Federal Criminal Lawyer Blog

A few hours ago the Atlanta-based United States Court of Appeals for the Eleventh Circuit reversed a former county attorney's mail fraud and money laundering convictions based on a "material variance" between the allegations in the indictment and the proof at trial. The money laundering charges were based on the underlying fraud case, so these convictions also were reversed. A second set of fraud convictions were affirmed, but because the sentence was based on both sets of fraud charges, the court sent the matter back for a new sentencing hearing. The case is United States v. Lander.

Mr. Lander was the County Attorney of Dixie County, Florida. He also was trying to develop a vitamin company. The Court affirmed the fraud conviction that arose from the scheme involving the vitamin company.

Other fraud and money laundering charges emanated from a different set of facts. Some real estate investors wanted to develop property in the county and approached Lander for assistance. The developers put up about $850,000 as assurance that the project would go forward. Lander deposited these funds into his law firm's trust account, but used a large chunk of these funds for purposes not related to the real estate development.

The indictment alleged that Mr. Lander engaged in a scheme to defraud by falsely telling the developers that the county required the $850,000 as a performance bond. However, at trial the developers did not recall hearing Landers say this. The government then shifted gears mid-trial, arguing that the scheme to defraud involved Lander falsely telling the developers that he would help them through the regulatory process, when instead he used some of the funds for other purposes.

The Eleventh Circuit noted that a defendant has the right to defend against the specific allegations in an indictment, and when the prosecution changes theories mid-stream this can result in what we lawyers call a "material variance." If the defendant was surprised and disadvantaged by this change in theory, the variance is deemed to be "prejudicial." Here, the Court noted that Landers walked into trial planning on defending against a claim that he falsely told the developers one thing, but by the time the prosecutor made the closing argument the government had shifted to a different theory. This prejudicial material variance thus doomed the fraud charges, the money laundering crimes that came out of this supposed scheme, and the sentence that was predicated in part of the reversed charges.

The United States Court of Appeals for the Eleventh Circuit, siting here in Atlanta, reversed a federal tax conviction today because the judge impermissibly participated in plea discussions with the Defendant. The case is United States v. Davila.

The Federal Rules of Criminal Procedure make it crystal clear that while the prosecutor and defense attorney can negotiate toward a plea agreement, the Judge may not in any way participate in these discussions. There are three main reasons for this prohibition: to avoid coercing a defendant into pleading guilty, to protect the integrity of the judicial process, and to preserve the Judge's impartiality after the negotiations are completed. The Federal Rules are quite different than what takes place in many State courts, where Judges regularly get involved in the plea discussions.

The Eleventh Circuit also has a rule holding that judicial participation in plea discussions amounts to "plain error." There are no exceptions to this rule, and a Defendant does not have to object or even show any prejudice he suffered from the judge's improper intrusion into the plea discussions. This is one of the few areas where the appeals court here in Atlanta has a rule that is more friendly to criminal defendants than other courts around the country.

In the Davila case issued this afternoon, the Federal Magistrate Judge conducted a hearing to look into Mr. Davila's dissatisfaction with appointed counsel. Davila was unhappy because the appointed lawyer only wanted to talk about a potential guilty plea. The Magistrate Judge told Davila that perhaps a plea was his best option, there might not be any defenses, and a plea might be a good idea especially because of Davila's long criminal record.

On appeal the Eleventh Circuit reversed the sentence and conviction based on the Magistrate Judge's comments. The appellate court held that these comments violated the prohibition against participation in plea discussion, because the Magistrate basically implied that Mr. Davila would certainly get a longer sentence if he did not plead. The Eleventh Circuit reversed even though it noted that the Magistrate may well have only intended to help Davila, not harm him. Additionally, the rule in the Eleventh Circuit is that when the case gets back to the District Court, it must be re-assigned to a new Judges who had no role in the earlier proceedings.

In a case arising out of south Florida and its proximity with Cuba, the United States Court of Appeals for the Eleventh Circuit recently affirmed parts of a case involving a plan to smuggle potential baseball players into the United States. Besides being an interesting view into the modern methods of stocking a Major League Baseball franchise, the case also contains lessons for lawyers and employers. As we are seeing in our immigration crimes practice, more and more employers run into the danger of a potential federal criminal prosecution whenever the employer communicates with or hires a person from another country.

The case is United States v. Gustavo Dominguez. Mr. Dominguez is a naturalized U.S. citizen who was born in Cuba. Mr. Dominguez has represented numerous Cuban nationals who came to this country and later became professional baseball players. The government's theory was that Dominguez conspired with others who smuggled the potential players into this country, with the goal of later representing the players if and when they were snapped up by a Major League franchise. The players were taken to California where Dominguez got an experienced immigration attorney to help them work through the immigration process. The trip to California and the immigration applications led to charges of transporting illegal aliens and concealing or harboring them in this country.

The jury found Mr. Dominguez guilty of conspiring with and aiding others who smuggled the players into the country. Additionally, the jury held that Dominguez was guilty of helping to transport the Cuban players from Florida to California and also found him guilty of harboring or concealing these same players. The majority of the Court of Appeals Panel reversed the convictions relating to transporting and concealing the players. Basically, the majority held that by taking the players to an attorney Dominguez could not be guilty. Oddly, the majority affirmed the convictions for smuggling these same players.

Judge Tjoflat wrote a spirited dissent. He explained that the trial court's rulings basically required that someone in Mr. Dominguez's situation needed the sophistication of a "Philadelphia lawyer" in order to wade through issues related to people who enter this country from Cuba, related to the "wet foot-dry foot" policies that apply solely to immigrants from this one country. According to Judge Tjoflat, Dominguez should receive a new trial where he can present testimony concerning this policy and his state of mind.

We represent several employers either charged or threatened with indictment for employing persons from other countries who turn out to be here illegally. This case is just the most recent illustration of how federal immigration policy often intersects with the law involving defending a person against a federal criminal prosecution.

A seemingly overzealous prosecution team went after a medical doctor in a federal criminal prosecution regarding supposed excessive prescriptions for pain medicines. My law partner Carl recently wrote on this same topic. The defense team uncovered the possibly improper prosecution tactics. The jury found the doctor innocent, after which the trial judge ordered that the United States pay the doctor's legal fees. What really took the case to the next level is that the trial judge issued a public reprimand of the prosecutors and referred them for potential disciplinary action. Nothing is as angry as a prosecutor's office that not only loses, but is told that its people are acting improperly. The government appealed the attorney fee ruling and the reprimand of the prosecutors. Yesterday, a divided Panel from the United States Court of Appeals for the Eleventh Circuit agreed with the government. The case is United States v. Hoffman, et. al.

The majority clearly wanted to help the prosecutors, as is shown by the opening lines in the opinion. "The stakes in this appeal are high: they involve the sovereign immunity of the United States, the constitutional separation of powers, and the civil rights and professional reputations of two federal prosecutors." Rarely does the Eleventh Circuit concern itself with "the civil rights and professional reputations" of lawyers other than prosecutors.

When litigating a motion to suppress before trial, the magistrate found (and the trial judge agreed) that the agents were not being truthful about what happened when they interrogated the doctor. Then, in the middle of trial the defense team discovered that the prosecutors had been taping conversations between witnesses and the defense lawyer. It turns out that this taping was done as part of an effort to remove the very qualified defense team. The trial judge was enraged, and allowed the defense to re-call the witnesses to the stand, with an instruction that told the jury this was being done because of the improper prosecutorial tactics.

After the jury found the doctor not guilty, the trial judge used the Hyde Act to make the government reimburse Dr. Shaygan all the legal fees he had to pay to defend against this case that was "brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous." Next, the judge held a hearing concerning the prosecutors, and took testimony from 6 witnesses. New prosecutors came in to try and minimize the damage, but the trial judge nevertheless issued an order for disciplinary action against the trial prosecutors.

The government convinced two of the three judges on the Panel to reverse both the order of attorneys fees and the disciplinary rulings against the trial prosecutors. The majority ruled that a defendant who is found not guilty can get back his or her attorney fees only if the entire case was vexatious and in bad faith from the very beginning. Additionally, the majority decided that the trial judge violated the constitutional rights of the trial prosecutors by issuing his disciplinary ruling without telling them ahead of time he was considering just such a course of action. In dissent, Judge Edmonson was also troubled by the whole case, and would have found that the order for payment of attorneys fees was proper because the trial prosecutors clearly acted in "bad faith."

This case is a perfect example of how difficult it is to defend a person against zealous federal prosecutors and agents. Fortunately for Dr. Shaygan, his defense team was up to the task.

