in the car.

The District Court Proceedings

Mr. Neff was charged with conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine.

He filed a motion to suppress, challenging his stop. At the hearing, the trooper explained why he thought he had reasonable articulable suspicion to stop Mr. Neff:

The reason I stopped him is they got off the interstate after seeing the drug check lane ahead signs, it was a Shawnee County car went into a rural Wabaunsee County area, pulling into a driveway where I don't think the vehicle belonged, the surprised look that the driver gave me, the short time that they stayed there, the surprised look that he gave me. I thought something is very suspicious about this that I didn't really care for or didn't like. Therefore, I stepped out of the vehicle when he pulled out. That's when I stopped them.

The district court thought that was good enough and denied the motion. Mr. Neff convicted and sentenced to five years in prison.

The Appeal to the Tenth Circuit

In United States v. Neff, the Tenth Circuit reversed.

The standard is well-known, but here's how the 10th Circuit explained it,

This case presents the familiar question of what level of proof is required to establish reasonable, articulable suspicion of criminal activity. As a general matter, "police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 30). In reviewing an investigatory stop for reasonable suspicion, we must consider "the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). While certain facts, taken in isolation, may be "quite consistent with innocent travel," these facts may, in the aggregate, add up to reasonable suspicion.

Of course, an actual drug checkpoint is unconstitutional - according to the Supreme Court in City of Indianapolis v. Edmond.

But the "ruse" drug check point is a clever twist - maybe that's ok!

As the Tenth Circuit explained, fake drug checkpoints v.1.0 worked like this:

In the wake of Edmond's rebuke of suspicionless drug checkpoints, some lawenforcement organizations began the practice of setting up ruse drug checkpoints. In what may be understood as the first generation of post-Edmond drug checkpoints, police would set up "drug checkpoint ahead" signs on the highway but then operate a full-scale checkpoint at the next (likely rural) off-ramp. The theory behind this alteration was that the police would have an element of individualized suspicion for every vehicle that took that ramp because there were few "legitimate" reasons for using an exit in an isolated area.

The Eighth Circuit said these are generally not ok - here's how the Tenth Circuit summarized the Eighth Circuit's opinion:

The court recognized that while the modified program differed from the practice in Edmond, the same constitutional problems persisted. While some drivers may have taken the exit to avoid police conduct, that did not "create individualized reasonable suspicion of illegal activity as to every one of them." Id. "Indeed, as the government's evidence indicated, while some drivers may have wanted to avoid being caught for drug trafficking, many more took the exit for wholly innocent reasons--such as wanting to avoid the inconvenience and delay of being stopped or because it was part of their intended route."

Mr. Neff was caught in version 2.0 of the fake drug checkpoint - one has to love the way law enforcement innovates. Version 2.0 is some signs in front of a rural road that no one would want to turn off on (perhaps including those who lived along it).

This turned out not to be ok.

The Tenth Circuit, agreeing with the Eighth Circuit, noted that

a driver's decision to use a rural highway exit after seeing drug checkpoint signs may serve as a valid, and indeed persuasive, factor in an officer's reasonable suspicion analysis. (listing as one valid factor that "the defendants took an exit which was the first exit after a narcotics check lane sign, and an exit that was seldom used"). But standing alone, it is insufficient to justify even a brief investigatory detention of a vehicle.

There wasn't anything else present that tipped things over the edge into reasonable articulable suspicion for the court of appeals. Indeed,

The connection between the checkpoint signs and Neff's decision to use the nearby Spring Creek Road exit was tenuous. There was no testimony that Neff suddenly swerved to make the exit, changed lanes abruptly, or otherwise drove erratically in response to the signs.

As to Mr. Neff's decision to turn around in a driveway:

Neff's decision to turn around in a driveway is plausibly evasive. The government suggests turning around in the driveway was part of Neff's pattern of evasive conduct, but without some evidence Neff was even aware of the trooper's presence, his turning around in the driveway provides minimal support to justify the stop. In contrast, the defendant in Carpenter realized he was being followed, made a U-turn, and pulled to the side of the road and stopped. Similarly, Neff's "startled look" adds little of value to the equation. Exhibiting surprise at the sudden appearance of an officer on a rural road is hardly comparable to . . . "nervous, evasive behavior."

So, the Tenth Circuit concluded that the stop was not permissible.

These facts, when taken together, do not fairly suggest that Neff was attempting to evade police. To be sure, an officer is "entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area's inhabitants." But even considering the totality of the circumstances, Neff's conduct conformed to the patterns of everyday travel.

Because he shouldn't have been stopped in the first place, Mr. Neff's conviction was vacated, and he is free to go.

According to the BOP webpage, he was released from custody on Monday.

December 16, 2011

Over-posting To Twitter Is Not A Crime

Longtime readers will recall the Twitter-stalking case. I've written about it here. The conspirators Volokh have written about it here. There's also been coverage in PC World, and the New York Times.

twitterybirds.jpgIn essence, the government indicted William Cassidy for sending a lot of tweets on Twitter. This was charged as a violation of a federal anti-stalking law. His defense lawyers argued that this was protected by the First Amendment.

Yesterday, Judge Roger Titus of the United States District Court for the District of Maryland, issued an opinion dismissing the indictment.

Most interestingly, Judge Titus explains both blogs and Twitter from the point of view of a colonist at the time of the drafting of the Bill of Rights. He explains that,

Because this case involves First Amendment issues, terms that were in use by citizens when the Bill of Rights was drafted may help in understanding the legal context of Blogs and Twitter. Suppose that a Colonist erects a bulletin board in the front yard of his home to post announcements that might be of interest to others and other Colonists do the same. A Blog is like a bulletin board, except that it is erected in cyberspace rather than in one's front yard. If one Colonist wants to see what is on another's bulletin board, he would need to walk over to his neighbor's yard and look at what is posted, or hire someone else to do so. Now, one can inspect a neighbor's Blog by simply turning on a computer.

Moving on to explain Twitter, Judge Titus says that,

Twitter allows the bulletin board system to function so that what is posted on Colonist No. 1's bulletin board is automatically posted on Colonist No. 2's bulletin board for Colonist No. 2 to see. The automatic postings from one Colonist to another can be turned on or off by the owners of the bulletin boards, but there is no mandatory aspect of postings on one Colonist's bulletin board showing up on the other's. It is entirely up to the two Colonists whether their bulletin boards will be interconnected in such a manner.

