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October 2004
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My Thanksgiving post

I'm thankful that:

I am alive and healthy and married to a wonderful person
My wife not only tolerates me but loves me
My wife passed the bar
I finished my last law school class yesterday
I've made so many good blogger buddies (trying not to omit anyone) launched my blog
I lost ten pounds
My wife has her dream job
My family sticks together through tough times
We don't live in a police state
I have time enough to blog
I have good friends

Based on my training and experience

Ken Lammers has a wonderful post, and follow-up post discussing the role "gut feelings" of police officers play in criminal investigations.  I know that officers do not make stops based on their "gut feelings."  Instead, every stop is based on "the facts and circumstances I observed, which based on my training and experience, indicated that I should initiate contact with the suspect."

They're not getting my pocket Constitution

According this this news story, the Declaration of Independence was banned at a California grade school.  The article ledes:

A California teacher has been barred by his school from giving students documents from American history that refer to God -- including the Declaration of Independence.

Steven Williams, a fifth-grade teacher at Stevens Creek School in the San Francisco Bay area suburb of Cupertino, sued for discrimination on Monday, claiming he had been singled out for censorship by principal Patricia Vidmar because he is a Christian.

My knee jerk reaction was that the school administrators required Mr. Williams to remove the Declaration of Independence merely because it contained the words "God" and "Creator."  I lived in the bay area, and such an action would not surprise me.

However, Mr. Williams' lawyer said: "He hands out a lot of material and perhaps 5 to 10 percent refers to God and Christianity because that's what the founders wrote."  Discussing the origin of rights is admirable.  But I wonder if Mr. Williams' is dressing up a lecture on Christianity as a philosophical discussion of human liberty.  I also wonder whether he's covering Hobbs and other secular visions of the state.

If what Williams' lawyer says is true, namely that "[t]he principal seems to be systematically censoring material that refers to Christianity," the principal would be engaging in unconstitutional viewpoint discrimination.  Perhaps worse, the principal would be cheating the children out of the opportunity to learn how religion informed the Founders' understanding of natural rights.

But I would need to see more evidence.  Namely, is God part of the totality of learning about civil rights in early America, or is the teacher merely using the Delectation of Independence as a way to talk about God.

Two types of Federalists?

My political views often surprise people.  My criminal defense lawyer friends are always shocked to learn that I support school vouchers.  My conservative friends (who consider me a loyal ally) groan when they learn I support decriminalizing almost everything.  But especially confusing to my liberal friends is my membership in the Federalist Society.

I can understand the confusion, and it exists because liberals assume there is only one type of Federalist.  But unlike the left, we Federalists are diverse.

I think there are two main types of federalists: the Heritage-Federalists and the Cato-Federalists.  Our different approaches on policy, especially on crime and federalism, can be illustrated by comparing two different discussions on overcriminalization.

In Measuring the Explosive Growth of Federal Crime Legislation, sponsored by the Heritage Foundation, former Attorneys General Edwin Meese and Richard Thornburgh criticize Congress' willingness to criminalize garden-variety crimes, e.g., car jacking..  Some of the reasons they disagree with the growth of the criminal code include Congress' stepping on the toes of sovereign states, and the high economic cost to pay the law enforcement officers (including generous salaries and pensions).  However, not once did Mssrs. Meese or Thornburgh talk about how unjust it is for a person's conducted to be covered by overlapping federal and state laws. 

Heritage-Federalists are still down with the establishment, the only difference is they prefer smaller units of goverments.  Powerful states are fine, a powerful federal government is less desirable. 

Cato-Federalists are more of the anti-establishment wing.  We are as concerned with individual rights as the ACLU.  We differ with the ACLU on many issues, though, because unlike the left, we think that less government leads to greater individual liberty.

Thus, in this amicus brief, the Cato Institute argued against a broad reading of the Commerce Clause because:

Federal Duplication of State Criminal Codes Threatens Individual Rights.
The passage of the federal statute governing “interstate domestic abuse” is part of a trend in which Congress has been duplicating state offenses in the federal criminal code, particularly on “hot-button” issues suitable for political posturing. See AMERICAN BAR ASS’N, TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, THE FEDERALIZATION OF CRIMINAL LAW (1998) at p. 2. That expansion of federal authority into areas the Framers never intended undermines many aspects of the constitutional structure they designed, throwing the system out of balance in ways that threaten individual rights and liberty.

