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Happy New Year!

In our first “Short Wins” of the new year, the Eighth Circuit reverses a district court’s order restricting a person in BOP custody from communicating with folks on the outside, the Ninth Circuit reverses on a career offender determination, and the Sixth Circuit reversed when a district court didn’t give a person counsel in a competency hearing.

My personal favorite, though, is the Ninth Circuit’s remand in a mail fraud case that, the court of appeals determined did not involve the mails.

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Alfred Caronia was a sales rep for a pharmaceutical company. And, despite what you might think by reading some of the literature, being a pharmaceutical sales rep is not a crime. It’s even more emphatically not a crime after the Second Circuit’s opinion in United States v. Caronia.

1213599_pills.jpgPart of Mr. Caronia’s job was to encourage folks to buy Xyrem.

According to the Second Circuit,

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Five partners at Ernst & Young – Robert Coplan, Martin Nissenbaum, Richard Shapiro, and Brian Vaughn, and Charles Bolton – were charged with a number of tax crimes in federal court in New York, specifically tax evasion, conspiracy to defraud the United States, and lying to the IRS. The Second Circuit said that the government didn’t prove that two of the men were guilty and send the case back.

Ernst & Young had developed a number of tax shelters. Tax shelters – to be clear – are not themselves necessarily legal or illegal. As the jury was instructed, “it depends on the facts.”

1102930_piggy_bank_1.jpgThere were five tax shelters at issue. The Second Circuit, in United States v. Coplan, described the tax shelter that was the basis of the tax evasion count this way:

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One would have thought that, with the end of the world predicted for Friday of last week, our nation’s appellate courts would have spent their last week on Earth with family or friends, rather than cranking out wins for folks charged with federal crimes.

Perhaps circuit court judges have access to better science than those who thought that the movie 2012 was a documentary set in the future. Our federal courts of appeal cranked out a whopping 6 victories for people accused of crimes in federal court last week. Perhaps they were simply trying to clear their docket up for more relaxed figgy pudding on Tuesday.

There are some good cases here involving a wide range of federal criminal topics – restitution, gun sentencing, trial sequestration, stalking using a telecommunications device, and civil rights violations. It’s a nice stocking stuffer of law for this slow week.

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When a person is convicted of a federal crime, especially in a fraud case, but in lots of other kinds of federal criminal cases too, the district court sometimes also orders that the person pay restitution.

The point of restitution is that the person has to pay back any money that they took – they have to make any victims of the crime whole again.

To satisfy a restitution judgment, the federal government can go try to get that money from assets that a person has – they can go after bank accounts and retirement accounts and houses.

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There’s little judicial attention paid to folks who have their stuff taken by the police executing a search warrant – and who want it back later.

Thankfully, just in time for Christmas, the Eighth Circuit breaks out with United States v. Bailey.

1382778_old_brick_cell_phone.jpgNot George Bailey And Perhaps Not A Wonderful Life

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This week’s wins cover three circuits and four diverse areas of law.

Particularly interesting (to me) are the Fourth Circuit’s opinion holding that it may not be a crime to steal the identity of a corporation. It feels like corporate personhood and its limits are popping up in all sorts of ways these days.

The Eighth Circuit has an interesting jury instruction issue in a sexual assault case, and, remarkably, the First Circuit has a remand based on the sufficiency of the evidence in a marijuana conspiracy case. A good set of wins all around.

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It’s hard, when things go wrong, not to seek a mulligan. And we all get off on the wrong foot sometimes.

When a case is in front of a federal judge for sentencing, though, a mulligan is only very rarely available.

The Fifth Circuit case of United States v. Murray shows why.

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Sometimes a boat ride – a three hour cruise – can take you places you could never have anticipated.

For Yimmi Bellaizac-Hurtado, Pedro Felipe Angulo-Rodallega, Albeiro Gonzalez-Valois, and Luis Carlos Riascos-Hurtado, a ride in a wooden boat off the coast of Panama took them to the Eleventh Circuit, the Bureau of Prisons, and through the heart of the Constitution’s grant of power to Congress to make laws to punish “Offenses against the Law of Nations.”

Welcome to the Jungle

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It’s an odd week for wins in the federal appellate courts.

The Second Circuit ruled that the First Amendment protects (some kinds of) promotional activity for off-label use of drugs. Any time the First Amendment is intersecting with criminal law it makes for good reading – expect fuller coverage later this week.

The Eighth Circuit sent a Fair Sentencing Act case back for resentencing, and there was a bizarre grenade case from the Eighth Circuit as well. Good Times.