Finishing his description of the facts (and foreshadowing the legal analysis that will follow) Judge Titus writes that,

Blogs are of unlimited size in terms of content, but must be accessed one at a time. Twitter is limited to 140 characters, but allows unlimited voluntary connectivity with other users. That connectivity, however, is subject to change at the whim of a user who has the ability to "turn off" ("block" or "unfollow") communications from another user. Whether couched in terms of the Internet or Colonial bulletin boards, there is one consistent aspect of both eras. One does not have to walk over and look at another person's bulletin board; nor does one Blog or Twitter user have to see what is posted on another person's Blog or Twitter account. This is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed at another person, and that difference, as will be seen, is fundamental to the First Amendment analysis in this case.

Judge Titus has provided a useful framework for thinking about blogging and twitter in the context of the First Amendment. He only lacks an explanation of why anyone would spend time on Twitter in the first place - though perhaps Judge Titus can be forgiven for not taking that challenge (and my own lackluster use of Twitter may suggest that I think that question is unanswerable).

This is a strong win for the Federal Public Defender's office in Maryland - congratulations to those very talented lawyers.

Also, the New York Times wrote about the Titus opinion. That article is here. Volokh also has a post on the opinion here.

December 14, 2011

Safety Valve, Government Power, And Marijuana in the Woods of Arkansas


The federal government has powerful tools to keep a person from exercising his constitutional right to go to trial - like crushingly long mandatory minimum sentences.

An aside to illustrate the point

The government's use of mandatory minimums reminds me of the plea colloquy of a particularly honest client of mine.

The judge asked my client "Has anyone threatened you to get you to plead guilty?"

My client said yes.

1207444_courtroom_1.jpgThe judge, clearly taken aback, and, frankly, looking at me, said "Who threatened you? How?"

My client pointed at the prosecutor and said "They said I'll get mandatory life if I don't take a plea."

The judge, relieved, said "Oh, ok, but no one threatened you with any violence or anything, right?"

My client said right, and the hearing moved on.

I think my client's honesty may have faded at the end of the exchange. What the government was saying, in essence, is that he was being threatened with living in a cage until he dies. If he tries to escape, people will force him back into that cage.

What threat of violence to him could be more severe than that, shy of a threat of death? Yet the judge determined that the plea wasn't coerced.

How to Avoid A Mandatory Minimum

There are, generally, two ways to avoid a mandatory minimum sentence. The first is by helping the government put someone in prison. The other is called the "safety valve."

The "safety valve" is set out in 18 U.S.C. § 3553(f). It says, in essence, that if a person has little prior involvement with the criminal justice system, didn't lead the criminal enterprise that he's being sentenced for, didn't use a gun, and no one got hurt, that person can be sentenced as though the mandatory minimum didn't exist. With one additional catch.

The person has to truthfully tell the government everything that he did in connection with the crime he's being sentenced for.

If a person tries to help the government, the government will require that he gives up his right to a trial. Safety valve works a little differently.

Safety Valve and Trial

By its terms, the safety valve provision can kick in to help someone who was convicted at trial, rather than pleading guilty.

The Eighth Circuit's case of United States v. Honea shows exactly when and why safety valve should be used after a trial.

Never Let Your Kids Use Your Water

Mr. Honea had some land in Arkansas. It was next to some land that was untended, but owned by Deltic Timber.

Mr. Honea's daughter, Paula, was using Mr. Honea's land to get access to the untended Deltic Timber land. On that land, she was running a marijuana growth operation. Two guys slept on the land in tents, tending the plants. Paula ran water hoses from Mr. Honea's house to the marijuana operation, using massive amounts of water. Paula's husband, Mr. Honea's son-in-law, also helped with the operation.

Everyone except for Mr. Honea flipped and testified against him. He was charged with conspiracy to grow more than 1,000 marijuana plants, aiding and abetting in the possession with intent to distribute between 100 and 1,000 marijuana plants, and aiding and abetting the manufacture of more than 1,000 marijuana plants.

These charges carry a mandatory minimum sentence of ten years.

Before trial, when everyone was cooperating with the government, Mr. Honea's son-in-law wrote to Mr. Honea. He wrote:

Don't go to trial, just take a plea. You're a smart man, I know you'll make the right decision.

Mr. Honea's Trial

At trial, Mr. Honea took the stand. He said he knew nothing about the marijuana operation. He knew his son-in-law was harvesting rocks to resell to construction companies - which made sense to him since his son-in-law was a contractor - but he knew nothing about marijuana on the property.

Mr. Honea was convicted of aiding and abetting in the manufacture of more than 1,000 marijuana plants. He was acquitted of the other two counts.

Mr. Honea faced a mandatory minimum sentence of ten years.

The Judge Gets Concerned

After trial, and before sentencing, the trial judge was worried. He sent a letter to counsel for Mr. Honea and the government. As the court of appeals described it:

the district court sent the parties a letter order "to express [its] concern about the application of the statutory mandatory minimum sentence in this case and to ask whether Mr. Honea might qualify for the 'safety valve.'" The district court noted that Honea was "acquitted . . . on 2 of the 3 counts," including "the most serious charge--conspiracy to manufacture marijuana (Count 1)[,] as well as the charge of aiding and abetting the possession with intent to distribute marijuana (Count 3)." The court surmised that Honea's conviction for "aiding and abetting the manufacture of marijuana (Count 2)" was "based principally on the jury's finding that he permitted the other Defendants to cross his property to access the adjoining land where the grow operation was located and also provided them access to his water supply." According to the court, "no competent evidence" existed that "Honea profited in any way from the manufacture or distribution of the marijuana." The court also cited Honea's lack of a "criminal record.

The government responded that Mr. Honea was not safety valve eligible, because he had not met with them to disclose his involvement with the operation.

That was remedied - Mr. Honea met with the government and said that he didn't ask questions, but should have, and didn't know about any marijuana operation.

This was good enough for the court, but not for the government. The government argued that Mr. Honea's statement was inconsistent with the jury's verdict. As a result, the government thought Mr. Honea should not be eligible for a safety valve reduction.

The district court disagreed, sentencing Mr. Honea to the time he had originally spent in jail - 20 days.

The government appealed.

The Eighth Circuit affirmed, finding that there was no conflict between the jury's verdict and the safety valve proffer.

October 18, 2011

The First Circuit, Federalism, and the Department of Justice's Distaste For Rejection


The rumble in Rhode Island is over - Rhode Island won.

As frequent readers of this blog - and fans of the Interstate Agreement on Detainers - will recall, a fight broke out between Rhode Island and the United States Department of Justice over a man named Jason Wayne Pleau.

