by:  Don Samuel

This morning, the Supreme Court unanimously – not even a concurring opinion – reversed the Bridgegate convictions.   You will remember that in this case, the defendants shut down several lanes of traffic coming to the George Washington Bridge causing a massive traffic jam in Fort Lee, NJ, as “payback” for the mayor’s refusal to support Governor Christie.  
​
As discussed in our earlier blog post, the problem was simple: bad behavior, even corrupt behavior, on the part of public officials is not a federal crime and it is not mail or wire fraud unless the officials take property or money.  The Bridgegate defendants did not “take” the lanes of traffic.  They did not take money.  Rather, as Justice Kagan wrote, the conduct of the defendants resulted in “Drivers from Fort Lee [getting] two fewer lanes while drivers from nearby highways [got] two more. The [defendants] did so, according to all the Government’s evidence, for bad reasons; and they did so by resorting to lies. But still, what they did was alter a regulatory decision about the toll plaza’s use—in effect, about which drivers had a “license” to use which lanes. And under Cleveland, that run-of-the-mine exercise of regulatory power cannot count as the taking of property.”

by:  GUEST BLOGGER Matt Dodge 

For the second time in our nation’s history, a public servant named Van Buren is headed to Washington, D.C.   Martin Van Buren occupied the White House more than 150 years ago as the eighth President of the United States. And now Nathan Van Buren, a police sergeant from Cumming, Georgia, will be at the United States Supreme Court next term.
 
On Monday, the Court granted Van Buren’s writ of certiorari, a writ signed by Rebecca Shepard of the Federal Defender Program, Saraliene Durrett of our CJA panel, and Jeffrey L. Fisher, Pamela S. Kaplan, and Brian H. Fletcher of the Stanford Law School Supreme Court Litigation Clinic.
 
The certiorari petition in Van Buren v. United States presents the following question: “Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.”
 
Put another way: If, with your work computer, you use the internet to do something beyond the express mission of the job, have you committed a federal crime?
 
Van Buren, as a police sergeant, knew a local ne’er-do-well named Albo, who often invited prostitutes to his home, only to call the police and claim the women stole his money. Albo became an FBI informant and worked to set up Van Buren, who was supposedly low on money, by paying him to use his work computer as a personal favor to Albo.
 
As a law enforcement officer, Van Buren was permitted to access driver’s license and license plate information on the Georgia Crime Information Center’s computer database. Albo (and FBI agents) knew that. He asked Van Buren to run the tag of a (fictitious) local exotic dancer who caught his eye. Although Albo tried to pay Van Buren in cash, Van Buren demurred. But he did run the woman’s tag number in the GCIC database and offered to share what he learned with Albo. That was his downfall here. Or was it?
 
Under the CFAA, “[w]hoever intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information” from a “protected computer” commits a federal crime. 18 U.S.C. § 1030(a)(2). A “protected computer” is one “used in or affecting interstate or foreign commerce or communication”—in other words, any “computer[] with Internet access.” The phrase “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6).
 
The federal government indicted Van Buren for violating the CFAA. Although Van Buren’s job permitted (even required) him access to the GCIC database “for law-enforcement purposes,” the government indicted him for using the database for “non-business reasons.” At trial in front of Judge Orinda D. Evans, Van Buren’s FDP lawyers argued that Van Buren was not guilty of violating the statute because, as a law enforcement officer, he was authorized to access the GCIC database. Under the law, they said, it did not matter why he accessed the database. The district court and the Eleventh Circuit demurred. The appeals court affirmed the conviction because it was enough that Van Buren ran the tag for “inappropriate reasons.”
 
There is a 4-3 circuit split on this question. The Eleventh Circuit says a person violates § 1030(a)(2) if he uses a computer to access information that he is otherwise authorized to access but does so for an improper purpose or “non-business reason.” The Eleventh Circuit is not alone—the First, Fifth, and Seventh Circuits agree that a person violates the law when he uses a work computer for a purpose his employer prohibits. (Um, Van Buren asks in his petition, what about our ubiquitous NCAA March Madness brackets?) 
 
On the other end of the circuit split, the Second, Fourth, and Ninth Circuits each say that a person violates the CFA only if he accesses information on a computer that he is prohibited from accessing at all, no matter his reason.
 