For example, the Framers of the Bill of Rights intended that no person should “be subject for the same offence to be twice put in jeopardy of life or limb,” meaning that a person cannot be punished twice or prosecuted after an acquittal for the same crime. U.S. Const. amend. V. But this Court has ruled that a state prosecution will not bar a subsequent federal prosecution for the same conduct, because the state and federal governments are “separate sovereigns” with distinct interests to protect. Abbate v. United States, 359 U.S. 187 (1959). The “separate sovereign” doctrine would not often compromise the constitutional protection against double jeopardy if the federal government were restricted to its enumerated powers and created federal crimes only to address the genuinely national issues within its authority. But the duplication of state criminal codes, exemplified in the “interstate domestic abuse” statute, threatens to render double-jeopardy protections meaningless.

Moreover, the federalization of state crimes may deprive the accused of rights and procedural protections afforded by state law but not applicable in federal prosecutions. For example, states may provide broader protections against entrapment, broader rights to pretrial discovery, and even a broader right to counsel. See KAMISAR, LAFAVE, AND ISRAEL, MODERN CRIMINAL PROCEDURE 49, 392-97, 1128-36 (7th ed. 1990). Federal duplication of state criminal codes creates the potential for those rights and protections to be circumvented by the simple expedient of prosecution in federal rather than state court. Indeed, the Petitioner in this case has cited evidence that she was prosecuted in federal court in part so that New York’s requirements for corroboration of accomplice testimony could be avoided. Pet. at p. 24.

But perhaps most importantly, the demise of the doctrine of enumerated powers would leave all individual rights in jeopardy because it would eliminate the Constitution’s first line of defense against an overweening central government. The Bill of Rights was added to the Constitution as a “back-up” system, but the primary protection was meant to reside in the enumeration and hence limitation of powers. As one scholar has noted, “[t]here is no reason to believe * * * that the Bill of Rights itself will survive over the long term if the rest of the plan is abandoned. As National Aeronautics and Space Administration engineers say, once you start relying on the backup systems, you are already in trouble.” Reynolds, supra, CATO INSTITUTE POLICY ANALYSIS NO. 216, Oct. 10, 1994, at p. 28.

Heritage-Federalists care about federalism because it strengthens the states.  Cato-Federalists support federalism because it will help individual liberty flourish. It's two different worldviews ( though as we get into nuance, we agree more with each other).  So now you know not to prejudge a member of the Federalist Society.  Odds are that the Federalist Society is more diverse than the ACLU.

New book from the Cato Institute

Go Directy to Jail: The Criminalization of Amost Everything is the title of the Cato Institute's latest work dealing with the weight gain of the federal criminal code.  There are two reasons you should buy this book.  First, Miguel Estrada endorses it. 

The dramatic expansion of federal criminal law in recent decades has made it distressingly easy for prosecutors to ‘make a federal case’ out of matters more properly handled at the state level or by civil remedies. That phenomenon makes it more likely that ordinary businesspeople risk being jailed for run-of-the-mill commercial dealings that traditionally have been handled by contract and tort law. With this timely volume, Cato draws attention to an important—and too often ignored—legal problem.

Second, it has a catchy pitch (emboldened is the coolest freaking expression I've seen in a long time):

At one time, the sanction of the criminal law was reserved for serious, morally culpable offenders. But during the past 40 years, an unholy alliance of tough-on-crime conservatives and anti-big-business liberals has utterly transformed the criminal law. Today, while violent crime often goes unpunished, Congress continues to add new, trivial offenses to the federal criminal code. With more than 4,000 federal offenses on the statute books, and thousands more buried in the Code of Federal Regulations, it is now frighteningly easy for American citizens to be hauled off to jail for actions that no reasonable person would regard as crimes. At the same time, rampant federalization and mandatory minimum sentencing are making America’s criminal justice system ever more centralized and punitive. The result is a labyrinthine criminal code, a burgeoning prison population, and often real injustice. Go Directly to Jail examines those alarming trends and proposes reforms that could rein in a criminal justice apparatus at war with fairness and common sense.

Does Congress want Angel Raich to break the law?

How can Congress reach Angel Raich's personal, non-commercial use of medical marijuana?

Congress has the power under the Commerce Clause, Art. I, § 8, Cl. 3, to regulate commerce among the several states.

