Articles Posted in Evidence and Trials

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Entrapment is making a comeback.

As a defense I mean. It started making a comeback as a government tactic shortly after September 11 before it migrated to the non-national security law enforcement world.

And the Seventh Circuit appears to be the new home of the entrapment defense as it rises, phoenix-like, on the shores of Lake Michigan. In United States v. Barta, the Seventh Circuit again affirmed the new strength of an entrapment defense in that part of the country.

If you remember one quote from this opinion, remember this one: “The point is that the government is supposed to catch criminals, not create them.”

the-venus-flytrap-4-1234316-m.jpgMr. Barta’s Business

James Barta founded a company called Sav-Rx. Sav-Rx was a “prescription benefit management business.” I believe that means that they help businesses that offer a prescription benefit to their employees with that.

Mr. Barta Meets with the FBI (Unwittingly)

In any event, Mr. Barta came to meet with a man named Castro. Or, referred to as Castro, since he was actually an undercover FBI agent. Castro was known as a guy who could deliver contracts with people at Los Angeles County. He delivered those contracts by bribing them.

When Mr. Barta first met with Castro he told him, right off the jump, “I’m not trying to sell you anything.” He said he was merely there to tell Castro what Sav-Rx does.

Castro told Mr. Barta that he could connect Sav-Rx with the Los Angeles County government because he knew a guy and he’d need to be paid. Barta left twelve minutes after the meeting started.

Continue reading →

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Placido Mendoza drove a truck from North Carolina to Tennessee. His passenger was Abel Tavera.

Tavera was a roofer. He later said (to a jury) that he thought he was going to Tennessee to see a construction project.

23.jpgThe truck had construction equipment in it. And a bucket containing nails.

Under the nails was a large quantity of methamphetamine.

Mr. Tavera went to trial and was convicted. His defense was that he didn’t know that the truck had meth in it.

The driver, Mr. Mendoza, pled guilty before Mr. Tavera’s trial.

Mr. Tavera was convicted and sentenced to 15 years and six months in prison.

After Mr. Tavera’s trial, he learned that Mr. Mendoza told the AUSA – Donald Taylor – that Mr. Tavera had no knowledge of the drug conspiracy he was charged with.

AUSA Taylor never told Mr. Tavera’s lawyer that Mr. Mendoza said Mr. Tavera isn’t guilty.

And, as a result, the jury never heard that the only other guy in the car told the prosecutor that Mr. Tavera didn’t know about the drugs.

As the Sixth Circuit said, “Mendoza’s statements to Taylor were plainly exculpatory.”

The Supreme Court has said that the government has to hand over all information that is exculpatory and that if it fails to do that, the prosecution is fundamentally unfair.

Yet, despite that the law is crystal clear on this, the Sixth Circuit notes that “nondisclosure of Brady material is still a perennial problem, as multiple scholarly accounts attest.”

The procedural history is interesting – Mr. Tavera’s motion for a new trial based on the Brady failure was still pending when the Sixth Circuit decided, in United States v. Tavera, that the Brady violation was so clear that the case had to go to a new trial.

The government did not think that it had to disclose this information. As the Sixth Circuit frames their argument:

the government argues, and the dissent agrees, that Tavera (although confined to his prison cell) or his lawyer should have exercised “due diligence” and discovered the statements by asking Mendoza if he had talked to the prosecutor.

The court of appeals held that the Supreme Court rejected the “due diligence” exception to Brady in Banks v. Dretke, 540 U.S. 668 (2004) when it noted that “[a] rule thus declaring “prosecutor may hide, defendant must seek,” is not tenable in a system constitutionally bound to accord defendants due process.”

Moreover, a rule that a Brady violation is excusable if the defendant or defense lawyer just does more work is kind of stupid. As the Sixth Circuit explained:

The Supreme Court’s rejection of the idea that the “prisoner still has the burden to discover the evidence” is based in part on the fact that the prosecution has the advantage of a large staff of investigators, prosecutors and grand jurors, as well as new technology such as wiretaps of cell phones. That is one of the reasons that these investigators must assist the defendant who normally lacks this assistance and may wrongfully lose his liberty for years if the information they uncover remains undisclosed. The superior prosecutorial investigatory apparatus must turn over exculpatory information.

My favorite part is the suggestion that Mr. Tavera’s lawyer should have interviewed Mr. Mendoza – because there is just about exactly zero chance that any competent lawyer would let his client talk to a co-defendant about the facts of the case while he’s trying to work out a deal with the government.

Because “[t]his case shows once again how prosecutors substitute their own judgment of the defendant’s guilt for that of the jury” the court of appeals reversed and recommended that “the U.S. Attorney’s office for the Eastern District of Tennessee conduct an investigation of why this prosecutorial error occurred and make sure that such Brady violations do not continue.”

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John Doe (not his real name – but the guy shouldn’t be singled out any more than he already has been. If you really want to see his name, it’s on the opinion from the Fourth Circuit) wanted to have gay sex with a stranger.

