Sunday, December 9, 2018

“Encouraging or inducing” an alien to remain held unconstitutionally overbroad

Last week, in United States v. Sineneng-Smith, the Ninth Circuit vacated  convictions for encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) & 1324(a)(1)(B)(i), finding the statute unconstitutionally overbroad because it impermissibly criminalizes a substantial amount of constitutionally-protected expression.

broken snow flakes on waterSpecifically, subsection (iv) of that statute provides for a felony prosecution where one “encourages or induces” an alien to come, enter, or reside in the United States if the defendant knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of the law.

As an example of the statute's impermissible infringement on protected expression, the Ninth Circuit noted the doting grandma who could face felony charges for urging her grandson to overstay his visa by saying, “I encourage you to stay.” The Ninth Circuit, too, highlighted the numerous examples of professionals, such as attorneys, whose speech may be chilled by the breadth of subsection (iv) given that, under the statute’s clear scope, an “attorney’s accurate advice could subject her to a felony charge.”

As a result? The statute is unconstitutionally overbroad given that “[t]he burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep.” Convictions vacated.

Tuesday, December 4, 2018

Who, other than Congress, gets to define criminal law? The AG? The DEA? The USSC?

Three pending/recent cases remind us that there may be limits when federal agencies act in ways that extend the reach of the criminal law.
In Gundy v. United States, the Supreme Court will decide whether the nondelegation doctrine allows the attorney general to decide whether to apply SORNA’s registration requirements to pre-SORNA offenders. More generally, Gundy raises the question of who, other than Congress, gets to define criminal law.
In United States v. Phifer, the Eleventh Circuit recognized that the rule of lenity limits an agency’s power to extend the reach of criminal law through its interpretation of its own regulations. In 2014, the DEA exercised its delegated authority to add drugs to the schedules of controlled substances on an emergency basis to schedule butylone and its “positional ... isomers.” Phifer was later charged with possessing ethylone, which qualified as a controlled substance only if it constituted a positional isomer of butylone. DEA had earlier created a regulatory definition of “positional isomer,” and ethylone was a positional isomer of butylone under this definition. But by its terms that regulatory definition applied to permanently scheduled drugs, whereas butylone had been scheduled on a temporary basis. Phifer argued that the court should instead apply the definition of “positional isomer” that was accepted in the scientific community, under which ethylone was not a positional isomer of butylone.
The Eleventh Circuit found that the regulation defining “positional isomer” was ambiguous as to whether it governed temporarily scheduled drugs. The government argued for Auer deference, under which courts defer to the promulgating agency’s interpretation of an ambiguous regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer deference would have been fatal here. But the Eleventh Circuit rejected the doctrine, reasoning that in a criminal case whose outcome turns on the meaning of an ambiguous regulation, the rule of lenity trumps Auer. Regulations underpin many federal criminal prosecutions. Phifer recognizes an important limitation on the reach of regulations.

Finally, in United States v. Havis, the Sixth Circuit questioned circuit precedent that deferred to the Sentencing Commission's interpretation of the Guidelines (which are approved by Congress) via the commentary (which is not). As the concurring judge put it, deference to agency decisionmaking is problematic enough in civil cases, but when deference to the Sentencing Commission extends a defendant’s prison time, “alarm bells should be going off."

Thanks to Tom Bartee, Branch Chief, Kansas City, Kansas FPD for this post.

Sunday, December 2, 2018

Do only 2-4% of child-abuse complainants lie? Can an expert say so to a jury?

It’s well settled that it’s the jury’s critical and exclusive function to make witness-credibility determinations. Hence the Tenth Circuit’s unequivocal finding this last week in United States v. Magnan that error occurs when an expert witness usurps the role of the jury by placing a mathematical estimate on the rate of false accusations by victims.

In Magnan, the defendant was facing numerous counts of various sex crimes, including multiple counts of sexual abuse of a minor. At trial, the government’s expert witness cited to studies regarding false accusations by children, and summarized the studies’ conclusions as follows:

[What the studies determined was that] the rate of false disclosures by or false allegations exclusively by a child was in the 2 to 4 percent range. Some literature goes as high as 5, maybe a little higher. But the standard studies that are frequently quoted are 2 to 4 percent.

The Tenth Circuit’s conclusion? The expert’s citation to the studies that only 2-4% of children lie about being sexually abused was the equivalent of vouching for the alleged victims. And by impermissibly bolstering the credibility of the witnesses, the government’s expert usurped the jury’s exclusive function.

Magnan is a valuable precedent to have in your pocket, especially when moving pretrial to exclude such impermissible evidence from being introduced in the first place.

Wednesday, November 28, 2018

"Law enforcement officers are not average citizens"

In Hein v. North Carolina, 135 S.Ct. 530 (2014), the Supreme Court held that a police seizure based on an objectively reasonable mistake of law does not violate the Fourth Amendment.

