Way back in 2013, folks who worked for and with Governor Chris Christie of New Jersey purposefully messed with the traffic pattern on the George Washington Bridge in order to punish the mayor of a nearby town who would not  support Christie’s reelection bid. This led to four days of gridlock on the streets surrounding the bridge, after which the original pattern was restored. Bridget Kelly was the Governor’s deputy chief of staff, and along with William Baroni, came up with a bogus traffic pattern study as the so-called rationale behind the lane close-downs.  The two officials were later charged with federal crimes for supposedly hatching and then executing the plan to mess with the traffic pattern as part of political “payback”.

Justice Elena Kagan wrote the unanimous opinion that threw out the convictions that federal prosecutors had obtained against Mr. Baroni and Ms. Kelly.  The court ruled that although the officials’ actions were an “abuse of power,” they did not violate the federal fraud laws because the “scheme here did not aim to obtain money or property.”

The Defendants were fired from their jobs, and then prosecuted by seemingly over-zealous federal prosecutors.  The District Judge imposed prison sentences, and the Court of Appeals upheld their convictions, reasoning that the Defendants engaged in deception when they lied about the traffic study to justify the change to the toll lanes, and those lies deprived the agency operating the bridge of the right to control the lanes and some piddling amount of money for an extra toll collector and work done by a traffic engineer.

In reversing the convictions, the Supreme Court reminded all of us that there are two parts of a federal fraud case.  First, the government needs to show “that Baroni and Kelly engaged in deception,” and second, that they did so to obtain property. Unless bribes or kickbacks are involved (which were not at issue in this case), federal fraud laws are not some always-ready tool to fight public corruption; they apply only when a Defendant is trying to obtain money or property.

In reversing the convictions, the Court honed in on the second element, whether deception was done in order to get “property.” The court rejected the government’s argument about the toll collector and traffic engineer, because getting this “property” simply was not the point of the alleged scheme.  The Defendants weren’t trying to use the toll collector’s services or the data that the traffic engineers collected; the cost of the employees’ labor was simply an “incidental byproduct” of their scheme.

The big part of the case comes from the statements in whichthe court slapped down the federal government’s seemingly never-ending quest to “use the criminal law to enforce (its view of) integrity in broad swaths of state and local policymaking.” The Court did not say that the Defendants acted properly, far from it.  However, the court concluded, “not every corrupt act by state or local officials is a federal crime.”

The main federal gun law, (18 U.S.C. §922(g)) says it is unlawful for anyone who falls into one of the prohibited categories to “…possess in or affecting commerce, any firearm or ammunition.”  Then, a separate sentencing provision (18 U.S.C. §924(a)(2)) says the accused person is liable to a prison sentence if he or she “knowingly” violates §922(g).  Over the years, the Courts ruled that there are three elements of this crime: 1) prohibited status, 2) possession, and 3) that the possession was in or affecting commerce.  Also, over the years, prosecutors convinced the courts that the word “knowingly” only applies to one of these elements, namely, the possession requirement.  As a result, there are lots of prior cases ruling that prosecutors don’t need to prove that the accused person “knew” he or she was a prior felon, illegal immigrant, fugitive, or a dope smoker.  

Justice Gorsuch was brought up to the Supreme Court a couple of years back from the federal appellate bench.  While he was a regular old federal appellate judge, he wrote a couple of opinions noting the three elements of the federal gun law.  He criticized prior cases for reading the word “knowingly” as “leapfrogging over the very first § 922(g) element and touching down only at the second” because that interpretation “defies linguistic sense—and not a little grammatical gravity.”  Waxing a bit more poetically, he also said: “Congress gave us three elements in a particular order. And it makes no sense to read the word ‘knowingly’ as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.”

Blushing or not, the Supreme Court last Friday agreed to hear a challenge to the gun law that appears to be almost entirely premised on Justice Gorsuch’s early writings.  The case is United States v. Rehaif.

Here’s what happened before the big Court accepted the matter.  Mr. Rehaif was from the Middle East, and was a student at a Florida university.  The school basically kicked him out, notifying him of this by sending him a couple of emails.   Because he was no longer enrolled, his immigration status  changed from legal to illegal.  He was confronted by some federal agents and freely told them he had some ammunition and had been shooting at a gun range recently.  The feds prosecuted him for being an illegal alien in possession of a firearm. His highly capable Federal Public Defenders asked the trial judge to tell the jury that the prosecution needed to prove that Mr. Rehaif “knew” of his illegal status, which sounds like a not-too-bad defense since no one confirmed he had received the emails and his supposed “confession” was heard by only a single agent and unrecorded.  The judge would not do so, he was convicted, and the Eleventh Circuit kicked him to the curb as well.  His PD kept fighting (love it when lawyers don’t give up) and, quoting extensively from then-Judge Gorsuch’s earlier writings, got the Supreme Court to grant review last week.

This case can be a big deal, for a number of reasons.   First, there were apparently over 8000 federal gun cases last year.  Second, this might be a chance for the somewhat new Justice Gorsuch to convince other members of the high Court that the laws should be applied as written, not merely as many prosecutors would like them to apply. Finally, it might provide some protection for people who have or are around firearms and who fall into one of the “prohibited person” categories.

So, the Supreme Court has a new case that was argued today that might be the vehicle through which they change this dumb old dual-sovereignty double jeopardy rule. The case is Terance Gamble v. United States.  The case began in 2015, when Gamble was pulled over by police for having a faulty headlight. The cop smelled weed, searched Gamble’s car, and found two bags and a gun.  The great State of Alabama charged Gamble with violating state drug laws and with being a previously convicted felon in possession of a firearm. Mr. G. got one year in prison.  Then the feds picked up the exact same case, and brought the exact same charge of being a felon in possession of a firearm.  Mr. G. got almost 4 additional years for the federal case, was understandably pissed, and appealed.  In kind of a surprising move, the Supreme Court finally accepted the case for review.

