Monday, July 30, 2012

George F. Will: Federal "Fishing Expedition"

George F. Will provided valuable insight on the growth of federal criminal law:
The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon. Nevertheless, our unhinged government, with an obsession like that of Melville’s Ahab, has crippled Nancy Black’s scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison. This Kafkaesque burlesque of law enforcement began when someone whistled.

Black, 50, a marine biologist who also captains a whale-watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger. Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted “harassment” of a marine mammal, which is an “environmental crime.” NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a “material false statement” to federal investigators, which is a felony under the 1863 False Claims Act, intended to punish suppliers defrauding the government during the Civil War.

A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. Call this a fishing expedition.

She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing them feeding on strips of blubber torn from their prey — a gray whale.

To facilitate photographing the killers’ feeding habits, she cut a hole in one of the floating slabs of blubber and, through the hole, attached a rope to stabilize the slab while a camera on a pole recorded the whales’ underwater eating.

So she is charged with “feeding” killer whales that were already feeding on a gray whale they had killed. She could more plausibly be accused of interfering with the feeding.

Never mind. This pursuit of Black seems to have become a matter of institutional momentum, an agent-driven case. Perhaps NOAA, or the Justice Department’s Environmental Crimes Section, has its version of Victor Hugo’s obsessed Inspector Javert.

In any event, some of the federal government’s crime-busters seem to know little about whales — hence the “whistle-as-harassment” nonsense.

Six years ago, NOAA agents, who evidently consider the First Amendment a dispensable nuisance, told Black’s scientific colleagues not to talk to her and to inform them if they were contacted by her or her lawyers. Since then she has not spoken with one of her best friends.

To finance her defense she has cashed out her life’s savings, which otherwise might have purchased a bigger boat. The government probably has spent millions. It delivered an administrative subpoena to her accountant, although no charge against her has anything to do with finances.

In 1980, federal statutes specified 3,000 criminal offenses; by 2007, 4,450. They continue to multiply. Often, as in Black’s case, they are untethered from the common-law tradition of mens rea, which holds that a crime must involve a criminal intent — a guilty mind. Legions of government lawyers inundate targets like Black with discovery demands, producing financial burdens that compel the innocent to surrender in order to survive.

The protracted and pointless tormenting of Black illustrates the thesis of Harvey Silverglate’s invaluable 2009 book, “Three Felonies a Day: How the Feds Target the Innocent.” Silverglate, a civil liberties lawyer in Boston, chillingly demonstrates how the mad proliferation of federal criminal laws — which often are too vague to give fair notice of what behavior is proscribed or prescribed — means that “our normal daily activities expose us to potential prosecution at the whim of a government official.” Such laws, which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes.

By showing that Kafka was a realist, Black’s misfortune may improve the nation: The more Americans learn about their government’s abuse of criminal law for capricious bullying, the more likely they are to recoil in a libertarian direction and put Leviathan on a short leash.      
Credit: The Washington Post 

Wednesday, July 25, 2012

Criminal History Under the Federal Sentencing Guidelines

The United States Sentencing Guidelines ("USSG") are used by federal judges to help determine what an appropriate sentence is for a particular defendant.  While the USSG are no longer mandatory, a sentencing court must properly determine a defendant's guideline range.  Generally, a defendant's guideline range is determined by two factors: the defendant's (1) offense conduct, and (2) criminal history.  This post will explain how a defendant's criminal history is calculated.

The vertical axis of the "Sentencing Table" provides for categories based on criminal history points.  The following is a picture of each category (I, II, III, etc.) and how many points each category is attributed.

For example, a defendant who has 3 criminal history points will find herself in criminal history category II.  Determining how many criminal history points a defendant has is governed by Chapter Four of the USSG.

§4A1.1 of the USSG provides the following:
The total points from subsections (a) through (e) determine the criminal history category in the Sentencing Table in Chapter Five, Part A.
(a)  Add 3 points for each prior sentence of imprisonment exceeding one year and one month.
(b)  Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).
(c)   Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this subsection.
(d)  Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.
(e)  Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was counted as a single sentence, up to a total of points for this subsection. 
Various exceptions apply which may result in certain prior sentences not being counted.  It is important to consult with an experienced federal criminal lawyer who will make sure your criminal history is properly calculated.

