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

We have mentioned the case of U.S. v. Jones which was pending before the United States Supreme Court, and  the issue of whether placement of a gobal positioning satellite (GPS)  device on a vehicle by law enforcement constitutes a search. Late last month, the Court issued an opinion holding that the government’s installation of a GPS device on a target’s vehicle constituted a search.  Justice Scalia authored the opinion of the plurality, which was joined by Justices Kennedy, Thomas and Sotomayor. Two concurring opinions were issued, the first by Justice Sotomayor and the second by Justice Alito, joined by Justices Ginsburg, Breyer and Kagan.

The main opinion begins with the premise that the Fourth Amendment to the United States Constitution "protects people, not places." Katz v.  U.S., 389 U. S. 347, 351 (1967).  The Court also observed that the Fourth Amendment was historically viewed as embodying a concern for governmental trespass to a person's person, property, papers and "effects."

The government's primary argument was that the device was placed on the vehicle in an area which was accessible to the public and regarding which the petitioner lacked a reasonable expectation of privacy, and therefore the placement did not implicate the Fourth Amendment. The main opinion, however, rejected this argument, concluding that the officers encroached on a protected area in attaching the GPS device.

Justice Alito's concurrence took issue with the approach in the main opinion, claiming that the Court concluded that the affixing of the GPS device constituted a search based upon the tort law of trespass to chattels.

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As reported in the Wall Street Journal Law Blog, the government has opposed former MLB pitcher Roger Clemens' request for reimbursement of the legal fees and costs incurred by him in the government's prosecution of Clemens for perjury, false statements and obstruction of justice. Clemens' trial in the U.S. District Court for the District of Columbia ended in a mistrial in July after  the prosecution played a video to the jury which referenced statements by fellow Yankees pitcher Andy Pettitte that Clemens allegedly admitted to using human growth hormone, evidence which the Court had ruled was excluded from trial. Clemens is currently scheduled to be retried in April 2012.

Following the mistrial, Clemens filed a Motion for the Award of Fees and Costs Associated with Mistrial. The government has filed a response in opposition, arguing that Clemens' request is barred by the doctrine of sovereign immunity.

In criminal cases, the sole mechanism for recovering fees and costs is under the Hyde Amendment, 18 U.S.C. § 3006A Note. The Hyde Amendment imposes considerable hurdles to reimbursement, however. It provides, in relevant part, that "[t]he court, in any criminal case... may award to a prevailing party... a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust." Therefore, a defendant must first prevail against all charges. Second, he or she must demonstrate that the government's position in the prosecution was "vexatious, frivolous, or in bad faith"--that is, lacking any reasonable grounds or from an improper motive. Lastly, the Amendment permits the government to argue that any award would be unjust. Clemens' lawyers did not invoke the Hyde Amendment, as the government's response points out, and could not do so in any event since he faces re-trial and has not yet prevailed.

Despite having been in effect for nearly 14 years, Courts have rarely awarded defendants fees pursuant to the Hyde Amendment. See United States v. Aisenberg, 358 F.3d 1327, 1335 (11th Cir. 2004) (reducing award of $2,680,602.22 in attorney’s fees to $1,298,980.00 in attorney’s fees and litigation expenses of $195,670.32, where the appellees were prosecuted for alleged false statements in relation to the disappearance of their daughter, and the government dismissed the indictment against the appellees after the district court found that investigating county detectives made false statements, statements in reckless disregard for the truth, and omitted material facts in wiretap applications; failed to inform the state circuit court that they had not yet interviewed several witnesses and that they were still waiting for the crime lab to process evidence and for a financial analysis of the appelleees; reported and quoted alleged telephone conversations in their wiretap applications which were either not present or not intelligible on the tapes and “deliberately or with reckless disregard summarized conversations out of context,” intercepted communications which were unrelated to the offenses and failed to minimize the recordings of conversations not otherwise subject to the interception authorization); United States v. Sherburne, 249 F.3d 1121, 1125 (9th Cir. 2001) (affirming the trial court’s award of attorney’s fees under the Hyde Amendment to the defendants who had charges against them relating to alleged abuses in the construction of a housing development on an Indian reservation dismissed, observing that the government had “distorted the truth,” “ignored evidence,” and failed to present facts establishing any false representations); United States v. Braunstein, 281 F.3d 982, 996 (9th Cir. 2002) (concluding that the government’s position that the defendant had engaged in wire fraud, interstate transportation of goods obtained by fraud, and money laundering in selling discounted computers to domestic distributors and resellers, despite evidence that computer company was aware of the defendant’s actions and had no agreement with the defendant, “was so obviously wrong as to be frivolous”); United States v. Claro, No. Crim. H-04-126-1 2007 WL 2220980, *6 (S.D.Tex. Jul 31, 2007) (Opinion on Defense Fees and Expenses) (unpublished), affirmed in part, vacated in part by, United States v. Claro, 579 F.3d 452, 456 (5th Cir. 2009) (awarding $391,292.29 in fees and expenses under the Hyde Amendment where court had dismissed indictment for conspiracy, mail fraud, and money laundering against the defendant, observing that the government had no evidence to support its allegations and that “[the defendant] defended himself for nearly sixteen months from fifty-four counts derived from shifting legal theories and inaccurate representations of the facts”).