In their filings, the feds say that the separate sovereigns doctrine should remain unchanged. They point out that the actual words in the double jeopardy clause bar successive prosecution and punishment for the same “offense”, not for the same conduct. When the Constitution uses the term “offence,” goes the feds’ argument, the double jeopardy clause is referring to the violation of a law. Therefore, focusing on how the same conduct can violate two different sovereigns’ laws, the feds claim this means that it therefore constitutes two different offenses, which can then be punished and prosecuted separately. The feds blame it on James Madison and the other brilliant individuals who put our Constitution together, arguing that if the Framers had wanted the double jeopardy clause to apply more broadly, they would have used the term “conduct” or “acts” rather than “offence.”

Very able counsel for Mr. G. look at the words in the Constitution very differently.  For starters, they point out how nothing in the text says anything at all about any exception.  They essentially are saying “what confusion is there when the Framers said ‘thou shalt not go after a guy twice for the same offense’?”   Mr. G.’s team stress that the text of the clause bars prosecution of the “same offence,” without suggesting that two prosecutions for the same offense would be acceptable as long as they are prosecuted by two separate sovereigns. Instead, Mr G.’s lawyers noted that Congress previously considered but rejected an exception that would have allowed the federal government to prosecute a defendant even after he’d been convicted for the same offense under state law.

Mr. Gamble also raises some additional arguments, pointing out that the  separate sovereigns doctrine is inconsistent with the purpose of the double jeopardy clause. This dumb rule “hardly serves the deeply rooted principles of finality and fairness the Clause was designed to protect,” especially when it would still require two trials and could potentially lead to double punishments.

Another argument by Mr. G. points out that when the Supreme Court adopted this dual sovereignty rule, the Court apparently  believed that duplicative prosecutions by state and federal governments would be “exceedingly rare.”  The dual sovereignty rule was created on those “old days” when federal criminal law was very limited. However, as anyone foolish enough to read this blog knows, federal criminal law has expanded significantly during the past half-century.  As Mr. G. observes, that expansion is “far beyond what the judicial framers of the separate-sovereigns exception could have possibly imagined.” Based on that half-decade expansion, “nearly every crime can be charged both in state court and in federal court.”

Fairness should be the bedrock principle for any decent criminal justice system.  Letting a prosecutor take a second bite at the apple for the exact same crime is the opposite of fairness.  As I mentioned when taking about the first time I encountered this rule, if “we cheated ’em fair and square the first time”,  in fairness the other side should not get the chance for a second whack at the Defendant.

Our beloved U.S. Constitution has something called the “appointments clause.”  Go to Section 2 from Article II, look at the second clause if you are that interested.  Basically, it says that anyone who is an “officer” of the U.S. must be appointed to his or her position by either the President, by the “Courts of Law”, or by the “Heads of Departments.”  So far so good, a reasonable rule designed to make sure that high-ranking officials who get to make important government decisions are given their job by someone who has to answer to the People, or Congress.

Many federal agencies have gazillions of rules, and love to go after people and companies who supposedly violate those rules, regulations, or even a statute actually enacted by our elected representatives in Congress.  Again, a good idea, go after law-breakers.  However, more and more federal agencies now have set up their own miniature court systems for deciding if a person or company violated the rules.  Again, not a bad idea completely, for these mini-courts are usually less formal (and less expensive) than taking a case to “real” federal court.  However, the SEC took this process to a whole new level, and got spanked today by the Supreme Court.

Recall, only certain people get to appoint an “officer.” The SEC figured it would be OK for its “staff” to appoint the ALJ, who remember is the individual deciding if Mr. or Mrs. Public violated the SEC’s rules. Kind of reminds me of the fox guarding the henhouse.  Bottom line from today’s decision, the “staff” are not allowed to make the appointment of the ALJ.  A better aspect of the ruling is that if validates the position taken by Mr. Lucia’s lawyers.  They had challenged this “insider judge” from the very beginning, and Mr. Lucia now gets a new hearing before a new, and properly appointed, ALJ.  Regular readers of this and my web site know that this is the same process I use when pressing an appeal or post-conviction matter for a client in a criminal case: get a reversal to change the dynamic in a case, and possibly get a better result because the other side is reluctant to go back to court after getting spanked by the upper reaches of the judiciary.

One final note on the “I am a federal Judge” reference in the title of this post.  Federal judges are appointed by the President.  Magistrate Judges, on the other hand, are appointed by the federal judges.  Congress enacted a law that basically said a Magistrate Judge is a “federal judge.”  One of my favorite federal Magistrate Judges would tell recently arrested clients that the law requires that the person must make an initial appearance in front of a “federal judge”, and that “I AM a federal judge.” I recall a saucy client who turned to me and said: “Good thing he said that, I’d have never guessed it was the guy on the bench wearing a dress.”

Westby is a bit more interesting, and salacious, than my aborted party that one Saturday eons ago.  First, there was someone named either “Peaches” or “Tasty” identified by some of the partiers as the person who told them about the shindig.  Also, when the cops arrived, some of the women were selling lap dances, some had money hanging out from their undergarments, and most shockingly, the officers smelled marijuana.  