Lawyers that specialize in defending federal criminal cases may be interested to know that the federal sentencing commission recently released a document entitled: "Selected Post-Booker and Guideline Application Decisions for the Eleventh Circuit". According to the Commission, "[t]he document is not a substitute for reading and interpreting the actual Guidelines Manual or researching specific sentencing issues." However, those of you that practice federal criminal law in Georgia, Alabama and Florida will find the document useful, because it does contain helpful "annotations to certain Eleventh Circuit judicial opinions that involve issues related to the federal sentencing guidelines."

I reviewed the document this morning and it is a fairly comprehensive. It not only includes case annotations dealing with many of the more common guideline provisions (including fraud, internet, and immigration offenses), but it also includes several sections that involve general principles of federal sentencing law, such as burden of proof issues, the requirements for sentencing on acquitted conduct, and departures and variances.

The document can be found here and for those of you that practice in other federal circuits, links to similar documents for those other circuits can be found here.

The Eleventh Circuit issued an opinion today on a fraud case out of Florida involving issues related to restitution. The appellate court reversed the restitution order, ruling that the government had not adequately proved the amount of restitution, nor had the district judge calculated restitution based on specific factual findings. The case is United States v. Singletary.

Like many of the federal fraud cases we handle, Singletary involved questions of how much "loss" was involved, along with how much "restitution" could be ordered. Many lawyers forget that these are two very distinct issues. "Loss" is a calculation under the United States Sentencing Guidelines, and this figure is one of the major factors that drives the calculation of the prison sentence in a fraud case. The Guidelines tell a judge to calculate "loss" as the "greater of actual or intended loss". Additionally, the Guidelines also instruct that loss can be "estimated" when the proof is difficult to establish.

Restitution is quite different than "loss." Restitution is based on the loss the victim actually suffered. In other words, "loss" can be much higher than restitution when the defendant tried to get money but was unsuccessful.

While "loss" and restitution are distinct concepts, each figure needs to be adequately proven by the prosecutor. Furthermore, when a defendant objects to either calculation, the sentencing judge must support the ultimate "loss" or restitution number with specific factual findings.

In Singletary, the Court of Appeals confronted a case where the prosecutor used a broad-brush approach to restitution, trying to come up with an estimated figure. The sentencing judge basically agreed with the prosecutor's approach, estimating a loss of $1 million. The Eleventh Circuit reversed because the trial court "failed to carry out the task" of rendering factual findings for each and every specific loss that supported the restitution order.

This case holds lessons for lawyers who handle federal fraud cases. Remember to make the government prove both the "loss" and restitution, and when they do not, appeal the issue. It might help the client in the long run.

Last week, the Eleventh Circuit Court of Appeals affirmed the convictions of Larry Langford, the former mayor of Birmingham, Alabama who was convicted last year on various federal white collar offenses, including mail and wire fraud, bribery, money laundering, and federal tax offenses.

To me, the most interesting aspect of the opinion is the way in which the Court of Appeals discussed the honest services portion of the federal mail and wire fraud charges. As we discussed in this previous post, last summer, the Supreme Court issued its opinion in United States v. Skilling, a case which, in essence, limited the honest services provision of the federal fraud statutes to bribery and kickback schemes.

Before Skilling was decided, many (if not all) federal circuits made a distinction between honest services prosecutions that involved public officials, as opposed to those working in the private sector. At the risk of simplifying the issue too much, it was far easier for the government to prove an honest services violation against a public official. Skilling itself, however, did not distinguish between public officials and private actors, leading some to believe that after Skilling, the prosecution of both public and private officials would be governed by the same standards.

In its decision in Langford last week, though, the Eleventh Circuit appeared to recognize that the public official/private actor distinction that existed in this Circuit before Skilling still exists. According to the Eleventh Circuit: Public officials inherently owe a fiduciary duty to the public to make governmental decisions in the public’s best interest. . . . [I]n a democracy, citizens elect public officials to act for the common good. When official action is corrupted by secret bribes or kickbacks, the essence of the political contract is violated. Illicit personal gain by a government official deprives the public of its intangible right to the honest services of the official."

Well before Skilling, there was considerable disagreement among judges regarding the reach and meaning of the honest services statute in both the public and private sector. Although Skilling limited the reach of the statute to cases that involve bribery and kickbacks, it did not address the abundance of issues over which this considerable disagreement existed. Given the Eleventh Circuit's apparent decision to return to the pre-Skilling era in which a distinction exists between the standards governing the prosecution of public officials and private actors, there are many issues that should and will be litigated in this amorphous area known as "honest services" fraud. As Justice Scalia himself recognized in Skilling, even with the majority's pairing down of the statute, the honest services statute nonetheless remains unconstitutionally vague.

The full opinion in Langford can be found here.

Earlier today, the Eleventh Circuit reversed a federal conviction of a pain management doctor prosecuted in federal court. The case originated out of the Southern District of Georgia, and after a lengthy trial, the jury convicted the pain management doctor on 129 counts of unlawfully dispensing certain controlled substances by means of written prescriptions made “outside the usual course of professional practice and without legitimate medical purpose,” in violation of federal controlled substance laws.

On appeal, the doctor raised a number of issues, the most significant one being that the federal trial judge effectively denied him his right to testify by failing to notify him that he could testify in a narrative format. At trial, the doctor was not represented by a a lawyer. And when it came time to decide whether he wanted to testify on his own behalf, the trial judge failed to correct an obvious misunderstanding the doctor had concerning his right to testify.

More specifically, according to the trial transcript, the doctor incorrectly believed he could testify on direct examination only if was questioned by an attorney. Although the record established that the doctor was clearly ignorant of his ability to provide narrative testimony, the federal trial judge failed to correct this obvious misunderstanding. Rather, the trial judge merely informed the doctor that he had "an absolute right to testify."

On appeal, the Government argued that the doctor failed to preserve the issue in the trial court and that as a result, the plain error standard of review should apply on appeal. The Eleventh Circuit rejected this argument outright, going so far as to characterize the Government's argument as "absurd."

With respect to the underlying issue, the Eleventh Circuit reached the following conclusion: "[T]he district court is duty-bound to correct a pro se defendant’s obvious misunderstanding of his right to testify. Because this error was not harmless, [the doctor's convictions cannot stand."

In the last few years, the Government has certainly focussed a great deal of attention on the prosecution of pain management physicians in this District, as well as others. The law in that area is very interesting, and we have become very familiar with it, because we have represented a number of doctors facing similar charges. Although the fact pattern in today's decision is fairly unique, it is worth reading and the full opinion can be found here.

When we handle federal criminal cases here in Atlanta, Georgia and in other parts of the country, our clients often face criminal penalties along with possible forfeiture of their property. Lawyers often forget how important these financial penalties can be. A recent case from the United States Court of Appeals for the Eleventh Circuit (located several blocks from our office in Atlanta) shows the importance of understanding the immense financial penalties that can be imposed in a federal criminal matter. The case is United States v. Chaplin's.

Two brothers (we will call them #1 and #2) owned separate jewelry stores here in Atlanta. Brother #1 was caught in an undercover sting operation selling $22,000 in jewelry to a person he thought was a drug dealer. He agreed to accept more than $10,000 in cash from the person he thought was a drug dealer, and also agreed to not file the IRS forms that are required in this situation. Brother #1 was charged with and convicted of money laundering.

The government also charged the corporation that owned Brother #2's store with similar crimes. This was one of those relatively rare situations where the prosecutors went after a corporate entity. The prosecutors got convictions against the corporation that owned #2's store based on the fact that some of Brother#1's dealings were done in the store owned by #2.

The government convinced the trial judge to impose a total financial penalty of over $1.9 million against the corporation that owned the store operated by Brother #2 in a case where Brother #1 sold $22,000 in jewelry to an undercover agent. The judge ordered a $100,000 fine, restitution of $22,000 and forfeiture of the entire jewelry inventory, valued at over $1.7 million.

The corporation appealed to the Eleventh Circuit, sensibly arguing that this financial penalty was grossly disproportionate with the crime and the harm caused by Brother #1. The Court of Appeals disagreed, holding that this was OK because these were serious crimes and Congress had authorized substantial financial penalties in such cases.

This case is a lesson for lawyers who handle serious federal criminal cases. We need to fight not only jail sentences, but also battle against the government's increasing inclination to try and bankrupt our clients and everyone near them.

Our local Federal Court of Appeals, sitting just down the street from our offices here in Atlanta, yesterday reversed a federal criminal conviction for obstruction of justice. The prosecutors contended that the defendant tried to obstruct a forfeiture matter. The Eleventh Circuit joined other courts and relied on some earlier Supreme Court cases by holding that there cannot be a conviction in this context unless there is evidence that the defendant was aware of the forfeiture proceeding he obstructed. The case is United States v. Friske.

