by:  GUEST BLOGGER, Lawrence Zimmerman

LZ has requested permission to file a surrebuttal to the dialogue between Scott Key and Don Samuel, concerning the future of calendar calls.  Permission Granted.  

Surrebuttal to Don’s Response About Cattle Calls
         I love court but I hate driving to court. I hate it when it is cold, and especially cold and rainy. I hate driving in traffic, and unless I am headed north, there is always traffic coming from Marietta. I love court, but I hate the process of getting to and through and out of court. 

While traveling to court in the winter is not great, going to court in the summer is infinitely worse, while I am out sweating to death in a suit, my family is still home sleeping - it is summertime. A linen suit would be much better but does not seem appropriate at the courthouse unless I am in Miami - then a Panama hat would also be fitting, along with a nice pair of sunglasses, if only I had the head and face for that look. The only positive aspect of traveling to court in the summer is that there is much less traffic on the road, everyone is at home sleeping like my family. 

         On the drive to court, I know where I am going but always have my car GPS activated along with my Apple maps simultaneously running. I always think I left early enough but my arrival time on both of my maps is saying I am due to arrive thirty minutes after my hearing is to start. I need to speed up; however, there is traffic and speeding up is not a possibility. I call my office to ask my paralegal to call the judge to let them know I am stuck in traffic, and I have taken pictures at mile marker 252 with a time-stamp, not to mention my MileIQ App which tracks my mileage and shows the exact times I depart my house. I think to myself, “I will show the judge the map, the picture at mile marker 252 on Interstate 75 South (Northside Drive) and my MileIQ App that proves I left my house two hours early for what is normally a thirty-minute ride.” 

Once I get through all the usual obstacles, the hassles, the near collisions on the highway, and the nonstop panic attacks thinking about being late to court and a holding cell, I get off the exit only to discover I cannot find any parking, and of course this is exactly when I realize that drinking six cups of coffee on the drive was a bad idea.  

When I finally find a parking spot close to the courthouse, it requires me to pay twenty-five dollars. On days I drink too much coffee, I will pay anything to park close to the courthouse. When I get to the courthouse security line, I hate court even more. I must take my belt off, my watch, and sometimes my shoes and jacket. I then must get dressed again, which makes me think I should next time pack a suitcase and just get fully dressed instead at the courthouse bathroom or phone booth like Clark Kent, since I am in court to save the day, except there are no more phone booths. Finally, once I get through the line, I hurriedly get dressed, barely put my belt on, take care of the “coffee issue” and go find the courtroom. I am outside of the courtroom, there are ninety people, the doors are closed, and everyone looks confused. Outside the courtroom, an agitated deputy with bulging muscles will step in front of me ordering me to produce my bar card for admission. When I ultimately get through the doors of the courtroom, I am told that the judge cancelled court late yesterday and decided nobody needed to be notified. 

I see my friend Don Samuel talking to the police officer in my case, laughing it up. I am not sure I like that but whatever works for Don if they are not laughing it up about my client’s case. Certainly, Don is not educating him on how to be a better witness. Don is not that good of a guy, right? 

I love seeing my friends at court, it reminds me of why I loved high school, seeing everyone in the hallways and slapping hands, pre-COVID-19 of course. Court is good for me since I am an extrovert, but bad for my time management skills. I will linger all day speaking to everyone. As we move to more videoconferencing, we will be able to still see our friends and have more time for each other by avoiding the endless car journeys and never-ending security lines. We can have more lunches together, be more efficient, and there will still be times when we must appear. Besides, we will always have our GACDL conferences to attend. 

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 Nick Lotito

NOTE:  In his efforts to cope with sheltering in place, Nick Lotito has been submitting daily posts on Facebook. He dubbed these The Corona Monologues and was at  CM 43 at last count. These are some excerpts which he authorized this Blog to reprint:

Waffle Houses are opening today, perhaps a vestige of the same old idiocy. Shouldn't we stay scattered, not smothered? By waffling, we run the risk of being fried. This is not over easy.
 
This reminds me very little of another random thought with a tenuous link to technology. I still write serious letters for work, but letters, in general, have been run out of town by emails. What effect will this have in years to come. I still have a box of love letters somewhere. Don't think I ever received a love email, certainly don't have any saved. What about songs? "Get me a ticket on an airplane....my baby she wrote me an email." And how do you give an email to a postman, let alone mark it "special d?" Love emails in the sand? C'mon. Letters also had principles, they weren't phishy. Of course, these posts are essentially bulk emails, so never mind.
 
While I admire all healthcare workers for what they are currently doing, this reminds me of the medical practitioner who had sex with a patient. Part of his conscience said, "don't be so hard on yourself. You're not the first doctor who had sex with a patient." Another part said, "You sick bastard, you're a veterinarian."
 
About a week or so ago, Meredith and I spoke w/ Bobby Lee Cook who is sheltering at his beautiful Italian style villa on the brow of the mountain in Cloudland, Ga, a sort of high brow response to covid. Cook is 93 and a legend in criminal defense. The show Matlock was inspired by his incredibly successful law practice. He remarked that this is the first time in his life he has felt "completely helpless." Long ago, he lied about his age to enter the Navy, and he then fought in the Pacific theater. He has been a man of action, used to attacking problems head on. Many of us, particularly, lawyers, are problem solvers. You assess the problem and take action. This "problem" is unlike others that lend themselves to that approach. It is invisible, potentially deadly and no one has an actual answer. Cook's comment of helplessness is profound in its simplicity, and it stuck with me. It helps explain some of the protests to sheltering. I think people feel an innate need to do something, and it is frustrating, not that I agree with their actions. 
 
Moving from this serious vein, I am not sure it explains all protests. For example, plastic surgeons are rebelling. They claim the emphasis on flattening the curve is ruining their practices. Consumer product companies are suffering. With social distancing, sales of deodorant, perfume, cologne and similar products are non-essential services. Deodorant manufacturers, in particular, are up in arms over this. Contact tracing is vigorously opposed by drug dealers. It does appear that for every action, there indeed is an equal and opposite reaction after all.
 
With the blurring of time, I failed to focus on yesterday being Jackie Robinson Day. During a regular season, on April 15, all players wear #42. Vin Scully tells a story about the Dodgers playing in Cincinnati. Jackie received a death threat that he would be shot on the field if he played. He received a number of these. In a pregame meeting, Gene Hermanski, an outfielder said, "I got it! We can all wear #42." Of course, the numbers wouldn't hide skin color, but the thought resonates today. We're all in this together. We all may have some limits on whom we would take a bullet for, but our natural tendency, with notable exceptions, i.e., you know who [Hocus Potus], is to look out for one another. I have always found friends of mine have generally liked other friends when they happen to meet. I take comfort in this, knowing friends make life so much richer. Imagine how much more oppressive this would be w/o FB and Zoom. Meanwhile, Jackie played that day in Cincinnati. Hermanski's 1947 idea eventually took shape years later w/ all players wearing #42. Jackie was one of my heroes. He did more to advance civil rights than many appreciate. Today, he would encourage others to stay home. He stole it 20 times.



​

by:  Don Samuel

A response to Scott Key
 
            Nobody would doubt that calendar calls are terribly inefficient. Traveling to Gwinnett County then waiting for an hour to announce, “Still waiting on Crime Lab report, please put on next calendar,” and then high-tailing it to Henry County to announce, “Need to schedule a discovery compliance hearing,” and then back to Fulton County – all of this is frustrating.  And if a brief is due in the Court of Appeals, the quality of the brief will suffer because of the lost time driving on the downtown connector, to say nothing of standing in security lines and sitting in the jury box, watching other lawyers announce, “Still waiting on Crime Lab report.”
 
            So, Scott Key is right: the courts need to learn from the covid-19 experience that we can be more efficient and accomplish a substantial amount of work in 5 minutes, rather than 5 hours (and possibly reduce the pollution that is caused by our endless driving, too).
 
            But I will miss calendar calls.  I will miss seeing friends, prosecutors and defense attorneys, the court’s staff, the deputies and bailiffs, the court reporters and the police officers that congregate at these cattle calls. I will miss sitting in the jury box and talking with another lawyer about her case (not just the missing crime lab report) and learning about a tactic she is using that would work in one of my cases, too.  I will miss being able to talk to a younger lawyer who is about to announce, “Waiting for a Crime Lab report” and suggesting to him, “Why don’t you insist that the prosecution is the cause of the delay and should be barred from introducing the evidence?” and then watching the ensuing event unfold as the judge looks at the ADA disapprovingly and the evidence is then tossed.   
 
            I will miss sitting in the jury box and talking to a police officer about the case (not mine) that has led her to stumble into court after a ten-hour shift.  We talk for a while and make fun of the ADA, the defense lawyer in her case, the judge – and a few months later, when I have a case in which that officer is the one who made the arrest, guess what?  She remembers our ten minute “date” and we laugh again and then she tells me everything I need to know about my new case in which she is the adversary.  She trusts me, I trust her.  Never would have happened without that calendar call where we met.
 
            I will miss seeing grumpy judges at the calendar calls.  Though when the judge calls me up to the bench and asks, “How is your family?” or “I haven’t seen Ed in a while, how’s he doing?” I realize the judge is a human being who also needs the human interaction.
 
            If I never have to appear on another Zoom call, it will be too soon.  I want to see my colleagues and friends and adversaries.  I want to stand in line and tell the same joke with the security guard at the metal detector I have been telling for five years.  I want to eat some of the terrible food in the cafeteria and drink the coffee that is worse than the brew you get at the convenience store.  I want to look around the courtroom when somebody’s phone starts ringing and remember the times it was my phone (“I am sure I turned it off; it must have turned itself back on when the ADA was pushing past me when we were standing in line outside” – that’s the lie I tell the judge).  I want to hear a lawyer tell me a war story that is obviously embellished to the point of absurdity. 
 
            Ok, I agree that I am not looking forward to the downtown connector. You got me there.

by:  GUEST BLOGGER SCOTT KEY

CoVid-19 and the Opportunity to Move Courts Forward
 
The CoVid 19 crisis, for all of the tragedy and devastation it has brought, has given the court system the push it needed to handle its business more efficiently. If the judges handle things well they will not go back fully to the ways of operating that existed before the virus. In what follows, I will discuss things that are working to make litigation less costly, the courts more available and open to the public, and more efficient through the use of video conferencing. But first a brief history discussion.
 
The Antiquated Circuit System 
The court system as we know it was perfectly innovative for its time— the eighteen and nineteenth century. Before the automobile and even in the automobile era, the local courthouse served as a staging area for court. But the court was a traveling show. One need only read a biography of Lincoln to learn how much sense it made for the lawyers, judges, clerks, and bailiffs to travel throughout a region to hold court on tour. Such a system ensured that transportation costs did pose an insurmountable barrier to meaningful access to the courts. In an era of transportation challenges, the circuit system was the most efficient available model. 
 
Even in an era when an automobile is inexpensive enough to be available to every household, the circuit system no doubt had its utility. However, in an era when video conferencing technology is available essentially for free to everyone with a phone, the circuit system for court is strikingly outdated. If we were building a court system from the ground up today, it likely would not require hundreds of people to be screened through a metal detector, the transportation of inmates to a holding area, and for hundreds of people to be packed into a crowded courtroom to do things like say, "not guilty has been entered,” or “we are asking that this matter be continued until the next trial calendar.”
 
And yet the way we do court is still based on a system that was in place for the level of technology available when Lincoln was practicing law. We no longer need our judges to ride a circuit.
 
Matters Easily Handled by Video Conference
When virtually the entire nation was put on quarantine, nearly any parent with school-aged children learned practically overnight to use applications such as Zoom. And so did the Courts. In April of 2020, the Georgia Supreme Court made history when it held two days of oral argument entirely by Zoom. The process went seamlessly. And a case could be made that the level of argument was made better for it. Oral argument has been described as an enlightened conversation among scholarly colleagues. Via a Zoom, with the lawyers and justices joining from their offices, the argument seemed somehow more intimate and less theatrical than in a courtroom with the performers on stage. The highest court in Georgia, in a matter of weeks, figured out how to conduct its important business by Zoom. 
 
What we have learned is that non-evidentiary hearings are perfect for video conferencing. Video conferencing is also perfectly suited for routine housekeeping matters such as scheduling, announcements, and the enforcement of deadlines for things such as the entry of a plea. For civil matters, at least, even evidentiary matters could be handled over video. 
 
Surely They Won’t Make us Go Back
Before the emergency order was put in place, court was set up in a way that seemed to maximize inconvenience. At the average arraignment and pretrial calendar, chaos reigns. Lawyers and parties sit around for hours and await their moment (sometimes that moment is less than a minute), to announce something to a judge or for a motion that takes maybe fifteen minutes to handle. And for all of that, an entire docket’s worth of people are brought into the room to wait their turn. The real fun begins when a lawyer has a conflict of several such matters in various counties to dispose of. The lawyer performs a mini-circuit, sometimes driving hundreds of miles in a day. And if the lawyer cannot make it to all scheduled appearances, then the client waits all day. The missed day of work, the childcare expense, the stress of being in court, amounts to no forward progress in the case. And for the client who is paying the lawyer by the hour, the meter is running for at least part of the lawyer’s drive to the courthouse. 
 
A Matter of Incentives
It does not escape my notice that there is a perverse method to the madness. Much of the inconvenience is by design. Judges often pack in all the mandatory calendars in an effort to force matters to resolve by attrition. Miss enough work, pay enough for childcare, go through enough stress, and parties will be willing to do anything, including plead guilty to a crime, to avoid another court appearance. Such a system brings disproportionate weight upon the working poor, particularly the hourly wage earner. 
 
However, if the goal behind all the coercion is to move the docket in an expeditious manner, then an efficient case management system that allows the attorneys and parties to appear without the need for travel and the expense of the full courthouse security apparatus, would achieve that goal better. And courts can still enter scheduling orders, mandating things such as deadlines for motions and for acceptance of a negotiated plea — using the power of the court to move cases forward toward resolution. 
 
Other Benefits
A system that uses video technology can produce other benefits as well, such as a more public court system. There has been a trend in moving courts to the inside of jails and prisons. Many criminal and habeas proceedings take place jailhouse courtrooms. Such places are either intimidating for the public to enter or have limited seating. And even the biggest courtroom can only hold so many people. And while trials are certainly broadcast live, in an era of video technology, the public could watch virtually any courtroom proceeding— not just the most salacious murder trials. 
 
Some Modest Proposals
Arraignments, calendar calls, and non-evidentiary motions should, by default, be set up via video conferencing. Evidentiary proceedings in civil and criminal motions should be by video conferencing if all parties agree to handle matters that way. Jury trials remain in the category of proceedings that should be handled in person— particularly given current caselaw around the Confrontation Clause.  Oral argument in appellate cases should be done by video conferencing upon order of the Court or upon agreement by the parties.
 
The recent Co-Vid Crisis has taken away the biggest impediment to a widespread change in how we do court— the objection that we’ve never done it that way before. When the crisis is finally in the rearview mirror, we should take away a more sensible and efficient manner of handling court. It is worth mentioning that such a system would greatly improve the quality of life for attorneys and make the delivery of legal services more affordable to the public. It would be nice to handle court from the office, from home, or from practically anywhere in the world, with less time driving and more time available to devote to the actual handling of cases.

by  Don Samuel

​Anybody who has tried to research the question, “What does it mean when a statute says that the government must prove that the defendant acted willfully?” knows that virtually every appellate decision starts with the observation, “The term ‘willfully’ has many meanings, and its construction is often influenced by its context.” (Imagine, at this point, a string of citations a mile long). The problem is that figuring out which of “many meanings” applies for any particular statute is a crap shoot.  And announcing that the meaning is “influenced by its context” provides no guidance at all.
 
In the previous post about Rehaif, we focused on when is the government required to prove that the defendant had knowledge about a specific element of the offense.  In this reflection on Rehaif the question is broader:  When is the government required to prove that the defendant knew that he was engaged in criminal conduct, regardless of how many elements of the offense he knew about?  That is often how the courts distinguish between the “knowledge” aspect of mens rea and the “willfulness” aspect.  One acts with knowledge when he or she acts with knowledge about certain facts (though, as pointed out last week, it may well be that one of the elements that must be known is the existence of a regulation or a license requirement).  One acts willfully, on the other hand, when one acts with the purpose to violate the criminal law, or at least with the knowledge that jail may be the consequence of engaging in the particular conduct.  
 
Not so fast, though.  These may be law school distinctions but given that we are cautioned that “willfully” has many meanings we should hesitate to ascribe just one meaning.  Consider, for example, some of these criminal code sections (i.e., the “context” which might influence the meaning):
 
18  U.S.C. § 1735(a) Whoever-- (1) willfully uses the mails for the mailing … of any sexually oriented advertisement in violation of section 3010 of title 39, or willfully violates any regulations of the Board of Governors issued under such section [is guilty of a felony].
18 U.S.C. § 1520(b) Whoever knowingly and willfully violates subsection (a)(1), or any rule or regulation promulgated by the Securities and Exchange Commission under subsection (a)(2), shall be fined under this title, imprisoned not more than 10 years.
29 U.S.C. § 666(e):  Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations [is guilty of criminal OSHA violation).
18 U.S.C. § 1001:  Whoever shall knowingly and willfully … make any false or fraudulent statement [is guilty of a felony].
26 U.S.C. § 7201:  Any person who willfully attempts … to evade or defeat any tax [is guilty of tax evasion].
15 U.S.C. § 1990c (repealed): “[a]ny person who knowingly and willfully commits any act or causes to be done any act that violates any provision of this subchapter [is guilty of odometer fraud offense].
47 U.S.C. § 501:  Any person who willfully and knowingly does or causes or suffers to be done any act, matter, or thing, in this chapter prohibited or declared to be unlawful [is guilty of violating licensing provisions relating to radio transmissions].
            
With regard to each of these statutes, does the term “willfully” mean that the defendant purposely must violate the criminal statute?  Is it sufficient if the defendant knowingly engages in certain conduct, regardless of whether he or she knows the criminal law consequences?  How about if the defendant knows he is violating an underlying regulatory order or licensing requirement, but does not know that it is a crime to violate the order or the licensing requirement?  And when the statute requires that the defendant “knowingly and willfully” do something that the law forbids, what added aspect of the defendant’s state of mind is required to be shown by these seemingly separate (or are they redundant?) requirements.  Similarly, if the defendant must “knowingly and willfully” violate the law, can the defendant be innocent if he acts knowingly but not willfully?  Or willfully but not knowingly?  In the first statute cited above, 18 USC § 1735, is there a difference between “willfully using the mails” and “willfully violating a regulation” as far as the required proof of the defendant’s knowledge of the criminality of the conduct?  With regard to § 1001, is there any requirement that the defendant know about the criminal nature of the conduct?  So many questions; so few answers.
 
The decisions from the Supreme Court and the federal appellate courts just accentuate the muddle.  
 
One of the significant cases to discuss this topic was Cheek v. United States, 498 U.S. 192 (1991).  The Supreme Court held that 26 U.S.C. § 7201, requires not just that the defendant fail to report income, but that he knew he was required to report his income and failed to do so, knowing that he was violating the criminal law by failing to do so.  The Court held that this level of proof was necessary because of the complexity of the tax code and to avoid criminal penalties being imposed on unsuspecting citizens.  It is worth noting that Mr. Cheek, an airline pilot, did not report his income, because he thought that his paycheck was the “barter” that he received in exchange for his time in the cockpit and  a simple exchange (or sale) of assets -- including his time -- did not qualify as income.  Not exactly the most complex aspect of the criminal code.
 
The Supreme Court also held that the then-existing anti-structuring law also required this heightened proof of mens rea in Ratzlaf v. United States, 510 U.S.135 (1994).  Again, the Court held that the complexity of the anti-structuring law required this level of proof.  Congress responded almost immediately by deleting “willfully” from the anti-structuring statute.  31 U.S.C. § 5324(d).  
 
The next step in the “willfulness” jurisprudence in the Supreme Court occurred in Bryan v. United States, 524 U.S. 184 (1998). Bryan held that the “willfulness” requirement in the firearm licensing statute (18 U.S.C. § 922(a)(1)(A) and § 924(a)(1)(D)) did not require proof that the defendant was either aware of the licensing statute or intentionally violated a known legal duty. Rather, all that is required is proof that the defendant knew in a general sense that his or her conduct was unlawful. The Supreme Court approved the instruction given by the District Court that tracked the Eleventh Circuit Pattern Instruction:
 
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.
 
Justice Scalia expressed outrage:  He queried whether a defendant could be found guilty of willfully violating the firearm licensing requirement (selling a firearm without having a license to do so), if the defendant had no idea about the licensing requirement that applied to him, but was aware that he had double-parked in a no-parking zone when he sold the firearm, or violated the speed limit law when he rushed to the scene of the planned sale of the firearms.  Was that a sufficient “intent to do something the law forbids” that would support a conviction for willfully violating the firearm licensing statute? Id. at 202.
 
So much for SCOTUS’s contribution to the definition of “willfulness” in criminal statutes.  Next stop, the federal appellate courts.  Those courts have formulated a number of tests to determine the level of criminal culpability that should be required in order to be convicted of willfully committing the offense.  Here are some of the tests, assuming the statute is not clear on its face:  

1. If the statute is very complicated, then the government must prove more about the defendant’s knowledge.  Other than the tax code, few statutes have earned the status of complexity under this standard, though the Eleventh Circuit recently held that the Armed Export Control Act was sufficiently complex that a conviction required proof that the defendant knew the criminal law and licensing requirements she was violating.  United States v. Wenxia Man, 891 F.3d 1253, 1267–68 (11th Cir. 2018).
2. If the statute involves a dangerous activity, the government is required to prove less about the defendant’s knowledge.
3. If the statute involves obviously evil conduct (or malum in se), the government is required to prove less.

 
Of course, these are not easy tests to apply.  For example, is the entire tax code complicated?  Is it complicated to understand that if you receive a W-2 from your employer, you have income that should be reported and that your time in the cockpit is not “traded” for your weekly salary (like selling your old refrigerator for $50 does not result in $50 income on your tax return)?  In other words, is a statute either all or nothing?  Or can certain aspects of a criminal law be complicated, while other aspects not?  
 
And what if a case involves conduct that is dangerous – exporting military equipment to China, for example – but also involves a complex statutory scheme, two criteria that point in opposite directions.  Again, the recent Xenia Man case exemplifies this problem.  See also United States v. Adames, 878 F.2d 1374, 1377 (11th Cir. 1989).
 
How do we reconcile the cases that involve statutes that require proof of “willful” violation, but uphold a conviction if the government proves only that the defendant knew what he was doing, regardless of whether he had any knowledge whatsoever about the illegality of his conduct?  The Eleventh Circuit held that the term “willfully” in 29 U.S.C. § 186(d) (Taft-Hartley Act) only requires proof of general intent. United States v. Phillips,19 F.3d 1565 (11th Cir. 1994). This law proscribes certain improper payments from an employer to a representative of an employee, or a union. The court held that the “willfully” element of the offense only requires proof that the defendant was aware that a payment was being made. The government is not required to prove that the defendants were aware of the specific provisions in the Taft-Hartley Act which proscribe these payments.
 
Rehaif, having overruled all twelve Circuits when it insisted that the government prove the defendant knows his immigration status, has proven that the mens rea requirements are not easy to divine, and certainly not by simply reading the statute.
 
So, the answer to the question, “What does ‘willfully’ mean in a criminal statute?” the most cogent response is, “The term ‘willfully’ has many meanings.”

by:  GUEST BLOGGER:   LAWRENCE ZIMMERMAN

      Effective in 2006, the Adam Walsh Child Protection and Safety Act mandates that states meet minimum legal requirements in keeping a sex offender registry. The registry under federal law is known by the acronym SORNA. Dealing with a case that involves registration lawyers must familiarize themselves with both state and federal laws. 

        There is now, throughout the United States, a patchwork of sex offender registrations that differ from state to state—these state regulations rarely maintain uniformity. While a person may not be required to register in one state, the person may be required to register in a bordering state.  Even if that person is removed from one state’s registry, the removal in one state does not mean that the person is exempt from registration in another state when he or she visits.  How should attorneys handle these issues?

         A practical example highlights the problem. Your client moves to Miami for a new job, but his permanent residence is in Massachusetts. When it comes to sex offender laws, there is a large gulf between Massachusetts and Florida, much like the gulf between their professional sports franchises (Perhaps there is a correlation between winning championships and having reasonable laws, but that is a study for another day). Your client decides it would be nice to meet a woman or a child, so he hops a flight to Atlanta and finds a hotel. At the hotel, client is online looking at profiles and voila, he meets the girl of his dreams.  The girl tells your client she is eighteen but then says she is 13—the ostensible girl is, in fact, a police officer.

         Client is indicted for a Georgia sex offense and wants to resolve the case.  Georgia’s First Offender Act is not available for most sex offenses.  You can find a statute to enter a plea but, as part of negotiations, the prosecutor insists on registration as a condition of probation, but not necessarily because the charge mandates it. You agree to Cruelty to Children in the Second Degree (with no sex elements), but it is a five-year probated sentence and as a condition your client must register for the length of probation. 
Here is where things get tricky.  If your client returns to Florida – even after completing first offender probation – Florida sex offender registration is mandatory, possibly for life.  This is true notwithstanding that Georgia would not require registration upon the client’s completion of his first offender sentence.  The problem arises because Florida law considers a withheld adjudication, specifically in sex cases, a conviction. See Fla. Stat. § 943.0435 (1) (b).  In Georgia, a plea under the First Offender Act, O.C.G.A. § 42-8-61, withholds adjudication. The Florida definition of who registers is a broad one creating a problem for this client who entered a plea to even a nonsexual offense. Setting aside the fact that Florida does not recognize withheld adjudications, Florida will nevertheless require registration based on the mere fact that the client previously registered as a condition of probation in this state or another one. See Fla. Stat § 943.0435 (h) (1) (a) (II) (b). Getting off Florida’s registry is very difficult, so we will need a guest Florida blogger to discuss that issue, but it will be a short blog. 

         After client completes his Georgia probation and living in Florida does not work out, he relocates to New England because he prefers cold winters, reasonable laws, and winning professional sports teams.  Massachusetts is a dream state for someone who was previously on a registry with a withheld adjudication.  Here is why: Massachusetts defines a “sex offender” as someone who has been convicted of a sex offense or “who has been adjudicated as a youthful offender or as a delinquent juvenile by reason of a sex offense or a person released from incarceration or parole or probation supervision or custody with the department of youth services for such a conviction or adjudication or a person who has been adjudicated a sexually dangerous…”  G.L. c. §178 C. 
 
       What is the material difference here? Unlike Florida, Massachusetts does not have a catchall provision regarding prior sex offender designations or registrations, and an adjudication withheld is not a conviction. Massachusetts mandates only those who have been adjudicated of a crime to register. Great news, right? Sure, unless you want to travel outside of Massachusetts for the weekend, or for a work trip. 

       Take the case of William Bridges.  Bridges moved from Florida to Virginia after a sex battery plea, and at some point, he failed to update his address with the sex offender board. United States v. Bridges, 741 F.3d 464 (2014). In 2001, Bridges in Florida entered a nolo contendre (withheld adjudication) plea to a sex offense and received one-year probation. Id. at 465. Years later while living in Virginia as a registered offender, the federal government indicted him for failing to update his address. Id.

         Bridges claimed his plea was not considered a conviction, but SORNA does not recognize withheld adjudication. In Bridges the court referenced the federal registry stating, “[t]he federal registration requirement, in other words, cannot be avoided simply because a jurisdiction “has a procedure under which the convictions of sex offenders in certain categories ... are referred to as something other than ‘convictions.’” Bridges at 468 (quoting 73 Fed. Reg. at 38,050). Where does that leave us? Bridges does not squarely address our issue if a client enters a plea under First Offender and registers as a probation condition. Yet this case is another example of how this area of law is rife with pitfalls and future collateral consequences. These different issues will arise on a case-by-case and state-by-state basis and interplay with federal law. 

             To get clarity under federal law prior to advising a client to enter a plea under state law, one must review 34 U.S.C. § 20911, a federal statute that covers the types of crimes requiring sex offender registration under federal law. A good discussion about the registry, as it pertains to Georgia’s First Offender act, is authored by our friend, Hon. Alan J. Baverman, whose report and recommendation provides a comprehensive analysis. See United States v. Grant, 2018 WL 4516008. However, unlike in Grant, a Georgia defendant may no longer avail oneself of the First Offender Act for a child molestation charge.

