The Federal Criminal Appeals Blog

United States v. Izurieta is an odd opinion. Turns out the Eleventh Circuit was a very good defense attorney in this case.

Two brothers - Yuri and Anneri Izurieta - ran an import/export business. They brought food into the United States from Central America.

They were charged with not following FDA procedures when they brought food into the country that - according to a trial stipulation - contained e coli and salmonella.

They were convicted at trial.

They appealed and raised some interesting issues - a Confrontation Clause challenge, a challenge to some of the prosecutor's statements during the trial, and an issue about how the sentence was calculated.

Everyone showed up for oral argument ready, presumably, to talk about these issues. The briefs had been filed. The issues were clear. I'd like to think the defense lawyer was wearing a new suit.

Then, at oral argument, the Eleventh Circuit panel asked whether the indictment in the case actually set out something that is a violation of the criminal law of the United States.

As it happens, it didn't.

So, there's a practice pointer for defense lawyers - check to make sure that an indictment accuses the person charged with something that is actually a crime.

Here are the details.

The brothers were charged with seven counts:

Count 1 charged a conspiracy to unlawfully import in violation of 18 U.S.C. § 371. Counts 2 - 7 charged the Izurietas with the failure "to redeliver, export, and destroy with FDA supervision" five shipments.

More specifically, Counts 2 through 7 charged a violation of 18 U.S.C. § 545, which says,

Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law . . . Shall be fined under this title or imprisoned not more than 20 years, or both.

So the "contrary to law" part is really important.

Here, the brothers violated an FDA regulation which provided for civil, but not criminal penalties. Does section 545 convert the violation of that regulation into a crime?

The Ninth Circuit had previously weighed in on this in 2008 in United States v. Alghazouli, 517 F.3d 1179, 1187 (9th Cir. 2008) and found that section 545 doesn't do the alchemy of converting not criminal regulations into criminal ones.

There, relying in part on an 1892 Supreme Court case that held that "[i]t is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offence" in the course of striking down a conviction for violating a bookkeeping regulation under the Oleomargarine Act (which, seriously, sounds insane. You should read more about it here and here).

The Fourth Circuit, on the other hand, held in United States v. Mitchell, 39 F.3d 465 (4th Cir. 1994), that section 545 criminalizes the violation of otherwise noncriminal regulations when the underlying regs are "legislative" in nature because, really, we're not going to lead the world in prison population without everyone doing their part.

The Eleventh Circuit ragged a bit on the Ninth Circuit's opinion, then noted that

lenity remains an important concern in criminal cases, especially where a regulation giving rise to what would appear to be civil remedies is said to be converted into a criminal law.

Because of ambiguity about whether the regulations that these brothers violated could be prosecuted criminally, the Eleventh Circuit held that, under the rule of lenity, they couldn't be.

The indictment, then, didn't allege a violation of the criminal law. And the brothers' convictions were vacated.

Gentle reader, you may be wondering whether, procedurally, this is kosher. Can it be that an appellate court can first raise whether the indictment charges a violation of the law at oral argument?

It can, because the issue is jurisdictional. If there's no adequate allegation of a crime, then the court of appeals doesn't have jurisdiction to hear the case. So, if there's a jurisdictional error, that can be raised at any point.

As the Eleventh Circuit noted,

In Seher, we held that this court is required to raise sua sponte the jurisdictional issue of whether the indictment sufficiently alleges an offense in violation of the laws of the United States provided the mandate has not issued on direct appeal. Seher, 562 F.3d at 1359.

Also, the opinion was written by Judge Jane Restani, a judge on the United States Court of International Trade, sitting by designation on the Eleventh Circuit. You don't see that very often.

Tamatha Hilton was the bookkeeper for a company called Woodsmith's. Woodsmith's made furniture. Ms. Hilton made bad decisions.

Specifically, for a few years, she took checks written by Woodsmith's customers and gave them to her husband, Jimmy Hilton. Mr. Hilton did not work at Woodsmith's.

Mr. Hilton gave the checks to his ex-wife, Jacqueline Hilton. Ms. Hilton opened a bank account at Suntrust in her name, saying that she was the owner of a company called Woodsmiths Furniture Company.

She was not.

She was, however, the owner of a pre-printed stamp from an office supply store that said checks made out to Woodsmiths should be deposited into her Suntrust Account.

You can probably guess how that was used.

Over two years Woodsmiths lost around $650,000 to Ms. Hilton's Suntrust Account.

The three were charged with identity theft, mail fraud, mail theft, money laundering, conspiracy, passing forged securities, and making a false statement to a financial institution.

At trial, Ms. Hilton was acquitted of making a false statement to a financial institution. Everyone else was convicted of everything else.

In their appeal to the Fourth Circuit, resolved in United States v. Hilton, Mr. and Ms. Hilton challenged their convictions for identity theft, on very clever grounds:

Jimmy and Jacqueline appeal their convictions for identity theft and aggravated identity theft, in violation of 18 U.S.C. §§ 1028(a)(7) and 1028A (the identity theft statutes). They argue that the conduct charged, namely, the use of the stamp bearing Woodsmiths' name in endorsing the stolen checks, did not constitute a violation of the identity theft statutes, because the language of those statutes does not encompass the act of stealing the identity of a corporation.

Ultimately, the Fourth Circuit agreed.

Noting that,

In light of the serious consequences flowing from a criminal conviction, the rule of strict construction rests on the principle that "no [person] shall be held criminally responsible for conduct which he could not reasonably understand to be pro- scribed." Accordingly, although "[t]he simple existence of some statutory ambiguity is not sufficient" to trigger automatic resolution of the ambiguity in favor of a defendant, "we will construe [a] criminal statute strictly and avoid interpretations not clearly warranted by the text." (internal citations omitted)

The statute, 18 U.S.C. § 1028(a)(7) makes it illegal to transfer, possess, or use "a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of [f]ederal law, or that constitutes a felony under any applicable [s]tate or local law." The vicious § 1028A - which imposes a two-year consecutive mandatory minimum if someone commits and identity theft crime in connection with another felony - uses the same language.

In the definition section for both statute defines "means of identification" as "any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual."