In the end, Van Buren tells us why the majority’s rule is so dangerous not only to himself, but to all of us: “Reading the statute more broadly would criminalize ordinary computer use throughout the country.” What about corporate or university policies on computer use for employees and students? Under our home circuit’s view of the statute, “[a]ny trivial breach of such condition[s]—from checking sports scores at work to inflating one’s height on a dating website—is a federal crime.” Or maybe it’s not. The Court will hear argument early next term.

by:  Don Samuel

This morning, the Supreme Court announced its decision in Ramos v. Louisiana. The Court held that the Fourteenth Amendment does not tolerate non-unanimous jury verdicts in serious criminal cases.  Only Louisiana and Oregon permitted non-unanimous verdicts, so the decision does not have much relevance in Georgia.  
 
If you are interested in the principles that govern the Court’s assessment of whether to abide by stare decisis, this is a most interesting decision.  Justice Kavanaugh devotes 18 pages in a concurring opinion explaining why Apodaca v. Oregon should be overruled.  Included in his concurring opinion is a list of some of the monumental decisions of the Court that overruled precedents, including Brown v. Board of Education, Obergfell v. Hodges, Lawrence v. Texas, Batson v. Kentucky, Katz v. United States, Gideon v. Wainwright, Mapp v. Ohio among numerous others.  And Justice Alito’s 26-page dissent is also devoted entirely to explaining the importance of stare decisis. Justice Alito’s dissent was joined by Chief Justice Roberts and Justice Kagan (an odd alignment).
​
Also today, the Supreme Court granted cert in a NDGa case (Federal Defenders; Judge Evans) addressing the following question:  “Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.”  United States v. Van Buren.

by Don Samuel

The only people who say “Ignorance of the Law is No Excuse” are people who are, well, ignorant of the law.  Ignorance of the law is a curse that afflicts citizens, lawyers, judges and law enforcement officers.  There are over 5,000 federal criminal laws on the books and the majority are not in Title 18 of the federal criminal code, but are scattered throughout the federal code, including Titles 21 (drugs); 26 (tax); and 42 (various health and safety laws), among others. There are thousands of additional federal regulations that are incorporated into criminal statutes.  No wonder ignorance of the law abounds. There are more laws we, as lawyers, are ignorant of than there are those with which we are familiar.  How is the public expected to know all these laws?

Understanding how and when ignorance of the law is an excuse, defies simple rules. The Model Penal Code provides minimal (and unintelligible) assistance; Supreme Court precedent points in all directions; the rules of statutory construction are painfully vague and inconsistent; and even common sense is unavailing. 

Using the literary device in medias res, let’s begin in the middle and consider the recent decision in United States v. Rehaif. A foreign student entered the country on a student visa, but he lost the right to remain in the country when he flunked out of school and lost his student visa status and thereafter remained in the country illegally.  Meanwhile, he possessed a gun.  According to law, a person who is not legally in the country is not permitted to possess a firearm.  An illegal alien is a prohibited person, just like a convicted felon.  

But does the “prohibited person” need to know that he is a prohibited person in order to be guilty of possession of a firearm by a prohibited person?  Is the government required to prove beyond a reasonable doubt not only that the person is a prohibited person, but also that the person knows he is a prohibited person?  In the case of Mr. Rehaif, was the government required to prove that as soon as he flunked out of school, he knew he was an illegal alien?

Had you asked the question in early June of 2019, the answer would have been “no” in virtually every corner of the country and in every state in between: the person’s status must be proven beyond a reasonable doubt, but not the person’s knowledge of his status.

But today, the answer is “yes.”  Rehaif v. United States, 139 S. Ct. 2191 (2019).

