Government Urges Supreme Court To Resolve Circuit Split Over Federal Identity Fraud Statute

September 23, 2008 by Carl Lietz

Most of us that practice criminal law in federal court have become familiar with the federal identity fraud statute. In essence, this statute requires a federal judge to impose a two year mandatory minimum sentence on an individual who, in the context of committing a certain enumerated federal felony offense, "knowingly transfers, possesses, or uses . . . a means of identification of another person . . . ." Significantly, this two year sentence must be imposed to run consecutively to any other sentence that the court imposes.

Currently, a split in the circuits exists on the manner in which the term "knowingly" has been interpreted. In some circuits, the Government is required to prove that the defendant is aware that the "means of identification" at issue actually belonged to another person. In other circuits, however, the Government is not required to make such a showing. This showing can be significant because in some cases, particularly those involving undocumented aliens, the Government is unable to prove that the defendant knew that the means of identification actually belonged to someone else.

Earlier this year, in two separate cases, lawyers representing criminal defendants in federal court asked the Supreme Court to resolve the circuit conflict on this important issue. Although these requests were not unusual, the Government's response to these petitions seems to ensure that the Supreme Court will in fact take up this issue in the upcoming term. As reported over at the Scotusblog, in its brief in response to one of the cert petitions, the government conceded that a “clear and entrenched” conflict existed over the proper interpretation of the law. And based on this conflict, the Justice Department recommended that the Court grant cert to resolve the conflict. The Government's response brief can be found here, and additional background on the issue can be found here.

Federal Judge in Atlanta Declares Mandatory Minimum Portion of Federal Statute Unconstitutional

September 17, 2008 by Carl Lietz

In a ruling that is all too rare in federal court, a federal district judge presiding here in Atlanta, Georgia declared the mandatory minimum portion of a federal criminal statute unconstitutional. At trial, the defendant was convicted of an offense that required the Court to impose a mandatory minimum sentence of 30 years. Before sentencing, however, the criminal defense attorney who represented the defendant filed a motion with the Court, asking the Judge to declare the mandatory minimum portion of the statute unconstitutional under the Eighth Amendment's prohibition on cruel and unusual punishment.

In a methodical and well-supported decision, the Court agreed with the defendant's position, concluding "that a 30-year mandatory minimum sentence for [the defendant], under the specific facts of his case, is so grossly disproportionate to his crime as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution."

In reaching its decision, the Court recognized "the serious nature of [the defendant's] offense. [The Defendant] believed a ten year old child to exist and took steps to engage in sexual activity with her." However, the Court pointed out that "it is also a fact that [the defendant] never had any contact, sexual or otherwise, with the child. No harm was suffered. Of course, it was not possible for a child to be harmed, because the child was a creation of law enforcement, and no real child exists."

The federal public defenders that handled this case have obviously done an outstanding job. For those of you who want all the details, the full opinion can be found here.

Atlanta Federal Criminal Case: Can Police Search a Spouse's Computer?

September 9, 2008 by Paul Kish

We are working on a federal criminal case here in Atlanta where one of the issues is whether the police broke the law when a wife gave them her husband's computer and the police then searched through it finding incriminating materials. This is becoming more and more common, questions revolving around whether one person can let the authorities look through a computer belonging to another person.

In our case, the couple were in the middle of a divorce. The husband moved out, but left behind several computers, one for personal use, and others that were apparently for his job. On the personal computer, the wife got her "friend" to hack into it. This is crucial, because when the police showed up, she told them that her husband used a password which previously prevented her from getting into certain parts of the computer. The police took the computers, and later found information that prosecutors want to use in the criminal case. We are in the middle of fighting over whether this was OK.

The general rule is that police can get "consent" from a person who has "common authority" over an area or item, and if the police then seize and search through such an area, their actions are lawful. The United States Court of Appeals for the Eleventh Circuit recently published an opinion on this exact issue. In that case, the Court of Appeals ruled that the police were justified in believing that a motel manager had the authority to allow for the search of a room even though the guest's time had not yet run out. The reason the police should have believed that the manager had authority to consent to the search was because the guest had just been arrested on other charges and it was unlikely he would get out on bond before morning.

Our case is somewhat similar to a decision issued by the U.S. Supreme Court two years ago. That case involved a wife who gave the police permission to search, but the husband objected. The Supreme Court ruled that when a present occupant objects, the police cannot use the consent given to them by the other occupant to justify their entry and seizure of incriminating evidence.

In our case in Atlanta, we will be fighting over whether the wife's statement that her husband had prevented her from getting into certain parts of the computer put the police on notice that she did not have authority to hand over that computer. As said previously, this issue is becoming more and more common, and could have an impact on other cases.

Federal Criminal Attorneys Submit Briefs In Important Federal Criminal Appeal

September 8, 2008 by Carl Lietz

In previous posts on this blog, Paul Kish and I have both discussed the important federal criminal appeal that is currently pending here in Atlanta, Georgia before the Eleventh Circuit, the federal court that hears appeals from cases in Georgia, Alabama and Florida. As previously discussed here and here, later this year, the Eleventh Circuit will decide whether the pattern jury instruction that courts typically utilize in federal fraud cases accurately defines what the government must prove in order to convict an individual who is charged under the federal mail fraud statute.

Specifically, the Court will decide "whether the district court erred when it gave the pattern jury instruction about mail fraud . . . and declined to instruct the jury that the government must prove that the defendants devised or participated in a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension." In addition, the Court will also address whether it should overrule the decision that established the rule which now requires the Government to prove that a defendant participated in a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension.

As discussed by Ellen Podgor over at the White Collar Crime Prof Blog, the attorneys representing the defendant in this important federal criminal case recently filed their initial brief. In addition, the National Association of Criminal Defense Attorneys also recently filed an amicus brief in support of the positions asserted by the defendant. The defendant's brief can be found here, and the brief filed on behalf of NACDL can be found here. The importance of this case cannot be overstated, and we will be sure to follow this case until it concludes.