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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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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The U.S. Supreme Court yesterday denied the petition for certiorari by former international media mogul, Canadian citizen and British Lord, Conrad Moffat Black, as reported in the Washington Post.

Mr. Black was the CEO of Hollinger International, Inc., which owned newspapers worldwide. He was indicted (in an indictment made available by FindLaw which may be viewed here) with other officers and employees of Hollinger in the Northern District of Illinois in November of 2005 on 11 counts, in an original indictment which charged mail fraud conspiracy, wire fraud conspiracy and substantive counts of mail and wire fraud. The counts all referenced the "honest services" fraud statute, 18 United States Code section 1346. Testifying to the vigorousness of his defense, on July of 2007, a jury acquitted Mr. Black on 9 counts but convicted him on three others.

Mr. Black then challenged his convictions on appeal. In June of last year, the Supreme Court handed down its three "honest services" decisions, Skilling v. U.S., Black v. U.S., and Weyrauch v. U.S. In Skilling, the main decision involving former Enron President Jeffrey Skilling, the Court rejected the old "intangible right" to an employee's honest services theory and held that, in order to avoid being unconstitutionally vague, section 1346 applies to bribery or kickback schemes, and not to mere self-dealing by an employee. In Mr. Black's case, the Court unanimously held that the jury had not been properly instructed on honest services fraud at trial, and vacated his convictions and remanded. Then in October of last year, the Seventh Circuit Court of Appeals, in an opinion authored by distinguished Judge Richard Posner, struck two of the three remaining counts against Mr. Black, leaving him convicted on a single fraud count and a count for obstruction of justice. Mr. Black again appealed these two remaining convictions to the Seventh Circuit, which upheld them last December, and then to the Supreme Court, which has now declined to review them. Mr. Black is scheduled to be resentenced on June 24.

Source: McLean's.ca

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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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Canadian citizen Conrad Black, former head of Hollinger International, Inc., and once the third biggest newspaper magnate in the world, was charged in the Northern District of Illinois with diverting corporate funds for his own use and was convicted in July of 2007for "honest services" mail fraud, in violation of 18 U.S.C. s 1846, and obstruction of justice, following a jury trial. On June 24, 2010, the Supreme Court issued an opinion in Black v. U.S., case # 08-876, vacating Black's honest services convictions and remanding his case on the ground that the district court's instruction to the jury on honest services was incorrect. Black was incarcerated at the Federal Correctional Center in Coleman, Florida, and was released on bail two weeks ago after spending two years and four months in prison. He remains in the U.S. pending an appeal to return to Canada.

Lord Black's (he was made a member of the House of Lords of the United Kingdom by Queen Elizabeth II and Prime Minister Tony Blair) legal odyssey aside, he has become an observer and critic of the U.S. criminal justice system. Black has kept a diary, which may be viewed here, regarding his experience in prison. Most recently, on July 31, Black published a letter in Canada's National Post entitled "Conrad Black: My Prison Education." Black does pause to criticize his conviction in passing, citing the "fallibility of American justice." However, Black's letter provides a glimpse into life at the end of the tunnel of the federal criminal justice system. Black discusses his daily calls to his wife and his difficulties in getting updates on his application for bail in prison. He recounts the interest of his fellow inmates in the developments and media attention in his case, and rather poignantly describes the lengthy goodbyes from his friends:

"The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells."

"Most goodbyes were brief and jovial, some were emotional, and a few were quite heart-rending. Many of the 150 students that my very able fellow tutors and I had helped to graduate from high school, came by, some of them now enrolled in university by cyber-correspondence."

Black goes on to criticize harsh federal sentencing policies, especially for drug offenders, citing in particular the disparities in the crack cocaine sentencing Guidelines and their disproportionate impact on African-Americans. He also takes the public defender system to task for being subservient to the will of prosecutors, and laments the United Sates' massive prison population and prison industry in comparison with other Western democracies. Black concludes that "America’s 2.4 million prisoners, and millions more awaiting trial or on supervised release, are an ostracized, voiceless legion of the walking dead; they are no one’s constituency."

CTV.ca

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President Obama is expected to announce today his nomination of Solicitor General Elena Kagan to succeed Justice John Paul Stevens. Solicitor General Kagan has been one of the presumptive leading choices to replace Justice Stevens ever since the Justice announced that he was stepping down. Ms. Kagan has drawn criticism from both the right and the left of the political spectrum, and the Senate confirmation process is expected to involve some controversy--as it invariably does.

Ms. Kagan's distinguished background is well known. She graduated magna cum laude from Harvard Law School in 1986, clerked for Supreme Court Justice Thurgood Marshall, worked at the Washington, D.C., law firm of Williams & Connolly, was a professor at the University of Chicago, worked as Associate Counsel and Deputy Assistant to the President for Domestic Policy during the Clinton Administration before returning to Harvard as Dean of the Law School in 2001. In March 2009, President Obama named Ms. Kagan as Solicitor General for the United States.

Less well known is Solicitor General Kagan's views on criminal law. As Professor Douglas Berman of Ohio State University School of Law observes on his blog, Ms. Kagan lacks much of a record on criminal law issues which routinely come before the court.

There are indeed very few reported criminal cases which Ms. Kagan has been involved with during her career. Interestingly, many of the cases that do exist have gone against Ms. Kagan or against the government. While at Williams & Connolly, Ms. Kagan represented the defendant-appellant in the appeal of  U.S. v. Chuang, 897 F.2d 646 (2d Cir. 1990) before the U.S. Court of Appeals for the Second Circuit, in which the Court held that the defendant, who was both a bank officer and attorney, possessed no reasonable expectation of privacy in bank documents which were not found in his office, since banking is a closely-regulated business and the documents were subject to routine inspection by the Office of the Comptroller of the Currency. Much later, in Kucana v. Holder,130 S.Ct. 827 (2010), the Supreme Court held, contrary to the position of the Solicitor General, that motions to reopen immigration proceedings before the Board of Immigration Appeals were subject to judicial review. Next, in Johnson v. U.S., 130 S.Ct. 1265 (2010), the Court reversed the petitioner's conviction for possession of ammunition by a convicted felon under 18 United States Code Section 922(g)(1), holding that the petitioner's conviction for simple battery under Florida was not a "violent felony" which could be used to enhance the petitioner's sentence under the Armed Career Criminal Act in 18 United States Code Section 924. In addition, as we have noted, the Court also ruled against the Administration in Bloate v. U.S., 130 S.Ct. 1345 (2010) in holding that time spent preparing pretrial motions is not automatically excludable from the Speedy Trial Act, 18 United States Code Section 3161 et seq. And most recently, in U.S. v. Stevens, --- S.Ct. ----, 2010 WL 1540082 (April 20, 2010), the Court found against Solicitor General Kagan in holding that 18 United States Code Section 4, which criminalized  the commercial creation, sale, or possession of certain depictions of animal cruelty, was substantially overbroad in violation of the First Amendment.

The lack of an extensive background in criminal issues is certainly no barrier to a potential distinguished and exceptional service as a Supreme Court justice. Indeed, it is hoped that the contrary results and setbacks which Solicitor General Kagan has experienced in her few forays into the field have encouraged a more nuanced and open minded view on criminal issues, or at least one that is not a mere rubber stamp of law enforcement and government actions.

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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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According to Lyle Denniston at SCOTUSblog,  Ashby Jones at the Wall Street Journal Law Blog, and Professor Ellen S. Podgor of Stetson University College of Law and the White Collar Crime Prof Blog, the U.S. Supreme Court seemed more interested in the jury selection/fair trial issues in yesterday's oral arguments in the case of former Enron CEO Jeffrey Skilling, Skilling v. U.S., Case No. 08-1394 then it did in the constitutionality of 18 U.S.C. 1346, the federal honest services fraud statute. The transcript of the oral argument may be read here. After lengthy questioning regarding the jury selection at Skilling's trial by Justice Stephen G. Breyer and others, Chief Justice John G. Roberts, Jr., raised the question of honest services. Skilling's counsel, Sri Srinivasan, appeared to have adopted the strategy of arguing for a new trial based upon juror bias relating to the Enron scandal rather than a reversal of Skilling's convictions for honest services fraud. Srinivasan argued that the Department of Justice was interpreting the law broadly enough to reach virtually any falsehood told by an employee.

Deputy Solicitor General Michael R. Dreeben argued for the government. Dreeben argued ways in which the Court could interpret the honest services fraud statute in order to avoid holding it unconstitutionally vague. Justice Anthony Kennedy stated to Dreeben that it was Congress' job to rewrite the statute and Justice Antonin Scalia remarked on the excessive scope of the statute.

The Court's decision in the case is expected this spring or summer. The parties' arguments regarding honest services fraud largely mirrored the arguments in the two other challenges to 1346 which the Court had heard this term. Commentators have opined that 1346 may not survive without being sent to Congress for reshaping.

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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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Professor Ellen S. Podgor of Stetson University College of Law made an excellent post yesterday on the White Collar Crime Prof Blog surveying Second Circuit Court of Appeals Judge and Supreme Court nominee Sonia Sotomayor's white collar criminal opinions. Professor Podgor perused some 100 cases involving Judge Sotomayor and the term "fraud." She came to the conclusion that, at least as far as the sphere of criminal law goes, Judge Sotomayor is hardly a "liberal" or "activist" judge, siding with the government the vast majority of the time. Professor Podgor notes that in cases where Judge Sotomayor has shown favor towards the defense, it has been because of obvious errors.

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            Supreme Court Justice David Hackett Souter has announced his intention to retire at the end of the Court’s term in June. In his 19 years on the Court, Justice Souter has been a key vote in many cases and has written over 150 majority, plurality, concurring and dissenting opinions, including in many criminal cases. In the area of criminal law, Justice Souter has issued numerous opinions fairly consistently advancing the rights of defendants at all stages of criminal proceedings. Federal Criminal Defense Blog salutes Justice Souter and his highly distinguished tenure on the Court by listing some of his significant opinions in the criminal arena, beginning today with majority and plurality opinions.

            Criminal defense attorneys everywhere will be familiar with Kyles v. Whitley, 514 U.S. 419 (1995) in which the Court, in an opinion delivered by Justice Souter, reversed the defendant’s conviction and held that a state prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police, and has a duty to turn over all exculpatory evidence to the defense, pursuant to  Brady v. Maryland, 373 U.S. 83 (1963). And in Missouri v. Seibert, 542 U.S. 600 (2004), Justice Souter authored a majority opinion holding that warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) given to a defendant in the middle of an interrogation are ineffective and any statements given during the interrogation are inadmissible. And in Corley v. U.S., 129 S.Ct. 1558 (2009) discussed on this Blog, Justice Souter delivered the majority’s opinion that 18 U.S.C. § 3501 does not alter the rule that confessions made during periods of detention which violate the prompt presentment requirements of Federal Rule of Criminal Procedure 5(a) are inadmissible pursuant to the rule of McNabb v. United States, 318 U.S. 332 (1943) and Mallory v. United States, 354 U.S. 449 (1957).

            Justice Souter had Georgia on his mind early in his career on the Court when he delivered the unanimous opinion for the Court in Ford v. Georgia, 498 U.S. 411 (1991), in which the majority held that the Georgia Supreme Court erred in concluding that the petitioner’s claim pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits racially-based exercise of peremptory challenges by the prosecution, was untimely pursuant to State v. Sparks, 257 Ga. 97, 98, 355 S.E.2d 658, 659 (1987), in which the Georgia Supreme Court held that a Batson objection must be made within the period of the jurors’ selection and the administration of their oaths, because the Sparks rule was not “firmly established and regularly followed” at the time of the petitioner’s trial. In Wade v. U.S., 504 U.S. 181 (1992), Justice Souter, again writing for a unanimous Court, held that federal district courts have the authority to review the government’s refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive. Justice Souter authored the majority opinion in Old Chief v. U.S., 519 U.S. 172 (1997), in which the Court reversed the petitioner’s conviction for  possession of a firearm by anyone with a prior felony conviction in violation of 18 U.S.C. § 922(g)(1), holding that a district court abuses its discretion where it refuses a defendant’s offer to concede a prior judgment under Federal Rule of Evidence 403 and admits the full judgment over the defendant’s objection. In Shepard v. U.S., 544 U.S. 13 (2005) he wrote a majority opinion holding that in applying the Armed Career Criminal Act, 18 U.S.C.A. § 924(e), a sentencing courtcannot look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admits, and supports a conviction for, generic burglary. Justice Souter wrote the majority’s holding in Watson v. U.S., 128 S.Ct. 579 (2007) that a person who trades drugs for a gun does not receive the gun in violation of 18 U.S.C. § 924(c)(1)(A), which provides for a mandatory minimum sentence where a defendant uses a firearm during a drug trafficking crime.

            Less pro-defense, Justice Souter authored the majority opinion in U.S. v. Wells, 519 U.S. 482 (1997) which held that material of falsehood was not an element of making false statements to a federally insured bank under 18 U.S.C. § 1014. And he rejected the petitioner’s arguments that 18 U.S.C. § 666(a)(2), which proscribes bribery of State and local officials of entities, was unconstitutional because of a lack of any jurisdictional requirement of a connection to federal money in Sabri v. U.S., 541 U.S. 600 (2004), holding that the statute was an instance of necessary and proper legislation.

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I apologize for being away from the blogging world for the past 2 weeks, but the press of business has kept me too busy. There are many noteworthy developments in the blogosphere, but none more important to the criminal practitioner than the Supreme Court's decision yesterday on the landscape of money laundering.

The Supreme Court in United States v. Santos, -- S.Ct. --, 2008 WL 2229212, (available here) affirmed the Seventh Circuit in holding that the term “proceeds” in 18 U.S.C. § 1956 (a)(1) means “profits,” not “receipts.” Efrain Santos was found guilty of running an illegal lottery business in violation of 18 U.S.C. § 1955, and money laundering and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956 (a)(1) and 18 U.S.C. § 1956 (h). He was sentenced to 60 months imprisonment for the illegal gambling charges and 210 months on the money laundering charges. Following affirmance on direct appeal, Santos filed a section 2255 motion to vacate his sentence, ultimately alleging in part, that that his payments to customers and collectors of his illegal operation did not constitute money laundering. United States v. Santos, 342 F.Supp.2d 781 (N.D. Ind. 2004). The district court granted Santos’ 2255 motion finding that Judge Easterbrook’s decision in United States v. Scialabba, 282 F.3d 475 (7^th Cir. 2002), controlled, and that the “proceeds” of an illegal gambling business under 1956 means “net” proceeds, not the ongoing monies used to conduct the illegal business in the first place. That decision was affirmed on appeal. Santos v. United States, 461 F.3d 886 (7^th Circuit 2006), and the government appealed to the Supreme Court.

            Justice Scalia writing for the majority held that “proceeds” under section 1956 means “profits,” not the ongoing “receipts” of the illegal business. Justice Scalia adds “a word concerning the stare decisis effect of JUSTICE STEVENS’ [concurring] opinion.” 2008 WL 2229212, * 10. Because Justice Stevens’ vote was necessary to the Court’s judgment, but since it rested on a narrower ground, the Santos opinion is, accordingly, limited. Therefore, so that there will be no mistake as to the meaning of his opinion, Justice Scalia stakes out the exact contours – “that ‘proceeds’ means ‘profits’ when there is no legislative history to the contrary.” Id.

            So, why is this opinion so important to us – because the government routinely uses money laundering to jack up a defendants’ sentence, if the defendant chooses to go to trial. Look at the effect on Santos – 60 months for gambling, but 210 months for money laundering. This decision  effects many former and current cases. We should be looking through our inventory of cases to see what meritorious 2255 motions lie therein.

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            Defense counsel with foreign clients will not be pleased with the latest offering from the United States Supreme Court and its take on international law. José Ernesto Medellín, a Mexican national, was convicted and sentenced in a Texas state court for the capital murder of two girls. Fortunately, Mexico brought an action in the International Court of Justice (ICJ) in the Hague against the United States on behalf of Medellin’s and 51 other Mexican nationals in Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Judgment of Mar. 31) (Avena). The ICJ held that, based on violations of the Vienna Convention, the nationals were entitled to review and reconsideration of their convictions and sentences in state courts in the United States, regardless of whether the defendants had waived their rights to raise challenges under the Vienna Convention on Consular Relations (Vienna Convention or Convention) for failure to comply with generally-applicable state rules governing challenges to criminal convictions. President George W. Bush even showed his support for the international tribunal by issuing a Memorandum to the Attorney General in which he directed that the United States discharge its international obligations by having State courts give effect to Avena. Medellin did not raise any Vienna Convention claims prior to his conviction. After the state court dismissed Medellin’s petition for writ of habeas corpus to raise his Vienna Convention claims, the United States Supreme Court granted certiorari in the case of Medellin v. Texas.

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