Rhode Island.jpgMr. Pleau appears to have killed a man in the course of a bank robbery. The bank was federally insured (like just about every other bank in the country). The United States Attorney's Office in Rhode Island decided to bring a case against Mr. Pleau based on the charges.

In the state system, Mr. Pleau reached an agreement to plead guilty in exchange for a life sentence without the possibility of parole. That's good enough for Rhode Island, which has a long history of opposition to the death penalty.

If Mr. Pleau is prosecuted in federal court, he can face the death penalty.

Mr. Pleau is in state custody. The U.S. Attorney's Office asked for him to be produced under the Interstate Agreement on Detainers. The Interstate Agreement on Detainers is an agreement between almost every state and the federal government over transfer of people for prosecution.* It's in the U.S. Code.

The Interstate Agreement on Detainers, though, lets a state say no. Rhode Island's Governor, Linc Chafee, did just that. Because Governor Chafee is strongly opposed to the death penalty, he refused to turn Mr. Pleau over to the federal government.

The U.S. Attorney's Office then sought a writ for Mr. Pleau to be turned over to be prosecuted. A writ of habeas corpus ad prosequendum is, in effect, an order issued by a United States District Court telling whoever is holding a person to send the person to that court so the person can be prosecuted. It's authorized by 28 U.S.C. § 2241(c)(5).

The United States District Court for the District of Rhode Island issued the writ.

The Governor, standing on the principle that he opposes the death penalty, refused to turn Mr. Pleau over.

The United States Department of Justice, standing on the principle that it really does not like to be told no, insisted that Mr. Pleau be turned over.

The dispute went to the United States Court of Appeals for the First Circuit.

The court of appeals, in a joint opinion in United States v. Pleau and In re Pleau, held that the United States has a choice - it can use the IAD or it can use a writ to get a prisoner.

But, once the government chooses which way to go, it is stuck with that choice.

Since the federal government asked under the IAD first, it was bound by Governor Chafee's refusal, and cannot later ask for a writ to trump the Governor's right to refuse under the IAD.

What's interesting about the case, though, is less the technical merits of the statutory question about whether the IAD or the statute authorizing writs wins. What's interesting is how the court of appeals looks at this issue. The appellate court could have decided this on narrow statutory grounds. Instead, it ran to the policy concerns.

This was the first time a governor of a state had denied a federal request for a person to be prosecuted - ever. The First Circuit spent a good deal of time on the legitimacy of Rhode Island's interest.

Noting that this is a symbolically important issue, the court of appeals quoted the Governor saying that

he could not "in good conscience" allow the federal government to ride roughshod over Rhode Island's "conscious[] reject[ion]" of execution as an acceptable form of state punishment.

It went on to observe that
the only additional punishment that a federal conviction might bring would appear to be authorization to kill Pleau. The present case thus presents a stark conflict between federal and state policy prerogatives on a matter of literally life-and-death significance.

And then, as if that wasn't already a big nod to the Governor's policy preferences, the court of appeals noted, in a footnote, that maybe the federal government should just step off when it comes to prosecuting these kinds of crimes saying,
We pause to note that the crimes Pleau is alleged to have committed -- armed robbery and murder -- are quintessential state crimes, and betray on their face no hint of any uniquely federal interest. See United States v. Jiménez-Torres, 435 F.3d 3, 14-15 (1st Cir. 2006) (Torruella, J., concurring) (objecting to unwarranted extension of federal criminal jurisdiction over traditionally state crimes). Moreover, given that Pleau has already agreed to plead guilty to state charges and accept a life sentence without the possibility of parole, it is frankly unclear what is to be gained from pursuing federal charges in this case, particularly in light of the truly extraordinary costs of capital litigation.

This is a great question - what exactly is the federal interest here? I suspect, as I said before, that it's just a matter of the United States Department of Justice being willing to spend whatever it takes to keep from being told no.

Beyond that, the First Circuit's discussion reminds me of the discussion in the Supreme Court's opinion in United States v. Cabrales of why we have a constitutional venue provision, because

[p]roper venue in criminal proceedings was a matter of concern to the Nation's founders. Their complaints against the King of Great Britain, listed in the Declaration of Independence, included his transportation of colonists "beyond Seas to be tried.

As the federal government comes down on California's medical marijuana providers, maybe it starts to look a bit like the prior sovereign we had in these lands.

* Only forty-eight states have signed onto the IAD. Also, the description here is very general - the IAD is very involved. The Department of Justice's U.S. Attorney's Manual has more information on the IAD.

September 28, 2011

The Increasing Number of Ways The Feds Can Prosecute You Troubles The Wall Street Journal

Those tree-huggers over at the Wall Street Journal have published a characteristically liberal piece about how the federal government is throwing more of its citizens in prison for no good reason.

As the article starts,

For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind." This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them. As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time.

The article lays the blame squarely on Congress in some pretty funny ways. It's worth a read.

This has me wondering if the problem of overcriminalization (and, yes, if the NACDL and the Heritage Foundation both think something is a problem, then odds are it is) stems from having legislatures, instead of judges, making criminal laws.

If you have a common-law model for when crime is caused, you're much less likely, I think, to have such weak politically-motivated and poorly-conceived crimes for people to run afoul of.

September 9, 2011

A Federal Judge Dismisses An Indictment On A Pretrial Motion Based On Determination About The Facts In The Case, And All I Do Is Complain

One of the massively frustrating things about federal criminal procedure is that you cannot normally challenge, through a pretrial motion, whether the facts that the government think happened actually violate some criminal law.

By contrast, in a civil case, if I'm suing you, you can file a motion that says my lawsuit should be dismissed. This is a good thing.

For example, suppose I file suit against you and say, in my complaint, "You gave me a banana. That was negligent. The Court should give me 20 million dollars. A jury trial is requested." The very first thing you would do is file a motion that says "Matt said that I was negligent, but didn't say how, other than that I gave him a banana, which is not normally negligent. His law suit should be dismissed."

And, when a judge read that, he, or she, would seriously think about whether to dismiss my lawsuit, before everyone spent thousands of dollars preparing and worrying and yelling at each other on the phone.

In a criminal case, though, this is normally not possible. The government can put in an indictment "Larry gave Susan a banana. He distributed cocaine in violation of 21 U.S.C. S 841 in the District of Columbia." and that will pass muster. If the person charged with the crime tries to file a motion to dismiss, they'll lose - Federal Rule of Criminal Procedure 7 requires just about nothing in the way of factual specificity. On to trial you'll go.*

Sometimes, the government and the defendant agree about what happened for the purposes of a pretrial motion. The government thinks that it was a crime, and the person accused thinks that it wasn't a crime. Normally, there is little way for the person accused to ask the court if the conduct was a crime, before everyone spends a tremendous amount of money, and the person accused of the crime undergoes a tremendous amount of stress. The most reliable way to handle something like this is on a stipulated facts trial, like in the Ninth Circuit's case on racially motivated threats against President Obama. Of course, then the person charged with the crime doesn't get to have a meaningful trial.

