Articles Posted in Federal Criminal Law News

Next Monday, the federal Supreme Court will hear arguments in Pepper v. United States. In this fascinating case, the Court will consider whether judges can take a prisoner’s efforts at rehabilitation into consideration when that prisoner is resentenced. This case is interesting both because the government has changed its stance and because of the uncommon circumstance that Mr. Pepper was resentenced to three additional years in prison after four years of freedom.

Mr. Pepper pleaded guilty to conspiracy to distribute methamphetamine and was sentenced to 24 months in prison, although the Sentencing Guidelines range was 97 to 127 months. The government successfully appealed that sentence, but the judge resentenced Mr. Pepper to the same amount of time, in part because of the prisoner’s efforts at rehabilitation following the first sentence. Prosecutors again appealed, arguing that such a consideration was an abuse of discretion. The Eighth Circuit agreed. Upon resentencing by a different judge, Mr. Pepper was ordered to return to prison to serve an additional 41 months.

After successfully appealing Mr. Pepper’s below-guidelines sentence twice, the Department of Justice has switched sides and is supporting Mr. Pepper’s contention on appeal to the Supreme Court that rehabilitation should be taken into account. As reported in this Des Moines Register article, when she was Solicitor General, Justice Kagan sided with Mr. Pepper, arguing that court rules do not prohibit “a court from considering at resentencing a defendant’s efforts at rehabilitation undertaken after his initial sentencing.” Rather, a federal law “specifically instructs sentencing courts to consider ‘the history and characteristics of the defendant.'” Justice Kagan will not take part in the Supreme Court’s decision.

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

We discussed this amendment in detail in this post in April. The amendment deleted 4A1.1(e), which addressed the recency of previous imprisonment in calculating the criminal history points that increase a defendant’s sentence. That provision added points if the defendant committed the offense less than two years after release from imprisonment or while in imprisonment or escape status.

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

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.

Bruce Karatz, former CEO of KB Homes, was sentenced last Wednesday for fraud and false statements in connection with underlying stock-options backdating charges (of which he was acquitted.) He received eight months of house arrest, five years probation, $1 million in fines, and 2,000 hours of community service, the sentence recommended in the probation office’s presentence investigation report (PSR). Judge Otis D. Wright II admonished the prosecutors for their “mean-spirited” sentencing memorandum.

This New York Times article explains the backdating scandal and its results, quoting one professor who analogized it to a “corporate crime lottery.” Although backdating was a widespread practice, relatively few corporate executives have been prosecuted, and then with mixed results. The longest prison sentence given to a backdating defendant has been 2 years.

In this case, the government requested 6 years incarceration and $7.5 million in fines. In their sentencing memorandum, prosecutors argued that sentencing Mr. Karatz to home detention in his “24-room Bel-Air mansion” would suggest “a two-tiered criminal justice system, one for the affluent … and a second for ordinary citizens.” “To promote respect for the law, the public must be assured that a wealthy, well-connected individual, regardless of his station, array of prominent friends and associates, history of private success or acts of public largess, will be subject to the same standard of criminal justice as those less fortunate,” prosecutors wrote.

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.

In this post last week, we announced the Supreme Court’s decision in Skilling v. U.S. The Court held that 18 U.S.C. § 1346, the honest services law that the government has been using to prosecute nearly everything as a federal crime, applies only to bribery and kickback schemes.

The honest services fraud statute simply defines “scheme or artifice to defraud” as used in the mail- and wire fraud statutes to “include a scheme or artifice to deprive another of the intangible right of honest services.” Congress enacted this statute quickly after the Supreme Court, in McNally, held that the fraud statutes were “limited in scope to the protection of property rights.” Congress intended to incorporate pre-McNally case law that had recognized fiduciary duties as intangible rights to honest services and a breach of those duties as fraud.

The majority’s rationale for limiting the honest services fraud statute to only bribes and kickbacks was that such cases constituted the “core” of pre-McNally honest services fraud cases and that statutes should be construed, where possible, rather than invalidated. Because, the Court said, circuit conflicts and disagreements regarding honest services fraud cases were primarily outside the bribery and kickback scheme cases, limiting the application of the statute to those cases would avoid vagueness troubles.