Under the Dictionary Act - the Act that defines terms used in federal statutes if there isn't another definition that's more closely tailored - "person" includes corporations. "Individual" though, might not.

Because that's an ambiguous question, the Fourth Circuit held that the identity theft statute does not apply to corporations.

we are left with a "grievous ambiguity or uncertainty in the statute[s]," and we decline to speculate regarding Congress' intent. Instead, faced with the choice of two plausibly valid interpretations, "we yield to the rule of lenity." (internal citations omitted)

Though the convictions for mail fraud, mail theft, money laundering, conspiracy, and passing forged securities still stood. The folks who were convicted were remanded for resentencing.

Sometimes a boat ride - a three hour cruise - can take you places you could never have anticipated.

For Yimmi Bellaizac-Hurtado, Pedro Felipe Angulo-Rodallega, Albeiro Gonzalez-Valois, and Luis Carlos Riascos-Hurtado, a ride in a wooden boat off the coast of Panama took them to the Eleventh Circuit, the Bureau of Prisons, and through the heart of the Constitution's grant of power to Congress to make laws to punish "Offenses against the Law of Nations."

Welcome to the Jungle

The four men were spotted in Panamanian waters by the United States Coast Guard in 2010. Their boat was wooden and had no lights or flag.

The Coast Guard told the Panamanian National Aero-Naval Service. I'm guessing that's both their navy and air force, but the webpage Google gives me for them is down. Tech support is probably out chasing fishing boats.

Anyway, the Aero-Naval Service chased the boat. It ran to land, and the four men jumped off and ran into the jungle.

The Aero-Naval Service found 760 kilos of cocaine in the boat. This did not diminish their interest in the four men.

Give Me Your Tired, Your Poor, Your Huddled Masses

The four men were caught in the jungle. The United States and Panama agreed that they would he prosecuted in the United States.

A grand jury in Miami indicted the four for "conspiracy to possess with intent to distribute five kilograms or more of cocaine, and for actual possession with intent to distribute five kilograms or more of cocaine, on board a vessel subject to the jurisdiction of the United States."

For the statutory provisions undergirding this charge, see 46 U.S.C. §§ 70503(a), 70506 and 21 U.S.C. § 960(b)(1)(B).

Astute readers may be wondering what it means to be "on board a naval vessel operating in the jurisdiction of the United States." How bounded is the jurisdiction of the United States - if at all?

Or, more belligerently, what gives Congress the right to make laws about operating a fishing boat with 760 kilograms of cocaine off the shore of Panama?

Congress's view, apparently, is that it has this power because of the Constitution. Our Constitution contains a provision, at Article I, section 8, clause 10, which says that Congress can "define and punish . . . Offences against the Law of Nations."

These four men - this huddled mass - clearly had good counsel. They filed a motion to dismiss the case against them because Congress does not have the authority to regulate drug-laden fishing boats in Panama.

The district court was uninterested in this argument. The motion was referred to a magistrate judge who denied the motion. As the Eleventh Circuit summarized it:

The magistrate judge reasoned that the district court had jurisdiction because the defendants were operating a stateless vessel and that the Act was constitutional as applied because Congress and several courts had determined that drug trafficking was "universally condemned" by various nations with "reasonably developed" legal systems.

The district court adopted the magistrate judge's findings.

Movin' On Up

The men pled guilty, with an agreement that they can challenge whether Congress has the power to criminalize their conduct. They were sentenced to between 25 to 90 months in prison and went to the Eleventh Circuit.

In United States v. Belliaizac-Hurtado, the Eleventh Circuit reversed.

Offenses Against the Law of Nations

The Supreme Court, according to the Eleventh Circuit, has said that the Offenses Against the Law of Nations clause covers three things: "the power to define and punish piracies, the power to define and punish felonies committed on the high seas, and the power to define and punish offenses against the law of nations."

This isn't a case of piracy, and it isn't a case of a felony committed on the high seas.

The Eleventh Circuit held that the power to define and punish offenses against the law of nations is limited only to offenses which are "customary violations of international law."

Congress can't expand what's meant by the law of nations under this Clause. For example, the Supreme Court held (in 1820) that Congress can't define piracy to include murder and then have murder be punishable under a grant of power from this clause:

Nor is it any objection to this opinion, that the law declares murder to be piracy. These are things so essentially different in their nature, that not even the omnipotence of legislative power can confound or identify them. Had Congress, in this instance, declared piracy to be murder, the absurdity would have been felt and acknowledged; yet, with a view to the exercise of jurisdiction, it would have been more defensible than the reverse, for, in one case it would restrict the acknowledged scope of its legitimate powers, in the other extend it. If by calling murder piracy, it might assert a jurisdiction over that offence committed by a foreigner in a foreign vessel, what offence might not be brought within their power by the same device?

It goes on like that. And makes you grateful for Scalia's writing.

Ok - so Congress can't just make up new "law of nations" to expand its power under this Clause. The Eleventh Circuit, relying on a practically recent Supreme Court opinion, held that,

on the issue whether Congress must declare the conduct to be an offense against the law of nations to exercise its power under the Offences Clause, the Supreme Court has explained that "[w]hether the offense as defined is an offense against the law of nations depends on the thing done, not on any declaration to that effect by congress." United States v. Arjona, 120 U.S. 479, 488, 7 S. Ct. 628, 632 (1887).

The law of nations, then, is the same as "customary international law." And the Eleventh Circuit defines "customary international law" as the "general and consistent practice of states followed by them from a sense of legal obligation."

The court of appeals goes on to note that

"Private criminal activity will rarely be considered a violation of customary international law because private conduct is unlikely to be a matter of mutual legal concern"

From that it falls out relatively straightforwardly that PWID in a fishing boat in Panama isn't within the power of Congress to regulate under this statutory framework.

Preserved in Amber

This opinion reads like it's preserved in amber. Doubtless it's an artifact of being about an area of law where there's been no action since the 19th Century.

But still, the idea that categories of legal things have essences that Congress can't define away is precious. And, in the criminal realm at least, almost completely absent.

Congratulations, though, to our four Panamanian friends. I hope that if they're prosecuted in Panama for what it surely a violation of Panamanian law, that they get credit for the time they served in the land of the free.