Mr. Friske lives in Wisconsin, but his friend (Erickson) got busted in Florida for drug crimes. Law enforcement listened to calls Erickson made from jail to Friske where he asked the latter to do a "repair job" and remove "three things" buried near Erickson's pool. Agents got there before Friske, and found $375,000 buried in that location. Later, they observed Friske coming away from the pool area, covered in dirt. Friske made some baloney statements to the police, and later conceded he was just "trying to help a friend."

The government indicted Friske for attempting to obstruct an official proceeding by attempting to hide and dispose of assets involved in a forfeiture case, in violation of 18 U.S.C. §1512(c)(2). The Eleventh Circuit joined other appellate courts by holding there is a "nexus" requirement in this statute which requires a connection between the obstructive conduct and the proceeding in question. Stated another way, "if the defendant lacks the knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct."

The Eleventh Circuit then turned to the evidence in Mr. Friske's trial. They noted that he certainly acted "suspiciously" in digging around Erickson's pool shortly after getting the recorded calls. However, there was not one "scintilla" of evidence that in performing these suspicious acts Friske knew of a forfeiture proceeding against Erickson's property. As a result, the appellate court reversed the convictions based on the insufficiency of the evidence.

We are always pleased to see courts uphold the law and require that prosecutors prove their case. Likewise, we think this ruling makes great sense, so as to prevent the conviction of innocent persons.

Just a few hours ago the 11th Circuit Court of Appeals sitting here in Atlanta affirmed most, but not all, of the convictions in the long-running saga of US v. Don Siegelman and Richard Scrushy.

Don Siegelman was the Governor of Alabama. Richard Scrushy was the founder and Chief Executive Officer of HealthSouth. The case stemmed from allegations that Governor Siegelman placed Scrushy and others on a State Board in return for a $500,000 payment. The government charged them with a series of crimes relating to alleged public corruption. Specifically, Siegelman and Scrushy were alleged to have violated 18 U.S.C. §666(a)(1)(B), the law that prohibits bribery involving organizations that receive federal funds. The government also charged the defendants with "honest services" mail fraud, and conspiracy to commit same. Finally, Governor Siegelman was charged with obstruction of justice.

While the case was on appeal, the Supreme Court issued the well-known decision in US v. Skilling, a ruling that restricts the scope of the federal "honest services" branch of mail and wire fraud. Each defendant contended that Skilling changed the landscape, and that their convictions must be reversed. Likewise after the verdicts, the defendants uncovered what appeared to be troubling evidence of juror misconduct and exposure to extrajudicial materials.

A Panel of the Eleventh Circuit affirmed most of the fraud convictions and rejected the claims of juror misconduct. Along the way, the Panel made a few observations that are noteworthy for future cases.

For the charges alleging violations of §666, the Panel held that while there likely must be a quid pro quo between the bribery payor and the recipient, and that while there must be an explicit agreement that the recipient do something in exchange for the bribe, such an explicit agreement need not be express. In other words, the government does not need an email or a recorded conversation between the payor and recipient in order to get a §666 conviction.

The Panel affirmed some, but not all, of the post-Skilling "honest services" fraud convictions. Recall that Skilling restricted the honest services theory to traditional bribery/kickback schemes. Here, because the indictment alleged just such a scheme for many of the counts, the Panel affirmed the convictions on these charges. However, two charges alleged that Scrushy did not bribe anyone, but instead engaged in "self-dealing." The Panel reversed these convictions based on insufficient evidence that either defendant committed these crimes.

Perhaps some of the most sensational aspects of this case have been the post-verdict revelations of possible juror misconduct. Defendants uncovered evidence that the jurors had been exposed to certain extrajudicial information. Furthermore, their legal teams received anonymous emails indicating that some of the jurors began deliberating before it was time to do so, had made up their minds long before the evidence was closed, and that some other jurors did not even participate in the deliberations.

The Panel rejected all the juror misconduct claims. First, the Eleventh Circuit held that the sort of extrajudicial information to which this jury was exposed was innocuous to the point where it did not affect the case. Second, the panel resorted to the rule that courts will rarely, if ever, intrude on a jury's deliberations. Because of this reluctance, the Panel held that the anonymous emails were insufficient to result in a new trial.

This has been a sensational case, with law and politics colliding. I have a feeling it's not over yet.

Michael Diaz was charged with armed robbery and gun offenses nearly seven years ago. Since the age of 13, he has “changed identities” five times and has been diagnosed with schizophrenia and psychosis. He represented himself during a bench trial in 2006, but the Eleventh Circuit vacated his convictions, holding that he had not knowingly waived his right to a jury trial. He refused treatment for his mental illness and was found incompetent to stand re-trial.

In 2003, the Supreme Court addressed involuntarily medicating criminal defendants for the sole purpose of rendering them competent to stand trial in Sell v. U.S. Last week in Diaz, the Eleventh Circuit explained:

Sell laid out these four standards the government must satisfy for involuntary medication to render a defendant competent to stand trial: (1) important government interests must be at stake, (2) involuntary medication must significantly further the state interests in assuring a fair and timely trial, (3) involuntary medication must be necessary to further the state interests, and (4) administration of the medication must be “medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.”

In Diaz, the Eleventh Circuit held that the government must prove the Sell factors by clear and convincing evidence. The Court further held that the medication would significantly further the government interests because it would likely render Diaz competent and the side effects would not significantly interfere with his ability to assist counsel. The Court also held that medication was needed to further the government’s interest because less intrusive methods, like psychotherapy, are unlikely to achieve the same results.

The Eleventh Circuit's opinion is available here.

Last Monday, the Eleventh Circuit Court of Appeals decided United States v. Gowdy, an unbelievable case in which the Eleventh Circuit joined several other circuits in holding that one need not actually be in federal custody to escape from federal custody under 18 U.S.C. § 751(a).

Gowdy was convicted in the Northern District of Alabama for federal drug crimes, and then turned over to the state of Mississippi. Mississippi lost the federal detainer against Gowdy and then turned him over to the state of Alabama to face charges pending there. Alabama, never having received the federal detainer, released Gowdy when he completed his sentence there. When federal authorities discovered the mistake, they issued a warrant for Gowdy’s arrest. He agreed to turn himself in after making arrangements for the care of his daughter, but never did so.

Gowdy was charged with escape from federal custody. He was convicted on the theory of constructive custody – that he was in custody under his federal conviction, despite his mistaken release. The Eleventh Circuit agreed, holding “that the custodial requirement of § 751(a) is satisfied where a lawful judgment of conviction has been issued by a court against the defendant... [T]here is no additional requirement that the defendant be physically confined in an institution at the time of the escape.”

The opinion in U.S. v. Gowdy is available here.

In this post in August, we reported that the Eleventh Circuit had held that a trial court abused its discretion in failing to instruct the jury on good faith reliance. In that opinion, the Court vacated convictions on three counts, but affirmed a conspiracy conviction. Last week, in United States v. Kottwitz, the Court decided on rehearing that the “[d]efendants introduced enough circumstantial evidence to warrant an instruction that -- at some pertinent point --[they] may have relied on the accountant’s advice” on the conspiracy count, as well.

Good faith defenses are often significant in white-collar criminal cases. As we have lamented, the government continues to prosecute people on the basis of business decisions that are not intended to break the law. It is imminently important for defense lawyers to convey to the jury that a person acting in good faith cannot be guilty.

To receive a jury instruction in the Eleventh Circuit, a defendant need only show “any foundation in the evidence.” The first Kottwitz opinion, which is still good law inasmuch as it is consistent with this most recent opinion, provides a detailed explanation of when the trial court must instruct the jury on good faith reliance.

The full opinion in Kottwitz I is available here. Kottwitz II is available here.

Last week, the Eleventh Circuit Court of Appeals decided United States v. Williams. The Court held that the sentencing judge clearly erred in granting a reduction for acceptance of responsibility and denying an enhancement for obstruction of justice because Mr. Williams testified to his factual innocence at trial after withdrawing his guilty plea.

Following a car chase in Atlanta, Georgia that culminated with Mr. Williams receiving a gun shot to an eye, Williams was charged with assaulting three federal marshals. Williams entered a guilty plea, but withdrew it due to the potential sentence. He then testified at trial that he hadn't known his pursuers in unmarked vehicles were law enforcement officers.

