Federal crimes are all created by “statute”, meaning laws passed by Congress.  There is no “common law” of federal crimes, which means that virtually all indictments are based on language in a particular statute.  So, the obvious beginning point is to compare the statute’s  language with the words found in the indictment.  Seems clear, right, but I am reminded of several cases over the years where none of the lawyers (on either side) noticed that there was a disconnect between the statutory language and the words in the indictment.

Second, the lawyer needs to figure out what are called the “elements” of the crime.  These are the specific things that the prosecutor will need to prove beyond a reasonable doubt in order to obtain a conviction.   Many statutes contain multiple individual crimes inside this one law, so the attentive attorney needs to drill down to the specific words from the statute that match up with the specific crime alleged in the indictment.  This is often harder than one might imagine, for Congress often writes laws in less-than-specific ways so as to allow for broader application.   One kind of easy way to find the “elements” of a specific crime in a statute is to look for the standard jury instructions that most federal appellate courts  publish.  Some crimes are often used, so the courts have helpfully created jury instructions that set out the basic elements of these “common” federal crimes.  For example, the jury instructions used in the United States Court of Appeals for the Eleventh Ciruct, a few blocks from my office, are here.

Next, the sagacious lawyer will think through whether this particular statute and crime matches up with constitutional principles.  For example, it is well-known that the First Amendment bans many restrictions on free speech.  Does the particular law in question unduly burden the Defendant’s First Amendment rights, or any other constitutional protection.  Federal statutes are often challenged, those challenges rarely succeed, but reading earlier attacks can sometimes highlight some of the law’s weaknesses.

There are also some things the lawyer should NOT do when challenging a federal indictment that alleges a crime.  The caselaw is clear, the attorney cannot challenge the facts prior to a trial.  Believe me, I’ve tried, and failed.  You cannot argue that your client is innocent at the phase of the case where the attorney is filing Pretrial Motions.  The lawyer is not permitted to call witnesses or submit evidence to support a Pretrial Motion that challenges an indictment, for the most part.  Instead, at the Pretrial Motion phase of the case, courts presume that the facts alleged are accurate and true, so the only question is whether those facts properly set out a crime, or whether the crime itself violates some aspect of the United States Constitution.

So, with all of these principles in mind, it’s time for Yours Truly to get back to working on the present cases to see if these indictments can be challenged.

The case from Florida involved a man named Spencer Rozier.  Basically, surveillance videos and rental documents demonstrated that Mr. Rozier had a rather small unit in a private storage facility. He was the only renter, and the lease did not give anyone else access to the unit.  He was observed visiting, and was seen carrying cases of beer, soda cans and water jugs (I’ve lived in Florida, and can attest to the need for constant hydration-my friends used to comment “Paul doesn’t drink a lot, he just drinks all the time”).  The manager also saw others visit the facility along with Mr. Rozier, and these folks likewise carried boxes of beverages. The police raided the facility, discovered drugs inside that both smelled (marijuana) and which appeared to be obvious (transparent container holding cocaine, marijuana “protruding out of a bucket”, digital scales and baggies).  Mr. Rozier also had similar baggies with him when stopped by the police a month later.

Mr Rozier’s legal team pointed to evidence that undercut the idea that he knowingly possessed the drugs found inside the storage unit.  It was not Mr. Rozier’s fingerprints on the containers holding the drugs.  His DNA could not be linked to the storage unit.  While there were videos showing him going into and out from the unit, none of the videos showed him holding the containers inside of which the contraband as discovered.  His son, with whom he lived, was arrested in possession of similar drugs AFTER Mr. Rozier was already in custody.

The general rule is that there has to be “sufficient”evidence in order to support a criminal conviction.  When a case is on appeal, all the breaks and close calls go in favor of the prosecution, the theory being that the jury likely construed the evidence in such a way as to find the person guilty.  But, and here’s the thing I have been fighting about for three and half decades, another line of cases says that “when the government relies on circumstantial evidence, reasonable inferences, not mere speculation, must support the conviction.”  To me, the magic question has always been what is the difference between a “reasonable inference” and something called “mere speculation.”  If I wake up in the morning and the driveway is wet, does that mean I can reasonably infer that it rained while I slept?  Or, is that merely speculation, considering that my garden hose has a leak?