If you're ever involved in a bank fraud case, you should probably read the Second Circuit's opinion reversing Mr. Felix Nkansah's bank fraud conviction. If the government wants to convict someone for bank fraud, the Second Circuit says they've got to show that the person was trying to defraud a bank (as opposed to trying to defraud someone or something else).

The Company You Keep

Felix Nkansah fell in with some bad company.

He worked with a number of other people to steal identity information for people, like names, dates of birth, and social security numbers. Specifically, he stole this information from hospitals, childcare databases, and foster care.

The group then filed false tax returns with the names and social security numbers they had stolen. Cleverly, they didn't file tax returns that showed taxes were owed. Instead, they filed returns that triggered tax refunds.

The fraudulent returns had refunds that totaled more than two million dollars. The group actually received a little more than half a million dollars.

When the refund checks came to a group member, the member would forge a signature on the check and deposit it in a bank account that the group controlled.

Mr. Nkansah was charged with conspiracy to file false claims with the IRS, filing false claims with the IRS, bank fraud, aggravated identity theft in connection with the bank fraud, and identity theft.

He was convicted of all of them at trial.

The Second Circuit

On appeal, though, the Second Circuit reversed his conviction for bank fraud. This was tax fraud, sure. But bank fraud? Nope.

Let's start at the start - with 18 U.S.C. § 1344, the bank fraud statute:

Whoever knowingly executes, or attempts to execute, a scheme or artifice-- (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises; [is guilty of bank fraud]

Mr. Nkansah argued on appeal that there was a lot of evidence that he intended to defraud the federal Treasury, but there wasn't any evidence that he intended to defraud a bank.

While defrauding the Treasury is really bad, he was convicted of bank fraud. And there wasn't evidence that he committed that crime.

In fact, Mr. Nkansah argued that there was no reason to think that the banks lost money through this whole transaction. As the Second Circuit summarized it:

In essence, he argues that the banks were no more victims of his deceptions than a bank in which someone opens an account under a false identity to conceal funds from a spouse or business partner.

The Second Circuit agreed with the law undergirding the prosecution:

Appellant is correct that the bank fraud statute is not an open-ended, catch-all statute encompassing every fraud involving a transaction with a financial institution. Rather, it is a specific intent crime requiring proof of an intent to victimize a bank by fraud. See United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994). "[A] federally insured or chartered bank must be the actual or intended victim of the scheme."

Summarizing all of this,

The government had to prove beyond a reasonable doubt that appellant intended to expose the banks to losses.

The Evidence Of What Was In Mr. Nkansah's Mind

The government had two kinds of evidence to try to show that Mr. Nkansah intended to defraud the banks. First, they relied on statements made to other folks in the group.

Mr. Nkansah had talked to others about which banks would be least likely to discover the scheme. The Second Circuit rejected these arguments -

While these concerns surely support an inference of an intent to avoid detection, on this record they have no probative value as to an intent to injure the banks.

Second, the government tried to show that because the bank was actually going to suffer a loss - or the bank said it was going to suffer a loss - that was enough to show that Mr. Nkansah thought the bank would suffer a loss.

The Second Circuit has allowed such an inference where a person forged a check and went to the bank to cash it (though, interestingly, the court of appeals said such an inference isn't required). But this isn't such a case - here Mr. Nkansah had a legitimate check (which was issued under false pretenses). That exposes the issuer of the check to a loss, but not, on these facts, the bank.

Because there was no evidence to support the conclusion that Mr. Nkansah intended to defraud the banks - as opposed to the Treasury - his conviction for bank fraud was reversed.

As was his conviction for aggravated identity theft based on the bank fraud.

Ronda Nixon's career was on the upswing. She had logged her time as a Mary Kay Cosmetics representative. She had spent time in a job working at a small law firm - first as an assistant and then she worked her way up to bookkeeper and paralegal.

Finally, she was ready to make her move. She left her old jobs behind to go to law school. She was moving on up.

Unfortunately, her former boss - Garis Pruit - took ill. While he was recovering from surgery, he received a call from the bank.

His bank wanted to know why he was delinquent on his line of credit.

Mr. Pruitt thought Ms. Nixon had paid it off already.

An audit was performed. The audit found evidence that Ms. Nixon wasn't so much paying the law firm's bills, as she was paying her own bills with the law firm's money.

Specifically, she had access to the firm's American Express card.

She also had access to a Mary Kay Cosmetics credit card processing mechanism - so she could charge the firm's Amex to her Mary Kay account and take home the money.

She also wrote herself some checks from the firm's account. And she created a line of credit for the firm - that went to her - at the American Express Bank.

Here's how the Sixth Circuit, in United States v. Nixon, summarized the charges:

Nixon was indicted on eleven counts of wire fraud, in violation of 18 U.S.C. § 1343 (one count for each credit card charge that ended up in her [Mary Kay] account), two counts of bank fraud, in violation of 18 U.S.C. § 1344 (one count for each of . . . two checks written from the American Express Bank line of credit), three counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A (one count for using Pruitt's social security number and signature to set up and use the account at American Express Bank and two counts for each of the checks that she forged in Pruitt's name), and one count of using an unauthorized access device, in violation of 18 U.S.C. § 1029(a)(2) (for charging more than $1,000 on the firm's credit card without authorization).

The jury convicted her on every count.

On appeal, Ms. Nixon was represented by a former Bristow Fellow - Annie Owens at Wilmer Hale.

Ms. Owens argued for Ms. Nixon that the access device fraud conviction was not supported by sufficient evidence to allow a jury to convict.

Access device fraud under section 1029(a)(2) requires fraud involving as access device (it's really well named). "Access device" for these purposes, under 1029(e), means:

any access device that is lost, stolen, expired, revoked, cancelled, or obtained with intent to defraud

Thus, as the Sixth Circuit noted,

Key to the charged offense is that the intent to defraud be present both when the "access device" is obtained and when it is later used.

The Sixth Circuit concluded that the law firm Amex was not an "access device" as the term is used in the statute.

As the court of appeals said,

Here, the uncontradicted proof established that Pruitt had authorized Nixon to obtain the American Express credit card for his firm's use. Because there was no proof at trial that Nixon had the intent to defraud Pruitt or the firm at the time she obtained the credit card (as opposed to her later unauthorized use of the card), the government did not prove an essential element of the crime.

