Articles Posted in Federal Crime

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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.

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It makes sense to give someone a longer sentence if they’re a violent person. And it makes sense to think that if someone has a prior conviction for a violent crime they are more likely to be a violent person. But it is massively difficult to turn that into a rule that can apply to the thousands of federal criminal cases across the country.

As a result, criminal history calculations may be the most technical part of federal sentencing practice. Yet scores of years hang on these technicalities.

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This statue is of a person trying to figure out the federal statutory definition of a crime of violence

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Much of criminal law can be understood by looking at two opposing viewpoints. They are not the perspective of the police versus the perspective of those who would commit crime. The tension is not between the “good guys,” however defined, and the “bad guys.”

Rather, it is a tug of war between people who seek rigid application of the law versus people who would construe the law so as to be fundamentally fair.

tug%2Bof%2BwarAs a caricature, those who believe in the rigid application of the law, start and end a legal question with what the law says. Work done to find an exception to a written rule — or to craft an argument that a law should be construed slightly differently than its text to avoid a counterintuitive result — is not good work to this group. Indeed, the Rule of Law People tend to think that consideration of the results when deciding how to interpret the law is never proper.

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If you want to read about a large number of issues in federal criminal law in one place, you should check out United States v. Moore. Beach reading it isn’t.

From whether a person on trial can be forced to wear a stun belt during trial, to a discussion of race-based strikes to members of the jury, to testimony about religious conversions and ineffective assistance of counsel, this 128-page beast of an opinion has everything.

There’s even an 11 page concurring opinion on race-based jury strikes!

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Causation is tricky.

So often we infer what caused what from the order things happen in – the government fails to reach an agreement on the debt ceiling, and the stock market drops. We conclude that one causes the other.

What do we do when there are multiple causes of a movement in stock price? If Greece defaults at the same time new job numbers are released, can we say which causes the movement of a stock price?

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In my experience, many federal prosecutors play fair. They want to get their conviction, to be sure. The law gives them many advantages, and they’re happy to avail themselves of what the law gives them. But I don’t know of many federal prosecutors who go out of their way to take away a defendant’s lawyer.

Then again, I don’t practice in Georgia.

The Eleventh Circuit, today, reversed and remanded a case where a criminal defendant went to trial without a lawyer, because the government opposed him receiving appointed counsel. The case is United States v. Ly. Apparently, in some U.S. Attorney’s Offices, they read Gideon narrowly.

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Walter Bagdasarian really did not want Barack Obama to be President. As the general election drew near, and Obama’s election seemed more certain, Mr. Bagdasarian decided to take action. Instead of volunteering for McCain, or sending money to the Republican National Committee, he logged on to a Yahoo! Finance message board and posted two comments responding to the state of the election.

The comments including disparaging remarks about Mr. Obama and Mr. Obama’s race, and noted that Mr. Obama “will have a 50 cal in the head soon.” Mr. Bagdasarian also included a call to “shoot” Mr. Obama. He challenged Mr. Obama’s fitness for office by virtue of status as an African American, claiming that no African American has ever done anything in history, except open a “sambos” restaurant. (Mr. Bagdasarian did not seem to realize that Sambos was actually owned by two white men, though that may not undermine his larger, and repugnant, point.). Perhaps it goes without saying that Mr. Bagdasarian did not use the term “African American.”

Mr. Bagdasarian’s comments did not alter the course of the election. They did, however, cause a participant on the message board to contact the Secret Service. Mr. Bagdasarian was interviewed by the Secret Service. His house was searched and a fifty caliber rifle was found. His computer was searched and an email was found that described a method for blowing up the President’s car, as well as Mr. Bagdasarian’s desire to see that car blown up. As the Ninth Circuit put it, “[t]hese email messages would appear to confirm the malevolent nature of the previous statements as well as Bagdasarian’s own malignant nature.”

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Federal employees are in a vulnerable position for an investigation by an Office of Inspector General (or OIG).  Basically, an OIG investigation can run in two different directions.  Each has it’s own dangers that a federal employee who hears from an OIG Agent needs to be aware of.

If an OIG Agent is investigating a criminal violation of law, then the federal employee has the risk of being prosecuted.  If the OIG Agent thinks he or she can prove that the federal employee committed a crime, and the OIG Agent can convince an Assistant United States Attorney to bring a case, then the federal government is bringing its resources to bear to convict the federal employee of a crime.  Often, this means that the government wants a felony conviction, and it can quickly mean that prison time is a real risk.

If, however, the Assistant United States Attorney decides that a criminal prosecution is not warranted, either because there isn’t enough evidence of a crime, or because what happened isn’t serious enough to warrant a prosecution, or because what the OIG Agent is investigating isn’t a violation of a criminal law, then the federal employee is still not in a good position, because he or she can lose his or her job.  If criminal charges aren’t an option, the OIG Agent can require that a federal employee give an interview.  If the employee doesn’t give the interview, then that can be a basis for a disciplinary action.

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Jury trials are under attack. Granted, my perspective is idiosyncratic – I tend to notice things only if they affect the kind of law I practice (mainly federal criminal defense and plaintiffs personal injury) or they get so much attention in the mainstream or legal press that they can’t be ignored. But from a lot of fronts, we’re sliding into a civil law/administrative system of justice instead of the one we learn about in school and that’s in the constitution.
 
I’m seeing three reasons to worry – federal judges sentencing criminal defendants on acquitted conduct; caps on damages, and Ken Feinberg.
 
It’s hard to explain to a client that regardless of what a jury says or what he entered a plea to, the Court has the power to sentence him up to the statutory maximum based only on facts that the judge thinks finds to be true by a preponderance of the evidence.  But, hey, that’s the law.  Clients reasonably ask what the point of the jury is, if not to find the facts that lead to their sentence (clients, perhaps myopically, tend to focus more on how much time they’ll be away from their family than on the name of their offense of conviction). I don’t know what to tell them.
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I have represented a number of people in investigations by an Office of Inspector General (or “OIG”).  Many of my clients have been federal employees who were being looked at by the OIG for their agency.  For federal employees in this situation, there really isn’t very much information available about the process.

For that reason, I was curious to see online a pamphlet called “OIG Investigations and You.”  It’s put out by the Office of Inspector General for the Corporation for National and Community Service (did you know there’s a Corporation for National and Community Service, and that they have an Office of Inspector General?  Well, now you do.)

I don’t agree with everything in this pamphlet.  For example, the pamphlet tells you that you shouldn’t talk to others about if you’ve been interviewed by OIG agents because it might be obstruction of justice.  I suppose that’s true in an extreme case, but it seems to me more likely that it’s a pain for OIG agents to not control all the information in an investigation and they’d like to scare people out of talking to, say, a lawyer hired to represent a target of an investigation.