Crime & Federalism

Fifth Amendment and Erroneous 106 Rulings

In Paladino, the trial court properly allowed the government to admit Paladino's prior deposition testimony.  However, the government cropped the testimony so that it appeared that Paladino admitted to committing a crime.  The Seventh Circuit held that the trial court erred in admitting this misrepresented deposition testimony.  See post below. 

Paladino testified, though, because the misrepresented and misquoted deposition testimony sunk him.  Thus, Paladino had a classic Hobson's choice -- Let the misrepresented testimony go unchallenged, or take the stand. 

Was his Fifth Amendment protection against being compelled to testify violated?  No.  Wrote Judge Posner:

[T]he Supreme Court has held that there is no compulsion in such a case, since the defendant has the option of refusing to testify and instead, if he is convicted, of obtaining appellate correction of the erroneous evidentiary ruling and with it a new trial.  The specific evidentiary error in Luce was improper impeachment with a prior conviction, but the principle is the same: [In Luce the Court wrote] “to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify, for “claim of improper impeachment with a prior conviction” read “claim of violation of Rule 106.”

Paladino at *8 (citations omitted).  Ouch.  Judge Posner recognized

This rule puts the defendant to a hard tactical choice.  But  the alternative would be to give him two bites at the apple: testify, and try to win an acquittal; if that fails, appeal and get a new trial on the basis of the judge’s ruling.  The Supreme Court prefers the first of these unsatisfactory resolutions to the second, and we are bound.

Id.

UPDATE [3/28/2005]:  More Luce madness.  Today the Eighth Circuit wrote in United States v. Mooney:

Mooney also argues that the district court abused its discretion by denying his
motion in limine. Before trial he asked the court to rule that his 1986 state tax
conviction could not be used to impeach him if he were to testify. The court's denial
of the motion caused him not to testify he says, because he feared he would be
prejudiced by mention of his conviction in front of the jury. A trial court's
evidentiary rulings are generally reviewed for abuse of discretion, see, e.g., United
States v. King, 351 F.3d 859, 864 (8th Cir. 2003), but Mooney's issue is unreviewable
because he did not testify. See Luce v. United States, 469 U.S. 38, 43 (1984).

FRE 404(b) and FRE 106

Recently the Seventh Circuit handed down a decision of interest to evidence wonks.  United States v. Paladino, et al., No. 03-2296 (7th Cir. Feb. 25, 2005) (Posner, J.).

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.

Two-Way TVs and the Confrontation Clause

In United States v. Bordeaux, No. 04-1369 (8th Cir., Mar. 7, 2005) (Arnold for Gibson and Smith, JJ.) the court handed the Confrontation Clause two major victories.  First, the court held that allowing the complaining witness in a child molestation case to testify through a two-way circuit television system violated the Confrontation Clause.  Second, the court rejected the assertion that statements made for medial treatment are non-testimonial, and furthermore, that admitting statements made during a forensic interview violate the Confrontation Clause unless the declarant is put through the crucible of cross-examination.  Let's elaborate.

Statistical Evidence and Selling Sudafed

United States v. Sdoulam, No. 03-3946 (8th Cir., Mar. 2, 2004).

Sdoulam was a convenience store owner who sold pseudoephedrine in violation of 21 U.S.C. § 841(c)(2), which makes it a crime to "possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance." Pseudoephedrine, which is found is many over-the-counter medications, can be used to manufacture methamphetamine.

At trial, an expert testified that Sdoulam's sales of pseudoephedrine products exceeded the national average.  The argument was that Sdoulam must have had "reasonable cause to believe" that he was selling pseudoephedrein to a meth dealer because his sales exceeded the national average.  The problem is that an expert can not testify about a defendant's given mental state.  Thus, in a murder trial an expert may not testify that, "I conclude the defendant had the requisite intent to kill." 

Isn't that what the expert is doing here -- "Because Sdoulam's sales exceeded the national average, he must have had 'reasonable cause to believe' the medicine was going to meth makers?"  Here is the panel's answer:

We hold that the District Court did not abuse its discretion in admitting Robbin's testimony. First, we reject Sdoulam's argument that Robbin's testimony amounted to improper evidence of the statistical probability that Sdoulam was guilty. The standards governing expert testimony of statistical probabilities are set out in United States v. Kandiel. 865 F.2d 967 (8th Cir. 1989). In Kandiel, the defendant was convicted on thirteen counts, including making false representation of citizenship and making false statements in applications for passports. Id. at 969. The issue of the defendant's true identity was critical, as the defendant asserted that he was not Mohammed Kandiel, the Egyptian national charged in the indictment but, rather, was Jeff Howard, the son of a Native American woman. Id. At trial, the government introduced the testimony of an expert who compared a genetic marker in the defendant's blood to random population studies of blood group typings. Id. at 970. Based on this comparison, the expert testified that the defendant was "seventeen times more likely than someone from a random population" to be the brother of Ahmed Kandiel, an Egyptian national. Id. at 971. The expert further testified that the genetic tests indicated that there was only a "one in 1,000" chance that the defendant was the child of a Native American. Id. The defendant argued that such testimony "impermissibly established by mathematical certainty that [he] was Egyptian-born Mohammed Kandiel." Id. On appeal, this Court upheld the admittance of the expert testimony, ruling that "[s]tatistical evidence is not inadmissible per se." Id. at 971–72. We deemed the testimony proper because the expert laid adequate "foundational support" for the statistical probabilities by relying on scientific studies and because the testimony did not "serve to reduce the ultimate question of guilt or innocence to one of mathematical probabilities." Id. at 971.

We find Robbin's testimony materially indistinguishable from the expert testimony admitted in Kandiel. As in Kandiel, Robbin laid adequate foundational support for his conclusions by explaining their bases—national census population and marketing data and the business records of Sdoulam's wholesale suppliers. Moreover, Robbin made no statement regarding the mathematical probability that Sdoulam was guilty of the crimes charged. Robbin's testimony consisted of nothing more than a
comparison of the amount of expected monthly sales of pseudoephedrine products by the average convenience store to the amount of estimated sales of pseudoephedrine products by the Kansas store. While this testimony made the government's burden of proof on a critical element of the crimes charged more likely satisfied than not, as in Kandiel, the jury was left to draw whatever conclusions it wished from this comparison.

 Although the expert testified that Sdoulam's sales exceeded the national average, it was still up to the jury to conclude whether this evidence made or more or less probable that Sdoulam knew that he was selling to meth dealers. The expert therefore never testified as to Sdoulam's mens rea.  A very good decision.  This case is a reminder not to sell pseudoephedrine containing products to meth dealers.   And being willfully blind is no defense.

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.

Material Support to Terrorists

United States v. Afshari, No. 02-50355 (9th Cir., Nov. 20, 2004)

    The Mujahedin-e Khalq (“MEK") has participated or incited terrorism against the United States.  MEK was responsible for the American embassy hostage crisis of 1979.  MEK members have also engaged in joint terrorist actions with Saddam Hussein. 
    Yet the defendants here gave the MEK money.  Because money flowing to MEK might be used to kill Americans (and, indeed, money given to MEK was used to support Saddam Hussein), giving money to MEK is a felony. 
    However, before MEK was designed a "foreign terrorist organization," it received several lawyers of due process.  As the panel noted: 
8 U.S.C. § 1189(a)(1) sets out a carefully articulated scheme for designating foreign terrorist organizations. To make the designation, the Secretary has to make specific findings that 'the organization is a foreign organization'; that 'the organization engages in terrorist activity (as defined in section 1182(a)(3)(B) of this title)'; and that 'the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States.' 
    Moreover, "[t]he Secretary also must furnish the congressional leadership advance notification of the designation and the factual basis for it, which Congress can reject,"  id at  § 1189(a)(2)(A)(i), and which is then “published in the Federal Register.”  § 1189(a)(2)(A)(ii).  Then the allegedly foreign terrorist organization gets judicial review.
    The D.C. Circuit has jurisdiction to overturn the Secretary's finding on many grounds, id. at § 1189(b)(3)(A), including that the designation is  “contrary to constitutional right, power, privilege, or immunity.”  Id. at § 1189(b)(3)(B).
    The designation expires in two years (unless Congress overrides it sooner, § 1189(a)(5), (6)), after which the process begins anew.  Id. at § 1189(a)(4)(B).
    Even though the defendants learned “after participating in a conference call with an MEK leader … that the State Department had designated the MEK as a foreign terrorist organization,” they gave MEK hundreds of thousands of dollars.  Accordingly, there were charged under 18 U.S.C. § 2339B(a)(1), which makes it illegal to provide “material support to designated foreign terrorist organizations.”
    The defendants (and the ACLU) were upset because they could not give money to an organization that wanted to kill Americans and thus they brought two challenges against the law.      First, "[t]he defendants’ central argument is that § 2339B denies them their constitutional rights because it prohibits them from collaterally attacking the designation of a foreign terrorist organization."  Id. at *17103-04.  In other words, they want to relitigate each designation in every federal circuit. 
    Like a person who fails to appear in court for trumped-up charges, a person who disobeys a court order, and a felon who uses a firearm before his predicate conviction is expunged, these supporters of terrorist argue that “due process prohibits a prosecution under § 2339B when the predicate designation was obtained in an unconstitutional manner or is otherwise erroneous.”  Id.
    The panel quickly disposed of this argument.  Supreme Court precedent is clear: If you disagree with a judicial or legislative finding, clear it up before you do something that, but for the predicate finding, would be legal.  That is, if you have a felony, don't purchase a firearm until you successfully strike the felony from your record.  If you disagree with an injunction, don't violate the order: Have a higher court dissolve it.  You can't later say, “Well, the conviction was invalid, or the judge should not have granted the injunction.”  Just as the government followed procedures before designating the MEK a foreign terrorist organization, so too should the defendants have followed procedures before giving MEK money.
    Their second argument was “(1) they have a First Amendment right to contribute to organizations that are not terrorist; (2) the statutory scheme denies them the opportunity to challenge the ‘foreign terrorist organization’ designation; therefore (3) it deprives them of their First Amendment right to make such contributions."  Id. at *17107.
    The panel reached the right result, stating that since Congress can regulate contributions to legitimate candidates for office, so too can it regulate expenditures to agencies designed as terrorist.  Id. at *17108 (“[Since contribution limits are constitutional] [a] fortiori, contribution of money to organizations that engage in terrorism, as well as expressing a political agenda with speech, can be restricted by Congress.”).  See also id. (“It would be anomalous indeed if Congress could prohibit the contribution of money for television commercials saying why a candidate would be a good or bad choice for political office, yet could not prohibit contribution of money to a group designated as a terrorist organization.”)
    Here's the guts of the defendant's theory.  If someone is charged under one of BCRA's provisions preventing certain corporate contributions or expenditures, the company can argue that since its a media organization, its exempt.  Thus, the company can litigate it as part of its defense that BCRA doesn't cover it.  Here, the defendant's want to litigate that MTK is not a terrorist organization as part of its defense strategy.
    The Ninth Circuit denied the defendants that opportunity since MTK challenged its being designated as a terrorist organization thrice.  Since "the MEK protected its interests vigorously," the defendant's could not re-open its being designated a terrorist organization.  Id. at *17112.
    Although this decision has received a lot of negative press, it's yet another good one fom the Ninth Circuit.

