Articles Posted in Criminal Strategy

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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.

Then, with the undercover, they suit up, grab their guns, and plan to rob the stash house. All of this is on video. Then they’re arrested (the agents make sure there are no bullets in the guns).

There is so little real crime in the world, the ATF has to make fake crime to investigate.

Law enforcement is often criticized for going after only the low hanging fruit. The clever folks at the ATF are taking it a step further and making up their own fruit to go after – they’re going after synthetic fruit.

Ok, so these cases are a moral abomination and they’re completely stupid. That said, prosecutors have a lot of discretion to prosecuted stupid cases. And judges generally can’t dismiss a case because of stupidity.

An Awesome Discovery Request

One of these cases, though, wound up with the extremely clever people at the University of Chicago’s federal criminal clinic.

There, the government indicted seven folks for conspiracy to possess the cocaine that didn’t exist in the stash house that the government knew they were never going to rob.

The folks at Chicago’s federal criminal clinic decided that, while they couldn’t explore the stupidity of the program directly, they could make a preliminary showing that these are discriminatory – that black folks are prosecuted more than others – and get some really good discovery from the government. So they requested the following documents:

  • a complete listing of stash-house cases initiated by the United States Attorney with the involvement of the ATF or the FBI in the Northern District of Illinois from 2006 forward, along with disclosure of the race of each defendant charged in these cases;
  • the factual basis for the decision to initiate or pursue an investigation against the defendants named in the cases identified by the defense;
  • disclosure of any prior criminal contact between the defendants in each case and the agency responsible for investigating the case;
  • internal ATF and FBI manuals, correspondence, and other documents addressing fictitious stashhouse scenarios, including the protocols and directions to agents and informants with respect to such scenarios; and
  • any documents addressing how supervisory personnel are to ensure that individuals in such scenarios are not targeted on the basis of race, color, ancestry, or national origin.

And the district court said yes – the defense gets these documents.

The Government Wants Appellate Review

The government said that it really didn’t want to turn over these documents. Instead, it wanted the Seventh Circuit to review the district court’s decision.

So they asked the district court to dismiss the case without prejudice so they could appeal.

But a funny thing happened on the way to appellate review in United States v. Davis. The Seventh Circuit held that this trick – getting review by getting a district court to dismiss without prejudice – doesn’t make the decision appealable. Because the dismissal is only without prejudice, the government can just re-indict. And because they can just re-indict, the decision isn’t a final one. And because it isn’t a final one, it can’t be reviewed.

Grand Jury Indictments Are A Bother

Perhaps my favorite part of this case is where the government argues that the burden of securing a whole new indictment is so high that a dismissal without prejudice is really quite final for purposes of appeal.

This is really very precious. The government has to go into a grand jury that’s probably on a whole different floor from their office and put an agent on for maybe an hour. That walk and hour of testimony is wearying, to say nothing of the .00001% chance that the grand jury will decline to indict.

The Seventh Circuit took no time slapping this down:

it seems safe to say that the likelihood of a grand jury reindicting the defendants is high and the difficulty of presenting the case a second time to the grand jury is minimal, given that the government’s own undercover agent was a witness to most of the key events in the charged conspiracy.

The decision is a must read for anyone who is deep in the woods of finality and appealability. The rest of us will, I suspect, just have to wait to learn what was in that discovery that the government wanted to hide.

Or, better, maybe the government will get out of the business of prosecuting fake crime.

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One of the trickiest problems in a criminal trial, in federal court or any other court, is determining if the person accused of a crime should testify.

On one hand, the jurors instinctively want to hear what the person has to say. They’re instructed not to hold it against him if he doesn’t testify, but, as a matter of human psychology, people want the guy who just sat and listened to others say bad things about him to say something back.

Dice.jpgAnd, of course, the person on trial may have something useful to say in his own defense.

On the other hand, if the person has a criminal record, by testifying the government can often introduce that criminal history to the jury – if it wasn’t already presented.

Worse, in federal court, a person who testifies and is convicted runs the risk of being assessed a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1.

Doesn’t that violate a person’s right to testify in their own defense? you may wonder. As it happens, the Supreme Court heard an argument to that effect – and rejected it – in United States v. Dunnigan.

