The Criminal Lawyer

It looks like we spotted the trend.  Unfortunately.

Last week we noted that, when faced with an ambiguous statute, some on the Supreme Court are now willing to read new language into the statute, rather than toss it back to Congress to do it right.  And we wondered if that might be a harbinger of what was to come in the “honest services” cases of Black, Weyrach and Skilling.

Well, those cases came down this morning, and sure enough the majority decided to read in new language, rather than toss out the statute for being vague.

It’s great for the defendants, whose honest-services convictions got tossed.  But to get there the Court had to change the rules.  Now, judicial invention is a perfectly acceptable method of statutory interpretation… so long as the new language is what “everybody knows” the statute really meant to say.  And that’s bloody dangerous. 

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We’ve been paying close attention to this issue (see other posts here, here, here and here), as have many others, because the feds love charging people with honest services fraud.  It’s so vague and open-ended, that it potentially criminalizes any activity that’s outside one’s job description.  That makes it a great catchall when you can’t prove something more substantive.  But it’s also not at all what Congress intended.

“Honest services” fraud was originally a judge-created law.  There wasn’t any statute criminalizing it, it just sort evolved via common law, accepted in all the Circuits.  But we don’t do common-law crimes in this country, for one thing, and the mail fraud statute didn’t say anything about intangible rights, so in 1987 the Supreme Court threw out the common-law version of honest services fraud.  If Congress wanted to criminalize it, then that was up to Congress.

The idea was pretty simple: If you had a position of trust, and you abused that position for private gain (say, by taking bribes or kickbacks), then you were depriving people of the services you ought to have been giving them had you been honest.  You were getting paid under the table to do your job wrong.  So in 1988 Congress came up with 18 U.S.C. § 1346.

But the language didn’t say anything about abusing a position of trust.  Instead, it just said that (more…)

“Hate” is not an element of New York’s “hate crime” law.  You don’t have to hate to commit a hate crime.  Instead, the law merely requires that you have “a belief or perception” regarding a person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.  (The legislature could have saved a lot of bother by simply saying “a characteristic of a person over which that person has no control.”  That’s the policy they’re pursuing, even if they don’t realize it.)

There’s a list of eligible crimes at PL §485.05(3).  If you commit one of those crimes, and if you either chose your victim or committed the crime because of such “a belief or perception,” then you are guilty of a hate crime in New York, and now face harsher punishment.

This is a pretty vague statute.  You don’t need to have any specific belief or perception about someone, just “a” belief or perception.

The Queens DA’s office — already known more for its zeal than for its sense of justice — has now taken that vagueness to its logical extreme.  They’ve taken the reductio ad absurdum and made it office policy.

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The New York Times reports today that the Queens DA has been going after people who defraud old people, not because of any animus towards old people, but because of a belief about old people.  Namely, that old people are easy to defraud. 

Ordinarily, such frauds do not carry any mandatory jail time.  But if charged as a hate crime, they carry mandatory upstate prison time.  Can it be that the legislature really intended this outcome?

By the Queens DA’s logic, every scam targeted at the elderly is a hate crime, because the scam rests on a belief that old folks are easy to scam. 

By this same logic, any (more…)

It was a case of very strange bedfellows today at the Supreme Court.  The 5-4 decision in Dolan v. U.S. (opinion here) wasn’t split on ideological lines, but on lines of seniority.  The majority consisted of the five most junior Justices, while the senior Justices were joined in a solid dissent.  So Thomas and Alito sided with Breyer, Ginsburg and Sotomayor.  And Roberts and Scalia were united with Stevens and Kennedy.

What gives?  We suggest that it reflects a changing approach to statutory interpretation. 

The case is about how to interpret 18 U.S.C. § 3664(d)(5), which says a sentencing court has to order restitution within 90 days of sentencing, but fails to specify what happens if the deadline is missed.  Specifically, it says that, if losses aren’t calculated 10 days before sentencing, the court “shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.”  That word “shall” is pretty strong, and its accepted meaning is “must.”  In other words, a court has no choice here, no discretion, but “must” set a restitution amount within 90 days.  But there is no provision for remedies if that doesn’t happen.  So the Court had to fill in the blanks.

The majority reasoned that, given that the whole point of the statute is to ensure speedy restitution to victims, Congress couldn’t possibly have intended for restitution to be forfeited if a court takes too long.  And Congress wasn’t particularly concerned with giving finality to defendants, but anyway so long as the defendant is on notice that restitution is in fact going to be ordered, the defendant isn’t harmed if the deadline is missed. 

The dissenting Justices pointed out that this interpretation makes a nullity of 18 U.S.C. § 3664(d)(5).  The 90-day deadline is no deadline at all.  The majority allows restitution to be ordered at any time after sentencing, thereby gutting the plain language of the (more…)

Congress screwed up again.

Animal cruelty sucks. It’s against the law, in one form or another, in every single state. The feds wanted to outlaw it, as well. But they have that pesky jurisdictional hurdle to overcome, which they always try to get around by invoking interstate commerce. So in 1999, Congress passed a law making it a crime — not to commit acts of animal cruelty — but to have a photo or video of a living animal being wounded or killed, with the intention to place that depiction into interstate commerce for commercial gain. 18 U.S.C. §48.

