Eleventh Circuit Takes Government’s Side in Federal Criminal Circuit Split Regarding Section 924(c)

September 29, 2009 by Kish & Lietz

On September 15, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, decided a federal drug and firearm case, U.S. v. Segarra. Drug laws and the gun statute 18 U.S.C. § 924(c) each carry heavy mandatory minimum sentences. The drug minimums are often longer than the minimum called for by § 924(c). In Segarra the Eleventh Circuit was confronted with what is called the “except” clause in § 924(c). Despite the language in this clause, the Eleventh Circuit ruled for the government, and said that the drug and § 924(c) minimum sentences must run consecutively with one another, instead of having the shorter gun sentence run concurrently with the drug penalty.

Mr. Segarra pleaded guilty to possession with intent to distribute crack, as well as possession of a firearm in furtherance of a drug-trafficking offense, in violation of § 924(c). Generally, § 924(c) provides for a minimum sentence of five years for possession of a gun during any crime of violence or drug trafficking crime, in addition to the punishment for the underlying crime. However, the section begins with the following exception: “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law…”

Mr. Segarra, who was sentenced to the minimum sentence of ten years for his drug crime and an additional five years for the firearm, argued on appeal that his five-year minimum consecutive sentence for the firearm was prohibited by the “except” clause because the underlying offense carried a greater mandatory minimum. The Second Circuit Court of Appeals followed this interpretation in U.S. v. Williams, reasoning that the plain language of the statute forbids the mandatory minimum for the firearm from applying where another provision of law requires a higher minimum sentence.

The Eleventh Circuit, and other circuits which have addressed the issue, rejected the literal meaning of the “except” clause. Yet, the Eleventh Circuit purported to rely on the plain meaning of the statute. The Court looked to § 924(c)(1)(D)(ii), which adds, “no term of imprisonment… under this subsection shall run concurrently with any other term of imprisonment imposed….” The Court said, “To read the statute as the Second Circuit did would ignore § 924(c)(1)(D)(ii).” However, the Second Circuit explicitly addressed that part of the statute in Williams, explaining that reading the “except” clause literally would prevent § 924(c) from being imposed at all, so there would be no concurrent sentences. Even if § 924(c)(1)(D)(ii) creates an ambiguity with regard to the “except” clause, that ambiguity must be resolved in favor of the criminal defendant.

We are disappointed that the Eleventh Circuit did not follow the interpretation of the Second Circuit and we hope that the Supreme Court will consider this issue and resolve the circuit court split in favor of defendants.

The Second Circuit’s opinion in Williams is available here.
The Eleventh Circuit’s opinion in Segarra is available here.

Federal Judges Testify That Criminal Sentences for Possession of Child Pornography May Be Too Long

September 18, 2009 by Kish & Lietz

In this article last week, The National Law Journal reported that the U.S. Sentencing Commission is holding a series of hearing in conjunction with the 25th anniversary of the Sentencing Reform Act to get feedback on federal sentencing issues. One of these hearings was held here in Atlanta, Georgia, this February. Testimony and written statements from the hearings is available here.

Last week’s hearings took place in Chicago on September 9 and 10. The agenda is available here. Testimony on the first day came primarily from federal judges, but also included probation officers and community impact speakers. The next day, the Commission heard from United States Attorneys and federal defense attorneys, as well as receiving perspectives on alternatives to incarceration.

Many of the judges who testified mentioned the unfairly long sentences recommended by the sentencing guidelines for people convicted of possessing child pornography.

Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel on Wednesday that sentencing for possession of child pornography, as opposed to manufacture or commercial distribution, may need to be changed. Many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders, they said.

Rosen emphasized that he doesn't condone possession of child pornography or understand it, but focused on the unfairness of treating one person sitting in his basement receiving videos over the Internet the same as a commercial purveyor of child pornography. In some cases, a person who has watched one video gets a maximum sentence that may be higher than someone sentenced for raping a child repeatedly over many years, he said. The average sentence for possession of child pornography in his district more than doubled, from about 50 months to 109 months, between 2002 and 2007, he said.

7th Circuit Chief Judge Frank Easterbrook, who testified with a separate group of appellate judges, agreed that the child pornography possession area might be ripe for review. He said it gives him pause when he sifts through a stack of sentences that includes a bank robber getting a 10-month sentence and a person convicted of downloading child pornography receiving a 480-month sentence. "One wonders if we aren't facing some unreasonable and unjustifiable disparities," Easterbrook told the panel.

