The Rule of Lenity: When A Reasonable Mind Can Differ From What the Same Reasonable Mind Previously Believed Was the Scope of a Criminal Statute
by: Don Samuel
What better justification could there be for the application of the Rule of Lenity than the circumstances in United States v. Caniff. In February of 2019, three Judges on the Eleventh Circuit had to decide whether 18 U.S.C. § 2251(d)(1)(A), which makes it a crime for any person to “make a notice to receive [child pornography]” applies to a person who, in a private person-to-person text message, asks a young girl to send him nude pictures of herself. Does that request, in a private text, qualify as “making a notice” to receive child pornography? In that February decision, 916 F.3d 929 (11th Cir. 2019), two out of three judges, reviewing various dictionary definitions of “notice” and “make,” decided that the defendant’s conduct did constitute “making a notice.” One judge dissented. Yesterday, the same three Judges thought about the same question some more and, once again citing various dictionary definitions of “notice” and “make,” all three Judges decided that the defendant’s conduct did not qualify as “making a notice.” United States v. Caniff, --- F.3d --- (11th Cir. April 8, 2020).
This is the paradigm for the application of the Rule of Lenity: a distinguished Judge votes one way on the first day, and the other way on the second day. And not just one Judge changed his mind, but two distinguished Judges changed their minds about the interpretation of the statute. Obviously, reasonable judges could differ about the interpretation of the statute: these two judges both disagreed with their own interpretation from a year earlier.
"The Jury Unanimously Found You NOT GUILTY on Count 3; Nevertheless, You Will Serve Three Additional Years for the Crime You Committed as Alleged In That Count."
by: GUEST BLOGGER: BRUCE HARVEY
It is understandable that most people's knowledge of the criminal justice system begins and ends with "innocent until proven guilty". The dirty secret of the criminal justice system however, is that some can be sentenced for conduct that a jury said you were "not guilty" of committing! How is that possible, you ask? Back in 1997, the US Supreme Court decided a case that allowed Judges to sentence multi-count defendants for conduct underlying acquitted conduct. It is a decision that prompts an immediate gut-reaction: that can't be the case! Yet, it is a practice that has continued unabated since the Supreme Court blessed it in United States v. Watts, 519 US 148 (1997) over 20 years ago.
Numerous commentators, scholars and every criminal defense attorney who practices federal criminal defense have written and argued how this practice violates the spirit and intent of the Fifth and Sixth Amendments. Watts established that a sentencing Judge may consider acquitted conduct otherwise proven-as determined by the Judge, not a jury-under a preponderance standard to determine a defendant's sentence. Indeed, the Court said that a "not guilty" verdict is not a rejection of any facts or a finding that a defendant is actually innocent, but only "proves the existence of a reasonable doubt." Therefore, an acquittal provides no barriers to the Government "relitigating an issue" under a lower standard of proof at sentencing.
What then, you say, is the point of the jury? Using acquitted conduct obviously undermines and devalues the role of the jury, and makes a mockery of the function of the jury whose job is, after all, to decide the very issue of guilt or innocence. Likewise, this practice gives prosecutors a second bite at the apple of punishment under circumstances that disfavor the Defendant. It also empowers prosecutors to overcharge with the intent of getting one conviction and getting an enhanced sentence anyhow. It is a pernicious and despicable practice.
Is there any hope? Yes. A trilogy of Supreme Court cases have reinvigorated and reestablished the role of the jury in criminal cases. In a series of cases, most recently culminating in Alleyne v. United States, the Supreme Court has reinforced, and extended the line in the sand that separates the power and reach from the bench from the province of the jury. Taken together, I believe that these cases firmly establish that a judge's sentencing power begins and ends with the jury. Watts was a monumental breach of the Sixth Amendment, and its corrosive effect on a defendant's jury right continues today. Now is the time for a direct Sixth Amendment assault on using acquitted or unproven conduct at sentencing and bringing back the historical and powerful role of the jury.
by: Don Samuel
Perhaps it comes as no surprise that the United States Supreme Court decided today that the police officer in Kansas v. Glover (discussed in a previous blog post) had a reasonable suspicion that justified his basis for stopping the vehicle that he knew was registered to a man whose license had been revoked. The officer knew no other facts. And the officer did not reveal anything about his training or experience in support of his reasonable suspicion.
Justice Thomas wrote that “common sense” provides the basis for the stop. It is “common sense” that a registered owner, even with a revoked license, is the driver of the vehicle. And common sense is alone sufficient to create a reasonable suspicion. Common sense, in this case, is more than a “hunch,” albeit less than probable cause or proof beyond a reasonable doubt.
Eight Justices decided that the stop of the vehicle was justified. Only Justice Sotomayor dissented. She decried the reliance on “common sense” that included no individual facts about the defendant in this case. The officer knew nothing about the driver. Nothing was known about the reason that his license was revoked (which might reveal the likelihood that he would continue to drive despite the revocation).
An interesting disagreement between Justice Sotomayor and Justice Thomas focused on whether the officer had a duty to investigate further (such as by looking in the window of the vehicle to determine if the physical characteristics of the driver matched the registered owner). Justice Sotomayor suggested that some individualized suspicion, such as that kind of observation, was necessary. Justice Thomas, on the other hand, held that an observation like that might dispel the reasonable suspicion (if the registered owner was a 50-year old man, but the officer could see the driver was a young woman), but that the burden was not on the police to engage in further investigation. The record in this case – which included no information about any observation by the officer – only established this fact: the owner of this vehicle had a revoked license. Nothing more, nothing less. And it was not, according to Justice Thomas, the duty of the officer to determine if there were more or fewer facts that supported the conclusion that the registered owner was driving.
This is not the most important Fourth Amendment case to be decided in recent time. But it reveals clearly that sometimes it is just “you know it when you see it” that is the answer to many Fourth Amendment questions. I am left wondering, however, why it is in these cases that some Justices "know it," but the others do not, when they see the same thing.
by: Ed Garland
Amanda Clark Palmer
What will rise from the ashes of this pandemic: A phoenix or a vulture?
Will there be fewer civil rights? More impediments to voting? Enhanced encroachments on the right to privacy? Less tolerance of minority points of view? More misery for people and children at the borders?
Will there be more partisan bickering and shouting, or more listening and compromising?
When the people who are dying from the virus are people that we know – our neighbors and friends and members of our family; and even people that we don’t particularly like – will we learn to temper our tempers? Will we realize that our animosity was ill-conceived? That we should have listened, rather than shouted? That community is more important than tribalism?
Oddly, it seems to us today that the community has been remarkably more generous to less fortunate people who are on the front lines of misery when jobs are lost, medical care is rationed, and there is no money for rent or food. It is the government that more often seems to be exploiting the virus: consolidating power in one party, limiting civil rights in the name of restoring order, attacking the opposition as perpetrating a hoax, or somehow causing the misery that is all around us; putting the Constitution on hold, as if it has no place in our country during an emergency. Even the threats that are not directly voiced by the government, like threats directed at Dr. Fauci: Are these threats not the inevitable consequence of our elected leaders calling science a hoax, the implicit denunciation of the scientists?
During the pandemic, laws are being passed that prohibit all abortions. Republican legislators are denouncing the idea of allowing voters to cast their ballots by mail (claiming that this would foster fraud, while admitting privately that permitting voting by mail would endanger conservative candidates’ chances of winning). And the border? Don’t get us started. No doubt soon we will be hearing about the necessity of a border wall in light of the national emergency and the need to further demonize people seeking refuge in this country.
Today we must rely on scientists, doctors, health care providers, to extricate us from this mess. But when their job is accomplished and their sacrifices have been made, it will be the responsibility of lawyers – prosecutors in local, state and the federal prosecutors’ offices; defense lawyers both public and private; civil rights lawyers; public interest lawyers; State AG office lawyers – it will be our duty to ensure that the equilibrium envisioned in the Constitution is restored.
French President Macron explained, “The day after will not be going back to the day before.” Perhaps it will be a phoenix, not a vulture that rises from the pandemic ashes.
by: Don Samuel
Nobody knows for sure what the significance of the Fourth Circuit decision in In re Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019), will be in the long run. Perhaps an anomaly? Maybe limited to its peculiar facts? Possibly a precedent for major changes in the way that the government is permitted to reap the benefits of a search warrant that ensnares privileged material.