In United States v. Lopez, 514 U.S. 549, 558-559 (1995) the Court found that the Commerce Clause confers upon Congress power to regulate “three broad categories of activity," namely:

• “the use of the channels of interstate commerce”;
• “the instrumentalities of interstate commerce, or persons or things in interstate commerce”; and
• “those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.”

Since Angel Raich is not obtaining her medical marijuana or any supplies from out-of-state, the government must argue that her personal use of medical marijuana substantially affects interstate commerce.  Thus, the government argues in its Merits Brief:

Congress has the power under the Commerce Clause, Art. I, § 8, Cl. 3, and the Necessary and Proper Clause, Art. I, § 8, Cl. 18, to regulate local activity that substantially affects interstate commerce. *** The CSA constitutionally regulates the commercial market in marijuana, which is international and interstate in scope. Marijuana is regularly imported into the United States illegally, and domestic trafficking in the drug occurs on a massive scale.

In other words, the government is arguing that Raich (and other hypothetical medical marijuana users aggregated) substantially affect the illegal drug market because they obtain their medicine legally.  Get that? 

The United States is arguing that it's a bad thing that Raich and others similarly situated are able to obtain legal medicinal marijuana, because in so doing, they don't avail themselves to the interstate illicit drug market.  Because they don't avail themselves to the illicit drug market, they therefore decrease the demand for illegal drugs.  Hence, the "substantial affect."

I don't know what you think, but decreasing demand for an illegal product seems great.  Let's let doctors, not dope pushers, control the marijuana market.

Matt adds to my position.  In the comments to this post he writes:

Actually, the government is arguing that the cultivation and/or use of medicinal marijuana increases the illicit drug trade. Specifically, they refer to the fact that "Congress found that '[l]ocal distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances (21 U.S.C. 801(4))". (Petitioners' Brief p. 23)

I agree with Matt, but the point of this post was not to suggest that the "more legal users means less felons" is the only approach Congress is relying on.  But it is one approach.  On page 25 of that same brief, the government writes:

Users of homegrown marijuana and those who distribute it for free (such as the John Doe respondents) may ultimately purchase marijuana in the black market, if, for example, their production efforts fail or fall short. Indeed, respondents, like many other claimed medical marijuana users, view marijuana consumption as a medical necessity.

This language supports my original postition, namely that people who obtain medical marijuana for free must not buy marijuana from the black market.  The government is not arguing that people will start using the free stuff, and once they can't get that, they'll become illegal drug users.  They're arguing, inter alia, that as sick people use legal medical marijuana, they'll turn less to the black market.  I'm still trying to figure out what that's a bad thing.

[Cross-posted on the Ashcroft v. Raich blawg.]

A Good but Broad Law

According to, the United States has obtained its first conviction after trial under the amended "sex tourism" law:

An 86-year-old man was found guilty Friday of attempting to travel to the Philippines to sexually molest girls, in violation of a new federal law aimed at fighting sex tourism.

A judge found John W. Seljan guilty of six counts, including attempting to travel for the purpose of having sex with minors and possession of child pornography.

Seljan faces a minimum term of 10 years in prison and a maximum of 270 years when he is sentenced in March. The retired business owner is one of about a dozen men who have been arrested under the Protect Act, which was enacted last year.  The law made it easier to prosecute those who molest children overseas and increased penalties.

Seljan was the first to go to trial on charges brought under the Protect Act, though at least two men have pleaded guilty.

Although the article does not cite the law he was charged under, it's likely that he was convicted under 18 U.S.C. 2423:

(b) Travel with intent to engage in illicit sexual conduct. A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

Since Mr. Seljan was going to take a "sex trip" section 2423(b) would seem to cover his conduct.

However, there is one part of the law, added as part of the PROTECT Act, that has gone underreported:

[18 U.S.C. 2423] (c) Engaging in illicit sexual conduct in foreign places. Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

(f) Definition. As used in this section, the term "illicit sexual conduct" means (1) a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A [18 USCS §§ 2241 et seq.] if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person under 18 years of age.

Although the law was drafted to punish perverts who seek to exploit young girls - indeed 2423(b) does this nicely - the overall law's coverage is much broader.

Notice that 18 U.S.C. 2423(c) makes it a crime to "engage in any illicit sexual conduct" - which means to have sexual conduct with someone under 18 - in a foreign jurisdiction.  A person is liable even if he did not travel with the intent to have sex with a person under 18-years old.  This means that a college kid traveling in Europe commits a sexual offense if he or she has sex with a 17-year old.  It also means our soldiers are at risk, because they could potentially be imprisoned for having consensual sex with a 17-year old.