Putting to the side that parties (the good ones anyway) get interrupted all the time when someone calls the police, the bigger issue is the extent of the Fourth Amendment’s probable cause requirement in similar circumstances. The police officers argue that the question is whether, in light of all the facts, the officers could have reasonably believed that the partygoers were trespassing. The police point out that the party was in an apparently vacant house, it was nighttime, when they entered they observed the scantily clothed women who were seemingly removing their garments in exchange for currency, everybody scattered like cockroaches when the cops arrived, there were marijuana smells everywhere, and the homeowner told police that they didn’t have permission to be there. The District of Columbia says that officers should not be required to determine exactly what a suspect knows before arresting him, for just about everybody professes innocence. The government and the officers say that if the lower court rulings are allowed to stand, it will “have a broad chilling effect on law enforcement officers when making on-the-scene credibility judgments, adversely affecting their everyday ability to do their jobs and protect the public.”

I rather doubt the the partygoers will win, for the Court tends to protect officers who are on the scene and need to make split-second decisions.  However, the right to be free from an unreasonable arrest is substantial, and the next time, it could be one of the Justices getting down on a Saturday night when the law comes busting in.  I just hope Peaches is OK.

Without guilty pleas, the criminal justice system would likely collapse.  That is one big reason why this case is important.  Mr. Class, foolishly representing himself, pled guilty to a federal crime of possessing “readily available” firearms on the property of the U.S. Capitol grounds.  Now, I happen to agree with a law that says no one should have a firearm on such property, but Rod thought he was within his rights.  Nevertheless, he pled guilty, got a “time served” sentence, which normally would have ended the situation.  But, as I mentioned above, Rod is an “interesting” person.  He wanted to continue his fight against this particular law up through the appellate courts.  He wanted to challenge whether it is a crime for a law-abiding citizen to have a constitutionally protected gun, on the property of his own Capitol, for gosh sakes!

Rod ran headlong into a problem we encounter when people call us after they or their family member have already entered a guilty plea.  For the most part, the plea “waives” or gives up all rights to challenge any aspect of the case. Furthermore, in federal court prosecutors require that a Defendant enter into plea agreements by which the person waives all of his or her appeal and post-conviction challenges (other than a few meaningless exceptions that are almost unheard of).

Here is where it got interesting.  The court appointed some very talented lawyers to help Rod.   These attorneys, looking to two Supreme Court rulings from the mid-1970’s, noted that there was no “express” waiver of Rod’s right to challenge the constitutionality of his conviction.  In other words, admitting to “factual guilt” does not give up the right to challenge whether the supposed “crime” can even be prosecuted under the Constitution. His lawyers argue that the challenges Rod wants to bring against the law for which he was prosecuted go to the very power of the State to haul him into court, regardless of whether he is factually guilty.

The prosecutors will likely argue that the criminal justice world will come to an end if people who enter guilty pleas can nevertheless traipse over to the court of appeals and come up with a panoply of constitutional claims, thus meaning that no case is ever finished.  They will also point to a specific rule that allows a Defendant to reserve a specific issue to go up on appeal even after a guilty plea (but the prosecutor and the Judge have to agree to this procedure, meaning that folks in Rod’s situation need to kind of play “mother may I” in order to vindicate their rights).

I like how this case is a perfect example of how some people turn situations upside down.  Several Justices on the Court are avid protectors of the Second Amendment, and likely are sympathetic to Rod’s quest to challenge the law under which he was prosecuted.  However, these same Justices rarely issue rulings that help criminal Defendants.  The government will likely make subtle arguments about how if the Court rules for Rod Class, the next time it won’t be some person who wants to advocate for gun rights, but could be some repeat criminal making a far less appetizing claim. Should be an interesting argument!

Carpenter v. United States is the latest case involving this confluence of our rights and the Digital Age. Mr. Carpenter was indicted for being involved with a series of armed robberies. One of his buddies gave the police a series of phone numbers that Carpenter had used.  The police then went to the cell phone providers, seeking lots of different kinds of information that can be dredged up involving how a device was used, where it was located, and other data that essentially provides a road map to the device-user’s life.  But, here’s why the case is in the Supreme Court:  the police did not get a search warrant from a judge, but instead they resorted to a federal law called the Stored Communications Act (the “SCA”), a 1986 law that allows phone companies to disclose records when the government provides them with “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation”. Under the SCA, a prosecutor can get around the need to show that there is probable cause to believe that a crime has been committed.  More and more every year, we see cases where the police regularly avoid search warrants, and instead get mountains of data from cell phone providers under the more lenient SCA. As a matter of fact, my law partner Carl and I did a case very similar to what happened in Carpenter, cell phone data obtained under the SCA that was going to be used against our client.

In Mr. Carpenter’s case, the police got several months’ worth of historical cell-site records, which indicate which cell towers a cellphone connected with while it was in use. All this data allowed investigators to show that, over a multi-month span, Carpenter’s cellphone connected with cell towers in the vicinity of the robberies. Carpenter was arrested, he was charged with the robberies, and his legal team argued that the records should be suppressed because the government had not obtained a warrant for them. The trial and appellate courts disagreed, so Mr. Carpenter was convicted and is serving a sentence of more than 100 years.  Some of you are saying to yourself, “so what, he got what he deserved.”

However, the bigger issue here is the legal mechanism used to deny Carpenter’s challenge to the SCA. The lower court judges said that the government was not required to obtain a warrant because Carpenter could not have expected that cellphone records maintained by his service provider would be kept private.  This is sometimes called the “third party” doctrine, and it goes like this: if you willingly give your information over to some other person or company, you have no right to complain about a governmental search in that you relinquished your right to keep the information private.  However, we all know that no one really wants to give up all of their privacy simply by signing up with AT&T, Verizon, Sprint, Amazon, Facebook or the like. So, Carpenter is a big deal, for the Supreme Court will decide whether the older cases using the “third party” rule are still good in an age when every one of us essentially gives huge quantities of private information over to some faceless corporation in return for using that entity’s services.