Most federal district court judges, in most cases, will not consider a motion to dismiss an indictment if it relies on any assumptions about what the facts of the case are.

Happily, Judge Boasberg on the United States District Court for the District of Columbia,** granted a motion to dismiss a count on an indictment based on a pretrial determination about the facts in the case in United States v. Nitschke.

Judge Boasberg dismissed an indictment where the facts of the case - as set out by pretrial motion which were not objected to by the government - showed that there was no crime.

The opinion defends the normal practice, though, asserting that,

"[i]t would certainly be improper to force the government in the normal case to proffer its evidence pretrial so that the defense might test its sufficiency. That could, for instance, curtail the government's ability to obtain additional evidence or locate additional witnesses."

I just don't understand that point. What would be bad about putting the government's theory of the evidence to the test? If there are additional witnesses the government needs, why is it indicting?

Robust pretrial motions practice in civil cases - dismissing bad lawsuits before they go too far - is a good thing. It saves money, time, and stress.

What's so broken about our civil justice system that it won't work for criminal cases?

* Though perhaps you could file a motion to strike the part about the banana. It's kind of surplus language.

** Yes, this is is strictly speaking not about a federal criminal appeal. Here's to hoping it doesn't undermine the thematic content of this blog too much.

September 6, 2011

More Valor Stolen From The Stolen Valor Act

The Stolen Valor Act, at 18 U.S.C. 704, makes it a federal crime to lie about having certain military honors.

The Ninth Circuit, in an opinion that can almost never be quoted enough, held that the Stolen Valor Act is unconstitutional. Judge Kozinksi writes,

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy ("No, I don't live around here"); to avoid hurt feelings ("Friday is my study night"); to make others feel better ("Gee you've gotten skinny"); to avoid recriminations ("I only lost $10 at poker"); to prevent grief ("The doc says you're getting better"); to maintain domestic tranquility ("She's just a friend"); to avoid social stigma ("I just haven't met the right woman"); for career advancement ("I'm sooo lucky to have a smart boss like you"); to avoid being lonely ("I love opera"); to eliminate a rival ("He has a boyfriend"); to achieve an objective ("But I love you so much"); to defeat an objective ("I'm allergic to latex"); to make an exit ("It's not you, it's me"); to delay the inevitable ("The check is in the mail"); to communicate displeasure ("There's nothing wrong"); to get someone off your back ("I'll call you about lunch"); to escape a nudnik ("My mother's on the other line"); to namedrop ("We go way back"); to set up a surprise party ("I need help moving the piano"); to buy time ("I'm on my way"); to keep up appearances ("We're not talking divorce"); to avoid taking out the trash ("My back hurts"); to duck an obligation ("I've got a headache"); to maintain a public image ("I go to church every Sunday"); to make a point ("Ich bin ein Berliner"); to save face ("I had too much to drink"); to humor ("Correct as usual, King Friday"); to avoid embarrassment ("That wasn't me"); to curry favor ("I've read all your books"); to get a clerkship ("You're the greatest living jurist"); to save a dollar ("I gave at the office"); or to maintain innocence ("There are eight tiny reindeer on the rooftop").

The Stolen Valor Act has recently been found unconstitutional by another jurist, Magistrate Judge DiGirolamo on the United States District Court for the District of Maryland. Here's the opinion. (for more coverage, see the Washington Examiner)

If you accept the premise set out by Garrett Epps in the Atlantic that the debate over the Stolen Valor Act is really just a debate about whether lies have First Amendment protection, then Judge DiGirolamo comes squarely down on a reading of a more expansive First Amendment. He writes,

First Amendment protection does not hinge on the truth of falsity of the matter stated. While some false speech may be proscribed, the Supreme Court has made it clear that not all of it is.
August 29, 2011

Is Twitter Harrasment a Crime?

The Federal Public Defender's Office in Maryland is mounting a vigorous defense of a man accused of harassing someone on Twitter. As the New York Times reports,

Twitter posts have fueled defamation suits in civil courts worldwide. But this is a criminal case, invoking a somewhat rarely used law on cyberstalking. And it straddles a new, thin line between online communications that can be upsetting -- even frightening -- and constitutional safeguards on freedom of expression.

Apparently, Mr. Cassidy created a large number of posts directed at one woman. The United States Attorney's Office for the District of Maryland is prosecuting him. It's an odd thing to use a criminal prosecution to make law. If conduct is so bad that it would land you in prison, you should be able to know clearly - and in advance - if it's against the law. Yet here it looks like the boundary of the law isn't that clear.

As Eugene Volokh explains,

This, it seems to me unconstitutional. Speech doesn't lose its First Amendment protection just because it intentionally causes emotional distress to a person (see Snyder v. Phelps and Hustler v. Falwell), even when there's a "course of conduct" consisting of two or more incidents of speech rather than just one. If Larry Flynt had published several nasty criticisms of Jerry Falwell rather than just the one in Hustler v. Falwell, his speech would have remained protected. So this portion of the statute is overbroad on its face.

Mr. Volokh also wonders what kind of prosecutorial decision making went into deciding to bring this case.

August 16, 2011

It Is Not Good To Be Hated By Congress

Congress really doesn't like sex offenders.

In 2006, it passed SORNA, the "Sex Offender Registration and Notification Act. It can be found at 42 U.S.C. S 16913. It applies to people who are convicted of state sex crimes, or federal child pornography charges.

SORNA requires that each state create a sex offender registry that meets federal standards. It requires any person who has a qualifying conviction to register both where he was convicted and where he lives.

If a person who is required to register moves, changes, jobs, changes his name, enrolls in an educational program, or leaves an educational program, he has to update his registration within three days - though, thankfully it's three business days, not three calendar days (Congress is accommodating).

Each state is required to make it a crime to fail to comply with these registration rules. The state punishment cannot be less than one year under federal law.

Because federal prosecutors and members of Congress cannot score political points for convictions brought by the state, Congress also created a new federal crime for failing to register. See 18 U.S.C. S 2250.

All this Congressional action, creating multiple levels of registration and prosecution, reminds me more than a little of the reaction of a biker gang to Pee-Wee knocking over their bikes in Pee-Wee's big adventure.