In this Fourth Circuit case, the government executed a search warrant at a law firm in order to seize evidence of a client’s and one of the firm's lawyer’s crimes. There was nothing pianissimo about this seizure. The seizing agents were permitted to seize an enormous amount of material, including all of the target lawyer’s emails. Acknowledging that there would be voluminous privileged material in the seized evidence – correspondence between lawyers and clients (clients other than the target client; lawyers other than the target lawyer) that was privileged and not subject to the crime fraud exception – the government went to the Magistrate ex parte and arranged a procedure by which all the material would be sent initially to a “filter team” (sometimes referred to as a “taint team”) comprised of lawyers from the DOJ, as well as law enforcement agents, all of whom were unaffiliated with the prosecutors and agents who were investigating the lawyer and the client. The taint team would sequester all the privileged information and then provide the unprivileged material to the case agents and the line prosecutors. The procedure was later modified and the filter team would first send the unprivileged material to the law firm to determine if it objected to any disclosures to the prosecutors.
The law firm objected: First, the law firm complained that nobody from DOJ or DEA or IRS, even people unaffiliated with the prosecution team, should be permitted to review privileged information; second, this procedure should not have been approved in an ex parte proceeding. Third, the task of reviewing material that is subject to the attorney-client privilege and the work product privilege is a project that the judicial branch must undertake and this may not be delegated to the executive (prosecutorial) branch of government.
The Fourth Circuit agreed with all three arguments.
Is this decision limited to cases in which a law firm was the target of the search and therefore involved a huge amount of privileged information? Or will this decision apply in every case in which a search warrant yields evidence from computers that are likely to contain at least some privileged material, such as most, if not virtually all, seizures of business computers?
The use of taint/filter teams in white collar search warrant seizure cases is widespread. Rarely is a business, or a doctor’s office searched that a team of prosecutors unaffiliated with the prosecution team is not appointed. Invariably, businesses have records of consultations with lawyers, such as advice about regulatory matters, or the legality of certain proposed ventures.
Are there enough Magistrates, or enough hours in the day, for federal Magistrates to review the documentary evidence seized pursuant to a search warrant that may include privileged material? Or will the government permit the defense to review the material first, as was the case when Michael Cohen’s files were seized in connection with the investigation of the Trump campaign contribution violations? Or will a “special master” be appointed to review the material before it is provided to the prosecution team?
So far, no appellate court has decided the extent to which In re Search Warrant Issued June 13, 2019 will be limited, or whether it is now the law of the land in all cases.
Quick note: In Georgia, a statute governs the procedures that must be used when a search warrant is directed at a lawyer or a lawyer’s office, if the attorney is not the target of the investigation. OCGA § 17-5-32.
by: Robin Loeb
The coronavirus pandemic has spawned a new rash of anti-abortion measures in states led by Republican governors. Indiana, Iowa, Mississippi, Ohio, Oklahoma and Texas have all imposed restrictions on abortion during the pandemic, arguing that the suspension of access to abortions preserves critically needed medical supplies. Those bans were challenged and federal district court judges in nearly all of those states granted injunctive relief against the orders, temporarily halting the bans. Judge Lee Yeakel, a district court judge in Austin, Texas (and a George W. Bush appointee) wrote that the United States Supreme Court spoke clearly when it ruled that there can be no outright ban on a woman’s right to a pre-fetal-viability abortion. Nevertheless, the Fifth Circuit Court of Appeals temporarily stayed the district court in a 2-1 decision, thus reviving the ban. The Fifth Circuit ruled that any abortion "not medically necessary to preserve the life or health" of the patient was banned as part of the state's edict suspending "non-essential" medical procedures amid the coronavirus pandemic. While a US Supreme Court decision on various recent restrictive abortion legislation is expected this summer, an emergency appeal involving the Texas ban could accelerate the timing of an abortion-related decision. More executive orders and more challenges are sure to follow. Meanwhile, Democratic governors, like Michigan’s Gretchen Whitmer and Pennsylvania’s Tom Wolf, did not include abortion in their state orders banning nonessential procedures, exposing them to criticism from anti-abortion groups.