The sentencing judge relied on a presentence report that recommended he receive three points off for acceptance of responsibility. She explained, “I think particularly in this case where he was shot, his ability to have his own trial and tell his story was important. I mean, I consider that an important part of my job, is to provide trials to people who have a story that legitimately needs telling.” Explaining that she would not punish Mr. Williams for exercising his constitutional right to trial, she awarded two points off for acceptance of responsibility. The Eleventh Circuit held that it was “erroneous to award a reduction for acceptance of responsibility when a defendant denies guilt in the face of evidence to the contrary” and Mr. Williams had done exactly that by “admitt[ing] he was guilty initially, but withdr[awing] his plea” and then testifying to his innocence “despite overwhelming evidence to the contrary.”

However, “[t]he district court found that Williams’s testimony did not contradict the testimony of the federal marshals.” In determining whether Mr. Williams had committed perjury, requiring the obstruction of justice enhancement, the sentencing judge “did not find Mr. Tywan Williams’ testimony to be materially different from any of [the three witnesses who were at the scene.]” She also explained: “in light of the fact that this whole incident resulted in him being shot in the head, he, I think, is entitled to some leeway regarding his memory of the sequence of events.” She was unable to make a finding that he committed perjury “based on the testimony that [she] heard in comparison with the other testimony at trial and what [she knew] about this.” Despite the district judge's greater contextual knowledge, the Eleventh Circuit held that “Williams’s testimony that he did not recognize his pursuers as federal marshals is irreconcilable with the record” and, as such, perjury requiring an enhancement for obstruction of justice.

The Eleventh Circuit's opinion is available here.

Last week, the Eleventh Circuit Court of Appeals decided United States v. Forey-Quintero. The Court held that Mr. Forey-Quintero, whose mother became a naturalized U.S. citizen while he was a minor, did not obtain derivative citizenship because he was not a lawful permanent resident before he turned 18.

Mr. Forey-Quintero came to the U.S. on a border crossing card when he was three years old. When he was 9, his mother filed a Petition for Alien Relative for him, but he was accidentally placed on the wrong list for obtaining a visa. When he was 16, his mother was naturalized and he applied for a visa. His application was approved 20 days after his 19th birthday. As such, he resided here permanently as a minor, but was not a “lawful permanent resident.”

Mr. Forey-Quintero later was kicked out of the country, and when he returned to be with his family he was charged with being found in the United States after removal. His attorney, Millie Dunn at the Federal Defenders Program for the Northern District of Georgia, argued that he was a citizen under the derivative citizenship statute. Before 2001, derivative citizenship was governed by Section 321(a) of the Immigration and Nationality Act (INA), which provided that a “child born outside of the United States of alien parents” automatically became a citizen upon the naturalization of the parent having legal custody if the child is or “begins to reside permanently in the United States while under the age of eighteen years.”

The Court held that “reside permanently” requires lawful permanent resident status. In doing so, the court looked to the rules of statutory construction and persuasive authority in similar cases in the Ninth Circuit and Board of Immigration Appeals (BIA). Because this young man had been placed on the wrong list when he was 3 years old, he did not “reside permanently” as a legal resident at the time when his mother became a citizen. As a result, the Courts allowed prosecutors to charge Mr. Forey-Quintero with illegally returning to this country when, if he had been placed on the correct list, he would have had every right to remain here as a derivative citizen.

Criminal defense lawyers must continually challenge both individual statutes and the system in general to help their clients. Although the argument in this case was unsuccessful, we applaud Millie Dunn for her work for Mr. Forey-Quintero.

The Eleventh Circuit’s opinion in this case is available here.

Last Wednesday, the Eleventh Circuit Court of Appeals, which hears appeals from Georgia, Alabama, and Florida federal cases, voted to rehear Childers v. Floyd en banc. The Court vacated a panel opinion holding that Childers’s Confrontation Clause rights had been violated when the trial court refused to allow certain credibility evidence regarding the prosecution’s star witness.

This June, an Eleventh Circuit panel majority granted Mr. Childers § 2254 habeas relief. In a previous case stemming from the same activities, in which another defendant was acquitted, the star witness gave confusing and inconsistent testimony. The trial court refused to allow the jury to hear evidence that the prosecution had unsuccessfully tried to revoke the witness’s plea deal due to those inconsistencies. The Eleventh Circuit held that this refusal was a violation of the defendant’s sixth amendment right to confront witnesses against him.

This case is an important reminder of the value of effective cross-examination and the necessity to continue litigating on behalf of clients. We will watch for the en banc decision in Childers. The vacated panel opinion is available here.

Earlier this week, the Supreme Court granted certiorari in Davis v. United States. The Court will resolve a federal circuit court split: whether the good faith exception to the exclusionary rule applies to a search that is later ruled unconstitutional. This March, the Eleventh Circuit held in Davis that the exclusionary rule does not apply when the police conduct a search reasonably relying on well-settled precedent, even if that precedent is later overturned. We hope the Court reverses this decision.

In Davis, the defendant was a passenger in a routine traffic stop in Alabama. He gave the police officers a false name. When asked to exit the vehicle, Davis removed his jacket and left it in the car, then was taken toward a group of bystanders. The bystanders provided his real name, leading to Davis’s arrest for giving a false name. In the search incident to his arrest, the officers found a gun in the jacket, which was still in the car. Davis was convicted of possession of a firearm and sentenced to more than 18 years.

As we explained in this post, the Supreme Court decided Arizona v. Gant in April 2009. The Court held that police are authorized “to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” unless some evidence related to the crime of arrest may be in the vehicle. This decision rendered the search in Davis unconstitutional.

In applying Gant to searches predating the decision, the Ninth and Tenth Circuits disagreed on whether the exclusionary rule must be applied to searches now rendered unconstitutional. The Eleventh Circuit joined the Tenth in holding that the good faith exception prevented exclusion of evidence from such searches. The Fifth Circuit has held similarly prior to Gant, but the Seventh Circuit was skeptical.

We hope the Supreme Court protects defendants’ constitutional rights and reverses the Eleventh Circuit’s decision.

The Eleventh Circuit’s opinion in Davis is available here.
The petition for certiorari is available here.
The brief in opposition is available here.

As we discussed in this post last year, federal judges have increasingly spoken out against the unreasonable sentencing guidelines regarding child pornography. In the last week, the Third Circuit Court of Appeals issued its opinion in U.S. v. Grober, upholding a dramatic downward departure in a child pornography case, and a district judge in the Middle District of Florida issued an opinion in U.S. v. Irey reacting to the Eleventh Circuit’s reversal of his initial sentence in the case.

In Grober, the Court affirmed a 60-month sentence where the applicable guidelines range was 235 to 293 months. District Judge Katharine Hayden held hearings over 12 days to explore how the sentencing guidelines for child pornography offenses had gotten so harsh, eventually concluding that they are unworkable and unfair. This Tuesday, the Third Circuit held, 2-1, that the imposed sentence was not an abuse of discretion. That opinion is discussed extensively in this Legal Intelligencer article.

In recent years, the Eleventh Circuit affirmed below-guidelines sentences in child porn cases in both U.S. v. McBride and U.S. v. Gray. However, this July the Court decided Irey, an unfortunate case with incredibly disturbing underlying facts. We discussed Irey in this post, lamenting that hard facts often lead to bad law. In that case, the Eleventh Circuit reversed a 17 ½ year sentence, ordering that the defendant be sentenced to the guidelines range on remand, which was 30 years. This week, District Judge Gregory Presnell issued a lengthy opinion with his postponement of resentencing pending Supreme Court review, questioning the circuit court’s usurpation of his discretion. As Professor Berman of the Sentencing Law & Policy Blog notes here, this opinion seems to serve as a de facto amicus brief in support of an as-yet-unfiled petition for certiorari.

The Third Circuit’s opinion in Grober is available here.
The Eleventh Circuit’s opinion in Irey is available here.
Judge Presnell’s postponement opinion in Irey is available here.

Last week the Eleventh Circuit Court of Appeals issued its decision in United States v. Mateos, a Medicare fraud case in which the Court held that exclusion of an exculpatory videotape was harmless error. This case is an important reminder to all trial lawyers to remain as well-versed as possible in the law of evidence to best represent our clients.

The defendants were employees of a clinic that purported to treat HIV patients. The clinic’s two doctors saw 70 patients per week, each of which was paid to complain about bleeding disorders. Every patient received either saline or a diluted dose of an expensive and medically unnecessary drug, and then the clinic billed Medicare for full treatments. The clinic received more than $8 million from Medicare during the five months that it was open.

