Crime & Federalism

Travel Schmavel

U.S. v. Bredimus (here) is a two-year-old decision I noticed cited in this Mann Act case.  Because this opinion is so embarassingly reasoned, and because it was cited authoritatively, it deserves newfound attention.

At issue in Bredimus was this: Can Congress make it a federal crime, as it did with 18 U.S.C. 2423, to travel overseas to have sex? Section 2423 prevents not just dirty old men from taking sex trips, but also punishes college fornicators: it's an international version of the Mann Act.  In Bredimus, a dirty old man was convicted after taking a Thai sex trip.  He challenged his conviction, arguing that Section 2423 unconstitutionally restricted his ability to travel to other countries.

This was a strong argument.  The right to travel, in con-law lingo, is a fundamental right.  Because the right to travel is a fundamental right, the government can restrict it only if it has a compelling government interest, and only if the law is the least restrictive way for the government to achieve this interest.  If other countries have a lower age-of-consent than American, what compelling government interest does the United States have in punishing international sex?  That is, if it's legal over there, what business do we have criminalizing it here?  That's a tough argument.  How did the Fifth Circuit address it?

They didn't!  Instead, here is the panel's entire analysis:

Because this statute, as relevant here, only criminalizes foreign travel when the travel is done with an illicit intent, we find that Section 2423(b) does not impermissibly burden the fundamental right to travel.

You don't need a law degree to recognize the problem with this argument: it's circular.  The law does not burden to the right to travel because it only burdens the right to travel for illicit purposes.  What's that?  You mean that defining what is illicit itself imposes a burden on travel?  That is, by defining all travel with the intent to have sex with someone under 18-years-old, Congress has imposed a burden on the right to travel.

Let's apply the Fifth Circuit's reasoning to other contexts to see how wrong it is:

• Congress enacts a law making it illegal to travel across state lines for an abortion. 
• Congress enacts law making it illegal to move to another state in order to obtain better welfare benefits.
• Congress enacts a law making it illegal to travel across state lines to buy magazines and newspapers.
  

Under the Fifth Circuit's reasoning, all of these laws would be constitutional because they "only criminalizes foreign travel when the travel is done with an illicit intent," where Congress defines illicit in any way it sees fit. 

In the Fifth Circuit's defense, the Supreme Court used a similar "analysis" in Regan v. Wald, a poorly-reasoning opinion that upheld travel restrictions to Cuba.  There is, of course, a major difference between upholding a travel restriction to one of the United States' enemies and upholding a restriction that prevents a college student from "visiting" his 17-year-old German girlfriend.

Post-Lawrence Challenge to Incest Laws

Are incest laws constitutional?  A unanimous three-judge panel of the Seventh Circuit said, Yes.  Muth v. Frank, No. 03-3984, Slip op. at 13-17 (7th Cir. June 22, 2005).  Or maybe.   Id. at 17 ("[B]ecause this case is here on habeas review, the only question before this court is whether Lawrence announced a new rule proscribing laws prohibiting the conduct for which Muth was convicted.")  Of course, if the "only question before this court" was the habeas issue, then why did the panel used 4.5 pages to wax on about the non-Teague aspects of Lawrence?

UPDATE: Via How Appealing is this functioning link.

Double Jeopardy When the Feds and States Act-in-Concert

I've always thought that the dual sovereignty exception to the double jeopardy rule should not apply when federal and state prosecutors cherry pick the most pro-prosecution friendly jurisdiction.  Because, in acting-in-concert, they show that the "separate" governments are not trying to vindicate separate interests, but instead, have the singular interest of obtaining a conviction qua a conviction against a particular defendant. Just like a co-conspirator's acts apply to all other conspirators, so too should one prosecutor's loss be imputer to the other "sovereign's" prosecutors.

Thus, this opinion (United States v. Zone) was of immediate interest. Here is its lede:

Cortrayer Zone appeals from the district court’s order denying his motion to dismiss his federal criminal indictment. He argues that the instant federal prosecution violates his rights under the Double Jeopardy Clause because federal prosecutors orchestrated a previous state plea agreement in order to obtain a sworn admission for use in the federal proceedings. Because Zone has produced no evidence that “the state in bringing its prosecution was merely a tool of the federal authorities,” United States v. Figueroa-Soto, 938 F.2d 1015, 1019 (9th Cir. 1991) (quoting Bartkus v. Illinois, 359 U.S. 121, 123 (1959)) (internal quotation marks omitted), we affirm the district court’s denial of his motion to dismiss and deny his request to remand for an evidentiary hearing and further discovery.

Even if federal and state prosecutors act-in-concert when filing and prosecuting criminal charges, there is no double jeopardy violation.

Zone speculates that federal officials might have cajoled or prodded state prosecutors into concluding a plea bargain with Zone in order to facilitate a conviction in his subsequent federal trial. Even if Zone could prove this hypothesis true through testimonial or documentary evidence [there wouldn't be a double jeopardy violation]. The Double Jeopardy Clause does not prevent federal prosecutors from encouraging their state counterparts to pursue plea bargains, nor does it prevent them from taking advantage of the evidentiary record developed in connection with a defendant’s previous state conviction....Instead, the Double Jeopardy Clause limits consecutive state and federal criminal proceedings only when federal prosecutors “so throughly dominate[ ] or manipulate[ ] the [state’s] prosecutorial machinery . . . that the latter retains little or no volition in its own proceedings.” United States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996);

Slip op. at *6.

Second Amendment Blog

Check out "Of Arms and the Law."

Federalism is an Individual Right

Most people say that because I am a federalist, I must support states' rights.  They say I should keep company with the likes of a Jesse Helms, Trent Lott, or John C. Calhoun.  My employers and friends would find tha ironic, since the past 2 years I have worked soley on plaintiffs' Section 1983 and criminal cases for the defense.  Is a civil libertarian like me confused?

No.  Federalism is an individual right that should be as jealously guarded as the rest of the Bill of Rights.  In the criminal context, it becomes manifestly clear why. 

Each time Congress exercises power over offense conduct that is also a state crime, the following injustices occur:

• 1. A citizen may suffer successive prosecutions because the Supreme Court held that it does not violate the Double Jeopardy Clause to allow the state and federal governments to prosecute the same individual for the same offense conduct if that conduct violates both state and federal law.  The pit bull gets two bites at a defendant'’s jugular.
• 2. A citizen is subject to harsher penalties under federal law because most states confer upon their judges extensive discretion: the Guidelines provide almost none.  State prosecutors know this and often threaten to dismiss state charges to allow their friends at the US Attorneys office to file in federal court.
• 3. A citizen is not afforded his full constitutional rights.  This is because the federal Bill of Rights provides a floor on individual rights.  States may not offer less protection in their state constitutions than are provided in the Constitution, but states may offer more.  When a citizen is prosecuted in federal court for acts that also violate state law, the individual is not receiving his full potential protection under the law.
• 4. Acts that do not violate state law may violate federal laws.  The best example of this the federal crime of statutory rape, one of many Mann Acts.  It makes it a crime to move interstate to have sex with someone under 18 years old.  And although the age of consent varies from state to state, it is not a defense that the states from which (and to which) one moved has a lower age of consent than under federal law.  Thus, a person who travels from State A, where the age of consent is 16 years old to State B, where the age of consent is also 16 years old has committed statutory rape.

It is thus obvious that federalism has implications on individual rights.  But is it a right in itself?

The capital-f Federalists - most notably, Alexander Hamilton and James Madison - argued against a Bill of Rights.  They argued that listing individual rights was unnecessary because Congress' power was curtailed.  Congress could not reach you because its power is too narrow.  In my favorite of the Federalist Papers (No. 84), Hamilton wrote:

Here [in our original Constitution], in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.  "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.'' Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
***
For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

The structure of the Constitution limits federal power and thus leaves the people more free.

The structure of the Constitution was not enough for many states -- They conditioned their consent to the Constitution on the immediate amendment of the Constitution by adding a Bill of Rights. Madison and Hamilton lost that debate.

Indeed, included in the Bill of Rights is the Tenth Amendment, which provides that "The powers not delegated to the United States by the Constitution [ ] are reserved to the States respectively, or to the people."  Since the Tenth Amendment is included in the Bill of Rights, it is tautological to say that we have an individual right to be free from excessive Congressional power.

Virtual Porn, Morphed Porn, Free Speech Coaltion, and U.S. v. Bach

In United States v. Bach, No. 04-1211 (8th Cir. Mar. 14, 2005) a unanimous three-judge panel rejected Bach's First Amendment challenge to his conviction for possessing morphed child p*rnography.  Id. at *11-16. [Ed's note: I use * in place of some letters to keep creepos from finding my blog while looking for pictures of kids.]  Bach was convicted under 18 U.S.C. §2252A(a)(2), which makes it illegal to "knowingly receive[] ... any child p*rnography [in interstate commerce]."

In Bach the received a p*rnographic image (that was never proven to be of a minor) that had the head of a minor - identified as "AC" in the opinion - superimposed on the image "so that the resulting image appeared to be a nude picture of AC posing in the tree."  Id. at *3.  Bach challenged the conviction arguing that Ashcroft v. Free Speech Coalition required the government to prove that the pornographic image sans the superimposed head, was of a minor.  Otherwise, it was morphed child p*rnography and thus could not be criminalized unless first found to be obscene.

The panel, relying on Ferber's rather than Free Speech Coalition's reasoning, wrote that "[a]lthough there is no contention that the nude b*dy actually is that of AC or that he was involved in the production of the image, a lasting record has been created of AC, an identifiable min*r child, seemingly engaged in sexually explicit activity. He is thus victimized every time the picture is displayed."  Id. at *15-16.

Did the Eighth Circuit get this one right?  Let's begin.

Nuance to Free Speech Coalition

In United States v. Bach, No. 04-1211 (8th Cir. Mar. 14, 2005) a unanimous three-judge panel rejected Bach's First Amendment challenge to his conviction for possessing morphed child pornography.  Id. at *11-16.  In Free Speech Coalition, the Supreme Court held that the First Amendment prohibited prohibitions against virtual child pornography and "morphed" child pornography.  Morphed child pornography is created by taking innocent-looking pictures of children and making them appear pornographic.

In Bach, the Eighth Circuit held that, as in New York v. Ferber, and "[u]nlike the virtual pornography protected by the Supreme Court in Free Speech Coalition, the picture with AC's face implicates the interests of a real child and does record a crime." Bach at *15.  Further:

The picture depicts a young nude boy who is grinning and sitting in a tree in a lascivious pose with a full erection, his legs spread, and his pelvis tilted upward. The jury could find from looking at the picture that it is an image of an identifiable minor, and that the interests of a real child were implicated by being posed in such a way. This is not the typical morphing case in which an innocent picture of a child has been altered to appear that the child is engaging in sexually explicit conduct, for the lasciviously posed body is that of a child. See S. Rep. No. 108-002, at n.2 (2003) ("[T]he morphing provision is explicitly aimed at the creation of a sexually explicit image using an innocent image of a child.").

Bach at *16.  The court treated Bach's challenge as an as-applied one:

Although there may well be instances in which the application of § 2256(8)(C) violates the First Amendment, this is not such a case. The interests of real children are implicated in the image received by Bach showing a boy with the identifiable face of AC in a lascivious pose. This image involves the type of harm which can constitutionally be prosecuted under Free Speech Coalition and Ferber.

Id.  I'm not sure that the panel was correct, but I won't have the time to address these issues until later.  In the meantime, please feel free to post a comment.

Stripper Statute Struck Down

The Las Vegas City Council wanted to draw a line between legitimate exotic dancing and borderline prostitution.  They wanted to prevent strippers from, frankly, dry-humping patrons.  Thus, they enacted this statute:

"No attendant or server shall fondle or caress any patron and no patron shall fondle or caress any attendant or server."

Yup -- that's it.  Accordingly:

The law that defines what strippers can and can't do during lap dances in Las Vegas is unconstitutional, a judge ruled Friday.