Instead of going online like a normal person, he went to a national park in North Carolina. Mr. Doe was in his sixties – apparently baby boomers don’t use Grindr.

Mr. Doe was not the only person in the park looking for men who were looking to have sex with strangers. In response to a complete absence of real crime anywhere in North Carolina, law enforcement was there too.

The law enforcement officer Joseph Darling was on patrol. Darling saw Mr. Doe on a trail hiking toward him. As they passed each other, Darling said hello. Doe grabbed his groin.

1426349_balanced_rock.jpgA few minutes later, Darling saw Doe again on an unofficial trial. They talked about the weather for a few minutes. Then Darling told Doe that Asheville – which they were near – was an open community that is accepting of gay folks.

Mr. Doe said that he “wanted to be F’ed.”

Darling indicated that he would be into that. (the record says that Darling said that he replied “okay or yes, or something to that affirmative”)

As Darling described it later, he “gave [Doe] every reason to believe that [Darling] was good to go.”

Mr. Doe then turned around – they were three feet or so away from each other – and backed into Darling.

With his left hand, Darling reached back and “very briefly” touched Darling’s fully-clothed crotch.

Darling responded, “Police officer, you’re under arrest.”

Mr. Doe was charged with disorderly conduct. He was convicted by a magistrate judge and sentenced to 15 days in jail, along with a fine and a bar on going in a national park for two years.

Disorderly conduct for these purposes is defined by 36 C.F.R. § 2.34(a)(2) (some CFR provisions establish federal crimes in national parks – see 16 USC § 3) and has three elements:

(1) using language, an utterance, or a gesture, or engaging in a display or act;
(2) that is obscene, physically threatening or menacing, or done in a manner likely to inflict injury or incite an immediate breach of the peace; and
(3) having the intent to cause or knowingly or recklessly creating a risk of public alarm, nuisance, jeopardy, or violence.

The Fourth Circuit vacated this conviction, holding that there’s no notice to Mr. Doe, or anyone else, that brief clothed touching of someone’s body who says that they want to have sex with you is obscene.

Which is fair enough. The Fourth Circuit made two other great points though.

First, in response to an argument from the government that really this was a prosecution for Mr. Doe wanting to have sex right there on the unofficial trail, the court of appeals noted:

Defendant’s conviction was for disorderly conduct–not disorderly thoughts or desires. And it is undisputed that Defendant’s actual conduct never went further than his backing up to Darling and very briefly grabbing Darling’s clothed crotch. Moreover, even Darling agreed that, “for all [he] knew, [Defendant] could have very well intended for [the intercourse] to happen at [Defendant’s] house.” J.A. 88. And such private sexual conduct would, of course, have been perfectly legal. As the Supreme Court pronounced a decade ago, “[l]iberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct” and “allows homosexual persons the right to” engage in consensual intimate conduct in the privacy of their homes. Lawrence v. Texas, 539 U.S. 558, 567 (2003).

Finally, the Fourth Circuit said the whole point of the notice requirement was so that the government can’t just make up crimes to punish people for. (for an excellent National Law Journal article on this, go here)

Yet this looks like exactly what you’d expect can happen from government enforcement of loosely defined laws – the government uses them to bully unpopular groups.

the facts of this case illustrate the real risk that the provision may be “arbitrar[ily] and discriminator[ily] enforce[d].” Hill, 530 U.S. at 732. The sting operation that resulted in Defendant’s arrest was aimed not generally at sexual activity in the Blue Ridge Parkway; rather, it specifically targeted gay men. Perhaps not surprisingly, then, the all-male undercover rangers arrested only men on the basis of disorderly homosexual conduct.

The Fourth Circuit also shot down a government argument that this was motivated not by hatred of gay people, but by citizen complaints:

If the public is . . . not similarly troubled by a woman propositioning her boyfriend for sex and then briefly touching his clothed crotch, there would exist no citizen complaint and no related sting, even for otherwise identical heterosexual conduct. Simply enforcing the disorderly conduct regulation on the basis of citizen complaints therefore presents a real threat of anti-gay discrimination.

Also the Fourth Circuit determined that touching someone who says they want to have sex with you is not physically menacing – the other prong of the disorderly conduct regulation.

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We have too many federal criminal laws – more than 4,000. And, as frequent readers of this blog will note, there are times when the federal government prosecutes a person that is a close call – it may or may not be a crime.

673264_hammer_to_fall.jpgFor example, in United States v. Costello, the government prosecuted a woman for giving her boyfriend a ride from the bus station on the theory that this was “harboring” an illegal alien. (read my prior write-up on the case here).

In marginal cases like these, the defense normally argues that this is government overreaching. The government normally brushes aside this argument saying, in essence, “trust us.” “We,” the government continues, “have scarce resources and good judgment. We won’t prosecute anyone except for really bad people.”

