Thursday, October 30, 2014

Check the Date on That Guidelines Manual

In a decision published today, the Fifth Circuit vacated a sentence and remanded for resentencing because the district court used the wrong Guidelines Manual. The default rule is to use the Guidelines Manual in effect at sentencing. But, if that Manual produces a Guidelines range that is greater than the range produced by the Manual in effect on the date the defendant committed the underlying offense conduct, then the district court must use the earlier Guidelines Manual. Otherwise, an ex post facto violation occurs. So says the Supreme Court.
We are less than 48 hours from the release of the 2014 Guidelines Manual (and the unveiling of a new color!). Beginning Monday, that red 2013 Manual that you have carried around for the last 12 months should hit the shelf (not the trash). Well, not quite. Until the new Manual arrives, you'll need the 2013 Manual, along with these amendments.
But remember, as Myers demonstrates (that is the name of the Fifth Circuit case, for those that did not click on the hyperlink), if the offense was committed in a year different than the current Guidelines Manual, run the numbers in both Manuals. If the current Manual produces a higher range, shelve it for the earlier version. You'll save your client some time (hopefully), and your failure to raise the objection in the district court will not find its way into a published decision (e.g., Myers).
Incidentally, the appellate attorney in Myers did not raise this issue until the reply brief, which is a serious no-no that almost always ends in waiver. But the government, in this case a few tax lawyers from Washington D.C., did not press the issue, instead conceding error in a Rule 28(j) letter (but not plain error). That is a stand-up move that deserves mention. As does the Fifth Circuit's decision not only to consider the untimely issue, but also to find merit in it and remand the case for resentencing. This could have ended badly for the defendant if not for the Court's willingness to ignore procedural rules in favor of reaching the merits and, ultimately, the correct outcome. Good for the Fifth Circuit.    

Wednesday, October 29, 2014

United States v. Hite: Reigning In Undercover Officers in Child Porn Stings

Jonathan Jeffress is an Assistant Federal Defender in Washington, D.C. The following is his take on a recent, and important, decision from the D.C. Circuit. The views expressed below are his own (and we thank him for sharing them).

The federal statute criminalizing the online enticement of minors, 18 U.S.C. § 2422(b), contains a severe penalty. Individuals who violate § 2422(b) — even first time offenders — are subject to a ten-year mandatory minimum and a life maximum. Congress legislated this severe penalty to deal with a particular kind of offender: the online predator who uses the Internet to reach into a home and befriend a child for sexual purposes.

And yet, the above scenario represents only a small fraction of prosecutions the government brings under § 2422(b). What one sees equally often is undercover law enforcement agents aggressively pursuing defendants who are using the Internet to find other consenting adults for sexual encounters. The agents will contact these individuals over the Internet and begin flirting, failing even to reveal the purported age of the minor they are portraying until late in the game. In addition, there are numerous cases involving defendants who are talking dirty with someone they believe to be another consenting adult, with no clear intention of ever doing anything in the real world. Neither of the foregoing scenarios is what Congress envisioned when it enacted § 2422(b) and included its severe penalty.

For anyone defending online enticement cases in federal court, this decision from the D.C. Circuit  is a welcome development. In Hite, the court brought badly needed clarity to the proper use of § 2422(b). The decision takes an important step towards eliminating the large number of dubious prosecutions the government brings under this statute, and the accompanying ruined lives.

Dr. Hite, an anaesthesiologist, was convicted of enticing a minor based on communications with an undercover officer pretending to be an adult with sexual access to two minors. As often happens, the undercover officer encouraged Hite to travel from his home in Virginia to Washington, D.C. for a sexual encounter with the officer and the fictitious minors. Although the two adults engaged in numerous appalling communications, Dr. Hite at no time accepted the undercover’s invitation to travel to D.C. to meet with him. And yet, based exclusively on Dr. Hite’s communications with a person he believed to be another adult, Dr. Hite was convicted under § 2422(b) and sentenced to 22 years in prison. Again, the court imposed that lengthy sentence notwithstanding the fact that Dr. Hite never communicated with someone he believed to be a minor and never went anywhere with the intention of engaging in an illegal sexual encounter.

In reversing Dr. Hite’s conviction, the Court clarified the scope of § 2422(b) in several important ways. As an initial matter, the court rejected Dr. Hite’s argument that a defendant must communicate directly with a minor (or a person he believes to be a minor) in order to violate the statute. Dr. Hite, and the Federal Public Defender in an amicus brief, argued that the statute only applied to those who communicate directly with minors. While the D.C. Circuit held against us on this point, this argument is strongly supported by the plain text of the statute. It therefore remains an argument that practitioners should preserve in the district court and on appeal, as the Supreme Court may ultimately adopt this position when it finally addresses the scope of § 2422(b).