The Court acknowledged that in prior precedents

we indicated that the ordinary task of trial courts is to sift true from false testimony, so the problem caused by simple perjury was not so much an obstruction of justice as an expected part of its administration

Nonetheless, because section 3C1.1 does not apply to every defendant who testifies and is convicted, the Supreme Court held that section 3C1.1 passes constitutional muster and does not unduly infringe on a person’s right to testify in his defense.

The obstruction enhancement was at issue in the Fourth Circuit’s opinion in United States v. Perez.

In Perez, the person on trial testified in his own defense. He was convicted. At sentencing, the district court determined that the two-level bump under 3C1.1 applied because:

[T]he fact remains that the jury decided this matter unfavorably toward Mr. Perez. . . . the Court agrees that the government witnesses were more credible, from the Court’s perspective, than was Mr. Perez . . . The Court believes that the jury reasonably accepted testimony of the government witnesses, rejected that of Mr. Perez and the Court believes that Mr. Perez’s testimony at trial was not credible and constituted obstruction of justice.

The Fourth Circuit used Perez as an opportunity to discuss what a sentencing court has to find in order to impose an adjustment under 3C1.1. Mindful that the Supreme Court requires that the enhancement not apply in every case where a person testified and was convicted, the Fourth Circuit clarified that 3C1.1 only applies when the person on trial:

“(1) gave false testimony; (2) concerning a material matter; (3) with willful intent to deceive”

The Fourth Circuit, though, seemed troubled by how easy it can be for a sentencing court to impose this enhancement. For that reason, the Fourth Circuit now requires that a district court

must provide a finding that clearly establishes each of the three elements. With respect to willfulness, for example, it would, in the usual case, be enough for the court to say, “The defendant knew that his testimony was false when he gave it,” but it could not simply assert, “The third element is satisfied.” While some may suggest this is little more than an empty formality, we believe it serves a vital purpose.

Because the district court in Perez did not do this factfinding, the court of appeals reversed and remanded for a new sentencing hearing.

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As I blogged about before, it is not a crime to violate MySpace’s terms of use. And, now, there’s a judicial opinion that sets forth the court’s reasoning!

Here’s the key language:

[T]he question is whether individuals of “common intelligence” are on notice that a breach of a terms of service contract can become a crime . . . . Arguably, they are not.

And, as any good student of fair notice jurisprudence knows, if it’s arguable that a course of conduct isn’t within the scope of a criminal statute, the constitution says the conduct isn’t subject to prosecution.

Thus, the court concludes that,

Treating a violation of a website’s terms of service, without more, to be sufficient to constitute “intentionally access[ing] a computer without authorization or exceed[ing] authorized access” would result in transforming section 1030(a)(2)(C)

into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals.

The opinion is thorough in its analysis and makes a number of great points. My hope is that this is a high water mark in federal government over prosecuting, but my fear is that this case will be cited a lot. If you’ve read this far, you should probably check it out.

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.

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There’s a story out of Connecticut that I find particularly troubling; a woman has entered a guilty plea to obstruction of justice after lying to federal agents in a health care fraud investigation. To my mind, obstruction of justice charges have one cause – failing to hire a lawyer when you need one.

Too many people think they can go it alone in a federal investigation and wait to hire a lawyer. This is a mistake. To be sure, there are drawbacks to hiring a lawyer – lawyers are expensive, they take time, they tell you things you may not want to hear. But they also can advise you how to act when you, or someone you know, is caught up in an investigation.

The woman in this story said she lied about whether a patient signed an admissions form. One may think that some folks are liars and some folks aren’t and that hiring a lawyer won’t make a difference. I disagree. A good lawyer can intelligently explain why lying is a remarkably bad strategy when you’re caught up in an investigation.

Moreover, most folks who are going to lie, lie when someone is talking to them. Hiring a lawyer early is an excellent way to make sure that you have to do the least amount of unaccompanied talking possible. And reducing the amount of your unaccompanied talking is a good way to reduce your exposure to an obstruction of justice charge.

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.

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Hes now a big fan of the Second Circuit

The Second Circuit has rebuffed the New York Times’ attempt to get access to the information learned from wire taps of the folks involved in the Emperor’s Club, the same organization that brought down Eliot Spitzer.

The opinion is here.

The result seems obvious, to me at least. Certain parts of a judicial proceeding are not public. Grand jury proceedings, for example. The court lists these proceedings at length in footnote 4.

Wiretaps just look more like grand jury proceedings than, say, public criminal trials. There is, thus, no First Amendment right of access for the press, just like there’s no First Amendment right of access to a grand jury.