In Costello, Judge Posner responded forcefully to this, saying:

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.

Or, take a case in the news lately, United States. Nosal. There, the government prosecuted a man (and, after they lost the appeal, tried him on different grounds and got a conviction last week) for violating the CFAA – the Computer Fraud and Abuse Act – because he encouraged others to access a computer contrary to the authorization given to them to access the computer. (my prior write up on the earlier opinion is here)

The defense argued that this was the government prosecuting a marginal case. The government said, in essence, “trust us.”

Judge Kozinksi was unkind to this prosecution.

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.

Normally, the response to an overaggressive government prosecution of these kinds of marginal cases is to define the scope of the statute narrowly so that the prosecuted conduct doesn’t fit within the terms of the statue.

But what about a case where the case is marginal but within the language of the statute?

Normally, in that situation, if the language is clear that what the person did is a federal crime, but it clearly isn’t what Congress intended, or what any thinking person would think should be a crime (and, sadly, those are different tests), the response is that we have to trust the government to not bring those cases.

Or, if there isn’t a mandatory minimum, we have to hope sentencing judges will truly see the case as marginal.

What many folks would say you can’t do, though, is go to a jury and argue that this prosecution shouldn’t have been brought. Many would say that you aren’t allowed to argue, in essence, “yes, my client is guilty, but, still, you shouldn’t convict.”

Those folks may not have read the First Circuit’s opinion in United States v. Baird.

There, Mr. Baird bought a gun from a shady guy. Turns out the gun was stolen.

The government decided to prosecute the guy who bought the gun (using the evidence of the guy who stole the gun) for possession of a stolen firearm.

Mr. Baird wanted an “innocent possession” instruction. He wanted to argue that he didn’t know the gun was stolen when he possessed it and that it got rid of it quickly after having learned it was.

The district court refused to give that instruction, relying on cases that said there’s no “innocent possession” defense in a possession of a stolen gun case, relying on United States v. Teemer, a prior First Circuit case on whether there’s an innocent possession defense to a felon in possession charge.

The First Circuit, reversing on the failure to give the instruction, acknowledge that Teemer held there was no such defense, but then said,

But that is not all Teemer said. While Teemer declined to create a “mandatory safe harbor” for innocent possession, it also acknowledged that “there are circumstances that arguably come within the letter of the law but in which conviction would be unjust,” such as if a felon snatched away a loaded gun from his school-aged son and then called the police to retrieve it. Therefore, although Teemer relied primarily on prosecutorial discretion and the common sense of the jury to weed out the cases warranting leniency in § 922(g) cases, we have simultaneously recognized that “extraordinary cases might arise where . . . . if the government were foolish enough to prosecute, some caveat might indeed be needed (e.g., an instruction on a necessity or justification defense.)”

I’m not sure how to read that, except as licensing a very limited kind of jury nullification.

Justifying the applicability of an innocent purchaser defense – which isn’t in the statute – the court of appeals imagines what Congressional intent should have been. Since this prosecution didn’t do much to get guns off the streets, the First Circuit concludes that it wasn’t what Congress meant.

Clearly this isn’t going to allow a jury nullification argument most of the time, or even much of the time. But, for those of us who have grown up with a Scalia-generated view of legislative intent, it’s a stunning turnaround in how to interpret a statute. And, perhaps, a first step toward allowing some kind of jury nullification.

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Many white-collar cases start the same way – a person is an entrepreneur. He has a vision for a business he’d like to build. He wants to do great things and reform an industry.

Things are going well, but he wants to move to that next level. Getting to the next level – whatever it is – takes a little faith, a little elbow grease, and, sometimes, a few cut corners.

The trouble with cutting corners is that once you start to cut them, then get hard to uncut. The corner cutting gets baked into your business model. At some point, the cost of fixing the corner cutting exceeds what you think you can spend on it.

Some corners are worse to cut than others. If a business has gotten in the habit of having less money in cash reserves than it should, they may get away with that. If, on the other hand, like the folks in the First Circuit’s opinion in United States v. Wu, they skip getting licenses which are necessary for their import/export business to not be a crime, it can be a little worse.

1402681_great_wall_china.jpgAlex Wu and Annie Wei ran a business that sold things to folks in China. Specifically, they sold sophisticated electronic components.

As it happens, there are rules about when you can send sophisticated electronic components out of the United States. Our federal government would prefer to have items that could have a military application, even if they can also have a nonmilitary application, from going to a foreign country that might use those things to do us harm.

Mr. Wu and Ms. Wei’s company started small – as many do. By 2007, the company had five offices – three in China, one in the U.S., and one in Hong Kong – and 200 employees.

At some point in 1996, someone at the company printed a few regulations from the Commerce Department on Export Controls and placed them in a file at the company.

In 1997, Ms. Wei told Mr. Wu that she had mentioned to a potential vendor that she was selling things to China. The potential vendor refused to sell to her. She told Mr. Wu that the “‘big lesson’ from this ‘mistake’ was to avoid providing ‘extra’ information to vendors.”

