Dean: Eleventh Circuit Holds in SORNA Retroactivity Case that the Attorney General Properly Invoked the Good Cause Exception to the Notice and Comment Procedures Required by the APA

April 30, 2010 by Kish & Lietz

This week, the Eleventh Circuit held that the rule making the federal Sex Offender Registration and Notification Act (SORNA) retroactive was valid. In passing the rule, the Attorney General did not provide a notice and comment period as required by the Administrative Procedure Act (APA). The Court held, over Judge Wilson’s strong opinion concurring only in the result, that the Attorney General had “good cause” to skip the mandatory notice and comment procedures.

This issue is the subject of a Circuit Court split. The Fourth Circuit has held that the Attorney General complied with the APA, whereas the Sixth Circuit concluded that the retroactivity rule is invalid for failure to show good cause.

The good cause exceptions are contained at 5 U.S.C. §§ 553(b)(3)(B) and (d)(3). These exceptions allow the agency to skip notice and comment “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” The exception must be read narrowly.

The AG argued that the rule would (1) provide guidance to eliminate uncertainty and (2) prevent the delay in registration of sex offenders who would evade during the notice and comment period. The Court held that the guidance rationale alone may not have established good cause, but counted “to some extent” because people needed to know whether to register. As for the public safety rationale, the Court held that emergency situations are not necessary for the good cause exception. The Court held that SORNA’s increased punishment over existing laws justified bypassing the APA’s notice and comment requirement.

Judge Wilson concurred in the result only. In his well-reasoned opinion, he explained that the delay entailed in a notice and comment period would not have caused any emergency or threat of real harm. Federal law already provided for punishment for failure to register and state law provided for punishment as harsh as that provided by SORNA. He concurred in the result due to harmless error. His concluding paragraph sums up our feelings on the case:

I am troubled by the precedent the majority opinion sets today. It is now easier for an administrative agency to avoid notice and comment in our circuit by claiming an emergency or threat of serious harm, whether or not the facts support one. As Dean’s counsel pointed out at oral argument, today’s holding will apply to APA appeals unrelated to SORNA.

Stevens: 8-1 Supreme Court Decision Holds Criminal Statute Unconstitutionally Overbroad and Invalid under the First Amendment

April 22, 2010 by Kish & Lietz

This week, the Supreme Court held that 18 U.S.C. § 48, which criminalized the creation, sale, or possession of depictions of animals being harmed in illegal ways for commercial gain, is unconstitutionally overbroad. Although it had an exemption clause for portrayals with “serious religious, political, scientific, educational, journalistic, historical, or artistic value” the statute criminalized a significant amount of speech protected by the First Amendment.

The statute defines “depictions of animal cruelty” as including portrayals of animals being “wounded or killed,” among other actions with more cruel connotations. The Court held that, because “wound” and “kill” are not ambiguous, they may not be interpreted in light of neighboring words that imply cruelty. In addition, “depictions of animal cruelty” include any wounding or killing that is illegal where the depiction is sold or possessed, regardless of whether that action was legal where it occurred.

Thus, depictions of any animal being harmed legally could be criminalized if possessed or sold in a place where such actions were not legal. The prime example of criminalized protected speech was hunting magazines and television shows that are distributed or aired in Washington, D.C., where all hunting is illegal. It could also criminalize representations of the treatment of livestock where states have different agricultural regulations.

The legislative intent of this statute was to criminalize so-called “crush videos,” in which helpless animals are tortured and killed by women’s feet and which are enjoyed by some fetishists. The prosecution argued that prosecutorial discretion would limit the government’s use of this statute to cases of “extreme cruelty.” The Court noted, however, that when the statute was enacted, the Executive Branch announced that it would limit prosecutions to portrayals of “wanton cruelty to animals designed to appeal to a prurient interest in sex,” i.e. crush videos. In this very case, the prosecution went beyond that initial declaration of prosecutorial restraint: Mr. Stevens was prosecuted for selling videos of pit bulls in dogfights and attacking farm animals, where such conduct was allegedly legal.

