The Criminal Lawyer

This morning, the Supreme Court returned from its long break to issue a unanimous ruling in Chambers v. United States (No. 06-1120, Jan. 13, 2009). At issue was the crime of failure to report to jail, and whether that crime is a “violent felony” for the purposes of the Armed Career Criminal Act.

ACCA imposes a mandatory 15-year sentence for a felon who unlawfully possessed a firearm, and who also has three prior convictions for either drug crimes or violent felonies. A “violent felony” is defined by 18 U.S.C. § 924(e) as one that (among other things) “involves conduct that presents a serious potential risk of physical injury to another.”

The government wanted Chambers sentenced to the mandatory 15 years, based on prior convictions that included an Illinois crime of failing to report for weekend confinement.

Chambers said that the Illinois crime was not a violent felony for the purposes of ACCA. The government disagreed, arguing that the crime demonstrates a “special, strong aversion to penal custody,” and therefore was akin to a prison break. And prison escapes by their nature involve conduct that presents a serious potential risk of physical injury to another.

The Court didn’t buy that argument. Unlike a prison break, which is an active crime, failing to report is merely a crime of inaction, the Court said. The Court added that, sure, the defendant must have been doing *something* during his absence from jail, but there is no reason to believe that it was something risky to others. On the contrary, he’s probably less likely to draw attention to his whereabouts by “engaging in additional violent and unlawful conduct.” Aversion to penal custody, no matter how “special, is beside the point.”

The Court added that, of 160 cases involving a failure to report in a 2-year study by the Sentencing Guidelines Commission, “none at all involved violence — not during the commission of the offense itself, not during the offender’s later apprehension.” The government itself could only find three examples in 30 years.

Because of this, the Court held that this particular crime does not count as a violent felony for ACCA purposes, reversed, and remanded.

On Tuesday, the Fifth Circuit ruled on Jeff Skilling’s appeal from his conviction in the Enron case, upholding the conviction, but sending the case back for re-sentencing. Skilling may be able to raise a Brady issue on remand, as well, so the case doesn’t seem to be over. The opinion is 106 pages long, so we will summarize the ruling and its meaning for you here.

Skilling challenged his conviction, on the grounds that the government’s theory of “honest services” fraud was wrong. The government’s case let the jury decide on three purposes of Skilling’s conspiracy, one of which was to deprive Enron of the honest services of its employees. Because the jury returned a general verdict, if any one of those legal theories was insufficient, then the verdict must be reversed.

Skilling focused on the honest services theory, arguing that it was insufficient because his actions were done to give Enron a higher stock price, so it was in the corporate interest. He didn’t act in secret, and wasn’t self-dealing.

In making this argument, Skilling relied on the Circuit’s previous Enron case, United States v. Brown, 459 F.3d 509. In that case, a loan secured by Nigerian barges was fraudulently booked as revenue. The defendants in that case were specifically ordered by their CFO, Andy Fastow, to carry out the deal. Not only did they believe that Enron had a corporate interest in the scheme, and was a willing beneficiary of it, but their superiors ordered and approved their actions. Furthermore, they were paid more depending on whether they successfully achieved the goal.

The Court held that Skilling’s reliance on Brown was misplaced. The Brown rule absolves low-level employees of liability for honest-services fraud when:

1) the employer creates a particular goal,
2) the employer aligns the employees’ interests with the employer’s interest in achieving that goal, and
3) higher-level management authorizes or orders improper conduct in order to reach the goal.

Here, the first two conditions were met, but the third was not. Condition 1 was met when Enron created a goal of meeting Wall Street earnings projections. Condition 2 was met as Skilling got paid more if Enron met those projections. But condition 3 was not met, as there was no evidence that anyone besides Skilling authorized his conduct. The Board tacitly approved several of the underlying transactions, but never authorized him to engage in fraudulent conduct.

Because the third condition was not met, the Brown rule does not absolve Skilling of his liability. His conviction was therefore upheld.

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With respect to sentencing, Skilling argued that the district court got the Guidelines calculation wrong, and that the sentence is unreasonable under §3553. The Court didn’t get to the §3553 issue, because it held that the Guidelines calculation was indeed incorrect, and a court has to do the Guidelines right before the §3553 factors come into play.

Skilling appealed a §3C1.1 two-level enhancement for obstruction of justice, and a §2F1.1(b)(8)(A) four-level enhancement for jeopardizing a financial institution.

The §3C1.1 enhancement was based on a determination that Skilling perjured himself as to his sale of Enron stock right after he resigned from the company. He’d tried to sell his stock while still CEO, but it would have had to be reported. So he resigned, then tried to sell his stock. But then September 11 happened, and he wasn’t able to sell until September 17. Skilling testified to the SEC that his order to sell on September 17 was due to his concerns over the market’s reaction to 9/11. The judge decided that was perjury.

On appeal, skilling didn’t argue that it wasn’t perjury. Instead, he argued that the court should have suppressed his SEC testimony in the first place, because the SEC misled him as to the fact that the investigation was criminal in nature.

The Circuit, however, pointed out that suppressible evidence can still be used at sentencing, and none of the exceptions to that rule apply here. The Court also found no justification for the original perjury. So the two-level enhancement was proper.

The §2F1.1(b)(8)(A) enhancement was based on the finding that Enron’s retirement plans were “financial institutions” for the purposes of that Guideline. Retirement plans aren’t specifically mentioned in the Guideline’s definition, which enumerates a long list of included entities. Various kinds of pension funds are included, however. And the list does include a catch-all “any similar entity.”

With respect to “pension funds,” the Guidelines don’t define the term. But a pension requires more than just employee investment for later payout — a pension has definitely determined payouts. Here, the retirement funds didn’t have specific benefits, they were just there as a pool for funding any benefits that might be given. So the Court decided they didn’t count.

With respect to the catch-all, apart from pension funds, the Guideline definition lists classic financial institutions like banks, investment houses, and the like. The Court did not want to expand the definition to declare every corporate retirement plan to be a financial institution.

Because the retirement plans weren’t financial institutions, the four-level enhancement was improper. So Skilling’s sentence was vacated, and the case was remanded for resentencing.

—

In addition to these main issues, the Court also rejected Skilling’s other challenges to his trial. Giving a “deliberate ignorance” instruction was at worst harmless error. None of the other jury instructions were problematic. The venue was proper. There was no prosecutorial misconduct.

Interestingly, however, the Court specifically stated that Skilling can raise Brady issues on remand. An FBI interview note showed that Andy Fastow didn’t think he had discussed a certain list with Skilling. This was omitted from the formal “302” report provided to the defense. Skilling claims that Fastow was talking about a list of talking points that Fastow had testified at trial he actually had discussed with Skilling.

The Circuit found this troubling, but the trial court never saw the notes or ruled on this claim, so nothing could be decided on appeal. But the Court instructed that “Skilling must bring this claim to the district court before we can address it.”

Therefore, Skilling might be able to get a new trial! If Skilling can show that there was a Brady violation, this case could be far from over. The government claims that the list in question is unrelated to the case, however, so we’re just going to have to wait and see.

OJ Simpson was sentenced today in Clark County District Court, after previously being found guilty of multiple crimes arising out of an armed break-in and theft at a Las Vegas hotel. The details can be found in any news outlet you fancy. But what sentence did he get? The headlines are all over the place.

Some sources say he got 12 years. Many say 15 years. Some say 33 years. Some say 9 years. What gives?

The reason for the confusion is the fact that OJ was sentenced on 10 counts, with many of the sentences running concurrent, and some running consecutive.

Concurrent sentences are served at the same time. So if you get sentenced on two counts, one for 5 years and the other for 6 years, to run concurrent, then you only face 6 years. But if they were to run consecutively, then you’d be serving 11 years.

So how does OJ’s sentence break down?

First, the concurrent sentences:

Count 1: Conspiracy to Commit a Crime: 1 year
Count 2: Conspiracy to Commit Kidnapping: 1 to 4 years (eligible for parole after 1 year, max of 4)
Count 3: Conspiracy to Commit Robbery: 1 to 4 years
Count 4: Burglary While in Possession of a Deadly Weapon: 2yrs 2 mos to 10 years
Count 5: First Degree Kidnapping with Use of a Deadly Weapon: 5 to 15 years
Count 6: First Degree Kidnapping with Use of a Deadly Weapon: 5 to 15 years
Count 7: Robbery with Use of a Deadly Weapon: 5 to 15 years
Count 8: Robbery with Use of a Deadly Weapon: 5 to 15 years

So the concurrent sentences have a max of 15 years, with eligibility for parole after 5 years.

Next, the consecutive sentences:

Counts 5 to 8 add 1 to 6 years to run concurrently with each other, but consecutive to the rest
Count 9: 1.5 to 6 years consecutive to Count 8
Count 10: 1.5 to 6 years consecutive to Count 9

So add 1 + 1.5 + 1.5 = 4 years to the parole eligibility, for a total of 9
Then add 6 + 6 + 6 = 18 years to the max number, for a total of 33

So OJ is eligible for parole in 9 years, and could conceivably serve a maximum of 33 years.

Hope that clears things up.

The respected journal Science will publish tomorrow a research study that suggests that the threat of punishment can keep people from getting in trouble. Stop the presses!

You’d think that this might have been studied before. But previous studies (focusing on freeloading vs. pro-social behavior) only focused on short-term outcomes. This new study, on the other hand, found in the long term the threat of punishment becomes deeply embedded in people’s subconscious, so that they come to fear getting in trouble.

