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December 18th, 2009UncategorizedIn U.S. v. Emmanuel, No. 07-10378 (April 21, 2009), the Court affirmed drug trafficking convictions.
The Court rejected the argument that a wiretap of the defendants under Bahamian law so "shocked the conscience" as to warrant suppression of its fruits, because no neutral magistrate need approve the wiretap. The Court noted that the "shock the judicial conscience" standard is meant to protect against conduct that violates "fundamental international norms of decency." Fundamental international norms of decency do not require judicial review in all jurisdictions of applications to intercept wire communications. Therefore, the Bahamian wiretap is not excludable.
The Court also rejected the argument that the United States so involved itself with the Bahamian government in the wiretap that the Fourth Amendment applied. The Court noted that Emmanual was a nonresident alien entirely outside the United States. The Fourth Amendment therefore could not apply, regardless of United States involvement. The Court distinguished U.S.v. Behety, on the ground that it involved a resident alien and a U.S. citizen. The Fourth Amendment exclusionary rule does not apply to the interception of wire communications in the Bahamas of a Bahamian resident.
The Court rejected hearsay and Confrontation Clause challenges to the admission at trial of the Bahamian government’s approval of the wiretap, finding that admission of this evidence, even if error, did not substantially affect the trial.
The Court also found no prejudice in the district court’s admission of police officer testimony that he recognized the defendant’s voice from having heard it at the defendant’s condition of bail hearing. The comment was a brief reference during a relatively long trial.
The government offered a police officer as an expert to interpret drug codes and jargon used in taped conversations. The Court rejected Emmanuel’s Rule 702 challenge to this testimony, finding that drug codes and jargon are proper subjects of expert testimony. The Court recognized that such testimony "may unfairly provide the government with an additional summation by having the expert interpret the evidence, and may come dangerously close to invading the province of the jury. Here,"most" of the testimony "was specific and closely related to [the] interpretation of drug codes and jargon." But "some" of the testimony "went beyond interpreting code words to interpret conversations as a whole." Nevertheless, it was unlikely this affected Emmanuel’s substantial rights, because the judge emphasized that the jury will determine whether the testimony is credible. In addition, based on Emmanuel’s own incriminating statements on tape, the jury "could have easily interpreted the coded conversations as involving drugs based on other evidence in the case, including actual seizures of drugs and drug money and testimony from coconspirators." Any error, therefore, did not require reversal. -
December 17th, 2009UncategorizedIn United States v. Laboy-Torres, No. 08-1220, the defendant challenged his conviction for making a false statement to a licensed firearms dealer under 18 U.S.C. §922(a)(6), arguing that his previous conviction in Puerto Rico was not a domestic conviction under 18 U.S.C. §922(g)(1).
The defendant moved to dismiss the indictment, claiming that the government failed to adequately allege the materiality element of 18 U.S.C. §922(a)(6). Citing Small v. United States, 544 U.S. 385 (2005), the defendant argued that his Puerto Rican conviction was “foreign” and not “domestic,” and therefore it could not serve as a qualifying predicate offense under 18 U.S.C. §922(g)(1). According to the defendant, the existence of his Puerto Rican conviction was not material to the lawfulness of the sale because the foreign conviction did not make it illegal for him to purchase a firearm under 18 U.S.C. §922(g)(1). The trial court denied the defendant’s motion, ruling that his Puerto Rican conviction was domestic. The defendant pled guilty on the condition that he could appeal the trial court’s denial of his dismissal motion.
Retired Supreme Court Justice Sandra Day O’Connor, sitting by designation, wrote the opinion for the Court. Justice O’Connor determined that Small was inapplicable to the case because, unlike the Japanese conviction at issue in Small, the defendant’s Puerto Rican conviction was in fact “domestic.” In Small, the Supreme Court recognized a presumption that Congress intends its statutes to prohibit only domestic, not foreign, conduct. Consequently, Congress must also intend only domestic criminal acts to serve as predicate offenses for its statutes.