Turning to Mr. Rozier’s case, the Court of Appeals affirmed his conviction, holding that there was enough circumstantial evidence to support a “reasonable inference” that this man had, at the very least, constructive possession of the drugs inside the storage facility.  The evidence also supported the “reasonable inference” that he “knew” what he possessed, in that the pot smelled quite strong, was protruding from a container,  and the cocaine was in a clear bag.

Criminal defense lawyers often talk with clients about whether the prosecution does, or does not, have a good case against the accused persons.  this is yet one more case to use when reminding clients that circumstantial evidence can sometimes be just as strong and difficult to fight against in court.

Many people do not realize what happens in a criminal appeal.  For one thing, the lawyer needs to very carefully winnow down and reduce the issues to only those that have a reasonable chance of success. I often need to take quite a bit of time helping clients (and their families) understand that the appeals process is generally not the court where we argue that the accused person did not commit the crime.  Instead, we are generally focusing on whether an “error” was committed at some point, either by the police, the prosecutors, the Judge or even the previous lawyer who handled the case.  Here is a more thorough explanation of the appellate process.

Now, just because the lawyer files a real good “brief” on behalf of his or her client, that does not mean the attorney will win the criminal appeal.  Most good appellate attorneys also ask for “oral argument.”  An oral argument is when a three-Judge “Panel” from the Court of Appeals convenes to listen to the arguments in 4-6 cases per day.  Most such arguments are only 30 minutes per case, meaning each attorney only gets 15 minutes to make his or her main points.  The main reason oral argument is so valuable, is that it gives the attorney the chance to provide a face-to-face summary for the Judges that refers to the most salient facts and legal principles which the lawyer believes support his or her case.  Another real advantage of oral argument is that it gives the attorney the chance to clear up any misunderstandings that the Judges might have had about the facts or legal process in a particular matter.  I cannot count the number of times that overworked appellate judges failed to understand all the facts or background of a case, and were grateful when I was able to help them better understand what happened when I answered their questions during the oral argument.   That does not mean I will always win, but it helps my case for sure.

My upcoming case is exceedingly complex, a federal post-conviction appeal that has some wickedly complicated procedural issues.  The case is old, and has been  kicking around the court systems for many years, which also means there are lots of hearings, transcripts and earlier rulings which I need to fully understand and can possibly use to my client’s benefit during the oral argument.  To help me prepare, I have scheduled a “moot court” session tomorrow with some other very talented lawyers who handle similar cases.  A moot court is where the attorney basically does a dress rehearsal of the argument, and the other lawyers pretend to be the Judges, asking difficult questions designed to flesh out the weak points in the case.  The goal is to anticipate all the possible questions, so that when the real argument happens, the attorney is pretty much prepared for everything.

I like oral arguments.  I do not have a complete count, but I think this is around the 80th time I have done one of these in my career.  I’ll write more about this case when we get a ruling, which I hope will be prior to the end of this year.

This same process played out in an opinion published earlier today by the U.S. Court of Appeals for the Eleventh Circuit, which has it headquarters here in Atlanta just down the street from our offices. The case stems from the famous bombing that killed Robert Vance, who was an Eleventh Circuit judge at the time he was murdered.

Back in 1972, Walter Leroy Moody was convicted of federal crimes. He bore a grudge, evidence showed. In 1989, evidence demonstrated that Moody sent a mail bomb to Judge Vance’s house, killing the judge and seriously wounding his wife. Moody was later convicted of this and other crimes, and since 1990 he has been litigating every aspect of his cases.

Mr. Moody filed a post-conviction challenge, which got assigned to a judge in Alabama. Moody argued that because his crimes targeted a federal judge in Alabama, the judge assigned to the case should be removed. That judge refused to remove himself from the case, so Mr. Moody appealed to the Eleventh Circuit, the same court Judge Vance sat on when he was murdered. Moody then argued that the appeal should be sent to another set of appeals judges in a different part of the country.

The Court of Appeals rejected both sets of challenges. First, the three-judge “Panel” consisted of judges who were not even federal employees back in 1989 when Judge Vance was killed. Next, they pointed out that the judge handling the post-conviction matter likewise was not a judge at that time, and if Moody’s argument was taken to its logical extreme, there never would be a federal judge who could hear the case.