Over time this lesson proved harder to follow as more and more vendors asked follow up questions about where the parts were going.

Ultimately, after shipping millions of dollars of equipment overseas, the two were indicted.

They were charged with – and later convicted of – a number of offenses, including:

The Munitions List Counts: Both Wu and Wei were convicted on two counts for, on two occasions in June 2006, exporting to China without a license “phase shifters” that are designated as defense articles on the U.S. Munitions List, 22 C.F.R. pt. 121.

There were also a number of other counts, not relevant to the issue they won on (but interesting if you’re into this kind of case).

The two Munitions List counts involved exports of “phase shifters”. According to the First Circuit,

Two waves are said to be “out of phase” when they have the same frequency but reach their peaks at different points. A phase shifter can change the phase of one of the two waves so that the waves exactly line up with one another (or, vice versa, so that waves that were previously “in phase” no longer line up with one another).

The Munitions List is a list of things that are munitions, and, hence, can’t be exported to certain countries without a license. The list is not a list of names of items, rather it’s a list of descriptions of kinds of things. So, to paraphrase an Easterbrook opinion, the list would prohibit bicycles, rather than a specific make of Huffy.

If you’re not sure if something is on the list, there’s a process where you can ask the State Department.

The government said the phase shifters were on the list. Mr. Wu and Mrs. Wei said they weren’t.

The government went and asked the State Department if phase shifters were on the list when they were exported by Mr. Wu and Mrs. Wei’s company. The State Department said they were.

The district court instructed the jury that it had to credit the State Department’s determination – after all, it’s the State Department.

This, the First Circuit held, was error. Whether something is on the Munitions List is an element of the crime. If the jury doesn’t get to decide it, that’s a serious problem. Even if it’s really complicated:

the government may not decide for itself that some prior act by a criminal defendant violated the law, and thereby remove that determination from the province of the jury.

The government tried to argue that the two really thought they were doing something wrong – they tried to shield the final destination of the phase shifters from others – but, as the court of appeals pointed out:

even if the jury found that Wu and Wei believed that phase shifters fell within the Munitions List restrictions, it would still have to conclude that the phase shifters actually did fall within the Munitions List restrictions (regardless of Wu and Wei’s beliefs).

The case was remanded for resentencing – because the convictions on a number of other charges still stand.

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My grandmother was part Cherokee. I am, I understand, something around one sixty-fourth Cherokee. And, I understand, for years my grandmother’s family tried to hide their Indian status.

They did that for a lot of reasons, but a big one is how the federal government would prefer it if fewer folks were Native American.

Oh, how times change – now the government wants folks to be Indians, as the Ninth Circuit’s opinion in United States v. Alvirez shows us.

Every Unhappy Family Is Unhappy In Its Own Way

Edgar Mike Alvirez’s family had gotten together to spend some time in each other’s company. They were at his mother’s house. His girlfriend was there. A woman named Drametria Havatone was also there.

At some point, Mr. Alvirez’s mother and Ms. Havatone got to talking about how Mr. Alvirez doesn’t help his mother out with her financial needs.

By way of counterpoint, Mr. Alvirez’s girlfriend – and another woman – starting punching and kicking Ms. Havatone. Ms. Havatone was forcibly removed from the house by the two women.

She fell to the ground. If you believe what the jury did, as she lay there, Mr. Alvirez stepped on her ankle, breaking it badly in several places.

1386479_old_paper.jpgThe Law In Indian Country

Mr. Alvirez was charged with violating 18 U.S.C. § 1153, which is a peculiar statute. Though it’s called “Assaults in Indian Country”, what it says is that it applies to an assault by an Indian:

Any Indian who commits against the person or property of another Indian or other person . . . assault resulting in serious bodily injury . . . within the Indian country, shall be subject to the same law and penalties as all other persons . . . within the exclusive jurisdiction of the United States.

So, to prove that Mr. Alvirez violated section 1153, the government had to prove that he committed assault resulting in serious bodily injury and that he is an Indian.

The Ninth Circuit explained how proving up Indian status works (internal citations omitted):

We apply a two-prong test to determine if this element has been met. First, the government must prove “that the defendant has a sufficient degree of Indian blood,” and second, the government must establish that the defendant “has tribal or federal government recognition as an Indian.”

To prove the first part of that, the Ninth Circuit has explained,

To satisfy the first prong, the government need only prove that the defendant has “some” Indian blood as a descendant of an Indian parent, grandparent, or great-grandparent.

One way to satisfy this test is by introducing a Certificate of Indian Blood.

Some Documents Are Better Than Others

At Mr. Alvirez’s trial, the government introduced a Certificate of Indian Blood through an agent. It argued that the document, which was issued by an Indian tribe, was self-authenticating under Federal Rule of Evidence 902(1).