Tuesday, July 24, 2012

Eleventh Circuit Activity

United States v. Smith

Opinion Date: July 23, 2012
Areas of Law: Constitutional Law, Criminal Law
Defendant Daniel Anthony Smith entered a conditional guilty plea to receiving and attempting to distribute child pornography. Exercising his preserved right to appeal, Defendant sought review of the district court's denial of his motion to suppress inculpatory physical and testimonial evidence. He contended on appeal to the Eleventh Circuit, as he did in the district court, that the officers' warrantless and uninvited entry into his house violated the Fourth Amendment and that the evidence that the officers gathered after that entry should be suppressed under the fruit of the poisonous tree doctrine. "Even assuming that the officers' initial entry into Mr. Smith's home violated the Fourth Amendment, suppression is unwarranted because Mr. Smith's later consent was not tainted by the entry." The Eleventh Circuit therefore affirmed the judgment of the district court and Defendant's conviction. 
View Case on: Justia  Google Scholar

Texas Men Sentenced for Federal Hate Crime

Three men were sentenced yesterday under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which was enacted in October 2009.  The bill is codified at 18 U.S.C. 245 and proscribes intimidation of a person based on race, color, religion, or national origin.  The statute provides for a maximum term of imprisonment if bodily harm results from the acts.

Here is the story from the AP, published in The Statesman:
— Three white men convicted of attacking a black man at a Houston bus stop last summer were given prison sentences on Monday ranging from 2 1/2 years to more than six years in the first Texas case to fall under a relatively new federal hate crime law.
Before being sentenced, Michael McLaughlin and Brian Kerstetter apologized for what they had done but insisted that they were not racist and that their actions were not motivated by white supremacist beliefs. The third defendant, Charles Cannon, did not speak during the court hearing but his attorney said his client was sorry.
Authorities insisted the actions of all three men had been motivated by racial hatred.
"The jury found these three defendants attacked the victim in this case because of the color of (his) skin," said Robert Moossy Jr., acting section chief of the Department of Justice's Civil Rights Division's Criminal Section.
All three were convicted in April under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, passed in 2009 and named after two well-known hate crime victims. The federal law allows for lengthier prison sentences than the state assault charges that were originally filed against the three men, so local prosecutors turned the case over to the U.S. Attorney's Office.
The federal law criminalizes violent acts or attempted violent acts that occur because of such characteristics as a person's race, religion, gender, disability or sexual orientation.
The victim in the Texas case, Yondell Johnson, did not attend Monday's sentencing hearing. But Houston community activist Quanell X, a spokesman for the victim and his family, said Johnson was happy "that justice was served."
Kerstetter received the longest sentence — 77 months — from U.S. District Judge Kenneth Hoyt because of his long criminal history, including convictions for robbery and aggravated assault. Cannon received a 37-month sentence and McLaughlin was sentenced to 30 months. All three men had faced up to 10 years in prison.
The convicted men had approached Johnson in August 2011 at a bus stop and tried to intimidate him by taking off their shirts and showing him their white supremacist tattoos, Moossy said. When Johnson tried to ignore the men, they attacked him by punching and kicking his face, head and body after knocking him to the ground.
Authorities said Johnson was not seriously injured because he was able to fight off his attackers before police arrived.
Before being sentenced, both Kerstetter and McLaughlin told Hoyt that their tattoos were not a reflection of who they were and that they had to get them while in prison on other crimes in order to survive their incarcerations.
"I did not assault Mr. Johnson because of his race," Kerstetter said. "All I did was break up a fight. I'm not a hater."
McLaughlin blamed his drinking for attacking Johnson and that "just because I got these tattoos, I'm not a card-carrying member of a white supremacist group."
"It doesn't matter how you rationalize your behavior. It's not going to be tolerated," said Stephen Morris, special agent in charge of the Houston FBI office.
Since the hate crime law was passed in 2009, 38 defendants have been charged nationwide — including Cannon, Kerstetter and McLaughlin — in 11 cases, Moossy said. The first conviction under the new law took place in Arkansas in 2011. Charges have also been filed in Mississippi, New Mexico and Washington