We should emphasize that the Court began its discussion by acknowledging that the underlying conduct of animal cruelty was not at issue here. Cruelty to animals is still illegal. Stevens addressed only the First Amendment principles involved in the depictions of animals being harmed. According to PETA, a more narrowly-tailored statute is already in the works.

The opinion is available here.

Lee: Eleventh Circuit Court of Appeals Upholds Conviction for Attempt to Entice a Minor Even Though All Communications Were With “Parent” of Fictitious Minors and Defendant Never Made Arrangements to Meet Minors

April 20, 2010 by Kish & Lietz

On Friday, the Eleventh Circuit Court of Appeals issued its opinion in United States v. Lee. The Court held affirmed Mr. Lee's convictions, holding that his communications with a "mother" of minors, absent any travel arrangements, were sufficient evidence of attempting to entice a minor. Judge Martin filed a vigorous dissent, arguing that the evidence failed to support that Mr. Lee took a substantial step toward that crime. She concurred with the majority in affirming Mr. Lee’s other federal criminal convictions.

Mr. Lee communicated with a postal inspector who was posing as a mother of two minor girls. He never communicated with anyone claiming to be a minor, although he asked the “mother” to share information and photographs with her daughters and requested photos in return. He discussed meeting them in general terms, but at one point noted that their first meeting would be as friends. He never made travel arrangements.

Judge Martin declared her “concern that the majority opinion does not clearly demarcate despicable but lawful talk from a criminal attempt punishable by up to 30 years in prison.” While the interaction was “disturbing,” no evidence showed that Mr. Lee took any steps to extend his relationship beyond his home. His actions should not count as a “substantial step toward enticing a child to engage in illicit sexual conduct.” For that reason, Judge Martin would have vacated the attempt conviction.

The Court’s opinion and Judge Martin’s dissent are available here.

USSC Issues Press Release Regarding Amendments to Federal Sentencing Guidelines

April 19, 2010 by Kish & Lietz

As we reported last week, the United States Sentencing Commission (USSC) has been voting on proposed amendments to the Federal Sentencing Guidelines. Today the USSC issued a press release explaining additional amendments, including:

• Expanding the availability of alternatives to incarceration;
• Amending policy statements regarding age, mental and emotional conditions, physical condition, and military service to recognize their potential relevance;
• Criminal history calculation changes we discussed in this post last week;
• Expanding the guideline for offenses involving individual rights to include new hate crime offenses; and
• Changing the guidelines regarding sentencing organizations by clarifying required remediation efforts and reporting obligations for effective compliance and ethics programs.

Although the Commission has not made the specific language of its proposed amendments public, we are especially anxious to see what the Commission has to say about the availability of alternatives to incarceration. In the press release the Commission mentioned that it has already agreed to amend the guidelines by extending Zone B of the sentencing table by an additional offense level. In other words, under the Commission’s proposed amendment, an individual with a final offense level of 11 will no longer be required to go to prison if a Judge exercises her discretion to allow home confinement in lieu of institutional confinement.

Read the press release here.

Recency Criminal History Points to be Deleted from Federal Sentencing Guidelines

April 15, 2010 by Kish & Lietz

This Tuesday, the United States Sentencing Commission (USSC) voted to delete 4A1.1(e) from the Federal Sentencing Guidelines Manual. This Guideline addresses the recency of previous imprisonment in calculating the criminal history points that increase a defendant’s sentence.

4A1.1(e) currently reads:

Add 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b) [more than 60 days] or while in imprisonment or escape status on such a sentence. If 2 points are added for item (d) [which adds points where the crime was committed while under a sentence, including probation, etc.], add only 1 point for this item.

On May 10th, this amendment, along with any others passed, will be sent to Congress, as set forth in 28 U.S.C. § 994(p). Congress may pass legislation rejecting the amendments within 180 days. If no action is taken, the amendments will become effective by November 1, 2010. In the meantime, criminal defense lawyers should argue that sentencing courts should not apply 4A1.1(e) for the same reasons the USSC voted to eliminate it.