Though the district court let the certificate in, on appeal this argument lost. The Ninth Circuit held that a certificate from an Indian Tribe is not self-authenticating. Rule 902(1) lists the entities that can issue a self-authenticating document: “United States; a State of the United States; a commonwealth, territory, or insular possession of the United States; the Panama Canal Zone; and the Trust Territory of the Pacific Islands”

Indian tribes aren’t on the list.

The Federal Government Sometimes Wants Indian Tribes To Be A Part Of The Federal Government

The government also argued that tribes are basically a part of the federal government – so tribal documents are basically federal government documents. This, too, was shot down:

Tribes are “sovereigns or quasi sovereigns,” Kiowa Tribe of Okla. v. Mfg. Tech., Inc., 523 U.S. 751, 757 (1998), not one of the political entities into which the federal government is divided, see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (“As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.”).

Because the Certificate came in, it shouldn’t have, and it went to whether Mr. Alvirez is an Indian for section 1153 purposes, the conviction was vacated and the case was remanded for a new trial.

This was a cool, tough case – nice work to AFPD Dan Kaplan for the win!

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Our brave new world of internet technology is encouraging innovation of all kinds. Innovation of new ways to interact with each other, new ways to learn, new ways to work, new ways to embezzle and create records of one’s embezzlement, and new ways for the government to try to prosecute.

In United States v. Phillips, the Ninth Circuit – in an opinion written by S.D.N.Y. SuperJudge Rakoff sitting by designation – brushed back a prosecution for embezzlement from a tech company.

1369865_mailbox.jpgThe government, you see, prosecuted a former CEO of a tech company for mail fraud.

No one uses the mail any more.

False Invoices and Bad Emails

Mark Phillips was the co-founder and CEO of MOD Systems Inc. MOD was a high-tech start-up that was trying to develop and monetize a platform to sell and distribute content to consumers.

Mr. Phillips had a girlfriend – Jan Wallace. Like many men with a girlfriend, he liked to email her. She liked to email him back. It was good.

Unfortunately, Mr. Phillips was also involving her in a scheme to get money out of his company and onto his wrist.

Feel Good Watches

Ms. Wallace introduced Mr. Phillips to Feel Good Watches. Mr. Phillips decided to buy two watches from Feel Good. I’d like to think it was one for him and one for her; it’s the romantic in me.

The watches cost $30,000 each – they were Breguet watches. At that price, one can imagine that they would make you feel very good indeed.

Feel Good mailed the first watch to Mr. Phillips. Mr. Phillips then emailed Ms. Wallace and said,

I received the watch, it’s beautiful . . . If possible could I pay you for this so I can pay out of a company for consulting work.

Mr. Phillips then created a number of fake invoices for a company called Wallace Black LLC. He had MOD pay Wallace Black LLC through his attorney. The money that went to Wallace Black LLC was deposited into an account controlled by Ms. Wallace.

All of these communications and transfers – it appears – went through email or wires.

Ms. Wallace did not provide accounting services to MOD. It isn’t clear whether she provided them to Feel Good Watches.

The fake invoices created a complicated paper trail. Following it was made easier for the government by Mr. Phillips emails with Ms. Wallace.

There was also a regrettable transfer of funds from the company to make a down payment on a mortgage for Mr. Phillip’s condo.

The Charges and Trial

Mr. Phillips was charged with wire fraud, mail fraud, and money laundering. He was convicted at trial and sentenced to 48 months in prison.

Where’s the Mail?

On appeal, Mr. Phillips argued that he hadn’t committed mail fraud, since he hadn’t used the mail.

The government’s position was that Mr. Phillips used the mails when one of the watches – the first one – was mailed to him.

Mr. Phillips, on the other hand, countered that the watch wasn’t a part of the conspiracy, rather, it was simply something that was just that he used the money he received from MOD to buy a watch.

The question is whether the mails were used in furtherance of the scheme to defraud. So, was the watch sent to further the scheme?

The Ninth Circuit said no.

The Supreme Court has previously ruled, in United States v. Maze, that where a man used a stolen bank card to pay for motels, and the motels mailed invoices for the stuff he charged, the mailing of the invoices wasn’t enough to make things into mail fraud.

Because the bank card scheme’s success didn’t depend on the mailings, the Court said there was no mail fraud there.

Here, for Mr. Phillips, because the watch being mailed wasn’t necessary to the scheme to defraud Mr. Phillips’ company, he wasn’t guilty of mail fraud.

As the Ninth Circuit put it,

Here, as in Maze, the success of Phillips’s fraudulent scheme did not depend in any way on the use of the mails. The fact that Phillips purchased a watch with $30,000 of fraudulently obtained MOD funds, instead of using the funds for his personal benefit in some other fashion, did not in any way affect the scheme “to defraud MOD and to obtain money from MOD,” as charged in Count 5. The fact that payment eventually was made to a watch dealer and that watch dealer mailed a watch in return was not a part of the scheme to defraud MOD and to obtain money from MOD – it was simply the byproduct of that scheme. Put another way, as a result of Phillips’s successful execution of his scheme to defraud, he had sufficient funds to pay for the watch.