         In Georgia, most sex offenses do not qualify for first offender; the disqualifying offenses are enumerated in O.C.G.A. § 42-8-60. The best advice is to first find a criminal offense (for example, cruelty to children) which allows for first offender disposition. Then, if the prosecutor insists on registration, agree to it only as a last resort to close the deal. Upon successful completion of probation, there is no conviction and in Georgia no registry requirement. It is especially important to ask the prosecutor to dismiss the indictment and draw a separate accusation with elements not alleging any sexual component. Even with these safeguards, you will still need to apprise your client that the mere fact of Georgia registration can pose a future problem depending on where a client chooses to reside—now or twenty years from now. Most prosecutors are unaware of the federal registration requirements, or potential collateral consequences in other states, so you may be able to convince them that lifetime registration was not the intent of the parties.  Therefore, it is possible once you show prosecutors the law, or this blog article, a better negotiation can be achieved.

by:  Don Samuel

With all its wisdom (or not), this Blog is copyrightable.  The OCGA, however, with all its annotations (wise and unwise) is not copyrightable.
Georgia v. Public Resource.Org

by:  Don Samuel

In the introductory post about Rehaif, we reviewed some of the basic problems that the courts face in deciding what the government must prove about a defendant’s knowledge.  What must the defendant know about the facts that are identified as the essential elements of the offense?  And when focusing on whether the defendant harbored a criminal state of mind, what does Congress mean when it says that the defendant must act “willfully”?  In this post – part 2 of 3 – the focus is entirely on the question of what the defendant must be shown to know about the different elements of the charged offense.  In part 3, the focus will be on whether the government must prove that the defendant knew that what she was doing was a crime.  Thus, here we address the defendant’s knowledge about specific elements of the offense; in part 3, we address the overall knowledge of the defendant regarding the criminality of her conduct.
 
Consider this hypothetical crime: “It is a crime for a defendant to knowingly sell to a senior citizen a security that is not registered at the SEC.”  Is the government required to prove that the defendant know that what she sold was within the legal definition of a “security”? Is the government required to prove that the defendant knew the security was not registered at the SEC? Is the government required to prove that the defendant knew the buyer was a senior citizen?
 
Assuming the answers are not obvious – and they are not – there are various criteria the courts have used to answer the questions, sometimes depending on what type of element is in contention, sometimes depending on the wording of the criminal statute.  In the broadest terms, the courts will generally draw different conclusions depending on (1) whether the element is a simple fact, such as the light was green or red, or the suitcase contained cocaine; (2) whether the fact is such that absent proof of that fact, the defendant’s conduct would not be illegal at all; (3) whether the element of the offense is simply a jurisdictional requirement for federal jurisdiction; (4) whether the element relates to the age or occupation of a victim or accomplice, (5) whether the element requires knowledge of the legal status of the defendant or an accomplice, (6) whether the crime with which the defendant is charged includes an element that requires knowledge of another federal statute or regulation that was alleged to have been violated, such as the tax code, or a regulation governing the proper disposal of hazardous material.  
 
            Here are examples of the tests that the courts use, and the reason the court reaches a conclusion about what the government must prove:

1. Consider sentence structure. Try diagramming the sentence.  It really does not help much, because one is left with the same questions, just asked in a way that sounds more like your high school English teacher would ask:  How many objects does the word “knowingly” modify?  How far down the list of objects (or elements of the offense) does the word travel before it expires?  And does it automatically cover the first in a series of elements  (In case you miss high school English, read Justice Alito’s dissent in Rehaif  which devotes considerable attention to the sentence structure of §§ 922 and 924).   In our hypothetical security fraud case, does it matter that “selling to a senior citizen” is the first of several elements that follows the “knowingly” modifier?  Is the answer to the hypothetical question different if we change the structure of the sentence and move “to a senior citizen” to the end of the criminal statute? In Flores-Figueroa v. United States, 556 U.S. 646, 652 (2009), the Court wrote, "[C]ourts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word 'knowingly' as applying the word to each element."  Except when the courts do not.
2. It should be noted, though, that there are times when Congress leaves nothing to the imagination when it comes to divining its intent.  In connection with health care fraud, for example, Congress added this language to the statute: "With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section."  18 U.S.C. 1347(b).  
3. A frequent question (and one which was dominant in the Rehaif case) is deciding whether the element is necessary to prove that a crime occurred at all; absent that element, in other words, the defendant’s conduct would be entirely legal.  Thus, in Rehaif, there is nothing illegal about possessing a gun, unless you are a prohibited person.  And therefore, you must be shown to know that you are a prohibited person, otherwise you would not know that you are committing a crime.  But in our hypothetical sale of an unregistered security case, the age of the purchaser is certainly not what distinguishes innocent from criminal conduct.  So using this test, the age of the purchaser is not a fact that the government must prove that the defendant knew.
4. Is there legislative history including prior versions of the statute that have been amended to show a legislative intent to include or exclude the particular element that the government must prove that the defendant knew?
5. If the victim of a crime must have a certain occupation, the prosecution is not required to prove that the defendant knew the victim’s occupation. Thus, a defendant who kills a DEA agent, or a federal judge is guilty of that crime, regardless of whether the defendant knew the victim’s occupation.  United States v. Feola, 420 U.S. 671 (1975); United States v. Berki, 936 F.2d 529 (11th Cir. 1991); United States v. Benitez, 741 F.2d 1312 (11th Cir. 1984).  The Feola Court held that because the statute outlawing assaulting a federal officer is not designed as an obstruction statute, but rather, a statute that is designed to protect federal officials, there is no requirement that the defendant have knowledge of the intended victim of the assault.  
6. Similarly, the age of the victim or accomplice is not a fact that the defendant must know, even if the victim’s or accomplice’s age is an element of an offense. United States v. Daniels, 685 F.3d 1237 (11th Cir. 2012); United State v. Williams, 922 F.2d 737 (11 Cir. 1991).  However, in United States v. X-Citement Video, 513 U.S. 64 (1994), the Court held that in a prosecution for knowingly possessing or transporting child pornography, the government is required to prove that the defendant knew the age of the child portrayed in the video.  And it is well known to lawyers in state court prosecutions that the crimes of child molestation and statutory rape do not require proof that the defendant knows the age of the child.
7. What about proof that a defendant knew that a gun he possessed in connection with a drug offense was a machine gun? The Eleventh Circuit has held that there is no requirement that the government prove that the defendant even knew the characteristics of the weapon in order to “trigger” an enhanced mandatory minimum sentence.  United States v. Haile, 685 F.3d 1211 (11th Cir. 2012).  There, the court held that even if an element is a mandatory sentencing factor that must be proven at trial, the defendant need not know that element of the offense.
8. Rehaif represented a dramatic change in the law in situations where the defendant’s legal status is an element of the offense.  Yet, in other cases, where the defendant is charged with assisting an illegal alien enter the country, the courts have always held that the defendant must be proven to know the other person’s legal status.  United States v. Lopez, 590 F.3d 1238 (11th Cir. 2009); United States v. Dominguez, 661 F.3d 1051 (11th Cir. 2011).
9. In a hazardous waste case, the court has held that the government is not required to prove that the defendant had knowledge that the contents of the containers were defined by the EPA as “hazardous waste” but the defendant must generally know of the hazardous character of the chemical. United States v. Goldsmith, 978 F.2d 643 (11th Cir. 1992).
10. The hazardous waste cases and the "legal status" cases involve “facts” that are not like the typical “historical facts” in the earlier examples.  Instead, these cases focus on whether the defendant must know certain legal requirements, such as the EPA definition of what qualifies as “hazardous" and when is a person defined as an "illegal alien?" These cases introduce the topic of what law the defendant must be proven to know (or not).  One of the early cases to address this topic was Liparota v. United States, 471 U.S. 419 (1985).  In that case, the defendant was charged with “knowingly using  coupons . . . in a manner not authorized by the Food Stamp Act.”  Was the government required to prove that the defendant knew the food stamp laws that prohibited a store owner from purchasing coupons from a customer at a discount rate?  The Supreme Court held that the government was required to prove the defendant’s knowledge of the regulations.  Justice Brennan, writing for a 6-person majority relied on the Rule of Lenity in holding that the knowledge requirement applied to the “not authorized” clause.  Justice Brennan feared that because of the complexity of the Food Stamp Act, any other holding would potentially criminalize the behavior of defendants who had no idea that their use of Food Stamps might be against the law.  Again, however, Congress can bleach this knowledge requirement out of the statute, as it did in the health care fraud statute when it wrote, "With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section."  18 U.S.C. 1347(b).

 
It should be apparent that knowing what must be known defies simple answers.  And to the list of problems that confront us should be added, as well, questions of what it means to “know” something in the first place? Deliberate ignorance?  Negligence?  Recklessness?  Knowledge of a co-conspirator being attributed to the defendant? Those are questions for another day.  
 
Part 3 will address the issue: Does the government have to prove that the defendant knew the conduct was criminal?

by Don Samuel

Last week, this Blog reported on the developing law surrounding the use of DOJ taint teams to review seized communications that may include attorney-client communications.  This afternoon, Scott Grubman, on behalf of his client, Jim A Beard, filed a motion for a TRO seeking to immediately stop the government from continuing to use a taint team to review three years of emails seized from his client’s AOL account.  The request for a TRO, relying on the Fourth Circuit case In re Search Warrant, 942 F.3d 159 (4th Cir. 2019), seeks not only to terminate DOJ’s access to, and continued review of, all the emails until a disinterested third party (either a special master, or the court) reviews the communications, but also to bar DOJ from making any decision about the applicability of the attorney-client privilege or the work product privilege.  In addition, the motion also seeks to disqualify the NDGa U.S. Attorney’s Office from any further participation in the investigation of his client because of the abuse his client has already suffered by the government’s review of his privileged communications. He also decries the government’s use of a taint team without having an adversarial hearing (post-execution of the search warrant) at which the defense could have challenged the procedure  We have learned that Judge Batten is handling this matter.  Stay tuned.