Articles Posted in Short Wins

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The big news in this batch of opinions is not the conspiracy to import lobsters case, but, rather the Barry Bonds appeal.

Mr. Bonds was prosecuted for evading a prosecutor’s questions while testifying in a grand jury. And, now, thanks to an en banc panel of the Ninth Circuit, his conviction was reversed because giving a nonresponsive answer is not a crime. Though just about any teenager could tell you that.

To the victories:

you win.jpg1. United States v. Bengis, Second Circuit: Appellants were convicted of conspiracy to import lobsters from South African waters in violation of both South African and U.S. law. The district court imposed a restitution order, holding each of the Appellants jointly and severally liable for the market value of all of the lobsters harvested. The Second Circuit reversed the order as to one of the Appellants, who had joined the conspiracy later than the others. The court held that the Appellant was only liable for the value of lobsters taken before he joined the conspiracy if he knew, or reasonably should have known, about the conspiracy’s past imports. The court remanded for the district court to make this determination.

2. United States v. Sandidge, Seventh Circuit: After Appellant pled guilty to being a felon in possession of a firearm, the sentencing court imposed several standard and special conditions of supervised release. The Seventh Circuit vacated all of these conditions because the sentencing court offered no explanation as to their propriety, and conducted no review of the statutory sentencing factors. The court noted that several of the conditions were too vague, including requirements that Appellant meet “family responsibilities” and “not associate with any persons engaged in criminal activity.” The court also noted that several conditions were broader than necessary, such as a requirement not to “consume . . . any mood-altering substances.” The court remanded for resentencing on the issue of conditions of supervised release.

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It’s a catch-up blast of short wins today following my Spring Break.

My favorite of the bunch, continuing on our recent restitution cases, is United States v. Foley. There, the district court ordered restitution that was outside the offense of conviction. The First Circuit reversed. Go First Circuit!

To the victories!

you win.jpg1. United States v. Molina-Gomez, First Circuit: The district court erred by denying Appellant’s motion to suppress statements he made to United States Customs and Border Protection officers. The questioning occurred in a small, windowless room and Appellant was not given Miranda warnings prior to being questioned, which amounted to a violation of his Fifth Amendment rights. The case was remanded so Appellant could withdraw his plea and determine how he would like to proceed.

Defense Attorneys: Leonardo M. Aldridge-Kontos, Hector E. Guzman-Silva, Jr., Hector L. Ramos-Vega, and Lisa L. Rosado-Rodriguez
2. Perry v. Roy, First Circuit: Appellant, an inmate, brought a civil rights suit challenging the medical treatment he received after a violent scuffle with prison guards, which left him with a broken jaw. The trial court dismissed the case, holding that Appellant had not presented evidence that prison medical personnel deliberately denied him care. But the First Circuit concluded that the trial court had improperly weighed the evidence, which, when viewed in a light favorable to Appellant, could support a finding that the prison medical personnel were deliberately indifferent to Appellant’s condition.

Inmate’s Attorneys: Benjamin M. McGovern, Amanda O. Amendola

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This week’s favorite Short Win is United States v. Gray. I say this less because of the legal issue involved – a jury instruction for “malice” – than for how much fun the opinion is to read. Here’s the opening:

Words are slippery things. Take “malice,” its legal definitions alone can encompass: the intent to commit a wrongful act, reckless disregard for the law, ill will, wickedness of heart, and the intent to kill. See Black’s Law Dictionary 968-69 (7th ed. 1999). But can malice’s fifty shades of meaning include “improper motive?” Former flight attendant Nancy Gray, convicted of providing false information regarding a bomb threat on an airplane, seeks to convince us that she was denied a fundamentally fair trial when her jury was instructed that malice meant “evil purpose or improper motive.” Because we find that the district court’s definition just won’t fly, we vacate Gray’s conviction and remand this case for a new trial.

It goes on from there. And, really it’s a sad story about a flight attendant snapping. But it’s good prose.

To the victories!

Thumbnail image for Thumbnail image for you win.jpg1. United States v. Gray, First Circuit: Appellant’s conviction for giving false information regarding a bomb threat on an airplane was vacated and remanded because the trial court improperly instructed the jury on the definition of malice. By instructing he jury that malice could be “an improper purpose,” the trial court reduced the government’s burden of proof.

Defense Attorney: Inga L. Parsons
2. United States v. Medina, First Circuit: After pleading guilty to failure to register as a sex offender, Appellant was sentenced to 30 months’ imprisonment and 20 years of supervised release. This sentence was vacated and remanded for resentencing because the 20-year period of supervised release was based on the erroneous classification of Appeallant’s SORNA violation as a sex offense. In addition, two conditions of supervised release–one restricting Appellant from accessing or possessing a wide range of sexually stimulating material, and the second requiring Appellant to submit to intrusive penile plethysmograph testing–were not justified by the record.

Defense Attorney: Edward J. O’Brien

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The third level for acceptance of responsibility is interesting – it’s one area where some courts have held the government has pretty much unfettered discretion to decide whether or not it should apply. Basically, a person is supposed to get the third level only if she’s pled guilty early enough to keep the government from working. Though some U.S. Attorney’s offices are more or less stingy about how early is early enough.

Regardless, it can be hard to overcome an unreasonable government position on the applicability of the third-level for acceptance.

Which is why I was glad to see United States v. Castillo – which challenges the sovereignty of the government’s decisionmaking about the third level and its applicability. Good stuff there.

To the victories!

Thumbnail image for you win.jpg1. United States v. Alejandra-Montanez, First Circuit: Appellants were convicted of criminal conspiracy charges for importing cocaine. Because of recent amendments to the sentencing guidelines that retroactively reduced most drug quantity base offense levels, the case was remanded for reconsideration of Appellants’ sentences.