This is not the first time the Supreme Court has looked at this intersection of cellphone technology and the Fourth Amendment. Three years ago the Court said that the police need a warrant to search through the information in your cell phone if you get arrested. Chief Justice John Roberts explained that today’s phones are “based on technology nearly inconceivable just a few decades ago” and “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” In that case, the Court said that the police can sometimes still get and look through the information in a person’s cell phone.  However, the police need to do what the Framer’s of the Constitution told them to do: get a warrant.

In Carpenter’s case, prosecutors, argue that giving law-enforcement officials access to information about where a cellphone has been is not the same as allowing them to review the data inside the phone itself. But no matter what they decide, their ruling could shed significant new light on what limits the Fourth Amendment will impose on efforts by police to benefit from the significant technological advances in the 21st century.  I am looking forward to the arguments and the decision.

I will do a series of posts about the new cases.  These subsequent posts will give more detail and some of the juicier aspects of the case to show that these are not just dry legal disputes, but instead involve real people and lawyers fighting for our rights.  But today, I’ll just do brief reviews of the 3 big criminal justice cases announced today that will be on the Supreme Court’s plate this upcoming Term.

Two of the cases involve automobiles and the Fourth Amendment.  In Byrd v. United States, the question is whether society should recognize an “expectation of privacy” for the driver of a rental car who has the renter’s permission to use the vehicle, but who is not listed as a driver on the rental agreement.  With no such “expectation”, the driver cannot fight back against any police search of the car, but one who has such an “expectation” at least has a fighting chance if he or she can prove that the searching official engaged in a search found to be unreasonable under the Fourth Amendment. The second “car case” really involves a motorcycle. Police officers entered private property, approached the house, and pulled up the tarp covering a motorcycle, discovering from the vehicle ID number that it was listed as being stolen. Collins v. Virginia concerns the question of whether the “automobile exception” to the Fourth Amendment allows the police to engage in such a warrantless search.

Another case involving constitutional rights arises in the context of a civil lawsuit, but the civil case arose out of an aborted criminal prosecution.  A police officer named Vogt was compelled to make statements about a knife in his possession, and those statements were then used in the preliminary hearing of a criminal case.  The criminal charges were dismissed, and by-then former-Officer Vogt brought a civil lawsuit against the city and his supervisors who compelled him to make the statements.  Our wonderful Fifth Amendment tells us that “no person…shall be compelled in any criminal case to be a witness against himself.”  The Supreme Court took this case for review to answer the question of whether the Fifth Amendment applies not only when a prosecutor uses a compelled statement at a criminal trial, but also to the prosecution’s use of such statements in pretrial proceedings, including probable cause of preliminary hearings.  That case is City of Hays, Kansas v. Vogt.

We do lots of appeals here at Kish & Lietz, so we keep up on this type of material.  There are other criminal cases on the Supreme Court’s docket, those that were accepted for review late in the previous Term.  We will also take a look at those and some of the issues we are facing in our own matters where we have taken appeals.  Stay tuned!

What happened in Overton and Turner is truly disturbing.  A middle-aged woman was brutally murdered in a “bad” neighborhood of Washington, DC in 1984.  Seven men went to trial, were found guilty, and have spent the last three decades in prison after being convicted.  The prosecution’s theory at trial was that the victim died at the hands of a gang attack that was witnessed by several individuals.  Years after the convictions, the Defendants (and their ever-vigilant attorneys) discovered a raft of helpful and exculpatory evidence that the prosecutors and police officials had withheld.  1) The police and lead prosecutor got statements from witnesses who implicated another person, McMillan, as being on the scene and acting suspiciously.  McMillan later attacked other middle-aged women and was convicted for those crimes that had disturbing similarities to the case in question. 2) The prosecution’s theory always was that the crime was a group attack, even though the prosecutor had suppressed evidence from other witnesses that only one or two perpetrators could have been in the area where the victim was attacked. 3) The witnesses called by the prosecutors at trial had lots of problems that the prosecutors decided to keep from the defense, issues such as one was high on PCP when she identified suspects, that same witness asked her friend (another witness) to lie, another witness was physically threatened by the police when she did not say what they wanted her to say.  All of this withheld evidence likely would have been helpful to the defense. Oh, I forgot to mention, the jury acquitted two Defendants who heard from these same prosecution witnesses, and needed 40-50 votes before it could convict two of the others.

The legal issue in these cases is whether the withheld evidence was “material”.  Under the Brady rule, a Defendant does not get a new trial when the prosecutor suppresses evidence unless that evidence was important enough so that it would have impacted the jury.  The exceptionally talented lawyers representing the Defendants contend that the lower courts used an improperly harsh “materiality” standard, and that the case should be sent back for further proceedings.

Cases like this keep me up at night.  Like most lawyers in my business, I have seen situations where prosecutors hold back on exculpatory information.  I recall one case where an otherwise very honest and honorable prosecutor knew about yet failed to tell me that his main witness had been caught telling an identical lie to what she said about my client.  Only by dumb luck did I discover the information shortly before trial.  My client was acquitted, but nothing ever happened to this prosecutor.  Hopefully, the Supreme Court will send the message when it decides these two cases in the near future.

Ms. Class is a military veteran who had some firearms hidden in his vehicle which he parked in a lot near the U.S. Capitol building.  A law enforcement officer thought she saw a holster, confronted Mr. Class, and a subsequent search uncovered the weapons.  Turns out that the place where he was parked might have technically been on the Capitol grounds, and DC laws made any possession of firearms there illegal. Acting as his own attorney, Mr. Class challenged the laws, arguing that the prohibition either violated his Second Amendment rights, or violated Due Process in failing to tell the public about what was, and was not, illegal.    The District Judge denied his challenges and Mr. Class pled guilty.  However, he then filed an immediate appeal, and explained to the appellate court that he wanted to continue his challenges.  The appellate court appointed  some very talented lawyers to help out Mr. Class, and those attorneys presented a very refined and compelling argument that the laws used against this veteran were unconstitutional.  The appellate court rejected the appeal, noting decisions that say a guilty plea waives all rights, except a challenge to the “jurisdiction” of the court (or whether the plea was voluntary).