You’d think this might have been too obvious to require study. But as Karl Sigmund of the University of Vienna explained to LiveScience.com, “the experimental work is extremely important and timely, as many researchers had voices concern whether punishment is not too costly a tool to promote cooperation.”

Clearly punishment isn’t the only tool out there to affect people’s behavior. Socialization, community involvement, and positive inducements are all strong factors. But we’re going to go out on a limb and say that, until something else comes along that satisfies society’s need for deterrence, removal (and, sadly, retribution), punishment’s going to remain part of our toolbox for a long long time.

[The research was performed by a team led by Simon Gächter at the University of Nottingham.]

The Wall Street Journal today reports on a developing issue in sentencing law: are child porn consumers being sentenced disproportionately high?

Justice Department data, referred to somewhat inaptly by the Journal, lumps viewers of child porn with those who distribute it. In the group of those convicted of possessing, receiving or distributing child porn, the average sentence now is 80 months in prison. In 1997, the average sentence was about 25 months.

The rise in sentences has been matched by a huge increase in the number of child porn and other child-exploitation cases. Internet crime itself has vastly grown as the Internet has become more ubiquitous worldwide, and so has awareness of the crimes being committed. Child porn itself has only been a crime since 1990.

Some see an unfair disparity in the U.S. Sentencing Guidelines recommended sentences for those who view child porn and online predators who seek to engage in sex with children encountered in chat rooms. Of course, these are commonly the same people. But those who have not engaged in predatory behavior routinely receive enhanced sentences because of the sheer quantity of child porn materials they possess — it is commonplace for defendants to have huge collections of images and videos depicting sex acts being performed on children.

Sharing and receiving child porn is easier to catch, of course, than predatory behavior. Predators are typically caught after they try to go after a victim who turns out to have been an undercover agent. Not every chat room has an undercover, and not every predator picks out the undercover in the room. Subpoenas and data analysis, however, can lead to web sites and fserve locations where vast collections of child porn are stored and distributed. Monitoring the traffic of those sites can provide the IP addresses of those who downloaded or uploaded files. That leads to search warrants on homes, offices and computers, turning up the usually sizeable collections ultimately charged.

Not all images are going to be slam-dunk child porn. The prosecution must prove that an image really is pornographic, that it is a real photo or video and not simply PhotoShopped, and that it really depicts a child as opposed to someone who merely looks young. So prosecutors tend to bring cases against offenders with large quantities of photos, to make it easier to cull out a number of clear examples of child porn. Those with fewer photos, who thus don’t merit a sentence enhancement, are less likely to be charged in the first place, as prosecutors focus their resources on the strongest cases.

So it is unclear that there is an unfair disparity in sentencing. Mere possession may only have a base sentence of 5 years, as opposed to 10 years for the predator. But those most likely to be caught, and those most likely to be prosecuted, are the ones who are beyond the pale and for whom the Guidelines require enhanced sentences.

Readers are invited to comment.

Richard Dieter, executive director of the Death Penalty Information Center, has suggested to the Washington Post that the Supreme Court may be getting ready to review “whether the death penalty is applied in a discriminatory discriminatory way, an issue the Court has not taken up for two decades.”

Dieter drew this conclusion from the Supreme Court’s denial of cert. yesterday in the capital punishment case Walker v. Georgia. As we pointed out recently, the Supreme Court has taken to using denials of cert. for raising questions on capital punishment.

The issue here is how thorough a court’s proportionality review must be, to ensure that a death sentence is not based on arbitrariness or discrimination. Justices Stevens and Thomas concurred with the denial of cert., but gave strongly opposed written opinions.

Stevens, the more liberal of the two, stated that Walker’s case was “troubling,” because it involved a black killer and a white victim. Numerous studies over the years have shown that black defendants are much more likely than whites to be charged with capital crimes, regardless of the race of the victim, but that capital crimes are also much more likely to be charged when the victim is white, regardless of the race of the killer.

Stevens felt that the Georgia Supreme Court wholly ignored its job, and only performed a perfunctory review of proportionality. It merely cited 21 similar death sentences and said that was good enough. The court didn’t describe or compare the facts of those cases, which differed in heinousness.

Thomas, on the other hand, said that Stevens was “simply wrong.” “There is nothing constitutionally defective about the Georgia Supreme Court’s determination. Proportionality review is not constitutionally required in any form.” Georgia has chosen to do some kind of proportionality review, and that’s fine, but the Supreme Court has never required that it do so. If Georgia wants to administer its own additional rule in its own way, that’s up to Georgia.

Thomas, the more conservative of the two, pointed out that the Court already looked at all of the arguments Stevens raised, and rejected them in McCleskey v. Kemp, 481 U.S. 279 (1987).

The fact that these arguments are being raised in written cert. opinions, however, is certainly giving some folks reason to believe that the Court may be interested in looking at them again, should the right case come its way.