The good stuff starts at page 6 of the decision: "we reject the Government’s argument that § 2422(b) does not require the defendant to attempt to transform or overcome the minor’s will." Here, the court definitively rejected the government’s theory that a defendant violates the statute merely by "arranging" with another adult to have underage sex (which the jury instructions in Hite also described as "persuad[ing] another adult to cause a minor to engage in sexual activity"). In the critical paragraph, at page 9, rejecting the district court’s jury instruction, the court stated:
In the case at bar, the jury instructions defining the requisite intent did not fully comport with the interpretation of the statute we announce today. Over defense objection, the District Court instructed the jury that "[d]irect communications with a child" are not necessary for a jury to find a violation of
§ 2422(b), and that the "government must only prove that the defendant believes that he was communicating with someone who could arrange for the child to engage in unlawful sexual activity." The instructions further provided that "the government must prove only that the defendant intended to persuade, or induce, or entice, or coerce a minor to engage in illegal sexual activity, or intended to persuade an adult to cause a minor to engage in unlawful sexual activity." As discussed supra, the preeminent characteristic of the conduct prohibited under § 2422(b) is transforming or overcoming the minor’s will, whether through "inducement," "persuasion," "enticement," or "coercion." Although the word "cause" is contained within some definitions of "induce," cause encompasses more conduct; simply "to cause" sexual activity with a minor does not necessarily require any effort to transform or overcome the will of the minor. Similarly, rather than focusing on transforming or overcoming the will of another person, "arrange" means to "put (things) in a neat, attractive or required order" or to "organize or make plans for (a future event)." Thus although much of the instruction was correct, the additional language that the "government must only prove that the defendant believe that he was communicating with someone who could arrange for the child to engage in unlawful sexual activity" was erroneous.
Notably, the above holding creates a clear circuit split with this Fifth Circuit case, this Eleventh Circuit case, and possibly this case.  In addition, the Hite court’s plain meaning interpretation of the statute’s verbs "persuade," "induce," "entice," and "coerce" will help defendants not only in cases involving an "adult intermediary," such as Hite itself, but also in those cases where the defendant is communicating directly with someone he believes to be a minor. In either situation, the jury must find that the defendant is "seek[ing] to transform or overcome the will of a minor," and not merely agreeing or even arranging to have sex.

The Hite court’s rejection of the government’s "arranging" theory of § 2422(b) – particularly if adopted elsewhere, or by the Supreme Court – will be very helpful to those litigating enticement cases with relatively mild facts. The reality of these cases is that while "arranging" for underage sex sounds bad enough in the abstract, the ways in which U.S. Attorney’s Offices around the country are utilizing this statute demonstrate the injustice of applying § 2422(b) and its 10-year mandatory minimum to "arrange" situations. This statute should not apply where undercover law enforcement agents have aggressively pursued a defendant who, left to his own devices, would not have sought out a minor for sex. When measured against the human cost to the defendant and his loved ones, it is exceedingly difficult to see how anyone is benefitting from such prosecutions, except perhaps for the Internet Crimes Against Children (ICAC) task forces, whose budgets are dependent on the number of cases the task forces generate. The Hite opinion should help bid good riddance to these dubious cases, which are not what Congress had in mind when it enacted § 2422(b) and included its 10-year mandatory minimum.

Tuesday, October 28, 2014

Upcoming CLE: All You Never Wanted To Know About Guns

David Freund is an Assistant Federal Defender in Wichita. He has been doing this for 9 years, so it is no surprise that he has become an expert in something. That something is federal firearms law. I can vouch for David's expertise in this area. He was instrumental in obtaining habeas relief in a case just this month. 
From David:

The United States Attorney for the District of Kansas has escalated federal firearm prosecutions in recent years. Now, more than ever, an understanding of federal firearms law is essential when representing our clients. Determining who is prohibited from possessing a firearm or ammunition is a complex question that involves the application of both federal and state law. This presentation will explain how Kansas and Federal law intersect to define who is a prohibited person, and when a defendant's civil rights have been restored so that a prior conviction no longer counts as a predicate conviction under 18 U.S.C. 922(g) (the felon-in-possession statute) or 18 U.S.C. 924(e) (the Armed Career Criminal Act). We will also discuss the Tenth Circuit's recent decision in United States v. Brooks and its effect on federal firearms prosecutions, as well as some of the more common sentencing issues that arise in federal firearms cases.