So why is this such an important case for not only illegal alien gun possessors (and all prohibited person gun possessors), but also the entire White Collar Criminal Practice? The short answer is this: White Collar Crimes, just like 18 U.S.C. § 924, require that the government prove a defendant’s knowledge of the existence of certain elements of the offense that is charged. It is often unclear how many elements of the offense the government must show that the defendant knew about.  Is the government required to prove that the defendant knew of the existence of all the required elements of the offense?  Does it matter if the element of the offense in contention (the element that must be known) is: (1) a fact (I gave money to a candidate for federal office); or (2) a legal status (I am a “foreign national”); or (3) what is often referred to as a “jurisdictional element” (interstate commerce, for example); or (4) a constituent element of the offense that is itself a separate law or regulation (foreign nationals may not contribute to candidates running for federal elective office), other than the actual law making it a crime to engage in conduct with the mental state in the criminal statute.  See United States v. Singh, 924 F.3d 1030 (9th Cir. 2019), cert granted and case remanded for reconsideration in light of Rehaif.

Rehaif was charged with violating 18 U.S.C. § 924(a)(2), because he possessed a firearm despite the fact that he was a prohibited person. His prohibited person status was based on § 922(g), which states that aliens illegally in the country may not possess a firearm.  § 924(a)(2) specifically states that any person who “knowingly violates” § 922(g) can be imprisoned for up to ten years.  In reaching the decision to require proof that the defendant knew his status, Justice Breyer, writing for a seven Justice majority, emphasized that the defendant’s status was an element that separated lawful from unlawful conduct. If the defendant were not an illegal alien, he could possess a firearm, but the fact that he was an illegal alien is precisely what made his conduct illegal and for that reason, his mens rea—his mental state—must include knowledge of this element.  See also United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464 (1994).

Thus, Rehaif shows that the mens rea or scienter component of some crimes requires that the government prove that the defendant knew more than just facts, but also knew certain laws or certain legal consequences (such as one’s legal status). How does a court determine what laws the defendant must be shown to know and which ones not? 

Generally, but not always, the knowledge that the defendant must have does not include knowledge of the criminal law itself that is alleged to have been violated.  Thus, in Rehaif it was not necessary for the government to prove that the defendant knew that it was a crime for an illegal alien to possess a gun.  But it was necessary for the government to prove that he knew he was an illegal alien (and also, of course, the fact that he was possessing a gun).

​There are, however, other crimes that require proof that the defendant was generally aware that the defendant was doing something wrongful (Bryan v. United States, 524 U.S. 184 (1998)). As the Eleventh Circuit Pattern Instruction explains, 

A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule that this conduct may be violating. But he must act with the intent to do something that the law forbids.

In limited situations, most notably in tax-related prosecutions, the Supreme Court has required proof that the defendant knew precisely what was wrong that he did and that he knew it was a crime to do so (Cheek v. United States, 498 U.S. 192 (1991)).  Both Bryan and Cheek involve criminal statutes that include the element of “willfulness” – that is, the statute requires that the defendant “willfully” violate the statute – as opposed to “knowingly violate” the statute.

The “knowing” and “willfully” cases reveal that Congress often haphazardly places this scienter element in a variety of locations in the statute and the term arguably applies to an assortment of different elements. The different places that “knowing” shows up in statutes, and the different facts/laws/principles that must be known are staggering and, no pun intended, hardly appear to be purposeful on the part of Congress. The courts are provided with numerous statutory interpretation tools – many inconsistent with each other – to determine what, exactly, must be known to the accused:

Some statutes have been interpreted only to require that the defendant know an historical fact.

Some statutes that include as an element the occupation or age of another person (a victim or aider and abettor), have been held by the courts not to require proof that the defendant knew the occupation or age of the other person, though there are exceptions.  

But the courts have also held that if the other person’s legal status is an element of the offense (as opposed to the person’s age or occupation) the government must prove the defendant knew the other person’s legal status.  Thus, for example, it is a federal crime to murder an FBI agent or a federal judge, but the government is not required to prove that the defendant was aware of the occupation of the victim.  It is also a federal crime to assist an illegal alien enter the country and it is necessary for the government to prove that the defendant knew the status of the person he was assisting.

Some courts have held that statutes that require that the defendant occupy a particular status requires that the government prove that the defendant know his own status. Rehaif
Some statutes have been interpreted by the courts to require that the defendant know a federal regulation or federal statute that the criminal law declares it is a crime to violate.  
Thus, if a person sells liquor to a person in exchange for food stamps, the government must prove that the seller knew that this violates the Food Stamp Act.