One commissioner said that the issue is on the Commission’s priority list for the coming year. We hope that the Commission revises the guidelines to remedy the disparities for persons convicted of possession of child pornography.

Federal Appeal Regarding Funds Needed to Hire Criminal Defense Lawyers

September 17, 2009 by Kish & Lietz

Last month, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, and hears appeals from both civil and criminal federal cases, decided United States v. Kaley, a case regarding due process requirements for protective orders over property defendants wish to use to hire criminal defense counsel of their choice.

In Kaley, a wife and husband were each indicted with conspiracy, transportation of stolen property, obstruction of justice, and money laundering. The indictment included a criminal forfeiture count and the government obtained an injunction against the Kaleys encumbering the property listed in the forfeiture count. The government got that injunction ex parte, without a hearing in which the Kaleys could participate.

The property that the government enjoined was the property that the Kaleys planned on using to hire their criminal defense lawyers. Their legal fees were estimated at $500,000. To pay that amount, the Kaleys had gotten a home equity line of credit and used the proceeds to buy a certificate of deposit. The government claimed that those assets were “involved in” the Kaleys’ commission of their alleged crimes and sought to forfeit the property.

The Kaleys argued that the protective order prohibiting them from using the money prevented them from retaining counsel of their choice, in violation of their 6th Amendment right to the representation of counsel. The magistrate judge found that no hearing regarding the restraint on the property was necessary until trial and the district court agreed. The Kaleys appealed to the Eleventh Circuit.

The Court held that under Eleventh Circuit precedent, “a defendant whose assets are restrained pursuant to a criminal forfeiture charge in an indictment, rendering him unable to afford counsel of choice, is entitled to a pre-trial hearing only if the balancing test enunciated in Barker v. Wingo is satisfied. “ The Court further held that the District Court had not correctly applied the balancing test in the Kaleys’ case and reversed, requiring the district court to re-weigh the factors and determine whether the Kaleys may have a pre-trial hearing on the matter.

The most interesting part of this case is the Court’s discussion of its obligation to follow its own precedent in the case. The Court stated that, had it been writing from a blank slate without that precedent, it would have applied a different test to determine whether the Kaleys were entitled to a hearing. The case the Court was bound to follow, U.S. v. Bissell, was decided by the Eleventh Circuit in 1989.

Had the Court not been bound by Bissell, it would have applied the test announced by the Supreme Court in Mathews v. Eldridge, which decided whether an individual was entitled to a hearing under the 5th Amendment to contest governmental deprivation of a property interest in civil cases. Other circuits have applied Mathews in situations such as the Kaleys’. Had that test been applied, “the Kaleys would be entitled to a pretrial hearing on the merits of the protective order,” said the Court. “At the end of the day, however, we are duty bound to apply our case precedent and examine this matter under the framework outlined by this Court in Bissell.”

Double Jeopardy: Eleventh Circuit Decides Second Federal Criminal Indictment for Same Offenses Must Be Dismissed

September 1, 2009 by Kish & Lietz

Last week, the Eleventh Circuit Court of Appeals decided United States v. McIntosh, a federal criminal double jeopardy case. The Eleventh Circuit is located here in Atlanta and hears appeals in federal cases from Alabama, Florida, and Georgia. The Double Jeopardy Clause has been whittled down, but this case shows that there are still some circumstances in which the Eleventh Circuit recognizes its necessity.

In McIntosh, the defendant was indicted on drug and firearm charges and pleaded guilty to those charges. Before his sentencing, the prosecutor realized that the offense date in the original indictment was wrong, so he filed a second indictment, identical to the first, with the exception of only the corrected date, and a motion to dismiss the first indictment, which the court granted. McIntosh moved to dismiss the second indictment as barred by the Double Jeopardy Clause, but the court denied the motion. McIntosh then conditionally pleaded guilty to the second indictment, reserving his right to challenge the denial of his motion to dismiss.

The Eleventh Circuit held that jeopardy attached when McIntosh pleaded guilty to the first indictment, so the later indictment for the same offenses violated the Double Jeopardy Clause. The Court vacated his (second) conviction and remanded to the district court with instructions to dismiss the second indictment.

It wasn’t all victory for the defense, though. In its opinion, the Court discussed that the flaw in the original indictment was not fatal, but, at most, procedural. The district court had concluded that the dismissal of that indictment “effectively withdrew McIntosh’s guilty plea,” but the Eleventh Circuit pointed out that the district court had not vacated the conviction or set aside the guilty plea, so the “conviction still exists and awaits a sentence.”

The Court’s opinion is available here.