Defense Attorneys: David A.F. Lewis, Leslie W. O’Brien, and Joshua L. Gordon
2. United States v. Martinez-Rodriguez, First Circuit: Appellants were convicted of drug and firearms offenses. Appellant Rodriguez’s conviction for the drug offense was reversed because the evidence was insufficient to connect him to Appellant Santini’s possession of narcotics. And the evidence connecting Appellant Santini to Appellant Rodriguez’s possession of a firearm was also insufficient, so that conviction was reversed as well. The only evidence of a connection between Appellants, who are brothers-in-law, was that they had been in a car together when the car was stopped. But the lack of evidence about the full nature of their relationship, of any plan they had to carry out a drug-trafficking offense, and of their prior dealings with each other was insufficient to show that the two had the requisite knowledge of the other’s offense.

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In this set of short wins, the one that I’d like to call attention to is United States v. Cuti.

Restitution is not a sexy issue. It isn’t as fun to read about as, say, a Brady fight, or a glaring evidentiary problem at a trial. But it’s important.

Restitution judgments can be massive and, frankly, too many lawyers, judges, and prosecutors phone it in around restitution. United States v. Cuti clarifies that what counts as restitution is not just any money that any person may have spent as a result of the criminal conduct at the heart of the case. If you’ve got a restitution issue coming up, give it a read. Nice stuff.

To the victories!

you win.jpg1. United States v. Cuti.pdf, Second Circuit: Appellant was convicted of conspiracy to make false statements and securities fraud. His sentence included an award of restitution under the Victims and Witnesses Protection Act. The Second Circuit held that legal expenses incurred in connection with a civil arbitration connected to the offense are not deemed “necessary” under the VWPA because they were not undertaken or pursued in aid of the prosecution. In addition, the court held that non-victims are eligible for restitution only to the extent such payments were made on behalf of the victim, and remanded for reconsideration of the restitution order.

Defense Attorneys: Brian C. Brook and Matthew J. Peed
2. United States v. Price, Fourth Circuit: Appellant pled guilty to failing to register as a sex offender and the district court adopted Guidelines based on the fact that such an offense qualified as a ‘sex offense’. That interpretation was wrong; failing to register as a sex offender does not qualify as a sex offense. The court therefore remanded for resentencing under different sentencing guidelines.

Defense Attorneys: Kimberly Harvey Albro and John H. Hare

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There are two cases in this batch of short wins that I think deserve a special shout out.

First, there’s United States v. Torres-Perez. Appeal waivers are the bane of federal criminal practice (or one of them). Their only advantage is that they make prosecutors’ lives easier. The downside, which is significant, is that they discourage the development of the law. I’d rather have the government work more and know what the law is. Though I may be crazy. In Perez, the Fifth Circuit slapped down an appeal waiver requirement in order to get credit for a acceptance.

Second, there’s United States v. Barta – another great entrapment case from the Seventh Circuit. That circuit is bustin out entrapment cases like Taylor Swift and Katy Perry bust out insults of each other. Or something.

To the victories!

you win.jpg1. United States v. Matta, Second Circuit: As part of the conditions for his supervised release, Appellant was required to participate in a drug treatment or detoxification program, but the Probation Department was allowed to decide if that program should be inpatient or outpatient. The delegation of that decision to the Probation Department was improper because the power to impose special conditions of supervised release is vested exclusively in the district court. That condition was vacated and the case remanded for resentencing.

Defense Attorney: Yuanchung Lee
2. United States v. Fernandez, Fifth Circuit: Appellant was convicted of failing to register as a sex offender and as part of his supervised release, was required to install computer filtering software that would block or monitor Appellants access to sexually oriented websites for any computer he possesses or uses. Because neither the failure to register as a sex offender or his underlying offense involved the use of a computer, the special condition was not sufficiently tied to the facts of the case and was vacated.

3. United States v. Torres-Perez, Fifth Circuit: Appellants pled guilty to illegal reentry. Despite timely entry of the plea deals, the government did not move for any reduction for acceptance of responsibility, claiming that it would not do so because Appellants had not waived their rights to appeal. Withholding the sentencing reduction for that reason is impermissible, so the case was remanded for resentencing
4. Unitd States v. Bailey, Seventh Circuit: Appellant pled guilty to distributing crack cocaine and reserved his right to appeal if the Fair Sentencing Act ever was determined to apply to his case. The Supreme Court subsequently decided that the FSA should apply to cases like Appellant’s retroactively. The Seventh Circuit determined that the proper procedural vehicle for Appellant was a petition for relief under Section 2255, and that the proper remedy was a new sentencing hearing.

5. United States v. Barta, Seventh Circuit: Appellant’s conviction for conspiracy to commit bribery was reversed because Appellant was entrapped as a matter of law. In an undercover government sting operation, Appellant and his co-defendants agreed to bribe a fictional county official in California to obtain a government contract. The government admitted that Appellant was not predisposed to committing the crime and the court found that the government had induced the crime through repeated attempts at persuasion, employing both fraudulent misrepresentations and promises of additional reward.

6. United States v. Hawkins, Seventh Circuit: The district court erred in its definition of bribery under the mail fraud statute by including the intent to be rewarded, without anything in return. The statute requires more than just accepting a reward for a person to be guilty of bribery; it requires that the person does something in exchange for the reward. The convictions for mail fraud were vacated.