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The U.S. Supreme Court's 2011-2012 term begins on Monday. Among several issues prominent in the public eye at the moment--i.e. healthcare, immigration--the Court will hear argument on warrantless surveillance. According to a press release yesterday by the National Association of Criminal Defense Lawyers (NACDL), on November 8, 2011, the Court will hear arguments in United States v. Jones, No. 10-1259, a case from the Court of Appeals for the District of Columbia Circuit. Jones involved an investigation by D.C. police of drug activity in 2005. The police obtained a warrant authorizing placement of a Global Positioning Satellite (GPS) device on a vehicle belonging to defendant Antoine Jone's wife, although the warrant was only good for 10 days. Officers placed the device on the vehicle while it was parked in a parking lot in Maryland. The officers monitored Jones using the device for four weeks, and never returned to the court to extend or renew the warrant.

The D.C. Circuit held the "search" of Jones to be unreasonable. Defense and civil liberties groups have filed amicus briefs arguing that warrantless GPS surveillance and tracking places an unacceptable burden on both Fourth Amendment and First Amendment privacy rights, and are urging the Court to condition installation and monitoring upon judicial issuance of a warrant. The case has been touted by experts as the most important privacy case in decades. The NACDL's amicus brief may be read here.

Image source: http://www.fieldtechnologies.com/more-employers-using-gps-tracking-system-to-manage-workers/

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Last week, the U.S. Supreme Court reaffirmed the Tenth Amendment and Federalism as a limitation on Federal statutes, in particular Federal criminal statutes, in the first significant case since U.S. v. Lopez, 514 U. S. 549 (1995), Bond v. U.S., No. 09–1227, which may be read here. Bond is an encouraging development given the overwhelmingly predominant trend to presume Federal criminal statutes and their application to be ipso facto within Congress' authority.

Carol Anne Bond discovered that her close friend was pregnant by Bond's husband. Bond engaged in a campaign of harassment against the woman, which included placing caustic chemicals on objects which the woman was likely to touch. The woman received burns from the substances, and Bond was charged in the U.S. District Court for the Eastern District of Pennsylvania pursuant to 18 U.S.C. s 229, the Federal chemical weapon statute. She entered a plea of guilty and was sentenced to 6 years' imprisonment. She reserved the right to challenge the constitutionality of the statute on appeal, and appealed, arguing that the Section 229 exceeded Congress' authority to enact under the Tenth Amendment which provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. Amend. X.

The Third Circuit Court of Appeals denied Bond's claims, holding that Bond lacked "standing" to object to the statute based upon the Tenth Amendment or Federalism (the division of powers between the Federal government and the States) because no State was involved in Bond's Federal prosecution. The Supreme Court granted certiorari and, in a unanimous opinion authored by Justice Kennedy,  held that where there is an otherwise justiciable case or controversy, a party may object that his or her injury results from violation of the Federal system of government. The Court held that although the States are also beneficiaries of Federalism, Federalism also serves to enhance individual freedom by “‘secur[ing] to citizens the liberties that derive from the diffusion of sovereign power,’” (Quoting New York v. United States, 505 U. S. 144, 181 (1992); quoting Coleman v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)). The doctrine  protects the liberty of all persons within a State by ensuring that law enacted in excess of delegated governmental power cannot direct or control their actions. (Citing Gregory v. Ashcroft, 501 U. S. 452, 458 (1991)). Action exceeding the Federal government’s enumerated powers undermines the States’ sovereign interests. The Court remanded Bond's Tenth Amendment arguments for consideration on the merits. 

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Police officers set up a controlled buy of crack cocaine at an apartment complex in Kentucky and observed the deal take place. The officers then moved to intercept the suspect before he re-entered his apartment. The officers heard a door shut and detected an alleged strong odor of marijuana outside of two apartment doors, although they did not know which door the suspect had entered. The officers banged on the door of the apartment to the left and announced themselves. The officers then allegedly heard the sound of items being moved in the apartment. The officers announced that they were going to enter the apartment and kicked the door in, where they found Hollis King, his girlfriend and a guest who was smoking marijuana. The officers conducted a protective sweep of the apartment, discovering marijuana and powder cocaine in plain view. In a subsequent search, the officers discovered crack cocaine.

The police later entered the apartment to the right, which was the actual apartment which the suspect had entered.