Congratulations to Ms. Nixon who is going back for resentencing on the other 16 counts of conviction.

Congratulations too to Ms. Owens for her work on this side of the criminal defense world.

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

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

She was not licensed by the state or local government to provide these drinks.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Third Circuit concludes:

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

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

As the court of appeals noted:

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

The convictions for witness tampering were vacated.

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

A Bank Robbery Gone Bad

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

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

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

They did not yield.

Mr. Whitfield and his companion sped away.

A Chase Gone Bad

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

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

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

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

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

Ms. Parnell died of a heart attack.

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

Mr. Whitfield Is Indicted

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

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

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

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

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

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

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

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

The Case Goes To The Jury

Mr. Whitfield's case went to trial.

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

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

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

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

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

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

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

The Fourth Circuit Vacates Mr. Whitfield's Conviction

He appealed.

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

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

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

As the Fourth Circuit put it,

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

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

And he'll be resentenced for that on remand.

The range is between 10 years and life.

Ours is a large and complicated government. Much of it isn't run by statutes or cases, but by regulations.

Violating a regulation can be a crime - depending on the regulation.

Regulations are strange animals. They can be challenged under the Administrative Procedures Act. If you don't like what an agency does, the APA gives you a mechanism to complain about it to a judge.

What happens if you're prosecuted for violating a regulation that can be enforced with a criminal penalty, and you think the regulation is no good? Can you complain about it in your criminal case?

The Ninth Circuit answered that, in United States v. Blacklund, with a resounding maybe.

Mr. Blacklund's Choice of Residence

Mr. Blacklund and his wife lived on a mine in a national forest. [FN1]

It was in the Umpqua National Forest in Oregon.

If you want to live on a mine in a national forest, you have to get the permission of the United States Forest Service.

The Forest Service will only give you permission to build a place to live on your mining site in a national forest if it's necessary to the mining operations to have a year-round residence in the forest.

As to the Blacklund's residence, the Forest Service determined that "year round occupation of the permanent camp trailer with the added room, roof, porch and fire wood storage area, is excessive even during the mining season."

The Blacklunds took exception to this decision, and things went back and forth with the Forest Service. Eventually, the Blacklunds appealed to the final level of administrative appeal within the Forest Service.

For those with an admin law background, they "exhausted their administrative remedies."

They did not then go to federal court to challenge the agency's determination.

Criminal Charges Are Brought

The U.S. Attorney's Office in Oregon then brought a misdemeanor criminal information against Mr. Blacklunds for violating 16 U.S.C. § 551 and 36 C.F.R. § 261.10(b).

Mr. Blacklund indicated that he intended to challenge the agency's action, as he would if he brought a suit against them through the APA. Mr. Blacklund wanted to assert that challenge as an affirmative defense.

The district court shut him down, preventing him from making such an affirmative defense.

He entered a guilty plea that preserved his ability to challenge the district court's decision.

The Administrative Procedures Act, Criminal Charges, And the Ninth Circuit

The Ninth Circuit reversed his conviction. It held that a person charged with a crime based on an agency action is able to challenge the agency's decision as an affirmative defense under certain circumstances.

The Ninth Circuit noted that there is a six-year statute of limitations for bringing a suit in federal court to challenge an agency action.

So, anytime during that six-year period, if the person exhausted their administrative remedies by previously challenging things with the agency, the person could bring a lawsuit to challenge the agency's action.

As the Ninth Circuit held,

We therefore hold that the APA affords a person in Blacklund's position at least two options for obtaining judicial review of the disputed agency action. He may file suit in federal district court under the APA, or he may challenge the agency's decision in a subsequent criminal proceeding. In either case, he must act within the six-year time limit.

Because a district court's erroneous decision to preclude a defense requires reversal unless the error is harmless, the conviction was vacated and the case was sent back.

What Happens Next?

One thing I don't understand from this is how the agency's action is challenged in the trial.

Normally, the legality of an agency's action is a question that a judge resolves. Normally, affirmative defenses are resolved by the jury.

Does the jury have to make the determination of whether the Forest Service's action complied with, say, the authorizing statute? Are they to be given jury instructions in Chevron deference?

[FN1] - There are mines in national forests? Huh?

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.

The 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.

Former Congressman William Jefferson, a son of New Orleans, will perhaps be best known for having been found with cash - cold, hard, cash - in his freezer.

He was convicted in the United States District Court for the Eastern District of Virginia of eleven charges in connection with a bribery scheme involving his role as a member of Congress and officials in Africa. In a major coup for his lawyer, he was not convicted of the offense involving the cash found in his freezer.

He was convicted, alas. And, the Fourth Circuit affirmed 10 of his 11 counts of conviction in United States v. Jefferson.

The one count they reversed on, though, is exceptionally interesting (to me).

Count 10 - Wire Fraud

Count ten of the indictment against Mr. Jefferson alleged that he violated the federal wire fraud statute, 18 U.S.C. § 1343.

This count was based on a telephone call from Africa to Kentucky on July 6, 2005. The government alleged that the call was in furtherance of a scheme that was hatched, in part, in the Eastern District of Virginia.

His lawyers challenged whether there was venue for such a call in the Eastern District of Virginia. After all, the call was started in Africa and accepted in Kentucky. That doesn't look like it affects the folks who live near the federal courthouse in Alexandria.

The district court rejected the venue challenge.

A Bit Of Background on Venue in a Criminal Case

In a criminal case, a person's right to proper venue is Constitutional - it's in article III, section 2, clause 3; "The Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed." It's also contained in Federal Rule of Criminal Procedure 18.

For many federal criminal statutes, Congress has expressly said where venue lies. Money laundering, under 18 U.S.C. § 1956 is a good example. Congress has said that a money laundering prosecution can go forward in any jurisdiction where the money laundering transaction happened, or where the illegal act that requires money to be laundered was done (assuming the person accused did the laundering).

But, for many federal statutes, there's no explicit venue provision. Wire fraud, as it happens, is one of those statutes.

In that case, the Supreme Court has said that a person can be prosecuted in the jurisdiction where the conduct that is prohibited by the statute took place.