7. United States v. McMillian, Seventh Circuit: Appellant’s sentence of thirty years was based in part on the application of two sentencing guideline which were created after the dates of Appellant’s offenses. That application violates the ex post facto clause and the court held that Appellant was entitled to resentencing because the new guidelines range would have been 30 years to life. The previous sentence of 30 years was below the guidelines, rather than within it, so it is possible the judge would have decreased Appellant’s sentence if the proper guidelines range was considered.

8. United States v. Thompson, Seventh Circuit: The Seventh Circuit again took issue with a number of conditions of supervised release imposed by the district courts. Although the court notes that it is difficult to determine conditions of release that may not be implemented for years or decades, the Seventh Circuit vacated a number of conditions because the district court did not provide any reasoning or justification, the condition was not orally articulated at sentencing, or because the condition was unrelated to the crime.

9. United States v. McElmurry, Ninth Circuit: Appellants convictions for possession and distribution of child pornography were vacated. The district court’s failure to reading or listen to evidence–including interview statements made in connection with a prior state law child pornography conviction and a letter written to an inmate months before the crime was charged–was improper under Federal Rules of Evidence 403.

Defense Attorney: John Balazs
10. United States v. Rice, Ninth Circuit: The calculation of restitution and forfeiture was flawed where the loss amount included money laundered before Appellant had joined the conspiracy. Thus, the case was remanded for resentencing and recalculation of those amounts.

Defense Attorney: William H. Gamage
11. United States v. Wray, Tenth Circuit: Appellant’s sentencing guidelines were miscalculated because his prior crime of “Sexual Assault – 10 Years Age Difference” under Colorado statute section 18-3-402(1)(e) does not constitute a crime of violence. The definition for “crime of violence” includes forcible sex offenses, but, applying the categorical approach, the statute in question here does not fall under that definition.

Defense Attorneys: Matthew Belcher and Virginia L. Grady

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It’s been an interesting week in the federal circuits. Aside from the normal and expected sentencing appeals, there are two cases that caught my eye.

The first is United States v. Fard on withdrawing a plea. I often hear from people who have entered a plea and want to talk about hiring me to withdraw it. It can be maddening to see how other lawyers have poorly advised their clients, or have simply had them enter pleas that their client does not understand (sometimes, especially when the lawyer has no prior criminal defense experience, I fear the lawyer doesn’t understand the plea either). Fard helps, a bit, in attacking pleas that aren’t knowing and voluntary.

The second case I find interesting solely for the schaedenfraude it gives me. The case is United States v. Smith. There, an AUSA was appointed and confirmed to be a judge. As a judge, he worked on a case he also worked on as an AUSA. Hijinks ensue.

To the victories!

(Please note, I have a new “victory” photo. I’d love your feedback. On one hand, I think it’s cheeky. On the other, so many of these victories aren’t really “you win” moments. Please email me if you have thoughts.)

you win.jpg1. United States v. Ramos-Gonzalez, First Circuit: Appellant was sentenced to 327 months in prison for drug trafficking. That sentence was based, in part, on a finding that Appellant qualified as a career offender. The predicate offense that the district court relied on–a controlled substance offense under Article 256 of the Puerto Rico Penal Code–does not qualify for that purpose so the case was remanded for resentencing. That article criminalizes not only a crime of violence but also actions which do not require physical force.

Defense Attorney: Linda Backiel
2. United States v. Coppenger, Sixth Circuit: Appellant pled guilty to conspiracy to commit mortgage fraud and, as part of the plea agreement, the government promised not to recommend a sentence in excess of the applicable Guidelines range. The district court varied upward after considering information in the presentence report to increase the number of co-conspirators. The case was remanded for resentencing because Appellant wasn’t given a meaningful opportunity to respond to the information relied upon by the court to vary upward.

Defense Attorney: Evan B. Smith
3. Sultan v. Fenoglio, Seventh Circuit: The district court, on its own initiative, dismissed Appellant’s case for Appellant’s failure to pay the initial partial filing fee. This was an abuse of discretion because he had gone through the appropriate procedures with the prison to have the filing fee paid from his prison funds account, and Appellant should not be penalized because the prison administrator failed to forward the money as directed by the court.

4. United States v. Cary, Seventh Circuit: Appellant pled guilty to one count of failing to register as a sex offender and was given a number of special conditions to his supervised release. A hearing is necessary to determine the nature and scope of the computer and internet software as well as prohibited webpages.

5. United States v. Fard, Seventh Circuit: Appellant’s guilty plea was vacated because it was not knowing and voluntary. There were many factors which indicated to the Seventh Circuit that Appellant’s plea was not knowing and voluntary, including Appellant’s trial counsel’s testimony that Appellant was confused by the nature of the charges combined with the fact that the court did not explain what intent to defraud means or what a fraudulent scheme is.

6. United States v. Morris, Seventh Circuit: After pleading guilty to one count of distribution of crack cocaine, Appellant was sentenced to 48 months. Although that sentence was below the guidelines, the record is unclear about whether the court considered Appellant’s arguments in mitigation when fashioning the sentence, so the case is remanded for resentencing.

7. United States v. Smith, Seventh Circuit: The judge who sentenced Appellant had previously worked on his case as an Assistant United States Attorney before becoming a judge. The record did not adequately allow the Seventh Circuit to determine whether the judge, in doing so, violated the Judicial Code and should have recused herself. The judgment was therefore vacated and remanded for resentencing with a different judge.

8. Williams v. Paramo, Ninth Circuit: The district court’s grant of summary judgment in favor of the defendants was vacated because, under the Prison Litigation Reform Act, Appellant should have been allowed to proceed in forma pauperis. The Ninth Circuit held that a prison who has three strikes under 28 U.S.C. § 1915(g) and who wishes to qualify under the imminent danger exception can do so by alleging that prison officials continue with a practice that has injured Appellant or others, or that there is a continuing effect resulting from such a practice.