King was charged with trafficking controlled substances and filed a motion to suppress the evidence obtained from the search of his apartment without a warrant. The Kentucky Circuit Court denied the motion and King entered a guilty plea and was sentenced to 11 years’ imprisonment. King appealed, and the Kentucky Court of Appeals affirmed the Circuit Court’s denial of his motion to suppress, holding that the officers’ warrantless entry into the apartment was justified based upon “exigent circumstances” because the officers believed that evidence would be destroyed. However, the Kentucky Supreme Court reversed, questioning whether the mere sound of people moving inside an apartment was sufficient to support a conclusion that evidence was being destroyed. It then held that the search was not justified by exigent circumstances because it was reasonably foreseeable that the occupants of the apartment would destroy evidence when the police knocked on the door and announced themselves. The Commonwealth of Kentucky then took its turn to appeal, and the U.S. Supreme Court granted certiorari.

In Kentucky v. King, which may be read here, in an opinion authored by Justice Samuel Alito, the majority noted the long-established exception to the Fourth Amendment’s requirement that searches and seizures without a warrant are presumptively unreasonable where “the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” (citing Mincey v. Arizona, 437 U.S. 385, 394 (1978)). “Exigent circumstances” can arise where there is a need to prevent the “imminent destruction of evidence.”

However, the Court also recognized that an exception to the exception had developed—the police cannot rely on the need to prevent the destruction of evidence where the exigent circumstances were created or manufactured by the police themselves. (Citing United States v. Chambers, 395 F.3d 563, 566 (6th Cir. 2005); United States v. Gould, 364 F.3d 578, 590 (5th Cir. 2004)). The majority held that this exception unreasonably shrinks the exigent circumstances exception to the warrant requirement, since the presence of law enforcement always “create” exigent circumstances where persons are engaged in illegal conduct.

The Court then ruled that where the conduct of the police is reasonable and they do not violate the Fourth Amendment prior to the exigent circumstances arising, a warrantless entry to prevent the destruction of evidence is allowed. The majority noted that “When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.” (Citing Florida v. Royer, 460 U.S. 491, 497-98 (1983)). The Court proceeded to reversed the decision of the Kentucky Supreme Court.

The Court’s actual holding in King, which has been discussed on NPR, is actually understandable—police do not “create” or “manufacture” exigent circumstances where they act reasonably, which understandably includes knocking on a door to in pursuit of a fleeing suspect. However, the concerns over the implications of King are also understandable. The decision suggests that sufficient exigent circumstances exist to search a premises where they knock and announce their presence, although hopefully lower courts will require something more when applying the decision.

The particular facts of the case itself are also troubling. The police in King searched the wrong apartment. In addition, is the mere sound of things being moved in an apartment sufficient to support a conclusion that evidence is allegedly being destroyed and to create exigent circumstances to search, especially where police are not certain who the occupants of the apartment are?

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The Ninth Circuit Court of Appeals last week issued an opinion holding that Customs agents may seize electronic storage devices, including computers, hard drives, USB sticks, smart phones and digital cameras carried at the U.S. border and search the devices either at the port of entry or at an off-site forensic laboratory under the border search exception to the Fourth Amendment's prohibition against unreasonable searches and seizures. According to an article by Forbes magazine, the Court held that such searches must be reasonable, and the duration of the deprivation cannot be egregious. The opinion, U.S. v. Cotterman, may be viewed here.

The case arose from the prosecution of Howard Cotterman who crossed the U.S./Mexican border with his wife at Lukeville, Arizona, on April 6, 2007. U.S. Customs and Border Protection agents received a Treasury Enforcement Communications System alert to be on the lookout for child pornography, as a result of Cotterman's 1992 conviction for sex crimes involving children.

The agents screened Cotterman and his wife at the border and seized two laptop computers and three digital cameras. The agents conducted a search of the devices at the border, but were unable to find any alleged illicit material since much of the data on the computers was password-protected. The agents then returned the cameras to the Cottermans and allowed them to enter the U.S., but retained the computers and sent them to Tucson, Arizona, for forensic examination. A forensic examination discovered hundreds of images containing child pornography on Cotterman's laptop.

Cotterman was charged with possession of child pornography. The trial court granted his motion to suppress the evidence seized from his laptop as the result of an illegal search and seizure, and the government appealed. In its opinion, the Ninth Circuit reversed the trial court's decision, holding that whatever an individual brings into the U.S. can be searched and that such searches may take place hundreds or thousands of miles from the physical border. Border searches are distinguishable from other types of searches in that there is no reasonable expectation of privacy. Where a search is prolonged, however, the government must justify the search by showing a reasonable suspicion that the search may uncover contraband or evidence of criminal activity.
 

