Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

As the final hours of 2009 were running out on New Years' Eve, U.S. Supreme Court Chief Justice John Roberts issued the Chief Justice's Year-End Report on the Federal Judiciary, available here, a tradition begun by Chief Justice Warren Burger in 1970 to address the most critical needs of the federal judiciary. The Chief Justice has used the Year-End Report in the past to call for salary increases for federal judges. However, this year, the Report merely states that the federal courts are operating soundly, citing the hardships experienced by the nation in 2009.

The Appendix to the Report surveys the workload of the federal courts in 2009. It notes that the total number of cases filed in the Supreme Court decreased by about 6.1% from 2007 to 2008, however the Court hear more cases argued and issued more signed opinions in 2008 than 2007. Filings in the Federal Circuit Courts of Appeals also declined 6% to 57,740, mostly due to a drop in appeals from the Board of Immigration Appeals.

The Year-End Report notes, however, that criminal case filings in federal district courts rose 8% to 76,655, and the number of defendants climbed 6% to 97,982, surpassing the previous record for the number of defendants, 92,714, set in 2003, and reached its highest level since 1932. Filings relating to immigration, fraud, marijuana trafficking, and sex offenses increased. The number of mmigration cases and defendants reached record levels, as a result of illegal re-entries and visa or entry permit fraud. Most of the increase was in five federal districts near the southwestern border. The Report also observes that, as of September 30, 2009, the number of persons under post-conviction supervision was 124,183, an increase of 3% from the previous year. Supervised release cases and pretrial services cases also rose by several percent.

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Last week three important matters before the Supreme Court signaled the demise of honest services mail fraud found at 18 U.S.C. § 1346. That law defines honest-services mail and wire fraud as "a scheme or artifice to deprive another of the intangible right of honest services." Honest services mail fraud was adopted by Congress 21 years ago in an effort to combat political corruption, but it has allowed federal prosecutors to indict and convict folks of any manner of conduct, criminal or not.

As Justice Scalia recently remarked in dissenting from a denial of a cert petition some months ago, "Without some coherent limiting principle to define what 'the intangible right of honest services' is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.''

Last Tuesday, the Supreme Court heard oral argument on two cases that did not explicitly raise the issue of the constitutionality of the honest services mail fraud. Scotusblog has an excellent critique of the arguments in the Conrad Black and the Bruce Weyrauch cases and the oral argument transcripts can be found here and here.

However, as Scotusblog reports, on Friday, attorneys for Jeff Skilling explicitly raised the issue arguing that 1346 is unconstitutionally vague. The Skilling merits brief is here. See p. 38.

A detailed read of the oral arguments last week portends the inevitable falling of this statute that has been an essential weapon in combating public corruption, but that has also been a source of abuse and over-reaching by “headline-grabbing” prosecutors.

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Yesterday the Supreme Court gave us another defense win authored by Justice Souter. Pursuant to a wiretap of Mohammed Said’s phone, the government recorded 6 phone calls between Said and petitioner Abuelhawa, who arranged on 2 occasions to buy one gram of cocaine. The government charged each of the phone calls as a felony under 21 U.S.C. 843(b), which makes it a felony to “use any communication facility . . . facilitating” the distribution of drugs.

The two purchases by petitioner Abuelhawa were misdemeanors. The two sales by Said were felonies. Justice Souter, in a fairly awkward fashion, writing for a unanimous court, held that because Congress legislated a more lenient sentence for the purchase of gram quantities of cocaine as misdemeanors, that the government’s reach exceeded its grasp in making those misdemeanor purchases into felonies by the end run of charging the use of a communication device. Thus, using a telephone to make a misdemeanor purchase does not “facilitate” felony drug distribution in violation of § 843.

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