As a result, Mr. Moody will now be stuck with a judge whose impartiality he challenged. Filing, and then losing a recusal motion, is not a good recipe for success in any lawsuit.

Mr. Robertson seemed to have a life of crime, and was suspected of some robberies. He decided to shorten his sentence, so he agreed to testify against a co-Defendant in order to get a shorter sentence. He claimed that the co-Defendant forced Robertson to do the robbery. The federal prosecutor (who later became a federal Magistrate Judge) got some taped calls demonstrating that Robertson and the co-Defendant were friends, and that there was no “forced” robbery. The prosecutor then retracted the offer of a lower sentence. Robertson and his lawyer then said they had information on two unsolved murders. Here is where it gets murky.

The prosecutor and two FBI agents went to visit with Robertson to discuss the potential information on the two unsolved killings. Robertson’s lawyer was with him during this meeting. Here’s the important part: Apparently, Robertson’s attorney never got anything in writing that set out the ground rules for this discussion. During the meeting, one of the agents mentioned the possibility of getting total immunity for Robertson and putting his family into protective custody.

The deal fell apart, and the prosecutor then indicted Robertson and another man for the same murders Robertson told about. Robertson’s new lawyers argued that he only gave information to the FBI concerning these unsolved crimes based on the promise that he would get immunity. Nor surprisingly, the prosecutor (now a federal Judge himself), denied this. The lawyer did not back up his former client’s claim, it appears. As a result, the Court of Appeals upheld the conviction, ruling that there never was an immunity agreement because there was nothing in writing to back up Robertson’s claim that he believed he was under an immunity agreement.

Entering into plea negotiations is tricky business. None of us is perfect, but all lawyers must remember to try and get as much in writing as possible, so as to protect our clients down the road. Robertson now probably wishes there had been something in writing before he told the FBI that he was involved in two unsolved killings, in that they later prosecuted him by using his own words against him.

The government’s basic allegation was that our client submitted tens of thousands of radiology “reports”, without himself or any other doctor actually looking at the x-ray or other image that was the subject of the report. Some staff members said it looked like he was doing that. Furthermore, the computer system logs only showed him accessing the associated images about 5000 times out or the 72,000 reports issued over his signature. The government’s case was made even better when they demonstrated that some reports were issued while he was on vacation or even on international airline flights.

We fought back against each of these allegations with some pretty good evidence of our own. Very importantly, we wanted to show that he really had “done the work.” Our client had paid a lot of money for a “peer review”, in which another board certified radiologist looked at a random sample of the reports in question. We wanted to use this report to enhance the argument that he really “did the work”. The peer reviewer came to the same conclusions as whoever issued the reports, thus furthering our argument.

This is when the famous “Daubert” case came into play. We knew that the prosecutors would likely try to exclude our peer review expert. They were able to convince both the very able U.S. Magistrate Judge and the District Judge that we should not be able to use the peer review. At trial, we therefore were hamstrung a bit in trying to show that our client really “did the work.”

I’ve done lots of appeals over the years. Many times, I’ve had the honor and privilege of participating in spirited oral arguments in the courts of appeals throughout the country. This appeal was one of the best I’ve ever been in. In ruling for us last Friday, that does not end the story. The prosecution has the option of requesting rehearing, or even asking the U.S. Supreme Court to look at the case. But for now, it is gratifying to know that all our hard work paid off.

Regular readers know how I like to give pats on the back to lawyers who don’t give up, who remember to make objections, and who continue fighting on behalf of their clients. That’s what led to this win, looking ahead, seeing that this was a good issue, and persevering. It’s not over yet, but at least we are now moving the doctor’s case in the right direction again.

Mr. Vana Haile and another man named Beckford were charged with and convicted of conspiracy and attempt to possess with intent to distribute marijuana and cocaine and knowing possession of several firearms in conjunction with their drug trafficking offenses. One of the firearms crimes alleged that the Defendants possessed a machine gun. The government also alleged that a different crime was violated because one of the weapons had an obliterated serial number.

