Elonis v. United States: SCOTUS Again Adopts Narrowing Construction of Criminal Statute

As I noted in my post last week, the Supreme Court has a variety of interpretive tools at its disposal to rein in the ever-expanding reach of federal criminal law.  Right on cue, the Court demonstrated the use of one of these tools this week in Elonis v. United States.  

Elonis, a self-styled rapper, posted a variety of lyrics with violent themes on his Facebook page.  Some of these lyrics related to his wife, some to coworkers, and some to law-enforcement personnel, among others.  Elonis was eventually convicted under 18 U.S.C. §875(c), which prohibits individuals from transmitting in interstate commerce “any communication containing any threat . . . to injure the person of another.”

The Supreme Court reversed, ruling that Elonis’s jury had been improperly instructed.

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Yates v. United States: Overcoming Plain Meaning

As we enter the home stretch of the Supreme Court term, I have been reviewing the criminal cases already decided by the Court this year. For my money, the most interesting is Yates v. United States, which presents a classic statutory interpretation problem. This was the fish case that got a fair amount of whimsical press coverage when it came out. Even the Justices proved incapable of avoiding fish puns in their opinions, but I’ll do my best not to get caught in that net. (Oops.)

Yates captained a commercial fishing vessel that was catching undersized grouper in violation of federal law. Following an inspection, some of the illegal catch was thrown back into the sea on Yates’s orders, presumably to avoid penalties. Yates was eventually convicted under 18 U.S.C. §1519, which authorizes a prison term of up to twenty years for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . or in relation to or contemplation of any such matter.”

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SCOTUS Interprets Criminal Statute Narrowly to Preserve Federal-State Balance

In an opinion sure to be cited by many federal criminal defendants for years to come, the Supreme Court yesterday overturned the conviction of Carol Anne Bond under the Chemical Weapons Convention Implementation Act.  Although few defendants are prosecuted under this statute, the Court’s decision in Bond is noteworthy for its approach to the interpretation of federal criminal statutes.  The Court adopted a narrow interpretation of the Implementation Act in order to preserve what it called the “usual constitutional balance of federal and state power.”  (12)  This interpretive principle is not a new one, but the Court applied it in an unusually aggressive fashion in Bond.  The opinion is sure to be a favorite of defendants who find themselves prosecuted in federal court for offenses traditionally and routinely handled in state courts.

The underlying facts in Bond were a mix of the mundane and the bizarre.   Continue reading “SCOTUS Interprets Criminal Statute Narrowly to Preserve Federal-State Balance”

Prosecutors Without Borders

Anthony Colangelo has an interesting new article that deals with the extraterritorial reach of American criminal law.  Here’s the background:

Physical presence of the accused in the forum’s territory has been used in both U.S. and international law to justify applying forum law to the accused’s prior conduct outside the forum. Presence is fine to establish adjudicative jurisdiction, but it cannot alone justify the exercise of prescriptive jurisdiction. To begin with some recent headline-grabbing examples, a number of cases bubbling up in federal court charge foreign defendants under U.S. narco-terrorism laws for agreeing with undercover U.S. Drug Enforcement Agency agents to run drugs abroad. Some of the agreements charged appear to have no overt U.S. connection, like agreements to transport drugs across Africa into Europe. To meet statutory jurisdiction requirements, the government accordingly has relied in large part on the narco-terrorism statute’s provision creating jurisdiction where, “after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States.” The government has increasingly relied on this type of provision to prosecute foreign defendants for activity abroad unconnected to the United States, including providing material support to terrorism and receiving military training from a foreign terrorist organization. And the courts have been receptive. For their part, defendants have tried to challenge the provision as exceeding jurisdictional limits of international law, a clear loser of an argument given that Congress can override international law by express statutory provision. (83)

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Crime Elements and Mental States: A New Theory

When legislatures create new crimes, they sometimes fail to specify what mental state must be proven with respect to each element.  These gaps in substantive criminal law give real significance to deafult rules or presumptions that certain levels of mens rea are required in certain circumstances.  The Model Penal Code, for instance, specifies that some form of mens rea (purpose, knowledge, recklessness, or negligence) must be proven as “each material element of the offense.”