This morning, the United States Supreme Court issued its opinions in three honest services fraud cases: Skilling, Black, and Weyhrauch. We have previously discussed these cases here (discussion of cases and background of honest services fraud,) here (Skilling,) here (Black), and here (Weyhrauch.) In Skilling, the Court limited the federal criminal honest services fraud statute to only bribery and kickback schemes. Based upon that opinion, the Court reversed in Black and Weyhruach. The Court also held that Jeffrey Skilling of Enron fame was not denied a fair trial due to publicity and community prejudice.

We will provide analysis of these opinions next week. In the meantime, the opinion in Skilling is available here; the opinion in Black is available here; and the single-sentence per curium opinion in Weyhrauch is available here.

Last month Attorney General Eric Holder issued a memorandum to all federal prosecutors regarding Department of Justice policy on charging and sentencing. This memo supersedes prior memoranda on this subject issued between 2003 and 2005 by former A.G. John Ashcroft and former Deputy A.G. James Comey. The new memo encourages greater fairness in prosecution than Bush-era policies by repeatedly calling for “individualized assessment” of cases in charging, plea-bargaining, and sentencing.

The following excerpt provides an overview of the content of the memo:

[E]qual justice depends on individualized justice, and smart law enforcement demands it. Accordingly, decisions regarding charging, plea agreements, and advocacy at sentencing must be made on the merits of each case, taking into account an individualized assessment of the defendant’s conduct and criminal history and the circumstances related to the commission of the offense (including the impact of the crime on victims), the needs of the communities we serve, and federal resources and priorities. Prosecutors must always be mindful of our duty to ensure that these decisions are made without unwarranted consideration of such factors as race, gender, ethnicity, or sexual orientation.

The United States Supreme Court decided two important federal criminal cases yesterday. We discussed the reasonable opinion in U.S. v. Carr, a SORNA case, in this post yesterday. We must now address the disappointing decision in Berghuis v. Thompkins, which we briefly explained in this post last October.

The Court divided along traditional ideological lines, with Justice Kennedy issuing the majority opinion joined by the conservative bloc and Justice Sotomayor writing a lengthy dissent for the liberal justices. The majority held, counter-intuitively, that a person must make an unambiguous statement to invoke his right to remain silent.

In this case, Mr. Thompkins was in custody, awaiting transfer to another state. He was seated in a hard, straight-backed chair in a small room. With the exception of declining a peppermint and commenting on his chair’s discomfort, he remained silent for nearly three hours of interrogation, until asked whether he believed in God. He said, “Yes.” and began to cry. When asked if he prayed, he again said, “Yes.” He was then asked if he prayed to God for forgiveness “for shooting that boy down.” Again, he said, “Yes,” and looked away. He refused to sign a Miranda waiver form or make a written statement.

This morning the United States Supreme Court held that 18 U.S.C. § 2250, a part of of the Sex Offender Registration and Notification Act (SORNA), does not apply to sex offenders whose interstate travel occurred prior to SORNA’s effective date in July 2006. This case resolves a circuit court split in which the Eleventh Circuit, which hears appeals from federal cases in Georgia, Florida, and Alabama, took the opposite view.

In an opinion by Justice Sotomayor, the Court explained that the three elements of Section 2250 (requirement to register, interstate travel, and failure to register) “must be satisfied in sequence.” The interpretation that the statute does not impose liability unless a person travels and fails to register after becoming subject to SORNA’s requirements accords with the text of the statute, which sets forth the travel requirement in the present tense. The Court also noted that Section 2250 is just one of several provisions of SORNA and that SORNA’s overall structure also indicates that Section 2250 should be limited to its specific purpose, rather than expanded to tackle all of SORNA’s broader intent.

The Court noted that because Section 2250 liability could not be predicated on pre-SORNA travel, the Court needed not address whether the statute violated the Ex Post Facto Clause.