Some statutes are entirely silent about what the defendant must know and the courts must decide whether to invent a scienter requirement, or interpret the statute as strict liability.  

Some statutes make it a crime to knowingly transport a hazardous substance or to export a certain type of munition and the courts have held that the defendant need not be shown to know the exact type of substance or munition that was being transported or exported, but must have known in general what he was transporting or exporting and that the shipment required a license.

How have the courts reached these results, and what does Rehaif portend for future cases?  

​Stay tuned.

by:  Don  Samuel

​The Bridgegate case – Kelly  v. United States – was argued in the Supreme Court in January and is awaiting decision.  The facts of the case, viewed through the prosecutors’ lens, begins with three state employees deciding that it was time to punish the mayor of Fort Lee, NJ for his failure to support Governor Christie in his reelection bid.  The punishment was actually inflicted on the citizens of Fort Lee: Two of the three customary lanes of eastbound traffic that were used by Fort Lee residents to enter the George Washington Bridge during morning rush hour were converted to traffic coming from another location. The resulting traffic jams backing into the City of Fort Lee were monumental.
 
The three state employees claimed that the lanes were closed in order to conduct a traffic pattern study. This was false.  Did they commit mail and wire fraud in violation of 18 U.S.C. §1341  and § 1343?  They did not receive a bribe or a kickback, so their conduct did not amount to honest services fraud, 18 U.S.C. § 1346.  So to amount to federal fraud, the conduct must have been a scheme to deprive the victim of property or money.
 
According to the indictment the defendants lied (the reason for the lane closure) and the victim (the Port Authority) was deprived of property (the proper use of the traffic lanes; and the wages paid to toll booth collectors who were required to work overtime to accommodate the increased traffic).
 
Those are the elements of the offense that must be proven, but the dispute in the Supreme Court focused primarily on whether the Port Authority was deprived of property (either tangible or intangible).
 
The defendants, in the Supreme Court, argued that the Port Authority was not deprived of property and this was nothing more than an illegitimate “honest services fraud” prosecution in disguise. The lanes of traffic were still owned by the Port Authority and the lanes of traffic were still being used by the public, albeit not by the beleaguered   citizens of Fort Lee.  Only the “motive” for the lane closure was a lie and the motive for politicians’ decisions are often a mixed bag (and not honestly revealed): there are always political considerations to every decision (as Mick Mulvaney candidly implored, “Get over it”).     
 
The government responds that the defendants “commandeered” the lanes of traffic and that this is no different than a government employee who directs city employees to paint a private citizen’s house or mow the lawn of the government employee.  That is property fraud: taking the time of the city employees away from their legitimate tasks. Taking the paint and the lawn mower away from the public use to which the paint and lawn mower are supposed to be devoted.
 
“No,” respond the defendants, “it is more akin to telling a snowplow driver first to plow the mayor’s street, then the streets of the city councilmen who belong to the favored political party, and at the end of the  day, the streets of the councilmen who belong to the disfavored political party.  And that command, though distasteful, is not property fraud.”
 
The prosecutor replies:  “If you want to use the snowplow hypothetical, it would be more apropos to consider a defendant who pushes the snowplow driver away from the steering wheel and drives the snowplow to the defendant's street, while the real snowplow driver is incapacitated.”  
 
The oral argument did not do much to clarify this issue.  What if, the Court asked, one lane of traffic was redirected to the front of the mayor’s privately-owned hotel, or restaurant so that more drivers would patronize his private businesses? Is that a deprivation of the port authority property? Is that federal property fraud, assuming there is a false statement offered for the reason (and a mailing)?  Surely it is an abuse of power, but is that federal fraud? 
 
The government, in its brief, concedes that lying about a politician’s motive for any decision is not mail fraud (#GetOverIt).  But commandeering property is fraud.  It is not fraud for the employee to give a false reason for instructing the snowplow driver to start at the mayor’s street.  But it is fraud to redirect lanes of traffic based on a non-existent traffic study.
 
The point may be this: if the defendant had the authority to initiate a traffic study and, in fact, did so, then any false statement he makes about his motive for doing so is not federal fraud.  But if there was, in fact, no traffic study at all (or, perhaps, the defendant had no authority to initiate a traffic study), then it is fraud to direct that the lanes be closed and explain, later, that it was because of a traffic study.
 