It turns out that a fair number of federal appellate courts would likely have allowed Mr. Class to continue his fight, even after a guilty plea.  These cases arise from two Supreme Court decisions in the 1970’s which held that claims about double jeopardy or prosecutorial vindictiveness survive a guilty plea and can be brought up on direct appeal.  However, the prosecutors want to nip such cases in the bud.  They point out that there is a specific part of the Federal Rules of Procedure that permit an appeal after a guilty plea, but only when the prosecutor agrees.  Mr. Class, like my clients, does not want to say “mother may I” when deciding if he wants to appeal.  As a result, I am fairly certain that the Department of Justice will fight strenuously against Mr. Class’s claim that he still has the right to challenge the constitutionality of the statutes even after pleading guilty.  Again, because pleading guilty is often the singles biggest decision we help our clients to make, we plan on following this case closely.

OK, first the background.  The infamous “Armed Career Criminal Act” (or “ACCA”), part of the 1986 criminal law re-work that led to the mass-incarceration we are only now digging out from, yields a 15-year mandatory minimum sentence for anyone foolish enough to have anything to do with a firearm after having 3 or more prior convictions for drug dealing or a “violent felony”.  As always, the devil is in the details, and the question of what is a “violent felony” has bedeviled federal judges for the past 3 decades.  The issue was made even more difficult when the brains in Congress included as a violent felony any crime that “involves conduct that presents serious potential risk of physical injury to another.”  We call this latter phrase the “residual clause” of the ACCA.  After 25 years of trying to figure out what this squishy definition might mean, the late Justice Antonin Scalia (may he rest in peace) convinced his brethren to invalidate the entire clause as being unconstitutionally vague. That case was Johnson v. United States.

Readers also remember that on occasion your impassioned writer goes on and on about the other set of rules that impacts a federal criminal sentence: the United States Sentencing Guidelines.  These Guidelines also have aspects similar and occasionally identical to the residual clause.  One such area using language identical to the residual clause is the part of the Guidelines that applies to “career offenders.”  Lots of cases have approached the issue of whether Johnson also invalidated the identical language in the career offender Guideline (answer: the majority of courts says that Johnson does apply and invalidates the Guideline definition).

Still more cases wrangled with the issue of what to do with the thousands of people imprisoned by a law that years later was found unconstitutional, but the time for those prisoners to file any direct appeal elapsed long ago.  Collateral attacks are now greatly restricted, unless a “new rule” is expressly made retroactive by the Supreme Court.  The question for these Defendants is whether their attack on their sentences years later is “cognizable” under the strict rules governing what are called “collateral attacks” on old cases.

This is where Beckles comes into play (I can hear some of you saying; “Finally he gets to the point!”).  Beckles comes out of the Eleventh Circuit, where we have handled hundreds of appeals.  This is a federal appellate court that, to be charitable,  does not have a reputation of being friendly to criminal defendants.  The Eleventh Circuit has a whole bunch of decisions all over the place, but basically says that a prisoner cannot raise a Johnson style attack even if the person’s sentence was enhanced by the impermissibly vague career offender Guideline.

The Supreme Court accepted Beckles for review, and it will likely be argued soon or in the New Year.  The really fun part is that even prosecutors recognize how far off the reservation the Eleventh Circuit has been, for the Government partially confessed error and agreed with the Defendant.  The Supreme Court had to appoint a lawyer to make the unenviable argument that even the Government is wrong.  When this happens it makes for an interesting three-way argument.

The case is being handled by some of our friends down from the Federal Public Defender in Miami, they always do a great job.  We look forward to seeing how the 4-4 split on the Supreme Court impacts this matter.

As noted above, honest services bribery or kickback requires an exchange of an official act for money or property. Some earlier decisions rejected efforts by prosecutors to expand the phrase “official acts” to include actions that are “customary” in the performance of many jobs. One court reversed the conviction of a state official who offered, for a fee, to introduce an architectural firm to high-ranking officials who could then secure contracts for the firm. The Defendant there promised to make introductions, but no evidence established that he promised to use his official position to influence those to whom the architectural firm was introduced. That court recognized a distinction between affording access versus actions that influence a decision.

Another federal court of appeals seems to take the same position. That Court said a legislator could not be convicted for taking money from a hospital in return for lobbying mayors to comply with state law in a way that benefited the hospital. That case also seemed to distinguish between actions that use or threaten the use of official powers versus actions that merely trade on reputation or access that accompanies the holding of a certain office.  Yet one more federal appellate court said that “official acts” are limited to those that influence an actual decision about real policies. That case involved a policeman who took payments in exchange for using an official police database to perform license plate and outstanding warrant searches. While accessing the database was part of the officer’s duties, he did not perform an “official act” in return for the money, in that the officer did not exercise any inappropriate influence on decisions made by the organization for which he worked.

In contrast to these three decisions, the Fourth Circuit affirmed the conviction of former Governor Robert McDonnell. On appeal Governor McDonnell’s lawyers argued that he had merely extended “routine political courtesies” to the person who paid him money. “This is the first time in our history that a public official has been convicted of corruption despite never agreeing to put a thumb on the scales of any government decision,” their brief said.

I am currently handling several matters involving potential or actual prosecutions under the “honest services” theory.  I will keep looking at the McDonnell case, as it likely will impact these and future cases we handle in this area.