Defense Attorneys: Jennifer Chou, Strefan Fauble, and Carlos M. Lazatin

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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.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Barnes, First Circuit: Appellant pled guilty to distribution and conspiracy to distribute 50kg of marijuana. At sentencing, the district court attributed 3,000kg of marijuana to Appellant after a judicial finding of that quantity by a preponderance of the evidence. After Alleyne, drug quantities must be proven beyond a reasonable doubt. The First Circuit held that this error was harmful because the government did not provide an explanation that proved, beyond a reasonable doubt, that the error in attributing a larger quantity of drugs did not “contribute” to the complained-about sentence, and therefore vacated the sentence.

Defense Attorney: Judith H. Mizner
2. United States v. Prange, First Circuit: The trial court erred in calculating the loss amount attributable to Appellants when it relied on the PSR, which recommended loss amounts unsupported by law. Appellants were entitled to have the loss amount lowered when the stocks they sold had some value when it was sold. The cases were remanded so the district court could make factual findings as to the value of the shares acquired by the government during the sting.

Defense Attorneys: Steven N. Fuller, Allen Fuller, and Inga L. Parsons
3. United States v. Sevilla-Oyola, First Circuit: After an initial plea hearing and sentencing, Appellant filed a motion challenging his sentence. A number of hearings were held after, during which the trial court lowered the sentence each time. The trial court, however, did not have authority for his actions during a majority of the proceedings. The variety of motions filed by Appellant could not be considered a Section 2255 motion because Appellants only gets one complete round of collateral review and none of the parties had considered Appellant’s motions to be a habeas petition. All of the convictions were vacated and remanded for one final resentencing.

Defense Attorney: Rafael F. Castro Lang
4. United States v. Starks, First Circuit: Appellant was convicted of being a felon in possession of a firearm after a police officer stopped him in a car his son had rented. The district court held that Appellant did not have standing to challenge the stop because Appellant was not the authorized driver of the rental car. But because a mere passenger in a car has standing to challenge the constitutionality of the stop, the First Circuit held that Appellant’s status as an unlicensed, unauthorized driver was no less than that of a passenger and therefore he had standing. This required the conviction to be vacated and remanded for an evidentiary hearing.

Defense Attorney: James L. Sultan
5. United States v. Zhyltsou, Second Circuit: A jury found Appellant guilty of the unlawful transfer of a false identification document. During trial, the court admitted as evidence a printed copy of a social media webpage which the government claimed was created by Appellant. The government did not satisfy the authentication requirement because it did not prove that it was Appellant’s profile page rather than a page on the internet that was about Appellant but which Appellant did not create or control. The conviction was vacated and the case remanded.

Defense Attorney: Yuanchung Lee
6. United States v. Bui, Third Circuit: Appellant’s petition for habeas corpus should have been granted because he received ineffective assistance of counsel. Appellant pled guilty only after his trial counsel provided him with incorrect advice regarding the availability of a sentencing reduction pursuant to the “safety valve.” Although trial counsel filed a motion for such a reduction, he withdrew it after realizing Appellant was ineligible. This amounted to ineffective assistance of counsel.

Defense Attorneys: Maria K. Pulzetti and Brett G. Sweitzer
7. United States v. Paladino, Third Circuit: Appellant challenged the district court’s judgment revoking Appellant’s supervised release and imposing a prison sentence. The judgment was vacated and the case remanded for resentencing because Appellant was denied the right to allocute at sentencing when the court did not address Appellant personally or permit him to speak or present information in mitigation of the sentence.

Defense Attorney: Sarah S. Gannett
8. United States v. Catone, Fourth Circuit: A jury convicted Appellant of one count of making a false statement in connection with his receipt of federal workers’ compensation benefits and was sentenced to 16 months’ imprisonment and to pay $106,411.83 in restitution. The sentence must be vacated because the jury did not make a finding that the offense led to more than $1,000 in falsely obtained benefits, so Appellant could only be given a maximum 12-month, misdemeanor sentence. The loss calculation was wrong because it should have reflected the difference between the amount of benefits that he actually received and the amount that he would have received but for the false statement. Instead, restitution was vacated because the loss amount was calculated as the full amount Appellant had received in workers’ compensation during that time period.

Defense Attorneys: Joshua B. Carpenter and Ross Hall Richardson
9. United States v. Randall, Fifth Circuit: Although Appellant pled guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine, the factual basis on which his plea was based and the PSR found that Appellant was only responsible for less than 200 grams of cocaine. Appellant’s sentence, which was based on his liability for five kilograms of cocaine, was vacated and remanded because Appellant should be sentenced based only on the facts adopted by the court–that is, the amount attributable only to him and not to the conspiracy as a whole–and that amount did not require a mandatory minimum sentence.

10. United States v. Snelling, Sixth Circuit: Appellant was convicted of conspiracy to commit mail and wire fraud, obstruction of justice, and tax evasion and sentenced to 131 months in prison. In determining the sentencing guidelines range, the court failed to take into account sums paid back to the Ponzi scheme’s investors in the course of the fraud. This resulted in a higher loss value, and therefore a larger sentencing enhancement. The sentence was therefore vacated and remanded for recalculation.

Defense Attorney: Kevin M. Schad
11. Swisher v. Porter Co Sheriff’s Dept., Seventh Circuit: Appellant brought a §1983 complaint based on a pretrial denial of medical care for a bullet wound to his abdomen. Appellant had not exhausted all administrative remedies, so the district court dismissed his complaint. The denial was reversed because Appellant had not been advised of the grievance procedure and was told by the Warden not to file a grievance.

