Federal Criminal Lawyer Blog

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.

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, 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.

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.

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

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

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

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

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

The opinion is available here.

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.

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.