Back in 1969, the Supreme Court issued a decision called Chimel v. California. Police officers looked through a pack of cigarettes in Mr. Chimel’s pocket after arresting him, discovering contraband. The Supreme Court in that case said the search was OK, creating what we call the “search incident to arrest” principle. When a person is arrested, it is basically OK for the cops to look through anything he or she is carrying or has on his or her person, with no need for a warrant.

With the advent of modern cell phones, law enforcement realized that they had a treasure trove of potential evidence in a suspect’s pocket, the modern “smart phone.” However, for a few years judges looked to the old Chimel case, and ruled that a cell phone is no different than a pack of smokes. However, my personal opinion is that the tide began turning when elderly judges themselves began to convert to modern technology, and realized how easy it is for the police, our government, or simply other people, to look into the most private parts of our lives by accessing the data on our cell phones.

Today’s 9-0 ruling is a clear stance in favor of personal privacy. Writing the opinion for the Court, Chief Justice Roberts rejected the Government’s claim that searching a cell phone is no different than looking through the cigarette pack in Mr. Chimel’s pocket. “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”

This is a great ruling. We will study it, and try to see if helps any of our current or former clients. We will also continue to press judges to remember that we all lose when our collective privacy is sacrificed on the alter of temporary law enforcement needs.

They say you always “remember your first”, so I have a fond memory of the initial time (23 years ago, time flies!) I won an appeal of a federal criminal conviction, which also involved the aiding and abetting theory of liability. My case involved a young man who foolishly drove other guys who committed a series of armed bank robberies. I was able to convince the Court of Appeals that for the very first of those robberies, my client could not be held accountable for the gun that was used inside the bank. The Court of Appeals agreed that under the “aiding and abetting” theory of liability there must be proof that the aider and abettor had knowledge of the gun and the same intent or purpose as the other person who does the dirty deed. In my case, there was no proof that my guy knew about and agreed with the use of the very first gun before it was used. On appeal, I was able to convince the judges to reverse the conviction for use of that first gun, and thus lopped 20 years off my client’s sentence.

The Rosemond case argued in the Supreme Court earlier this week has a somewhat similar fact pattern. Mr. Rosemond was in a car with two other persons, all of whom were trying to sell a pound of marijuana (why are so many of the cases that end up in the Supreme Court such small potatoes, in the big scheme of things?). The supposed buyer, however, instead ran off with the dope. Two of the guys got out of the car, and one (and only one) fired a gun in the direction of the thief. Both men then drove away. The government’s main theory was that Rosemond was the shooter. Witnesses disputed the shooter’s identity, so the government also alleged that even if Rosemond was not the shooter, he was an “aider and abetter”, and should therefore be held just as accountable as the person who fired the weapon .

Rosemond wanted the trial judge to tell the jury that it must find that he “intentionally … facilitate[d] … the use of the firearm” to convict. But the court instructed, instead, that the jury need find only that Rosemond “knew his cohort used a firearm” and that Rosemond “actively participated in the drug crime.” This led to two questions for the Supreme Court: (1) is “simple knowledge” enough to convict of aiding and abetting, or is “purpose” required; and (2) can a defendant be found guilty merely because he intended to participate in the underlying drug crime, or must there be evidence that he additionally intended to have something to do with or approved of the use of the firearm?

Again, while the facts are kind of “small potatoes”, the consequences are huge. Use of a gun in a federal criminal case often leads to mandatory and consecutive prison terms of 5, 7, 10 years, and up to life. Furthermore, the whole idea of “aiding and abetting” liability is used quite often in federal criminal prosecutions, from mundane drug deals to the huge white collar fraud prosecutions that often take up years of our time. This is an important case, and we will follow it closely. I certainly hope that my “first” win is among the cases that lead the Justices to side with the defense on this important issue.

Earlier this week, the United States Supreme Court accepted a straw purchase case for review later this year or early in 2014. The case is United States v. Abramski.

Back when I was regularly screaming that straw purchases are not a crime, the situation usually involved somebody who was buying guns for “prohibited persons”, such as folks who had a prior criminal record and therefore could not get the firearm themselves. However, sometimes the later recipient was not a prohibited person, but the prosecutors and the judges still said it was a crime to walk into a store, plunk down money, and later hand the weapon over to somebody who had every right to own a gun. A few courts (in Texas and in Idaho) ruled that the straw purchase theory only makes it a crime when somebody walks into the store to buy a gun for a convicted felon, but these few courts finally acknowledged that it is not a crime when you buy a gun for a person who could do so themselves.

In the Abramski case that the Supreme Court agreed to hear, the defendant is a former police officer who bought a gun for his uncle. The uncle is legally entitled to buy a gun himself. Because Abramski worked in law enforcement, and therefore gets a discount at many gun stores, he bought the gun to save his uncle some money. Abramski checked a box on an ATF form indicating that he was the “actual buyer.” However, the government takes the position (as set out on that particular Form) that a person who buys a gun intending to later transfer it to someone else is not an “actual buyer.” After discovering that Abramski bought the gun for his uncle but had checked the “actual buyer” box on the ATF form, the government indicted him for making a false statement on the Form.

This case has several important things to keep in mind. First, I never cease to be amazed at some of the cases brought into federal criminal court. This situation seems to be complete BS, and unless there is some back story, one wonders why federal authorities are wasting their time going after a law enforcement official who simply wanted to save his uncle a few bucks. Second, this case also reminds me that people facing federal crimes need lawyers who are not afraid to challenge even accepted theories of prosecution. I happened to be one of the first attorneys challenging the straw purchase theory. Mr. Abramski’s lawyers repeated many of my arguments, and I fully expect that these arguments might bear fruit in the Supreme Courrt.