12. United States v. Bowling, Seventh Circuit: Appellants convictions for making false statements in connection with the purchase of a firearm were reversed and the case remanded for a new trial. The Seventh Circuit held that Appellant had to be given the opportunity to present a mistake of fact defense because, although he was charged with a felony at the time, he was also aware that the plea deal offered was for a misdemeanor. The Court held that Appellant should not have to testify in order to present the defense, but instead can cross-examine other witnesses.

13. United States v. Hinds, Seventh Circuit: Appellant’s case was remanded for resentencing because the district court improperly imposed two special conditions of supervised release. The condition requiring Appellant to pay for a portion of his court-ordered substance abuse treatment and drug testing was in error because the district court expressly found that Appellant lacked the ability to pay the interest requirement on the restitution and the court did not order a fine based on the same inability to pay. And the condition requiring Appellant to submit to suspicionless searches and seizures was also in error, and the government conceded at oral argument that this invasive condition has already been banned by the court.

14. United States v. Myers, Seventh Circuit: Appellant was convicted of several identity theft-related crimes and sentenced to 132 months imprisonment. The sentence was vacated because the six-level enhancement for 250 or more victims violated the Ex Post Facto Clause. The guidelines in place at the time of the crime would not have characterized many of the individuals as victims.

15. United States v. Reid, Eighth Circuit: Appellant was convicted of unlawful possession of a firearm by a felon, which carries a ten year maximum sentence. The court found that Appellant’s prior conviction qualified him under the Armed Career Criminal Act to a guidelines range of fifteen years to life imprisonment. Because Appellant’s prior conviction was not a violent felony, as required by the Armed Career Criminal Act, his sentence was vacated.

16. Deck v. Jenkins, Ninth Circuit: Petitioner’s writ of habeas corpus should have been granted where the prosecutor, in closing argument, negated an essential element of the intent to commit a lewd act upon a child. The prosecutor argued that the intent element could be proven if Petitioner intended to commit the act not on the day of his arrest, but at some point in the future. This prosecutorial error was not harmless where the jury was confused, a corrective instruction was not given, and the written jury instructions did not address the subject of the jury’s confusion.

Defense Attorney: Charles M. Sevilla
17. Sessoms v. Grounds, Ninth Circuit: Petitioner’s writ of habeas corpus should have been granted because a reasonable law enforcement officer should have understood Petitioner’s statements as an unambiguous request for counsel. In light of Salinas v. Texas, the requirement of an unambiguous invocation of the right to counsel applied to pre-Miranda statements like Petitioner’s.

Defense Attorney: Eric Weaver
18. United States v. Aguilera-Rios, Ninth Circuit: Petitioner’s conviction for illegal reentry was reversed because his prior removal order was invalid. The removal order was based on a conviction for unlawful possession of a firearm. The statute criminalizing that conduct did not have an antique firearms exception and therefore was not a categorical match for the Immigration and Nationality Act’s firearm offense. Since there was no categorical match, the removal order was invalid.

Defense Attorney: Kara Hartzler
19. United States v. Bell, Ninth Circuit: After being convicted of making false, fictitious, and fraudulent claims to the US treasury, filing false tax returns, contempt, and mail fraud, Appellant was sentenced and, as part of supervised release, required to undergo substance abuse treatment and abstain from consuming alcohol. That condition was vacated and the case remanded because the record contained no evidence showing that Appellant abused any substance.

Defense Attorney: Gregory Charles Link
20. United States v. Brown, Ninth Circuit: A case arising from a Ponzi scheme and bankruptcy fraud was remanded for resentencing. The sentencing court erroneously imposed an enhancement for endangering the solvency or financial security of 100 or more victims where the government did not provide evidence of the impact of the crimes on the requisite number of victims. In addition, Appellant Eddings’ sentence also included an erroneous leadership role adjustment because the trial court noted that it wasn’t clear whether Eddings controlled a particular participant, and the record does not indicate that he controlled any other criminally responsible participant in the scheme. Further, it was error to apply a sentencing enhancement for having 250 or more victims when the district court relied on 148 victims who were not included in the loss calculation.

Defense Attorneys: Heather Williams, David M. Porter, Rachelle Barbour, and John Balazs
21. United States v. Bryant, Ninth Circuit: Appellant moved to dismiss the indictment charging him with two counts of domestic assault by a habitual offender. Appellant was previously convicted in tribal court of domestic abuse, which the government used to establish the element of a prior offense. The Court held that only tribal court convictions obtained when Appellant had a right to counsel which is, at a minimum, coextensive with the Sixth Amendment right to counsel, can be used in a subsequent prosecution. Because Appellant did not have such a right to counsel during his tribal court convictions, they could not be used against him in this case and the indictment should have been dismissed.

Defense Attorneys: Steve C. Babcock and Anthony R. Gallagher
22. United States v. Castro-Ponce, Ninth Circuit: Appellant’s sentence enhancement for obstruction of justice was vacated because the trial court did not explicitly find that Appellant’s false testimony was also willful and material.

Defense Attorney: Lynn T. Hamilton
23. United States v. Heredia, Ninth Circuit: The government made repeated and inflammatory references to Appellant’s criminal history throughout its sentencing memorandum. Because those references served no practical purpose but to argue implicitly for a higher punishment than it had agreed to recommend, Appellant’s sentence was vacated and remanded.