Doctor Alvarez’s defense at trial was that she had not known about the fraud. She tried to introduce a video in which a member of the conspiracy assured her that the clinic was not involved in fraud to show that she had not been aware, but the video was excluded as inadmissible hearsay. The Eleventh Circuit held that the video was not hearsay because it was offered for a purpose other than the truth of the matter asserted. However, the Court held that the error was harmless because the defense had elicited the exculpatory content of the video through testimony.

The Court also upheld an upward departure in sentencing, noting that, under the new healthcare laws, the sentence would have been within the guidelines range had the fraud been committed today. Because sentences within the guidelines are presumptively reasonable and because the sentencing judge named numerous reasons for its upward departure, the Court held that a 30-year sentence was not an abuse of discretion, despite sentencing disparities.

The full opinion is available here.

Last week, the Eleventh Circuit Court of Appeals issued its opinion in U.S. v. Ranier. In contrast to many recent cases in which the Court held that certain crimes were not “violent felonies” for the purposes of the Armed Career Criminal Act (ACCA,) the Court held in Ranier that the defendant’s prior conviction in Alabama for third degree felony burglary qualified as a predicate offense.

In the wake of Begay v. U.S., in which the Supreme Court held that “violent felonies” for the purposes of the ACCA must be similar in kind and degree to the crimes expressly listed in the statute, the courts have been hammering out which crimes do and do not qualify. We have discussed several of these cases in the following posts:
Harris (second degree felony eluding police with wanton disregard for safety is a violent felony, although third degree felony willful fleeing is not – 11th Cir.)
Lee (walkaway escapes are not violent felonies – 11th Cir.)
Chambers (failure to report is not a violent felony – Supreme Court)
Archer and Hunter (carrying a concealed weapon is not a violent felony – 11th Cir.)

The Court’s analysis in Ranier hinged on the elements of Alabama’s burglary statute and the specific facts of Mr. Ranier’s previous convictions. Burglary is a listed violent felony in the ACCA, but Alabama’s third degree felony burglary statute is broader than the “generic” burglary contemplated by the ACCA. In Alabama, a person can be convicted for burgling a vehicle, aircraft, or boat, so the Court held the statute “non-generic.”

After making the non-generic determination, the Court looked to Mr. Ranier’s specific convictions for burgling a gas station and a shoe store. Mr. Ranier argued that those businesses theoretically could have been operated out of vehicles, but the Court rejected that argument. “[T]hat possibility is too farfetched to undermine our conviction that Ranier’s two previous convictions were for burglary of a building in the generic burglary sense of the word. The Supreme Court has instructed us that the ‘ACCA does not require metaphysical certainty.’ The ACCA is part of the real world, and courts should not refuse to apply it because of divorced-from-reality, law-school-professor-type hypotheticals that bear no resemblance to what actually goes on.”

The Court’s opinion in U.S. v Ranier is available here.

In other ACCA-related news, we previously reported in this post that the Supreme Court had granted certiorari in Abbott v. U.S. and Gould v. U.S. Those cases, which involve mandatory minimums in federal firearms cases, have been scheduled for oral argument on October 4, 2010.

On Friday, the Eleventh Circuit Court of Appeals, where lawyers go when appealing a federal civil or criminal case that comes out of Georgia, Florida, or Alabama, issued its opinion in United States v. Di Pietro. Linsy Di Pietro was convicted of arranging marriages between illegal immigrants and U.S. citizens to help the immigrants obtain permanent legal status. The Court affirmed the district court’s refusal to dismiss the indictment on vagueness and preemption grounds.

Vagueness
Ms. Di Pietro was convicted of aiding and abetting violations of 8 U.S.C. § 1325(c). That federal statute prohibits marriage fraud: knowingly entering “into a marriage for the purpose of evading any provision of the immigration laws.” She argued that, although the statute clearly prohibited her conduct, it is void for vagueness as applied to others. She further argued that the statute implicates the right to marry, and hence the First Amendment, requiring a heightened vagueness standard. The Court rejected her vagueness challenge because “a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to others.” There is no exception for vagueness challenges implicating the First Amendment.

Preemption
In what the Court called a “novel” argument, Ms. Di Pietro also asserted that Florida’s marriage laws, which she said allow such marriages of convenience, preempted the federal statute. Preemption is based upon the Supremacy Clause, providing a basis for invalidating state or local laws when they conflict with laws of the United States. Ms. Di Pietro’s argument “turn[ed] the Supremacy Clause on its head.” State laws cannot trump federal laws, so preemption “does Ms. Di Pietro no good.”

The full opinion is available here.

Last week, the Eleventh Circuit Court of Appeals issued its opinion in United States v. Kottwitz. This opinion is important because it explains in detail when a trial court must instruct the jury on good faith reliance on the advice of his advisor. The Court also addressed the sufficiency of the evidence on defendants’ Klein conspiracy and tax fraud and evasion charges.

In holding that the trial court had abused its discretion in refusing to give the good faith reliance instruction, the Court thoroughly reviewed the law regarding such instructions. The instruction is designed to refute the government’s proof of the defendant’s intent. “The defendant bears an ‘extremely low’ threshold to justify the good faith reliance instruction and does not need to prove good faith.”

White-collar criminal defense attorneys often deal with good faith reliance issues and should keep Kottwitz in mind when arguing for such an instruction. The “good faith” defense is often the single most important issue when prosecutors go after a person based on what he or she did in the business context. A person who acts in good faith cannot be guilty where he or she did not intend to break the law. The lawyers in this case struggled to get this concept across to the jury, but were thwarted in their efforts when the trial judge took a different view of the appropriate instruction for the jury.

The full opinion is available here, including Judge Birch’s dissent on the issue of sufficiency of the evidence of the conspiracy.

The Eleventh Circuit Court of Appeals held last week that a ten-year delay between indictment and arrest did not deprive Victor Garcia Villarreal of his constitutional right to a speedy trial. The Court employed a four-factor balancing test, holding that although the length of the delay gave rise to a presumption of prejudice, the reason for the delay, failure to promptly assert the right, and lack of actual prejudice showed that Villarreal was not denied his right to a speedy trial. In weighing the final three factors, the Court gave substantial deference to the district court’s factual findings that Villarreal had evaded arrest and the delay had caused the government actual prejudice, rather than the defendant.

The full opinion in United States v. Villarreal is available here.

Last month, the Eleventh Circuit Court of Appeals held that 18 U.S.C. § 924(c), which makes it a federal crime to use or possess a firearm in connection with a crime of violence, can apply to crimes of violence committed outside the United States. In U.S. v. Belfast, the first case prosecuting an individual under 18 U.S.C. § 2340A (the Torture Act,) the Court upheld a § 924(c) conviction where the American citizen defendant tortured people in Liberia.

The defendant, a man of many names whom the court referred to as Emmanuel, is the American born-and-raised son of Charles Taylor, a former president of Liberia who is currently on trial for crimes against humanity in the Special Court for Sierra Leone. President Taylor put Emmanuel in charge of the “Anti-Terrorism Unit,” which was known in Liberia as the “Demon Forces.” In that role, Emmanuel tortured many individuals between 1999 and 2002. Twelve pages of the Court’s 87-page opinion recount horrifying details of that torture.

The Court justified the application of § 924(c) to crimes of violence committed extraterritorially by arguing that the plain language of § 924(c) provides for its application to any crimes that “may be prosecuted in a court of the United States.” Because the Torture Act, which applies extraterritorially, may be prosecuted in federal courts, the Court reasoned, “a § 924(c) charge can arise out of extraterritorial conduct that is found to be in violation of the Torture Act.”

In so holding, the Court glossed over the general presumption that statutes apply only domestically, with extraterritorial effect only where congressional intent is clear. Without citing any case law approving the application of § 924(c) to conduct outside the Unites States, the Court distinguished U.S. v. Small, a Supreme Court case holding that the word “any” in a different federal criminal statute could not overcome that Congress normally legislates with only domestic concerns in mind.

We believe this case would be a good candidate for the Supreme Court to grant certiorari if Emmanuel appeals this decision. If that happens, we will provide an update on the case.

The full opinion in U.S. v. Belfast is available here.

Last week, the Eleventh Circuit Court of Appeals, sitting en banc, decided United States v. Irey. The 142-page majority opinion recounted gruesome sex crimes that Mr. Irey admitted to committing against as many as 50 Cambodian girls, some as young as four years old. The Court held that the 17½ year sentence ordered by the federal district court judge was a substantively unreasonable downward variance and remanded for sentencing within the Sentencing Guidelines range, which was 30 years at both the top and bottom. As one of the dissenting judges noted, “hard facts often lead to bad law” and we worry that this case will unduly limit district court judges’ discretion in imposing variances in future sentencing decisions.