David will host a CLE during the lunch hour in Wichita (November 12), Kansas City (November 13), and Topeka (November 14). 
Don't miss out.
Go here for all of the details. 


Monday, October 27, 2014

The New Frontier: Special Conditions of Supervised Release

Congress created supervised release, and with it special conditions of supervised release, in the Sentencing Reform Act of 1984. That was quite some time ago. Through the years, criminal defense attorneys have challenged certain conditions, and courts have (sometimes) struck them down. But not frequently. Until now. Well, at least in the Seventh Circuit. On May 8, 2013, the Seventh Circuit issued this opinion, and the rest is history. Within the next year, this, this, and this happened. Then, on May 29, 2014, there was this gamechanger (via Judge Posner). Since then, there has been this, this, this, this, and this. And now this
If you follow the hyperlinks, you will find 11 published decisions vacating special conditions of supervised release (most, if not all, litigated by the Federal Defender's Office in the Central District of Illinois). In an 18-month span. Truly extraordinary.
Now, that last decision (U.S. v. Hinds) came down today. The decision vacated a suspicionless search condition and a payment condition. Good results. But good decision? I say no, and here is why:
On the search condition, the Court refused to rule out "unannounced and random searches where appropriate." The problem with this: the statutes -- 18 U.S.C. 3583(d) and 18 U.S.C. 3563(23)-- do not allow it. In plain terms, search conditions: (1) must include a reasonable suspicion requirement; and (2) may only be imposed in cases involving a defendant who has to register as a sex offender. Without both preconditions, a court has no authority to impose a search condition.
On the payment condition, the Court held that 18 U.S.C. 3672 authorizes courts to order defendants to pay for treatment programs as a condition of supervised release. The first part of that sentence is correct; the last, and italicized portion, is not. Section 3672 has nothing to do with supervised release. Nothing. At all. The words "supervised release" are not found in that provision, nor is there a cross-reference to 18 U.S.C. 3583 (the statute that actually involves supervised release). Moreover, section 3672 allows reimbursement to the Director of the Administrative Office of the Courts, not to service providers. Yet, defendants, in practice, are expected to pay for their treatment (not reimburse a third party who pays for the treatment). Stated differently, payment conditions do not require a defendant to reimburse the Director, as 3672 contemplates, but rather to pay service providers for the actual service provided. The Court's perfunctory analysis on this issue is disingenuous. At a minimum, if 3672 is the basis for a payment condition, then the condition itself should mirror the statute. And finally, to think that Congress would authorize payment conditions as conditions of supervised release assumes that Congress has resuscitated debtors' prisons (because jail is the natural consequence of a violation of a condition of supervised release). Dickensian society is dead. The Seventh Circuit should know that. There are modern ways to enforce money judgments; imprisonment is not one of them.   
     
        

Thursday, October 23, 2014

Say Yes To Beer

Yesterday, the Kansas City Royals won their first World Series game since 1985. This is one reason to say yes to beer (especially if you live in Kansas City). But that is not what this post is about. This post is about something just as glorious as a Royals win: this Ninth Circuit decision (United States v. Bell).
Ok, the decision begins with a few duds (the panel rejected a Sixth Amendment claim and a sufficiency-of-the-evidence claim), but it ends with a bang. The panel vacated special conditions of supervised release that required the defendant to undergo substance abuse treatment and prohibited the defendant from consuming alcohol. Citing 18 U.S.C 3583(d), the panel vacated the conditions because there was no evidence that the defendant had substance abuse or alcohol problems (the district court also failed to make the necessary findings to support these conditions).
Say yes to beer.
This might seem like a rather insignificant victory, but, for those of us who have spent countless hours challenging nonsensical special conditions like the ones at issue in this case, it is validation. I took a look at the briefs filed in this case. The government's was particularly bad, asking the Court to affirm these special conditions because the "conditions are, at most, de minimis infringements on Bell's liberty." This begs the question: where in the statute does it allow unsupported special conditions as long as they are de minimis? (answer: nowhere) And how, again, is attending substance abuse treatment a de minimis intrusion? (answer: it is not). Someone should make the author of the government's brief attend substance abuse treatment. I mean, it's not that big of a deal. The government's argument was bad. There should have been a concession of error in this case, like there was in this case.
A few final thoughts on an alcohol ban: (1) the statute permits a limitation on "excessive use of alcohol," it does not allow a district court to impose a complete ban on alcohol (see 18 U.S.C. 3563(b)(7) & USSG 5D1.3(c)(7)); (2) a lot of products contain alcohol (even non-alcoholic beer contains alcohol); and (3) the 18th Amendment was repealed over 80 years ago. 
 