This month, the Kansas Court of Appeals reminded us that not every mistake of law is objectively reasonable. An officer may not, for instance, reasonably claim confusion about the plain, unambiguous language of a statute or ordinance---even if that same law might confuse an average citizen. 

In State v. Lees, ___ P.3d ___, 2018 WL6005199 (Kan. App. Nov. 16, 2018), a police officer stopped Mr. Lees for a brake-light violation. But Mr. Lees did not commit a brake-light violation. While his left brake light was out, he had working middle and right brake lights. And that is all that Kansas law unambiguously requires. The Court had little sympathy for the officer's claim of confusion:

"[T]he Kansas statutes are clear that only two functioning brake lights are required. Reading K.S.A. 8-1708(a) and K.S.A. 8-1721(a) together, no reasonable officer would think that the law required brake lights to be spaced laterally as far as practicable and mounted at the same height, as Sperry wrongly believed; neither statute suggests such a requirement in any way. Granted it may be reasonable for the average citizen to believe the law likely requires left and right brake lights, but law enforcement officers are not average citizens. They must reasonably study the laws they are duty bound to enforce. See Heien, 135 S.Ct. at 539-40."

Monday, November 26, 2018


Yesterday, the federal courts awarded the 2018 Director’s Awards. The awards “recognize outstanding leadership, innovation, and efficiency.” The Outstanding Leadership award went to Betsy Shumaker, the Clerk of Court for the Tenth Circuit. As practitioners in the Tenth Circuit, we can confirm that the award was well deserved. Betsy and her staff do a top-notch job managing the Circuit, and we very much appreciate it. Here’s the full blurb from the Administrative Office:

Elisabeth A. “Betsy” Shumaker, Clerk of Court for the Tenth Circuit, has led national initiatives in such diverse areas as finances and budgets, information technology, staffing formulas, and data governance.
Shumaker chairs the Appellate Clerks Advisory Group, and has served on the Budget and Finance Advisory Council, the Space and Facilities Advisory Council, the Appellate Court and Circuit Offices Work Measurement Steering Group, and the NextGen Project Steering Group and Advisory Board, which provides guidance on an update of the Judiciary’s Case Management/Electronic Case Files system.
“Betsy’s involvement in such a wide variety of important councils, committees and initiatives . . . speaks volumes of her stature as a national leader,” wrote Tenth Circuit Chief Judge Timothy M. Tymkovich in Shumaker’s nominating letter. “Betsy exemplifies the very best qualities of leadership in the federal Judiciary.”
Tymkovich credited Shumaker with leading an almost total conversion from paper to electronic dockets, resulting in greater access to litigants, lawyers and the public.

Congratulations, Betsy!

Posted by Dan Hansmeier on behalf of the Kansas FPD.

Sunday, November 18, 2018

The Fourth Amendment still applies to those on community supervision

Somewhere north of 4,500,000 adults are on some form of community supervision throughout the United States. The Supreme Court has held that such individuals have a diminished expectation of privacy under the Fourth Amendment by virtue of their status. 

A diminished expectation of privacy does not, however, provide POs or LEOs with free rein to do whatever they please. Rather, their conduct is still constrained by reasonableness under the Fourth Amendment, as the Sixth Circuit reminded us this past week.

In Brennan v. Dawson, the probationer's expectation of privacy under the Fourth Amendment was diminished in that he was subject to random breath tests as a condition of his probation. But no condition of his supervision diminished his reasonable expectation of privacy in his home. As such, the probationer “was as secure in his home as a non-probationer.”

Hence, the Sixth Circuit's finding that probationer’s Fourth Amendment rights were violated when the sheriff deputy arrived unannounced at probationer’s home (or his castle, as the Tenth Circuit reminded us just last week) to conduct a breath test, and, assured someone was inside, roamed the curtilage of the probationer’s home for over 90 minutes until the probationer finally emerged.

Despite repeated misconduct that may leave you thinking otherwise, the Fourth Amendment still applies to the millions of those in our communities who are on supervision. 

Thursday, November 15, 2018

"A man’s house is his castle, whether it is under siege by police officers prying into his possessions stored within or whether they exclude him from its sanctuary."

Police officers seized Mr. Shrum's home after his wife died from an overdose. They didn't let Mr. Shrum back into his home to check on his dogs, get medication that his wife may have overdosed on, or even to urinate for eleven hours before even applying for a warrant. And the seizure was done without a reasonable basis (no evidence of foul play).

But officers gained "consent" from Mr. Shrum who wanted to make sure his dogs were cared for and that the investigators had what they needed to determine the cause of death. And while purportedly only doing those two things, an investigator took dozens of photos of the house and saw ammunition in the home in plain view.

Was this consent proper? No, says the Tenth Circuit. The consent was obtained only as a result of the illegality of the initial improper seizure. 

This case is full of good language, including a lot of strong language about the overriding privacy interests in a person's home. And the court, in a footnote, also took a shot at the government's strategy in the case: