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The New Crime and Federalism Jocks

In United States v. Peters (CA11) a three judge panel devoted 19-pages to a plain error analysis of the constitutionality of selling a firearm to a felon.  Why perform this analysis when reviewing for plain error?

I have an answer -- On the heels of U.S. v. Maxwell and U.S. v. Smith, the Eleventh Circuit wants us to know that they are the new federalism jocks.

Sure, the Fifth Circuit was the first court to hold that Congress exceeded its power under the Commerce Clause since 1937.  And post-Lopez it appeared that the Fifth Circuit would keep its title as the federalism jocks.  But in Hickman (the constitutionality of the Hobbs Act) and McFarland (Hobbs Act take 2), the Fifth Circuit twice failed to limit Congress' power to enact federal criminal laws.  Recently, in U.S. v. Bird, the Fifth Circuit declined to strike down a clearly unconstitutional law.

Then the Ninth Circuit moved in with three big crime and federalism cases - U.S. v. McCoy (intrastate possession of child p*rnography), U.S. v. Stewart (the home-made machine gun case), and Raich v. Ashcroft (intrastate possession of medicial marijuana).  But the Ninth Circuit has been silent for a while.

Thus, the Eleventh Circuit moved in.  In Maxwell they reversed a child p*rnography conviction.  In Smith they reversed another child p*rn conviction (on plain error review!).  And in Peters they told us, "We take federalism seriously," even when the advocates don't think the raise the issue below.

Let's hope that Raich - which the government will win - will be a narrow win for the government, so we can see if the Eleventh Circuit has its title taken away.
 


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.


Depends on how you Define Abuse

I hate the PATRIOT Act.  Well, not really.  Mostly, I hate talking about the PATRIOT Act.  So few people have read it, and thus, the PATRIOT Act is - depending upon whether you ask readers of the Times or viewers of FoxNews - downright evil or downright saintly.

Professor Kerr often sensibly defends the PATRIOT Act.  But his recent remarks either show that he's way off, or that prosecution- and defense-minded people will never agree on what abuse means.  Take a recent DOJ report.

Prof. Kerr blogged approvingly of a recent DOJ Office of the Inspector General report on PATRIOT Act abuses and noted:

These days, the DOJ OIG report comes and goes with no fanfare or press attention. Why? Because the DOJ isn't finding much in the way of abuses, and isn't finding anything at all related to the Patriot Act.

Ken Lammers humorously impeached the report: "Fox: All Safe in PATRIOT Act  Hen House."  But he didn't list any PATRIOT Act abuses.  There's a recent story that I think is a clear-cut abuse of the PATRIOT Act.  N.J. Man Indicted in Laser Beam Case.

David Banach had recently purchased a laser pointer.  To demonstrate to his daugher how it worked - and perhaps to demonstrate to his daughter that he lacked any common sense - Mr. Banach pointed the laser at airplanes.  Utterly silly and downright stupid?  Yes.  An act of terrorism?  The FBI didn't think so:

The FBI acknowledged the incident had no connection to terrorism but called Banach's actions "foolhardy and negligent."

When agents went to interrogate Mr. Banach, he further evidenced his lack of common sense by not only talking to the agents, but by lying to them.  Quite stuipid.  And quite felonious.

But instead of charging Mr. Banach will a 1001 count (lying to federal agents is a felony), the government has charged him with anti-terrorism provisions of the PATRIOT Act.  The Indictment reads:

Banach
did knowingly and willfully interfere with, disable, and incapacitate a driver, captain, and person, namely aircraft pilots, while those aircraft pilots were employed in operating and maintaining a mass transportation vehicle, namely the Aircraft, with reckless disregard for the safety of human life. 
In violation of Title 18, United States Code, Sections 1993(a)(5), 1993(b), and 2.

Does anyone with any common sense or common decency really think Mr. Banach was trying to disable an airplane?  Although I agree that someone who pointed a laser beam at an airplane while goofing off with his daugher and lied about it should face a 1001 prosectuion, I think that charging him under an anti-terrorism law is clearly abusive. 

The guy is more like Bozo the Clown than Osama bin Laden.  And the law should be able to charge Bozo and Osama appropriately.  Charging Mr. Banach under the PATRIOT Act is abusive.  Obviously, the Department of Justice would disagree. 

So then, how can I trust a report investigating PATRIOT Act abuses when we can't even agree on what abuse means?


Be Kind to the Well-meaning Dilettante

I made my first post to Crime & Federalism - then, hosted on Blogger - on March 18, 2004. Last night I was able to successfully import my prior posts from Blogger, and I'm currently editing them.

I've noticed a couple of things.  First, I've learned a lot over this year. Concepts that I could barely grasph are now handled like breathing - with simple, involuntary control.

I also noticed that I was quite the dilettante.  Looking back at my old posts caused me to blush at my lack of nuance and context.  I wonder to myself, "How could I think myself qualified to write about such things?"

And yet, had I not started with the boldness possessed only by the fool, or the dilettante, I would still be ignorant.  Writing is the best way to learn -- Someone reading will always happily correct you.