Lost in most of the political analysis of this issue is the fact that very few medical resources are consumed by the standard abortion procedure. They are typically performed at clinics, not hospitals; complications requiring emergency room visits are rare; and, the equipment used is most often two pairs of gloves and a reusable face mask. Managing a pregnancy, even without complications, requires repeat visits, exams and tests at medical facilities, requiring gloves, gowns and masks.
Of course, there are always unintended consequences as a result of endeavors to manipulate the legal system. Certainly pregnancies resulting in babies with severe fetal abnormalities will ultimately tax an already exhausted medical system whose constituents do not enjoy universal healthcare and whose poorest participants are the least likely to be insured in a fashion that would provide the best care for the new mother and compromised infant. And in a put-your-money-where-your-mouth-is development, pro-choice groups are calling on states to waive some abortion restrictions pertaining to the provision of the abortion pill, asking that the pill be made available to women at their homes. This means women could take the abortion pill without traveling to clinics, thereby reducing the chance that either the patient or the healthcare worker would be exposed to the coronavirus, and also preserving the medical equipment supply that the abortion ban proponents use as the basis for their embargo.
by Don Samuel
Kansas v. Glover poses such a simple question: Can a police officer stop a car driving down the road if the officer knows that the car is owned by a driver whose license has been suspended, but the officer does not know who is actually driving the car? Stated in somewhat more legal terms: Does a police officer have a recognizable articulable suspicion to stop a car with an unknown driver, if the registered owner of the car does not have a valid driver’s license? We spend most of our time evaluating questions of probable cause and articulable suspicion by weighing the totality of the circumstances. Various pluses and minuses are tabulated to determine whether the totality equals probable cause or an articulable suspicion. Not in this case. There is no “totality” to evaluate. There is just one fact: The car is registered to a driver whose license has been suspended.
Yet, as simple as the question seems to be, there are problems with the method of reaching an answer that the Court must address:
We await the decision in Kansas v. Glover.
by: Don Samuel
Lawyers all know what the term “standing” means: It is not, when spoken in a courtroom, just a reference to what we all do when the judge (or jury) walks into the courtroom. It also describes in a formal way, the parties’ relationship to the controversy. If my neighbor to the south drives his car into the living room of the house belonging to my neighbor to the north, I can’t file a lawsuit, because I was not injured. I have no “standing” to complain. If the Georgia Legislature passes a law that provides that only people with blonde hair can receive Medicaid benefits, somebody with brown hair who lives in Alabama cannot file a lawsuit, because a person from Alabama, regardless of hair color, has no beef with the Georgia legislature. That person has no standing to complain.
In criminal cases, the issue of “standing” is not often disputed. In every case, the defendant who is charged with a crime has standing to defend against the charges. That is clear. And in all cases, the prosecutor (state or federal) has standing to bring the charges, assuming there is an allegation that a state or federal law was violated. Both parties, therefore, have standing to participate in the case.
But for the past century, an entirely different kind of “standing” has been the subject of dispute in criminal cases: specifically, prosecutors often claim that a defendant does not have “standing” to complain about a particular search that resulted in the discovery of evidence that is being used in the defendant’s prosecution. There is no doubt that the defendant has standing to defend against the charges. But if I am the defendant, do I have standing to complain about a search of my wife’s pocketbook, from which the police seized a ledger that documented all of my cocaine sales? The police did not search my pocketbook. In fact, I wasn’t even with my wife when her pocketbook was searched. The prosecutor will argue that because my belongings were not searched, I have no “standing” to raise a Fourth Amendment challenge to the use of the ledger at my trial.
The prosecutor is right. But that formulation of “standing” can be confusing, because it is entirely different than the concept of “standing” to participate as a party in the litigation.