  

Wednesday, October 22, 2014

Cert. Grant: Chappell v. Ayala: Harmless Error and Habeas Corpus

When the Ninth Circuit grants habeas relief over a dissent, as it did in Ayala v. Wong:
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/25/09-99005%20web%20revised%202.pdf
it is likely that the Supreme Court will review the decision. And so it is in this case, now renamed Chappell v. Ayala.
Like many habeas cert. grants, the issue presented (at least the first issue) involves the reach of 28 U.S.C. 2254. It asks whether a lower court's harmless-beyond-a-reasonable-doubt finding is an "adjudication on the merits" under 2254(d). The Ninth Circuit said no, the theory being that the lower court did not reach the actual merits of the underlying constitutional claim. That might be true, but it is also true that, in reaching harmless-error review, the lower courts assumed a constitutional violation (in this case, a Batson violation where the district court held an ex parte hearing to ascertain the government's reasons for striking certain jurors).
This leads to the second issue, spotted by the Court itself, asking whether the Ninth Circuit properly applied harmless error review, as articulated in Brecht v. Abrahamson, 507 U.S. 619 (1993). Now, the analysis used to resolve this question could be extremely important (perhaps more so than the answer). Any discussion of harmless error review, as a concept, would apply beyond the narrow facts of this case (again, a Batson error). With that said, if the government claims harmless error in one of your cases, pay particular attention to this case. The decision could affect the outcome in your case.

Cert. Grant: Facial Challenges to the Fourth Amendment: Hotel Records In The Crosshairs

In December 2013, the Ninth Circuit, sitting en banc, issued this decision in Patel v. City of Los Angeles: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/12/24/08-56567.pdf
over the dissent of 4 Judges.
The decision does two things: it not only allows a facial challenge to a municipal code provision, premised on a Fourth Amendment violation, but accepts the challenge and strikes down the provision as unconstitutional. The Los Angeles municipal code provision at issue required hotel operators to collect and record guest information (name, address, number of guests, vehicle information, date and time of arrival/departure, room number, rate charged, amount, method of payment). No one had a problem with this. But the provision went further and allowed any police officer to inspect these records "at a time and in a manner that minimizes any interference with the operation of the business."  An inspection was done without a warrant and without consent. This, said the Ninth Circuit, was an unconstitutional search in every case. The municipal code provision was unconstitutional, and the Ninth struck it down.

The Supreme Court has agreed to review the Ninth Circuit's decision in two respects.

First, the Court will determine the propriety of facial challenges under the Fourth Amendment. According to the dissent in Patel, the Supreme Court rejected such facial challenges over 40 years ago in Sibron v. New York, 392 U.S. 40 (1968). According to the City's petition for a writ of certiorari, at least one Circuit (the Sixth), has held that facial challenges under the Fourth Amendment are unavailable (Warshak v. United States, 532 F.3d 521 (6th Cir. 2008)) (the petition is available here: http://sblog.s3.amazonaws.com/wp-content/uploads/2014/04/13-1175-Patel-Cert.-Petition.pdf)
This leads to this practice tip: if you are raising a constitutional issue, and that issue is (or appears to be) a facial challenge to a statute, always (always) include an as-applied challenge as well.

Assuming the answer to this first question does not moot the second, the Court will address the municipal code provision head on to determine whether the hotel operators have an expectation of privacy in guest information (is it a "search" under the Fourth Amendment), and, if so, whether the statute fails because it does not provide for pre-compliance judicial review prior to an officer's inspection.
This is where it gets complicated. For one, the information sought is not about the hotel operators, but about its guests. Yet, it is the hotel, and not the guests, that claims an expectation of privacy. Beyond that, the City tells us, in its cert. petition, that there are 70 similar ordinances, none of which require pre-compliance judicial review, and that the ordinances exist to combat nuisances such as prostitution, gambling, and even terrorism (no -- not that word). In other words, this type of ordinance is reasonable, and that is all that the Fourth Amendment requires. But, is that true? And do these purported justifications move the search (if there is one) from the administrative realm to the criminal realm (and thus requiring some sort of suspicion?) If still an administrative search, why is it unreasonable to require pre-compliance judicial review?
If you have a case involving an analogous municipal code provision, stay tuned.