Concerning the machine gun, the Defendants claimed that the trial judge committed an error by failing to instruct the jury that they knew the firearm was a machine gun when they possessed it. The district court instead merely instructed the jury that they needed to find that each defendant “knowingly possessed” each firearm, including the machine gun. The Defendants argued that this instruction was insufficient because the jury was required to find, beyond a reasonable doubt, that the defendants knew the gun they possessed had the characteristics of a machine gun, relying on United States v. O’Brien 130 S. Ct. 2169, 2180 (2010). The Court of Appeals rejected this claim, holding that the Supreme Court merely held that whether a firearm was a machine gun was an element of the offense, rather than merely a sentencing enhancement. The Eleventh Circuit decided that the Supreme Court did not require that a defendant’s knowledge that a firearm is a machine gun must also be so proved.

The Eleventh Circuit reached a different result when it addressed the conviction of Mr. Beckford for knowing possession of a gun with an obliterated serial number. In a case of first impression in that Court, the Eleventh Circuit joined all other federal courts to address the question by holding that that knowledge of the obliterated serial number is an element of the offense. “Beckford must have possessed a gun with an obliterated serial number and known the number was obliterated.” After making this legal ruling, the Court of Appeals then turned to whether there was enough proof that Beckford actually knew the serial number was obliterated. Usually, possession of a gun allows the jury to “infer” that the person possessing the firearm inspected it and should have know the serial number had been removed. However, in Mr. Beckford’s case the evidence at trial was not sufficient to show that he possessed the gun for a period of time during which an ordinary man would have discovered that the serial number was obliterated. The court reversed Beckford’s conviction for the following reasons: “Although the government established that Beckford discussed guns in general before the arrest and that agents found the gun in the flatbed of his truck (out of his reach) after the arrest, the government put forth no evidence that Beckford actually possessed the gun for any significant length of time. The government essentially proved only that Beckford had constructive possession of the gun at the time of the arrest. But this constructive possession alone cannot be sufficient to establish Beckford’s knowledge of the obliterated serial number because, if it was sufficient, the standard would eviscerate the knowledge element of [the statute] altogether.”

Again, it is important to always challenge every aspect of the government’s case when going to trial in federal court. Who “knows”, the Court of Appeals might agree with the defense, as in Mr. Beckford’s case.

Judge Barkett first notes her amazement that the 11th Circuit wouldn’t join the majority of courts that allow such testimony. She sets out that all other federal courts of appeal, and 42 out of 50 states permit such testimony.

The many problems with eyewitness identification testimony, and recent social science research in this area, both call out for a new view, according to Judge Barkett. In the 30 years since the 11th Circuit outlawed such expert testimony, there have been over 2000 studies concerning the unreliability of eyewitness identification testimony. Judge Barkett quoted from a decision of another federal appellate court demonstrating that “the conclusions of the psychological studies are largely counter-intuitive, and serve to ‘explode common myths about an individual’s capacity for perception.'”

The many studies in this area reveal truly disturbing aspects of identification testimony. First, it appears that eyewitness misidentification is the leading cause of false convictions in this country. Studies in both experiments and real-world settings show that eyewitnesses get it wrong about 1/4 to 1/2 of the time. Second, there is a very high consensus among researchers in this arena that the procedures used by the police can improperly impact what an eyewitness “remembers”. A major study conducted by the New Jersey Supreme Court essentially said that the police always influence witnesses during lineup and other procedures during which a potential suspect is displayed to the eyewitness. However, when the policeman conducting the process does not know if the suspect is even in the lineup (which is called a “blind” method), the rate of accuracy doubles! As Judge Barkett notes, jurors need to hear from experts who know about this research because the average person is unaware that “even the best-intentioned non-blind administrator can act in a way that inadvertently sways an eyewitness.”

Judge Barkett also outlined the process of “confirmatory feedback” discussed in the many studies of eyewitness identification testimony. In this processs, the witness first makes a tentative identification, the suspect is arrested, and the witness sees the suspect at the defense table or in pictures. By the time of trial the eyewitness’s identification is “confirmed” in his or her mind, not because he or she is more certain, but because the more they see the defendant in court the more likely they are to believe that the defendant is the person who committed the crime.

The literature in this area also describes another counter-intuitive aspect of eyewitness identification: the higher the stress in a situation, the less likely a person will make an accurate identification. Most people tend to believe that a victim of a crime will “never forget the face” of the perpetrator. Studies show just the opposite, that in such high-stress situations victims rarely focus on or accurately remember the facial features of the person who is committing the crime.