The Supreme Court has also recognized a mens rea presumption, although in a somewhat more limited form than the MPC.  This was made clear, for instance, in Dean v. United States, 556 U.S. 568 (2009), in which the Court held that a ten-year mandatory minimum sentence could be triggered by the entirely accidental discharge of a firearm during a bank robbery.  The relevant statute did not specify any mental state, and Dean argued that the government should be required to prove that the discharge was knowing or intentional.  However, the Court indicated that its mens rea presumption only applied to elements that made a defendant’s conduct criminal, not to aggravating factors (like the discharge of a weapon) that merely made the defendant’s illegal conduct even worse.

Now, in an interesting new article, Eric Johnson seeks to defend and elaborate on Justice Stevens’ dissent in Dean.  Continue reading “Crime Elements and Mental States: A New Theory”

Seventh Circuit Considers Scope of Conspiracy Liability for Retail Seller of Illegal Drugs

Herbert Phipps was a meth addict and retail dealer.  After being nabbed by law enforcement agents, he was charged along with several others in a large conspiracy case.  Curiously, prosecutors chose to charge Phipps only with a conspiracy count, and not with a substantive drug trafficking offense.  The government’s theory was that Phipps conspired with his wholesale supplier.  Although the jury accepted this theory and convicted Phipps, the sufficiency of the evidence of a conspiracy became the most difficult issue facing the Seventh Circuit in his appeal.

Phipps could not be convicted of conspiracy unless there was another party to the conspiracy.  His guilt thus required that his wholesale dealer be a coconspirator, and whether this was so depended on the wholesaler’s intent.  As the Seventh Circuit observed,

Conspiracy is agreement, and it takes two to agree. “A person who sells a gun knowing that the buyer intends to murder someone may or may not be an aider or abettor of the murder, but he is not a conspirator, because he and his buyer do not have an agreement to murder anyone.” United States v. Lechuga, supra, 994 F.2d at 349. If Phipps’s supplier was indifferent to Phipps’s intended use for the drugs, even if he knew that it was to resell them, he is merely an aider and abettor of Phipps’s retail sale of illegal drugs and there was no conspiracy between them.  (10)

In addressing the application of conspiracy law to wholesaler-retailer relationships, the Seventh Circuit was hardly writing on a blank slate.  Continue reading “Seventh Circuit Considers Scope of Conspiracy Liability for Retail Seller of Illegal Drugs”

Seventh Circuit Affirms Money-Laundering, Conspiracy Convictions of Car Dealers for Cash Sales to Drug Traffickers

Amir Hosseini and Hossein Obaei, who operated three Chicago-area automobile dealerships, sold many luxury cars to drug dealers over a ten-year period. Hosseini and Obaei were apparently popular with this market segment because of their willingness to take large cash payments in small bills. Eventually, federal prosecutors caught up with them, and, following a five-week trial, they were convicted by a jury on 97 counts of conspiracy, money laundering, mail fraud, illegal transaction structuring, bank fraud, and aiding and abetting a drug conspiracy. The Seventh Circuit has now affirmed these convictions and the 15- and 20-year sentences that went along with them.

Had it been properly preserved, the most substantial legal issue on appeal would have been the question left open by United States v. Santos, 553 U.S. 507 (2008): whether, in a traditional money-laundering prosecution, the government must prove that the allegedly laundered proceeds are net profits, as opposed to gross receipts, of the underlying crime. (See my blog post about Santos here). However, since the Santos issue was raised for the first time on appeal, the court used plain-error review and found that the defendants could not satisfy the standard given the “unsettled state of the law.” (2)

Hosseini and Obaei also raised an interesting voir dire issue.  Continue reading “Seventh Circuit Affirms Money-Laundering, Conspiracy Convictions of Car Dealers for Cash Sales to Drug Traffickers”