That’s pretty awkward. And it doesn’t outlaw the actual cruelty itself. It’s sort of meant to stop animal cruelty from happening, by making it a federal crime to sell videos of it. Which is pretty lame and stupid, hardly a deterrent at all.

The law was really intended to focus on “crush videos,” which showed the killing of kitties and puppies, for an audience that derived sexual pleasure from such images. See Internet R. 34. The acts depicted in such videos are already against the law in every state, but there you go.

So Robert Stevens was a pit bull enthusiast and documentary film maker. He sold videos that were not “crush videos,” but which did depict dogfighting. Stevens said they were educational, to provide perspective on the phenomenon. The feds said they violated section 48.

This morning, an almost unanimous Court ruled that the statute is unconstitutionally overbroad. (Read the opinion here.) Writing for the majority, Chief Justice Roberts focused not on the First Amendment issues that had been raised (which would have required the carving out of new First Amenment law), but instead zeroed in on the fact that this statute is supposed to apply only to specific types of “extreme” material.

Overbreadth analysis doesn’t require the making of new constitutional law. All you do is (more…)

In a sort-of unanimous opinion today, the Supreme Court reversed the conviction of a Mexican who’d tried to get a job by using counterfeit Social Security and Alien Registration cards along with a fake name and date of birth. He’d been convicted of aggravated identity theft, 18 U. S. C. §1028A(a)(1) — a federal crime for “knowingly” using “a means of identification of another person.”

There was no evidence that this guy, named Flores, knew that the Social Security cards (plural) or Alien Registration cards (yes, plural) he’d tried to use had actually belonged to anyone else. And in fact, they didn’t, as they were made-up counterfeits. The feds said it wasn’t necessary to prove that Flores knew it was someone else’s ID. All they needed to prove, they said, was that Flores knew that… well… that he was using a means of identification.

The trial court, for some reason, bought that argument. Flores then decided to forego a jury and let the judge decide the case. The judge found him guilty of aggravated identity theft. On appeal, the Eighth Circuit agreed with the trial judge’s ruling.

Writing for the Court today in Flores-Figueroa v. U.S., Justice Breyer gave the feds (and the trial judge, and the Circuit) an “F” in basic English grammar. The phrase “knowingly using someone else’s ID” has a simple plain meaning, which is that you knew it was someone else’s ID. Nobody in their right mind would expect the word “knowing” to only modify the verb “using.” Nobody with a third-grader’s grasp of English would think it did not modify the verb phrase “using someone else’s ID.” In fact, to read the sentence the way the feds wanted to would make no sense whatsoever.

The feds, for their part, could not present a single example of a statute being interpreted the way they wanted this one to be interpreted. Their arguments were just lame. And so all nine Justices agreed that this conviction needed to be reversed.

But not all nine could agree with the rest of Breyer’s reasoning. And neither can we. If Breyer had stopped right here, this would have been a great opinion. But he didn’t stop there. Instead, as pointed out by (still concurring) Justices Scalia, Thomas and Alito, he added some unnecessary extra bits of reasoning that only serve to weaken the Court’s opinion.

All three properly called him out for making a baseless statement that courts “ordinarily” read the mens rea of “knowingly” to apply to every element of the crime. Breyer said that there are certainly examples where “knowingly” does not apply to every element. For example, it’s illegal to knowingly transport someone under 18 years old across state lines for prostitution. But you didn’t have to know that the victim was under 18 to be convicted of this crime. The law doesn’t care whether you knew that element or not. All you had to do was know that you were transporting the victim across state lines for prostitution.

Scalia remained “agnostic” on whether courts “ordinarily” interpret laws this way. But Breyer seems to imply that courts should interpret laws this way, and Scalia cautioned against that firmly. “It is one thing to infer the common-law tradition of a mens rea requirement, where Congress has not addressed the mental element of a crime,” he said (a tip of the hat to one of Breyer’s own dissents last week). But “it is something else to expand a mens rea requirement that the statutory text has carefully limited.

Scalia also raised another good point, that Breyer shouldn’t have gone on about the legislative history here. “Relying on the statement of a single Member of Congress or an unvoted-upon (and for all we know unread) Committee Report to expand a statute beyond the limits its text suggests is always a dubious enterprise.” That is especially bad, he added, when doing so would criminalize acts that the text would otherwise permit.

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It is clear that the feds improperly charged Flores with identity theft here. Although he clearly used a false identity, and absolutely tried to pass off counterfeit identification documents, it was equally clear that he had never stolen or used anyone else’s ID.

Why did the feds charge him with a crime he clearly hadn’t committed? It’s not as if they didn’t have other stuff to charge him with. Were they just not thinking? Did they just not understand what the law said in plain English? Did they just not care? Or were they intentionally trying to stick it to him?

Hmm… that’s a nice little mens rea question. Their reasons determine their culpability. Were they idiots (and therefore bad at their job, but not bad people), or were they abusing their power (and therefore bad prosecutors, and bad people)? What do you think?