But this past year of blogging offers me a good moral - Be kind and helpful to the well-meaning dilettante.  Chances are, we were all pretty clueless last year, and we are all still students this year.


I'll Have Mine Fried, Please

Anyone here eat at Feby's Fishery in Wilmington, Delaware, on February 15? If so, did you happen to overhear Superior Court Judge Peggy Ableman's chit-chat with her husband over dinner?

One witness said she told her husband that "she would get the last word" and that the man on trial before her "would get the death penalty." 

So much for a neutral and detached magistrate in that case. The defendant was subsequently sentenced to death.

Lawyers for the man filed a motion for a new trial claming judicial bias. Judge Ableman would have none of it. Her recollection of the dinner conversation was that she was disappointed in the perfomance of defense counsel. Listen to part of her ruling:

"Defendant has not cited, nor am I aware of, any authority that would prevent a judge from telling her husband, `An attorney has so botched the death penalty case that I am trying that I am going to be stuck with a ten-two jury vote to execute a juvenile." Temper, temper, judge.

The defendant will not be executed, thanks not to the judge, but to the Roper decision declaring it unlawful to execute juveniles. The defendant was seventeen at the time of the murders for which he was tried.

The judge's remarks were overheard after the jury's verdict of guilty, but before a verdict on the penalty phase.

Sounds like a biased jurist to me. And, of course, her observations of defense counsel's performance will be pivotal in the inevitable habeas corpus petition for ineffective assistance of counsel.

Judge Ableman now finds herself in a tough spot. She has all but declared defense counsel ineffective. Question: Will she appear voluntarily at that habeas hearing to support the claim of ineffectiveness? Or will she try to quash the subpoena claiming judicial privilege?


Dark Justice -- Seven

"Have you seen Les?" Eleanor was standing at the door of his study. "I don’t think he came home last night." As always, she was impeccably dressed, a pink silk sweater, grey wool slacks with sharp creases, and black pumps. Her hand was on the door jamb, and her face taut. Fear pulled at the faint creases forming on either side of her mouth.

"No, I haven’t. You’ve checked his room?" Harmon Fitzgerald was sitting behind his roll-top desk in the book-lined master bedroom they’d converted into a study. He was wearing his favorite Scotch-plaid flannel shirt and khakis. Before him was a draft of the Supreme Court’s opinion in the Chandler case. He was hoping to finish his dissenting opinion today.

"Nothing’s been moved. It’s unlike him not to call," Eleanor stood in the doorway, suddenly looking small and frail. She was nineteen years younger than Fitzgerald, but at times like this she seemed ancient. Her hands worked one another nervously, and her color was rising, her chest a bright red.

Eleanor Fuchs had been quite a catch a decade ago. Thirty-five, wispy red hair, a slender waist and the fine-tuned mind and willowy sensibilities of a classical pianist. Her first marriage to a surgeon ended in divorce; she was raising her son, Lester, alone. He was seven years old and already a handful; he was enrolled in the toniest private school in town, but there was talk of a learning disability. Eleanor wasn’t persuaded. What the boy needed was a father, she thought, and Fitzgerald was as happy to acquire a son as he was a wife. They married soon after meeting. The year after they were married he was appointed an associate justice of the Connecticut Supreme Court. For the past nine years, they’d remade themselves into a family.

Husband and wife now stood in the doorway of Lester’s room. The bed remained made, the tight almost military corners still in place. Their housekeeper went through the house each morning attending to these small details. Lester’s desk was still a mess, but nothing seemed to have shifted. The housekeeper knew enough to leave Lester some space all his own. It was July, so there was no homework scattered about. A dog-eared copy of Dostoevsky’s Crime and Punishment lay face-down on the desk, next to a dirty plate bearing the remains of what looked like lasagna. Lester had been home in the afternoon. The housekeeper would never have left the plate. On the walls, photographs Lester had taken at the Cape, and posters of Mel Gibson in Braveheart, and one of a partially clad leggy blonde neither parent recognized. Lester’s aquarium bubbled on, a coven of exotic fish darting this way and that.

The room remained in this condition for the next two years. Eleanor made sure of it. She even replaced each fish as it died with one of an identical species. When Lester returned home, she wanted simply to close this gaping fissure in her life.

-----------

"I don’t know, I just keep wondering what I have done," Eleanor sat on a couch in her therapist’s office. "It’s always the same, especially this month. I walk by his room, peek in, and expect to see him sitting there. Sometimes I actually see him sitting there, and we talk." She dragged from the cigarette in her left hand. It was a new habit, taken up in the weeks after Lester first disappeared.

"You know, it will be two years this month," she exhaled.

"I know," said the therapist. Every gesture conveyed acceptance, but she was wary now. Eleanor could go in any of a number of directions in an instant. Hysteria, withdrawal, a cynical crack. Marla Grantis sat waiting to see which defense would be chosen to shield Eleanor from grief.

"Do you believe he was murdered?" Eleanor appeared calm. It was the first time she had uttered the word murder in relation to her son.