Putting aside the merts of creating an international crime of statutory rape, that's that law, and it's something to keep in mind during your kid's next vacation. Let's also hope that JAG Officers have informed soldiers deployed abroad about 2423(c).

A few changes

I'm pleased to inform you that I am now blogging as part of's affiliate network.  Nothing on this blawg will change, except you'll notice a large but tasteful advertisement on the right column.  I don't expect to make much money working with, but I will have many more readers.

The best part of having more readers is that my referral power will increase.  Many good people have brought traffic to me.  Finally I'll be able to pay them back.

Also, there's no need to think I "sold out," because no one has editorial control over this page, except for me and you, since I often tone things down after a discussion with a reader.  But if things change here, it's only because I'm a bit scared.  My fellow affiliates (I don't dare say colleagues) include these blogs:

The Volokh Conspiracy
May it Please the Court
I/P Updates
The [non]billable hour
Jottings by an Employment Lawyer

So, if I seem a bit intimated, it's only because, well, I am.

Cross-examination, and the whether and why rule

Does a defendant have the right under the Confrontation Clause to flesh out before the jury details of a plea agreement?  Yes.  The constitutional right to cross-examination demands that a defendant be permitted to a ask not only whether a witness is biased, but also why the witness might be biased.  Thus, the "whether and why" rule.  United States v. Schoneberg, No. 03-30127 (9th Cir., Nov. 17, 2004) (Kleinfeld, for Nelson and Fisher, JJ.)

Jeremiah Schoneberg and Robert Woodbury were old friends.  During high school, Woodbury sold marijuana to Schoneberg.  They kept in touch after high school, although the extent of their friendship is uncertain.

According to Woodbury, Schoneberg was involved in drug and money laundering conspiracies.  Although Woodbury was the head of the group, the government gave him a good deal if he ratted on his underlings.  Woodbury copped a plea that would require him to serve less than 4 years.

At trial, the defense counsel tried running Woodbury through the crucibile of cross-examination but was stopped by the judge. 

Schoneberg's attorney got Woodbury's plea bargain into evidence, but was not permitted to cross examine Woodbury about whether his testimony was affected by the government's promise to move for a sentence reduction if his testimony satisfied the government. The trouble started when defense counsel asked Woodbury to confirm that under his agreement, "the only party that is going to determine whether you're telling the truth today, as you're standing on the witness stand, is the United States government, the United States Attorney." Woodbury answered, "I don't know sir. I don't know how the law works." Before defense counsel could begin punching away at what was arguably an evasive and misleading answer, the judge said, "What are you getting at? The jury decides whether he's telling the truth. " Defense counsel read Woodbury one of the paragraphs of his plea agreement and asked him to confirm that it meant "[t]he United States, those folks right there, a party to this lawsuit, are the sole people that determine whether you're telling the truth or not." Woodbury again claimed not to know "how the law works," [See, Ethical Question, below].  and the prosecutor objected to defense counsel's question, saying "that's a misrepresentation. " The judge agreed, "[T]he jury in this case is the sole determiner of the credibility of the witnesses in this case."  about that it's the government's obligation to determine the truth, because it isn't. It's the jury's determination in this case." Defense counsel was unsuccessful in persuading the district judge that he was entitled to explore Woodbury's incentive to please the government.

Judge Kleinfeld continued:

The constitutional right to cross examine is subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, but that limitation cannot preclude a defendant from asking, not only whether the witness was biased but also to make a record from which to argue why the witness might have been biased.  Exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.

Moreover, the error was reversible:

The importance of the testimony to the case, presence or absence of other evidence corroborating or contradicting the witness, extent of permitted cross-examination, and overall strength of the prosecution's case are among the factors we consider in determining whether the error is harmless.

Here, the sole issue in the case was whether the jury believed Woodbury or Schoneberg.  Woodbury's word was the only inculpatory evidence.  As such, the conviction must be reversed.

Ethical Question: Why didn't the AUSA stop the proceedings to tell the judge that he had explained the plea bargaining process to Woodbury?  If the AUSA had explained the process to Woodbury, then he knew or should have known that Woodbury was perjuring himself.  But the AUSA did nothing to stop the witness from committing a felony by lying to the judge and jury.