(Sadly, the scene is not able to be embedded - please see it here - Pee Wee With The Bikers)

Biker #2: [the whole gang holds Pee-wee hostage] I say we kill him!

Biker Gang: [shout] Yeah!

Biker #3: I say we hang him, *then* we kill him!

Biker Gang: [shout] Yeah!

Biker #4: I say we stomp him!

Biker Gang: [shout] Yeah!

Biker #4: Then we tattoo him!

Biker Gang: [shout] Yeah!

Biker #4: Then we hang him...!

Biker Gang: [shout] YEAH!'!

Biker #4: And then we kill him!

Biker Gang: [shout] YEAH!'!'!

Pee-wee: [tries to throw voice without moving lips] I say we let him go.

Biker Gang: [shout] NO!'!'!

Biker Mama: [whistles] I say ya let me have him first!

Biker Gang: [break out in raucous laughter]

In United States v. Trent, the Sixth Circuit reversed a conviction for failure to register under section 2250.

Mr. Trent had a qualifying conviction, which required him to register as a sex offender. He failed to. He admitted that he was guilty, and was sentenced to three years in federal prison - roughly equal to the sentences he received for his sex offenses.

The trouble is, Mr. Trent was required to register in Ohio. Ohio didn't adopt the SORNA registration requirements until after Mr. Trent was charged with a crime for failing to register.

So, while he was required to register as a matter of Ohio law, the Sixth Circuit held that he wasn't required to register through SORNA. As a result, his conviction for failing to register under SORNA was vacated, and the charges dismissed.

Lest you think this is a shame - that the Sixth Circuit let a man escape "justice" - please look at the dates in the opinion. Mr. Trent was charged on December 6, 2007. He was sentenced to three years in prison on October 31, 2008. The Sixth Circuit appeal was filed in 2008 (based on the case number).

According to the Bureau of Prisons, Mr. Trent finished serving his sentence - the one that was vacated on August 5, 2011 - on July 16 of 2010.

August 12, 2011

The Ninth Circuit Makes It Easier For Crimes to Be Violent (Nominally, At Least)

It makes sense to give someone a longer sentence if they're a violent person. And it makes sense to think that if someone has a prior conviction for a violent crime they are more likely to be a violent person. But it is massively difficult to turn that into a rule that can apply to the thousands of federal criminal cases across the country.

As a result, criminal history calculations may be the most technical part of federal sentencing practice. Yet scores of years hang on these technicalities.


This statue is of a person trying to figure out the federal statutory definition of a crime of violence

Whether a person has a prior conviction, or convictions, for a "crime of violence" will determine how much time he will spend in prison - probably more than any other single fact about him - if that person has been convicted of a drug distribution offense, possessing a gun after being convicted of a felony, or reentering the United States unlawfully after a conviction for a felony.

The tax on being a violent person is high.

The Definition of a "Crime of Violence"

What counts as a "crime of violence" is, then, very important.

Generally, a crime of violence is any crime that involves the use of force, or the threatened use of force. See 18 U.S.C. S 924(e)(2)(B). Hitting someone, or committing assault, involves the use of force, so it counts as a crime of violence. Moreover, robbing a bank by threatening to shoot someone counts as a crime of violence because it involves the threatened use of force.

Also, some crimes are simply defined as violent, like arson, extortion, or burglary.

States Define Crimes Differently

Clear enough - federal law has now given us a definition of "crime of violence."* The problem is that the vast majority of criminal convictions are state convictions. To take the example at issue in the Ninth Circuit's recent opinion in United States v. Aguila, consider burglary.

Some states allow burglary to be charged if a person unlawfully enters a car, or a boat, to steal something. Other states don't. If Maryland counts unlawful entry on a boat as burglary, but Iowa doesn't, it's creepy for someone in Maryland to be counted as a violent offender if someone in Iowa isn't when they've committed the exact same act.

To remedy that, the Supreme Court adopted a generic definition of burglary - defining it as an unlawful entry into a building with the intent to commit a crime.**

States Still Define Crimes Their Own Ways

Great. That's clear. One small problem remains - states do not use the generic federal definition when they convict people.

Imagine a man - let's call him "Mr. Aguila" - is convicted of residential burglary in California. Residential burglary is defined, under California law, as entering a building with the intent to commit a crime.

That is close, but not quite, the general federal definition allowed by the Supreme Court - to count under the Court's definition, it has to be an illegal entry into a building with the intent to commit a crime.

Some California burglaries are crimes of violence, and some aren't. How do we know which Mr. Aguila has committed?

The Old Rule In The Ninth Circuit

For a time, in the Ninth Circuit, the rule was that if a person was convicted of a California burglary, or any other offense that did not contain all of the elements of the generic federal offense, then that conviction did not count as a crime of violence because the court "can never find that a jury was actually required to find all the elements of" the crime that would satisfy the federal definition. The case was called United States v. Navarro-Lopez. The emphasis in that approach is on what the jury found. If the jury isn't given the opportunity to conclude that the guy committed a crime of violence, as the federal law defines it, then you can't use the conviction as a prior crime of violence at sentencing.

The New Rule In the Ninth Circuit

In Mr. Aguilar's case, the Ninth Circuit rejected the approach in Navarro-Lopez. Instead, the court of appeals held that the sentencing judge should look at other documents relating to the conviction - such as any facts admitted during a plea hearing, or in a plea agreement, or based on what a jury found. The set of documents is relatively narrow, and set out in the Supreme Court's decision in Shepard v. United States.

The Ninth Circuit expressed confidence that it would only rely on these documents when they give the court certainty that the person committed the crime of violence. I now express a lack of confidence that this will be the case.

 

* There are a few different definitions of "crime of violence" in the different federal statutes and sentencing guidelines that matter. Also, sometimes the term that is used is not "crime of violence" but, rather, "violent crime." Be mindful of that when you wonder why the suicide rate for attorneys is higher than for nonlawyers.

** Yes, readers who are criminal defense lawyers, this isn't the exact definition the Supreme Court used. It's close enough for the broader point of the discussion. Readers are advised not to read this blog as a legal brief.

August 10, 2011

The Fair Sentencing Act: the Battle Between Following the Rules and Fairness Plays Out in the Third Circuit

Much of criminal law can be understood by looking at two opposing viewpoints. They are not the perspective of the police versus the perspective of those who would commit crime. The tension is not between the "good guys," however defined, and the "bad guys."

Rather, it is a tug of war between people who seek rigid application of the law versus people who would construe the law so as to be fundamentally fair.