The proponents of this amendment have argued that the recency and status guidelines are redundant, unfairly adding to the cumulative impact of the criminal history calculation. Statistics have shown that the recency of a prior record, when combined with the status provision in subsection (d), predicts recidivism in only 1 case out of 1000. In addition, not only does recency fail to reflect meaningful differences in past criminal conduct, it is actually more likely to increase punishment for less culpable defendants. The effect 4A1.1(e) and (d) have on deported immigrants who illegally reenter the country is particularly egregious, considering other cumulative guidelines and their usual reasons for re-entry.

The testimony and written statement of Margy Meyers, of the Federal Defender Sentencing Guidelines Committee, and Marianne Mariano, a Federal Public Defender in the Western District of New York, is particularly important reading for practitioners who would argue against application of 4A1.1(e) prior to its taking effect. All of the public comments on the proposed amendments to the Guidelines are available here.

Thank you to L. Burton Finlayson for the heads up on this notable development.

Fowler: Miniscule Evidence Needed to Show Federal Nexus when Murder Prosecuted under Statute Intended to Punish Federal Witness Tampering

April 14, 2010 by Kish & Lietz

Today the Eleventh Circuit, which hears appeals from federal cases here in Atlanta, decided U.S. v. Fowler. The court took the government’s side in a circuit court split, holding that evidence is sufficient to establish the federal nexus of 18 U.S.C. § 1512(a)(1)(c) where any “possible or potential communication [may be made] to federal authorities of a possible federal crime.” In other words, the government can make a federal case out of any murder, if the victim might have possibly given information that may have been eventually transferred to a federal officer or federal judge.

The facts of this case are heartbreaking. The case certainly merited the charge of murder of a police officer. The evidence showed that three men robbed a hotel, then recruited Fowler and another man to help them rob a bank the next morning. They prepared in a cemetery, dressing in black clothing, drinking, and taking drugs. Fowler didn’t want them to see his cocaine supply, so he walked away to use it. While he was gone, a local police officer showed up. Fowler snuck up behind him and grabbed his gun, while the others helped him gain control. Fowler eventually shot him in the back of the head.

This was a dreadful crime, but murder cases are not common in federal court. Why was this a federal case? In 2004, a spokesman for the Middle District of Florida’s U.S. Attorney’s office explained that the local authorities requested federal prosecution. He cited the multiple suspects, multiple crimes, and wide jurisdiction, but all of these factors are common in state-prosecuted cases.

The statute used, § 1512, is intended to punish witness tampering. One of the elements of subsection (a)(1)(c) is a federal nexus – the murder must have been intended to prevent communication relating to the possible commission of a federal offense. Fowler argued that the evidence did not sufficiently prove this federal nexus.

The Court held that the federal nexus requirement does not require proof of the victim’s state of mind, i.e. a plan to communicate information to federal authorities (unlikely with the victim in this case.) Instead, the statute focuses on the defendant’s intent “to prevent the murder victim from potentially communicating with federal law enforcement officials generally about a possible federal offense."

Under this holding, any murder intended to cover up anything that could arguably be investigated as a possible federal crime is a federal case. In this previous post, we discussed the danger of over-federalization of crime. We have also discussed some differences between federal and state prosecutions here.

The Court’s opinion is available here.

Upcoming Federal Eleventh Circuit Criminal Decision: Is Sholam Weiss Entitled to Resentencing Following His Extradition from Austria?

April 8, 2010 by Kish & Lietz

Last month, the Eleventh Circuit Court of Appeals, which hears appeals in federal cases here in Atlanta, Georgia, heard oral arguments in a habeas corpus case filed by Sholam Weiss. Weiss argues that the United States government has reneged on promises it made to the Austrian authorities to obtain extradition.

Ten years ago, Weiss was sentenced to 845 years in absentia after a jury found him guilty of RICO violations, money laundering, and other charges stemming from the white collar fraud that resulted in the downfall of the National Heritage Life Insurance Company. Just before jury deliberations began, Weiss fled the country. He was eventually arrested in Austria pursuant to an international arrest warrant. Austria initially refused to extradite Weiss, but later agreed after extensive negotiations and exchanges of information.