District Court Judge Sally Loehrer affirmed a lower court ruling that as many as five misdemeanor criminal cases filed against strippers in Las Vegas should be dismissed because city code is too vague and unenforceable.

Loehrer said she believes the strip club industry needs to be regulated, but the law as written is flawed.

"I don't think the law is clear enough," Loehrer said, adding, "I don't think it's possible for the law enforcement to know what is allowable and what is not."

The full story is available here.  In striking down the law, the judge relied on the void-for-vagueness doctrine, which I've summarized for you.

Over a century ago, the Court outlined the policy of what would become the void-for-vagueness doctrine: 

“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government.”

United States v. Reese, 92 U.S. 214, 221 (1875).

The void-for-vagueness doctrine has remained vibrant, and “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982).   The void-for-vagueness doctrine protects a citizen from “standardless sweep[s] [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Smith, supra, 415 U.S. at 574   The aim is also to avoid giving police, prosecutors, and juries undue discretion in defining what conduct is prohibited.

It is not enough for a criminal defendant to boldly assert that a statute is vague. See Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).   All language is, to some degree and to some people, vague.  See   Indeed, very respected and credible philosophers have theorized that the only language lacking vagueness is the language within each person’s own mind: Your own private language.   Instead of merely shouting that statutory language is vague, a criminal defendant must show that the statute so vague that a reasonable person would not know what conduct is prohibited. Kolender v. Lawson, 461 U.S. 352 (1983).

Here the judge noted that "fondle" and "caress" were indefinately certain.  What if the stripper and patron (maybe we should call them "johnnys") held hands, or brushed up to each other?  What if the johnny put $5 into the stripper's panties? 

Too many unanswered questions means that there would be discretionary arrests, prosecutions, and convictions.  As such, the law had to go.

Public Use

The Fifth Amendment prohibits the government from taking your property, unless it's doing so for a "public use."  Should the Courts defer to legislative judgments as to what constitutes a public use?  At least one blogger at Ex Post answers yes, in a post you can access here.

Timothy Sandefur argues otherwise in a column available here.

Abortion Protests

Stuart Buck of The Buck Stops Here, has file a cert. petition challenging a restriction on anti-abortion speech, which is available here.  The Question Presented is:

Whether a speech-restrictive no-approach “buffer zone” law violates the First Amendment where, unlike the statute sustained in Hill v. Colorado, 530 U.S. 703 (2000), it (i) bars speech-related “approaches” only outside free-standing abortion clinics, rather than outside all health-care facilities, and thus is not content-neutral; and (ii) expressly exempts unconsented, speech-related “approaches” by clinic employees or agents, and thus is not viewpoint-neutral.

In Hill v. Colorado, the Court upheld a Colorado law that prohibited leafletters from coming closer than 8-feet to any person approaching any health-care facility.  Although everyone knew that the law was enacted to prevent abortion protesters from showing would-be abortion patients pictures of aborted fetuses, the Court closed its eyes and pretented it was a merely a content-neutral time, place, and matter restriction. 

Just as the state can require you to keep the volume down while performing a concert in a public forum, Ward v. Rock Against Racism, 491 U.S. 781 (1989), so too can it require you to maintain a reasonable distance from someone seeking medical treatment.  In Hill, the Court was able to analogize Colorado's restrictions to those in Ward because everyone was presented from coming within 8-feet of all health care facilities.  Had New York, in Ward, allowed political groups to turn the volume up while requiring other groups to turn the volume down, the law would have been invalid, since it singled out one type of speech for favored treatment.  (Re: You can hold loud political rallies, but not loud book fairs).

Here is appears that only anti-abortion speech receives disfavored treatment.  The challenged law reads:

No person shall knowingly approach another person or occupied motor vehicle *** for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person in the public way or sidewalk area within a radius of 18 feet from any entrance door or driveway to a reproductive health care facility...

This law only targets speech directed at persons entering a "reproductive health care facility."  More so than in Hill, the law's purpose of restricting anti-abortion speech is clear.

(Hat tip: SCOTUSBlog)