Defense Attorneys: Sean K. Kennedy and Jonathan D. Libby
24. United States v. Hernandez, Ninth Circuit: As part of Appellant’s sentence for illegal reentry, the district court added a sentencing enhancement for Appellant’s prior conviction of being a felon in possession of a firearm under the California Penal Code. Because that statute does not include an antique-firearm exception, it is not a categorical match for the federal firearms offense. Therefore the enhancement was improper and the case was remanded for resentencing.

Defense Attorneys: Sean K. Kennedy and James H. Locklin
25. United States v. Mavromatis, Ninth Circuit: Appellant’s conviction for being in possession of a firearm after being committed to a mental institution. This conviction was barred by double jeopardy because Appellant was previously acquitted on a charge based on the same incident of possession.

Defense Attorneys: Rich Curtner and Noa Oren
26. United States v. Melot, Tenth Circuit: Appellants were held in contempt and sanctions imposed after the district court believed the Appellants fraudulently intervened in the foreclosure of their properties. The sanctions were reversed because Appellants only had notice that the court was considering contempt. The lack of notice of sanctions or the opportunity to be heard was a denial of due process in violation of the Fifth Amendment.

Katherine L. Melot and Billy R. Melot proceeded pro se.

27. United States v. Reyes Vera, Ninth Circuit: Appellants were convicted of a drug conspiracy and the use of a minor to commit a drug trafficking offense. During trial, a police officer was called as an expert to explain the drug jargon used in wiretapped phone calls. The Ninth Circuit held that this testimony was a mix of lay and expert opinion, and the trial court’s failure to explain that distinction to the jury was in error. Because this error affected the drug quantities found by the jury in a special verdict (which itself impacted the mandatory minimum sentences), the case was remanded for proper determination of drug quantity.

Defense Attorneys: Gretchen Fusilier and Thomas Paul Slesinger
28. Williams v. Swarthout, Ninth Circuit: Petitioner’s writ of habeas corpus should have been granted where the trial court made a misstatement immediately before trial that Petitioner had pled guilty, and that misstatement was not corrected until the jury began to deliberate. This deprived Petitioner of the presumption of innocence and violated his Sixth Amendment right to an impartial jury because the error was not rendered harmless by curative instructions.

Defense Attorneys: William J. Capriola and John P. Ward
29. United States v. Bear, Tenth Circuit: Appellant pled guilty to failing to register or update a registration as a sex offender. The special condition of supervised release restricting Appellant’s contact with his children was reversed. Any condition that interferes with the right of familial association can do so only in compelling circumstances, and here the government did not present evidence that Appellant displayed a propensity to commit future sexual offenses or exhibited any proclivity toward sexual violence, nor has he shown any display of danger to his own children.

Defense Attorney: Brooke A. Tebow
30. United States v. Powell, Tenth Circuit: Appellant was convicted of numerous counts related to making, uttering, or possessing a forged security after he altered payee information or forged endorsements and then deposited checks stolen from the United States mail into his bank accounts at various banks. That crime requires the government to prove that the security (including checks) belonged to an organization (such as a bank). His convictions were vacated because proof that the checks were deposited into a federally insured bank was not proof that the checks were “of” the depository banks.

Defense Attorney: Ty Gee
31. United States v. Hite, DC Circuit: Appellant’s conviction for attempting to persuade a minor to engage in unlawful sexual activity was vacated. Although it is not necessary for the communication to be directly to a minor, the government must prove that the communications with an intermediary are aimed at persuading, inducing, enticing, or coercing the minor. The jury instructions did not reflect such an understanding and require Appellant’s conviction to be vacated. In addition, Appellant should have been permitted to introduce expert evidence about Appellant’s lack of sexual interest in children since that question is relevant to proving intent.

Defense Attorneys: Lawrence S. Robbins, Barry J. Pollack, A.J. Kramer, Jonathan Jeffress, and Rosanna M. Taormina

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The most interesting case in the last two weeks, I think, is United States v. Shannon. There, the person accused of a crime simply didn’t feel like talking to law enforcement – because, really, who would. The government crossed him on his decision not to talk and asked why he didn’t come forward with his exculpatory testimony sooner.

The Third Circuit reversed because this violated his Fifth Amendment rights – there’s really no point in having a right not to talk if you hold it against a person when she doesn’t talk.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Santaigo, First Circuit: Appellant was convicted of failing to register as a sex offender and the terms of his supervised release included a number of special sex offender conditions. One condition, which was not articulated by the judge at the sentencing hearing but only added in the written judgment, must be vacated because it was imposed in Appellant’s absence.

Defense Attorneys: Liza L. Rosado-Rodríguez, Héctor E. Guzmán-Silva, and Héctor L. Ramos Vega
2. United States v. Cuti, Second Circuit: After being convicted of making false statements and securities fraud, Appellant was ordered to pay restitution. The court vacated the restitution order and remanded for the trial court to determine what expenses incurred are “necessary” under the Victim and Witness Protection Act. The court held that legal expenses incurred in connection with civil arbitration were not undertaken or pursued in the aid of prosecution and therefore were improperly included in the restitution order.

Defense Attorneys: Brian C. Brook and Matthew J. Peed
3. United States v. Shannon, Third Circuit: Appellant’s conviction was vacated because the government cross-examined Appellant during trial about his post-arrest silence. The government violated Appellant’s Fifth Amendment rights when it questioned him about failing to come forward earlier with his exculpatory version of the facts.

Defense Attorney: Paul D. Boas
4. United States v. Farah, Sixth Circuit: Appellant’s conviction for refusing to testify in the criminal prosecution of thirty gang members was in violation of the double jeopardy clause. The underlying criminal investigation was, in part, for the sex trafficking of minors and Appellant was convicted of both willfully disobeying an order requiring his testimony and of obstructing or attempting to obstruct the child sex trafficking laws. Those convictions require proof of the same elements, requiring the willfully disobeying conviction to be vacated.