Judge Barkett concludes her dissent by explaining that simply cross-examining an eyewitness is insufficient. “In short, scientific research reveals that, in particular circumstances, an eyewitness’s testimony suffers from intrinsic flaws that are unknown to most jurors and undetectable through the typical modes of examining lay witnesses”.

It is sad that our local appellate court continues to stick its head in the sand in this area. We hope that lawyers and judges continue to press ahead in helping jurors understand some of the counter-intuitive aspects of eyewitness identifications.

Double jeopardy protects against multiple prosecutions for the same offense. Collateral estoppel, on the other hand, teaches that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. In other words, if there was an earlier criminal case that the Defendant won, and if the jury in that previous case “necessarily determined” a certain fact in the Defendant’s favor, then there cannot be a later case against that same Defendant if the subsequent case requirs proof of that same fact. Therefore, the big issue in this context almost always is whether the earlier trial involved a fact or issue that was “necessarily determined” in the defendant’s favor.

In Valdiviez-Garza, he had previously been charged with illegally re-entering the U.S. after a previous deportation. He won that case by arguing that he was not an illegal alien because he obtained citizenship through his father, who was also a citizen. Several years later, he was prosecuted again for illegally entering the country, and this later case also required the prosecutor to prove he was not a citizen. However, he got convicted the second go-round. He appealed to the Eleventh Circuit, and they agreed that he should have never faced the second prosecution because of the collateral estoppel rule. The only issue in his first trial was whether he was an alien, and he won. There never should have been a second prosecution, because the issue of his alienage had already been determined in the earlier trial.

This is a rather rare case. It is refreshing to see the courts remember that the government should only get one whack at a Defendant, otherwise we could all be in jeopardy time and time again.

The Federal Rules of Criminal Procedure make it crystal clear that while the prosecutor and defense attorney can negotiate toward a plea agreement, the Judge may not in any way participate in these discussions. There are three main reasons for this prohibition: to avoid coercing a defendant into pleading guilty, to protect the integrity of the judicial process, and to preserve the Judge’s impartiality after the negotiations are completed. The Federal Rules are quite different than what takes place in many State courts, where Judges regularly get involved in the plea discussions.

The Eleventh Circuit also has a rule holding that judicial participation in plea discussions amounts to “plain error.” There are no exceptions to this rule, and a Defendant does not have to object or even show any prejudice he suffered from the judge’s improper intrusion into the plea discussions. This is one of the few areas where the appeals court here in Atlanta has a rule that is more friendly to criminal defendants than other courts around the country.

In the Davila case issued this afternoon, the Federal Magistrate Judge conducted a hearing to look into Mr. Davila’s dissatisfaction with appointed counsel. Davila was unhappy because the appointed lawyer only wanted to talk about a potential guilty plea. The Magistrate Judge told Davila that perhaps a plea was his best option, there might not be any defenses, and a plea might be a good idea especially because of Davila’s long criminal record.

On appeal the Eleventh Circuit reversed the sentence and conviction based on the Magistrate Judge’s comments. The appellate court held that these comments violated the prohibition against participation in plea discussion, because the Magistrate basically implied that Mr. Davila would certainly get a longer sentence if he did not plead. The Eleventh Circuit reversed even though it noted that the Magistrate may well have only intended to help Davila, not harm him. Additionally, the rule in the Eleventh Circuit is that when the case gets back to the District Court, it must be re-assigned to a new Judges who had no role in the earlier proceedings.

Two brothers (we will call them #1 and #2) owned separate jewelry stores here in Atlanta. Brother #1 was caught in an undercover sting operation selling $22,000 in jewelry to a person he thought was a drug dealer. He agreed to accept more than $10,000 in cash from the person he thought was a drug dealer, and also agreed to not file the IRS forms that are required in this situation. Brother #1 was charged with and convicted of money laundering.

The government also charged the corporation that owned Brother #2’s store with similar crimes. This was one of those relatively rare situations where the prosecutors went after a corporate entity. The prosecutors got convictions against the corporation that owned #2’s store based on the fact that some of Brother#1’s dealings were done in the store owned by #2.

The government convinced the trial judge to impose a total financial penalty of over $1.9 million against the corporation that owned the store operated by Brother #2 in a case where Brother #1 sold $22,000 in jewelry to an undercover agent. The judge ordered a $100,000 fine, restitution of $22,000 and forfeiture of the entire jewelry inventory, valued at over $1.7 million.