Friday, July 20, 2012

Officers Violate Rights

United States District Judge Timothy J. Corrigan ruled yesterday that officers from the St. Johns County Sherrif's Office violated Joel Studivant's Fourth Amendment rights. The entire article is produced below.
A federal judge has ruled a secret recording between a suspect and his attorney at the St. Johns County Sheriff’s Office violated his Fourth Amendment right against unreasonable search and seizure and a federal wiretap law.
Joel Keith Studivant’s Fourth Amendment rights were also violated when a detective snatched from his attorney a statement he’d written but didn’t want to turn over, ruled U.S. District Judge Timothy Corrigan.
The 2009 case involves Studivant, then 43, and his conversation in an interview room at the Sheriff’s Office with defense attorney Anne Marie Gennusa. The conversation occurred before Studivant, of St. Augustine, was charged with violating a domestic-violence injunction in June 2009.
Gennusa and Studivant filed a lawsuit saying the detective involved in the interview, a supervisor and Sheriff David Shoar, as head of the agency, violated the Fourth Amendment and the Federal Wiretap Act.
The lawsuit states that the plaintiffs were entitled to a reasonable expectation of privacy that was violated when detective Thomas Marmo left them in the interview room without telling them they were being secretly recorded. There were also no postings about such recordings. The lawsuit argues that the act violated attorney-client privilege.
It also accuses Shoar of knowingly allowing such secret interviews as a policy, practice and procedure of his agency. Shoar at the time called the lawsuit the “most frivolous” he’d ever seen.
The lawsuit also says that Marmo, at the direction of his supervisor, illegally and forcefully snatched from Gennusa a statement Studivant had written that neither she nor he wanted to give him. The seizure was unreasonable because the statement was taken without a warrant, according to the lawsuit.
Corrigan ruled Tuesday that Marmo and Sgt. Brian Canova were wrong for not telling the pair they were being recorded and for seizing the statement. It was noted in Corrigan’s order that the Fourth Amendment covered both instances because it governs not only the seizure of tangible items, but extends to the recording of oral statements.
Corrigan ruled the plaintiffs didn’t prove their case against Shoar.
While Gennusa and Studivant asked for actual and compensatory damages, punitive damages and payment for attorney’s fees and costs, Corrigan’s order said they could only seek the latter.
Attorney John Jolly Jr., representing the defendants, said an appeal is being considered. He declined to comment further.
Jacksonville civil rights attorney Bill Sheppard and his partners, Matt Kachergus and Bryan DeMaggio, filed the lawsuit. “This is an important case because it preserves the attorney-client privilege, which is essential to our system of justice,” Sheppard said.
One of several issues that came up as part of the interview and lawsuit involved Studivant’s voluntary written statement of his version of the charge against him.  Studivant began writing the statement while Marmo and Gennusa were in the room and continued when Marmo left. At one point, Gennusa put the statement in her purse, left the room and returned to tell Studivant he was about to be arrested.
The video of the incident shows Marmo return to the room as Gennusa has taken the statement from her purse. They have a verbal exchange in which Marmo insisted the paper was Sheriff’s Office property.  Marmo left the room again, returned a short time later and snatched the statement from Gennusa’s hand after being told to by his sergeant, according to the lawsuit. The snatching was done with such force it broke the fingernail on Gennusa’s left ring finger. After seizing the statement, Marmo arrested Studivant. The charges were later dismissed after Studivant entered a pre-trial intervention program.
A Sheriff’s Office internal affairs investigation sustained an administrative charge of “failure to use sound judgment” against Marmo involving the seizure of the statement, said Sgt. Chuck Mulligan, an agency spokesman. Mulligan said Marmo received a “consultation,” which is equivalent to a verbal counseling and not considered discipline.
Marmo filed a complaint with The Florida Bar, saying Gennusa “tampered with evidence, hindered a police investigation and acted outside the scope of her authority as an attorney for her client.” The Bar’s grievance committee found that Gennusa “remained professional ... and sought legitimate means to resolve the matter.”
Along with monetary damages, the lawsuit sought to have the Sheriff’s Office stop secret audio and video recordings of attorney-client conversations. The agency posted signs that recordings were being made after the suit was filed.
Story published in The Florida Times-Union by Jim Schoettler

Thursday, July 19, 2012

"Florida Must Get Smart with Prisons"

The Florida Times Union published an editorial today highlighting a thorough study from the Pew Center on the States:
Florida led 35 states in increasing prison time from 1990 through 2009, according to a new study from the Pew Center on the States.
The average time behind bars increased by 166 percent. That implies the average time was low in 1990, and it was.
Florida went from the state with the shortest time served to one of the longest
The piece continues by outlining possible causes, posing the question "is it worth it?' and concluding with alternatives.  It is pointed out that Florida should take a cue from a state most people would not think is progressive regarding prison reform:
One of the leaders in the smart justice approach is Texas, hardly known as a soft-on-crime state. Texas began this in 2007, shifting nonviolent prisoners out of jail and funding less expensive alternatives.
Gov. Rick Perry has led the way in proposing smart justice reforms in the Judge Roy Bean state.
If Texas can do it, then Florida can.