The mail fraud conviction was, therefore, reversed.

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It seems that Rolando Ramos was a marijuana dealer. I say that because the police had him on a wire doing drug deals, found marijuana in his house when the executed a search warrant, and because he pled guilty to being involved in a conspiracy to distribute marijuana.

Mr. Ramos worked at a auto repair shop – which he dealt marijuana out of. One guy who worked at the repair shop had a brother in law who was a cop. The cop’s name is Carlos Burgos.

Mr. Burgos was convicted of being a part of Mr. Ramos’s drug distribution conspiracy. But the First Circuit, in United States v. Burgos, overturned that conviction because there wasn’t enough evidence.

1066058_patrol_hat_too.jpgFamily Ties

Mr. Burgos worked as a uniformed officer in Worchester, Massachusetts. His beat included a high-crime area known as “Main South.” In Main South was a car repair shop – G & V General Auto Repair. Mr. Burgos’s brother-in-law worked at G & V.

Mr. Burgos’s brother in law gave him discounts on car repairs. Mr. Burgos took advantage of those discounts.

Also working at G & V was Mr. Ramos. Mr. Ramos wasn’t really a mechanic, he was more of a gopher – running money to the bank and picking up parts.

Also, Mr. Ramos was dealing drugs. Though more on that later.

As time went on, Mr. Burgos got to be friendly with many of the other mechanics at G & V. Eventually, his brother in law moved on to greener pastures, though the mechanics at G & V kept giving Mr. Burgos discounts.

Savvy shopper that he is, Mr. Burgos kept using G & V for his automotive needs.

Mr. Ramos And Mr. Burgos

Mr. Ramos never talked to Mr. Burgos about his drug dealing. When he pled guilty, he flipped, and testified at Mr. Burgos’s trial. Mr. Ramos described Mr. Burgos as being a personal friend. The First Circuit seemed skeptical.

Ramos met some members of Mr. Burgos’s family, but never went into his house; the only time that Ramos went to Mr. Burgos’s house was to tow a car. Mr. Burgos never went to Ramos’s house. On one occasion, Ramos helped Mr. Burgos’s sister and her infant son by towing her car and repairing a flat tire, which he did without charging her.

Though the court of appeals also noted that Mr. Ramos did sell Mr. Burgos some automotive equipment and, at one point, a used laptop for slightly less than market price. And they exchanged a phone call on Christmas Day once.

But one would hope that each man had closer friends.

Mr. Ramos Needs Information

Eventually, Mr. Ramos became convinced that the police were watching him at the store. This was because police were watching him at the store.

Mr. Ramos asked Mr. Burgos for information about whether he was under surveillance. Mr. Burgos found out that the Vice Squad was, indeed, watching the auto shop.

In the worst evidence for Mr. Burgos, they spoke on a recorded call and Mr. Burgos told Mr. Ramos that he should “take it easy for now” because the police were on to something at the auto shop.

Mr. Burgos Goes To Trial

Mr. Burgos was indicted for being a part of Mr. Ramos’s drug conspiracy.

The government looked at this evidence and tried to convince a jury that Mr. Burgos was a dirty cop helping a drug dealer. In fact, they did convince a jury that Mr. Burgos was dirty cop helping a drug conspiracy. The government did not, however, convince the First Circuit.

The First Circuit Addresses Whether This Cop Has This Specific Dirt

The First Circuit first laid out the standard for whether a sufficiency of the evidence challenge would succeed:

Mr. Burgos was convicted of conspiracy to distribute and to possess with intent to distribute marijuana. To affirm his conviction, we must determine whether a reasonable jury could conclude that the Government proved beyond a reasonable doubt each element of the crime: (1) “a conspiracy existed,” (2) Mr. Burgos “had knowledge of the conspiracy” and (3) Mr. Burgos “knowingly and voluntarily participated in the conspiracy.”

The First Circuit rejected the government’s argument that it made a sufficient showing on the second requirement – that Mr. Burgos knew of the conspiracy.

The government argued that Mr. Burgos knew that there was a drug conspiracy, because he likely knew that the vice squad was investigating. The First Circuit stopped the government short on this claim:

a reasonable jury could conclude, beyond a reasonable doubt, that Mr. Burgos knew that Main South was an area of high crime, and specifically high drug crime, that the Vice Squad investigated crimes involving drugs, prostitution and gaming, and that the Vice Squad was surveilling G & V. From this, a jury certainly could infer that Mr. Burgos was aware that the Vice Squad was investigating G & V for possible criminal activity that fell within its purview–drug crimes, prostitution or gaming. None of the evidence, however, establishes, beyond a reasonable doubt, that the Vice Squad was investigating a drug crime, as opposed to prostitution or gaming.

