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.
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?
Kelly v. United States and the need to define "property" in the Mail Fraud Statute. The Court can no longer delay with the explanation, "We'll cross that bridge when we come to it."
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: Amanda Clark Palmer
Partner Robin Loeb recently wrote about the first COVID-related civil litigation, and now we are seeing some of the first COVID-related criminal prosecutions. You are probably thinking that the feds are going after those who stockpile hand sanitizer or toilet paper and then charge ridiculous markups, or “snake oil salesman” who are hawking things they claim cure the coronavirus. But you’d be wrong. No, the feds are throwing the book at Christopher Perez for posting a threat on Facebook claiming he paid someone to spread the coronavirus at grocery stores in his area to keep people home (and therefore limit the spread of the virus.) To be clear, his Facebook post was completely false. He hadn’t paid anyone, and no one had gone to any grocery stores to “spread” the virus. Christopher may have had laudable goals but incredibly poor judgment when it comes to carrying out his goals. But was it a crime? Should he go to prison?
It’s worth reading the text of his Facebook post for context. His post stated “PSA!! Yo rt GROCERY STOREMERCADO!! My homeboys cousin has covid19 and has licked every thing for the past 2 days cause we paid him too . . . big difference is we told him not to be these fucking idiots who record and post online . . . YOU’VE BEEN WARNED!!! GROCERY STORE on nogalitos next ; )” This post was on Facebook for 16 minutes before he took it down. And FWIW no grocery stores closed or took any action based on the post – they were waiting confirmation of the validity of the threat before planning any response.
The U.S. Attorney’s Office for the Western District of Texas (you were thinking this must have been Florida, weren’t you?) charged Christopher with one count of violating 18 U.S.C. § 1038. What are the elements of this charge? This statute (called “False information and hoaxes”) criminalizes those who “engage in any conduct with the intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of” and then gives several different other statutes. In Christopher’s case, the complaint alleges that his hoax involves “biological agents” as defined under 18 U.S.C. § 175. That statute says it is illegal to develop, produce, stockpile, transfer, acquire, retain, or possess any biological agent, toxin, or delivery system for use as a weapon. The statute further defines “for use as a weapon” as use for other than prophylactic, protective, bona fide research, or other peaceful purposes.
Query then how the government can prove their case against Christopher when his stated purpose for using the virus wasn’t for use “as a weapon”? If one believes Christopher, he actually had a peaceful – albeit hair-brained – purpose behind his post: to save others from being exposed to the virus by scaring them away from the grocery store.
Another problem for the government is the phrase “reasonably be believed.” First of all it is on Facebook, so the method of posting the information itself already leads most people to doubt its reliability. According to a 2019 article from fortune.com, Facebook removed over two billion fake accounts in the first quarter of 2019! How can the government even establish it is his Facebook account and he is the one who posted the content? Well, actually Christopher helped the government with that one – he apparently admitted to agents that it was his Facebook account and he did put up that post. (Bringing to mind one of Ed Garland’s favorite sayings “A fish wouldn’t get caught if he didn’t open his mouth.”) So fine; they can establish it was him who made the post. They still have to prove – beyond a reasonable doubt – that his post would “reasonably be believed.” This is where jury selection is really important; an ideal juror for the defense would be someone who already has an inherent distrust of what she reads online, especially on social media. Then there is the content of the post itself. The claim is so outlandish it is hard to believe anyone would take it seriously at all, no matter where it was posted. The reader would have to believe: 1) that someone would go around a grocery store and be able to surreptitiously lick every item in the store for two days without being noticed, 2) that the same person would be willing to go around and purposefully try and infect other grocery story shoppers because he’s that much of a jerk, and 3) that the same person would be part of a conspiracy with Christopher; that together they hatched this inane plan to infect as many other people as possible by licking grocery store items. How can the government argue this post would reasonably be believed by anyone? Isn’t that belied by the fact that the grocery store itself didn’t take any action upon learning of the content of the post?
And there’s more: How does the First Amendment figure into this? Shouldn’t Christopher be able to exercise his First Amendment right to free speech? Of course he should, but it doesn’t mean his right to free speech is completely unrestricted. The U.S. Supreme Court has held that certain, discrete categories of content-based restrictions do not violate the First Amendment (for example defamation, “fighting words”, yelling ‘fire’ in a crowded theater; child pornography, and fraud just to name a few.) A separate, but similar statute, is 18 U.S.C. § 35, the so-called “bomb hoax” statute. This statute criminalizes conveying false information regarding an attempt to destroy, damage, or disable aircraft. In 2012, the Eighth Circuit Court of Appeals ruled that restrictions on speech in this statute did not violate the First Amendment because this statute criminalized a “true threat” and true threats are exempted from First Amendment protection. It seems likely that a First Amendment challenge to the statute in Christopher’s case would also be viewed as exempt from First Amendment protection.
If the government can overcome their evidentiary burdens and convince a jury that Christopher did in fact violate the law, what’s the likely punishment? The maximum punishment under the statute is five years, but that is rarely a helpful guideline to estimate the likely sentence. Instead, we look to the Sentencing Guidelines. In this case, a violation of 18 U.S.C. § 1038 falls under USSG 2A6.1. The base offense level is 12. There are some aggravating factors that don’t seem to apply in this case (such as, adding 6 levels if the offense involved any conduct evidencing an intent to carry out the threat.) The Guidelines say to decrease the base offense level by 4 if no aggravating factors apply and the offense involved a “single instance evidencing little or no deliberation.” On the few facts that are gleaned from reading the DOJ’s press release and the complaint filed by the investigating officer, this Guideline provision sure seems to apply to Christopher’s case. Meaning he ends up with a Guideline level of 8. If one assumes he is a Criminal History Category I, a Level 8 is in Zone A, with a suggested sentence range of 0-6 months (which could be served on probation or home detention).
It will be interesting to track this case over the next several months to see what the outcome is. Will Christopher plead guilty? Will he be offered pretrial diversion? Will he go to trial? We will check back in with Christopher periodically to see how his case is progressing. In the meantime, here is the DOJ's Criminal Complaint.
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.