Wednesday, July 18, 2012

Editorial Thoughts on Waivers in Plea Agreements

The New York Times issued an editorial on the unfairness of appeal waivers found in the majority of plea agreements filed in federal court.  The entire piece is below reprinted below:
Trial Judge to Appeals Court: Review Me
Earlier this year, an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases — 97 percent of federal cases, 94 percent of state cases — are resolved by guilty pleas. “Criminal justice today,” he observed, “is for the most part a system of pleas, not a system of trials.”
In this context, the recent rejection in a federal district court by Judge John Kane of a plea bargain deal between a defendant and federal prosecutors is truly startling. Judge Kane rejected the deal in part because the defendant waived his right to appeal to a higher court. The judge insisted the matter go forward to trial so that the United States Court of Appeals for the Tenth Circuit could review it: “Indiscriminate acceptance of appellate waivers,” he said, “undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions.” The case is scheduled for trial next month in Denver.
Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren't really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers. The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence. All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial.
In a sample of almost 1,000 federal cases around the country, agreements included waivers about two-thirds of the time and more often in some places. Every federal appeals court has ruled that in general waivers are enforceable as part of the efficient administration of justice. Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself.
An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues. Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently.
Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.

Former Navy SEAL Sentenced

Nicholas Bickle, an ex-Navy SEAL member, was sentenced yesterday to 17.5 years in prison by U.S. States District Judge Roger Hunt.  From the Washington Post:
Prosecutors accused Bickle of controlling the sale of military hardware ranging from ammunition to night-vision goggles and high-tech rifle targeting scopes.
A sniper rifle, AK-47 assault rifles, M92 submachine guns, military-grade Ruger 9mm handguns and a wheeled footlocker with a false bottom were seized by undercover federal agents at Bickle’s San Diego apartment, a storage unit he leased in nearby El Cajon, Calif., and in Las Vegas.
Agents also found five pounds of military C-4 explosive at the Durango, Colo., home of Bickle’s friend Richard Paul.
“The weapons trafficked in this case were not your ordinary firearms,” U.S. Attorney Daniel Bogden in Las Vegas said in a statement. “They were fully-automatic machine guns that likely would have ended up in the hands of criminals.”
“The motive was profit,” prosecutor Phillip N. Smith Jr. told the judge. He invoked the memory of a shooting last September at an IHOP restaurant in Carson City, Nev., where a gunman opened fire with an AK-47 — killing four people and wounding seven, including Nevada Army National Guard members before killing himself. Bickle is not linked to that case.
The judge agreed, saying “illegal weapons, indiscriminately sold, can wind up in hands that can cause a lot of havoc.”

Tuesday, July 17, 2012

Teenage Drug Kingpin Arrested

The following is from an ABC News report out of Ohio:
Ohio police have arrested an alleged drug kingpin, a 17-year-old accused of running a multimillion dollar ring that distributed high-grade marijuana through two school districts and netted $20,000 a month.
When cops raided the boy's bedroom at his parents' home, they found over $6,000 in cash, prosecutors said.
 The article notes that he is going to be charged as a juvenile (he was 16-years-old when the drug deals occurred).  Multiple people (adults) have been indicted as part of a wide-spread growing operating.  By virtue of being under 18 the "kingpin" will likely receive the best treatment.

Monday, July 16, 2012


Former baseball "great" (stats here), Lenny Dykstra plead guilty last week in federal court to bankruptcy fraud, concealment of assets and money laundering.  Under the charges, Dykstra faces a maximum term of imprisonment of 20 years.  Dykstra is currently in state custody, serving a 3 year sentence for grand theft auto.  The full story from CNN is linked below.  Perhaps his nickname, "Nails," will go over well in federal prison.

Baseball great Lenny Dykstra pleads guilty to federal bankruptcy fraud

Friday, July 13, 2012

Florida Drug Law Ruling

State of Florida v. Adkins

Judge: Canady
Areas of Law: Constitutional Law, Criminal Law
Section 893.13 of the Florida Comprehensive Drug Abuse Prevention and Control Act, provided that “it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance… or … to be in actual or constructive possession of a controlled substance.” The law did not specify the mental state required for conviction. In prior decisions, the Florida Supreme Court determined that knowledge of the presence of the substance and knowledge of the illicit nature of the substance were required. In response, the Legislature, in 2011, stated that the decisions were contrary to legislative intent. “The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense.” The statute does not eliminate the element of knowledge of the presence of the substance. Since the enactment, each court of appeal has ruled that the statute does not violate requirements of due process. The U.S. District Court (M.D. Fla.) concluded, however, that it is unconstitutional. Based on that decision, a trial court dismissed a case under the Act. The Florida Supreme Court reversed.
View Case on: Justia  Google Scholar

Monday, July 9, 2012

Unbalanced System

Below is a link to an interesting story published at The Crime Report.  It highlights the numerous convictions overturned in Texas due to improper behavior by prosecutors in the past 20 years.  As the article points out, the Texas Bar is remarkably inactive regarding punishment.