Since there wasn’t any reason to think – based just on the fact that the vice squad was looking into the shop – that Mr. Burgos knew this was for drugs, he couldn’t have been convicted for being a part of a drug conspiracy.

The government argued, then, that Mr. Burgos should have known that something was afoot – he was a trained police officer after all. The First Circuit thought Mr. Burgos probably should have known something was up, but not what it was:

The combination of both the Gang Unit and the Vice Squad surveilling G & V, Ramos’s ability to secure items at well-below retail cost for resale to Mr. Burgos, and Ramos’s inquiries, on two occasions, concerning surveillance, were warning signs that something illegal was afoot at G & V. There simply is no evidence, however, that Mr. Burgos knew, or was aware of a high probability, that the illegal actions involved drugs.

The case was vacated and remanded. Mr. Burgos goes home (I’m betting he won’t be going back to his old job though).

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It would be hard to overstate the impact of the Supreme Court’s recent cases on the Confrontation Clause.

Starting with Crawford v Washington, the Court has given much more meat to the requirement that if testimony is going to be used against someone in a criminal case, the person giving the testimony has to be in the courtroom and actually testifying.

Some of these changes are slow moving. Even though Crawford was decided in 2004 – whether business records provide an exception to the confrontation requirement has been a little unclear. Happily, the First Circuit clarified that business records are not automatically excluded from the Confrontation Clause.

If you’re a criminal defense lawyer, that last paragraph made sense. If you’re not, it was probably soup. A little background is in order (feel free to skip to the next heading if you already know this).

A Little Background

The Confrontation Clause deals with out-of-court statements. Of course, as any good viewer of Law and Order can tell you, these statements are also hearsay. The interplay between hearsay and the Confrontation Clause and the hearsay rules used to be quite strong. It is now significantly weaker.

Back in the day, the rule was that if the government wanted to introduce someone’s out of court statement against a person accused of a crime, the statement had to be generally reliable. Being “generally reliable” meant, generally, that the statement fell within a hearsay exception.

The Confrontation Clause analysis collapsed significantly into the hearsay analysis.

Crawford changed that. In Crawford, the Supreme Court held that out of court statements which are “testimonial” have to be subject to cross-examination – meaning the person who made them has to show up in court and be asked questions by the defense lawyer. It won’t do under the Confrontation Clause to simply have someone else repeat the out of court statement, or introduce into evidence some place where the person wrote it down.

Fair enough, but what counts as a “testimonial” statement?

Generally speaking, the Court explained that a testimonial statement is one that was prepared in preparation for a court case. I say “generally speaking” because the Supreme Court has yet to provide us with a comprehensive definition of what counts as testimonial.

288786_personal_files.jpgCan Business Records Be Testimonial?

In Crawford, the Court suggested that business records don’t seem to be testimonial. Normally, the phone company doesn’t create a phone bill so that it can be used in a later prosecution – it does it so I know how many minutes I’ve used and so they’ll get paid.

Prosecutors, being a crafty sort, then tried to argue that all kinds of law enforcement records were just “business records” – so the Confrontation Clause didn’t apply.

In Melendez-Diaz, for example, the government tried to argue that lab reports from a drug testing lab were just business records.

The Court wasn’t sympathetic to that view. While it may be that the D.E.A.’s lab’s “business” is to generate drug test reports, it’s also true that these reports are made pretty much for the exclusive purpose of putting people in prison later.

So, again, if what you focus on is whether these records were created with a later prosecution in mind, you’ll see that sometimes business records are testimonial (at least has the Court has gestured at a definition of “testimonial”).

Child Pornography in Maine

Which brings us to United States v. Cameron.

Yahoo! was tipped off to the presence of some child pornography somewhere in the tendrils of its internet domain.

Yahoo!, like any internet company, is required to make a report to the National Center for Missing and Exploited Children (we’ll call it “NCMEC” from here on out). when it hears that there’s child porn in its internet world.

Yahoo!, as is its practice, then compiled a report about what the child porn was, where it was, and the IP address of where it was found. This report was sent to the NCMEC.

NCMEC forwarded that report along to law enforcement.

Law enforcement tracked down the IP address, and found that it went to Mr. Cameron’s house.

A search warrant was obtained, and child pornography was found at Mr. Cameron’s house.

He was charged with a number of child porn offenses and went to a bench trial. He lost and was sentenced to 192 months in prison.

The Business Records At Trial

At trial, two kinds of business records were introduced against Mr. Cameron.

The first kind were logs of activities on the Yahoo! (and also a Google) account. These the First Circuit had no trouble finding were not a Confrontation Clause problem. They were kept because that’s what internet companies do in order to keep their internet companies running. Once the right foundation that they were business records was laid, they were properly admissible, the court found.

The second, though, were not. The reports to NCMEC, the First Circuit found, were “testimonial.” So even though they were also business records, the information in them had to come in through a live witness who collected the child pornography information in the first place.