Defense Attorney: James Mackler
5. United States v. Brewer, Eighth Circuit: Appellant was convicted of failing to register as a sex offender under the Sex Offender and Registration Notification Act (SORNA). Appellant, who was convicted prior to the enactment of SORNA, challenged the Attorney General’s interim rule that made registration requirements to all pre-Act offenders. Because that rule was set without the required period for notice and comment, and without good cause, and that rule prejudiced Appellant, SORNA did not apply to Appellant and his conviction must be vacated.

6. United States v. Thornton, Eighth Circuit: Appellant was sentenced to the 15-year mandatory minimum for being an armed career criminal. That sentence was vacated because two of his prior convictions did not qualify as the three predicate offenses necessary to be considered an armed career criminal. First, the government admitted that a Missouri burglary conviction for which Appellant received a suspended sentence could not be a predicate offense. Second, Appellant’s Kansas burglary conviction was under a statute which criminalized both violent and non-violent conduct. It could not be considered a predicate offense because the government did not prove that Appellant was convicted under the subsection criminalizing violent conduct.

7. Castellanos v. Small, Ninth Circuit: Petitioner’s application for habeas relief should have been granted where the government exercised four peremptory strikes against Hispanic venirepersons. The Ninth Circuit found that the government’s reason for striking one person because she did not have children was pretextual.

Defense Attorneys: Gia Kim and Sean K. Kennedy
8. Gibbs v. LeGrand, Ninth Circuit: The district court improperly dismissed Appellant’s petition for habeas corpus. Because Appellant had repeatedly requested updates from his attorney about his state post-conviction proceedings, and counsel had pledged to update Appellant. Counsel, however, did not tell Appellant his stat post-conviction proceedings had ended, causing Appellant to miss the deadline for his federal habeas petition. That misconduct was an extraordinary circumstance requiring an extension of time for filing the habeas petition.

Defense Attorneys: Megan C. Hoffman, Debra A. Bookout, and Ryan Norwood
9. United States v. Dreyer, Ninth Circuit: Appellant’s convictions for child pornography were reversed because the trial court should have excluded where a military agent turned over the fruits of his investigation to local law enforcement. The court held that it is improper for a military special agent to investigate conduct by anyone in the state of Washington, not just those connected with the military. Such investigation violates the regulations and policies proscribing direct military enforcement of civilian laws.

Defense Attorney: Erik V. Levin
10. United States v. Meyer, Ninth Circuit: In California, the one-year statute of limitations in which to file a §2254 habeas petition begins to run once 1) the California Supreme Court denies the state habeas petition; and 2) the United States Supreme Court denies certiorari or the 90-day period for filing a petition for certiorari expires. Petitioner here filed his habeas petition within one year of the denial of his state habeas, and it was only at that point that he had exhausted state remedies and the statute of limitations began to run.

Defense Attorney: Charles Marchand Bonneau II
11. United States v. Heineman, Tenth Circuit: Appellant was convicted after a bench trial of one count of sending an interstate threat. That conviction was reversed because the court did not make a finding that Appellant intended the recipient to feel threatened. The Ninth Circuit held that the First Amendment requires the government to prove in any true-threat prosecution that the accused intended the recipient to feel threatened.

Defense Attorneys: Benjamin McMurray and Kathryn Nester

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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.

Maybe this desperation is more acute in these times, maybe it’s an inevitable part of what it is to be human.

In any event, as anyone who has defended someone who has been accused of possession of child pornography knows, unfortunately, some folks come to this dark place in their lives and instead of drinking their time away, they turn to pornography. Often they start on more mainstream stuff, come to be desensitized and look for things that are more and more disturbing. That can lead them to child pornography. Or these folks are just searching for pornography in volume and come to the massive troves of child pornography floating around the internet.

The government is not shy about bringing these cases. Much as folks with drug addictions get punished by our government when they come to harder stuff – even though what they really ought to get is treatment – people who merely possess child pornography are too aggressively pursued for what is often a mental health problem that requires treatment.

Happily, in United States v. Husmann, the Third Circuit took a stand against a particularly gross practice in the prosecution of child pornography laws.

Much child pornography is shared through online file sharing systems. So, you can have child pornography in a folder that you mark to be shared with others on the internet.

The government sometimes takes the position that making stuff available through putting it in a folder that allows sharing is distribution of child pornography. Distribution is a massively more severe crime than possession with a much more severe mandatory minimum. And by threatening a distribution charge where a person only allowed file sharing, the government can coerce plenty of people into taking a plea, or taking a plea under worse terms.

Thankfully, the Third Circuit came out against that practice, holding that just showing the images were available for sharing isn’t the same as saying they were distributed.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Groysman, Second Circuit: Appellant was convicted of health care fraud and money laundering. The main government witness gave testimony that included inadmissible hearsay and opinions, and was allowed, without personal knowledge, to provide the foundation for seven government exhibits that were inaccurate and misleading. The admission of misleading exhibits for which the witness had no personal knowledge of the matters conveyed, as well as inappropriate opinion testimony relating to Appellant’s role in the scheme, was prejudicial and required the convictions to be vacated and the case remanded for a new trial.

Defense Attorney: Maurice H. Sercarz
2. United States v. Brown, Third Circuit: Appellant’s conviction for being a felon in possession of a firearm was vacated and the remanded for a new trial. The district court erred in admitting evidence of Appellant’s past firearm purchases. Although the government had a legitimate non-propensity purpose for admitting the evidence–it showed Appellant’s knowledge of the firearm in his car–it still violated 404(b) because the government did not proffer a sufficient explanation of why the evidence was relevant. Evidence that Appellant had previous purchased firearms does nothing to establish that he knowingly possessed a gun six years later.