Weiss’s appellate lawyers argue that Austria would not have extradited Weiss had the U.S. not promised that Weiss would be given the opportunity to appeal his convictions and be resentenced. In his habeas corpus petition to the Middle District of Florida, Weiss argued that the extradition is invalid, so the United States has no personal jurisdiction over him and he should be released in Austria. The Eleventh Circuit is more likely to consider specific performance, requiring the U.S. to follow through on its promises to the Austrian authorities.

We will update when the Eleventh Circuit’s decision is issued.
The unreported decision by the Middle District of Florida is available at 2008 WL 5235162.

Berghuis v. Smith: Supreme Court Unanimously Reverses Jury-Diversity-Based Habeas Case in Favor of Government

April 5, 2010 by Kish & Lietz

Last week the Supreme Court decided Berghuis v. Smith in favor of the government. The Court held that criminal defendant Smith was not entitled to federal habeas corpus relief on his claim that the jury selection process had violated his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community.

Because Smith was challenging his state conviction in a federal habeas corpus petition, under AEDPA, the federal courts could grant relief only if the state court decisions involved an unreasonable application of clearly established federal law, as determined by the Supreme Court. The Supreme Court unanimously held that Smith had not met this burden under the law established by Duren v. Mississippi in 1979.

Under Duren, to establish a prima facie violation of this Sixth Amendment right, a defendant must show:
(1) that the group alleged to be excluded is a distinctive group in the community;
(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
(3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

The dispositive issue in Smith, and in Duren, was whether underrepresentation was due to systematic exclusion. The Court noted that Smith lacked evidence showing that the jury-selection process caused underrepresentation. He failed to compare the representation in the circuit court of his trial with that of the state district court or federal district court for the same region. Thus, the Court held that the state supreme court decision denying the claim was consistent with Duren.

The unanimous opinion, written by Justice Ginsburg, is available here. Justice Thomas filed a concurring opinion to express that he "would be willing to reconsider [the Court's] precedents articulating the "fair cross section" requirement."

Padilla v. Kentucky: Sixth Amendment Effective Assistance of Counsel Requires Criminal Defense Lawyers to Advise Clients When Pleas Carry a Risk of Deportation

April 1, 2010 by Kish & Lietz

Yesterday the federal Supreme Court decided Padilla v. Kentucky. The Court recognized its “responsibility under the Constitution to ensure that no criminal defendant – whether a citizen or not – is left to the mercies of incompetent counsel. To satisfy this responsibility, [the Court held] that counsel must inform her client whether his plea carries a risk of deportation.”

Until yesterday’s decision, the lower federal courts almost unanimously held that lawyers are required to tell their clients about only ‘direct’ consequences of pleading guilty. Deportation (now called “removal”) has long been seen as a potential collateral consequence of certain convictions. While professional norms have long required such advice, until Padilla, failure to so advise did not meet the Strickland test for ineffectiveness. The Court held that the direct/collateral distinction is inappropriate in a Strickland claim concerning deportation risk.

The Strickland test has two prongs. First the Court must decide whether the attorney’s representation “fell below an objective standard of reasonableness.” The second prong, prejudice to the defendant, was not at issue in Padilla because the lower courts had not reached it. This second prong may be difficult to satisfy in many of these cases because many states require trial courts to advise defendants who plead guilty of potential immigration offenses. Here in Georgia, in 2000 trial courts began advising defendants that a guilty plea “may have an impact” on the defendant’s immigration status. However, Padilla may be a useful tool for challenging certain guilty plea convictions in Georgia prior to 2000.

The opinion, written by Justice Stevens, is available here. Justice Alito issued a concurring opinion, joined by Justice Roberts. They would have limited the rule to prohibit only completely incorrect legal advice. Justice Scalia dissented, joined by Justice Thomas, writing that the Sixth Amendment guarantees the defendant a lawyer only for the defense of the criminal case and not for advice regarding any collateral matters.