Venue in a Wire Fraud Case

Simple enough. What's the conduct in wire fraud?

Mr. Jefferson's lawyers argued that the conduct for wire fraud is the making or receiving of the wire. That's what "wire fraud" is about - using a wire.

The government, on the other hand, said that the elements of wire fraud are (1) the use of a wire that is (2) in furtherance of a scheme to defraud. Either one of those elements is an act necessary to complete the offense, argued the government. As a result, the government said that if either happened in the Eastern District of Virginia, the prosecution was proper there.

In fairness to the government, the Seventh Circuit has said basically the same thing in United States v. Pearson, 340 F.3d 459 (7th Cir. 2003).

Thinking Up A Fraud Scheme Is Not Conduct

The Fourth Circuit sided with Mr. Jefferson. It held that,

The scheme to defraud is clearly an essential element, but not an essential conduct element, of wire (or mail) fraud.

Picking up the phone and making a call is an act. Similarly, for mail fraud, putting a letter in a mailbox is an act. But planning a fraud scheme, not so much. Quoting a Second Circuit case, United States v. Ramirez, 420 F.3d 134, 144-45 (2005), the court of appeals held that,

devising a scheme to defraud is not itself conduct at all (although it may be made manifest by conduct), but is simply a plan, intention or state of mind, insufficient in itself to give rise to any kind of criminal sanctions.

Because Mr. Jefferson only had a state of mind in the Eastern District of Virginia, and didn't use the phone there - Count 10 was dismissed for improper venue.

The moral of the story is that you can think about fraud where ever you'd like. Just only answer the phone where you want to face a jury.

As frequent readers of this blog know, the Armed Career Criminal Act gets a lot of appellate attention.

Simply put, if you've been previously convicted of a felony, and you're found with a gun, that's a federal crime. Normally, the most you can get for that crime is 10 years.

But, under the Armed Career Criminal Act, if you have three prior convictions for either a crime of violence or a drug distribution offense, then you face a mandatory minimum sentence of 15 years, and a maximum sentence of life.

That's a big change.

As I've written about before (here from the Ninth Circuit, here from the Fourth Circuit, here from the Eighth Circuit, and in two places from the Sixth Circuit, here and here, to suggest a few places to look), what counts as a "crime of violence" is really miles away from clear.

In short, the Armed Career Criminal Act is a mess. What counts as a qualifying predicate offense is light years from clear. And it's a mess that is causing thousands of additional years of prison time for people.

But don't take my word on it; the New York Times recently had an editorial about how wrong the ACCA is.

The New York Times writes that,

Justice Antonin Scalia has called this federal statute unconstitutional because some of its language is so vague that it "permits, indeed invites, arbitrary enforcement." In dissenting in a case last year, he wrote, "Many years of prison hinge on whether a crime falls within" the act.

The Eleventh Circuit addressed whether statutory rape counts as a "crime of violence" under the ACCA in United States v. Owens.

Statutory rape, basically, is the crime of having sex with someone who is too young to consent by law. In Alabama, the state law that matters in Owens, the age of consent is generally 16.

Mr. Owens was previously convicted, many times, for having sex with someone between the ages of 12 and 16 (we know the person was older than 12, because he was convicted of an offense with that age range - presumably having sex with someone younger than 12 has its own separate statutory section, and is punished more severely.

After picking up his statutory rape convictions, Mr. Owens was convicted of being a felon in possession of a firearm.

So, the question is - is statutory rape a crime of violence?

Initially, the Eleventh Circuit said yes. The court of appeals held that statutory rape involves the use of force on the person of another. Here's how the court summarized its conclusion from the prior opinion:

We explained that "the plain meaning of 'physical force' is power, violence, or pressure directed against a person consisting in a physical act." In interpreting the term "physical force" . . . , we noted that "a person cannot engage in nonconsensual sexual penetration with another without exerting some level of physical force." Because under Alabama law second-degree rape is sexual intercourse with a person incapable of consenting to the act, we concluded "that a second degree rape conviction under Alabama law must involve the use of physical force against the person of another."

There's a tidy bit of equivocation on the word "consent" between the second sentence and the third - a fifteen-year old can "consent" in the sense of the second sentence in a way that he can't in the third - but you get the court's idea.

Then the Supreme Court decided Johnson v. United States. As the Eleventh Circuit described the Court's reasoning in Johnson:

The Court reasoned that because "context determines meaning," the phrase "physical force" as used in the statutory definition of violent felony "means violent force - that is, force capable of causing physical pain or injury to another person." The word "violent" connotes "a substantial degree of force," and the implication of "strong physical force" is made even more pellucid by its attachment to the word "felony." "[T]he term 'physical force' itself normally connotes force strong enough to constitute 'power'-and all the more so when it is contained in a definition of 'violent felony.'" Thus, the Court concluded that battery under Florida law did not satisfy the definition of "violent felony"

So, for something to be a crime of violence, it necessarily, after Johnson, has to include violence.

In light of Johnson, the Eleventh Circuit's prior holding in Owens was remanded and the Eleventh Circuit considered it again.

On remand, the Eleventh Circuit changed course.

For this court to uphold Owens's sentence, we would have to conclude [statutory rape] "inherently poses a serious potential risk of physical injury to another" and consequently "qualifies as a crime of violence["] comports with the Johnson Court's definition of "violent felony" under the ACCA. We would be intellectually dishonest if we decided that in the affirmative.

The court of appeals noted that to secure a conviction for statutory rape

the government need only show that the offender is 16 years old or older and engaged in sexual intercourse with a person of the opposite sex who is between the ages of 12 and 16, without legal capacity to consent. See Ala. Code § 13A-6-62. The government is not required to show forcible compulsion

Since violence isn't required for statutory rape to be committed, statutory rape is not a crime of violence.

Mr. Owens is going back for resentencing.

James Kimsey was not a lawyer.

But when Frederick Rizzolo was deep in a hard bit of contentious litigation, James Kimsey wanted to help out. Mr. Rizzolo's lawyers withdrew from the case. Mr. Rizzolo tried to go on without a lawyer, but his efforts were poor. One can imagine that Mr. Rizzolo felt the situation was bleak.