As a caricature, those who believe in the rigid application of the law, start and end a legal question with what the law says. Work done to find an exception to a written rule -- or to craft an argument that a law should be construed slightly differently than its text to avoid a counterintuitive result -- is not good work to this group. Indeed, the Rule of Law People tend to think that consideration of the results when deciding how to interpret the law is never proper.

On the other side are the folks who think that the results are all that matter. If a rule yields a bad result, it should be construed in a way to change the result it would yield. The language of rules is pliable, and results should force language to yield. The Fairness Folks look to the end result in a case, regardless of what the law requires.

These viewpoints play out in other parts of law and life, of course.* The debate between seeing the United States Constitution as a living document, on one hand, versus requiring that it be interpreted according to the understanding of its creators, on the other hand, is one example. Much of the debate among mainline Protestant churches about the interpretation of the Bible on questions of gay rights is another.

The Fair Sentencing Act

This tension has played out over the past year in a series of cases deciding what is to be done about the Fair Sentencing Act. A bit of background is necessary.

Over the past few years, a consensus emerged that the mandatory minimum sentences for crack offenses were too high, relative to mandatory minimum sentences for powder cocaine - this disparity was reflected in the sentencing guidelines as well. Congress finally sprang into action and passed the Fair Sentencing Act, which was signed by President Obama on August 3, 2010.

The Fair Sentencing Act changed the mandatory minimum sentences for crack cocaine charges for certain quantities of crack. It also directed the sentencing commission to create new crack sentencing guidelines.

The Fair Sentencing Act, by its terms, did not apply retroactively - that is to say, it did not apply to conduct that happened before the Fair Sentencing Act became law.

The Pipeline Problem

The non-retroactivity of the Fair Sentencing Act created a problem. What do you do with cases where someone committed a crime before August 3, 2010, but the person's sentencing hearing was after August 3, 2010? Does the Fair Sentencing Act apply to that person? Generally, the law that applies on the date of the offense is the law that governs the punishment for that offense, absent an express Congressional statement to the contrary. Yet Congress provided no language to change the mandatory minimums as applied to people already in the pipeline.

These people in the pipeline are in a tough spot -- like the soldiers killed between when peace was negotiated but before it began, their lives would be ruined for no good reason, if the Fair Sentencing Act is not applied to them.

As courts resolved this issue, the tension between the Rule of Law People and the Fairness Folks became clear. Congress had already said that the mandatory minimums rolled back by the Fair Sentencing Act were unfair. To give someone a sentence that everyone - including Congress - acknowledges is unfair is, well, unfair.

Yet, to be honest, the stronger textual argument for how to read the Fair Sentencing Act is probably with the courts that held that the pipeline people should not have the benefit of the Act.

If you are parsimonious with exceptions to a rule, you will not apply the Fair Sentencing Act to pipeline cases. Injustice is simply the cost of having a system of laws.

If you are motivated by fairness, the idea that the Act is not retroactive, regardless of the textual argument about retroactivity, will simply be unacceptable.

The Third Circuit in Dixon.

The Third Circuit weighed into this discussion today in United States v. Dixon , coming down squarely on the side of applying the Fair Sentencing Act to pipeline cases. The court of appeals interpreted Congressional intent through the language of fairness - saying, in essence, that it would be profoundly unfair for Congress to not apply the Fair Sentencing Act to the pipeline cases and that we should not assume Congress would intend such a quantity of unfairness.**

The Third Circuit quoted a number of district courts about this injustice, courts noted that:

It is disturbing enough when courts, whose primary task is to do justice, become themselves the instruments of injustice . . . But this discomfort reaches its zenith when the injustice has been identified and formally remedied by Congress itself.

For the Court to continue to impose sentences that are contrary to the statute that Congress itself described as "An Act to restore fairness to Federal cocaine sentencing‟ would be an absurd result.

In this opinion, on this issue, those who seek fairness came out on top. The Third Circuit joins the First and Eleventh Circuits. The Second and Seventh Circuits have not agreed that fairness is more important than the text of this statute.

* And, to be clear, these are caricatures. Most people are likely in a happy middle between these views. The people who are - for all purposes - in one camp or the other are the ones you should avoid at parties.

Moreover, being for fairness doesn't necessarily mean you're defense oriented, or vice versa. For example, you may think a long sentence is more important than the rules that should govern at a sentencing, which would be a fairness oriented thing to think, even though it certainly is not a defense-perspective.

** There's an obvious joke here about whether the Third Circuit has much experience with Congress.

August 7, 2011

A Lot Of Federal Criminal Law And Procedure In One Opinion: The D.C. Circuit Gives A Lot Of Bang For The Buck

If you want to read about a large number of issues in federal criminal law in one place, you should check out United States v. Moore. Beach reading it isn't.

From whether a person on trial can be forced to wear a stun belt during trial, to a discussion of race-based strikes to members of the jury, to testimony about religious conversions and ineffective assistance of counsel, this 128-page beast of an opinion has everything.

There's even an 11 page concurring opinion on race-based jury strikes!

I am not going to write about all of it.

The court reversed a number of counts on confrontation clause grounds. Interestingly, between the date of the trial in 2005 and when the appeal was decided in 2011, the law of the confrontation clause changed dramatically.

Some background - under the Sixth Amendment, a person accused of a crime has the right to confront his or her accusers. Normally, that means a person - or, really, the person's lawyer - gets to cross-examine anyone who is offering evidence for the government.

This gets tricky when the government tries to introduce forensic evidence. Actually, strike that - it isn't "tricky", it's cumbersome.

As any viewer of ads for TV shows on CBS knows, the government keeps crime labs in their police departments. And in those labs, people analyze evidence to present at trial. The question is whether the person who does the tests, and actually knows what happened when the evidence was tested, has to testify, or if someone from the lab can just say what generally happens when evidence is tested (hint: someone is found guilty).

The Supreme Court has very recently held that yes, the Constitution applies to people in crime labs too - even if they look really good on CSI.

Between when this case was tried and when it was decided on appeal, the constitutional ground moved, and, now, what happened at trial wasn't ok.

So, those counts were remanded.

For everything else in the opinion, please check it out here.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

August 4, 2011

The Second Circuit Grants A New Trial: Why Market Movements Should Come With Cliff Notes

Causation is tricky.

So often we infer what caused what from the order things happen in - the government fails to reach an agreement on the debt ceiling, and the stock market drops. We conclude that one causes the other.

What do we do when there are multiple causes of a movement in stock price? If Greece defaults at the same time new job numbers are released, can we say which causes the movement of a stock price?