The corporation appealed to the Eleventh Circuit, sensibly arguing that this financial penalty was grossly disproportionate with the crime and the harm caused by Brother #1. The Court of Appeals disagreed, holding that this was OK because these were serious crimes and Congress had authorized substantial financial penalties in such cases.

This case is a lesson for lawyers who handle serious federal criminal cases. We need to fight not only jail sentences, but also battle against the government’s increasing inclination to try and bankrupt our clients and everyone near them.

Mr. Friske lives in Wisconsin, but his friend (Erickson) got busted in Florida for drug crimes. Law enforcement listened to calls Erickson made from jail to Friske where he asked the latter to do a “repair job” and remove “three things” buried near Erickson’s pool. Agents got there before Friske, and found $375,000 buried in that location. Later, they observed Friske coming away from the pool area, covered in dirt. Friske made some baloney statements to the police, and later conceded he was just “trying to help a friend.”

The government indicted Friske for attempting to obstruct an official proceeding by attempting to hide and dispose of assets involved in a forfeiture case, in violation of 18 U.S.C. §1512(c)(2). The Eleventh Circuit joined other appellate courts by holding there is a “nexus” requirement in this statute which requires a connection between the obstructive conduct and the proceeding in question. Stated another way, “if the defendant lacks the knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.”

The Eleventh Circuit then turned to the evidence in Mr. Friske’s trial. They noted that he certainly acted “suspiciously” in digging around Erickson’s pool shortly after getting the recorded calls. However, there was not one “scintilla” of evidence that in performing these suspicious acts Friske knew of a forfeiture proceeding against Erickson’s property. As a result, the appellate court reversed the convictions based on the insufficiency of the evidence.

We are always pleased to see courts uphold the law and require that prosecutors prove their case. Likewise, we think this ruling makes great sense, so as to prevent the conviction of innocent persons.

Don Siegelman was the Governor of Alabama. Richard Scrushy was the founder and Chief Executive Officer of HealthSouth. The case stemmed from allegations that Governor Siegelman placed Scrushy and others on a State Board in return for a $500,000 payment. The government charged them with a series of crimes relating to alleged public corruption. Specifically, Siegelman and Scrushy were alleged to have violated 18 U.S.C. §666(a)(1)(B), the law that prohibits bribery involving organizations that receive federal funds. The government also charged the defendants with “honest services” mail fraud, and conspiracy to commit same. Finally, Governor Siegelman was charged with obstruction of justice.

While the case was on appeal, the Supreme Court issued the well-known decision in US v. Skilling, a ruling that restricts the scope of the federal “honest services” branch of mail and wire fraud. Each defendant contended that Skilling changed the landscape, and that their convictions must be reversed. Likewise after the verdicts, the defendants uncovered what appeared to be troubling evidence of juror misconduct and exposure to extrajudicial materials.

A Panel of the Eleventh Circuit affirmed most of the fraud convictions and rejected the claims of juror misconduct. Along the way, the Panel made a few observations that are noteworthy for future cases.

For the charges alleging violations of §666, the Panel held that while there likely must be a quid pro quo between the bribery payor and the recipient, and that while there must be an explicit agreement that the recipient do something in exchange for the bribe, such an explicit agreement need not be express. In other words, the government does not need an email or a recorded conversation between the payor and recipient in order to get a §666 conviction.

The Panel affirmed some, but not all, of the post-Skilling “honest services” fraud convictions. Recall that Skilling restricted the honest services theory to traditional bribery/kickback schemes. Here, because the indictment alleged just such a scheme for many of the counts, the Panel affirmed the convictions on these charges. However, two charges alleged that Scrushy did not bribe anyone, but instead engaged in “self-dealing.” The Panel reversed these convictions based on insufficient evidence that either defendant committed these crimes.

Perhaps some of the most sensational aspects of this case have been the post-verdict revelations of possible juror misconduct. Defendants uncovered evidence that the jurors had been exposed to certain extrajudicial information. Furthermore, their legal teams received anonymous emails indicating that some of the jurors began deliberating before it was time to do so, had made up their minds long before the evidence was closed, and that some other jurors did not even participate in the deliberations.