As the First Circuit said of these Child Pornography (or “CP”) Reports:

Thus, although the CP Reports may have been created in the ordinary course of Yahoo!’s business, they were also testimonial; the receipts of the Reports, therefore, should not have been admitted without giving Cameron the opportunity to cross-examine the Yahoo! employees who prepared the CP Reports.

The appellate court’s analysis is nice.

We start by objectively viewing the evidence to determine the “primary purpose” of the Reports. Firstly, we note that the CP Reports refer to a “Suspect Screen Name,” a “Suspect Email Address,” and a “Suspect IP Address.” A “suspect” is “one who is suspected; esp. one suspected of a crime or of being infected.” Webster’s Third New International Dictionary 2303 (2002). There was no testimony from Lee, nor any other evidence, that Yahoo! treated its customers as “suspects” in the ordinary course of its business.

Also, the reports are automatically forwarded to NCMEC, which exists, in part, to forward such reports to law enforcement.

The First Circuit concluded that

Given that Yahoo! created CP Reports referring to “Suspect[s]” and sent them to an organization that is given a government grant to forward any such reports to law enforcement, itis clear that under the “objective test” required by Williams, 132 S. Ct. at 2243, the primary purpose of the CP Reports was to “establish[] or prov[e] past events potentially relevant to later criminal prosecution.”

It’s a lovely opinion. If you have a child pornography case or a confrontation clause case, please read it, there’s a lot I haven’t covered here.

Mr. Cameron’s convictions for a number of counts were vacated and the case was remanded for either a new trial or resentencing.

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Federal conspiracy law is a crazy thing.

It seems simple enough – a person is guilty of a federal criminal conspiracy if they agree with someone else to commit a federal crime and take some steps to carry out committing that crime.

But the agreement doesn’t have to be explicit – it can be inferred from the way people act. Sort of in the same way that when my daughter puts cookies in our shopping cart at the grocery store while I’m watching we have an agreement that we’re going to buy cookies.

704767_old_meets_new.jpgAnd if my daughter puts cookies and soda in the cart, is that two conspiracies – a conspiracy to buy soda and a conspiracy to buy cookies – or is it one big conspiracy to buy sweets?

The Supreme Court talked about – and was confused by – how federal conspiracy law works earlier this week, particularly how it intersects with the federal statute of limitations.

The Tenth Circuit, in United States v. Frierson, dealt with another part of federal conspiracy law – one much closer to the example about my daughter at the grocery store.

Mr. Frierson was convicted of both conspiracy to distribute crack cocaine and conspiracy to distribute more than 50 grams of crack cocaine. They were separate counts. He was convicted at trial of both.

Is that one conspiracy or two?

As it happens, when a person is accused of one crime, in two places in the same indictment, that indictment is called “multiplicitous.”

As the Tenth Circuit explained:

“Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior.” United States v. Barrett, 496 F.3d 1079, 1095 (10th Cir. 2007) (internal quotation marks omitted). “[M]ultiplicity is not fatal to an indictment.” Id. (internal quotation marks omitted). Indeed, “[t]he government may submit multiplicitous charges to the jury.” United States v. Nickl, 427 F.3d 1286, 1301 (10th Cir. 2005). But “multiplicitous sentences violate the Double Jeopardy Clause,” McCullough, 457 F.3d at 1162 (internal quotation marks omitted), so “if a defendant is convicted of both charges, the district court must vacate one of the convictions,” Nickl, 427 F.3d at 1301.

Mr. Frierson’s two conspiracy convictions were for the same general time period. The only difference between then is that one explicitly involved more than 50 grams of crack, and the other didn’t set out a quantity of the drug.

To establish that the two conspiracies . . . were distinct – that is, that the conspiracy convictions were not multiplicitous – the jury had to find the “existe[nce] [of] more than one agreement to perform some illegal act or acts.” United States v. Fleming, 19 F.3d 1325, 1330 (10th Cir. 1994) (internal quotation marks omitted). To do so, the “jurors [had to be] adequately instructed that they could not find [Defendant] guilty of more than one count of conspiracy unless they were convinced beyond a reasonable doubt that he entered into two separate agreements to violate the law.” United States v. Swingler, 758 F.2d 477, 492 (10th Cir. 1985).

Yet, here, the jury was not so instructed.

As the Tenth Circuit said,

The instruction to the jurors that they “separately consider each defendant and each Count,” R. Vol. 1 at 243, did not alert them that they needed to find that the two conspiracies involved distinct agreements. And there was nothing in the government’s closing argument to suggest that the conspiracy alleged in Count 11 was anything other than part of the larger conspiracy alleged in Count 28, or that Defendant had two separate agreements to distribute illegal drugs. Thus, the two convictions on Counts 11 and 28 are plainly multiplicitous.

Mr. Frierson’s case was remanded to the district court judge for him to be sentenced on one or other of the conspiracies – but not both. And the other has to be vacated.

And, yes, gentle reader, in the end that may be a $100 difference.