If you're just chatting about the markets, it probably doesn't matter. You don't need to answer the question of what caused the market action - it can be overdetermined.

If, however, you're the United States government, and you are trying to show that a series of actions mattered to investors, you are going to want to show that they affected the stock price. But what to do about all the other things that affected the stock price?

This question was taken up by the Second Circuit in United States v. Ferguson.

There, executives at General Reinsurance and an executive at AIG were convicted of numerous charges - conspiracy, mail fraud, securities fraud, and making false statements to the Securities and Exchange Commission.

The basis of the charges was a reinsurance transaction between the two companies. Such a transaction is, apparently, normally done to mitigate risk. Here, there was, the government alleged, no risk to mitigate - the transaction was intended solely to create an accounting illusion about AIG's reserves so that its stock price would not suffer.

Would you believe this was an actual trial exhibit?

To prove fraud, the government has to prove that a false statement is material - that it matters to someone in some decision they have to make. In this case, the government wanted to prove that it mattered to investors; that the reinsurance transaction affected the stock price.

The problem, though, is that lots of things affect stock price. At the same time at issue in the case, AIG was being accused of "bid-rigging, improper self-dealing, earnings manipulations, and more." Each of these allegations also affected AIG's stock price.

So, for the folks on trial to challenge whether the reinsurance contract affected the stock price, they would have had to argue that it wasn't the allegedly fraudulent reinsurance contract, rather it was the allegedly unlawful bid-rigging.

It's kind of like arguing that you couldn't have killed Tom because you were busy robbing Mary across town. It doesn't sit well with a jury.

The defendants offered to just agree that the reinsurance contract affected the stock price, so it wouldn't have to be submitted to the jury. The government, though, wouldn't agree.

This likely seems odd. The government thinks something happened. Why can't the defendant just agree, then that would be one less thing that the jury needs to worry about? The answer is that the Supreme Court has held that a defendant can't prevent the government from putting on the salacious bit of its case just by stipulating to it. The case is called Old Chief. It's how we know jury nullification works both at least one ways.

So the government wouldn't stipulate that the stock price dropped. Instead, they introduced a chart showing that the stock price dropped. But everyone agreed that the chart was inaccurate, because it reflected a drop in the price that was caused by other allegations of misconduct other than those in the trial.

The Second Circuit held that this was soup. The government doesn't have to stipulate to an element of the offense, but they can't use that as a mechanism to introduce misleading evidence. Moreover, the government really played the falling stock price up to the jury, arguing that:

[B]ehind every share of [AIG] stock is a living and breathing person who plunked down his or her hard-earned money and bought a share of stock, maybe [to] put it in their retirement[] accounts, maybe to put it in their kids' college funds, or maybe to make a little extra money for the family.

As a result, the Second Circuit vacated the conviction and ordered a new trial.

As an aside, it's nice to see that Seth Waxman came into the case on the side of the lead defendant. I'm sure I'll bump into him at a National Association of Criminal Defense Lawyers meeting soon.

FYI, I'm late to the party. Everyone and their mother has written about this. See:

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 20, 2011

The Eleventh Circuit And The Unwilling Pro Se Criminal Defendant

In my experience, many federal prosecutors play fair. They want to get their conviction, to be sure. The law gives them many advantages, and they're happy to avail themselves of what the law gives them. But I don't know of many federal prosecutors who go out of their way to take away a defendant's lawyer.

Then again, I don't practice in Georgia.

The Eleventh Circuit, today, reversed and remanded a case where a criminal defendant went to trial without a lawyer, because the government opposed him receiving appointed counsel. The case is United States v. Ly. Apparently, in some U.S. Attorney's Offices, they read Gideon narrowly.


Shortly after he was charged with filling prescriptions "outside of the usual course of professional practice and without medical purpose", under 21 U.S.C. 841(a)(1) and 21 C.F.R. section 1306.04, Mr. Ly, asked for appointed counsel. The government opposed his request for a lawyer. A magistrate judge worked with federal probation, and determined that Mr. Ly's wife had significant assets, and that Mr. Ly had shared these assets with his wife. So the court determined that Mr. Ly cannot have an appointed lawyer.

The court's strategy, apparently, was that Mr. Ly would come up with the money if the request for appointed counsel was denied.

Mr. Ly did not come up with the money. He went to trial without a lawyer. The government's case in chief consisted of:

(1) expert testimony about the regulation of controlled substances; (2) expert testimony regarding standard prescription practices and how Ly's actions deviated from those standard practices; (3) testimony from eleven of Ly's patients explaining Ly's prescription practices; (4) testimony from four retail pharmacists who became suspicious of Ly's practices and therefore stopped filling prescriptions written by Ly; (5) evidence that pharmaceutical companies sold large quantities of controlled substances to Ly and that one company stopped selling to Ly because of these purchases; and (6) the results of a lawful search of Ly's house and office.

In response, Mr. Ly tried to call his prior patients to testify that he was a good doctor who provided quality care. The court would not let him. He called a few witnesses, who offered little in support of his cause.

When the rest of Mr. Ly's evidence was in, the judge had this conversation with him:

THE COURT: All right, Dr. Ly, I've heard you say that you have no more witnesses. Do you intend to testify in this case?

DR. LY: No, Your Honor.

THE COURT: Now, do you understand that you have an absolute right to testify in your own behalf?

DR. LY: Yeah, I know, but without counsel, Your Honor, I can't testify.

THE COURT: So it is your personal decision not to testify in this case?

DR. LY: Because I don't have counsel who can ask me questions.

THE COURT: Is it your personal decision not to testify in this case?

DR. LY: What do you mean, Your Honor?

THE COURT: Well, I've told you you have a right to testify. Is it your personal decision not to testify in this case?

DR. LY: No. I decide not to testify because I don't have counsel to ask me questions. I cannot just be cross-examined without my counsel to ask--my own counsel to ask me questions.

THE COURT: So you choose not to testify, then?

DR. LY: If I don't have my own counsel -

THE COURT: - Well, you know you don't have counsel, Dr. Ly. That's not the question. You've not had counsel since this trial started. Now, this is your opportunity to testify or not testify, and I want you to tell me on the record whether you intend to testify or not testify.

DR. LY: That decision I can't make--I can't make it in the split of a second, Your Honor. Could you give me . . .

THE COURT: Well, I'm assuming, then, and I'm taking that as a decision by you not to testify in your own behalf in this case.

DR. LY: I wouldn't agree with that.