Entrapment by estoppel

What is entrapment by estoppel?

[It's an] affirmative defense known as entrapment by estoppel. Such a defense is available when a government official has actively misled a defendant into a reasonable belief that his or her charged conduct is legal. United States v. Neville, 82 F.3d 750, 761 (7th Cir. 1996).

[T]he defense is available to those defendants proving that a government official, acting with actual or apparent authority, affirmatively assured or actively misled the defendant into a reasonable belief that certain conduct was legal. Neville, 82 F.3d at 761. The defendant must actually rely upon the official’s assurances in choosing his or her course of conduct, and such reliance must be reasonable in light of “the identity of the agent, the point of law represented, and the substance of the misrepresentation.” Id. In short, the defendant must have a reasonable belief that he is acting “pursuant to official authorization” to commit the crime or crimes with which he has been charged. Id. Given this rigorous standard, we have characterized entrapment by estoppel as a defense that is “rarely available.” Id.

As a prerequisite for presenting an entrapment defense to the jury, the defendant must produce sufficient evidence from which a rational jury could infer that he was entrapped into committing the crime charged. United States v. Santiago-Godinez, 12 F.3d 722, 727 (7th Cir. 1993). Where the evidence proffered is insufficient as a matter of law to support the defense, a district court does not err in making a pretrial ruling precluding the presentation of the defense at trial. Id. A district court’s ruling in this regard is reviewed de novo. Id. at 726.

United States v. Fish, No. 04-1197 (7th Cir., Nov. 3, 2004), *2-4.  In Fish, a unanimous three-judge panel held that "Fish' [being] born into a culture of pervasive violence and disrespect for the rule of law that was created and fostered by flawed governmental policy," did not allow him to assert entrapment by estoppel.  Fish, who lived on tribal land, claimed that since the federal government disregarded the tribe, it de facto said that the tribe did not fall under federal law.

Predicate felony and 18 U.S.C. § 922

Padilla was convicted in state court on drug charges.  Later, he was convicted under 18 U.S.C. § 922, the felon-in-possession statute.  After his conviction under § 922, he won his collateral attack against his state court conviction (re: the predicate offense for § 922).  Must the federal court vacate Padilla's federal conviction? 

No.  "'A convicted felon [must] challenge the validity of a prior conviction, or otherwise remove his
[firearm] disability, before obtaining a firearm.'”  United States v. Padilla, Nos. 02-50636 & 50286 (9th Cir., Nov. 2, 2004) (quoting Lewis v. United States, 445 U.S. 55, 65 (1980)).