Dr. Grantis sat silently, waiting for the silence to summon a response in Eleanor. She was no Freudian stone, sitting cryptically through every storm waiting to discern her patient’s responses. Dr. Grantis, actually she was a Ph.D., and not a physician, was an eclectic. Nothing barred her from sharing her thoughts and impressions. But instinct, no, common sense, told her that the word murder had deeper resonances. Eleanor was in uncharted waters now. Dr. Grantis opened her arms, one hand resting on each thigh, and sat in a welcoming pose.

"I sometimes think it might be true, you know?" Eleanor was calm now. Her eyes unfocused. She was testing a thought too horrible to accept. She needed to utter it so carefully, and in a place where she could withdraw the thought and hide it from view if the demons moved in too quickly. "He may well have been," she paused, testing the atmosphere to see if it was safe, "murdered." Her cigarette sad idly in her hand. She was quiet.

There was little doubt in Dr. Grantis’ mind that Lester Fuchs had been murdered. There was little doubt in the minds of the Belle Grande Police Department either, judging by what the newspapers had reported. Although no one had been convicted of the crime, a man had been charged in the slaying. The morning’s papers carried news that a court hearing was about to begin in the case. The defendant was a contemporary of Lester’s named Marcus Antoine. The case had created a stir nationwide. Antoine was the local football sensation, and had been recruited by the University of Michigan; a full-ride and talk of a career in the National Football League. It all came crashing to a halt months earlier when Antoine was arrested and charged with the murder of Lester. The papers reported that Antoine and two other men had murdered Fuchs and dismembered his body. The police had no idea where the body was, and Antoine was reportedly tight-lipped. There were as yet no other arrests. Eleanor became a chain smoker when Antoine’s arrest was announced.

"I’m not sure I can go through this," Eleanor said. "The trial, I mean." Her complection now grey; the small hairs at the back of her neck on end. A vein broke to the surface along the left of her forehead; pulse pounding out a mournful dirge. Deeper breaths now, trying to push away panic.

Who can imagine attending the funeral of their only child? Dr. Grantis thought. But still, a funeral brings closure. Rituals may not heel, but they signal to the world that the metes and bounds of our internal worlds have changed, unalterably. We are so bad at loss, Dr. Grantis thought. She recalled her own divorce more than a decade earlier. There were no ceremonies signifying the cataclysmic changes in her. No one congratulated her; the consolations she had been offered were furtive and cryptic. Half of marriages end in divorce, and still we cannot bear to look at the murderous and suicidal pain it yields. But it was worse when a child disappeared. Working with Eleanor had left no doubt in Dr. Grantis’s mind that such a disappearance is a special form of Hell. A disappearance makes liars of us all; it is so much easier to nurture the false expectation that the absent one will return. Those who utter something closer to the truth are accused of emotional treason.

"Why won’t that, that, kid just tell someone where Lester is? Can’t the prosecutor just promise to let him go if he tells me where to find my,..." and it happened, tears flowed now and a choking howl filled the room, ".. my," Eleanor gasped as though stabbed by some invisible lance, "... my baby."

The remainder of her hour dissolved into tears and a void swallowed Eleanor and pressed her down, down, down into immobilizing grief.


Collaborative Project on Truth and Veracity

Today Norm mentioned a case he was working on and asked for citations dealing with a police officer's lying about the existence of confidential informants.  I responded in the post below, though I dealt not just with lies about the existence of an informant, but police-dishonesty in general.

Scott from Grits for Breakfast has created his own list.  Check it out.

Please compile a list of sources on your blog, or in a comment to my post or Scott's.  Scott and I will compile a bibliography and share it with everyone.


A Few Online Sources About Police Lies

Riley v. City of Montgomery, Ala., 104 F.3d 1247 (11th Cir. 1997) (citing magistrate judge's report, which concluded that a lead "[police detective] routinely falsified records and may well have lied about the existence of a confidential informant").

Morgan Cloud, "The Dirty Little Secret," 43 Emory L.J. 1311 (Fall 1994) (collecting examples of police perjury).

Robert Bauman, "Good Faith Breeds Bad Cops," Reason (May '95) ("A 1988 investigation of the Boston police Drug Control Unit revealed that its members routinely fabricated the existence of informants and lied to obtain warrants from judges.") [I can't find the report online, but a search of Lexis-Nexus of periodicals from 1988 should turn up some reliable citations.  The investigation was conducted after a police shooting.]

Curt Brown, "Attorneys Pore over Past Cases," South Coast Daily (Aug. 17, 2001).  A judge found that a police detective made false statements in an affidavit.  Because of the police officer's perjury, the judge demanded that the detective produce a confidential informant the detective had allegedly relied upon in previous warrant applications.  Rather than produce the informant, prosecutors dismissed a pending criminal case. 

Maro Robbins, "Undercover cop put on night shift," San Antonio Express-News (Feb. 18, 2001) ("Federal prosecutors have dismissed two cocaine cases and scaled back a third because an undercover police officer lied about his information source in a sworn statement requesting search warrants.")  [The SA Express-News requires a payment of $2.95 for the full article, though a summary of the article is available here.]