The lengthy majority opinion began with an account of Mr. Irey’s criminal conduct and case. In short, Mr. Irey repeatedly traveled to Cambodia and China, where he bought underaged Cambodian girls to abuse in horrific ways that the Court said set Mr. Irey apart from “many examples of man’s inhumanity” that steadily flow through the Court of Appeals. During that abuse, he produced “some of the most graphic and disturbing child pornography that has ever turned up on the internet.” He later distributed those images, which have become widely known as “the Pink Wall series.” He was charged with and pleaded guilty to one count of violating 18 U.S.C. § 2251(c), which prohibits producing such images of child pornography elsewhere, then transporting them into the United States.

Under the Sentencing Guidelines, the adjusted offense level for Mr. Irey’s conduct would have led to an advisory sentence of life imprisonment. However, the statutory maximum for his crime as charged was 30 years. For that reason, the Guidelines range was 30 years.

At sentencing, the defense introduced the reports and testimony of two experts in the fields of psychology and psychiatry to address Mr. Irey’s diagnosis of pedophilia. The court also heard from Mr. Irey’s friends and family, who characterized him as a “hero.” The government did not introduce any experts or other witnesses. The sentencing judge focused on Mr. Irey’s diagnosis and otherwise good character in sentencing him to 17½ years in prison, followed by a lifetime of supervised release.

The majority opinion extensively reviewed the history of sentencing law, concluding that it must apply an abuse of discretion standard to its review. The Court held (and the dissenting judges disagreed) that an appellate court may, in its review, itself weigh the 18 U.S.C. § 3553(a) factors to be used in imposing a sentence to determine whether the district court’s balancing of the factors was substantively unreasonable. Based on its own protracted analysis of the § 3553(a) factors, the Court held that the district court’s major variance from the Guidelines sentence was substantively unreasonable.

While the sickening facts in this case make a 17½ year sentence surprising, we worry that the law that the Eleventh Circuit had to make to substitute its reasoning for the district court judge will negatively impact sentencing decisions in this circuit. As Paul Kish commented to the Daily Report, “It is a message to district judges that there are boundaries beyond which you cannot go or you will incur the wrath of certain judges whose views differ from yours.” Judges will be less likely to stray from the Guidelines, despite their advisory status since U.S. v. Booker.

The full opinion in U.S. v. Irey is available here, along with concurring and dissenting opinions, totaling more than 250 pages.

The Daily Report article regarding this case is available here.

In late May, the Eleventh Circuit Court of Appeals, which hears appeals from federal cases in Florida, Georgia, and Alabama, decided U.S. v. Cunningham. The Court held that the federal statute that provides for revocation of supervised release is constitutional under the Fifth and Sixth Amendments, despite its provision for reimprisonment of a criminal defendant based upon conduct that is not proven to a jury beyond a reasonable doubt.

The supervised release revocation statute is at 18 U.S.C. § 3583(e)(3). It permits a district court to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release” upon a finding “by a preponderance of the evidence that the defendant violated a condition of supervised release.”

In 2000, in Apprendi v. New Jersey, the Supreme Court held that, other than prior convictions, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In 2004, the Supreme Court explained in Blakely v. Washington that the “statutory maximum” is the maximum sentence a judge may impose based upon the facts reflected in the jury verdict or admitted by the defendant.

The Eleventh Circuit distinguished the revocation of supervised release from Apprendi and Blakely. The Court reasoned that the defendant was already convicted of the underlying offenses and was granted only conditional liberty, depending upon his obeying the limits of his supervised release. In holding that a violation of supervised release need only be proven to a judge by a preponderance of the evidence, the Court joined six other circuits.

The Cunningham opinion is available here.

Last week, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, issued its opinion in U.S. v. Garcia-Cordero. The Court held that the federal immigration law that requires persons transporting international passengers to “bring and present” those passengers to immigration officers does not violate the Fifth Amendment privilege against self-incrimination as applied to criminal defendants who smuggle aliens into the United States.

The federal immigration statute at 8 U.S.C. § 1324 criminalizes bringing illegal immigrants to the United States and provides an increased penalty for failure to “bring and present” the alien to an immigration officer at a designated port of entry. The Court held that, because the immigration laws are more regulatory than criminal, and because the statute applies to all persons transporting all aliens (rather than only those without prior authorization to enter,) the statute “does not target a highly selective group inherently suspect of criminal activities.” Thus, the statute is a part of a regulatory regime, against which the Fifth Amendment privilege may not be asserted.

The Court's opinion is available here.

Earlier this month, the Supreme Court announced its decision in Dolan v. United States, resolving a circuit court split. This decision abrogates U.S. v. Maung, a 2001 Eleventh Circuit case that held that a federal court imposing a criminal sentence lacks the authority to enter a restitution order after the 90-day deadline has expired. The Supreme Court held that, at least where the sentencing court clearly advised before the deadline that it would order restitution, that court may order the specific amount after the deadline has expired.

The majority opinion by Justice Breyer is available here, along with a dissenting opinion by Chief Justice Roberts, joined by Justices Stevens, Scalia, and Kennedy.

This Monday, the Eleventh Circuit held in Gilbert v. United States that, for federal sentencing purposes, the act of being a U.S.S.G. § 4B1.1 career offender is essentially a separate offense. Based upon the Supreme Court’s retroactive decision in Begay and the Eleventh Circuit’s implementation of that decision in Archer, Gilbert is actually innocent of committing two violent felonies, the basis for that offense. Because circuit law squarely foreclosed his claim when he raised it at sentencing, on appeal, and in his first 28 U.S.C. § 2255 motion, Gilbert was entitled to relief under 28 U.S.C. § 2241. He may now be eligible for immediate release.

The Original Sentence and Appeals
In 1997, Gilbert was convicted of a crack cocaine offense and sentenced as a career offender under § 4B1.1 based upon previous convictions for possessing crack with intent to sell and carrying a concealed firearm. Under the then-mandatory Sentencing Guidelines, the enhancement increased his Guidelines range from 151-188 months to 292-365 months. Gilbert argued that carrying a concealed firearm was not a crime of violence, but the district court judge disagreed and, stating that he thought the sentence was too high, reluctantly sentenced Gilbert to 292 months. On appeal, the Eleventh Circuit held that carrying a concealed firearm was a crime of violence for purposes of the career offender guideline. Gilbert’s pro se § 2255 motion was denied in 1999, all post-conviction options now exhausted.

Legal Developments in 2008
In 2008, the Supreme Court decided Begay v. United States, holding that under the Armed Career Criminal Act (ACCA) the term “violent felony” applies only to crimes that are similar in kind and degree of risk to those expressly listed in the statute. That same year, the Eleventh Circuit applied the Begay analysis in United States v. Archer, abrogating its holding in the 1998 Gilbert decision. The Court held that “the crime of carrying a concealed firearm may no longer be considered a crime of violence under the Sentencing Guidelines.” Also in 2008, Amendment 706 provided a two-level reduction in base offense levels for crack cocaine offenses and was made retroactive.

In response to these developments, the district court sua sponte ordered the parties in Gilbert’s case to file responses regarding eligibility for a sentence reduction. The government argued that Gilbert was not entitled to any relief under Begay and Archer because a second § 2255 motion is permissible only where new evidence is discovered or the Supreme Court makes a previously unavailable constitutional law retroactive. The government also insisted that Amendment 706 could not apply because Gilbert was sentenced under the career offender guideline. The district court reluctantly agreed.

The Issue Before the Eleventh Circuit
Gilbert filed a motion to reopen his original § 2255 motion, suggesting that the court could treat it as a motion for relief under § 2241, which provides relief when a petitioner can prove actual innocence of the crime for which he was convicted. The district court denied his motion, but granted a certificate of appealability. The Eleventh Circuit held that the “savings clause” of § 2255 permitted relief under § 2241 under the authority of Wofford v. Scott and the doctrine of “actual innocence.”

The “savings clause” of § 2255 permits traditional habeas corpus relief under § 2241 where a § 2255 motion is inadequate or ineffective to test the legality of detention. In Wofford, the Eleventh Circuit held that the savings clause applies in the rare case when (1) the claim is based upon a retroactively applicable Supreme Court decision; (2) the holding of that decision establishes that the petitioner was convicted for a nonexistent offense; and (3) circuit law foreclosed the claim when it should have been raised.