Defense Attorney: Kimberly R. Brunson
3. United States v. Brown, Third Circuit: The district court inappropriately applied a sentencing enhancement after finding that Appellant was a career offender, requiring Appellant’s sentence to be vacated. There is a narrow range of cases where a court can look beyond the legal requirements, and instead examine the factual bases for a conviction to determine if it was a crime of violence. But here, exploring the underlying facts was in error because the prior conviction did not require the factfinder to make a determination that there was a crime of violence so the modified categorical approach cannot be used.

Defense Attorney: Thomas W. Patton
4. United States v. Husmann, Third Circuit: Appellant was convicted by a jury of three counts of distributing child pornography after Appellant placed images in a shared computer folder connected to a file sharing network. At trial, the government did not present evidence that any person had downloaded or obtained those images. The mere placement of images into a folder, making those images available to users of the file sharing network, does not constitute distribution. Appellant’s conviction was therefore vacated.

Defense Attorneys: Theodore C. Forrence, Jr., Kenneth C. Edelin, Jr.

5. United States v. Foster, Sixth Circuit: Appellant was sentenced to 622 months’ imprisonment for two counts of drug possession, two counts of firearm possession, one count of drug distribution, and one count of conspiracy. One of the drug possession charges as well as one firearm possession counts were vacated because they were in violation of the Double Jeopardy Clause. Those two counts duplicate other counts for which Appellant was convicted and sentenced.

Defense Attorney: Frederick Liu
6. United States v. Miller, Sixth Circuit: A jury found Appellants guilty of hate crimes after a string of assaults in Amish communities where the Appellants would cut the hair of members of their Amish community. During trial, the court gave a jury instruction requiring the jury to find that the faith of the victims must be a “significant factor” in motivating the assaults. The convictions must be vacated and Appellants retried because the instruction should have required the jury to find that the faith of the victims was a “but for” cause of the assaults.

Defense Attorneys: Michael E. Rosman, Matthew D. Ridings, Wendi L. Overmyer, Rhonda L. Kotnik, John R. Mithcell, Kip T. Bollin, Holly H. Little, Mark R. Butscha, Jr., David C. Jack, George C. Pappas, Brian M. Pierce, Joseph A. Dubyak, Samuel G. Amendolara, Steven R. Jaeger, Robert E. Duffrin, Rhys . Cartwright-Jones, Damian A. Billak, J. Dean Carro, Wesley A. Dumas, Sr., James S. Gentile, Nathan A. Ray, and Gary H. Levine
7. United States v. Prater, Sixth Circuit: A conviction for third-degree burglary under New York law is not a “violent felony” for purposes of the Armed Career Criminal Act. The district court’s determination that these were violent felonies without applying the modified categorical approach was in error. The sentence was vacated and the case remanded.

Defense Attorney: Laura E. Davis
8. United States v. Chapman, Seventh Circuit: Appellant was convicted of drug trafficking by a jury. The district court erroneously admitted details of Appellant’s prior drug-trafficking conviction under Rule 404(b). The judge allowed the government to use that evidence to prove knowledge and intent, but the relevance of the evidence depended entirely on a forbidden propensity inference. Appellant’s conviction was vacated and remanded for a new trial.

9. United States v. Gonzalez, Seventh Circuit: Appellants were members of the Almighty Latin Kings Nation gang and most pled guilty to various charges, although one went to trial. Appellant Anaya, who was found guilty at trial, must be resentenced because the district court increased a statutory maximum based on facts that were not proven beyond a reasonable doubt. Thus, the sentencing guidelines should have reflected a maximum of 20 years as opposed to 30.

10. United States v. Johnson, Seventh Circuit: At sentencing, the district court did not announce a term of supervised release, but one was incorporated in the court’s written amended judgment. The conditions of supervised release which were not orally announced at sentencing were vacated and the case remanded for the district court to clarify conditions of the supervised release.

11. United States v. Fowlkes, Ninth Circuit: The forcible removal of drugs from Appellant’s rectum during a body cavity search, without medical training or a warrant, violated Appellant’s Fourth Amendment rights. The evidence obtained from that brutal and physically invasive search should have been suppressed. The conviction predicated on the drugs was vacated and the case remanded for resentencing.

Defense Attorney: Thomas P. Sleisenger
12. United States v. Luis, Ninth Circuit: The district court erred in calculating the loss amount after Appellant pled guilty to conspiracy and loan fraud. The district court erred by calculating the restitution amount based on the unpaid principal loan balance rather than the value of the loans when they were purchased.

Defense Attorney: Todd W. Burns
13. United States v. Nora, Ninth Circuit: The district court’s denial of a motion to suppress was reversed. Although Appellant’s arrest was supported by probable cause, it violated the Fourth Amendment because officers physically took Appellant into custody in his front yard by surrounding his house and ordering him out at gunpoint. All evidence seized in the search incident to arrest should have been suppressed, as should the statements made by Appellant’s statements.

Defense Attorney: Michael J. Treman
14. Wharton v. Chappell, Ninth Circuit: The district court’s denial of habeas was vacated and remanded for further factual proceedings to determine ineffective assistance of counsel. Appellant’s claim that his lawyer was ineffective for failing to investigate and present testimony by Appellant’s half-brother that there was sexual abuse ubiquitous in Appellant’s family could have merit as the jury may not have rendered a verdict of death. The case was remanded for further proceedings.

Defense Attorneys: Marcia A. Morrissey and Lynne S. Coffin