The Panel rejected all the juror misconduct claims. First, the Eleventh Circuit held that the sort of extrajudicial information to which this jury was exposed was innocuous to the point where it did not affect the case. Second, the panel resorted to the rule that courts will rarely, if ever, intrude on a jury’s deliberations. Because of this reluctance, the Panel held that the anonymous emails were insufficient to result in a new trial.

This has been a sensational case, with law and politics colliding. I have a feeling it’s not over yet.

Following a car chase in Atlanta, Georgia that culminated with Mr. Williams receiving a gun shot to an eye, Williams was charged with assaulting three federal marshals. Williams entered a guilty plea, but withdrew it due to the potential sentence. He then testified at trial that he hadn’t known his pursuers in unmarked vehicles were law enforcement officers.

The sentencing judge relied on a presentence report that recommended he receive three points off for acceptance of responsibility. She explained, “I think particularly in this case where he was shot, his ability to have his own trial and tell his story was important. I mean, I consider that an important part of my job, is to provide trials to people who have a story that legitimately needs telling.” Explaining that she would not punish Mr. Williams for exercising his constitutional right to trial, she awarded two points off for acceptance of responsibility. The Eleventh Circuit held that it was “erroneous to award a reduction for acceptance of responsibility when a defendant denies guilt in the face of evidence to the contrary” and Mr. Williams had done exactly that by “admitt[ing] he was guilty initially, but withdr[awing] his plea” and then testifying to his innocence “despite overwhelming evidence to the contrary.”

However, “[t]he district court found that Williams’s testimony did not contradict the testimony of the federal marshals.” In determining whether Mr. Williams had committed perjury, requiring the obstruction of justice enhancement, the sentencing judge “did not find Mr. Tywan Williams’ testimony to be materially different from any of [the three witnesses who were at the scene.]” She also explained: “in light of the fact that this whole incident resulted in him being shot in the head, he, I think, is entitled to some leeway regarding his memory of the sequence of events.” She was unable to make a finding that he committed perjury “based on the testimony that [she] heard in comparison with the other testimony at trial and what [she knew] about this.” Despite the district judge’s greater contextual knowledge, the Eleventh Circuit held that “Williams’s testimony that he did not recognize his pursuers as federal marshals is irreconcilable with the record” and, as such, perjury requiring an enhancement for obstruction of justice.

The Eleventh Circuit’s opinion is available here.

In Davis, the defendant was a passenger in a routine traffic stop in Alabama. He gave the police officers a false name. When asked to exit the vehicle, Davis removed his jacket and left it in the car, then was taken toward a group of bystanders. The bystanders provided his real name, leading to Davis’s arrest for giving a false name. In the search incident to his arrest, the officers found a gun in the jacket, which was still in the car. Davis was convicted of possession of a firearm and sentenced to more than 18 years.

As we explained in this post, the Supreme Court decided Arizona v. Gant in April 2009. The Court held that police are authorized “to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” unless some evidence related to the crime of arrest may be in the vehicle. This decision rendered the search in Davis unconstitutional.

In applying Gant to searches predating the decision, the Ninth and Tenth Circuits disagreed on whether the exclusionary rule must be applied to searches now rendered unconstitutional. The Eleventh Circuit joined the Tenth in holding that the good faith exception prevented exclusion of evidence from such searches. The Fifth Circuit has held similarly prior to Gant, but the Seventh Circuit was skeptical.

We hope the Supreme Court protects defendants’ constitutional rights and reverses the Eleventh Circuit’s decision.

The Eleventh Circuit’s opinion in Davis is available here.

The petition for certiorari is available here.

The brief in opposition is available here.

The full opinion in United States v. Villarreal is available here.

The defendant, a man of many names whom the court referred to as Emmanuel, is the American born-and-raised son of Charles Taylor, a former president of Liberia who is currently on trial for crimes against humanity in the Special Court for Sierra Leone. President Taylor put Emmanuel in charge of the “Anti-Terrorism Unit,” which was known in Liberia as the “Demon Forces.” In that role, Emmanuel tortured many individuals between 1999 and 2002. Twelve pages of the Court’s 87-page opinion recount horrifying details of that torture.

