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the-money-trap-621161-m.jpgAs I’ve been writing about a lot over on Above the Law, one thing that is really not good about the federal criminal system is that it is extremely hard to attack government conduct.

This isn’t to say that all prosecutors or cops are bad. But they have massive amounts of unchecked power. And, my view at least, is that human nature is such that any given with power has at least a decent chance of abusing it. Prosecutors and cops aren’t saints – some of them are going to do what they ought not. And, when that happens, absent an egregious Brady violation and a really good judge, nothing much is likely to happen to the prosecutor.

Perhaps the hardest part of this is in entrapment law. The government should be in the business of catching crime, not creating crime to catch.

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

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

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

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Editor’s Note – We’ve never had a guest post before, and normally I give a blanket no to a request for one. But, Assistant Federal Public Defender extraordinaire Jon Jeffress wrote a great piece about the D.C. Circuit’s recent decision in United States v. Hite that I’m very pleased to publish here.

If you’re looking at this as a precedent for other guest posts, please know that if you are an AFPD or credible attorney working in the federal system on criminal cases, I’d be happy to look at anything. Otherwise, no.

Finally, I should say that the opinions here are solely Jon’s, not those of his office or anyone else. Except where he’s quoting the D.C. Circuit – those are the opinions of the Circuit.

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Fake stash house robbery cases are an embarrassment to a civilized society.

Here’s what happens. An undercover ATF agent finds a guy and does some deals with him. He then tells the guy he knows of a stash house where there are a lot of drugs and guns. Probably money too. Maybe a unicorn. Whatever it takes to get the guy interested.

The guy gets some other guys involved. They get weapons and gear up for this robbery of someone they believe is a drug dealer.

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Child porn cases are turning out to be a surprisingly large portion of what’s in federal court.

Child pornography is gross and wrong, to be clear. But these cases are, I think, a symptom of a larger problem.

All of us have times in our lives when we’re in the wilderness, when we feel adrift and alienated and unsure of where we’re going or where we are. Some folks in this time of life turn to alcohol, Some turn to drugs, video games, or other ways to keep themselves from facing the great chasm of dissatisfaction that their lives have become. “The mass of men lead lives of quiet desparation” and all that.

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It’s been an interesting few weeks in the circuits (and, apologies for the gap in posting – pesky family vacations).

Probably my favorite is United States v. Mergen, about whether an FBI agent’s statements that what the guy charged with a crime was doing were ok and legal were admissible. I tend to think FBI stings that take advantage of how weak the entrapment defense is are one of the more loathsome things our federal government does – any time you can poke holes in that I think it’s a good thing.

Also of note is United States v. Bagdy – there, a guy who spent an inheritance on stuff that wasn’t restitution, instead of restitution, didn’t violate his supervised release conditions. Supervised release can be insane – especially when restitution is in play. Nice work for the Third Circuit in dialing it back.

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It is rare and wonderful to see an entrapment opinion. And United States v. Kopstein fits the bill.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Kopstein, Second Circuit: Appellant was convicted by a jury of transporting and shipping child pornography. During trial, Appellant’s sole defense was entrapment. The conviction was vacated and the case remanded because the jury instruction on entrapment failed to consistently and adequately guide the jury. Here, a jury instruction on the lesser-included offense of possession would allow the jury to return a verdict of guilty on the transporting and shipping charge, even if the jury found Appellant not guilty of possession. This was confusing because it would allow the jury to render a verdict of guilty on the greater offense even if the prosecution had failed to prove a necessary part of its case (the lesser offense).

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Lester and Nancy Sadler, a husband and wife, ran a series of pain management clinics in Ohio.

As the Sixth Circuit explained, “these were not conventional plain clinics.” For example, at one clinic

patients would arrive well before it opened, filling the clinic’s parking lot and the lots of nearby businesses. While waiting for the clinic to open, the patients used drugs and traded prescription forms for cash in the parking lots. The patients often traveled long distances (and in large groups) to come to the Sadlers’ shops, sometimes as much as 316 miles in a roundtrip, even though most of the patients lived much closer to other clinics.

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

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

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

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It’s a relatively slow week in the federal circuits.

My favorite case of the last week is United States v. Torres Pimental. You’ve got to love a suppression motion being granted off of a government delay in presentment.

To the victories!