In April, May and June the Third Circuit vacated convictions in three cases. The first, United States v. Lopez, addresses prosecutorial misconduct (Doyle error); the second, United States v. Vasquez-Algarin, addresses law enforcement misconduct (Fourth Amendment/forced entry); the third, United States v. Dennis, addresses trial court error (failure to give an entrapment instruction) in the larger context of reverse-sting stash house operations. Each opinion touches on policy concerns raised by the legal issues; the majority and Judge Ambro’s concurrence in Dennis are particularly worth reading for anyone litigating stash house cases. The three cases were decided by three non-overlapping panels of judges.
No one likes a liar.
Well, almost no one. Chief Judge Kozinski seems to like liars, at least some of the time.
But, generally, lying leaves a bad taste in our societal mouth. This is true even when the police do the lying.
In essence, the government indicted William Cassidy for sending a lot of tweets on Twitter. This was charged as a violation of a federal anti-stalking law. His defense lawyers argued that this was protected by the First Amendment.
Yesterday, Judge Roger Titus of the United States District Court for the District of Maryland, issued an opinion dismissing the indictment.
The federal government has powerful tools to keep a person from exercising his constitutional right to go to trial – like crushingly long mandatory minimum sentences.
An aside to illustrate the point
The government’s use of mandatory minimums reminds me of the plea colloquy of a particularly honest client of mine.
The rumble in Rhode Island is over – Rhode Island won.
As frequent readers of this blog – and fans of the Interstate Agreement on Detainers – will recall, a fight broke out between Rhode Island and the United States Department of Justice over a man named Jason Wayne Pleau.
Mr. Pleau appears to have killed a man in the course of a bank robbery. The bank was federally insured (like just about every other bank in the country). The United States Attorney’s Office in Rhode Island decided to bring a case against Mr. Pleau based on the charges.
Those tree-huggers over at the Wall Street Journal have published a characteristically liberal piece about how the federal government is throwing more of its citizens in prison for no good reason.
As the article starts,
For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a “guilty mind.” This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them. As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time.
One of the massively frustrating things about federal criminal procedure is that you cannot normally challenge, through a pretrial motion, whether the facts that the government think happened actually violate some criminal law.
By contrast, in a civil case, if I’m suing you, you can file a motion that says my lawsuit should be dismissed. This is a good thing.
For example, suppose I file suit against you and say, in my complaint, “You gave me a banana. That was negligent. The Court should give me 20 million dollars. A jury trial is requested.” The very first thing you would do is file a motion that says “Matt said that I was negligent, but didn’t say how, other than that I gave him a banana, which is not normally negligent. His law suit should be dismissed.”
The Stolen Valor Act, at 18 U.S.C. 704, makes it a federal crime to lie about having certain military honors.
The Ninth Circuit, in an opinion that can almost never be quoted enough, held that the Stolen Valor Act is unconstitutional. Judge Kozinksi writes,
Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).
The Federal Public Defender’s Office in Maryland is mounting a vigorous defense of a man accused of harassing someone on Twitter. As the New York Times reports,
Twitter posts have fueled defamation suits in civil courts worldwide. But this is a criminal case, invoking a somewhat rarely used law on cyberstalking. And it straddles a new, thin line between online communications that can be upsetting — even frightening — and constitutional safeguards on freedom of expression.
Apparently, Mr. Cassidy created a large number of posts directed at one woman. The United States Attorney’s Office for the District of Maryland is prosecuting him. It’s an odd thing to use a criminal prosecution to make law. If conduct is so bad that it would land you in prison, you should be able to know clearly – and in advance – if it’s against the law. Yet here it looks like the boundary of the law isn’t that clear.
Congress really doesn’t like sex offenders.
In 2006, it passed SORNA, the “Sex Offender Registration and Notification Act. It can be found at 42 U.S.C. S 16913. It applies to people who are convicted of state sex crimes, or federal child pornography charges.
SORNA requires that each state create a sex offender registry that meets federal standards. It requires any person who has a qualifying conviction to register both where he was convicted and where he lives.