Justice O’Connor recognized that, as the Commonwealth of Puerto Rico was in essence a “State,” federal laws applied to Puerto Rican conduct. Therefore, based upon the presumption discussed in Small, the defendant’s Puerto Rican conviction was in fact domestic and therefore could serve as a qualifying predicate offense under 18 U.S.C. § 922(g)(1). As a result, Justice O’Connor affirmed the defendant’s conviction. -
August 9th, 2009UncategorizedIn McGahee v. Alabama Dep’t of Corrections, No. 07-15602 (March 4, 2009), the Court granted a writ of habeas corpus to an Alabama death row inmate, finding that Alabama violated Batson v. Kentucky by using its peremptory strikes in a discriminatory manner at his trial for 1986 murders.
The Court found that the Alabama trial court, and the Alabama Court of Criminal Appeals, failed to properly apply Batson. The record indicated that one black juror had been struck because the State "did not want to leave him individually," a remark the Court interpreted as being because of the juror’s race. In addition, all black members of the venire were struck by the State, either for cause, or by the use of peremptory challenges. "There can be no clearer ‘pattern’ than the total removal of all African-American jurors from the venire by the State." Further, the State attempted to justify striking multiple African-American jurors because of their "low intelligence." There was no support for this finding in the record. "Furthermore, the State’s claim that several African-Americans were of ‘low intelligence’ is a particularly suspicious explanation given the role that the claim of ‘low intelligence’ has played in the history of racial discrimination from juries."
The Court called the removal of all African-American jurors from the venire "astounding." The Court found that race was a basis for striking specific black members of the venire, and a Batson violation therefore occurred. -
August 8th, 2009UncategorizedThe Third Circuit today reaffirmed that, in applying statutes of limitations in the conspiracy context, the critical issue is the scope of the conspiracy charged in the indicment--not, necessarily, the dates of the overt acts recited. In U.S. v. Bornman, No. 07-3447 (3/6/09), the Court was faced with an indictment charging two conspiracies to commit bribery (18 U.S.C. s 371 and 666(a)(1)(B)). The indictment described the object of the first conspiracy as "to enrich [defendants] by corruptly soliciting and accepting payments from contractors with the intent of being influenced . . . ." It also recited six overt acts, including solicitation and acceptance of payments as well as (1) the return of one of the payments as a "loan," and (2) the refusal to return another of the payments as a "loan." Only these last two overt acts fell within the 5-year limitations period, however.
The Court held that, because the conspiracy was charged as having a simple solicit/accept object, the conspiracy was complete when that occurred and the later return or refusal to return the payments as "loans" could not have furthered the conspiracy as charged. The statute of limitations had therefore run, and the defendant's convictions on the first conspiracy count, as well as on the underlying extortion counts, were vacated. The second conspiracy count charged a later conspiracy, which was not time-barred. The Court upheld the defendant's conviction on that count against a sufficiency-0f-the-evidence challenge.
Perhaps inadvertently, the Court also dropped a bombshell by stating without analysis that section 666 bribery does not require proof of a quid pro quo. This issue has not previously been addressed in this circuit, is the subject of a split among others, was not actually at issue in Bornman -- and, in result, is arguably inconsistent with the Third Circuit's decision in U.S. v. Kemp. The Court's cite to the Supreme Court's decision in Sabri v. U.S., 541 U.S. 600 (2004) suggests that it confused the federal nexus issue (i.e., the government need not show a link between the official act in question and the federal funds that provide the jurisdictional hook) with the quid pro quo issue (i.e., the government does need to show a link -- an exchange -- between the official act and the thing of value).
The Court also turned away the defendant's challenge to the denial of his severance motion, reaffirming that the difficult standard for severance is not met by a showing that the evidence in a case is most damaging with respect to only certain counts. -
August 7th, 2009Uncategorized
OK, we know about the dire financial picture for the state, the latest report showing that while there’s a chance the state will have money in the bank on June 30, the following year requires major cuts or new taxes.
Budget cutting is almost a black art, shrouded in acronyms and with “State General Funds” and “All Funds” columns on complicated charts.
The House Appropriations Committee and the Senate Ways and Means Committee meet separately to put together their versions of what will at some point become a single bill that both chambers will have to approve.
That work is being done this week, before the Legislature reconvenes April 29, with the hope that each chamber will have its money committee’s version of how to make the books balance for the upcoming fiscal year—2010, which starts July 1 and ends June 30, 2010.
This behind-the-scenes work involves scouting how either to cut $328 million from the budget which was already pared down sharply in the “mega” appropriations bill which the governor signed into law–minus some line-item vetoes—last week or to find new revenues.