The government argued that Gilbert failed to meet the second requirement: that he was convicted for a nonexistent offense because the career offender guideline was not a separate offense. The Court disagreed, applying the Supreme Court’s analysis in Sawyer v. Whitley that a sentencing enhancement based upon proof of statutory aggravating factors establishes a separate offense and raises the possibility that a defendant might be actually innocent of that offense. The Court extended Sawyer to the career offender context, commenting that, “To accept the government’s position that the law provides Gilbert no remedy for the clear wrong that has been done to him is to elevate form so far over substance as to make unrecognizable the concept of fair play and due process.”

Gilbert has served 171 months of his sentence. The maximum sentence he could have received for his underlying conviction was 188 months. He is likely entitled to an amended Guideline range of 130-162 months under Amendment 706, so “he is, in a very real sense, presently serving his illegal enhancement.” The Court vacated Gilbert’s sentences and remanded for resentencing. In addition, the Court issued a separate order to expedite issuance of the mandate.

The recent Eleventh Circuit opinion in Gilbert v. United States is available here.
The Supreme Court's opinion in Begay is available here.
The Eleventh Circuit's opinion in Archer is available here.

We have discussed cases applying the Begay analysis at the following posts:
Chambers (Supreme Court: failure to report to a penal institution is not violent felony)
Lee (Eleventh Circuit: walkaway escape is not violent felony)
Harris (Eleventh Circuit: fleeing from police at high speed is violent felony)
Hunter (Eleventh Circuit: possession of firearm is not violent felony under Archer, but providing no relief from illegal sentence)

Last Monday, the Supreme Court of the United States reversed the Eleventh Circuit’s decision in Holland v. Florida. The Court held, as have all Courts of Appeal, that the AEDPA’s statute of limitations in habeas corpus cases is subject to equitable tolling. The Court further held that the Eleventh Circuit’s per se rule regarding when such equitable tolling applies is “too rigid.” The Court reversed and remanded without explaining a precise standard for when equitable tolling should apply.

In determining that equitable tolling is available, the Court reasoned that the AEDPA’s statute of limitations is nonjurisdictional and such statutes of limitations are normally subject to a rebuttable presumption in favor of equitable tolling. In addition, equitable principles have traditionally governed the law regarding habeas corpus. The Court distinguished cases in which nonjurisdictional statutes of limitations were interpreted as not subject to equitable tolling.

The Court then explained that, for equitable tolling to be available, a petitioner must show diligence in pursuing his rights and some extraordinary circumstance that prevented timely filing. Emphasizing that equity requires decisions on a case-by-case basis, flexibility, and avoidance of mechanical rules, the Court pointed out that equity’s intent is relief from hardships resulting from “evils of archaic rigidity.”

The Court viewed the Eleventh Circuit’s per se rule as “difficult to reconcile with more general equitable principles.” The Eleventh Circuit had held that an attorney’s unprofessional conduct, even if grossly negligent, could not justify equitable tolling without bad faith, dishonesty, divided loyalty, mental impairment, or the like.

The Court admitted that a “garden variety claim of excusable neglect does not warrant equitable tolling,” but stated this case involved more serious instances of attorney misconduct, that may well qualify as extraordinary circumstances. The Court remanded to the Eleventh Circuit on this question. The Court also commented that Holland had been reasonably diligent in pursuing his rights, although that issue was not part of the question presented.

The opinion in Holland v. Florida is available here. Justice Alito issued a concurring opinion, in which he further analyzed the appropriate standard for when equitable tolling should be available. Justice Scalia issued a dissent. In Part I he explained that equitable tolling should not be available at all, then the rest of his dissent explained why Holland should not receive relief, even if equitable tolling did apply. Justice Thomas joined his dissent, except as to Part I. The concurring and dissenting opinions are also available at the link above.

Last week, a panel of the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, reversed a decision by the newest member of their Court, Judge Beverly Martin. Prior to her appointment to the Eleventh Circuit, Judge Martin was a district court judge here in the Northern District of Georgia. As a member of that court, in U.S. v. Farley, she decided that a 30-year mandatory minimum sentence for a man who crossed state lines with the intent to have sex with a child under twelve was cruel and unusual punishment where the “child” did not exist and the defendant had no criminal history and was unlikely to re-offend.

The Eleventh Circuit held that such a sentence “does not surpass constitutional bounds” under Harmelin v. Michigan, a Supreme Court case that was never brought to Judge Martin’s attention in the lower court. In reversing the District Court decision that Farley’s mandatory sentence would be grossly disproportionate to his crime, the Eleventh Circuit analyzed Harmelin in detail. The Court emphasized that, under Harmelin, “outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare” and noted that the Eleventh Circuit “has never found a term of imprisonment to violate the Eighth Amendment.” Harmelin also held that the mandatory nature of a penalty is not an Eighth Amendment issue.

The Eleventh Circuit stressed the gravity of crimes involving sexual abuse of children. Incredibly, the Court compared the fiction of the child’s existence to the seizure of drugs by police: according to the Court, in both cases, the defendant is unable to inflict harm through no fault of his own.

For more information on the details of this case, Judge Martin’s decision below, and the Eleventh Circuit opinion, this Daily Report article discusses the case at length.

The Eleventh Circuit’s 112-page opinion in U.S. v. Farley is available here. We should caution that the opinion contains a fair amount of graphic detail.

Last Friday, the Eleventh Circuit, which hears federal appeals here in Atlanta, Georgia, reversed Lance Lall’s conviction for credit card fraud related offenses. Although Lall was Mirandized and arguably not in custody, the Court held that his confessions were not voluntarily given, in violation of the Due Process Clause. The investigating officer had told Lall that he would not pursue charges against him.

The case began with an armed robbery at the home of twenty-year-old Lall, his parents, and his siblings. The robbers said they were searching for money and equipment owned by Lance Lall. The detectives interrogated Lall in his bedroom, telling him and his family that information he shared would not be used to prosecute him. Lall showed the detectives the equipment he used to commit identity theft and explained how each device worked. Within hours, a detective alerted the Secret Service to the evidence. Several days later, the detective called Lall in to the police station, telling him he would not need a lawyer and that he would not charge him with this. Lall was ultimately arrested by the Secret Service and tried in federal court.

The Court first analyzed the statement given in Lall’s bedroom. The Court held that the detective’s statement that he would not pursue charges was misleading and undermined the Miranda warnings he initially gave, but did not resolve the issue of whether Lall was in custody for that statement. Instead, the Court analyzed the case using the Due Process Clause, holding that the totality of the circumstances demonstrated that Lall’s statements were involuntarily given. Factual misrepresentations are not enough to render a confession involuntary. However, the deceptive promises made by the detectives here were so egregious as to make the subsequent statements involuntary. In addition, “[i]t is inconceivable that Lall, an uncounseled twenty-year-old, understood at the time that a promise by [the state police detective] that he was not going to pursue any charges did not preclude the use of the confession in a federal prosecution.”

The Court held that the same analysis applied to the second statement given by Lall at the police station, with discussion regarding whether that issue had been properly preserved for review. The Court also held that the physical evidence derived from the statements in Lall’s bedroom should have been suppressed. Although the items were in plain view, the detective admitted that he did not know what the credit card fraud equipment was without Lall’s explanation.

The Eleventh Circuit’s opinion in U.S. v. Lall is available here.

In another federal criminal decision issued last Friday, the Eleventh Circuit Court of Appeals held that the identity of a firearms purchaser is always material to the lawfulness of the purchase of a firearm under 18 U.S.C. § 922(a)(6). This decision directly conflicts with the Fifth Circuit’s 1997 holding in U.S. v. Polk that § 922(a)(6) was not violated where both the defendant and his “straw purchaser” were eligible to purchase firearms legally.

In Frazier, the defendants were involved in smuggling firearms from the United States into Canada. The evidence showed that Frazier purchased guns, then paid a woman to order the same guns from the same shop shortly thereafter. Later, another woman ordered additional guns for Frazier.

To convict under § 922(a)(6), the government must prove that the defendant made a false statement regarding “a fact material to the lawfulness of the sale or disposition of [a] firearm.” This section is violated when “an unlawful purchaser uses a straw man purchaser to obtain a firearm.” In this case, however, Frazier was a lawful purchaser using a straw man. In Polk, the Fifth Circuit reasoned that, in such a case, the false statements made regarding the identity of the purchaser were not “material to the lawfulness of the sale of firearms” so there could be no liability under § 922(a)(6).

The Eleventh Circuit disagreed. Under pre-Bonner v. City of Prichard precedent, the Fifth Circuit upheld the § 922(a)(6) conviction of a defendant who had provided a false address in connection with the purchase of a firearm in U.S. v. Grudger. Grudger noted that the sale of a firearm is unlawful under § 922(b)(5) unless the seller records the name, age, and place of residence of the purchaser. Therefore, providing a false address is a misrepresentation that is material to the lawfulness of the sale. For this reason, the Eleventh Circuit held in Frazier that the misrepresentation violated § 922(b)(5) and, correspondingly, § 922(a)(6), even though the actual purchaser was eligible to purchase firearms.

