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.
For 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.