Federal Criminal Lawyer Blog

Ed. Note: The first of this month, the U.S. Sentencing Commission’s 2009 Amendments to the federal Sentencing Guidelines went into effect. This is our final post analyzing some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2009 amendments is available here.

As we discussed in this post in July, a new federal law directed at online pharmacies went into effect this April. The Ryan Haight Online Pharmacy Consumer Protection Act makes it illegal to distribute controlled substances that are prescription drugs over the Internet without a valid prescription, or to advertise for such distribution. In response to this Act, the United States Sentencing Commission made several amendments to the Sentencing Guidelines, including a new sentencing enhancement at §2D1.1, increasing the base offense levels for hydrocodone offenses, and assigning guidelines to the two new offenses created by the Act.

New Sentencing Enhancement at §2D1.1

The Commission added a new sentencing enhancement, which applies when the offense involved a Schedule III controlled substance and death or serious bodily injury resulted from the use of the drug. The enhancement provides a maximum of 15 years, or 30 years for second or subsequent offenses. Schedule III includes such drugs as anabolic steroids, morphine, hydrocodone, and ketamine.

The amendment adds two alternative base offense levels to §2D1.1 [Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy]. §2D1.1(a)(4) is added to provide a base offense level of 26 for a Schedule III conviction involving death or serious bodily injury resulting from the use of the drugs. §2D1.1(a)(3) now provides for a base offense level of 30 in such a case where the defendant has one or more prior convictions for similar offenses.

Increased Base Offense Levels for Hydrocodone

The amendments modify the Drug Quantity Table in §2D1.1 to specify the base offense levels for hydrocodone as follows:

Two New Offenses

Our previous post discussed the new offenses created by the Act. 21 U.S.C. § 841(h) prohibits the distribution, delivery, or dispensing of controlled substances over the Internet without a valid prescription. The Commission has referred this offense to §2D1.1. That Guideline already includes a two-level enhancement where a controlled substance is distributed “through mass-marketing by means of an interactive computer service” i.e., the Internet.

The second new offense at 21 U.S.C. § 843(c)(2)(A) prohibits use of the Internet to advertise the sale of controlled substances. § 843(c) is already referenced to §2D3.1, but the amendment changes the title of the Guideline to "Regulatory Offenses Involving Registration Numbers; Unlawful Advertising Relating to Scheduled Substances; Attempt or Conspiracy."

Ed. Note: Next week, the U.S. Sentencing Commission’s 2009 Amendments to the federal Sentencing Guidelines will go into effect. Once a week for the next month, we will post an analysis of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2009 amendments is available here.

The U.S. Sentencing Commission has changed the federal Sentencing Guidelines in a number of ways relating to sex crimes. These changes will go into effect this Sunday, November 1, 2009. The amendments address a circuit split regarding an enhancement for undue influence of a minor, resulting in a positive change in Eleventh Circuit law, as well as changes to the child pornography and human trafficking guidelines.

Undue Influence Amendments

§2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts) and §2G1.3 (Promoting a Commercial Sex Act of Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor) each contain an enhancement for undue influence where “a participant otherwise unduly influences the minor to engage in prohibited sexual conduct.”

Two issues have arisen involving the undue influence enhancement. The first is whether it can apply in attempt cases. The second is whether it can apply where the only “minor” involved is a law enforcement officer. Three circuits have addressed these issues, but have decided them differently. The Eleventh Circuit held in U.S. v. Root that the enhancement does apply in both situations. The Seventh Circuit, on the other hand, held in U.S. v. Mitchell that it does not apply where the victim is an undercover officer and suggested that it would not apply in cases of attempt. The Sixth Circuit, in U.S. v. Chriswell, left the attempt issue open, but held that the enhancement does not apply where the victim is an undercover agent.

The Sentencing Commission resolved the circuit split in favor of applying the enhancement in applicable attempt cases, but not where the only “minor” involved in the offense is an undercover law enforcement office. The Commission reasoned that unlike other enhancements, the undue influence enhancement properly focuses on the effect on the minor.

The Sentencing Commission held a public meeting on September 16, 2009 with a possible vote on whether this amendment should be made retroactive to previous defendants’ sentences. The minutes from that meeting have not yet been published. We hope the amendment is made retroactive to provide relief to defendants sentenced in the Eleventh Circuit.

An analysis by the Office of Research and Data on the Impact of the Influencing a Minor Amendment is Made Retroactive is available here.