Though, happily, there is reason to think that we may have Eliot Spitzer to kick around a little bit more, despite the Second Circuit’s ruling.

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.

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Brace yourselves, because, according to the National Law Journal, the Department of Justice is hiring more lawyers to rain grand jury subpoenas and search warrants on the doctors and executives of the United States.

Do Not Accept Service From This Man

This should probably not be surprising, since the government has been pretty clear about what they’re doing with health care investigations. And, on the campaign trail, Obama was hardly secretive about wanting to prosecute executives.

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.

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In Melendez-Diaz, the Supreme Court held that the information in laboratory technician reports can only be introduced against a criminal defendant if the person has had the opportunity to cross-examine the lab tech who did the testing.

This has created an outcry among prosecutors and others. (See previous coverage on the topic on this blog here and here). Admittedly, the decision is a change in the way business has been done in our criminal courts. Such a change is bound to be met with resistance, because it will create more work for the government to convict people.

I received an email from a friend of mine about the effect of Melendez-Diaz on the war on drugs. Drug prosecutions work only because they are able to be done in volume. If the defendants refuse to plead, and prosecutors have to call lab techs, they can quickly overrun the system such that drug prosecutions will quickly become rare.

One writer argues that Melendez-Diaz is a bad idea because,

The proliferation of drug arrests would cripple our state toxicology laboratory if a witness were required in every drug trial. In nearly all instances, the testing is reliable so requiring the toxicologist to appear is no more than a formality. It’s rare where a legitimate challenge can be raised to the reliability of a particular drug screening.

I think this is wrong; Melendez-Diaz is good policy for two reasons. I’ll explain what they are, after the jump.

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.
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At the risk of turning this into the Melendez-Diaz blog, I will note that there is a nice article in the Washington Post this morning about a Virginia court throwing out a DUI because of Melendez-Diaz.

Perhaps my favorite part of the article:

[A] phalanx of defense lawyers who watched the hearing left the courtroom quietly jubilant and congratulating colleague David Bernhard, who first tried to use the new Supreme Court ruling on the same morning it was issued. That caused Roush to crack, “You’re going to make me read Justice Scalia before lunch?”

A hearty congratulations to Mr. Bernhard!

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.

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The D.C Court of Appeals has dismissed a conviction relying on Melendez-Diaz! The case is Tabaka v. District of Columbia.

The Court determined that, after Melendez-Diaz‘s very powerful language about how a Certificate of Nonexistence of Record (a “CNR”) is a testimonial statement which requires a person have a right to cross-examine the person offering the evidence, a conviction which was based on such a certificate must be dismissed.

The Supreme Court’s analysis conclusively shows that the CNR in this case, “a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it,” id., was inadmissible over objection without corresponding testimony by the . . . official who had performed the search.

It’s a humble case, involving the offense of driving when a driver’s license hadn’t been issued, but, hey, it’s a start.

In other D.C. Court of Appeals news, the Court held that a 911 call immediately after a shooting, where the caller spent a most of the call describing the shooter, was only for the purpose of allowing police to respond to an emergency.

The statements made by an unknown 911 caller about the clothing worn by the person who had recently discharged a gun, as well as the sequence of events that surrounded the shooting, were not made to help the police prosecute the shooter later (though they did prove very useful for that purpose).

Thus, there was no Confrontation Clause right that attached to those statements, so the person’s trial wasn’t constitutionally infirm, which, I’m sure, is a huge relief to everyone.

When it comes to the Confrontation Clause, the D.C. Court of Appeals giventh, and it taketh away.

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.

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Admittedly, I’m a little worked up about Melendez-Diaz. It’s a pretty exciting decision.

What’s worrisome, of course, is that the Supreme Court has the power to change it. Melendez-Diaz was a 5-4 decision, and Justice Souter was in the majority. Which means that if a Justice Sotomayor thinks that it was wrongly decided, it could be gone tomorrow.

There is reason to think Justice Sotomayor will not be great for criminal defendants and their lawyers in general. As a biographical matter, she’s a former prosecutor, and former prosecutors tend to look at the world a little differently than criminal defense lawyers do.

More significantly, there is reason to think that her prior opinions are not exactly defendant-friendly. That said, maybe her biography means things will be a little more nuanced.

But, happily, someone asked her about Melendez-Diaz in her confirmation hearings!

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.
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