James Kimsey came to the rescue. While not a lawyer, Mr. Kimsey had some prior legal experience - he was previously sanctioned for the unauthorized practice of law. He was also, apparently, willing to work for free.

Mr. Kimsey ghostwrote some of Mr. Rizzolo's pleadings in his civil case. He seemed to be acting a lot like a lawyer. He wrote a summary judgment motion. He cited to Erie Railroad Co. v. Thompkins. I suspect he even wore a blue suit with a red tie.

Unfortunately, Mr. Rizzolo's opposing counsel got wind of the help Mr. Kimsey was providing. He filed a "Motion to Reveal Pro Se Litigant Rick Rizzolo's Ghost Writer."

The Motion to Reveal went to a hearing. A United States Magistrate Judge determined that Mr. Kimsey was ghostwriting pleadings for Mr. Rizzolo. The Magistrate Judge referred a prosecution for criminal contempt to the United States Attorney's Office.

18 U.S.C. § 402

Mr. Kimsey was prosecuted under section 402 - the criminal contempt of court statute. Eighteen U.S.C. section 402 reads:

Any person, corporation or association willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title and shall be punished by a fine under this title or imprisonment, or both.

The government argued that Mr. Kimsey violated this, by breaking one of the standing local rules of the Court that says that only lawyers can practice law in federal court.

Mr. Kimsey asked for, and was denied, a jury trial. He was convicted. And, in United States v. Kimsey, the Ninth Circuit reversed, and dismissed the criminal contempt charges against Mr. Kimsey.

Mr. Kimsey's case was reversed for two reasons. First, he had a right to a jury trial that was not honored. Second, the Ninth Circuit held that violating a local rule does not subject a person to criminal contempt.

A Statutory Jury Right

Normally, if the most you can receive in prison is six months or less, you do not have a right to a jury trial. The constitutional right to a jury trial only kicks in after you are eligible for a sentence or more than six months.

However, Section 402 refers to 18 U.S.C. § 3691. Section 3691 grants a right to a jury trial. Thus, even though there was no constitutional jury trial right, there was a statutory jury trial right. And, Mr. Kimsey didn't get one.

So the case was remanded for that reason.

There Are Rules and Then There Are Rules

More significantly, though, the court of appeals held that a local rule is not the kind of rule that a person can be punished with criminal contempt for violating.

This was a straightforward question of statutory interpretation - does violating a "rule" mean (a) violating a local rule or a court rule (e.g., the Federal Rules of Civil Procedure) or (b) violating a rule directed at a specific person (or narrowly defined class of persons).

The district court assumed that it meant (a), as had the Ninth Circuit and Seventh Circuits earlier. Though, assuming isn't the same as deciding, so the Ninth Circuit reconsidered the question here. Moreover, the D.C. Circuit had actually decided that "rule" for these purposes means something directed at a specific person.

The court of appeals looked at what the dictionary says -- though sadly the dictionary from the time that section 402 was made law has both definitions. So, the Ninth Circuit had to turn elsewhere.

A Word Is Known By The Company It Keeps

The appellate court, implicitly following up on Judge Posner's observations about statutory interpretation and reading words in context, noted that,

although standing court rules already existed in the early twentieth century,9 and so, based on etymology alone, it would not be inconceivable that § 402's use of the term "rule" referred to them, this possibility is severely under- mined by the application of a basic canon of statutory interpretation: "The canon, noscitur a sociis, reminds us that a word is known by the company it keeps, and is invoked when a string of statutory terms raises the implication that the words grouped in a list should be given related meaning."

Noting that the string of words in section 402 is actually "any lawful writ, process, order, rule, decree, or command of any district court of the United States" and that each of these is an action directed at a person specifically - except perhaps "rule" - the court of appeals read "rule" to mean something directed at a person specifically too.

You Will Not Probably Go To Jail For Using Comic Sans

The court of appeals also reasoned that allowing a criminal contempt prosecution for violating a local rule would lead to a deliciously absurd result:

If "rule[s]" encompass local court rules, then . . . a court would be able to fine or imprison attorneys for, let's say, failing to conform to local rules specifying the width of margins, appropriate typeface, or kind of paper used for pleadings. See, e.g., D. Haw. L.R. 10.2 ("All documents presented for filing shall be on white opaque paper of good quality . . . with one inch margins . . . ."); C.D. Cal. L.R. 11-3.1.1 ("A monospaced [type]face may not contain more than 10-1/2 characters per inch."); C.D. Cal. L.R. 11.3.2. ("All documents shall be submitted on opaque, unglazed, white paper (including recycled paper) not less than 13-pound weight."). It is at least exceedingly unlikely that Congress intended to authorize convictions of criminal contempt for disobeying ministerial, generally applicable requirements forbidding low-quality paper or excessively small type.

Though I suspect some workers in some court's Clerk's offices would not see criminal sanctions for using the wrong font or paper as a bad result.

Deanna Costello's love knew no boundaries. Literally. For years she had a romantic relationship with a man who was not in the United States lawfully. It led to a strong judicial slapdown of the Department of Justice by one of our nation's leading jurists, in United States v. Costello.

Ms. Costello's Boyfriend

Ms. Costello lived in Cahokia, Illinois, perhaps five miles from St. Louis. She lived with a man from Mexico for a year ending in July 2003. That time ended when he was arrested on a federal drug charge. He plead guilty and was sent back to Mexico after his prison sentence.

In March of 2006, Ms. Costello picked her boyfriend up at the bus station in St. Louis. She drove him to her house, where they lived until October 2006. Sadly, he was then arrested on new drug charges, and the couple were again separated. As the court of appeals noted, he "was given a stiff prison sentence."

Ms. Costello was charged with harboring an alien. She went to a stipulated facts trial - basically a trial where she and the government agree what happened, they simply disagree about whether what happened was a crime.

She was convicted. The district court sentenced her to two years probation and a $200 fine.

The Appeal

She appealed. Judge Posner, writing for the Seventh Circuit, reversed, in an opinion as critical of the government as any I've read in a very long time.

Judge Posner concluded, basically, that harboring an alien does not include having a person in the country unlawfully as a live-in boyfriend.

Judge Posner started by noting that "[t]here is no evidence that the defendant concealed
her boyfriend or shielded him from detection" and that, indeed, since he was arrested at her house several times, it's more likely that law enforcement would find him if he was there than, say, at a relative's house.