Child Pornography Amendments

§2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production) and §2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the Sexual Exploitation of a Minor) are amended to reflect changes in the child pornography statutes at 18 U.S.C. §§ 2251 et seq.

The child pornography statutes were amended to add streaming video to the offenses. Everywhere “producing a visual depiction” is mentioned, the Commission added “transmitting a live visual depiction” and everywhere “possessing material” is mentioned, the Commission added “accessing with intent to view the material.” These amendments ensure that viewing streaming video, whether or not the video is stored in any permanent format, will result in the same penalties as saving the material.

The Commission also amended §2G2.2 to provide for a new offense at 18 U.S.C. sec 2252A(a)(7), which makes it unlawful to knowingly produce with intent to distribute or knowingly distribute “child pornography that is an adapted or modified depiction of an identifiable minor.” This offense has no mandatory minimum and carries a maximum sentence of fifteen years. The guideline now provides for a base offense level of 18 for such an offense, which is four levels lower than other child pornography distribution offenses. The lower level accounts for the fact that creating the image does not involve actual exploitation of the child and the enhancements for distribution and use of a computer will likely apply.

Human Trafficking Amendments

The Commission amended §2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) to include an alternative enhancement prong at §2L1.1(b)(8)(B). If greater than the coercion enhancement at §2L1.1(b)(8)(A), this enhancement will apply where the alien harboring was for the purpose of prostitution and the defendant receives a §3B1.1 adjustment for aggravating role. In this case, a two-level increase applies, but if the alien who engaged in the prostitution was a minor, a six-level increase applies. Application Note 6 was also amended to note that §3A1.3 (Restraint of Victim) may apply.

Additional amendments were made regarding human trafficking, but because they do not involve sex crimes, we will address them in a later post.

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

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

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

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

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

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

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

A new federal criminal law directed at online pharmacies went into effect in April. The lawyers at Kish & Lietz have represented many targets and potential targets of investigations and prosecutions involving these types of online pharmacies, as well as other drug prosecutions. Recent Internet drug sale laws may encompass more behavior than the primary reasons for their enactment.

The Ryan Haight Online Pharmacy Consumer Protection Act makes it illegal to distribute controlled substances that are prescription drugs over the Internet without a valid prescription or to advertise for such distribution. “Valid prescription” is defined as “a prescription that is issued for a legitimate medical purpose in the usual course of professional practice” by a practitioner who has evaluated the patient in person at least once or, if that practitioner is unavailable and has evaluated the patient in-person within the past year, then a practitioner whom he requests to evaluate the patient. The Act also permits states to sue online pharmacies and imposes registration and reporting requirements on certain online pharmacies.

The primary function of the Act is to address online pharmacies, which deliver controlled substances by means of the Internet. Its chief provisions amend 21 U.S.C. Section 841, a part of the Controlled Substances Act that lists illegal conduct and penalties. The new law is targeted at people and entities such as doctors, pharmacists and pharmacies, and web site owners involved with online pharmacies that issue and fill prescriptions for controlled substances based solely on completion of online medical questionnaires. It is not expressly limited to online pharmacies, however, or to the types of targets listed. Federal prosecutors may use this law against anyone who delivers, distributes, or dispenses a controlled substance by means of the Internet, or helps someone do so, without authorization.

Related to this new law, in 2006 the Adam Walsh Child Protection and Safety Act (other aspects of which we discussed in this previous post) created a separate federal criminal law prohibiting Internet sales of certain so-called date rape drugs. One section of the Act amended Section 841 to impose a maximum sentence of twenty years on anyone who knowingly uses the Internet to distribute a date rape drug, knowing or with reasonable cause to believe that the recipient is not an authorized purchaser or the drug will be used in the commission of criminal sexual conduct. The Act defines “date rape drug” to include gamma hydroxybutyric acid (GHB) and its analogues, including gamma butyrolactone (GBL) and 1,4-butanediol (1,4 BD,) as well as flunitrazepam (Rohypnol or roofies) and ketamine. These drugs are also often used recreationally, but the intended use is irrelevant to the law if the person distributing the drugs through use of the Internet knows or has reasonable cause to believe the recipient is not an authorized purchaser.