The Court justified the application of § 924(c) to crimes of violence committed extraterritorially by arguing that the plain language of § 924(c) provides for its application to any crimes that “may be prosecuted in a court of the United States.” Because the Torture Act, which applies extraterritorially, may be prosecuted in federal courts, the Court reasoned, “a § 924(c) charge can arise out of extraterritorial conduct that is found to be in violation of the Torture Act.”

In so holding, the Court glossed over the general presumption that statutes apply only domestically, with extraterritorial effect only where congressional intent is clear. Without citing any case law approving the application of § 924(c) to conduct outside the Unites States, the Court distinguished U.S. v. Small, a Supreme Court case holding that the word “any” in a different federal criminal statute could not overcome that Congress normally legislates with only domestic concerns in mind.

We believe this case would be a good candidate for the Supreme Court to grant certiorari if Emmanuel appeals this decision. If that happens, we will provide an update on the case.

The full opinion in U.S. v. Belfast is available here.

The lengthy majority opinion began with an account of Mr. Irey’s criminal conduct and case. In short, Mr. Irey repeatedly traveled to Cambodia and China, where he bought underaged Cambodian girls to abuse in horrific ways that the Court said set Mr. Irey apart from “many examples of man’s inhumanity” that steadily flow through the Court of Appeals. During that abuse, he produced “some of the most graphic and disturbing child pornography that has ever turned up on the internet.” He later distributed those images, which have become widely known as “the Pink Wall series.” He was charged with and pleaded guilty to one count of violating 18 U.S.C. § 2251(c), which prohibits producing such images of child pornography elsewhere, then transporting them into the United States.

Under the Sentencing Guidelines, the adjusted offense level for Mr. Irey’s conduct would have led to an advisory sentence of life imprisonment. However, the statutory maximum for his crime as charged was 30 years. For that reason, the Guidelines range was 30 years.

At sentencing, the defense introduced the reports and testimony of two experts in the fields of psychology and psychiatry to address Mr. Irey’s diagnosis of pedophilia. The court also heard from Mr. Irey’s friends and family, who characterized him as a “hero.” The government did not introduce any experts or other witnesses. The sentencing judge focused on Mr. Irey’s diagnosis and otherwise good character in sentencing him to 17½ years in prison, followed by a lifetime of supervised release.

The majority opinion extensively reviewed the history of sentencing law, concluding that it must apply an abuse of discretion standard to its review. The Court held (and the dissenting judges disagreed) that an appellate court may, in its review, itself weigh the 18 U.S.C. § 3553(a) factors to be used in imposing a sentence to determine whether the district court’s balancing of the factors was substantively unreasonable. Based on its own protracted analysis of the § 3553(a) factors, the Court held that the district court’s major variance from the Guidelines sentence was substantively unreasonable.

While the sickening facts in this case make a 17½ year sentence surprising, we worry that the law that the Eleventh Circuit had to make to substitute its reasoning for the district court judge will negatively impact sentencing decisions in this circuit. As Paul Kish commented to the Daily Report, “It is a message to district judges that there are boundaries beyond which you cannot go or you will incur the wrath of certain judges whose views differ from yours.” Judges will be less likely to stray from the Guidelines, despite their advisory status since U.S. v. Booker.

The full opinion in U.S. v. Irey is available here, along with concurring and dissenting opinions, totaling more than 250 pages.

The Daily Report article regarding this case is available here.

The supervised release revocation statute is at 18 U.S.C. § 3583(e)(3). It permits a district court to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release” upon a finding “by a preponderance of the evidence that the defendant violated a condition of supervised release.”

In 2000, in Apprendi v. New Jersey, the Supreme Court held that, other than prior convictions, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In 2004, the Supreme Court explained in Blakely v. Washington that the “statutory maximum” is the maximum sentence a judge may impose based upon the facts reflected in the jury verdict or admitted by the defendant.

The Eleventh Circuit distinguished the revocation of supervised release from Apprendi and Blakely. The Court reasoned that the defendant was already convicted of the underlying offenses and was granted only conditional liberty, depending upon his obeying the limits of his supervised release. In holding that a violation of supervised release need only be proven to a judge by a preponderance of the evidence, the Court joined six other circuits.

The Cunningham opinion is available here.

The majority opinion by Justice Breyer is available here, along with a dissenting opinion by Chief Justice Roberts, joined by Justices Stevens, Scalia, and Kennedy.