And, the House and Senate, almost institutionally, have different outlooks on how to make budgets work.
That predilection changes over time, depending on the membership of each chamber.
So far this year, we’ve seen from the new House leadership and membership less angst over cutting funding for elementary and secondary school funding than funds for Regent institutions.
In the Senate, from all appearances so far, there’s less fear about cutting funding for state colleges and universities. Nobody likes to do it but the kids are nearly grown-up by the time they’re going to a college or community college and while not everyone lives in a college town, well, everyone lives in a school district.
Why dwell on education spending? Because it represents the biggest pot of money in the state budget. If you’re going to save money, you cut where the money is.
That other option? Raising revenue through taxes? Chances look very slim. There’s an easy pick-off worth a total of $75 million in payments made to counties, and that’s almost in the bag. But new taxes or suspending tax cuts lawmakers gave away in previous years? Very, very tricky. The people—and mostly businesses—with tax cuts are extremely protective of them.
This ought to be an exciting wind-up session of the Legislature.
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August 6th, 2009UncategorizedU.S. v. Paul, No. 08-30125 (4-2-09). The defendant had embezzled some federal funds: it was her first offense, she returned the funds, she apologized profusely before charges were filed, and she explained that she had taken the funds because she felt, wrongly, that it was compensation for work she had done for the school district. The court nonetheless gave her a 16 month sentence! The judge, the Hon. Sam E. Haddon, D. Mont., explained that it was for abuse of trust. The 9th found that the sentence was unreasonable, and had vacated and remanded, explaining that the court had to more closely look at the mitigating factors. The court, upon resentencing, still focused on the abuse of trust, and gave a 15 month sentence. The 9th (per curiam with Reinhardt and M. Smith) found the sentence again to be unreasonable. The 9th put down the marker that the reasonableness of a sentence is an inquiry, and that the appellate courts can say, in specific cases, that the sentence is too much. Moreover, the court did not appear to give sufficient, if any, weight to the recognized mitigation specifically found by the 9th. The case is also reassigned to a different judge because of the appearance for justice. In a dissent, Hall argues that the recent cases of Gall and Rita focus on the individualization of a sentence, and that is what took place here. The dissent would uphold the sentence as reasonable for the reasons stated, even if the 9th disagreed. The dissent seems to adopt the approach, championed by Scalia and Thomas, that focuses on procedure and not substance in appellate review. The response would be that a sentence still has to be rational and reasonable, and indicate a weighing of 3553 factors.
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August 5th, 2009UncategorizedToday, a panel of the Sixth ruled in U.S. v. Baker, that reckless endangerment under Tennessee law does not qualify as a crime of violence for career offender and ACCA purposes. The Sixth found that since reckless endangerment by its definition penalizes reckless, rather than intentional, conduct it does not qualify as a crime of violence after Begay.
However, there is one troubling aspect about this opinion. The panel remands the case and allows that the district court, "may consider any of the additional factual evidence on remand, provided, of course, that it is limited to the 'charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.'" This seems to confuse the analysis of Shepard. Under Shepard, the prosecution does not get to present this additional evidence unless there is a possibility that the statutory definition of the crime penalizes both crimes of violence and non-crimes of violence. Think generic v. non-generic burglary. So if Begay requires that the predicate offense criminalize intentional conduct for it to qualify as a c.o.v., and reckless endangerment only criminalizes reckless conduct, why is there a need for additional fact finding? It would seem that the statutory definition would make any further factual finding pointless, in that the statutory definition does not criminalize any crime that could ever qualify as intentional conduct.
While this is just one troubling aspect of an otherwise good opinion, it makes me wonder if the Sixth can envision any way that reckless endangerment could qualify as a c.o.v. -
August 4th, 2009Uncategorized
Prisons are full of men and women who say they are innocent, and a new effort is underway in Philadelphia to help exonerate some who actually are.
The first DNA-based exoneration took place in 1989 and one of the aims of the newly-formed Pennsylvania Innocence Project is to bring more of that to bear in local cases.
Project co-founder, lawyer David Rudovsky says various similar efforts have freed more than 230 wrongly convicted people nationwide. That's revealed a pattern:
"In 75 to 80% of all cases, in which innocent persons have been exonerated, they were convicted at least in part by eyewitness testimony and that can lead us to come up with better methods of obtaining and presenting eyewitness testimony."