In addition to these laws punishing behavior broader than their purposes, there appears to be a statutory inconsistency between the Act’s suggestion that GBL and 1,4 BD are ‘analogues’ of GHB and the definition of “controlled substance analogue” set forth in 21 U.S.C. Section 802(32). Under that section, to prove that any particular substance is an analogue to GHB, the Government must prove, among other things, that the substance at issue is “substantially similar” in chemical structure to GHB. Based on what our firm has learned from handling cases involving these substances, it appears that a scientific consensus does not exist on the question of whether GHB is substantially similar in chemical structure to GBL and 1,4 BD. It will be interesting to follow this Act and the manner in which federal courts interpret these seemingly inconsistent provisions. As Internet crimes evolve, we will continue to monitor developments in the law.

The text of the Ryan Haight Online Pharmacy Consumer Protection Act is available here.
The text of the Adam Walsh Child Protection and Safety Act is available here.
21 U.S.C. Section 841 is available here and 21 U.S.C. Section 802 is available here.

A couple of weeks ago, the federal Supreme Court decided a criminal case, Melendez-Diaz v. Massachusetts, holding that the admission of crime lab reports requires the forensic analysts to testify in person. The Georgia Supreme Court adopted the same rule in 1996 for state criminal cases brought here in Georgia and we are pleased that it will now apply in federal criminal cases, as well as in other states that didn’t previously have the rule.

Justice Scalia, a strong defender of the Sixth Amendment Confrontation Clause, wrote the majority opinion in Melendez-Diaz. The basic idea of the Confrontation Clause is that people have the right to be confronted with witnesses against them so they have a chance to defend themselves against the charges. In Crawford v. Washington, the Court held that testimonial statements against a defendant are inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant has had a prior opportunity for cross-examination. In this case, Scalia explained that the crime lab reports were affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause and addressed in Crawford. For that reason, the analysts making the statements must appear at trial.

The dissent argued that forensic evidence is uniquely reliable compared to other types of testimony and that cross-examination of the analysts would be empty formalism. To most people who watch TV shows like CSI, this argument has merit – scientific evidence seems indisputable. But not all forensic analysts are as intelligent and well-educated as Gil Grissom. The Court noted that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials… One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases.” Confrontation will help assure accurate forensic analysis by weeding out both fraudulent and incompetent analysts.

The opinion in Melendez-Diaz is available here.

Last Monday, the Supreme Court granted certiorari in a related case, Briscoe v. Virginia. We will follow that case and update on it when it is decided. More information on that case can be found at the Confrontation Blog.

In a potentially huge decision for criminal law in Georgia, Florida, and Alabama, the Eleventh Circuit federal appeals court in Atlanta held that twenty-one days was an unreasonably long time for law enforcement to wait before obtaining a search warrant after seizing a man’s computer hard drive. Because the circumstances of this case, United States v. Mitchell, failed to justify the three-week delay, the trial court should have suppressed the evidence discovered on the hard drive.

The Fourth Amendment’s protection against unreasonable seizures both guards us against unreasonable arrests and protects our possessory interests in personal property. Even with probable cause to seize property, the duration of the seizure pending the issuance of a search warrant must still be reasonable. Courts determine reasonableness by weighing the government interests against private interests. This rule ensures the prompt return of property, should a search reveal no incriminating evidence.

In Mitchell, the Court acknowledged the substantial possessory interest people have in their computers’ hard drives. Computers are heavily relied upon for both personal and business uses, storing information including financial information, passwords, photos, e-mails, and countless other items. The Court called the hard-drive “the digital equivalent of its owner’s home, capable of holding a universe of private information.”

On the other hand, in this case, the government’s justification for the delay was less than compelling. Although the eventual search warrant application contained only three pages of original content, the hard-drive was detained for three weeks due to an agent’s attendance at a two-week training program. The agent “didn’t see any urgency” in obtaining the warrant because of the defendant’s admission that the hard drive contained contraband. The Court noted that another agent could have been assigned the task and that the defendant’s admission could have been wrong.

The Court emphasized that this rule depends on all of the circumstances of the case. The opinion noted situations in which the Court would be sympathetic to delays, such as where resources of law enforcement are overwhelmed. However, this case will potentially impact future cases involving seizure of computers, due to the importance (rightfully) placed on the private interests in such property.

The full opinion is available here.

The Office of the Inspector General for the U.S. Department of Justice issued a massive report earlier this week concerning how the various federal prosecutors around the country are doing (or not doing) their jobs. While there's a lot of truth to the old saying about "lies, damn lies and statistics", the numbers in this report give some clues about why certain federal white collar criminal investigations simply wither away over time.