THE COURT: Well, we've got a jury sitting in the box, and it is your time to testify. And so you're going to have to make that decision, and you've had months leading up to this trial to make that decision. Now, I'm not going to keep everybody waiting. I'm not going to keep the jury waiting, so you make a decision right now whether you're going to testify or not testify.

DR. LY: I'm not going to testify.

Mr. Ly did not testify, was convicted, and was sentenced to serve 97 months in prison.

The thing about that conversation that the court had with Mr. Ly is that Mr. Ly is actually wrong when he says he can't testify unless he has a lawyer. He can testify, he'd just testify in the narrative - he'd just talk, instead of being asked questions. But the district court judge never corrects that mistake, and allows him to persist in the belief that he's unable to testify because he has no lawyer. Unable to call any witnesses or produce any other evidence, Mr. Ly doesn't testify because he thinks he isn't allowed to.

The Eleventh Circuit today said that violated Mr. Ly's constitutional rights and reversed and remanded.

The issue is tricky - as the court explains, normally there's a default position on a constitutional right:

In the right-to-counsel and guilty-plea contexts, the district court must satisfy itself that the defendant has waived his right knowingly and intelligently . . . and if the court is not so satisfied, it forces upon the defendant the constitutional default. In the case of the right to counsel, the default is an appointed attorney [sic - as to the facts of appointing counsel in this case], and in the case of a jury trial, the default is a plea of not guilty, followed by a jury trial.

In a question of whether to testify, there's no default. A criminal defendant has an absolute right not to testify and an absolute right to testify. It's totally his choice either way.

The court notes that this decision is normally informed by counsel. Here, the government went bare-knuckles to keep Mr. Ly from having a lawyer. So a lawyer he was kept from having. When a criminal defendant goes to trial without a lawyer, it is exceptionally hard to make sure his constitutional rights are not violated.

Pro se defendants are, frankly, a problem. It's sad and wrong to have someone go without a lawyer when their freedom is at stake. If the person freely chooses to go it alone, the court has to let him engage in that folly. But here, where a person was asking, repeatedly, for a lawyer, to force him to trial without one is wrong.

If the government's concern was that Mr. Ly was hiding money and trying to avoid paying for counsel, they had another option. The government, instead, could have sought appointed counsel and asked for a contribution order. That way, if Mr. Ly was convicted, at the time of sentencing the court would have conducted an inquiry into what money was available to pay the lawyer for his services from Mr. Ly's funds. And the court could have made then ordered Mr. Ly to pay as much as he was able for his own defense. Here's a link to one way to do the order from the U.S. Court's webpage.

The government did not ask for a contribution order. They asked for a trial without defense counsel. Looks like they may get another one.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 19, 2011

A Divided Ninth Circuit Panel Reverses a Conviction Based on a Racially-Motivated Threat on Barack Obama

Walter Bagdasarian really did not want Barack Obama to be President. As the general election drew near, and Obama's election seemed more certain, Mr. Bagdasarian decided to take action. Instead of volunteering for McCain, or sending money to the Republican National Committee, he logged on to a Yahoo! Finance message board and posted two comments responding to the state of the election.

The comments including disparaging remarks about Mr. Obama and Mr. Obama's race, and noted that Mr. Obama "will have a 50 cal in the head soon." Mr. Bagdasarian also included a call to "shoot" Mr. Obama. He challenged Mr. Obama's fitness for office by virtue of status as an African American, claiming that no African American has ever done anything in history, except open a "sambos" restaurant. (Mr. Bagdasarian did not seem to realize that Sambos was actually owned by two white men, though that may not undermine his larger, and repugnant, point.). Perhaps it goes without saying that Mr. Bagdasarian did not use the term "African American."

Mr. Bagdasarian's comments did not alter the course of the election. They did, however, cause a participant on the message board to contact the Secret Service. Mr. Bagdasarian was interviewed by the Secret Service. His house was searched and a fifty caliber rifle was found. His computer was searched and an email was found that described a method for blowing up the President's car, as well as Mr. Bagdasarian's desire to see that car blown up. As the Ninth Circuit put it, "[t]hese email messages would appear to confirm the malevolent nature of the previous statements as well as Bagdasarian's own malignant nature."

Mr. Bagdasarian was charged with two counts of violating 18 U.S.C. section 879(a)(3), which criminalizes threatening to kill or harm "a major candidate for the office of President of the United States."

(And, yes, gentle reader, that's really the language - does section 879(a)(3) prohibit threatening Ron Paul? Or Ralph Nader? Part of me would love to challenge the constitutionality of the "major candidate" part of that statute. Still, Obama unarguably counted after at least the Iowa caucuses.)

Mr. Bagdasarian lost at trial on stipulated facts. Which is to say, he agreed with everything that happened, he just didn't think he had committed a crime. A federal district court judge thought he had. The Ninth Circuit, however, held that he hadn't in their published opinion in United States v. Bagdasarian.

Judge Reinhardt's majority opinion opens with a walk through the ways American presidential candidates have been maligned through our history. If you're looking for a reason to be depressed about American democracy, this is a decent place to start.

The Ninth Circuit clarified that for a criminal threat statute to apply to pure speech, that speech has to constitute a "true threat." The question, then, is whether two things are true: (1) whether Bagdasarian subjectively intended to cause bodily harm to the President; and (2) whether a person looking at Mr. Bagdasarian's actions and statements would think that he intended to cause bodily harm.

The court found that Mr. Bagdasarian's directive to shoot Mr. Obama is not an expression of an intent to cause harm to him; it "is instead an imperative intended to encourage others to take violent action, if not simply an expression of rage or frustration. The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the President."

Mr. Bagdasarian had, of course, a 50 caliber rifle in his possession when he made the statement that Mr. Obama should be shot with a .50 caliber rifle. The court discounted this, because no one in the chat room knew that he had that rifle.

The court concluded, therefore, that Mr. Bagdasarain's comments, loathsome though they are, were the kind of rough and tumble political speech that our constitution allows.

Judge Wardlaw dissented. She agreed with the statement of law, but found that this was a true threat, and that Mr. Bagdasarian actually threatened Barack Obama with bodily harm both subjectively and objectively.

The interesting thing, I think, is the way her dissent reads. She has a lengthy statement of facts and an independent statement of the law that, in many ways, repeats the discussion in the majority opinion.

Was this is a majority opinion that changed when she lost a vote? The third member of the panel was Chief Judge Kozinski, who, himself, has an interesting relationship with the First Amendment. So, maybe.

I, for one, am really looking forward to seeing how this gets resolved en banc.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.