Like many Americans, Mr. Castleman apparently got into a domestic squabble. He was charged with a crime because he committed an assault on the mother of his child, and like so many incidents, he got a sentence of probation. Several years later, federal authorities investigated him for gun crimes, resulting in charges for violating Title 18, United States Code, section 922(g)(9), which makes it a crime for any person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The phrase “misdemeanor crime of domestic violence” is defined as a misdemeanor offense, committed by a person with a specified domestic relationship to the victim, that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”

Castleman’s attorney recognized that there is a difference in the wording of the two laws. On the one hand, the federal law says that a person with a prior misdemeanor conviction is prohibited from having a gun only if the prior case involved “physical force”, while the Tennessee misdemeanor to which Mr. Casteleman had pled guilty merely says it is crime to engage in an “assault” of another person with whom you have a child. Not all assaults require the use of physical force. Both the trial judge and the federal court of appeals agreed with Mr. Castleman’s lawyers, and they threw out the charges.

However, the federal government has been waging a war for several years relating to “repeat offenders.” A wide variety of federal criminal statutes call for increased penalties for or prosecution of people who have more than one prior case of a certain category. The key issue is how Congress defined the prior crime for which a prosecution or increased penalty is required. That’s the nub of the issue in the Castleman case that the Supreme Court recently agreed to decide. Over the past two decades, the Court sometimes allows for a broad use of these recidivist laws, while on other occassions the Justices focus on the specific words used by Congress, and throws out cases that do not fit within the exact words used in the law. We will keep an eye on this one to see how it goes.

Mr. Alleyne’s Public Defenders were just such persistent and aggressive criminal defense attorneys. They objected to the sentencing judge’s ruling, which was correct at the time it was made. They continued their objection all the way to the Supreme Court, which agreed with them Monday and changed that rule. Here’s how it happened.

In 2000, the Supreme Court issued the landmark ruling of Apprendi v. New Jersey. That case held for the first time that any fact that can change the maximum punishment to which a Defendant is exposed must be pled in the indictment, and proven to the jury by the usual “beyond a reasonable doubt” standard. This is very important because until that time many facts that result in potentially longer prison sentences could be decided by one person, the sentencing judge, and that judge could use the less stringent “preponderance” evidentiary standard.

However, in 2002 the Court in a case called Harris v. United States restricted the Apprendi rule, holding that it did not apply when a particular fact merely kicked in a “mandatory minimum” sentence, but did not change the potential maximum. Federal crimes often come with mandatory minimum punishments which are extremely harsh, and defense lawyers for years have long chafed under a system that keeps away from the jury the crucial question as to whether the Defendant should be exposed to a very long minimum term in custody.

Harris was decided by what we call a “plurality”, with Justice Breyer casting the crucial fifth vote. Justice Breyer had gone along with the other four who wanted to keep the mandatory minimum fact away from the jury. Although he questioned the logic of the whole idea, he thought there might be a difference between raising a minimum sentence and enhancing a maximum one. In a later case, though, Breyer expressed doubts about that distinction. Since that time criminal defense lawyers repeatedly made pleas to reconsider Harris, but until now all such requests have been rebuffed.

Then, along came Mr. Allyene’s persistent Public Defenders. Mr. Alleyne was accused of a robbery, and one count of using a gun during a crime of violence, what we call a “gun count” or a “924(c)”. He received a forty-six month sentence on the robbery charge. However, the gun charge has a 5-year minimum, and that floor can increase to a 7-year minimum if the firearm was “brandished.” The jury did not accept the theory that the gun had been brandished. Even though the jury concluded that Alleyne had not done so, the trial judge ruled that Alleyne should have foreseen that his accomplice would brandish a gun during the robbery. The judge then imposed the 7-year minimum, instead of the regular 5-year punishment. Alleyne’s lawyer conceded that the Harris decision did treat brandishing a gun as a sentencing factor, not as an element of the crime, yet the public Defenders argued that Harris was inconsistent with Apprendi and later sentencing cases. The judge rejected that challenge, but commented while imposing the added 2-year sentence that “I don’t like being the reverser of juries.” The judge said the Harris precedent gave him no choice. The Court of Appeals subsequently affirmed the sentencing judge, based on the suspect Harris decision.

This past Monday the Supreme Court overruled Harris. I have not had the chance to study the ruling in detail, but it clearly shows that lawyers need to keep pressing sentencing issues that can help their clients.

Recall that this case involved Alonzo King, who was arrested in Maryland for menacing a crowd with a gun. Under Maryland law, the police extracted a DNA swab which was later sent to and made a part of a national database. Sometime later still, King’s DNA was matched to a rape investigation from six years earlier. The Maryland Supreme Court threw out King’s conviction because the DNA was extracted without a warrant nor was there any individualized suspicion that justified taking the DNA sample. On Monday, the U.S. Supreme Court reversed the Maryland judges, and instead compared the process of taking DNA with other activities during the criminal booking process such as photographing and fingerprinting suspects when they are booked.

Justice Anthony Kennedy, writing for the five members in the majority of the court, noted that while taking a DNA sample is a search, the Fourth Amendment bars unreasonable searches. Kennedy said that a “gentle” swabbing of the cheek is not unreasonable. Nor, he said, is it unreasonable to use DNA to ascertain whether the arrestee has a criminal history that would make him a flight risk or a risk to the public if released on bail. Because Maryland’s law was restricted to warrantless DNA extraction only when a person is arrested for a “serious” crime, and because the law bars any collection or use of DNA to detect private genetic information, the majority found that DNA collection is a legitimate booking procedure.