The Department of Justice is the mother ship for all of the various lawyers who work for the federal government. When it comes to prosecuting federal criminal cases, the 94 U.S. Attorneys offices around the country have front-line responsibility. The U.S. Attorney him or herself is a person appointed by the President to head up one of these 94 offices. However, the day-to-day operations usually are handled by prosecutors who have generally made a career of or have spent a long time as an Assistant U.S. Attorney (AUSA). The statistics in this new report show that there can be great variations between the 94 offices when it comes to how AUSA's handle white collar federal criminal cases.

Some of the statistics in this report are set out in Appendix XIV. This Appendix details how federal prosecutors have handled white collar criminal investigations over the past 5 years. The Appendix goes through each of the 94 U.S. Attorneys offices, and details how many such cases were referred to the prosecutors, provides numbers on how many were actually prosecuted, gives figures on how many were refused for prosecution, and sets out how many are still just hanging around with no decision.

Again, remember that statistics can often mislead. Nevertheless, this report shows that in some U.S. Attorneys' offices, the majority of white collar cases lead to formal criminal charges. In others, a relatively small percentage ever result in a criminal case. In many districts, the majority of white collar cases languish for many years before anyone makes a decision.

We represent many people who are investigated for federal white collar offenses such as mail or wire fraud, public corruption, money laundering and the like. The toll of such an investigation can weigh heavily on our clients and their families. These statistics show clearly that for some of our clients, they may have to wait many years before the case is either refused for prosecution or simply dies on the vine.

In a federal criminal case involving an internet sex crime, a federal judge recently ruled that the phrase "minor victim" does not include an undercover detective posing as a minor. The decision in the case interpreted provisions of the recently-enacted Adam Walsh Child Protection and Safety Act, as well as a previous Act.

As part of the Adam Walsh Act, Congress amended the Bail Reform Act by establishing that for certain offenses involving a "minor victim", defendants should not be released on bail unless they are subjected to electronic monitoring and a host of other mandatory conditions. In addition, in an Act which predated the Adam Walsh Act, Congress amended the Bail Reform Act by creating a rebuttable presumption in favor of detention for certain enumerated offenses involving a "minor victim". In many cases, these two provisions, particularly the latter one, make it virtually impossible to secure the release of an individual facing a federal internet-based sex charge.

This recent decision, however, appears to provide some hope for those individuals. In United States v. Kahn, the federal magistrate judge presiding over the matter pointed out that Congress failed to define the phrase "minor victim" in either the Adam Walsh Act or the Bail Reform Act. Accordingly, based on fundamental principles of statutory interpretation, the court interpreted the phrase in accordance with its plain meaning. Significantly, based on such an interpretation, the court concluded that "the plain meaning of the term 'minor victim' does not encompass the undercover detective or her fictitous thirteen year-old daughter." I anticipate that the Government will appeal this decision and this issue of statutory interpretation will be an interesting one to follow as it develops further.

Earlier this month, the Pensacola News Journal reported that a federal prosecutor who was charged with an internet based sex crime committed suicide by hanging himself inside his cell at a federal detention facility. In recent years, those of us who engage in the defense of individuals charged with federal crimes have literally witnessed an explosion in the number of internet based crimes that are being prosecuted at both the federal and state level. In my view, this tragic situation involving the federal prosecutor from Pensacola highlights the overwhelming stress that typically accompanies any internet based federal charge.

From what Paul Kish and I have seen, in cases like this, the individual often has strong community ties, a supportive family, and no criminal history or prior encounters with law enforcement. However, several years ago, Congress created a rebuttable presumption in favor of detention for certain internet-based federal crimes. For this reason, in cases like this (and in any case in which the Government moves for detention), it is important for defense counsel to get to up to speed as quickly as possible so that he can be prepared to address the issues that arise during a detention hearing.

In addition to the obvious stress that one encounters upon the initiation of a federal charge, the potential penalties that one may face if convicted can certainly add tremendously to the stress level. In recent years, Congress has not only increased the number of federally-based internet crimes, but it has also substantially increased the sentences that are often associated with certain crimes. For instance, in connection with the enactment of the Adam Walsh Act, Congress increased the mandatory minimum penalty associated with one of the charges the Pensacola federal prosecutor was facing to thirty years.

For all of these and other reasons, individuals facing criminal charges must seek competent counsel immediately. Indeed, as Senator Larry Craig recently acknowledged during his interview with NBC's Matt Lauer, failure to seek counsel in connection with any criminal charge can lead to regrettable consequences.