Why is the case of United States v. Ross getting attention now? Because the Eleventh Circuit previously held that "standing" for Fourth Amendment purposes is also "jurisdictional" -- and (the earlier decision held), if the defendant does not have Fourth Amendment standing, then the prosecutor can challenge that at any time. The right to challenge a defendant's claim if the defendant lacks that kind of standing can be raised at any time. But if the government wants to challenge a defendant's standing to raise a Fourth Amendment claim, that challenge must be made in a timely manner and not for the first time on appeal. Because the Eleventh Circuit has that previous confused opinion, the Eleventh Circuit decided on March 23, 2020, that every judge in the Circuit is going to address this confusion in a case that the court agreed to hear en banc: United States v. Ross, No. 18-11679. When this case is decided, hopefully, we will all know where we stand on this issue.
by : Robin Loeb
As businesses across the country have been forced to close their doors because of the COVID-19 pandemic, the question of whether business interruption or civil authority insurance coverage is available to protect business owners against economic losses will become a fiercely litigated issue. The typical “business interruption” policy insures against loss resulting directly from interruption caused by physical loss or damage by a peril. Historically, those perils have included events like fires, hurricanes and other forces that cause obvious physical damage to property. There is, however, precedent finding that airborne contaminants, like ammonia contamination or the presence of E. coli bacteria, qualify as perils causing direct physical loss. Since COVID-19 is understood not only to be airborne, but to remain on surfaces for a period of time, a reasonable argument can be made that it constitutes property damage.
Separately, “civil authority” coverage applies when a civil authority orders that an insured property be closed. Governors and mayors across the country have restricted public gatherings, issued stay-at-home orders, and ordered restaurants to be closed, or limited to pick up and delivery options, triggering the argument that civil authority coverage applies. This kind of coverage was hotly contested in the courts when businesses suffered after the 9/11 attacks in New York City and at the Pentagon.
In what appears to be the first lawsuit pertaining to insurance coverage and the coronavirus, the Oceana Grill in New Orleans filed suit against Lloyd’s of London seeking a declaratory judgment that the insurance carrier must pay for its losses arising from the coronavirus pandemic. Cajun Conti, LLC, et al. v. Certain Underwriters at Lloyd’s of London, et al. (La. Dist. Court, Orleans Parish). A similar suit has also been filed against Hartford Fire Insurance Co. by the high-profile restauranteur Thomas Keller, owner of California’s French Laundry and Bouchon Bistro, in Napa County Superior Court. The decisions in these cases, which raise business interruption and civil authority coverage, will be important to watch as businesses across the country continue to struggle as a result of the virus itself and the government mandates issued as a result.
by Don Samuel
Law and history occasionally have a fickle relationship. Sometimes at war with each other, sometimes inseparable colleagues.
An important feature of law is precedent: the historical record of what a court has decided with regard to a similar or identical controversy. Courts abide by precedent not only because a lower court is bound to follow the principles, rules, and commands of prior court decisions, but also because it enables the public to know in advance, what is right and what is wrong. History informs our contemporary decisions.
Rarely, however, does an historical event other than a prior court opinion become the subject of a case.
Enter: Pitch v. USA, 17-15016 (11th Cir. 2020) (en banc), decided on March 27, 2020. The last and one of the most horrific mass lynchings in the United States occurred not far from Atlanta, at Ford’s Moore Landing near Walton and Oconee Counties nearly 75 years ago. Two African American couples were dragged from their cars and lynched. A grand jury in Athens heard testimony for several weeks. What did the witnesses at the grand jury reveal? Nobody was ever indicted.
Historians today are interested in the proceedings of that grand jury. One historian, the original Petitioner in this case (he died during the course of this litigation), asked the district court in Macon to release the grand jury transcripts. But Rule 6(e) of the Federal Rules of Criminal Procedure provides that all grand jury proceedings are secret and the transcripts are only to be released in certain specifically identified circumstances. Nevertheless, courts have occasionally held that historically significant events trump the grand jury secrecy rule.
The 104-page opinion in Pitch ultimately decides that the “historically significant” exception to Rule 6(e) has no legitimate historical basis and holds that the Ford’s Moore Lynching grand jury transcripts will forever remain a secret. Along the way, the Pitch court overruled its own precedent in another case (involving Congressman Alcee Hastings), ironically deciding that Rule 6(e)’s “historically significant” exception that was previously recognized in the Eleventh Circuit was an historical anomaly that needed to be revisited and abandoned. Erase that history from the books.
Wouldn’t we all like to know about the testimony that exists in the secret grand jury testimony that exists in the Mueller investigation of Russian interference in the 2016 election? What about the grand jury testimony in the Rosenberg espionage investigation in the 1950’s? Or Watergate? Or even Aaron Burr and John Wilkes Booth?