The defendants parry this argument, too, arguing that the defendants had the authority to redirect traffic patterns, and whether they did so because of a faux traffic study, or not, is not the difference between guilt and innocence: they had the authority to redirect traffic and the fact that they had no interest in actually studying the traffic is irrelevant.  They directed the Port Authority to redirect traffic and, having done so (and having not deprived the Port Authority of any property), the reason that they redirected traffic is the type of “motive” evidence that the government conceded was not a basis for a federal fraud prosecution.  Perhaps the government is, in fact, resurrecting honest services fraud.  Perhaps this is a bridge too far.

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 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:
 

1. Is the answer to be found in the empirical data that exists dealing with the frequency with which a car is driven by somebody (for example, a family member) other than the owner of the vehicle?  The DMV actually maintains data that would suggest an answer to this question
2. If the answer is based on such data, should the inquiry be more refined and focus on the empirical data that exists dealing with the frequency with which a car is driven by somebody other than the owner of the vehicle in cases in which the owner has had his or her license suspended.  The DVM and AAA also maintain relevant data state-by-state and nationwide.
3. If the data in Kansas shows that for every vehicle registered in the state, there are three drivers, does this make a difference?  
4. If the data is deemed irrelevant (or unreliable, or perhaps unknown to the officer), is the answer to the question found in the police officer’s experience? In other words, if the officer has been patrolling the streets for twenty years, is the articulable suspicion based on the data derived from that officer’s experience (e.g., “6 times out of 10, when I have stopped a car which is owned by a driver whose license has been suspended, that owner is unlawfully driving the car.”)
5. What if the officer has not been patrolling the streets for twenty years, but only for twenty days?  Does that officer’s insufficient experience preclude the officer from stopping the car?  What if he calls a more experienced officer back at the precinct and asks that officer about her experience?
6. Is the officer’s training, as opposed to experience, a sufficient basis for finding articulable suspicion?  Does a reviewing court have the obligation to evaluate the validity of the training? The trainer?
7. If the data is not the answer; and the officer’s experience is not the answer; and the officer’s training is not the answer, is the answer just “common sense?” Is that really the answer that the Court will rely on in deciding Fourth Amendment probable cause and articulable suspicion questions?  If the Court divides 5-4, can the “5” really brag that it is “common sense” if the 4 dissenters disagree.  Doesn’t sound very common to me.     
8. Regardless of the answers to 1 – 7, above, what percentage of illegal drivers must there be in order to support a stop?  In other words, as Chief Justice Roberts posed during the oral argument, if the data demonstrates that 10% of the time, the driver will be the owner who has no valid license, may the officer stop the vehicle?  20%?  30%?  Chief Justice Roberts asked the lawyer during oral argument, “Don’t you agree that all teenagers frequently text while driving, or at least 10% of teenage drivers do so?  And if so, may the police stop every car in which it appears that a teenager is driving?  Or a teenager is the registered owner?”
9. Consider whether your answer to #8 would apply in the typical drug courier profile case.  If the data supports the conclusion that 20% of travelers from a source city to a consumer city, who purchase the ticket with cash and have a quick return flight, and have no bags other than a carry-on,  etc etc, is a drug courier, does that mean that in every case in which the profile exists, the person can be stopped?  Or does the profile have to be more predictive, more reliable?   What makes Glover so interesting, by the way, is that  instead of a “profile” – an assortment of factors, whichcombined, make it likely that the traveler is a courier – in Glover there is only one fact: the registered owner is unlicensed.  There are no other facts that are known to the police.  
10. What if the registered owner is a teenager?  The teenager has a valid driver’s license, but she is not allowed to drive at night in her state.  The car is seen on the road at night, but the officer has no idea who is driving.  Can the officer stop the car?  After all, it might be the teenager.
11. Is there any room in this analysis for insistence that the officer, before stopping the vehicle, try to determine if the driver fits the description of the unlicensed owner?  In other words, if the data supports articulable suspicion, is there any duty on the part of the officer to attempt to corroborate the assumption generated by the data?

 
We await the decision in Kansas v. Glover.