The opinion in U.S. v. Frazier is available here.

This past Friday the Eleventh Circuit Court of Appeals issued its opinion in U.S. v. Ghertler, a federal criminal case. The Court held that Ghertler, who had impersonated corporate officials to obtain urgent cash transfers from large corporations, did not abuse a position of trust in perpetrating his frauds because he had no relationship of trust to abuse. For that reason, the abuse of trust sentencing enhancement at U.S.S.G. § 3B1.3 should not have applied.

In 2006 and 2007, Mr. Ghertler researched the names of corporate officers, then called the company and identified himself as an officer, usually the general counsel. He claimed that some urgent matter, such as settlement of a lawsuit, required an immediate cash transfer and provided instructions for distribution of the funds. He pleaded guilty to eight counts of wire fraud in 2008, admitting to defrauding the seven companies named in the indictment. He was sentenced to concurrent 185-month sentences.

One of Ghertler’s arguments on appeal was that the District Court should not have applied U.S.S.G. § 3B1.3, a two-level sentencing enhancement for abuse of a position of trust. The District Court recognized that Ghertler did not actually hold a position of trust, but based its decision on Application Note 3, which provides for application of the enhancement where “the defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust when, in fact, the defendant does not.”

The Court held that “[a] relationship of trust between the defendant and the victim is the sine qua non of the abuse-of-trust enhancement.” In this case, there was no relationship of trust between Ghertler and the victims to abuse. The Court looked to the history to Application Note 3, pointing out that the Commission adopted the Note to ensure that the enhancement would apply to defendants who entered into relationships of trust with victims based upon misrepresentations. The relationship of trust remains the touchstone of the abuse-of-trust analysis. Without such a relationship, the enhancement cannot be applied.

The opinion in Ghertler is available here.

Yesterday, the Eleventh Circuit, which hears appeals from federal cases here in Atlanta, held in U.S. v. Phaknikone that profile photographs from the criminal defendant’s Myspace account were inadmissible evidence of character. The government argued that the photos demonstrated modus operandi: the defendant’s gangsta style as shown in the photographs identified the defendant because he robbed banks “like a gangster.” The Court saw through the argument, but held that admitting the photos was harmless error, due to the “overwhelming” evidence of Phaknikone’s guilt.

The relevant photograph in this case showed Phaknikone in the driver’s seat of a car. A tattoo is visible on his neck, as well as a large tattoo on his left arm, and he is holding a handgun in his right hand. A passenger is handing something to a child in the back seat of the car. The Court held that this photograph “proves only that Phaknikone, on an earlier occasion, possessed a handgun in the presence of a child. Although the photograph may portray a ‘gangster-type personality,’ the photograph does not evidence the modus operandi of a bank robber who commits his crimes with a signature trait.”

Phaknikone was convicted on fifteen counts stemming from seven bank robberies in late 2006 and early 2007 in Northeast Georgia. He was captured fleeing one robbery and confessed to three more. Evidence regarding clothing and shoes worn by the robbers, eyewitness accounts of his tattoos, and behavior during the robberies was introduced by the government, as well. The Court held that the evidence was overwhelming, viewed in its totality, so the admission of the photographs was harmless error.

The Court’s opinion is available here.

View larger version of image here.

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.

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.

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.

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.

Last week, the Eleventh Circuit federal appeals court decided U.S. v. Sneed. In this Armed Career Criminal Act (ACCA) case, the Court decided that U.S. v. Shepard, decided by the Supreme Court in 2005, abrogated the Eleventh Circuit’s 2000 decision in U.S. v. Richardson. The Court held that sentencing courts may look only to Shepard-approved material and facts to which the defendant has assented (such as undisputed facts in the PSI) in determining whether ACCA prior offenses were committed on different occasions.

As we explained in this post, the ACCA provides for a mandatory minimum sentence of 15 years for federal criminal defendants who have three previous convictions for violent felonies or serious drug offenses. Those offenses must have been committed on temporally distinct occasions. In Sneed, the defendant had three previous drug convictions that were charged in a single indictment in Alabama. The state indictment did not provide dates or times for the offenses, so the district court looked to police reports attached to the government’s sentencing memorandum to determine that the offenses were committed on different occasions.

In 2000, the Eleventh Circuit held in Richardson that “determining whether crimes were committed on occasions different from one another requires looking at the facts underlying the prior convictions.” In that case, police reports showed that the prior crimes had been temporally distinct and their accuracy was not contested. The Eleventh Circuit relied on the police reports and concluded that the crimes were distinct.

The Supreme Court decided Shepard in 2005, holding that sentencing courts may only consult certain materials in determining the nature of a defendant’s prior convictions for purposes of ACCA. The Court expressly rejected police reports and stressed developments in the law, Jones and Apprendi in particular, addressing the constitutional concerns requiring a jury’s finding of a disputed fact about prior convictions where that fact is essential to increase a potential sentence. Shepard-approved materials include charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from bench trials, and jury instructions and verdict forms.

The Eleventh Circuit stated that Richardson’s conclusion that courts may look to certain facts underlying prior convictions for the different occasions inquiry is still correct, but held that Shepard abrogated its approval of the use of police reports. Although Shepard addressed a different ACCA determination, the two statutory predicates (type of offense and different occasions) are contained in the same sentence. The Eleventh Circuit held that “there is simply no distinction left” between type of offense and different occasions inquiries for the scope of permissible evidence to be different in determining each statutory predicate.

The bottom line is that the defendant’s mandatory minimum 15-year sentence is tossed, although he still faces a potential max of 10 years for being a felon in possession.

The opinion in this case is available here.

The United States Court of Appeals for the Eleventh Circuit has issued a ruling that deals with whether one victim of an economic crime gets to climb to the top of the heap and get more recovery out of the fraudster than the remaining victims. The Court ruled that even when such a victim can trace his money directly into a bank account used by the criminal, such a victim cannot get the money back. Instead, the money goes into the pot, so to speak, and is divided among all victims pro rata.

The case involves two common themes nowadays: Ponzi schemes and forfeiture proceedings that are part of federal criminal prosecutions. As is well known, in a Ponzi scheme, the fraudster takes money from recent investors to pay off those who invested earlier, until the whole thing collapses. Forfeiture is the process by which the government takes from a criminal defendant any money that comes from, is traceable to, or is a substitute for property that is part of the crime itself.

Altogether the defendant had defrauded about $20 million from over 90 people. Just before the defendant’s scheme was discovered, he got one final investor to put in about $2 million. Almost immediately thereafter, the authorities arrested the defendant and seized his bank accounts. The final investor’s $2 million was sitting in the defendant’s bank account. The federal authorities wanted to forfeit the $2 million in the bank account, along with other assets, in order to give the proceeds back to all 90 victims.

The final investor claimed he had a "constructive trust". In this argument, the last investor said that at the very moment the defendant accepted the final $2 million, it was owed to that last investor, and such a debt is a “superior” and “qualifying” interest under the forfeiture laws. Under such an argument, this means he would get his $2 million off the top from all property seized from the defendant.

The Eleventh Circuit rejected the equitable constructive trust argument from the final investor. The Court said that this issue is controlled by state law, and that Georgia did not recognize such a constructive trust on behalf of the final investor prior to the defendant’s arrest. Instead, the principles of equity require fairness. The Court of Appeals noted that the main idea in forfeiture proceedings is to try to get as much as possible and to treat all victims of fraud equally, so that they each get a pro rata share.

The opinion is available here.

Last week in Rehberg v. Paulk, the Eleventh Circuit held that sending “emails to third parties constitute[s] a voluntary relinquishment of the right to privacy in that information.” In this case, the investigators subpoenaed the emails directly from the Internet Service Provider (ISP) through which Rehberg transmitted his messages. The Court held that he did not have a valid expectation of privacy in the email information, so he failed to state a Fourth Amendment violation.

This ruling might be a dangerous precedent, for several reasons. First, the Court of Appeals says that none of us has any privacy in our emails the moment we hit the ‘send’ button. Second, this means that the government can get our otherwise private messages from every ISP we use to connect us with the outside world. This ruling represents one more step towards a lack of privacy, and in favor of the government’s ability to intrude into our lives.

The opinion in Rehberg v. Paulk is here.
A lengthy analysis by Orin Kerr on why the Eleventh Circuit got this wrong is here at the Volokh Conspiracy.