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In 1999, United States Army Colonel Robert Morris, then a Lieutenant Colonel, was targeted by the State Department and the Department of Justice over his charitable non-profit organization, Partners International, as Tod Robberson of the Dallas Morning News informed readers in a Monday editorial. At the time, according to Robberson, Federal investigators were investigating whether alleged charitable organizations participating in a program under which the organizations could obtain supplies from decomissioned military bases were, in turn, illegally selling the supplies for profit. According to Colonel Morris' impressive biography, Partners International's projects "included support to an eye clinic in Zimbabwe, providing medical supplies to a women and children’s hospital in Grenada, Human Rights training for international military officers, and support to homeless shelters, battered women’s shelters, Native American programs and the disabled."

Proving that no good deed goes unpunished, as Robberson writes, Colonel Morris was subsequently indicted in the Northern District of Texas, despite a two year investigation by the Army which concluded that Colonel Morris had not engaged in any wrongdoing. The government moved the case to Georgia, where the jury acquitted Colonel Morris following trial after deliberating for only 45 minutes.

Unfortunately, Colonel Morris accumulated close to $300,000 in legal and other expenses as a result of the investigation and prosecution. His elderly parents cashed in their insurance policies and took additional mortgages on their home to help fund his defense. Colonel Morris would not have been able to afford his defense at all if former presidential candidate and president of EDS H. Ross Perot had not donated to his defense. Colonel Morris happily received a promotion to full Colonel from the Army following his acquittal, but his ordeal later caused him to retire and to end a model career which could have led to his promotion to Brigadier General.

Robberson laments the very lamentable fact that Colonel Morris has not received a dime to compensate him for the exhorbitant and ruinous expenses caused by the government's ill-conceived prosecution, and cites a USA Today article discussing Colonel Morris' travails and the Hyde Amendment, an act designed with the intent to award wrongfully prosecuted and exonerated defendants their attorney's fees and legal expenses. As the article notes, the Hyde Amendment, while well-intentioned, is practically toothless, since the standards for granting relief are exceptionally high. It notes the infrequency of Hyde Amendment awards since the Amendment was passed in 1997.

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On Friday, the Eleventh Circuit Court of Appeals issued an opinion in the highly-publicized tax evasion case against actor Wesley Snipes, U.S. v. Snipes, No. 08-12402, which may be read here. The odd facts in the case are as follows: around 2000, Snipes became involved with a tax resistance organization, American Rights Litigators (“ARL”), operated by Snipes’ co-defendant Eddie Ray Kahn, which made various arguments on behalf of its clients against the IRS’ collection of taxes, including that domestic earnings of individuals allegedly do not qualify as “income” under 26 U.S.C. § 861 because the earnings do not come from a listed “source.”
 

From 1999 to 2004, Snipes earned more than $37 million, however he did not file income tax returns for any of these years. During this period Snipes did, however, send the IRS correspondence, altered tax forms and demands for income which he had paid in earlier years. Snipes made wildly outlandish arguments to the IRS, including that he was a non-resident alien; that earned income must come from sources wholly outside the U.S.,; that taxpayers are legally defined as persons operating “a distilled spirit Plant;” that the Tax Code is limited to the District of Columbia and insular possessions of the United States, and excludes the other 50 states; and that Snipes was “a fiduciary of God” and a “foreign diplomat” who was not required to pay taxes. In addition, Snipes’ companies ceased deduction of income and payroll taxes for employees. Snipes invited his employees to attend an “861” seminar at his home and threatened one employee who questioned the theory, Carmen Baker, that if Baker was “not going to play along with the game plan,” she should find another job.
 

Snipes, Kahn and Douglas Rosile were indicted in 2006 in the Middle District of Florida for conspiracy to defraud the United States by impeding the IRS in its collection of income taxes, in violation of 18 U.S.C. § 371, filing a false claim for a refund, in violation of 18 U.S.C. § 287; and willfully failing to file tax returns, in violation of 26 U.S.C. § 7203. Snipes filed several motions to transfer venue to the Southern District of New York pursuant to 18 U.S.C. § 3237(b) and Federal Rule of Criminal Procedure 21(b), which were denied by the district court.
 

Snipes’ trial commenced in January 2008. Carmen Baker testified at trial that Snipes had allegedly ordered her not to talk to anyone or disclose any information when she received a grand jury subpoena, telling Baker that he had a confidentiality agreement with her signature, and that if she contacted the government, she would have to “pay the consequences.”

Snipes requested several specific jury instructions, including that the Sixth Amendment to the U.S. Constitution protects a defendant’s right to trial in the district where a crime is committed, and on good faith and good faith reliance on advice of counsel.

Defense attorney and former Deputy Independent Counsel Craig Gillen also notes regarding the case that Snipes was charged with six counts of willfully failing to file his individual tax returns for tax years 1999 through 2004, in violation of Section 7203. In May of 2002, Snipes and his lawyer had a telephone conference with an IRS agent wherein Snipes was informed that he was under investigation for tax crimes. The agent read Snipes his non-custodial rights which included the right to remain silent. Snipes replied "very interesting." At trial, Snipes requested a jury instruction based on good faith reliance on his Fifth Amendment privilege against self-incrimination. Snipes claimed that because the IRS agent advised him of his right to remain silent, he believed he had a 5th Amendment privilege not to file his tax returns. Snipes claimed that because he had a good faith belief in his right not to incriminate himself, he could not be guilty of willfully failing to file the returns. The trial court refused to give the requested instruction.
 

On February 1, 2008, the jury convicted Snipes on three--misdemeanor--counts of willful failure to file individual federal income tax returns for calendar years 1999, 2000, and 2001. The presentence investigation report calculated Snipes’s intended tax loss at $41,038,051 under U.S.S.G. §§ 2T1.1(a) and 2T4.1. It also recommended an enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1, for Snipes’ direction to Baker to conceal evidence from the grand jury’s investigation, and recommended an overall sentence of 36 months’ imprisonment. The district court overruled Snipes’ objection to the obstruction enhancement and, discussing the sentencing considerations in 18 U.S.C. § 3553(a), imposed a sentence of 36 months. Snipes appealed.
 

In its opinion, the Eleventh Circuit panel affirmed Snipes’ conviction and sentence. On appeal, the government conceded that Snipes' proposed instruction on good faith reliance on the privilege against self-incrimination was substantially correct. The Court of Appeals, however, held that there was no error because the conduct which formed the basis for Snipes' counts of conviction occurred before  the May 2002 conversation with the IRS agent, and also held that the trial court's instruction on good faith was sufficient. Although the trial court had refused to give the Snipes instruction, in closing arguments, Snipes' counsel did argue to the jury that Snipes' reliance on the IRS agent's pre-interview advice of rights constituted a good faith basis for his failure to file the tax returns. Apparently this argument resonated with the jury--on all counts for tax years subsequent to the May 2002 interview, Snipes was acquitted.

In regard to Snipes' other arguments, the Court rejected Snipes’ argument that the district court erred in denying his motion for elective transfer under Section 3237(b) as untimely, finding that Snipes failed to properly move to extend the elective transfer deadline. The Court also held that the trial court did not abuse its discretion in not holding a pretrial evidentiary hearing on venue, concluding Snipes was not entitled such a hearing, but rather had a Sixth Amendment right to have the issue of venue decided by the jury. The Court also held that the district court did not err in sentencing Snipes pursuant to Section 2T1.1, or in enhancing his sentence by two levels for obstruction of justice under Section 3C1.1. It concluded that Snipes’ comments to Baker amounted to encouraging Baker to avoid complying with a grand jury subpoena, which may be considered obstruction of justice. Lastly, the Court held that Snipes’ 36 month sentence was reasonable.
 

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Ashby Jones of the Wall Street Journal Law Blog writes today that Firearms manufacturer Smith & Wesson is being investigated by the U.S. Department of Justice for alleged violations of the Foreign Corrupt Practices Act (FCPA). The company disclosed the investigation and potential future criminal indictments of the company and its officers and employees to investors in filings with the U.S. Securities and Exchange Commission. Smith & Wesson also acknowledged that it could face debarment by the U.S. State Department. The investigation is related to an FCPA sting operation which resulted in the indictment of 22 individuals in the arms industry.

According to Law.com, Stuart Rosenfeldt, of Rothstein Rosenfeldt Adler--as in Scott Rothstein, the convicted $1.2 billion Ponzi schemer--was deposed last week by the law firm's bankruptcy trustee concerning his law firm's finances and political contributions. Rosenfeldt repeatedly invoked his Fifth Amendment privilege against self-incrimination in response to many of the questions. Rosenfeldt stated that he never looked at the firm's books. Also, when asked about groups which he made donations to, such as Common Sense Coalition and Broward Coalition for Truth, Rosenfeldt denied being familiar with the groups or what they stood for. Rosenfeldt's attorney has stated the U.S. Attorney's Office for the Southern District of Florida is investigating Rosenfeldt's contributions.

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Supreme Court Justice John Paul Stevens, who notified President Barack Obama last week that he will be stepping down from the Court when its current term is over in June or July, has written nearly 400 opinions over his nearly 35 year tenure on the Court. Justice Stevens has weighed in on many occasions on criminal law issues over the past three and a half decades. Contrary to the label commonly applied to Justice Stevens as a "liberal," like all Supreme Court Justices, he has sided with the government in criminal cases more often than not. However, Justice Stevens has been the originator of many opinions which have upheld and furthered the rights of the individual in criminal cases, some of the more notable of which are outlined below.

On sentencing issues, Justice Stevens authored the opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), the forerunner of the Court's landmark decisions in Blakely v. Washington, 542 U.S. 295 (2004) andUnited States v. Booker, 543 U.S. 220 (2005), in which the Court first famously held, in regard to New Jersey's "hate crimes" statute, that "[t]he Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt."

Justice Stevens has been an ardent opponent of capital punishment throughout most of his term on the Court and has been the author of numerous opinions limiting the application of the death penalty. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court held that execution of "mentally retarded" offenders constituted cruel and unusual punishment, and in Thompson v. Oklahoma, 487 U.S. 815 (1988), ruled that juveniles under the age of 16 cannot possess the requisite culpability for imposition of the death penalty. And in Beck v. Alabama, 447 U.S. 625 (1980) the court mandated that, in capital cases, the jury must be instructed on, and permitted to consider, a verdict of guilt on a lesser included offense.

 In other cases, Justice Steven held in Johnson v. California, 545 U.S. 162 (2005), that a State could not impose the burden on a defendant claiming a racially discriminatory striking of a juror pursuant to Batson v. Kentucky, 476 U.S. 79, to show that the striking was "more likely than not" the product of purposeful discrimination. He also held, in Hubbard v. U.S., 514 U.S. 695 (1995), that a federal court is not a department or agency of the United States for the purposes of making false statements in a matter within the jurisdiction of the United States pursuant to 18 U.S.C. § 1001.

 The Blog wishes Justice Stevens a happy retirement and looks forward to the appointment of his successor.

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Yesterday, a federal judge dismissed alleged drug charges against Henry Nicholas, the former Chief Executive of Broadcom Corp., a manufacturer of integrated circuits for broadband communications. In a related civil action, the judge, U.S. District Judge Cormac Carney of the U.S. District Court for the Central District of California, also ordered the Securities and Exchange Commission to amend alleged fraud charges against Mr. Nicholas and other former Broadcom executives within seven days, stating that he found "serious problems of proof" with the SEC's complaint against the former executives and inquired as to what proof the SEC had against them, as reported by The National Law Journal. The court had previously dismissed the SEC's complaint without prejudice.

Last month, during the trial of Mr. Nicholas and former Broadcom Chief Financial Officer William Ruehle, the court had granted Nicholas' and other defendants' motions to dismiss charges of backdating stock options based on prosecutorial misconduct and entered judgments of acquittal. Judge Carney found that the government "distorted the truth-finding process" and infringed on the defendants' due process rights to a fair trial. The court also questioned the evidence supporting the charges, noting that there was "considerable debate" regarding certain accounting practices used by Broadcom and many other major companies, including Microsoft and Apple.

The defendants made their prosecutorial misconduct claims after the court granted immunity to former Broadcom executives David Dull and Henry Samueli at the request of counsel for Mr. Ruehle so that the witnesses would not refused to answer based upon their Fifth Amendment privilege against self incrimination. Mr. Ruehle wanted Mr. Dull and Mr. Samueli to testify in order to rebut the testimony of Nancy Tullos, former Broadcom Chief of Human Resources, a witness for the government who had pled guilty in 2007 to obstruction of justice charges. The court found that the prosecution had improperly influenced Dull's, Samueli's and Tullos' testimony. Judge Carney also reprimanded the government for leaking misleading information regarding the grand jury proceedings to the news media. It set a hearing for the government to show cause as to why the narcotics case against Mr. Nicholas should continue.

At trial, he court also set aside Mr. Samueli's plea of guilty to making alleged false statements to the SEC following his testimony in Mr. Ruehle's and Mr. Nicholas' trial, stating that he had difficulty finding how Mr. Samueli had committed any crime. Judge Carney found that the government had pressured Broadcom into terminating Mr. Samueli, calling the government's treatment of him "shameful."

The court furthermore criticized the government for leaving Mr. Dull "hanging in the wind" for two years, treating him as an alleged co-conspirator but not charging him. The prosecution had entered a nonprosecution agreement with Mr. Dull after threatening to charge him with perjury based upon statements which Mr. Dull intended to make in his testimony in the Ruehle/Nicholas trial.

The extensive allegations of prosecutorial misconduct in the case against Mr. Nicholas and the other defendants included an allegation by the defense that the government had used Mr. Nicholas' 13 year-old son to gather evidence against his father.

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Last Wednesday, the Government, through Deputy Assistant Attorney General Kenneth A. Blanco, filed a brief Motion to Dismiss Third Superseding Indictment with Prejudice seeking to dismiss its indictment against Miami, Florida, attorney Benedict P. Kuehne, and also Colombian attorney Oscar Saldarriaga Ochoa, in the criminal action of U.S. v. Velez, 1:05-cr-20770-MGC, in the U.S. District Court for the Southern District of Florida. The Government’s motion stated that it was based upon the “totality of the circumstances,” including the Eleventh Circuit Court of Appeals’ affirmance of the District Court’s dismissal of the Government’s charge of conspiracy to launder money against Mr. Kuehne. The Government stated that it believe that dismissal was in the interest of justice. On the same day, U.S. District Judge Marcia Cooke entered an order dismissing the Third Superseding Indictment.

The dismissal marked the end of a long ordeal for Kuehne, who was indicted over two years ago for alleged money laundering conspiracy, money laundering concealment conspiracy, concealment money laundering and wire fraud conspiracy. According to the Government’s indictment, Fabio Ochoa Vasquez was one of the leaders of the Medellin Cartel, one of the largest cocaine trafficking and money laundering organizations in the world. In 2001, Ochoa was extradited from Colombia to the U.S. to face charges of conspiring to smuggle approximately 30 tons of powder cocaine into the U.S. per month between 1997 and 1999. Ochoa hired distinguished attorney Roy Black, of the Miami law firm of Black, Srebnick, Kornspan & Stumpf, P.A., and other attorneys to represent him, and the defense in turn retained Mr. Kuehne, of the Law Offices of Benedict P. Kuehne, P.A., to investigate the funds which Ochoa would use to pay his legal team. Kuehne drafted various opinion letters for the offense. The Government alleged that Kuehne was paid for his investigation and opinions by various wire transfers with monies which were the proceeds of specified unlawful activity—the distribution and sale of illegal drugs, including monies from the Colombian “Black Market Peso Exchange” and drug proceeds supplied by undercover U.S. agents.

Kuehne, through his attorney, Jane Moscowitz of Moscowitz & Moscowitz, P.A., filed a motion to dismiss the indictment in July, which may be viewed here, relying on the fact that one of the federal money laundering statutes, 18 U.S.C. § 1957, contains an express exemption for “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.” 18 U.S.C. § 1957(f)(1).The motion began with a quote from Banking Crimes: Fraud Money Laundering and Embezzlement, by John K. Villa: "There is an inestimable difference... between expecting a defendant to be able to find an attorney willing to risk his fee, and expecting him to find an attorney willing to risk his personal liberty." Kuehne argued that Congress enacted the exemption in § 1957(f)(1) out of a concern that the threat of prosecution of criminal defense attorneys for accepting fees would have a “chilling effect” on attorneys’ willingness to accept clients, and therefore impose an unacceptable burden on the exercise of the Sixth Amendment right to counsel. The defense argued that the monies paid fell squarely within § 1957(f)(1)’s exemption and that Count One of the indictment should be dismissed. The District Court agreed and dismissed Count One, and the Eleventh Circuit affirmed in United States v. Velez, No. 09-10199, 2009 WL 3416116 (11th Cir., October 26, 2009).

As reported by the Miami Herald, Kuehne addressed reporters on the steps of the courthouse, stating that he always believed “things would turn out well in the end.” Prior to the allegations against him, he had been a prominent member of the legal community, serving on the Florida Bar board of governors, as a past president of the Dade County Bar Association and as a member of Vice President Al Gore’s legal team in the 2000 Florida presidential election dispute. Kuehne expressed his appreciation to the Department of Justice for the dismissal of the matter. Cynthia Hujar Orr, President of the National Association of Criminal Defense Lawyers, which filed amicus briefs in Kuehne’s case, called the Government’s prosecution of Kuehne “disgraceful.”

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The government’s case in many instances will evolve or shift to some extent over the course of a criminal prosecution. It may be a long time between indictment and trial, and the prosecution may come into possession of new evidence before trial, or may not have thoroughly reviewed the evidence which it does possess until after the return of the indictment. In addition, the prosecution may adjust its arguments or evidence in reaction to the defense. Whatever the reason, the prosecution in many criminal cases may determine to argue or present evidence at trial regarding a theory of criminality which differs to some degree from the crimes alleged in its original indictment. A thorough prosecutor will sometimes seek to provide for such a shifting theory by obtaining a superseding indictment from the grand jury, but in other cases the prosecution may not notice any need to do so or may simply neglect to do so. In any event, attorneys should carefully evaluate the prosecution’s arguments and proof at trial, as well as the trial court’s instructions to the jury, in order to determine whether a variance or amendment of the indictment has occurred. Following is a brief survey of the Eleventh Circuit Court of Appeals’ current position on amendments to or variances with the indictment.

“A constructive amendment occurs when the essential elements of the offense as alleged in the indictment are altered to broaden the potential bases for conviction beyond what the indictment contains.” United States v. Tampas, 493 F.3d 1291 (11th Cir. 2007) (citing United States v. Narog, 372 F.3d 1243, 1247 (11th Cir. 2004); United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990)); see also United States v. Ward, 486 F.3d 1212, 1227 (11th Cir. 2007). A constructive amendment of the indictment constitutes per se reversible error because it violates a defendant’s Fifth Amendment right to be tried on charges presented to the grand jury. See United States v. Tampas, 493 F.3d 1291 (11th Cir. 2007) (citing United States v. Weissman, 899 F.2d 1111, 1114 (11th Cir. 1990)). Under the Fifth Amendment, “a defendant can only be convicted for a crime charged in the indictment. It would be fundamentally unfair to convict a defendant on charges of which he had no notice.” Ward, at 1227 (citing Keller, at 632-33). The mere presentation of evidence not referenced in the indictment, such as pursuant to Federal Rule of Evidence 404(b), does not constitute an amendment or variance. See United States v. Lavigne, 282 Fed.Appx. 790, 793 (11th Cir. 2008) (unpublished).

In contrast, “a variance occurs when the facts proved at trial deviate from the facts contained in the indictment but the essential elements of the offense are the same.” Ward, 486 F.3d at 1227 (citing Keller, at 634; United States v. Flynt, 15 F.3d 1002, 1005-06 (11th Cir. 1994)). A variance only requires reversal where the defendant can establish that his or her rights were substantially prejudiced. Id. (citing Keller, at 633).

The Court has found no constructive amendment where an indictment charged the defendant with distributing crack cocaine and the trial court instructed the jury that it could find the defendant guilty if he had distributed either cocaine or crack cocaine, based upon the fact that the type of drug is not an element under the controlled substance statute, 21 U.S.C. § 841, United States v. Porter, 293 Fed.Appx. 700, 703, 04 (11th Cir. 2008) (unpublished); where the government argued in its closing arguments that it need not prove that all of the defendants named in the indictment were members of the scheme, but the indictment charged the defendant with conspiring with two named co-defendants as well as “other persons” United States v. Nunnally, 249 Fed.Appx. 776, 778 (11th Cir. 2007) (unpublished); where the trial court failed to instruct the jury that it had to find that the defendant embezzled a specific amount, but the indictment alleged that the defendant embezzled property having a value in excess of $5,000, Tampas, at 1291; where the trial court instructed the jury that it could still convict the defendant on the substantive mail and wire fraud counts of the indictment if it was unable to reach agreement on the conspiracy charge did, despite the fact that the government had referenced the conspiracy in the substantive counts of the indictment, Ward, at 1227, 28; where, despite the fact that the indictment alleged that the defendant possessed “more than 20 kilograms of cocaine,” the trial court instructed the jury that it could find the defendant guilty if it found that he possessed “a measurable amount” of a controlled substance, United States v. Knight, 213 Fed.Appx. 835, 838, 39 (11th Cir. 2007) (unpublished); where the government alleged in its indictment that the defendant committed an act “on or about” a particular date, but the proof at trial showed that the act was committed on a different date, United States v. Strevell, 185 Fed.Appx. 841 (11th Cir. 2006) (unpublished); where the indictment charged the defendant with an offense involving cocaine, but the proof at trial and the trial court’s jury instructions referred to crack cocaine, United States v. Rutherford, 175 F.3d 899, 906 (11th Cir. 1999); where the government’s indictment alleged that a certain person was the victim of the defendant’s extortion, but the proof at trial demonstrated that the person had no connection with the money obtained, United States v. Flynt, 15 F.3d 1002, 1006 (11th Cir. 1994); where the district court deviated in its instructions to the jury from the allegations in the indictment concerning a non-essential element of the crime, United States v. Lignarolo, 770 F.2d 971, 981 (11th Cir. 1985); where the government proved events of a conspiracy at trial which were not listed in the overt acts section of the indictment, United States v. Gold, No. 83-3231, 83-3230, 83-3267, 83-3239, 1984 WL 48339 (11th Cir. 1984); and where the government dropped two alleged co-conspirators from its conspiracy allegations at trial, United States v. Davis, 679 F.2d 845, (11th Cir. 1982).

However the Eleventh Circuit has found constructive amendments of indictments and improper broadening of the potential bases for conviction where the indictment charged the defendants with knowing or having reasonable cause to believe that pseudoephedrine would be used to manufacture methamphetamine, but the trial court instructed the jury that it could convict the defendants if it found that they knew or had reasonable cause to believe that the pseudoephedrine would be used to make “any controlled substance,” Narog, at 1249; where the government charged that the defendant knowingly and “willfully” committed money laundering, but the court redacted the term “willful” from its charge on the definition of “intentional,” United States v. Cancelliere, 69 F.3d 1116, 1121 (11th Cir. 1995); where the indictment alleged that the defendant conspired with a particular person and the trial court instructed the jury that it could convict the defendant if it found he conspired with “any” person, Keller, at 636; where the RICO charges in the indictment charged that the “enterprise” was a particular organized crime family but the court instructed the jury that it could convict the defendants if it found a different enterprise, United States v. Weissman, 899 F.2d 1111, 1115 (11th Cir. 1990); and where the trial court instructed the jury that it could convict the defendant if it found the elements of an offense which had not been charged in the indictment, United States v. Peel, 837 F.2d 975, 979 (11th Cir. 1988).

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