Or, alternatively,

The defendant in the present case was not trying to encourage or protect or secrete illegal aliens. There is no suggestion that she prefers illegal aliens as boyfriends to legal aliens or citizens. She had a boyfriend who happened to be (as she knew) an illegal alien, and he lived with her for a time.

A Car Ride Is Not Harboring

The district court made much of Ms. Costello having driven the man from the bus station to her house. Judge Posner wasn't impressed with this fact, noting that

the distance was so short--about six miles--that in a pinch he could have walked. And had he wanted to take public transportation he could have used the St. Louis metro transit system; the price of his ticket would have been $2.75. (That is the price today; it probably was lower in 2006.) There is nothing to suggest that the two of them had prearranged the pickup, or that, had she not picked him up, he would have returned to Mexico. (We don't know how long he had been in the United States.)

A car ride is not harboring an alien.

Judge Posner spent considerable time considering the meaning of "harboring" in the statute criminalizing harboring an alien. Judge Posner considered the way "harboring" is used, and the breadth of the anti-harboring statute if "harboring" covers Ms. Costello's conduct.

The Government's View of Harboring Is Absurd

Judge Posner was concerned that the government's view of what counts as harboring sweeps lots and lots of conduct into the criminal law. In perhaps the most awkward - yet at the same time still awesome - sentence he's ever written, Judge Posner asks:

is it likely that Congress intended that parents whose child invites an immigrant classmate who, as they know, is illegally in the country to a sleepover might be branded as criminals even if he didn't accept the invitation, since the statute criminalizes attempts?

The court of appeals also points out the absurd consequences of the government's statutory interpretation,

an illegal alien becomes a criminal by having a wife, also an illegal alien, living with him in the United States; if they have children, born abroad and hence illegal aliens also, living with them, then each parent has several counts of criminal harboring, on the government's interpretation of the statute.

Judge Posner Doesn't Trust The Government

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

Down with the Dictionary

In perhaps my favorite section of the opinion (though there are many) Judge Posner criticizes the government's use of the dictionary -

"Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings A sign in a park that says "Keep off the grass" is not properly interpreted to forbid the grounds crew to cut the grass.

To try to learn how "harboring" is normally used, Judge Posner turned to Google:

a search based on the supposition that the number of hits per term is a rough index of the frequency of its use--reveals the following:

"harboring fugitives": 50,800 hits
"harboring enemies": 4,730 hits
"harboring refugees": 4,820 hits
"harboring victims": 114 hits
"harboring flood victims": 0 hits
"harboring victims of disasters": 0 hits
"harboring victims of persecution": 0 hits
"harboring guests": 184 hits
"harboring friends": 256 hits (but some involve
harboring Quakers--"Friends," viewed in
colonial New England as dangerous heretics)
"harboring Quakers": 3,870 hits
"harboring Jews": 19,100 hits

It is apparent from these results that "harboring," as the word is actually used, has a connotation--which "sheltering," and a fortiori "giving a person a place to stay"--does not, of deliberately safeguarding members of a specified group from the authorities, whether
through concealment, movement to a safe location, or physical protection.

Because Ms. Costello was not keeping her boyfriend from the authorities - rather she was just keeping him to herself - she was not harboring. She was merely entertaining.

And entertaining an alien is not against the law.

As the internet has made it easier for people to share information - from snarky comments about published criminal cases in the federal circuits, to snarky comments about politics or the Academy Awards - it has made trading child pornography much easier.

Twenty years ago, to trade child pornography, you had to use the mail or meet someone with the same interest. Now, just about any person with an internet connection can find this contraband in less than an hour.

The easy flow and production of child pornography is a serious social problem. My concern is that the only solution we seem to be thinking about is to criminalize the market for it and make the punishments for participating in this market draconian.

A Very Large Opinion

The Eleventh Circuit's opinion in United States v. McGarity is a glimpse into the world of child pornography.

Law enforcement learned of a massive online collective of child pornography users. The ring used a sophisticated web of encryption, changing bulletin boards, and membership tests to weed out law enforcement and communicate with each other.

It had leaders - using names such as "Yardbird" "Helen" "Soft" and "Tex" who enforced security and internal discipline. They also decided who was able to join.

After an investigation into the group, fourteen people were arrested. None of the people arrested was a leader in the child pornography ring - though "Helen" was prosecuted in Britain.

The men prosecuted in the United States received sentences ranging from twenty years to fifty years. The leader of the ring, "Helen," was sentenced in Britain to 12 and a half years.

The court of appeals opinion in McGarity is a massive 130 pages. Much of the case in the district court was affirmed, though there were some defense victories of note.

Obstruction of Justice

All the men charged were also charged with obstruction of justice under 18 U.S.C. 1512(c). The superseding indictment, following the language of the statute, accused the men of trying to obstruct an official proceeding. It did not say what that proceeding was.

The Eleventh Circuit held that this was insufficient. Following an opinion from the First Circuit, the court of appeals held that if the government is going to charge obstruction of an official proceeding, it has to say what official proceeding was obstructed.

This is a neat exception to the general rule that a prosecutor has to merely parrot the statute in order to adequately allege an offense. The Eleventh Circuit said that an indictment that doesn't say what official proceeding was obstructed doesn't provide enough notice of how the law was broken. This is fair enough - it's just also true of, say, 75% of the indictments that come out of a federal grand jury.

It's a step in the right direction at least.

Those convictions were vacated and that count of the superseding indictment was vacated.

CEE Requires Three

Finally, all of the men accused were convicted of a violation of statute that criminalizes participating in a Child Exploitation Enterprise under 18 U.S.C. § 2252A(g). A CEE charge requires that the jury finds that a person participated in a series of at least three other child pornography offenses.

Yet one of the men accused was convicted of the CEE charge and was only convicted of two underlying child pornography charges. His CEE conviction was vacated.

Conspiracy is a Lesser Included Offense of CEE

Many of the men were also convicted of conspiracy to do things relating to the distribution of child pornography. They were also convicted of the CEE charge. They argued that the conspiracy charge was a lesser included offense of CEE. For that reason, the conspiracy charge should be vacated, under double jeopardy principles. (see this post for a more thorough explanation of the double jeopardy principles involved).