Why Is This Guy Being Prosecuted? Seventh Circuit Orders New Trial for Forklift Operator Swept Up in Drug Sting

As part of a drug sting, an undercover federal agent drove a truckload of marijuana to an industrial park in McHenry, Illinois, on March 18, 2008.  The agent had arranged to deliver the drugs to Irineo Gonzalez, a target of the sting.  Although Gonzalez showed up to meet the agents, there were some difficulties with getting him to accept and unload the shipment.  After a time, the owner of one of the businesses at the industrial park, Cardenas, decided to check out what was going on.  He apparently had no connection to Gonzalez or the government, and simply assumed that the truck was carrying legitimate goods.  In order to assist with the unloading, he summoned three of his employees, including Leobardo Lara.  After the truck was opened, however, it immediately became apparent to everyone what the contents were.  Cardenas ordered the truck off the premises, but the federal agent — seeing the opportunity for a successful sting slipping away — refused to go.  Cardenas then left the scene to call the landlord.  The agent tried without success for several minutes to convince the three employees to unload the truck.  Gonzalez also tried, offering to pay them with marijuana.  Still, they refused.  Finally, the agent called the landlord, who (unbeknownst to Cardenas or his employees) was being paid by the government for the right to use his industrial park as the site of the sting.  The landlord reassured the employees that it was fine for them to unload the drugs and that he would “take responsibility” for whatever happened.  Only then did the employees help with the unloading, receiving no payment for their work.  Lara, who contributed his forklift to the unloading operation, was then arrested and eventually convicted of possession with intent to distribute — even though the government conceded he had no connection to the drug shipment before his employer summoned him to unload the truck.

I’m hard pressed to see a good justification for this prosecution.   Continue reading “Why Is This Guy Being Prosecuted? Seventh Circuit Orders New Trial for Forklift Operator Swept Up in Drug Sting”

Two Circuits Approve Use of Uncounseled Convictions Against Native Americans

In Burgett v. Texas, 389 U.S. 109 (1967), the Supreme Court held that a prior conviction cannot be used to enhance a defendant’s sentence under a recidivism statute if the prior conviction was obtained in violation of the defendant’s constitutional right to counsel.  Native Americans, however, must deal with an apparent loophole in the Burgett rule: the Sixth Amendment right to counsel applies to proceedings in federal and state courts, but not tribal courts.  If an uncounseled prior conviction in tribal court does not violate the Constitution, it may arguably fall outside the Burgett prohibition and be used against the defendant in a later case.

By some apparent coincidence, the Eighth and Tenth Circuits last month both addressed the use of uncounseled tribal-court convictions under 18 U.S.C. § 117(a), which makes domestic assault by a habitual offender a federal crime.  Both courts approved use of such convictions to satisfy the criminal-history element of the offense.

The Eighth Circuit decision, which actually drew a dissent, seems the more carefully reasoned.

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Fowler, Federalization, and Statutory Interpretation

Brown v. Plata grabbed the headlines last week, but the Supreme Court’s decision in Fowler v. United States (No. 10-5443) also merits attention for what it has to say about the federalization of criminal law and the interpretation of criminal statutes.  The case also nicely illustrates the way that the Court’s stereotypical ideological divisions (so starkly manifest in Brown) break down when the Court moves out of politically charged areas of constitutional law (e.g., the Fourth and Eighth Amendments) and into the interpretation of federal criminal statutes.

Here’s what happened.  While preparing to rob a bank, Fowler and some confederates were discovered by a local police officer, whom Fowler then killed.  Fowler was later convicted in federal court under the witness tampering statute, which makes it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense,” 18 U.S.C. § 1512(a)(1)(C).

Fowler’s intended bank robbery counts as a federal offense, and Fowler clearly killed the police officer in order to prevent him from communicating information relating to this offense.  The only question in the case was whether Fowler had the intent to prevent communication to a federal law enforcement officer.  There was no evidence that Fowler actually contemplated that his victim might report the crime to federal authorities, as opposed simply to calling in additional local cops.  But does the statute really require the defendant to be thinking about federal involvement?

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