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August 3rd, 2009UncategorizedToday's opinion in United States v. Kontrol, illustrates how the current federal supervised release system fails to truly achieve the purpose for which it was created. Instead of protecting the public from the dangerous actions of Mr. Kontrol, the district court violated a man's supervised release for not telling his probation officer of new employment, then sentences him to a 15 month term of imprisonment. Granted there were some rather inappropriate remarks regarding his probation officer made by Mr. Kontrol, but at its heart, the district court sentenced the guy, not for not having a job, but for not telling the probation officer about it soon enough. Is this justice?
I recognize that the supervisee has a very tough row to hoe when he is on appeal of a revocation, but the Sixth Circuit's reasoning behind affirming the revocation and sentence is spurious. Namely that, "failing to report new part time employment, to be sure, often will pose little danger to the public. But when a three time felon neglects to tell his probation officer about a job that involves obtaining social security numbers (and other sensitive information) from individuals for what the prosecution described as a 'predatory foreclosure company,' JA 176, the risk of harm to the public is more acute." This is complete bunk. If Mr. Kontrol had been convicted of identity theft, maybe the Sixth Circuit's concern regarding persons sensitive information may be at issue. But the decision does not point to any specific supervised release condition that limited Mr. Kontrol's working with sensitive information. Such a condition does exist, is often imposed by district courts, and obviously was not imposed in his case. Mr. Kontrol had been convicted of the crime of "interstate and foreign travel in aid of drug-related racketeering," not identity theft. The Sixth Circuit's concern that every person ever convicted of a felony working at a job where person's sensitive information is at issue seems to be them considering an inappropriate factor and making blanket characterizations about all former felons, regardless of their crime of conviction.
But what this and all supervised release cases call into question is whether the over-arching supervised release system we have crafted in this country is achieving its goals. We ask a person to serve 85% (at best) of rather lengthy sentences as service of their debt to society, then when they get out, probation officers are there looking over their shoulders waiting to find violations to send them right back to prison. Do probation officers often try to help his supervisees transition back into life after prison, or are they just looking for a reason to send their supervisees back to prison so that they can get them off their case load? My gut feeling is more of the latter as opposed to the former. Maybe with some of the recent (although yet to be seen on the street) changes outlined in the Second Chance Act we will see actual reform to how federal courts treat persons recently released from prison on supervised release, but right now, I wonder if the current system is achieving the purpose for which it was created, i.e. protecting the public from other crimes of ex-cons? Or is it just a way of imposing a second sentence using the preponderance of the evidence standard on guys recently released from custody who the probation officers just don't like? -
August 2nd, 2009UncategorizedIn United States v. Kennedy, 2009 WL 250105 (Feb. 4, 2009), defendant worked for a non-profit corporation that received government benefit payments, held them in trust, and made disbursements for expenses for elderly persons unable to manage their own financial affairs. Kennedy was convicted of writing checks, mostly payable to cash, from the accounts of 34 beneficiaries. The non-profit and its insurer fully replenished the accounts from which money was taken. At sentencing, the court applied a two-point enhancement for ten or more victims (§ 2B1.1(b)(2)(a)) and a two-point enhancement for vulnerable victims (§ 3A1.1(b)(1)). On appeal, Kennedy challenged the enhancements.
The Third Circuit agreed that the § 2B1.1(b)(2)(a) enhancement, based on the number of victims, did not apply. The Court held that the account holders from whose accounts the defendant stole funds were not “victims” within the meaning of that enhancement where the account holders were completely reimbursed by defendant's employer and the employer's insurer before they even knew funds were missing from their accounts. Thus, they suffered no pecuniary harm, a prerequisite for being a “victim” under § 2B1.1.
The Court did uphold the vulnerable victim enhancement under § 3A1.1(b)(1), based on the same thirty-four account holders. Distinguishing “offense conduct”based chapter two enhancements from “relevant conduct” based chapter three enhancements, the Court reasoned that it was the account holders’ incapacity to manage their own financial affairs which was the reason for defendant’s management and access to their accounts– establishing the required nexus between the victim’s vulnerability and the crime’s ultimate success.