In dissent, Justice Scalia, a staunch conservative, issued a rare oral dissent from the bench. He said the court has never held that the government can conduct general suspicionless searches of anyone it arrests, and by doing so in this opinion, the court, he said, casts aside “a bedrock rule of Fourth Amendment law.” “Make no mistake about it,” he warned. “Because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”

This is a classic example of a “slippery slope”, or the “camel with his nose in the tent.” in other words, once a process begins, it is very difficult, if not impossible, to stop it. I tend to agree with Justice Scalia that this is just the beginning of the creation of a national database where all of our DNA will be held, compared, used and possibly mis-used. This case reminds me why all criminal defense lawyers need to fight ceaselessly for the rights of our client, for when they can do such things to “criminals”, it is only a short step before they doe these things to the rest of us.

On the one hand, we still have a long way to go when we provide counsel to people who cannot afford to pay for a lawyer. Many wonderful lawyers are public defenders who struggle to provide the best defense they can while handling massive and crushing caseloads. While Defendants have the “right” to an attorney, far too often the system is set up so that the public defender simply cannot spend much time with any one client, more or less rendering meaningless the Constitutional “right to counsel” enshrined in the Gideon case.

On the other hand, people facing federal criminal prosecutions face additional difficulties. First, as we have mentioned many times, and as I have written and spoken about on numerous occasions, there is a big difference between a State criminal case and a prosecution handled by the federal government. Federal criminal cases are often exceedingly complex, time-consuming, and beyond the abilities of many otherwise fine lawyers who simply are not equipped to handle the often arcane and weird aspects of defending a criminal case in federal court. Federal criminal defense is a speciality, and like other professions, specialists usually cost a lot more money, which makes it difficult for many people to defend themselves against charges in federal court. Second, defending a case in federal court also puts a Defendant (and his or her attorney) up against a series of very pro-prosecution laws. During the 1980’s and 1990’s, the U.S. Congress regularly enacted more and more “tough on crime” laws. Some of these laws increased sentences (like the horrible crack cocaine laws and mandatory minimum punishments). Other “crime prevention” legislation was aimed at people in the drug trade, and many statutes were designed to go after the money involved in the drug business. One of these laws greatly increased the scope of the federal forfeiture statutes, which are the laws that permit the feds to sometimes get money or property that was involved in or obtained from certain crimes. And, here’s where it all comes back to the Kaley case accepted by the Supreme Court. That is the case where the Justices will need to answer the question of whether the feds can “restrain” a Defendant’s assets even before a trial, without the need for a hearing where the Defendant can challenge the prosecutor’s evidence. The expansion of forfeiture laws, which were mostly designed to go after dope dealers, is now being used against businesspeople like Mrs. Kaley, in a case that seems from the surface to be a contract dispute!

The right to counsel is important, whether or not a person has the assets to hire counsel, and regardless of whether the case is in State or federal court. We certainly hope that the Justices will recognize that Defendants in federal cases should have the right to use their assets to hire the specialists needed to defend matters in federal court, which is just as important as providing counsel for those without such assets.

Mr. Evans was accused of setting a building on fire. One Michigan law makes it a crime to burn a dwelling, while a second law makes it a crime to burn “other real property.” At the close of the evidence, the Defendant’s lawyer pointed to standard jury instructions which require proof that the property was a “non-dwelling” before a person could be convicted of the crime of burning “other real property.” The trial judge, noting that the property owner said the building WAS a dwelling, granted an acquittal for the Defendant because the prosecution had failed to prove the property was NOT a dwelling. It turns out the trial judge was completely wrong, in that burning “other real property” is a lesser-included offense of the greater crime of burning a dwelling. The prosecution appealed, and Michigan’s appellate courts decided that a second trial was OK, even despite the protections from the Double Jeopardy Clause.

The U.S. Supreme Court reversed, holding that retrial following a court-decreed acquittal is barred, even if the acquittal was based upon an egregiously erroneous foundation. An “acquittal” includes any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense. This is different from procedural rulings, which lead to dismissals or mistrials for reasons unrelated to factual guilt or innocence. An acquittal is a substantive ruling that concludes proceedings absolutely, and thus raise significant Double Jeopardy concerns. Here, the trial court clearly evaluated the prosecution’s evidence and determined that it was legally insufficient to sustain a conviction. While the acquittal was the product of an erroneous interpretation of governing legal principles, that error affects only the accuracy of the determination to acquit, not its essential character.

Along the way, the Supreme Court addressed the prosecution’s argument that Mr. Evans got a “windfall”, and he should not get the benefit of a real bonehead ruling by the trial judge. The U.S. Supreme Court was unimpressed, noting that States and the federal government have the power to prevent such situations by disallowing the practice of midtrial acquittals, encouraging courts to defer consideration of a motion to acquit until after the jury renders a verdict, or providing for mandatory continuances or expedited interlocutory appeals. The bottom line: the Double Jeopardy Clause remains intact as one of the bulwarks protecting individuals from multiple prosecutions, even when the first case was erroneously decided against the prosecution.

Some of the recent cases also reminded me of a medical doctor I represented who got caught up in the post 9-11 laws that criminalize lots of innocent conduct. One of those laws (18 United States Code, section 1038) makes it a crime to make a false report of something, which if it was true, would be a terrorist act. Through a series of mishaps, the doctor was pulled off a plane, but they would not remove his luggage, and planned on sending the flight along without him but leaving his bags on board. He complained, explaining that was stupid, in that for all they knew, his bags could contain explosives. That was not a smart thing to say, but it also was not a crime, in my estimation. Over the course of several years, I filed hundreds of pages of legal motions challenging the statute, and argued that the doctor had a First Amendment right to make a truthful statement: it is stupid to allow a passenger’s bags to remain on a flight when the passenger himself is no longer one of the passengers. After lots of work, we eventually convinced the prosecutors to drop all charges. The incident still pops up from time to time when the doctor’s medical license is up for renewal, but every time it has we convinced the regulatory bodies that he did nothing wrong.

The federal authorities like to make criminal cases when activities take place on airplanes. I probably will see more of these in the years ahead.