As luck would have it, the guy who had his CEE conviction vacated because he was only convicted of two underlying acts was also convicted of conspiracy. His conspiracy conviction stands.

In an en banc opinion, last week the Ninth Circuit agreed with Occupy Wall Streeters that corporations are not people. Sadly for those in Zuccoti Park, the court of appeals opinion is limited to whether corporations come within the scope of a federal statute that criminalizes sending threats through the mail. Unlike the Supreme Court of Montana, the Ninth Circuit is not going to ignore Citizens United. But, for the American incarnation of Time's Person of the Year, it's a start.

Kurt Havelock

It isn't clear to me whether Kurt Havelock would approve of the larger political point about corporate personhood that his case represents. Clearly, Mr. Havelock has political views.

Five days before Super Bowl XLII, Mr. Havelock bought an assault rife and ammunition. He studied the area around the game. He prepared a media package.

On game day, he finalized and mailed a package to a number of media outlets, including the New York Times, the Los Angeles Times, the Phoenix New Times, and the Associated Press. He also included two music web sites on his mailing list - apparently because he had some trouble running a music venue earlier in his career.

The mailings included a number of statements that he had decided to choose "suicide by cop" and that he shouldn't be resuscitated if that was an option. They also included a "Manifesto." As the Ninth Circuit describes it,

Havelock's Manifesto was, in equal parts, a fractured meditation on the purported evils of American society and a past tense account of the experiences, beliefs, and convictions that set off his anticipated "econopolitical confrontation." Punctuating the Manifesto were references to the Founding Fathers (Benjamin Franklin, Thomas Jefferson), cultural icons (John Rambo, Mad Max, Bugs Bunny), musical groups (Pink Floyd, AC/DC, Bad Religion), video games (Donkey Kong, Grand Theft Auto, State of Emergency), literature (Alice in Wonderland, The Catcher in the Rye), and motion pictures (Road Warrior, Hostel, The Astronaut Farmer). Quotations abounded as well, drawn from such diverse sources as the Hebrew Bible, H.P. Lovecraft, and Pastor Martin Niemöller.

More relevant to what he was seeming to plan, the Manifesto said,

[Y]ou have attacked my family. You have destroyed the futures of my children. So now, I will reciprocate in kind. Only mine will not be the slow crush of a life of a wage slave, or of malnutritioned [sic] sicknesses, or of insurmountable debt. It will be swift, and bloody. I will sacrifice your children upon the altar of your excess . . . . . . . So I will make the ultimate sacrifice; I will give my life. And I will take as many of the baneful and ruinous ones with me. . . . I will slay your children. I will shed the blood of the innocent. . . . Perhaps tshirthell.com or rottencotton.com will print up some cool tshirts [sic] like 'I SURVIVED SUPERBOWL XLII.'

Thankfully, sitting in the parking lot outside of the game, Mr. Havelock had a change of heart.

He called his fiancé, and told her he was having bad thoughts. He went to the local police, and surrendered his assault rifle. The police called in the FBI, who took a recorded statement.

The United States District Court and Mr. Havelock

Mr. Havelock was then charged with six counts of mailing threatening communications under 18 U.S.C. § 876(c). He was lucky to have a very good lawyer. His lawyer filed a motion to dismiss the indictment that made two arguments.

He argued that Mr. Havelock wasn't making threats - rather, he was putting events that would have already happened into context. As Mr. Havelock imagined it, he would be dead by the time his packages arrived. He, therefore, wouldn't be in a position to carry out any harm to those who received his letters.

He also argued that his letters were sent to corporations, and that corporations are unable to be the subject of a threat under section 876.

The district judge denied the motion. Mr. Havelock was convicted at trial. He was sentenced to 366 days in prison - a year and a day.

He appealed, raising the same issues that were in his motion to dismiss.

The Ninth Circuit

In both a panel opinion and in the en banc opinion, the court of appeals resolved the appeal, and dismissed Mr. Havelock's conviction, on the basis that he threatened corporations, and corporations are not people for purposes of the federal threats statute. Neither the panel nor the en banc court addressed Mr. Havelock's other issue.

Section 876 makes it a crime to mail a communication "addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another."

The en banc court noted that "person" has been restricted to just natural persons in other contexts. For example, when talking about who gets to file in court for free because they are too poor, the Supreme Court has said that only natural people get that benefit, despite the statute's use of the term "person" to say who can file for free.

So, the court reasoned, it's possible for "person" to mean just humans and not corporations in a federal statute. The court of appeals then turned to section 876 and how it uses the term "person." The court noted that,

The term "person" is used no less than twelve times in § 876. See 18 U.S.C. § 876. The term is used in various associations, including: "release of any kidnapped person," "any threat to kidnap any person or any threat to injure the person of the addressee or of another," "the reputation of a deceased person, or any threat to accuse the addressee or any other person of a crime." See id. These associations clearly require that "person" mean a natural person. It simply makes no sense to threaten to kidnap a corporation, or injure "the person" of a corporation, or talk about a deceased corporation.

Based on that, the Ninth Circuit concluded that the same term - "person" - should mean the thing each time it is used in the statute. Because it clearly means "natural person" then a threat to a corporation doesn't count.

Mr. Havelock's conviction was, thus, vacated.

What Do We Do With This?

Perhaps Mr. Havelock was simply lucky that he didn't plan to shoot up the Super Bowl with any other person. Federal conspiracy law would have allowed him to be charged for conspiracy for what he did in planning this and putting the letters in the mail - as long as he worked with someone else to do it.

But without a conspiracy, mailing threatening letters seems an odd thing to charge.

Looking at the facts of Mr. Havelock's conduct, at least as presented in the Ninth Circuit's opinion, it doesn't look like he committed this crime. His letters were meant to go out after he already thought he'd be dead - how can that be a threat?

Indeed, what crime did Mr. Havelock commit? I get that no one likes his behavior - surely the jury verdict was prosecution-friendly jury nullification - but if we're not going to criminalize thoughts (as we shouldn't) and we're going to have the gun laws we have, then mentally unstable loners may just get to sit with a gun outside the Super Bowl thinking murderous thoughts.